Democracy and Child Rights Protection: The Problem of the Nigerian Constitution

Democracy and Child Rights Protection: The Problem of the Nigerian Constitution

Oluwafifehan Ogunde (University of Nottingham, UK)
Copyright: © 2017 |Pages: 22
DOI: 10.4018/978-1-5225-0723-9.ch006


The doctrine of constitutional supremacy is well entrenched in Nigerian constitutional and administrative law. A plethora of cases exists to establish the constitution as the supreme law-making instrument in Nigeria. This principle derives strength from a presumption that the constitution is reflective of the will of the people, as is expected under a democratic system of government. The aim of this chapter is to consider the relationship between human rights and democracy in the context of the Nigerian constitution. The first part of this chapter will be a brief overview of the Nigerian constitutional history leading up to the 1999 Constitution of the Federal Republic of Nigeria (as amended). The author will then proceed to examine the 1999 constitution in the context of child rights. The significance of constitutional peculiarities in the context of child rights protection will be considered with reform measures suggested to address any emergent complexities.
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I. Introduction: Federalism, Fundamental Rights, And The Nigerian Constitution

My Lords, in my opinion, it is the duty of this Court to bear constantly in mind the fact that the present Constitution has been proclaimed the Supreme Law of the Land: that it is a written, organic instrument meant to serve not only the present generation, but also several generations yet unborn; that it was made, enacted, and given to themselves by the people of the Federal Republic of Nigeria…(Per Eso JSC in Nafiu Rabiu v. The State, 1980)

No doubt Cap. 10 is a statue with international flavour. Being so, therefore, I would think that if there is a conflict between it and another statue, its provisions will prevail over those of that other statue for the reason that it is presumed that the legislature does not intend to breach an international obligation. To this extent I agree with their Lordships of the Court below that the Charter possesses ‘a greater vigour and strength’ than any other domestic statue. But that is not to say that the Charter is superior to the Constitution. (Belgore JSC in Gen Sani Abacha v. Chief Gani Fawehinmi, 2000)

Nigeria’s constitutional development in the contemporary context has its origins in British colonial administration. There was little regard given to the constitutional protection of fundamental rights at the early stages. As observed by Ajomo, the constitutions that operated in Nigeria prior to independence were specifically designed to achieve political objectives of the British colonialists without any formal or conscious attempt to safeguard human rights (Osinbajo & Kalu, 1991). This view is substantiated by the express failure by the various constitutions enacted at different periods (1922, 1946, 1951, and 1954) to make any provisions for fundamental rights. Notwithstanding, certain developments that would prove significant in the context of human rights are observable during this period. In 1950, Eyo Ita, an Eastern minority delegate to the General Conference at Ibadan, recommended the introduction of a bill of rights as a way of reducing the tensions among the regions and ethnic groups (Osaghae, 1996). This was followed by the introduction in 1951 of the concept of a representative democracy for a country’s governance through the constitution (Osinbajo & Kalu, 1991). Although this development could be argued as being tantamount to the recognition of the right to self-determination, the increasing political pressure from nationalists seeking independence is perceived as a more appropriate ground (Osinbajo & Kalu, 1991). The year 1954 saw the establishment of a federal system of government through the provision by the constitution of an exclusive legislative list containing matters for which only the central legislature was competent to make legislation and a concurrent legislative list with respect to which both the central and regional governments could make law (Okonkwo, 1980). Significantly, matters not contained in either list were left exclusively to the regional legislatures (Okonkwo, 1980). The decentralization of government, while not directly significant in the context of protecting individual rights, may be regarded as being positively linked with the recognition of group rights to self-government. Nevertheless, agitations to the effect that certain basic individual rights should be guaranteed in the constitution were “flippantly rejected” by the colonial government (Falana, 2004).

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