Child Justice Administration Law in Nigeria

The Child justice administration is critical in any legal system. This is due to a general recognition of the vulnerability of children. As such, they must be treated with much care and should be distinguished from adults in the handling of their legal matters.

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Thus, special legal regimes are put in place to protect the rights of this special class of persons. In Nigeria, the Children and Young Persons Act, together with other related criminal laws, used to be the main statute on child justice administration. However, their inadequacies, the fact that they were unco-ordinated and that large numbers of children technically fell outside their scope, in 2003 led to the enactment of the Nigerian Child Rights Act.

The goal of the Child Rights Act was to remedy some of the former injustices against children who are either in conflict with the law or in need of care and protection. The article argues that even this new law does not provide adequate protection for the rights of children as they are still being tried in conventional court environments by the same judges that handle adult criminal cases. The article, therefore, critically examines child justice administration under the regimes of the Child Rights Act, the Children and Young Persons Act and other relevant laws. It argues that, in spite of the lofty provisions of the Child Rights Act, more needs to be done for the protection of the rights of the child. As such, one can gain vital insights from the South African child justice administration regime which, for example, has separate civil and criminal jurisdictions for civil and criminal cases involving children.

In Nigeria and South Africa the concept of child justice administration is not clearly defined in provisions relating to children. According to provisions of the Nigerian Child Rights Act (CRA),1 the South African Children's Act2 and the South African Child Justice Act,3 child justice administration may be understood as the process of justice administration of children who are either in 'conflict with the law, beyond parental control or in need of care and protection'.4

Bamgbose, cited by Alemika and Chukwuma, holds that the child justice administration regime is based on the philosophy of reformation and rehabilitation of child offenders and children in need of care and protection as these children are immature and should not be treated as adult offenders.5 Thus, child offenders are considered to be in need of protection and proper guidance.6 The Children and Young Persons Act (CYPA)7 was the first and main legislation on the 'protection of children and young persons'8 in Nigeria. Apart from the CYPA, other complementary statutes applicable to child justice administration in Nigeria include the Criminal Procedure Act,9 the Criminal Procedure Code,10 the Penal Code,11 the Criminal Code12 and the SharT'a Penal Code.13

Despite the enactment of the CYPA and other associated laws that made provision for the welfare and treatment of children14 to become law-abiding citizens in Nigeria, there was still an upsurge in the number of children involved in crime and those beyond parental control or in need of care and protection. As of 2013, these children occupied more than half of the capacity of custodial institutions,15 for offences ranging from property offences at 30,72 per cent; offences against the person; offences against the state; moral offences; and victimless offences.16 Also, the system of child justice contends with challenges as child offenders or children in need of care and protection are remanded in 'squalid prisons and [being] deprived of salutary impact of reformative and rehabilitative custodial environment'.17 Furthermore, child offenders or children in need of care and protection are also being tried within the conventional court environment by the same magistrates that handle criminal cases involving adults.

The article argues that the above problems expose children to the potential danger of associating with hardened criminals. It further argues that these problems are against the spirit behind the administration of child justice which protects the rights of child offenders from mingling with adult offenders. Similarly, a recent study has shown18 that existing laws on the child justice system have not adequately protected children who have been adjudged to have committed minor offences, such as being beyond parental control, as they were committal to custodial institutions, contrary to the international standard which allows institutionalisation as a measure of last resort 19 and encourages the use of diversionary measures.20

Based on the foregoing, in 2003 the Nigerian National Assembly passed a new law, titled the Child Rights Act,21which is expected to replace existing legislation on the administration of child justice.22The objective of the CRA is to remedy the inadequacies in the CYPA and other associated laws.23 Thus, it has been argued that the CRA seems to harmonise several existing laws regulating child justice administration in Nigeria. The Act particularly seems to take cognisance of the welfare and treatment of young persons. Surprisingly, however, the enactment of the CRA does not seem to have solved the problems discussed above. Further, the CRA has not been seen to repeal other existing legislation on the administration of child justice in Nigeria, particularly the CYPA. Some states in the country are still making use of the CYPA, the Criminal Code and the Penal Code in dealing with issues of child justice administration.24

In light of the above, the article adopts a multi-disciplinary approach to examine the provisions of the CRA regarding matters of child justice. In doing so, the article examines how the administration of child justice has evolved 55 years after independence. It also analyses the challenges in the treatment of children after the enactment of the CRA in 2003, and draws some vital insights from the South African child justice administration regime for the purpose of enhancing the rights of child offenders and children that are beyond parental control or in need of care and protection in Nigeria.

2 Conceptualising a child under the Nigerian child justice administration laws and international instruments

From the outset, it is important to note that a child under international, regional and national laws is defined in terms of age.25However, the domestic laws of countries have laid down a different minimum age below which a person is exempt from prosecution and punishment.26 The definition of a child is, therefore, made 'dependent on each respective legal system in order to accommodate the different economic, social, political, cultural and legal systems of the respective state'.27

The term 'child' has also been defined in various international and regional instruments. The United Nations (UN) Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules),28 for example, define a 'juvenile' as 'a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult'.29 Similarly, article 1 of the United Nations Convention on the Rights of the Child (CRC)30 defines a child as 'any person under the age of 18 years unless, under the law applicable to the child, majority is attained earlier'. In Article 2 of the African Charter on the Rights and Welfare of the Child (African Children's Charter), a child is defined more concisely as 'every human being below the age of eighteen years'. 31

The Nigerian Constitution does not define a child, but in other legislation, individuals are classified into four categories: infants, children, young persons and adults.32 Similarly, Nigerian laws distinguish between adult offenders and children who are in conflict with the law or children who are in need of care and protection with respect to criminal responsibility.33 The difference in age of criminal liability can be distilled from Nigerian legislation. For instance, section 50 of the Penal Code34 and section 30 of the Criminal Code,35respectively, define a child on the basis of criminal responsibility, that a child younger than seven years is considered not to be criminally liable and presumed to be doli incapax (incapable of committing an offence).

Similarly, 'a male child under the age of twelve years is presumed to be incapable of having carnal knowledge', and36

a child between the age of seven to twelve years will not normally be held responsible for his/her actions unless it can be proved that at the time of committing the offence, he/she had the capacity to know that he/she ought not to do it.

However, under Shari'a (Islamic) law, the age of criminal responsibility is determined either by puberty or if the person has attained the age of 18 years, except in the case of Zina (fornication or adultery), where the age of criminal responsibility is 15 years.37 Instructively, the CYPA defines a juvenile as 'a young person who falls between 14 and 17 years of age'.38

It is, however, important to note that the issue of age in the determination of either his or her criminal responsibility, or whether he or she is in need of care and protection has been settled under the CRA.39 This is pursuant to section 277 of the CRA, which defines 'a child as a person under the age of eighteen years'.40 Thus, the discrepancies in 'age of criminal responsibility' under the Nigerian Criminal Code, Penal Code, Criminal Procedure Code, Criminal Procedure Act and the CYPA have been harmonised. Without a doubt, the CRA's regime introduced a uniform age so as to bring about consistency in the conceptualisation of a child and child justice administration in Nigeria, though without adopting a minimum age at which a child can be prosecuted for an offence as provided for under the South African child justice regime. For instance, according to section 7 of the South African Child Justice Act, a child below the age of 10 years is not criminally responsible and cannot be prosecuted,41 but must be dealt with in accordance with section 9 of the Act, while a child above 10 years but under 14 years of age can only be prosecuted for an offence if proved by the state and in accordance with section 11 of the Act.42

However, it is submitted that there is no basis for such delimitation as the Nigerian Constitution, being the primary law of the land, has not made any provision which limits or delimits the age of childhood. It may be argued that the approach of the CRA is derived from other legislative approaches and international conventions. As is the case with the Nigerian Marriage Act43 and the Nigerian Electoral Act,44 an adult is defined as 'a person above the age of 18 years'. Thus, it can be argued that any person below 18 years is a child in Nigeria. The CRA defines a child in the same way as the South African Constitution45 and the South African Children's Act.46 In addition, the applicability of the CRA depends on its domestication by states in Nigeria in order to bring uniformity to the age of a child, as the CRA is a federal Act on a subject which is not within the exclusive legislative competence of the federal government. The CRA (with the exception of the federal capital territory, Abuja, which has direct application) can only become binding on states in the federation if it is approved by a simple majority or if the interested state passes its own version without reference to the federal statute.47 This problem results from a lack of definition of a child in the 1999 Nigerian Constitution, which is the grundnorm of the country.

In spite of the innovations of the CRA in child justice administration, its delimitation of the age of childhood creates certain problems.48One such difficulty is seemingly placing culpability on a child below 10 years of age, as no minimum age is adopted under the CRA.

Footnotes:

1 The combined effects of secs 50 & 204 of the CRA, 2003. 2 Sec 42(8)(c) of the South African's Children's Act 38 of 2008 (as amended). 3 Long title to the South African's Child Justice Act 78 of 2005 (as amended). 4 It should be noted that children in conflict with the law are different from children in need of care and protection or children that are beyond parental control, as the former relates to children that are 'alleged to have committed an act which would constitute a criminal offence if they were adults'. In Nigeria, children in need of care and protection are interchangeable as children that are beyond parental control. These are children who are adjudged not to have commited any act which would constitute a criminal offence, but status/minor offences such as truancy, or 'street children or children that are exposed to danger'. 5 EEO Alemika & IC Chukwuma Juvenile justice administration in Nigeria: Philosophy and practice (2001) 10;         [ Links ] O Bamgbose 'An exposition of the laws of crime and health implications in cases of child abuse in Nigeria' (1998) 7 Nigerian Journal of Health Education 112.         [ Links ] 6 As above. 7 See the Children and Young Persons Act Cap 32, Laws of the Federation of Nigeria and Lagos, 1958 http://www.cleen.org/Juvenile%20Justice%20Repert (accessed 20 January 2010). 8 See the Nigerian Children and Young Persons Ordinance Cap 32 of 1958; as above. 9 See the Criminal Procedure Act Cap C41, Laws of the Federation of Nigeria, 2004. 10 See the Criminal Procedure Code Cap C46. 11 See the Penal Code Act, 1960. 12 See the Criminal Code Act, 1965. 13 Zamfara State Court Law, 1999 and 2000. Zamfara State Criminal Procedure Code Law 2000 No 1 vol 4, http://www.dare.ubvu.vu.nl (accessed 15 March 2012). 14 See the long title to the Children and Young Persons Act (n 7 above). 15 Custodial institutions referred to in this article are the Remand homes; the government approved schools; the rehabilitation/reformatory centres; and the Borstal institutions. 16 See Operational Research Report on Challenges of Borstal Institutions, Remand Homes, Reformatories and Approved Schools in Nigeria, submitted to the Federal Department of Social Welfare, Federal Ministry of Women Affairs and Social Development, Abuja, Nigeria, by Alamveabee E idyotough, June 2013. 17 Alemika & Chukwuma (n 5 above). 18 Study conducted by Y Akinseye-George 'Juvenile justice system in Nigeria', Centre for Socio-Legal Studies, Abuja, 2010. See also B Owasanoye & M Wernham Street children and juvenile justice system in Lagos State of Nigeria (2004).         [ Links ] 19 See Rules 13 and 19 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) GA Res 40/33, annex, 40 UN GAOR Supp (No 53) UN Doc A/40/53 (1985) http://www.iprt.ie(accessed 19 April 2012). 20 See Commentary to Rule 5 of the Beijing Rules. Proportionality of the reaction by law and from the society includes social status; the family situation; the gravity of the harm caused by the offence; and any other factors affecting personal circumstances. 21 Child Rights Act, 2003, Cap C50, Laws of the Federation of Nigeria, 2004. 22 Child Rights Act (n 21 above). 23 'In order to give effect to the country's obligations under many international laws governing the administration of juvenile justice, states parties are required to pass specific laws and regulations at the national level' and, in 1993, 'A draft Child Rights Bill aimed at principally enacting into law in Nigeria the principles enshrined in the Convention on the Rights of the Child was drafted.' 'It is only after about ten years of heated debates by the parliamentarians that the Bill was eventually passed into law by the Nigeria National Assembly in July 2003' as Child Rights Act, Cap C50, Laws of the Federal Republic of Nigeria, 2004, http://www.nigeriarights.gov.ng/files/download/40. (accessed 10 December 2010). 24 Sokoto, Zamfara, Kebbi, Katsina, Kano, Kaduna, Yobe, Borno, Bauchi, Gombe, Niger, Adamawa and Enugu are the states that are yet to domesticate the CRA, http://www.nou.edu.ng (accessed 18 November 2012). See also http:// www.unicef.org/wcaro/WCARONigeriaFactsheetsCRA.pdf (accessed 18 January 2013). 25 See the Consortium for Street Children, http://www.streetchildren.or.uk (accessed 5 March 2013). 26 Eg, the official minimum age of criminal responsibility in countries such as Australia, Bangladesh, Egypt, The Gambia, Ghana, India, Nigeria, Sudan, South Africa, Iraq, Kenya, the United Kingdom, Scotland, Turkey, Canada, Colombia, Sweden, Burundi, Gabon, Netherland, Saudi Arabia, New Zealand and a host of others ranges from eight years to 18 years. See UNICEF and Melchiorre 2002 in 'Juvenile justice: Modern concepts of working with children in conflict with the law' Save the Children UK, http://www.crin.org/docs/savejjmodern_concepts.pdf-similar(accessed 20 December 2013). 27 See Rule 2.2(a) Beijing Rules (n 19 above) http://www.un.org/documents/ga/res/40/a/40r033.htm (accessed 20 June 2012.) 28 As above. 29 Under the standard of the UN, the age limit will depend on the particularities of the different legal systems. There is, therefore, provision for a wide range of minimum ages under this definition, ranging from seven to 18 years. See Beijing Rules (n 19 above) 207. However, the CRC Committee has approved 12 years as the minimum age for criminal responsibility. See South African Press Report dated 22 February 2016. 30 Art 1 CRC, http://www.nwu.ac.za (accessed 20 August 2013). 31 African Charter on the Rights and Welfare of the Child, 1990. 32 See sec 2 of the Children and Young Persons Act, 1958. 33 This distinction is made in order to determine the age when a person can be held liable for crimes committed. 34 Nigeria operated a dual penal legal system in which the Penal Code is applicable to the northern part of Nigeria. 35 The Criminal Code is applicable in the southern part of Nigeria. 36 See sec 2 of the Criminal Procedure Act. See also TA Aguda & I Okagbue Principles of criminal liability in Nigerian law (1990) 323-329;         [ Links ] Y Osinbajo & AU Kalu Law development and administration in Nigeria (1990) 168-169.         [ Links ] 37 See Shari'a Penal Code Law of Zamfara State 2000 and Shari'a Courts Law of 1999 (Zamfara 1-1999). See also IA Nyazee Islamic jurisprudence (2000) 111. 38 See sec 2 of the Children and Young Persons Law Cap C 10 Laws of Federation and Lagos State, 1958. It was initially Ordinances 44 of 1945; 27 of 1947; 16 of 1950 as well as the Laws of Nigeria 131 of 1954; 47 of 1955 and Order in Council 22 of 1946. The law was extended to the 'eastern and western regions of Nigeria in 1946 by Order-in-Council 22 of 1946. The law was enacted for the northern region in 1958 and constituted the Children and Young Persons Law, Cap 21 of the Laws of Northern Nigeria 1963, http://www.afrimap.org (accessed 14 June 2013). 39 Interestingly, the Child Rights Act, 2003 draws its basis from the Constitution of the Federal Republic of Nigeria (as prescribed in ch four); the UN Convention on the Rights of the Child, 1989 (ratification by the government of Nigeria on 16 April 1991); the Beijing Rules (n 19 above); the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990; and the UN Guidelines for the Prevention of Juvenile Delinquency, 1990 (Riyadh Guidelines) http://www.ncpcr.gov.in (accessed 20 April 2013). 40 B Owasanoye & M Wernham 'Membership in Lagos, Nigeria: Challenge and resilience' (2011) Journal of Adolescent Research 210.         [ Links ] 41 The South African cabinet met on 17 February 2016 and approved the report on upward review of the minimum age for criminal responsibility to 12 years with some special protection measures in place for 13 and 14 year-old children. See South African Press Report dated 22 February 2016. 42 See generally part 2 of the South African Child Justice Act 78 of 2008. See also S v GK 2013 (2) SACR 505 (WCC) 58-59. 43 See sec 18 of the Nigerian Marriage Act Cap M6, Laws of the Federation of Nigeria, 2004. 44 See sec 2(1) of the Nigerian Electoral Act, 2010. 45 Sec 28(3) of the Constitution of the Republic of South Africa, 1996. 46 See secs 1 and 17 of the South African Children's Act (as amended by sec 3(c) of the Children's Act 41 of 2007) volume 7, JUTA's Statutes of South Africa 2013/2014, which define a child as 'a person under the age of 18 years' and state that 'a child whether male or female becomes a major upon reaching the age of 18 years'. 47 See also B Owosanoye & M Wernham, M Street children and juvenile justice system in Lagos State of Nigeria (2004) 11, http://www.gvnet.com (accessed 12 May 2013). 48 This warranted each state in the Federation of Nigeria to adopt their respective age of 'criminal responsibility'. It is evident from sec 274 of the Kwara State Child Rights Law, 2007 where 'a child is defined as any person under the age of 16'.