CHAPTER TWO

LITERATURE REVIEW

2.1Conceptual Framework

2.1.1Child

In its general term, Black’s Law Dictionary 1 defined a child as a person under the age of

majority. One cannot trace any definition of the word “child" in the Constitution of the Federal

Republic of Nigeria.

In the case of John Okoye v The State2, the Supreme Court held that a child is a young person in

the formative period of life. Again, in Okwueze v Okwueze3, Agbaje JSC, went further to affirm

the definition of a child to that of a person below the age of 18. In Labinjo v Abake 4, it was held

that any person below puberty is a child.

 Brocklehurst5 points out, the concept of childhood is used to identify everyone from newborn

babies to young adolescents, and the meaning of the term differs greatly across history and

cultural traditions.

For the writer, a child is an individual who is not yet an adult or any person who cannot

successfully take decisions by themselves because they are not of age, where it can be inferred

that they understood the totality of all the implications arising from such decision legally.

However, the definition of a Nigerian child is quite hazy. This is due to Nigeria’s plural Legal

Systems, which incorporates both Statutory and Customary law norms, along with different
1
B N Garner, Black law Dictionary (West Group, St Paul MINN, 8th ed. 2004) 254.
2
(1972) All N.L.R 938
3
4(1989) NWLR (Pt.109) 32
4
(1924). 5 NLR 33.
5
H Brocklehurst, ‘’who’s afraid of children: Children, conflict and international relations’’ [2017](1)(3) Routledge.

1
understanding of a child. Thus, in Nigeria, the definition of a child is done on the basis of an

enactment or judicial interpretation on one hand, and the customary law interpretation of a child

on the other.

2.1.2 Best Interest

The concept of the best interests of the child is a widely accepted principle in the protection of

children's rights. This is provided in Article 26 thus;

The child shall enjoy special protection, and shall be given opportunities and facilities, by

law and by other means, to enable him to develop physically, mentally, morally,

spiritually and socially in a healthy and normal manner and in conditions of freedom and

dignity. In the enactment of laws for this purpose, the best interest of the child shall be

the paramount considerations.”

Also, the principle of the child's best interests is set out in Article77 of the Declaration, which

states:

“Best interests of the child shall be the guiding principle of those responsible for his

education and guidance …”

The concept of the child's best interests is acknowledged not only in many Domestic laws, but

also in a number of International Human Rights treaties. Despite wide acceptance of the concept,

defining the term remains a challenge. To Alston 8 just as values and social standards differ from

place to place, so does one's perception of this concept. Himes James9 stated thus;

6
CRC,1989
7
Ibid
8
P Alston, “The best interest principle: towards a reconciliation of culture and Human Rights, reconciling culture
and Human Rights,” [1994](8)(1), International Journal of Law, Policy and the Family, 10
9
Ibid, p 12

2
 “The challenge of interpreting ‘the best interests’ principle is complicated by many

powerful forces at work in the world: poor and conflict-torn societies of Africa to the

bewildering legal and ethical concern about the technological manipulation of human

genes and the human reproductive system”.

The interpretation of the concept would undoubtedly be left to the discretion of the individual,

institution, or organization employing it," the concept is "inherently subjective10. Also, Robert

Mnookin11, argues, society lacks’ any clear-cut consensuses as to the values which must be

considered to establish what is best for the child. He maintained the selection of criteria is

intrinsically value-laden; all too frequently, there is no agreement on which values should guide

this decision. These issues are not specific to children's policy, but they are exacerbated in this

situation because children are unable to advocate for themselves.

Deciding what is best for a kid poses an issue no less ultimate than the purpose and values of life

itself," argues David Chambers12, and he questions, "... where is the judge to seek for the set of

values that should inform the decision of what is best?"

To J Zermatten13, the concept of the child's best interests is clearly amongst the most significant

clauses of the CRC. It's also one of the trickiest things to describe. In practice, however, it is

impossible to work with the CRC without a clear understanding of this principle of interpretation

or rule of procedure, or to just assume that everyone is operating in the child's or children's best

interests. He posits, this concept has two roles, traditionally, one that attempts to govern and the

other that seeks to solve problems, a criterion of control and, of solution. Under the control
10
Ibid
11
R Mnookin , In the Interest of the Child: Advocacy, Law Reform and Public Policy (New York: W.H. Freeman &
Co, 1985), 17.
12
Ibid, p 17
13
J Zermatten ‘ Notes: Working Report ’ The Best Interests of the Child Literal Analysis, Function and
Implementation, 2010

3
criterion, the best interests of the child principle would be used to ensure that children's rights

and obligations are upheld and fulfilled, whereas under the solution criterion, in issues involving

children, the concept of the child's best interests can help decision-makers make the best choice.

2.1.3 Right of Participation

The right of participation simply affords the child an opportunity to take part in matters that

concern him. For example, the Right to Freedom of Movement guarantees and authorizes the

child's freedom of movement. It is unquestionably participative since the child indeed has the

entitlement, but he or she is also allowed by law to take individual positive efforts to enjoy it.

The right is not latent, and it cannot be exercised for the benefit of the child by another person,

organization, or entity. However, movement may be restricted if it is detrimental to the child or if

it is in the child's best interests in terms of education, safety, and welfare. These exclusions are

unquestionably in the best interests of the child, as stated in Section 1 of the Act, which states

that "the best interests of the child should be the main consideration in every activity touching a

child.14

Another participatory right of the Nigerian child under the Act is the right to rest, leisure, play,

sports, recreational activities, and full participation in cultural and artistic activities15.

A child has a participatory right to be catered for by his parents, as well as the right to have such

a right enforced in a Family Court. Again, a child has the right to refuse to be separated from his

parents unless the separation is for the child's education and welfare or is directed by a court to

14
M.A. Ajanwachukwu, The Nigerian Child and the Right to Participation: A Peep through the Window of “The
Best Interest” Clause of the Child’s Rights Act [2017](8)(2) Beijing Law Review,122.
15
CRA, section 12

4
be in the child's best interests.16 Also, the right to attain at least a junior secondary school

education is participatory and, if such child is not sent to school for senior secondary school

education, shall have the right to participate in the learning of an appropriate trade from an

employer who is bound to provide the necessaries for learning the trade 17. The right of a child to

participate must be in their best interest.

2.1.4 Human Rights

Human rights are principles that acknowledge and preserve everyone's dignity. Individual human

rights control how people live in society and interact with one another, as well as their

relationship with the state and the responsibility that the state owes individuals. Human rights are

inalienable and universal. They are available to anyone, wherever on the planet. No one can give

them up voluntarily. Others are unable to take them away from him or her18.

Every person and every people have the right to active, free, and meaningful participation in,

contribution to, and enjoyment of civil, political, economic, social, and cultural development,

which is necessary for the realization of human rights and fundamental freedoms.19

A child’s right is human right 20 . There are several grounds for separating children's rights from

other human rights in a separate Human Rights Conventions: Children are individuals; they are

not just the property of their parents or even the state, nor are they mere people-in-waiting; they

share the very same status as every other members of the human race. Again, adults must provide

the nurturing and direction that children require as they progress toward independence. Adults in

16
Ibid, section 14
17
Ibid, section 15
18
https://www.unicef.org/child-rights-convention/children-human-rights-explained
19
Ibid
20
Child’s Right is Human Right, available at< https://www.unicef.org/child-rights-convention/child-rights-why-they-
matter> accessed 10th December, 2021

5
children's families are the finest source of such nurturing, but when primary adult caregivers are

unable to meet children's requirements, it is up to the State, as the primary duty bearer, to find an

alternative in the child's best interests.

Most importantly, the United Nations Convention on the Rights of the Child (UNCRC) is a

legally binding international treaty on human right. There are 54 Articles in the Convention, 42

of which deal with the rights of children and young people. The remaining sections deal with

how governments should publicize and implement the convention.

2. 2 Theoretical FrameWork

2.2.1 Natural law Theory

Natural law is a theory in ethics and philosophy that says that human beings possess intrinsic

values that govern their reasoning and behavior. 21 Aristotle (384–322 BCE) is considered by

many to be the father of natural law, he argued that what is “just by nature” is not always the

same as what is “just by law22. This theory proposes that every human being, including a child

should be afforded some basic rights which in the ordinary sense of it is inherent in every human.

These rights include, the rights of a child to participate in all matters affecting his life as a human

being, such as right to leisure and right to participate in cultural and educational activities in their

community. Therefore a Child just like an adult makes participatory decisions guided by his/her

reasoning and thoughts.

2.2.2 Realist Theory

21
Natural law theory, available at < https://www.investopedia.com/terms/n/natural-law.asp> accessed 10th
December, 2021
22
Ibid

6
 Oliver Wendell Holmes of the Supreme Court of America is credited to have had the most

influence on what is known as the Realist Theory of law today23 all law are gotten from

prevailing social interest and public policy. Here a judge does not only consider the abstract

rules, that is the documents, written in white and black prints, but also social interests and public

policy when deciding a case. Those who make argument for this theory include Alston24 Robert

Mnookin25 and, J Zermatten26, they maintain that for a proper understanding of the principle, a

court must make pronouncements on what these rights and interest are and, which gives validity

to the written documents, otherwise it remains only a written document without any impact. In

other words, it is not enough that some Convention, Law or Act provide for the rights of

participation for a child, in black and white, even so, these rights are what the Judges

pronounces them to be. According to the Realist school the Judges have a say in the

Participation of a Child in Nigeria, and the judgements must be in the best interest of the child

protecting the child as well.

2.2.3 Positivist Theory

This theory maintains the idea that the existence and Content of Laws are determined by social

facts rather than its merits. John Austin was of the opinion that the existence of law is one thing;

it’s merit and demerit are quite another. The question of whether it is or is not conformable to an

established norm is another. It is the argument of authors on the side of this theory like Prof

Okpalaobi that the law has guaranteed these participatory rights under the various statutes for the

enjoyment of a child, whether or not it is in agreement with the customs or acceptable to the

23
O W Holmes, “An Address by Justice Oliver Wendell Holmes: The Path of the Law”, [1897](10) Harvard Law
Review, 457
24
P Alston, op cit, 10.

25
R Mnookin (1985), op cit, 17.
26
J Zermatten, op cit.

7
participating community, the law remains the law and failure to afford the child the already

stated rights would bring about sanctions. So the Participation of a Child should be encouraged

by all in accordance to the Law stated.

2.2.4 Child Benefit Theory

The notion of child benefit theory allows public funds to be provided to participants in schools if

the allocation can be justified as benefiting the kid27. The 'child benefit theory' was first proposed

in defense of a Louisiana statute that authorized the use of public monies to purchase school

materials for children who did not attend public schools. The Louisiana Supreme Court

concluded in Borden v. Louisiana State Board of Education28, that such appropriation was for the

benefit of the students and the state as a result. In Nigeria a similar example in the application of

this theory is the right to free and compulsory education as enshrined in the Constitution29. The

Child should also be granted the right to Choose where his/her education should take place for

his/her benefit. A Child has a right to be fully active in his/her education process, even where the

Child learns a trade instead of going to school, it should be his/her choice not to go to school.

2.3 Summary of Literature

Best interest principle is no longer novel in our clime, neither is the right of participation. A

myriad of legal opinions and thoughts has been canvassed on this very issue.

AjaNwachukwu30 examined the theoretical framework, discussed who a Nigerian child is (within

the contemplation of the Act); the various rights of the Nigerian child to participate, and “the

best interest” clause of the Act; conclusion; and recommendation. The recommendation of the
27
Child-Benefit theory law and Definition, available at https://definitions.uslegal.com/c/child-benefit-theory/
accessed 30th December,2021
28
1929, 168 La. 1005, 123 So. 655, 663, 67 A.L.R. 1183
29
Section 18, Constitution Fed.Rep of Nigeria, 1999 as mended
30
Op cit, AjaNwachukwu.

8
author did not succinctly provide the way forward if the laws on the right of participation for a

child was not adequate.

Okpalobi & Ekwueme31opines in their work that regardless of the fact that the CRA was passed

by the National Assembly, it’s main provisions are to promote the best interest of a Nigerian

child, in consideration with the rights of participation guaranteed every Nigerian child, both

under the Act and various International Instruments, which the Nigerian state are signatory to,

we still see a lot of administrative hitches, reasons for these are of a constitutional, cultural, and

religious nature. They are of the view that enlightenment, education, and decent governance at

the grassroots level can only lead to a solution. The government's inability to educate its citizens

on human and children's rights is the reason for the lack of adequate administrative structure to

protect these rights of a child. The work however failed to express how government could

achieve an administrative overhaul.

Umejiaku in her work entitled, Advocating for the protection of rights of children and women in

Nigeria: appraisal, reveals that despite a plethora of legislation, the work reveals that the rights of

women and children are nevertheless hampered by a variety of circumstances on an international,

regional, and national level. Legal, economic, social, as well as political factors all play a role.

With particular references to the right of participation of the Nigerian child, the writer mentioned

that the provisions of these enabling laws are flawed, in a sense that they are structured in a way

that is capable assumption. I agree with the writer to the extent that the laws seeking the

participation of a child in matters that concerns them are capable of assumption, however, I do

not believe they are flawed.

31
B N Okpalobi & C O Ekwueme, United Nations Convention on the Rights of a Child: Implementation of Legal
and Administrative Measures in Nigeria, [2015](6)(1), Nnamdi Azikiwe University Journal of International Law
and Jurisprudence, 122.

9
Umejiaku & Uzoka32 the study shows that customary and Sharia law do not safeguard, or better

put, do not allow for the ultimate participation of a child in matters directly affecting the child as

guaranteed by international, regional, as well as domestic legal frameworks. This is because most

practices as found within this belief or mode of life do not conform to the international practices

as should be seen in a 21st century community. The writers were not detailed on how to engage

these system of belief to yield a lasting result.

Umeobika & Obiorah33 it is their view that certain rights to participate could be in the negative,

example is hawking. International communities as well as regional authorities for this reason

and more, set out various Conventions Such as the Convention on the Rights of a Child, African

Charter on the Rights and Welfare of the Child, the 1999 constitution and the Child’s right act,

20003, providing a guide, which is, in all matters concerning the rights of participation, it must

be for the overall best interest of the child in question. The issue of child labour continues mostly

in developing countries such as Nigeria. This is as a result of the high level of poverty in general

amongst populace of these countries and disinterest of poor funded institution saddled with

implementation and monitoring of these rights. The work made a good number of

recommendation, but failed to show a workable structure on which this recommendations would

ride on.

2.4 Historical Background\Development of the Best Interest Principle and the Right of

Participation of a Nigerian child.

32
N O Umejiaku & C N Uzoka,, An appraisal of for the Rights of Child Offender under the customary and sharia
law in Nigeria, [2019](14) UNIZIK LAW JOURNAL.
33
C Q Umeobika & O Obiorah, WHERE ARE THE CHILDREN? AN APPROACH TO EXTERMINATING
CHILD-HAWKING IN NIGERIA’ AFJCLJ 5 (2020)

10
The doctrine of the best interest of the child is a widely recognized principle both under

international and municipal law in child right protection, which was mostly adopted in the areas

of family disputes and other issues34. Also, in the industrialized countries of the early twentieth

century, there were no standards of protection for children. It was common for them to work

alongside adults in unsanitary and unsafe conditions. Growing recognition of the injustices of

their situation, propelled by greater understanding of the developmental needs of children, led to

a movement to better protect them.

According to Degol & Dinku35, the adoption of the Geneva Declaration on the Rights of the

Child by the League of Nations in 1924 was the first coordinated effort in the process of

recognizing the rights of children. This Declaration represented the widespread concern about

the rights of children, which had been cruelly violated during World War I and its aftermath. The

proclamation addressed children's material needs and stated that they must have the necessary

resources for formal education. This included food for the hungry, medical care for the sick,

special attention for the handicapped, and shelter, emotional and physical aid for orphans.36 The

Geneva Declaration was founded on the idea that mankind owes the child the best it has to offer,

as is seen in the preamble to the convention.

Atrocities committed during World War II, as well as other circumstances, heightened concerns

about human rights and the desire to strengthen worldwide unity. In this light, efforts were made

to develop a system of international protection for children's rights.37 The United Nations Charter

34
S Parker, “The Best Interests of the Child: Principles and Problems; The Best Interest of the Child; Reconciling
Culture and Human Rights”,[1994](8)(1) International Journal of Law, Policy and the Family, 27.
35
A Degol & S Dinku NOTES ON THE PRINCIPLE “BEST INTEREST OF THE CHILD”: MEANING,
HISTORY AND ITS PLACE UNDER ETHIOPIAN LAW,[2011](5)(1), Mizan Law Review.
36
Ibid
37
J Rehman, International Human Rights Law (England: Pearson Education ltd, 2010) 555.

11
of 1945 and the Universal Declaration of Human Rights (UDHR) of 1948 followed, albeit

neither was expressly dedicated to the rights of children.

The United Nations' adoption of the Declaration on the Rights of the Child in 1959 provided the

actual push38. A treaty on child rights was drafted in 1979. It was passed in 1989 and took effect

in 1990. With the most ratifications, it became the most powerful document on child rights.39

Another convention that arose to promote the rights of a child is the African Charter on the

Rights and Welfare of a Child (ACRWC), The African Charter emerged from the belief that the

United Nations Convention on the Rights of the Child (UNCRC) overlooked crucial socio-

cultural and economic factors unique to Africa40. The ACRWC can be seen of as an African

version of the UNCRC. This is due to the fact that it mainly relies on the UNCRC. As a result,

the two instruments can be considered complimentary and essentially coterminous. And this was

implicitly reflected in the ACRWC's introduction language.

It was adopted by the Organization of African Unity (OAU) in 1990, began operation in 1999,

and was ratified by 47 of the African Union's 54 member nations. Unlike the UNCRC, the

ACRWC imposes a number of responsibilities on children which are in conformity with African

values. It guarantees the right to life, liberty, and development, as well as the right to

a named nationality, freedom of expression, thought, conscience, and religion, including the right

to education, leisure, recreation, and cultural activities. It also makes provision for protection

from abuse and torture, as well as child labor and other detrimental practices. It also protects

children in times of armed conflict, as well as the rights of refugee children and the

38
BN Okpalobi & CO Ekwueme, United Nations Convention on the Rights of a Child: Implementation of Legal and
Administrative Measures in Nigeria,[2015](1), Nnamdi Azikiwe University Journal of International Law and
Jurisprudence, 122.
39
Ibid
40
Ibid

12
handicapped.41 The UNCRC and the ACRWC both have been ratified in Nigeria. The

implication is that Nigeria adopts them as a state party and legally agrees to ensure the protection

outlined in them. The UNCRC urges nations to take appropriate legislative, administrative, and

other steps to ensure that the rights recognized in the convention are implemented. Similarly, the

ACRWC reinforced the same demand in their article to member countries.

The Child Rights Act (CRA) was enacted in 2003 in response to the statutory requirement that

states parties take legislative and administrative procedures to ensure the implementation of the

UNCRC and the ACRWC.   After passing through the constitutional criteria, the Child Rights

Act is the domestication and passage into law of the two International Treaties in Nigeria.

The law gives legal force to Nigeria's commitments under the United Nations Convention on the

Rights of the Child and the African Union Charter on the Rights and Welfare of Children.42

Prior to the Act's implementation, the Children and Young People's Act (CYPA) and the Labour

Act were the major laws in Nigeria that dealt with issues affecting children The CRA was

designed to combine all of a child's rights and responsibilities into one piece of legislation,

merging existing laws with international agreements while also defining the roles and

responsibilities of the government, parents, and other authorities, organizations, and bodies. As a

result, the CRA became Nigeria's highest law in areas relating to children.

However the CRA is not fully implemented in all parts the Nigerian state, this is because Nigeria

is a federation, and consequently a state must have to adopt the act before it becomes operative in

such state. Nwazuoke & Okpalaobi maintained, Nigeria is governed by a federal system in

which each of the country's thirty-six states is autonomous and equal to the others. According to

41
Ibid
42
E Egede, ‘Bringing Human Rights Home: An Examination of the Domestication of Human Treaties in Nigeria’,
[2018](54)(1), Journal of African Law, 268-269

13
the constitution, each state has its own legislative system. The states are not bound by the child's

right until it is enacted into law in each of these legislative systems. As a result, no court in a

state that has not implemented the Child Right Act can pursue a violation of it.43 Then again, the

CRA has shown great promise in providing adequate protection for a child and as well allowing

such a child to fully participate in all matters of primary concern.

43
N Nwazuoke, B.N Okpalaobi, ‘Comments on Child’s Rights Act 2003’, [2005](1)1(1) Journal of Ebonyi State
University, Faculty of Law, 159-169.

14