INTRODUCTION
Children because of their age and dependence are the most vulnerable and weak members of society. This has resulted in their rights being trampled upon by adult members of society. Yet the future of such society depends on the upbringing and kind of treatment meted out to the children. A society that denies children education and subjects them to abuse slavery and deprivation is simply preparing them for a future of gangsterism, terrorism, and hooliganism.
Therefore, the protection of such rights has become the business, concern, and responsibility of the international community. The Bible, the holy book of God says that a child should be trained in the way he should go and when he is old, he will not depart from it.1 This paper will examine various aspects of the rights of the child, the abuses committed against them, the Legal instruments of protection as well as preferred suggestions on the way forward.
Who is a Child?
The definition of a child is normally done by law. It depends, on the age of the child and may vary according to national law. The Convention on the Rights of the Child 1989 defines a child as “every human being below the age of eighteen years unless, under the law applicable to the child, the majority is attained earlier (Article I of the Convention).” This means the national law may prescribe something less. Under the employment law in Nigeria an infant or young person is a person under the age of 18 years (Section 91(f of the Labour Act 1990). The Children and Young Persons Law distinguishes between an infant and a young person. An infant is a person under 14 years of age while a young person is between 14 and 17 (Section 2 Children and Young Persons Law). The common Law age of majority for the formation of a contract is 21 and this still applies in Nigeria (Sagay, 1993:399). The 1999 constitution prescribes 18 years of age for registration as a voter (Sections 77(2) and 117(2)). The customary law definition varies from ethnic group to ethnic (Nwogugu, 1974:41-43).
Child Abuse
This is a violation of the rights of children and a hindrance to their welfare (Ayua & Okagbue, 1996:197). The abuse is influenced by social, cultural, and legal factors. The following have been identified as the causes of child abuse (Ayua & Okagbue, 1996:203-204).
- Lack or failure of mother-child bonding
- Low self-esteem
- Depression, aggression, emotional arousal and distress, and withdrawal
- Inter-generational transmission of child abuse/violence: people who were abused as children grow up to become abusive parents.
- Stress – parents become more abusive when they are stressed.
- Low socio-economic status
- Unemployment and low education
- Social isolation-a sparse network of social support from relatives, friends, etc.
- Cultural legitimation/accommodation of injurious violence against the child.
- Psychopathy, sociopathy, immaturity, self-centeredness, defective character structure.
In addition, children who are disabled or have behavioural problems may be prone to abuse. Also, parents who experience emotional, cultural, family, social, and economic deprivation are likely to abuse their children (Ayua & Okagbue, 1996:204).
Dimensions of Child Abuse
There are different dimensions of child abuse which include the following (Ayua & Okagbue, 1996:204):
- Physical abuse
- Verbal and emotional abuse
- Child labour
- Sexual abuse
- Child neglect – economic, health, educational, and emotional affection.
Slavery-like Practices
The modern use of the word “slavery” covers a wide range of human rights violations and abuses (The United Nations, Contemporary Forms of Slavery-Fact Sheet No. 14:2). In addition to traditional slavery and the slave trade, these abuses include the sale of children, child prostitution, child pornography, the exploitation of child labour, the sexual mutilation of female children, and the use of children in armed conflicts (The United Nations, Contemporary Forms of Slavery-Fact Sheet No. 14:2). According to the United Nations, “the victims of slavery-like abuses are generally from the poorest and most vulnerable social groups. Fear and the need to survive do not encourage them to speak The United Nations, Contemporary Forms of Slavery-Fact Sheet No. 14).”
The Need for the Protection of the Child’s Rights
In the preamble to the Convention on the Rights of the Child, the UN proclaims “that childhood is entitled to special care and assistance” and “children should be afforded the necessary protection and assistance.” The preamble further states that for the full and harmonious development of his or her personality, the child “should grow up in a family environment, in an atmosphere of happiness, love, and understanding.” Furthermore, “the child, because of his physical and mental immaturity, needs special safeguards and care including appropriate legal protection, before as well as after birth.”
LEGAL PROTECTION OF THE RIGHTS
There are several international, regional, and national legal instruments for the protection of the rights of the child. The international instrument dates back to 1924 when the Geneva Declaration of the Rights of the Child was adopted by the League of Nations. The Declaration in its preamble stated that “mankind owes to the child the best that it has to give” and also defined the duties of adults towards children.
The United Nations which succeeded the League took up the challenge of providing protection and assistance to children. In 1946 the UN International Children’s Emergency Fund (UNICEF) was created with an initial mandate to provide relief assistance to children affected by the Second World War.
The Supplementary Slavery Convention 1956 provides that states parties shall take all practicable measures to bring about progressively and as soon as possible the complete abolition or abandonment of:
Any institution or practice whereby a child or young person under the age of eighteen years, is delivered
by either or both of his natural parents or by his guardian to another person, whether for reward or not,
with a view to the exploitation of the child or young person or of his labour (Article 1).
GA Declaration, 1959
The General Assembly Declaration of the Rights of the Child 1959 (Res. 1386[xiv]) provides that the child shall enjoy special protection to enable him to develop in a healthy environment and normal manner (principle 2). The child shall in all circumstances be among the first to receive protection and relief (principle 8). The child shall be protected against all forms of cruelty and exploitation and shall not be subject to traffic in any form (principle 9). The child shall not be admitted to employment before an appropriate minimum age and shall in no case be caused to engage in any work which will prejudice his health or education, or interfere with his physical, mental, or moral development.
The Child Rights Convention 1989
Many of the rights in this Convention are already set out in one form or another in other international human rights instruments. According to Thomas Buergenthal (1995:77):
This is the first time that children have been singled out as exclusive subjects of international rights and protection. This convention seeks to protect children against a large number of practices of special danger to their welfare.
For these reasons, the provisions of this Convention will be examined in greater detail than other instruments.
Article 1 puts the age of the child at below 18 years unless the law provides otherwise. States parties shall respect and ensure the rights to each child without any form of distinction (art. 2). In all actions concerning children, “the best interests of the child shall be a primary consideration” (art. 3) States Parties are to undertake measures for the implementation of the rights of the child (art. 4).
The convention spells out some of the rights of the child namely:
- Inherent right to life (art. 6).
- Right to registration immediately after birth, right to a name, nationality, and as far as possible to know and be cared for by his parents (art. 7).
- Right to preserve his or her identity, nationality, name, and family relations (art. 8).
- Right not to be separated from his or her parents against their will or if separated shall maintain personal relations and direct contact with both parents regularly (art. 9).
- Right by the child or his parents to enter or leave a state party for family reunification (art. 10).
- Prohibition of illicit transfer and non-return of children abroad (art. 11)
- The right to express his or her views freely and an opportunity to be heard (art. 12)
- Right to freedom of expression subject only to restrictions provided by law (art. 13)
- The right to freedom of thought, conscience, and religion (art.14).
- The right to freedom of association and peaceful assembly (art. 15).
- Right to privacy, family, home or correspondence, honour, and reputation (art. 16);
- Right to access information (art. 17).
- Parental responsibilities for the upbringing and development of the child (art. 18)
- Measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, and sexual abuse.
- Right to state protection and assistance for a child separated from his or her family (art. 20)
- Adoption based on the best interest of the child (art. 21)
- Appropriate protection and humanitarian assistance as a refugee or when seeking refugee status (art. 22);
- Right to care for disabled children (art. 23)
- Shall enjoy highest attainable standard of health (art. 24)
- Benefit from social security, including social insurance by national law (art. 26);
- Right to education (arts. 28-29).
- Right to enjoy own culture, profess or practice own religion or use his or her language (art.30)
- Right to rest and leisure, to engage in play and recreation (art. 31) and
- Protection from economic exploitation and hazardous work (Art 32). Also, conditions of employment including hours of work and minimum age for admission to employment should be provided for (art. 32(2)).
Among other rights, children should be protected from the illicit use of narcotic drugs and psychotropic substances and the illicit production and trafficking of such substances (art. 33). The Convention protects children from all forms of sexual exploitation and abuse and exploitative use of children in prostitution, pornographic performances, and materials or other unlawful sexual practices (art. 34).
The abduction, sale, or traffic of children is prohibited (art. 35). The prohibition also extends to torture or other cruel, inhuman, or degrading treatment or punishment of the child as well as capital punishment or imprisonment without possibility of release (art. 37(a)). The arrest, detention, or imprisonment of a child shall only be as the last resort and for the shortest possible time, (art. 37(b)).
The Convention provides for the protection of children in times of armed conflict. Rules of international humanitarian law as applicable to children shall be respected by state parties. Recruitment and direct participation in hostilities of Persons who have not attained the age of 15 years is prohibited (art. 38).
The child who is alleged to have infringed the penal law shall be accorded a fair hearing and in this regard the convention:
- Abolishes penal law having a retroactive effect;
- Guarantees presumption of innocence:. Requires the child to be informed promptly of the charge against him
- or her. Requires the determination of the matter without delay by a
- competent, independent, and impartial authority;
- Guarantees the right of appeal;
- Guarantees the right to remain silent;
- Guarantees the free assistance of an interpreter
- Guarantees respect for privacy during proceedings (art. 40(1) and (2)).
Article 40(3) prescribes the establishment of laws, procedures, and institutions specifically applicable to children.
The Convention also has an implementation system. It provides for the dissemination of information on the principles and provisions of the Convention (art. 42). The Convention establishes a Committee on the Rights of the Child consisting of ten experts of high moral standing and competence. The committee members shall be elected by state parties for a term of four years but shall serve in their capacity (art. 43).
Article 44 provides for an undertaking by state parties to submit periodic reports on the measures taken to give effect to the rights in the Convention to the committee through the Secretary General of the UN. The committee may request from state parties further information relevant to the implementation of the Convention. The committee shall submit reports on its activities to the General Assembly through the Economic and Social Council every two years.
To strengthen its implementation, article 45 provides that the specialized agencies, the United Nations Children’s Fund, and Other UN organs shall be entitled to be represented at the consideration of the implementation of such provisions of the Convention as fall within the scope of their mandate.
The International Covenants
The International Covenant on Economic, Social and Cultural Rights 1966 provides in article 10(3) that “special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions.”
It provides further that:
Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law.
On the other hand, article 23 of the International Covenant on Civil and Political Rights speaks of “the necessary protection of children” in the case of the dissolution of marriage. Article 24 provides for the protection of every child without discrimination as to race, colour, sex, language, religion, national or social origin, property, or birth. Also, every child has a right to name, nationality, and registration after birth.
Article 25(2) of the Universal Declaration of Human Rights provides that “all children, whether born in or out of wedlock, shall enjoy the same social protection.
Law of Armed Conflicts
Protocol 1 provides that children under the age of 15 years shall not be recruited into the armed forces (Art. 77). The protocol provides, among others, that children under the age of 15 becoming prisoners of war must be treated with special respect and protected against any form of indecent assault (Article 76). As far as possible, the death penalty shall not be pronounced on prisoners under the age of 18 at the time the offence was committed (Article 76).
Convention iv provides for local agreements for the evacuation from besieged or encircled areas of children and other protected persons (Article 17). Article 14 of the Convention provides for the establishment of hospitals, safety zones, and localities to protect, among others, children under the age of seven. Article 24 of the Fourth Convention provides that children must receive the care and aid they receive, whether because of their age or for any other reason. All practicable measures must be taken to prevent children under the age of 15 from taking a direct part in the hostilities and, if they have become orphaned or separated from their families as a result of the war, to ensure that they are not left to their resources and that their maintenance, the exercise of their religion, and their education are facilitated in all circumstances.
Also, in the case of arrest, children shall not be kept in the same quarters as adults, except where families are accommodated as family units. As stated in Protocol 1, a party to a conflict shall not evacuate children other than its nationals, to a foreign country and where evacuation has taken place, necessary steps must be taken to return them to their families and their country (Article 78), protocol 11 provides for the protection of children in non – international armed conflict (Article 4).
Regional Instruments
At the regional level, the Assembly of Heads of State and Government adopted a Declaration on the Rights and Welfare of the African Child at its sixteenth ordinary session in 1979. This was subsequently followed by the Charter on the Rights and Welfare of the African Child which the Summit of the Heads of State of the OAU (now AU) adopted in 1990.
The OAU (as it then was) also convened an International Conference on Assistance to African Children in Dakar, Senegal in 1992 as a follow-up to the World Summit on Children. At the conference, African countries presented their National Programmes of Action for discussion.
National Instruments
Efforts have also been made at the national level to protect the rights of the child. In Nigeria, for example, the welfare of the child has been recognized by law as far back as 1943 (Children and Young Persons Ordinance 1943). Also, the Infant Relief Act 1874, a Statute of General Application in Nigeria (Infant Relief Law 1959 of the Western States) protects infants and young persons who enter into contracts with adults. Nigeria also signed the Convention on the Rights of the Child on March 21, 1991. It has however not enacted the treaty into Law as required by section 12 of the 1999 constitution.
Nigeria has legislation in the statute books that deal with child abuse such as sexual abuse and child labour. Under sections 221 and 222 of the criminal code, it is an offence of defilement to engage in sexual intercourse with or indecently deal with girl children below the age of 13 years or to subject boys below the age of 14 years to indecent treatment (Section 218). The punishment varies according to the age of the child. Under the penal code, sexual intercourse with a girl below the age of 14 years, even with her consent amounts to rape and attracts life imprisonment (Section 39 and 282(1)(e)).
The Nigerian Labour Act (Cap 198 Laws of the Federation 1990) restricts the capacity of an infant to enter into a contract of employment. The Act provides in section 9(3) that “Except in the case of a contract of apprenticeship, no person under the age of sixteen years shall be capable of entering into a contract of employment.”
THE RIGHTS OF THE CHILD TODAY:
AN APPRAISAL
In most countries of the world, children still suffer abuses, despite various international, regional, and national instruments aimed at protecting and promoting their rights. Child labour, prostitution, trafficking, and soldiering are still prevalent around the world, the degree varying from country to country.
In Africa, the child continues to face abysmal conditions. They are worst hit during natural and man-made disasters, armed conflicts, and famine. They have suffered great denials while “a great number of children are born grown, made to work and even die in poverty (Cross River Broadcasting Corporation, 1998).” Daily most children are exposed to different forms of abuse, violence, diseases, illiteracy, infantile sex, and death (Cross River Broadcasting Corporation, 1998).
Child Labour
Child labour is abusive if it is intensive, energy-sapping, exploitative, oppressive, and injurious to the development and welfare of the child. The demand for child labour continues to rise “because it is cheap, and because children are naturally more docile, easier to discipline than adults, and too frightened to complain.” According to the International Labour Organization’s recent estimate, 100 million children are exploited for their labour. The children are between seven and ten years of age. They are made to work for 12 to 14 hours a day and their wages are less than one-third of that of an adult.
Children who serve as domestic servants are usually the most vulnerable. They work long hours for a pittance and are often subjected to sexual abuse and other forms of abuse.
Children have been kidnapped and held in isolated places and remote camps. At night they are chained by their captors to prevent escape. They are engaged in road-building and stone quarrying.
Child labourers, for example, hawkers in Nigeria, are usually victims of sexual molestation, vehicular accidents, and enlistment into bad values, careers, and gangs.
Sale of Children
Some go-betweens have made large profits from transferring people from poverty-stricken homes to those with the wherewithal without guarantees and supervision to ensure that the child’s interests will be protected. According to the UN, “In such cases, financial gain for the parents, as well as the intermediaries, takes on the character of trading. in children.”
Closely associated with sales is trafficking in children. They are recruited and clandestinely transported to where their services are needed. Sometime in 2004, 160 trafficked children, brought into Nigeria from Benin Republic, were found and returned to their country (Nigerian Television Authority News at 9.00 of January 3, 2005).
Organized prostitution of children of both sexes is also associated with the sale and trafficking of children. According to the UN, “A link has been established in some places between prostitution and pornography particularly involving children.”
Children in Armed Conflict
The United Nations maintains that children have been forcibly recruited into military service in many parts of the world. The consequences are tragic. Many have died and others disabled in armed operations.
Children, some as young as nine, have been given hard drugs and used as soldiers in the brutal wars in Liberia, Sierra Leone, DR Congo, and Sri Lanka among others. A child rebel soldier told the International Criminal Tribunal for Sierra Leone how he was abducted by the rebels at the age of 12 as he was fetching water (Roy-Macaulay, 2004). He said the “Rebels trained him how to fire AK-47, how to smoke marijuana, and how to rape (Roy-Macaulay, 2004).” As part of his practical, his commander gave him a terrified 15-year-old village girl and threatened him and the girl with death if he did not rape her. He complied and raped her (Roy-Macaulay, 2004).
Another witness told the Tribunal how “a rebel young enough to be her child raped her. (Roy-Macaulay, 2004)” Other survivors recounted how “Rebels, many of them children as young as 5, followed Foday Sankoh, whom they called pappy (Roy-Macaulay, 2004).” Indeed, Sierra Leonean children were used to do a lot of terrible things.
In Northern Uganda, the rebel Lords Resistance Army abducts children for use as soldiers and sex slaves. In the Israeli-occupied West Bank and Gaza, children have been used as suicide bombers by militants fighting against the occupation.
In various armed conflicts, children have been interrogated, tortured, beaten, or kept as prisoners of war. 47 In Aydin v. Turkey, (Eur. Court HR, Judgment (Grand Chamber) of 25 September 1997, Reports 1997-vi, p. 1891) a 17-year-old Kurdish girl detainee was raped and stripped naked by members of the Turkish security forces. This amounted to torture said the European Court of Human Rights.
The Way Forward
Neglects by parents, guardians, the government, and society have led children into juvenile delinquency, street crime, stealing, wandering, and gangsterism. 50 in Brazil Street children are routinely killed by policemen in their sleep at night. They are purportedly paid to do so. It is everybody’s responsibility, especially that of parents and government to ensure that the rights of the child are respected. According to Lauri Hannikainen (1988:454):
In several under-developed states, it is the practice of parents to give, hire or sell children to other
persons for work and other services… the practice of prostitution.
The learned author further maintains that “a limited number of governments of underdeveloped countries have shown indifference towards, or even acceptance of, the transfer be parents of their children to other persons for forced work.”
The way forward for the protection of the rights of children, therefore, lies essentially in the hands of parents, the government, and society. In this regard, “Non-governmental organizations have proposed an international time – table for the wiping out of the worst forms of child exploitation as follows.”
- Elimination of all forced labour camps within 12 months
- Exclusion of children from the most hazardous forms of work as defined by the WHO and ILO.
- Elimination of all forms of labour for children under 10 outlawed by ILO Convention No. 138.
In respect of sexual offences and trafficking the provisions of the criminal law should be enforced by the government without exception.
International humanitarian law should be strictly observed. Already in Sierra Leone, those who recruited children as soldiers have been indicted or are standing trial for war crimes. This should be extended to Liberia, Uganda, and other countries where the rights of children have been abused in armed conflicts.
A campaign for public awareness of the rights of the child and the need to protect them should be invigorated. The Declaration of the 1990s by the OAU (now Au) as a decade of the African child did not achieve much. Neither has it set aside June 16, every year as the Day of the African Child. More needs to be done by the continental body. In Nigeria, May 27 every year is celebrated as Children’s Day with march-past and fanfare. Thereafter, they are forgotten and continue in neglect, repression, and abuse.
Conclusion
There is no doubt that the future of any nation rests on the quality of its children. Those that invest in education, health care, discipline, and eradication of poverty, hunger, and malnutrition certainly will have a great future. It is high time everybody sat up and stopped paying lip service to matters concerning children. UN institutions like UNICEF and non-governmental organizations should be well funded to make them more responsive to the needs and aspirations of children.
References
Ayua, I. A. and Okagbue, I. E. (eds.) The Rights of the Child in Nigeria Lagos: Nigerian Institute of Advanced Legal Studies, 1996
Buergenthal, T. International Human Rights in Nutshell St. Pual, Minn: West Publishing Co., 1995
Cross River Broadcasting Corporation “The Rights of the Nigerian Child” News Commentary, May 15, 2003
Cross River Broadcasting Corporation “The Rights and Welfare of the African Child” News Commentary, June 16, 1998
Hannikainen, L. Peremptory Norms (Jus Cogens) in International Law Helsinki: Finish Lawyers’ Publishing Co., 1988
Nwogugu, E. I. Family Law in Nigeria Ibadan: Heinemann Educational Book, 1974
Roy-Macaulay, C. “Sierra Leoneans Testify on Rebel Abuse” Associated Press July 21, 2004
Sagay, I. E. Nigerian Law of Contract Ibadan: Spectrum Law Publishing, 1993
The United Nations, Contemporary Forms of Slavery Fact Sheet No. 14 Geneva: Centre for Human Rights
Footnotes:
- Proverbs 22 v. 6 New King James Version ↩︎
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