‘Domestication’ Rhetorics and the Child Rights Act 2003 – Coxon G. Dappa

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The Child Rights Act (CRA) 2003, Cap. C…, Laws of the Federation of Nigeria (LFN) 2004 was enacted by the Nigerian National Assembly and became effective in July 2003. The Act was novel in Nigeria’s legal corpus welcomed by majority of Nigerians especially Civil Society Organizations (CSOs), Capacity Building Organizations (CBOs) and Human Rights activists. It bore the imprimatur of the African Charter on the Rights and Welfare of the Child (ACRWC) in its sections. Expectations of its implementation were high as Nigerians eagerly anticipated its implementation. Sadly, the reverse is the case.

Many writers and speakers have discussed ad infinitum, factors impeding its implementation. The chief of these factors is the refusal of most of the component States of the federation to domesticate the CRA. That is, enact it as part of the laws of those States. In other words, the effective implementation of the provisions of the CRA is sacrificed on the alter (politics) of domestication by the States.

Now, what caught my attention is the misconception and use of the word ‘domestication’ with respect to the implementation of the CRA and we are readily keying into this legal misnomer. This article will deconstruct the wrong usage of the word by looking at it from two angles in terms of its definition.

The term ‘domestication’ carries the idea of:

  1. Making a legal instrument recognized and enforceable in a jurisdiction foreign to the one in which the instrument was originally issued or created;
  2. The act of accustoming to home or taming of wild animals.

Making a Legal Instrument Applicable In a Jurisdiction Foreign To It

When international legal agreements such as treaties, charters or protocols are signed and or ratified by State parties (countries), such agreements becomes binding when they are incorporated (by monist or dualist approach) into the municipal law of the sovereign states. The process of making these international legal instruments part of the municipal law is referred to as domestication. The term domestication ordinarily lies in the realm of international law. It is used frequently by State parties (countries) with respect to an international instrument to bring its provisions to apply in a country by municipal law. The municipal law of State parties to an international instrument usually makes provisions to be followed in incorporating such instrument into its municipal laws.

In Nigeria, reference is made to Section 12 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999. This is the enabling incorporation section. A good example of an international instrument which was domesticated in Nigeria is the African Charter on Humans and Peoples Rights (ACHPR), 1979. It was domesticated by the African Charter on Humans and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9 Laws of the Federation of Nigeria (LFN), 2004. This Act upon domestication becomes an Act of the National Assembly applicable in all States of the Federation.

Can we conclude that the “making of a legal instrument” – ACHPR – recognized and enforceable in a jurisdiction (Nigeria) foreign to the one in which the instrument was originally issued or created (African Union) presupposes a “domestication” akin to the inevitable stamping of the federating units of State parties? Can the States (federating units) neglect, fail or refuse to implement the provisions of the ACHPR because it has not been ‘domesticated’ by them even though the National Assembly has incorporated it into our legal corpus? This is certainly not the case! For if it were so, the provisions of Section 12 and Items 30, 67 and 68 respectively of the CFRN 199 will amount to futility. Then can we say the ACHPR is now “accustomed home” as it were? The answer is in the affirmative. Nigeria as a State party (including her federating States) is here seen as “home” and the other State Parties (in the African Union) are seen as “foreign”. Thus, incorporating the ACHPR from the African Union by an enactment of the National Assembly into Nigeria amounts to “domestication” and need no further “domestication” by the federating units.

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To further buttress this point, it would be apposite to take another example from the opposite side of the divide. The African Charter on the Rights and Welfare of the Child (ACRWC) is an international instrument ratified by Nigeria but has not been incorporated into the corpus of Nigeria by an Act of the National Assembly as enshrined in Section 12 the CFRN 1999. Can the States (federating units) even where they are willing, “accustom to home” or “domesticate” the ACRWC? The answer is in the non-affirmative. But, assuming that the ACRWC has been incorporated into the Nigerian legal corpus by an Act of the National Assembly, can the States fail, neglect or refuse to implement its provisions because their Houses of Assembly have not domesticated or passed into law the ACRWC? Certainly not. This will lead us into an in-depth exposition of our second point in terms of the definition of domestication.

The Act of Accustoming To Home Or Taming Of Wild Animals

The meaning of “domestication” under this heading is denotative. It figuratively refers to something that is “wild” and later “tamed” or “accustomed to home”. As such, the question that comes to mind is whether the States must “tame”, “domesticate” or “accustom to home” the provision of the CRA before they can be implemented? The answer is simply in the non-affirmative especially when analyzed in the light of the received English law, constitutional provisions and some provisions in the CRA.

The Received English Law (Historical Link)

The foundation of Nigeria’s legal corpus is rooted in English law. It would not be uncommon to make reference to the statutes of general application received into Nigeria by various local legislations. For instance the Infants Relief Act, 1847 as a statute of general application was in force in the defunct Eastern Region of Nigeria even after Nigeria’s independence on October 1, 1960 having being received (enacted as it were) by the Nigerian parliament vide reception legislations. In 1967 the newly created East Central, South East and Rivers States respectively from the defunct Eastern Region continued to apply the provisions of the Infant Relief Act, 1847 until their various Houses of Assembly enacted their Infant Relief Laws. The Infant Relief Act 1847 was in force in Rivers State until 1988 when it was repealed by the new Infants Law even though the new law was substantially the same with the old law with such modifications as to bring it in conformity with local circumstances.

Domestication even in its very loose narrow sense was never applied to abstain from giving effect to the provisions of the Infants Relief Act, 1847. A fortiori, it doesn’t hold water for some states (Rivers not included) to continue to harp on the self-imposed singsong of domestication as a tenable reason for not enforcing the provisions of the Child Rights Act, 2003 in their jurisdictions.

Provisions of the CFRN

The legislative powers of the Federal Republic of Nigeria is vested in the National Assembly by virtue of Section 4 of the CFRN 1999. The legislative power by virtue of Section 4 (4) (b) extends to “any other matter with respect to which” the National Assembly is empowered to make laws in accordance with the provisions of the Constitution.  Accordingly, the National Assembly enacted for the entire federation, the Child Rights Act, 2003. There is no provision (express or implied) in the CFRN or in any other law precluding the National Assembly from enacting this law neither is there any law to the effect that domestication (howsoever loosely defined) is a condition precedent to the implementation of the Child Rights Act, 2003 in the States. It is simple, the States must implement the CRA as it presently is, or they must enact one, and must not run afoul of the doctrine of covering the field in constitutional law. The provisions of Section 4(5) of the CFRN 1999 is to the effect that “if any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void”. In essence, the States need not enact or “domesticate” or “accustom to home” the provisions of the CRA in their States before implementation.

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Provisions in the CRA

The Long Title

The legislative intent of the National Assembly is very clear. The Long Title to the CRA states that it is “an Act to provide and protect the rights of a Nigerian child; and other related matters”. The Long Title is to highlight the object and intendment of the Act. See the case of Bello & 13 Ors. v. Attorney-General of Oyo State (1986) 5 NWLR (Pt. 45) 828In Vacher & Sons Ltd v. London Society of Compositors & Ors (1913) A.C. 107, Lord Moulton held that “the title of an Act is undoubtedly part of the Act itself, and it is legitimate to use it for the purpose of interpreting the Act as a whole, and ascertain its scope”.

Section 277 of the CRA defines a child to mean “a person under the age of eighteen years”. A Nigerian child could then mean a Nigerian person under the age of eighteen years.  It would be rightly construed that the phrase “Nigerian child” in the intendment of the National Assembly carries the idea of Nigerian children within the federation – even though they are resident in the States and Federal Capital Territory – as against Nigerian children in the sense of federal character principles. It would be preposterous to impute a different intention otherwise than this in the National Assembly. In effect, there is no federal child or state child. There is only the “Nigerian child” and the states must enforce the provisions of the CRA in their jurisdictions “to provide and protect” his rights until they enact a Child Rights Law which provisions must not conflict with the CRA 2003.

Implementation Partners

The extant provisions of the CRA presupposes State governments as major implementation partners to directly implement the provisions of the CRA. If the National Assembly had intended otherwise, the CRA would have been an enabling statute only giving powers to the States to enact a Child Rights Law which will contain elaborate technical provisions for implementation. How can the States play the implementation role from the CRA until they enact their own Child Rights Law? The States will accomplish these inter alia:

i.)        Investigation and Emergency Protection

By the provisions of Section 45(1)(b) of the CRA, where a State Government has reasonable cause to suspect that a child in the State is suffering or likely to suffer significant harm, the State Government shall make such enquiries as it considers necessary to enable it decide whether to take necessary action to safeguard or promote the welfare of the child. This may include obtaining an emergency protection order from the court or exercising any other of its powers under the Act.

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ii.)       Care and Supervision

The court under Section 53(1) of the CRA may on the application of a State Government make a care or supervision order placing a child under the care or supervision of the State Government. And by Section 53 (6) where an authorized person proposes to make a care and supervision application to the court, he shall if practicable before making the application, consult the State Government. Section 55 shows the role of the State Government in effecting a care order whilst Section 56 empowers a State Government to allow a child under its care reasonable contact with parents or guardian.

iii.)      Welfare of a Privately Fostered Child

This is provided for by Section 121. Every State Government shall satisfy itself that the welfare and best interest of a child who is fostered privately within the state are satisfactorily safeguarded and promoted. Section 124 empowers the State Government to if necessary prohibit private fostering. By Section 121 (5) the Minister charged with matters relating to children may make regulations requiring every child who is fostered privately within a State to be visited by an officer of the State Government in prescribed circumstances and on specific occasions or periods. Can you see how extensive the powers of the Minister is, to the extent of making regulations to bind an officer of the State Government? Section 275 further makes this clearer. It provides that the Minister may by an order published in the Gazette, delegate any of his powers under the Act, other than the power to make regulations to the appropriate Commissioners in the States.

iv.)      Implementation Committees

The CRA in Part XXIII (Sections 260 – 271) made provisions for the establishment, functions, procedure at meetings and the secretariat of the  National, State and Local Government Child Rights Implementation Committees respectively. Will the National Assembly go to the extent of making elaborate provisions for establishment, functions, procedure at meetings and secretariat of the States and Local Government Implementation Committees if it had intended for States to enact their Child Rights Laws? Certainly not!

v.)       Suspension and Inconsistency

The tenor of Section 274 expressly indicates that the CRA supersedes the provisions of all enactments relating to children, adoption, fostering, guardianship, wardship, approved institutions, remand centres, borstal institutions and any other matter pertaining to children already provided for in the Act. The section in sub section 2 goes further to assert the supremacy of the provisions of the Act over the provisions of any other enactment relating to children in the event of any inconsistency. These provisions indicates that the National Assembly has covered the field and the States’ Assemblies  can only enact a Child Rights Law within the parameters of the CRA and where a State yet to enact such law, the State must implement the CRA for the time being.

Conclusion

The hue and cry about domesticating the CRA in the States of the federation for its implementation does not hold water. States need not enact or “domesticate” or “accustom to home” the provisions of the CRA in their States before implementation. The States are only begging off in carrying out their constitutional responsibility.

It is a rhetoric and political subterfuge to avoid the implementation of the CRA in some States by sacrificing it on the altar of “domestication” politics. No room for domestication chicanery and tomfoolery by the States. What is needed in every State of the Federation is not the passage of a law in the State domesticating the CRA as it were, but to implement the provisions of CRA where their States’ Assemblies are not ready to enact a Child Rights Law that will not be inconsistent with the provisions of the CRA.

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