The implementation of the African charter on human and peoples’ rights and the convention on the rights of the child in Nigeria: the creation of irresponsible parents and dutiful children?

Abstract

Abstract This article examines the implementation of the African Charter on Human and Peoples’ Rights and the Convention on the Rights of the Child in Nigeria together with the Junkun native law and custom. The article finds that these are multiple laws reflecting legal pluralism within the social field of the relationship between parents and their offspring. The article further finds that children are obliged to take care of their parents when they are in need for the rest of their lives under the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act whereas under the Children’s Rights Act, parents are no longer responsible to their children after the children have attained the age of 18 years. Thus, the implementation of the two treaties can create irresponsible parents and dutiful children most especially where children are given more rights under customary law beyond 18 as expressed in the Junkun native law and custom. In resolving this situation of legal pluralism, the article subjects the situation to the interrogation of pluralistic archetypes such as legal pluralism of indifference, legal pluralism of accommodation, combative legal pluralism, legal pluralism of mutual support or complementary legal pluralism and offers solution by way of strategies to be adopted in balancing rights with duties through bridging, harmonization, incorporation, subsidization, or repression. The study argues that the Children’s Rights Act appears to be in a combative relationship with the Junkun native law and custom while the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act appears to be in a situation of indifference to Children’s Rights Act. Also, the Nigerian Constitution 1999 also appears indifferent to the Junkun native law and custom. The study therefore recommends subsidization and harmonization as strategies to be adopted by the law making organs in Nigeria and urges them to amend the Nigerian Constitution 1999 to accommodate customary law where it offers a better protection. In addition, the study recommends that pending the amendment, judges should be permitted rule shopping or norm shopping as a repressive strategy to supplant any norm that will do injustice where an alternative norm will do otherwise. The study concludes that by having the Constitution amended, the legislative process as a manifestation of the state's legal power or authority in Nigeria will acquire legitimacy. Also, by adopting a repressive strategy, the judicial process as a manifestation of the state's legal power or authority in Nigeria will acquire legitimacy.