The implementation of the African charter on human and peoples’ rights and the convention on the rights of the child in Nigeria: the creation of irresponsible parents and dutiful children?

Abstract

This article examines the implementation of the African Charter on Human and Peoples’ Rights and the Convention on the Rights of the Child in Nigeria together with the Junkun native law and custom. The article finds that these are multiple laws reflecting legal pluralism within the social field of the relationship between parents and their offspring. The article further finds that children are obliged to take care of their parents when they are in need for the rest of their lives under the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act whereas under the Children’s Rights Act, parents are no longer responsible to their children after the children have attained the age of 18 years. Thus, the implementation of the two treaties can create irresponsible parents and dutiful children most especially where children are given more rights under customary law beyond 18 as expressed in the Junkun native law and custom. In resolving this situation of legal pluralism, the article subjects the situation to the interrogation of pluralistic archetypes such as legal pluralism of indifference, legal pluralism of accommodation, combative legal pluralism, legal pluralism of mutual support or complementary legal pluralism and offers solution by way of strategies to be adopted in balancing rights with duties through bridging, harmonization, incorporation, subsidization, or repression. The study argues that the Children’s Rights Act appears to be in a combative relationship with the Junkun native law and custom while the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act appears to be in a situation of indifference to Children’s Rights Act. Also, the Nigerian Constitution 1999 also appears indifferent to the Junkun native law and custom. The study therefore recommends subsidization and harmonization as strategies to be adopted by the law making organs in Nigeria and urges them to amend the Nigerian Constitution 1999 to accommodate customary law where it offers a better protection. In addition, the study recommends that pending the amendment, judges should be permitted rule shopping or norm shopping as a repressive strategy to supplant any norm that will do injustice where an alternative norm will do otherwise. The study concludes that by having the Constitution amended, the legislative process as a manifestation of the state's legal power or authority in Nigeria will acquire legitimacy. Also, by adopting a repressive strategy, the judicial process as a manifestation of the state's legal power or authority in Nigeria will acquire legitimacy.

Keywords:

• African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act
• Convention on the Rights of the Child
• Children’s Rights Act
• the Junkun native law and custom
• legal pluralism
• Nigeria

Notes

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 It was adopted by the Assembly of the Organization of the African Unity (OAU) now known as African Union (AU) on 28 June 1981 in Nairobi, Kenya (African Commission on Human and Peoples’ Rights “History of the African Charter”. http://www.achpr.org/instruments/achpr/history/ Accessed 22 September 2019). The Charter came into force on 21 October 1986 after it was ratified by the absolute majority of the member states of the OAU now AU (Ibid). As of 15 June 2017, all states in Africa have ratified the Charter except Morocco (African Union “List of Countries which have Signed, Ratified/Acceded to the African Charter on Human and Peoples’ Rights”. https://au.int/sites/default/files/treaties/7770-sl-african_charter_on_human_and_peoples_rights_2.pdf. Accessed 22 September 2019).

2 African Union “List of Countries which have Signed, Ratified/Acceded to the African Charter on Human and Peoples’ Rights”. https://au.int/sites/default/files/treaties/7770-sl-african_charter_on_human_and_peoples_rights_2.pdf. Accessed 22 September 2019.

3 Ibid.

4 Ibid.

5 Cap A9 Laws of the Federation of Nigeria 2004.

6 United Nations, Treaty Series, vol. 1577, p. 3. The General Assembly adopted the Convention at its forty-fourth session through its Resolution 44/25 of 20 November 1989. On 2 September 1990, the Convention entered into force in accordance with article 49(1) of the United Nations Charter. As of 25 March 2018, 140 states had ratified the Convention.

7 Ibid.

8 Ibid.

9 Salomon v Commissioners of Customs and Excise [1967] 2 QB 116, 143.

10 Salomon v Commissioners of Customs and Excise [1967] 2 QB 116; Pepper v Hart [1993] AC 593; Forthergill v Monarch Airlines [1980] 2 All ER 696, 705–706.

11 See Post Office v Estuary Radio [1968] 2 QB 740; The Jade [1976] 1 All ER 920, 924 per Lord Diplock; Smith Kline and French v Harbottle [1980] RPC 363; E’s Applications [1983] RPC 231.

12 Oshevire v British Caledonian Airways Ltd [1990] 7 NWLR (Pt 163) 507; Abacha v Fawehinmi [2000] 6 NWLR (Pt 660) 228, 342–343.

13 Abacha v Fawehinmi [2000] 6 NWLR (Pt 660) 228.

14 Ibid., 315–316.

15 JFS Investment Ltd v Brawal Line Ltd [2010] 18 NWLR (Pt 1225) 495.

16 Higgs and Another v Ministry of National Security and Others The Times of 23 December 1999; Attorney-General v British Broadcasting Corporation [1981] AC 303, 354; Abacha v Fawehinmi [2000] 6 NWLR (Pt 660) 228, 246.

17 New Patriotic Party v Inspector General of Police Accra (2000) vol 2 HRLRA (Human Rights Law Report of Africa) 1, 62–63.

18 Ogugu v The State [1994] 9 NWLR (Pt 336) 1, 43.

19 Cap A9 Laws of the Federation of Nigeria 2004.

20 Abacha v Fawehinmi [2000] 6 NWLR (Pt 660) 228.

21 Adopted and opened for signature, ratification and accession by General Assembly Resolution 44/25 of 20 November 1989, entry into force 2 September 1990.

22 Cap C50 Laws of the Federation of Nigeria, 2004.

23 Adopted and opened for signature, ratification and accession by General Assembly Resolution 44/25 of 20 November 1989, entry into force 2 September 1990.

24 [2005] 2 NWLR (Pt 909) 202.

25 Ibid., 234, paras C-H.

26 Ibid., 239–240, paras H-A.

27 Ibid., 239, paras G-H.

28 Obasuyi v Business Ventures [2000] NWLR (Pt 658) 668 (SC).

29 Cap 46, Laws of Oyo State, 1978.

30 (1951) 13 W.A.C.A. 304.

31 By the Supreme Court Ordinance 1876, certain statutes known as statutes of general application which were in force in England as of 1 January 1900 were made applicable in Nigeria. This provision has been adopted by the Interpretation Act (section 32) Cap 123 Laws of the Federation of Nigeria 2004 and various High Court Laws in Nigeria. It should be noted that statutes of general application is now of minimal use as local statutes have replaced most of them.

32 (1971) All.N.L.R. 227.

33 (1944) 17 N.L.R. 77.

34 [2002] FWLR (Pt. 111) 1972.

35 CAB/LEG/153/Rev. 2.

36 Civil Case 30 of 2003, High Court of Kenya at Nairobi, [2004] eKLR.