3. State Party Reports

Nigeria

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III. DEFINITION OF THE CHILD

31. The National Child Welfare Policy of 1989 defines a child as anybody who is 12 years or below. However, a draft decree put into law has now set the age of the child in Nigeria as 18 years or below. It is pertinent to note that this age definition of the Convention is already in practice under municipal laws. Parents, and the society at large, are therefore under an obligation to provide their children with proper education and to protect them from exploitation arising from early marriage, employment and their negative influence that infringe on their rights.

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35. In Nigeria, the age of demarcation for absolute lack of criminal responsibility follows that set at common law for capital offences, and latter serious felonies. The governing rule was that an infant under the age of seven years could not be guilty of felony. Thus, the Criminal Code, S.30, provides:

"A person under the age of twelve years is not criminally responsible for any act or omission unless it is proved that at the time of doing the act or making the omission he had the capacity to know that he ought not to do the act or make the omission."

36. The Penal Code, S.50, provides that no act is an offence which is done:

1. By a child under 7 years of age;
2. By a child above 7 years of age but under 12 years of age who has not attained sufficient understanding to judge the nature and consequence of such act.

Sections 26 (1), 27 and 28 of the Children and Young Persons Law provide that where a child under the age of 7 commits an offence, he is to be brought before the Juvenile Court. Section 2 of the Law describes a child as "a person under fourteen", and young persons between 14 and 17 are subject to special procedures.

IV. GENERAL PRINCIPLES

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40. Respect for the views of the child. The Nigerian Law of Evidence, Cap. 112, S.155 and 183, of 1990 states that "all persons shall be competent to testify unless the court considers that they are prevented from understanding the question put to them or from giving rational answer to those questions by reason of tender age". Section 38 of the Children and Young Persons Act of 1958 further states that "in any proceedings for any offence the evidence of any child who is tendered as a witness and does not in the opinion of the court understand the matter of an oath, may be received although not given upon oath if in the opinion of the court such a child is possessed of sufficient intelligence to justify the reception of the evidence and understand the duty of speaking the truth". The section goes further to state that for the evidence of the child to be binding on the court this has to be corroborated by the evidence of an adult. This low value of the evidence of the child has been changed in the draft decree. In general, however, a child now gains more acceptance as he matures - in the words of the Convention, "as capacities evolve".

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V. CIVIL RIGHTS AND FREEDOMS

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50. Right to dignity of the human person. Section 31 of the 1979 Constitution ensures for the child the dignity of his/her person and accordingly:

1. The child shall not be subjected to any form of torture or to inhuman or degrading treatment;
2. The child shall not be required to perform forced or compulsory labour.

Infringement is liable to prosecution both under the Constitution and the criminal laws. The child is not liable to capital punishment or life imprisonment for offences committed by him.

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VIII. SPECIAL PROTECTION MEASURES

92. The economic situation in the country, arising mostly from the effects of the structural adjustment programme, the high rate of urbanization and the resultant breakdown in the extended family system, has resulted in an unprecedented increase in the number of children in especially difficult circumstances (CEDC). There are basically three categories of CEDC in Nigeria. These include:

1. Children who engage in hawking wares, load carrying, car washing, shoe shining, petty trading, refuse clearing, begging, prostitution, etc.;
2. Children endangered by abuse and neglect. These include disabled children, sexually abused female children, children of prostitutes living with their mothers in brothels, children of community outcasts, children of mentally unstable mothers, immigrant children and those lured into early marriage;
3. Children in situations of conflict and disasters. These are refugee children who may be neglected, stereotyped or abandoned following natural, political, ethnic or religious crises which may occur from time to time in Nigeria.

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94. Children in conflict with the law. According to section 30 of the Criminal Code, any person under the age of 7 years is not criminally responsible for any act or omission. A person under the age of 12 years is not criminally responsible for any act or omission unless it is proved that at the time of doing the act or making the omission, he had the capacity to know that he ought not to do the act or make the omission. However, the draft decree has dropped reference to the age of liability but various mechanisms and institutions have been provided to assist any child who has infringed the law to become resocialized.

95. In every criminal trial involving children, it is guaranteed that:

1. A child charged with an offence is presumed innocent until proven guilty according to law;
2. The child or his parents/guardian is informed promptly of the charges against him/her and is entitled to a defence;
3. A criminal trial can only be determined by a competent, independent and impartial judicial body according to the rules of natural justice and under conditions of the best interest of the child;
4. A child cannot be compelled to confess guilty and, in his defence, witnesses may be examined;
5. Except for decisions at the Armed Robbery Tribunal, decisions of other criminal courts may be appealed against to a higher court;
6. An interpreter will be provided where the child cannot understand or speak the English language;
7. The parents or guardian may attend if they so wish or if they are compelled by the court.

96. Children deprived of their liberty. Children over 12 years old may be sentenced by deprivation of their liberty in established remand homes or other such institution or schools approved by the Minister for this purpose. No child can be ordered to be imprisoned if below 12 years and where he is above 14 years, he may be ordered to be imprisoned only if the court is of the opinion that he cannot be suitably dealt with in any other way. Such imprisoned child shall not be allowed to associate with adult prisoners.

97. The sentencing of juveniles. Where a child is found guilty of committing an offence, the following are the methods which the court may consider for dealing with such a child:

1. Dismiss the charge;
2. Discharge the offender upon his entering into a recognizance;
3. Commit the offender by a mandate to the care of a fit person;
4. Commit the offender by a mandate to an approved institution;
5. Order parent or guardian to pay fine, damages, cost, or to give security;
6. Commit the offender to custody in a place of detention for a period not exceeding six months;
7. Order him to be imprisoned, if over 14 years, after Borstal training.

Source: Initial reports of States parties due in 1993: Nigeria, UN Doc. CRC/C/8/Add.26, paras. 31, 35-36, 40, 50, 92, 94-97 (21 August 1995)