By Adams Mustapha Itopa
It is, of course, no doubt that education is a productive tool for shaping human lives by broadening their intellect. It is not also in question that the level of education of citizens of any nation plays a pivotal role in equipping them with sophisticated intellectual potentials that contributes to nation building.
Pursuant to the above facts, the 1999 Constitution of the Federal Republic of Nigeria (As Amended) (the Constitution) in various sections, made adequate provisions to increase literacy and in the contrast, to eradicate illiteracy. With these provisions, government is duty bound to ensure that every Nigerian child living in Nigeria acquire basic education.
This write up is aimed at bringing to the consciousness of parents, guardians, and stakeholders the existence of the right of the Nigerian child to such privileges and their duty to ensure full compliance.
Provision of Free Primary and Free junior Secondary Education as a Duty of Government
Section 18(3) of the Constitution provides;
“Government shall strive to eradicate illiteracy; and to this end Government shall as and when practicable provide
(a) free, compulsory and universal primary education; (b) free secondary education;
(c) free university education; and
(d) free adult literacy programme.”
Item 30 of part II of the Second Schedule and item 2(a) of the Fourth Schedule of the Constitution, saddles the House of Assembly of States with powers and responsibilities “to make laws for the state with respect to technical, vocational, post-primary, primary or other forms of education including the establishment of institution for the purpose of such education ; and Local Government Council with functions to include “participation in the government of a state as respects to the provision and maintenance of primary, adult and vocational education respectively.
Section 1 of the Compulsory, Free Universal Basic Education Act (CFUBEA) 2004 places on the Federal Government the responsibility to assist the States and Local Government’s in Nigeria for the purposes of: uniform and qualitative basic education throughout Nigeria
Without. prejudice to the provisions of item 30 of Part II of the Second Schedu1e and item 2 (a) of the Fourth Schedule to the 1999 Constitution dealing with primary school education, the Federal Government’s intervention under this Act shall only be an assistance to the States and Local Government’s in Nigeria for the purposes of: uniform and qualitative basic education throughout Nigeria.
Section 2(1) of the Compulsory, Free Universal Basic Education Act (CFUBEA)
2003 provides that;
“Every Government in Nigeria shall provide free, compulsory and universal basic education for every child of primary and junior secondary school age.”
Further, section 15(1) of the Child’s Rights Act (CRA) 2003 precisely states that;
“Every child has the right to free, compulsory and universal basic education and it shall be the duty of the Gov ernment in Nigeria to prov ide such education.”
It is explicit that the above cited legislations vests powers and confer responsibilities on the authorities aforementioned to ensure adequate provision of opportunities for education the Nigerian child.
Where A Government Fails To Conform To These Provisions, Can A Child’s Right To Free Education Be Enforced In A Court Of Law?
The failure of Government to adhere to these clear provisions of the law, would amount to an actionable breach of duty.
Though, it was argued initially, that the right to free education provided in section 18(3) of the Constitution is by section 6(6)(c) of the CFRN 1999 rendered non-justiciable, the argument has now been settled in the case LEDAP GTE & Ltd v. Federal Ministry of Education & Anor (978 of 2015)2, wherein Honorable Justice J.T. Tsoho of the Federal High Court held that the right is justiciable and enforceable, declaring inter alia that;
“The failure to adopt and implement free, compulsory and universal primary education and free junior secondary education is a breach of the constitutional obligation of the government that failed to do so, being a failure of the duty and responsibility of such head of government to exercise power to conform to, observe and apply section 18 of the constitution and sections 2 and 3 of the Compulsory, Free Universal Basic Education Act 2003.”
“That the plaintiff……have the legal right to bring this action to demand that Federal Government and State Governments adopt and implement the provisions of the compulsory, Free Universal Basic Education and Free Junior Secondary Education”.
Again, in the case of SERAP v. FGN & UBEC ECW/CCJ/APP/0808 [ECOWAS, Oct. 27, 2009], though the relief sought by the applicant for a declaration that every Nigerian child is entitled to free, compulsory education by virtue of Article 17 of African Child’s Rights Act, section 15 of the Child’s Rights Act 2003 and sections 2 and 3 of the CFUBEA was not contended but rather affirmed, the ECOWAS Community Court of Justice held that the right (in question) is justiciable and enforceable in Nigeria.
In simple terms, law suit can be filed against the Government who fails to perform this constitutional obligation.
Therefore, parents, guardians, Civil Society Organizations (CSOs) and human rights groups can institute a legal action against the government for failing to provide free primary and free junior secondary education for Nigerian children.
Parents’, Guardians’ and Education Stakeholders’ Duties As To Child’s Right To Free Education, What Happens When There Is Breach Of Duty
By virtue of sections 2(2)(a)(b), 4(1) of the CFUBEA and section 15(2)(a)(b) of the Child’s Rights Act 2003;
-Every parent or guardian shall ensure that his child or ward attends and completes his; primary school education; junior secondary school education.
This has placed a responsibility on parents, guardians to ensure that their child or ward receives full- time primary and junior secondary education suitable to his age, ability, aptitude by regular attendance at school.
Inclusively, the stakeholders in education in a Local Government Area shall by the provision of section 2(3) of the CFUBEA, ensure that every parent or person who has the care and custody of a child performs the duty imposed on him under section 2(2) of the Act (as it was earlier mentioned).
Consequently, the failure of a parent or guardian to carry out this responsibility is a criminal offense punishable by law. On this note, section 2(4)(a)(b)(c) of the CFUBEA and section 5(6)(a)(b)(c) of the Child’s Rights Act 2003 provides thus;
-where a parent or guardian who has the care and custody of a child, fails in the duty imposed on him by the sections (earlier discussed), commits an offence and is liable;
- On first conviction, to be reprimanded;
- On second conviction, to a fine of #2000.00 or imprisonment for a term of 1 month or to both; and
- On subsequent conviction, to a fine of #5000.00 or imprisonment for a term of 2 months or to both.
It is worthy of note that fees are not to be paid, as services in public primary and junior secondary schools shall be provided free of charge. And a person who receives or obtains fee for services rendered in the said institutions commits an offence and is liable on conviction; to a fine of not exceeding #10,000.00 or imprisonment for a term of 3 months or to both. (Section3(1)(2) CFUBEA).
Conclusively, parents, guardians and Stakeholders in education are encourage to endeavor that children acquire the basic education rightfully provided for them under due provisions of the law, and as well to take necessary legal steps and actions where the government fails to make the provisions for the basic education.
Adams Mustapha Itopa is studying law at the Ahmadu Bello University Zaria. He can be reached on: Phone: 09033775773 Email: firstname.lastname@example.org
 section 5(1) of the CFUBEA related clearly exempts children resident outside Nigeria