CRITICAL ANALYSIS ON THE RIGHT OF CHILDREN TO EDUCATION UNDER INTERNATIONAL LAW: A CASE STUDY ON NIGERIA

ABSTRACT

 

The importance of children education in any given society is very critical to the social and economic development of that society particularly for its future attainment, advancement and development. To deny the child its right to education is to deny the Nation its critical development economically, socially and otherwise. The need of the child ranging from feeding, clothing, accommodation and capacity hangs on the shoulder of adults, parents, guardians and the Government. Because of their vulnerability they cannot cater for themselves hence they must be provided guidance, training and care for meaningful contribution in the society. This task of educating the child for critical thinking and development lies on the society. It was in recognition of this, that the right of children education has been entrenched in several International and Domestic legal Instruments.However, there is the problem of implementation and enforcement of these extant laws as there are still so many uneducated, unfed and tattered children in the street engaged in hawking, child labour, begging and so on. And the resultant effect of this is that the social and economic landscape of the future generation in Nigeria cannot be guaranteed. In this regard therefore the objective of this paper is to bridge information gap by advocating adequate grassroots sensitization on the existence of this laws, make case for reforms of these enabling laws, and provide foundational research for further research in the knowledge area. The methodology of the research adopted is both doctrinal and empirical research methods. In the course of this research the finding of the research is that the various constitutive Instruments though adequate however, lack proper mechanism for effective enforcement and implementation of the provisions of the instruments and also the scourge of poverty renders most parents incapable of sustaining their wards through basic education. The research work recommends the provision of enforcement machinery that will ensure implementation, adequate grassroots sensitization on the childrens’ right to education and the need to address the issue of poverty by empowering the rural and urban poor through the provision of soft loans. It also recommended constitutional amendment to include child’s right to education as a fundamental right.

CHAPTER ONE

GENERAL INTRODUCTION

1.1                           Background to the Study

The childhood years have been identified as the most vulnerable years of one’s life, as the child¹to a very large extent depends on its parents or guardians for survival. Any omission or commission on the part of the parents or guardian can make or mar the child for life. Under Public International law, the child is recognized as among the vulnerable persons whose rights must be protected and one of such rights that must be promoted and protected is the right to education². It has been said that education and enlightenment are two nuclei to a proper understanding of what human rights are and the modus operandi in their enjoyment. So for a person to understand and appreciate the entirety of his rights as a human he must be educated first. To deny a person education especially in his early years is akin to denial of life.

1. A child has been defined by the Article 1 of the Convention on the Right of the Child 1989 as well as Child Right Act as a person under 18 years. So teenagers are included.
2. Article 1 of the World Declaration on the Right of the Child to Education 1990
3. Arinze – Umobi, D. C., The Nigeria Girl – Child, Right to Education and the Nexus with National Development. http//www.right-to-education in Nigeria.co.org/html accessed 21/11/12

It is also said that education is the greatest force that can be used to bring about change and also the greatest investment that a nation can make for the quick development of its economic, political, sociological and human resources⁴. A nation whose citizenry are

majorly uneducated is sure to be under developed and stagnated. Illiteracy has been traced as the major root cause of poverty and education is identified as the surest route out of poverty especially for most children in the developing countries.

Public international law recognizes children’s right to education as a fundamental human right which guarantees the full enjoyment of all other rights as contained in international legal instruments⁵. In fact under international law every individual, irrespective of race, gender, nationality, ethnic or social origin, religious or political preference, age or disability is entitled to a

free elementary education⁶. This right was explicitly enunciated in the Universal Declaration of Human Rights (UDHR) 1948 which stated thus, “Everyone has the right to education. Education shall be free at least in the elementary and fundamental stages, Elementary education shall be compulsory…⁷’

4. International law and the Right to Education/Report to education right-to-education.org/nude/234 accessed 13/2/13
5. International legal investment for example:Universal Declaration on Human Right 1948 (UDHR), International Covenant on Economic, Social and Cultural Right ( ICESCR) 1966, International Covenant on Cultural and political Right ( ICCPR) 1966
6. Article 1 UDHR 1948

7. Ibid,

This instrument recognized the critical importance of education especially at the rudimentary and foundational stages of human life. It is believed that the UNDR actually set the pace for the development and the recognition of the right to education under International law.

Also the landmark Convention on the Rights of the Child among other things enjoins state parties to recognize the right of the Child to Education with a view to achieving the Right progressively and on the basis of equal opportunity by making primary education compulsory ,available and free for all⁸.

The various Legal Instruments that contain this right have gained universal acceptance at both regional and domestic levels and It is expected that Countries which have ratified and domesticated these Conventions, Treaties, Covenants etc should incorporate them into their local Laws and ensure adequate implementation. However, in reality these Laws have become mere paper tigers with little or no practical relevance. For instance, Nigeria as a Nation has at both the Federal and State level domesticated, incorporated and enacted into laws the Convention on the Right of the Child which embodies the children right to education. There is the Child Right’s Act of 2003 and the various State Edicts on the Child’s Right.

8. Article I of the Convention on the Right of the Child (CRC) 1989. Note that the Declaration on the Right of the Child 1924 and 1959 were precursor to the Convention on the Right of the Child.

Yet, there are no visible effects of implementation in the society. In fact there are no clear cut legal mechanisms set up to ensure implementation of these laws nor is there any such provision in the Constitution of the Federal Republic of Nigeria. It is a truism that the Constitution of every state is thefundamental law of the country, reflecting the underlying and unifying values of thesociety, spelling out the basic rights of each person; it also serves as a frameworkfor all other laws and policies in any given state⁹. In order words the constitution of any country places the limit to which values and rights can be respected, promoted and protected in any given society thus where a

lacuna is created by the constitution itself no other law can effectively fill that gap¹⁰.

The state on the other hand is thecentral actor to any claim that borders on the rights of its citizens; it is the primeduty-bearer and the prime implementer of the Constitution. It is the guarantor of the rights provided in the Constitution and it is thestate’s signature vis-à-vis the international norms and standards which binds itto respect, protect and fulfill these rights, particularly the right to education¹¹. So where the state lacks the political will to implement and enforce its own laws, the society is helpless.

9. United Nation on right to education www. Unesco.org/new/en/education/themes/ leading – the intl accessed 13/2/13

10. Section 1 (1 & 3) of the 1999 constitution of the Federal Republic of Nigeria, Cap C 23 Law of the Federation of Nigeria 2004

11. International law and the Right to Education/Right-to-education. Project right-to-education.org 13/2/13

The drafters of the 1999 Constitution of the Federal Republic of Nigeria in order not to over burden the Government ,cleverly exonerated the State from enforcing certain rights which are recognized in international Law ( right to education inclusive) by including it in Chapter II on Fundamental Objectives and directive Principles of State Policy which are essentially not justiciable¹².

Paradoxically, section 6 (6) (c) of the same Constitution ousted the powers of the Court to question Government on any act or omissions relating to Chapter 11. Consequently, chapter 11 are clearly non-justiciable and thus the practicality of the provision that ‘Government shall strive to eradicate illiteracy ‘as provided in section 18 has been

termed as mere rhetoric with no legal relevance¹³.

Herein lays the bone of contention which this research work is set to find a solution. Indeed there are plethoras of international documents guaranteeing and protecting children and their rights especially to education which the Nigeria Government is

signatory to that are just dormant and in operative in the face of glaring abuses¹⁴. Governments have come and gone yet none has mustered enough political will to implement these laws, thus it is the objective of this research work to unravel the seeming challenges and proffer achievable solutions as to the way forward.

12. Section 18, Constitution of the Federation Republic of Nigeria (CFRN) 1999 as amended.
13. Ibid
14. World Declaration on the Rights of Child to Education 1999, Universal Declaration on Human Right 1948, Convention on the Right of the Child 1989 Act.

1.2         Statement of the Problem

The problem of this research work is principally centered on how to ensure implementation of these relevant international and domestic instruments on the subject matter. Although lack of political will on the part of the leaders to enforce the implementation of enacted laws has been identified as a major hindrance yet several other issues constitute obstacles to effective implementation in Nigeria.

Secondly, religious dogmas is also a major concern, although there is no single religion that forbid education yet the misinformed always hide under the cloak of religion to deny their wards the right to education. Also lack of adequate grass root sensitization on

the right of the child to education further buttress this fact.¹⁵

The third concern is the patriarchal nature of most societies in Nigeria that discriminates against the girl-child. The major worry here is that the boy – child is better preferred to the girl – child. It is believed that the boy – child is there to preserve the family line while the girl – child’s education will eventually end in her husband’s kitchen.¹⁶The following are identified as the factors that further encumber the position of the Girl – Child:

15. NAPTIP( General) Annual Report2010/2011.
16. Arinze-Umobi, D.C., The Nigeria girl–child Right to Education and the Nexus with National Development http/www. Right-to Education in Nigeria co. org. html accessed 21/11/12
17. Traditionally ingrained negative and obnoxious practices, for example: female circumcision, early marriage.
18. Girls are often pawned and used for unremunerated and invisible jobs.

• Girls are channeled towards informal courses for home keeping and child rearing and bearing. Girls’ training is regarded as bad investment as they would eventually be married off. Thus a greater number are illiterate, uninformed, vulnerable, disadvantaged in the labour market and invariably poor and unempowered economically.

The fourth concern, is the provision in the constitution that captured the obligation of Government toward education as under chapter 2 on fundamental objective and directive principles of state policy which are not fundamental and inalienable rights.

Fifthly, is the fact that although international instruments are recognized by the Nigeria constitution yet its applicability is not automatic as in the Namibian Constitution where the constitution has recognized and made public international law part of the constitution but has to subjected through the rigors of the National Assemble.¹⁷

17. Namibia constitution 1990, http//www.Superior,court.org.na/supreme court/ Namibia constitution html accessed 11/3/13 In Nigeria’s situation these instrument has to be incorporated and enacted as national laws first before it can be implemented. But the problem which this research work is set to provide some answers is that after these laws have been enacted as local laws actual implementation becomes another story entirely.

Besides all these, is the lack of appropriate economic mechanism for enforcement. Although this Right has been provided for in the enabling laws there is no mechanism for enforcement, thus violations and abuses go unchecked.

1.3       Scope of the Research

This research shall be confined to the following areas of study:

1. A critical analysis on the right of children to education under international Law with focus on domestic implementation in Nigeria.
2. The analysis of the nature and extent of the legal framework for the protection and promotion of the Right of the Child at domestic, regional and international level.

1.4       Objectives of the Research

The objectivesof this study, is to examine the right of children to education under international, regional and local instrumentsvis a vis the adequaciesor otherwise of such Laws with a view to identifying the challenges of the institutions and to proffer practical measures, where possible, needed to enhance enforcement in various jurisdiction in international Law with particular reference to domestic implementation in Nigeria through the study of the following issues:

1. to bridge information gap
2. to make case for reforms.
3. to provide foundation research for further research in the knowledge area,

1.5         Justification of the Study

The justification for this study is that the concept of the right of children to education is yet to receive wide publicity; most people are ignorant of the existence of the international, regional and domestic instruments containing this right. So there is the need to sensitize the people on the existence of the right and the need for an enforcement mechanism, all of these shall be addressed in this thesis.

Also, this thesis will serve as a medium to persuade the Government especially the Legislature and the Judiciary to step up actions toward making these laws enforceable as well as creating awareness for the need to create a platform for the enactment of laws abolishing all forms of violation against children’s right particularly, the right to education.

This thesis will serve as a medium to sensitize the society on the need to uphold these laws and to protect the Nigeria child from all forms of violations regarding his right to education. Moreover, this thesis will serve as a medium to sensitize the children themselves that they have a right to be protected by the State. For example this will encourage the participation of children in policies, programme and decisions affecting them. Furthermore, it is expected that this study will foster further collaboration between researchers, policy makers and practitioners working on areas related to the wellbeing of children.

1.6        Research Methodology

The methodology of the research to be adopted here shall be both doctrinal and empirical research methods¹⁸.The doctrinal research method otherwise known as the library based research sees law as a normative science and humanity requiring the analysis of cases and statutory provision by the use of the power of reasons¹⁹It also means theorizing without considering the practical consequences, which means in this

study we shall wade through both primary and secondary sources.²⁰

18. Akande, I. F., Analysis on the Right to Democratic Governance under International Law. A case study of Domestic implementation in Nigeria, PHD Thesis (Unpublished), Faculty of law ABU Zaira, (2008) P. 31-32
19. Gasiokwu, M.U., Legal Research Methodology. The A – Z of Writing Thesis and Dissertation in a Nutshell, Fab Arich (Nig) Ltd 1993, P 13 – 16

• Aboki Y. Introduction to Legal Research Methodology 2^nd Edition, Temaza, Publishing Company Ltd. 2009 P. 60

Primary sources include Acts, Decrees and Edict of the Legislature. It also includes decision of superior courts of records as well as decisions of government agencies that have formal adversarial hearings. While Secondary sources include books, journals, commentaries and e-materials.²¹

While, the empirical research method is the acquisition of knowledge based on an experience, experimentation and observation of experts learned in the field of children’s rights under international²². This shall involve the collection of facts and data through interviews, questionnaires etc from target groups. Implementation and non – implementation of the right of children to education together with the prospects and challenges therein in Nigeria shall be based on empirical method. In this wise, questionnaires and interviews shall be administered in the area of children’s right to education under international law.²³

21. Aboki Y. op.citp.10
22. Black, H.C.,(1990) Black’s Law Dictionary.6^thEditionWest Publishing Company.U.S.A.15
23. Akande I. F. op.Citp.10

1.7         Literature Review

Over the years, since the Universal Declaration of human right came to the scene in 1948, human rights advocates have made a lot of contributions in the field, however the concept of children’s right in general gained ascendancy with the land mark Convention on the Right of the Child which embodies the right of children to education. Since then advocates have sought to persuade State parties to give credence to these legal instruments in order to benefit the ordinary child and the society in general. The Nigerian situation is even more disturbing because despite the fact that Nigerian Government has passed the Child’s Right Act 2003 and over 20 states have enacted into laws this Acts yet implementation and enforcement has been a different story entirely. This situation has raised a lot of responses from international institutions and the civil societies.

In this study we shall look into some articles, journals, books written by both local and international experts, advocates and international organisations.

In Ezeilo, 2006 in her book titled: ’’Women and Children Rights in Nigeria’’ outlined in the third chapter of the book, the rights and duties of children as encapsulated in the Convention on the Rights of the Child 1989 viz a viz the Child Rights Act. The writer observed certain inadequacies in the Act in comparison with the Convention. Although the writer did not lay particular emphasis on children right to education as separate from the other rights provided in Convention or the Act, however the writer’s comment on non-implementation is all encompassing.²⁴The writer noted that even where laws exist implementation is often fraught with difficulties and that a wild gulf exists between the actual provisions of the law and their practice. This is indeed very true, however the writer did not proffer any recommendation. it is my humble belief that this study will proffer some answers that will help correct this anomaly.

In Christopher, 2008 and the Right to Education Project in a paper titled Millenium Development Goals on Education stressed that world leaders must reaffirm education

as a human right and as a major driver of economic and social development²⁵. They wrote that about 72 million children worldwide remain out of school and almost half are in Sub–Sahara Africa.They further said that the poorest countries are the least able to scale up their school system so that all can be enrolled. They observed that girls make up far more than half of these numbers and with two-thirds of the world’s 780 million illiterates being women, the need to meet the MDG 2 (Universal primary education and 3 (gender equality)is very critical.

24. Ezeilo J. Women and Children Right, Children and women Right http/www/CRC/org.925 accessed 11/10/12.
25. Christopher, C., Unterhalter, E. The Right to Education Project, ‘Millennium Development Goals on Education’ (2008) http/www.right – to – Education.org/node/948 accessed 13/2/13

The writers also emphasized on the numerous economic and social benefits that flow from providing access to education.²⁶

However, the writers did not aver their minds to the relevant international and regional instruments that guaranteed the children right to education and on the need for the world leaders who are signatories to these instruments to ensure implementation and enforcement in their respective countries, which this research work shall consider. Yet, the paper is of relevance to this research as it extensively dwells on the understanding of the right to education as a human right issue in International Law.

In Arinze-UmobiD.C 2011 in her article titled:’’ The Nigeria Girl-Child, Rights to Education and The Nexus with National Development’’ laid emphasis on the right of the girl – child to education.She noted the relevance of girl – child’s education toward national development. She sought various definitions on the Child and the Girl – Child, while enumerating thevarious factor encumbering full implementation as guaranteed under international and local instruments²⁷. Although the concern of the writer is justified especially in a patriarchal society like Nigeria where the male-child is stillpreferred to the girl-child still the object of this research shall be more holistic as regardprotecting and advocating the right of children (as a target group) to education.

26. Christopher, C, Unterhalter E,.op.cit. p 13
27. Arinze – Umobi D. C. op.Citp.8

In Global Movement for Children, 2012 a Non- Governmental Organisation published an article titled:’’ Nigeria: Child Rights Act – Non-Implementation Worries UNICEF’’. In the article the United Nations Children’s Fund (UNICEF) at a function held in Bauchi, Nigeria

on 22^nd December 2010 appealed to Governments and Non-Governmental Organisations (NGOs) in the country to give maximum support for the promotion of Child rights. UNICEF expressed worry over some state Governments’ alleged refusal in setting up implementation committee on the Child Rights Act as required by the law²⁸. Indeed this is one of the major challenges to actual implementation of these laws in the various state of the federation as some state Government even after enacting this law locally still lack the political will to implement the provisions of the law. The above comments was made by UNICEF through its communication officerMr Samuel Kaalu who pointed out that,’ Our children deserve these rights in view of their limited capacity to grow by themselves, but depend totally on not only their parents,

28. United Nation on Right to Education. unesco.org/new/en/education/themes/leading-the-inter-accessed 13/2/13

care givers, or where not available government’’. He stressed that free education amongst others are supposed to be the rights of children, but to his dismay thousands of children under the age of 18 have been deprived of these privileges. He noted that no fewer than ten million children are out of school, adding that UNICEF alone cannot cater

for these challenges unless Government, NGOs and stakeholders join hands²⁹.

Indeed the assertion of UNICEF here is highly commendable but it would be better if UNICEF had first made this appeal to the Federal Government particularly the legislature persuading them to pass a law that would make implementation enforceable not just to worry that implementation committees are not set up having regards to the political nature of such bodies³⁰. However, this paper work is of relevance to this research as it has brought to the fore the efforts of the UNICEF in advancing free education as a critical right of children to must be promoted.

29. United Nation on Right to Education. unesco.org/new/en/education/themes/leading-the-inter-accessed 13/2/13 

30. Ibid

In conclusion, the writer of this research work, while acknowledging the efforts of the works of the writers considered above would present a detailed analysis on the Nigerian perspective on the right of the child to education while setting out a practical recommendations that will ensure that the wide gulf that exist between laws and actual implementation and enforcement is bridged to a very large extent.

1.9         Organisational Layout

Chapter One contains the General Introduction to the study, Statement of problem, Aims and Objectives of the study,Scope of the study, Methodology, Literature Review, Justification and Organisational Layout.

In Chapter Two, the Researcher will delve into conceptual analysisof child’s Rights, by defining the meaning and nature of Right, Child Education and historical development of the right of a child.

In Chapter Three, the study shall examine the legal framework for the protection and promotion of the Right of a child by x-raying International, Regional and local instrument on the right of a child, the constraints to enforcement as well as the impact of International Organisations and Civil Societies.

In Chapter Four, the researcher goes further to identify the factors militating against the protection and promotion of the right of a child in Nigeria viz: Educational. Factors, socio-economic factors, political and religious factors, communal factors and environmental factors. Finally in Chapter five which is the last chapter of this study, the researcher shall summarize the study after which conclusion will be drawn based on analysis and discussions in chapter two, three and four of this study. This study shall also proffer recommendations on the way forward. Thereafter, a comprehensive list of materials and authorities cited shall be presented as references.

$39.69 – DOWNLOAD FULL PROJECT DOWNLOAD FULL PROJECT Added to cart