THE RIGHT OF THE CHILD AND RELIGIOUS FREEDOM IN NIGERIA

BY
NASIRU A.S ESQ.
S.A NASIRU LAW FIRM (S & H CHAMBERS)
Ff2 Hafsat Pkaza, No I 16 Ibadan Street By Nupe Road, Kaduna
1.1

Introduction

Nigeria is a multi-ethnic and multi-religious state. The major religious groups in this country of
more than 160 million inhabitants are Christianity and Islam. There is a scientific representation
of neither the numerical strength of these religious groups nor their geographical
distribution.1 The Islamic faith preponderates in the northwestern and northeastern parts of the
country which is composed of Sokoto, Zamfara, Borno, Yobe, Katsina, Kano, Kebbi, Jigawa,
Bauchi, Taraba although Taraba State has an almost equal distribution of Christians and
Muslims, Gombe, and Adamawa states. On the other hand, Christianity is more prominent in the
southeastern and south-south geographical zones composed of Imo, Enugu, Anambra, Abia,
Ebonyi, Delta, Edo, Bayelsa, Rivers, Cross-Rivers, and Akwa Ibom states, with Edo State
arguably comprising an equal distribution of Muslims and Christians.2
The southwest and north-central zones composed of Lagos, Oyo, Ogun, Ondo, Ekiti, Osun,
Kaduna, Niger, Plateau, Nassarawa, Benue, and Kogi states and the north-central zone the
1 Most claims about Nigerias ChristianMuslim population distribution are anecdotal and based purely
on assumptions, since religious distribution is not an index in Nigerias National Population
Commissions population head counts. Some Western-based population resource services like Index
Mundi.com, CIA World Fact Sheet, Population Resource Centre etcwhich are commonly relied upon
put Nigerias population ratio at 50% Muslims, 40% Christians, and 10% indigenous believers. For
evidence of this presumptive population distribution, see Nigeria Demographics Profile 2011
<http://www.indexmundi.com/nigeria/demographics_profile.html> accessed 16 August 2016; and CIA
World Population Factsheet <https://www.cia.gov/library/publications/the-world-factbook/geos/ni.html>
accessed 16 August 2016. These approximations are not based on Nigerias official estimates and
therefore, lack statistical integrity.

2 Ibid
1

Federal Capital Territory have reasonably balanced numbers of Muslims and Christians; except
for Benue State, which is entirely composed of Christians and followers of Traditional Religion.
Although often marginalized, Traditional Religion has a fair amount of followers and, therefore
has a significant degree of influence in the determination of state religion relations. In spite of
the apparent dominance of Islam and Christianity in public relations, the syncretic nature of
religion among Nigerian tribes has paradoxically made Traditional Religion a sort of melting pot,
as those who profess both Islamic and Christian faiths frequently patronize traditional religious
priests for spiritual rituals. Thus, in spite of the apparent scorn of Traditional Religion by
Nigerian elites as a result of the modernizing influences of the colonizing religions, Traditional
Religion continues to be furtively patronized by a great many adherents of both Islam and
Christianity and has therefore maintained its relevance.3
Contemporary statereligion relations in Nigeria are characterized by ill-defined boundaries.
Whereas the 1999 Constitution of Federal Republic of Nigeria as Amended has declared freedom
of religion and apparently seeks to separate state affairs from the doctrinal leanings of religion,
the same constitution creates and recognizes executive and judicial institutions with religious
biases. Thus the existence of multiple judicial systems based on secular, religious, and traditional
jurisprudence, as well as multiple educational systems based on secular and religious principles,
only serve the purpose of obfuscating the real character of the Nigerian state, whether secular or
religious.
The practices and systems that people identify as religion are so diverse that it is not easy to
come up with one simple definition. Therefore, there may not be one single definition of religion

3 Ibid
2

that can completely sum up what religion is but various definitions can suggest what religion is
from different perspectives
1.2Legal Framework of Right to Freedom of Religion or Belief
Nigerias constitution guarantees religious freedom, including the right to change ones:
Every person shall be entitled to freedom of thought, conscience and
religion, including freedom to change his religion or belief, and
freedom (either alone or in community with others, and in public or
in private) to manifest and propagate his religion or belief in
worship, teaching, practice and observance. - Constitution of the
Federal Republic of Nigeria.4
Encyclopedia Britannica simply defines religion as human beings relation to that which they
regard as holy, sacred, spiritual, or divine5 while the American Heritage Dictionary defines
religion as belief in and reverence for a supernatural power recognized as the creator and
governor of the universe; a particular integrated system of this expression; the spiritual or
emotional attitude of one who recognizes the existence of a superhuman power or powers. 6
The Penguin Dictionary of Religions defines it as a general term used to designate all
concepts concerning the belief in god(s) and goddess(es) as well as other spiritual beings or
transcendental ultimate concerns.7
4 Section 38 of 1999 Constitution of Federal Republic of Nigeria as Amended
5 Microsoft Encarta 2009. 1993-2008 Microsoft Corporation. All rights reserved.
6 https://ahdictionary.com/ accessed on 16 August 2016
7 The Penguin Dictionary of Religions Paperback, Second Edition, 800 pages, Published December 1st
1997 by Penguin Books (first published January 1st 1995)

The right to freedom of religion as entrenched under section 38 of 1999 Constitution of Federal
Republic of Nigeria as Amended can be expressed through the following rights:

Right to thought, conscience or belief;

Right to have a religion or whatever belief of your choice;

Right either individually or in community with others, in private or public, to manifest

a religion or belief through worship, observance, practice and teaching;

Right not to suffer coercion that impairs the freedom to choose a religion or belief;

Right of the State to limit the manifestation of a religion or belief if based in law, and
only as necessary to protect public safety, order, health, morals and the fundamental
rights and freedoms of others.

Right to worship and assemble, and to establish and maintain places of worship;

Right to establish and maintain appropriate charitable or humanitarian institutions;

Right to make, acquire and use materials related to rites and customs;

Right to write, issue and disseminate relevant publications in these areas;

Right to teach a religion or belief in places suitable for these purposes;

Right to solicit and receive voluntary financial and other contributions;

Right to train, appoint, elect or designate appropriate leaders;

Right to observe days of rest and celebrate holidays and ceremonies;

Right to establish and maintain communication with individuals and communities at

national and international levels.

Various international conventions have provisions protecting these rights. The United Nations
recognized the importance of freedom of religion or belief as a human right in the 1948
4

Universal Declaration of Human Rights as a common standard of achievement for all peoples
and all nations. Article 18 of the Declaration states that:
Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in community with others
and in public or private, to manifest his religion or belief in teaching, practice, worship and
observance.
The freedom of religion and belief is also recognised in the International Covenant on Civil and
Political Rights, which was adopted by the United Nations in 1966. Article 18 of the Covenant
states that:
1

Everyone shall have the right to freedom of thought, conscience and religion. This
right shall include freedom to have or to adopt a religion or belief of his choice, and
freedom, either individually or in community with others and in public or private, to
manifest his religion or belief in worship, observance, practice and teaching.

No one shall be subject to coercion which would impair his freedom to have or to
adopt a religion or belief of his choice.

Freedom to manifest ones religion or beliefs may be subject only to such limitations
as are prescribed by law and are necessary to protect public safety, order, health or
morals or the fundamental rights and freedoms of others.

The States Parties to the present Covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians to ensure the religious and moral
education of their children in conformity with their own convictions.

The 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination
Based on Religion or Belief contains eight articles; three articles (1, 5, and 6) define specific

rights while the remaining articles (2, 3, 4, 7 and 8) act in a supportive role by outlining
measures to promote tolerance or prevent discrimination. The eight articles constitute an overall
concept to advocate for tolerance and to prevent discrimination based on religion or belief. While
human rights are individual rights, the 1981 UN Declaration also identifies certain rights related
to states, religious institutions, parents, legal guardians, children, and groups of persons.
Religious freedom is a fundamental human right in most democracies with this right being
jealously guarded and protected. The right to religious freedom is indivisible and cannot be
claimed for one particular group at the exclusion of others.
1.3RIGHT OF THE CHILD
In a typical Africa society of which Nigeria was one, it is customary to all tribal settings that the
rights of a child did not enjoy a universal set of recognition. Each society or village evolved its
own rules in that regard8. Most children were made to suffer many forms of human degradation.
Also it is commonly believed that a parent could allow his child to enjoy certain rights and may
decide to withhold others. Even these rights that we enjoyed by children were determined by the
usefulness of the child to both or either parents at the farm or roadside market. Utility was the
scale of measurement.
Gone are the days when such practices are allowed to persist, a developing society such as
Nigeria have given its children their due rights. These rights can be found in our Status,
Conventions, and the Constitution of the Federal Republic of Nigeria 1999 as amended. Even
some native law and customs recognize and believe certain rights are due to children before the
age of puberty.

8 While most of these African traditional societies accorded some rights to the child, the content,
extent and quality of the rights revolved around the perception of the elders.

We shall now proceed to describe whom a child is under our law before examining his rights
under the various enactments applicable in the country.
a.Who is a child?
Generally speaking, a child is believed to be product of a lawful marriage who is still subject to
the control and direction of the parents. But under the common law and status it means more than
that. At common law, One who has not attained the age of fourteen years in a child.
The Child Right's Act 2003, passed into law in the Federal Capital Territory (Abuja), defines a
child as a person who has not attained the age of eighteen years. However, according to Section 2
of Children and Young Persons Act, enacted in Eastern, Western and Northern regions (hereafter
referred to as CYPA, defined a child to mean a person under the age of fourteen years, while
young person mean a person who has attained the age of fourteen years and is under the age of
seventeen years.
Furthermore, the Immigration Act stipulates that any person below 16 years is a minor, whereas
the Matrimonial Causes Act puts the age of maturity at 21 9. The latter act becomes irrelevant in
practice, since the individual states state their own age for marriage. 10 As for penal responsibility,
Section 50 of the Penal Code (North) states: No act is an offence which is done by a child under
seven years of age; or by a child above seven years of age but under twelve years of age who has
not attained sufficient maturity of understanding to judge the nature and consequence of such
act.
These are only some examples of different ages enshrined in a multitude of legal texts and in
customary law all over the country. The official report admits that laws affecting children
9 But it allows persons below this age to be married with the consent of the parents.
10 Cf. paragraph on gender discrimination.
7

continue to be scattered in different legislations11 and explains that the perception of Age as a
definition of a Child depends on who is defining It varies depending on cultural
background.12 The report does also provide for a list of 6 pages of length 13 with different
definitions of a child - depending on the purpose, gender, as well as the region of the country. It
does, however, fail to present any serious suggestion on how this confusing situation could be
changed and a universal definition of a child, valid for boys and girls, effectively implemented.
b.The General Rights of Nigerians
The general rights of every Nigerian irrespective of religion ethnic groupings, sex and age are
contained in sections 33-46 of the constitution of the Federal Republic of Nigeria 1999 as
amended.14
c.The Peculiar Rights Of A Child
The various rights of the Nigeria today are derivable from six principal sources of law namely:
The United Nations Convention on the Right of the Child which was enacted in 1989 Nigeria
was one of the signatories to the Charter on the Rights and Welfare of the African Child, under
the auspices of the Organisation of African Unity.
The 1999 Constitution in section 17(2) (f) provides that:

11 State Report, p. 25
12 Ibid
13 Ibid, pp. 25 31. According to the actual legislations, the age for being a child ranges from 7 to 21
years.

14 This is contained in chapter IV of the Fundamental Human Rights paragraph of the said
Constitution.

Children, Young persons Should be protected against any exploitation whatsoever, and
against moral and material neglect. Section 18 of the same Constitution enjoins the government
to direct its policy towards ensuring of equal and adequate educational opportunities at levels.15
Generally speaking, the peculiar rights of a child after survival include right to life, right against
cruelty, right to education, right to health, right to shelter, food and clothing and any other right
that are found to be due to the child.16
i.Right To Life
Life is sacred and important. Just like S.33 (1) of the 1999 Constitution of the Federal Republic
of Nigeria speaks about the right to life of every citizen of Nigeria. It is pertinent to state here
that the world every person used in that section includes children. It is barbaric to offer a child
as sacrifice to a God or a goodness to gain a favour. It is even worst if a child is sexually and
physically abused by some of the depraved men and women in our society. Some goes for child
beggars.
ii.

Right Against Cruelty

There is provision for unwanted babies at the children welfare homes in all states of the
Federation. Where, a child develops habit of pick-pocket may be due to poor feeding or too
troublesome for parents to handle, S.34 of the Children and Young Persons Act provides that the
parent or guardian of such a child could go to juvenile Court for necessary orders. Children are
said to be leaders of tomorrow, any society that wants good leaders that would lead the country
to the need millennium must take good care of the children in the society.
iii.

Right To Education

15 However these sections which are contained chapter II of the Constitution on Fundamental
Objectives and Directives Principles of State Policy is not justifiable.

16 The Child Right's Act 2003

9

Every child has a right to be educated and such responsibility is on the parents and the society. A
child must not be made an idle or vagabond as a result of the parents poverty. A child should be
allowed to be educated as far as he could go. A child who is educated would be less burden-some
on the parents and the society when he becomes an adult. Instead he would strive hard to pay
back if not all, at least part of what the parents and society spent on him when he was a child.
Usually a child pays more than what was spent on him. An educated child brings pride and glory
to the family. Moreover it is easier to lead an educated society than one infested with illiteracy.
The Nigerian motion is an example of the latter. This issue would have been frontally addressed
if the provisions of Section 18 of the 1999 Constitution are justiciable 17. The Section provides as
follows: 18. (1) Government shall direct its policy towards ensuring that there are equal and
adequate educational opportunities at all levels.
(2) Government shall promote science and technology.
(3) Government shall strive to eradicate illiteracy; and to this and 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.
iv.Right To Health
A child has the right to be cared and catered for medically. In Nigeria of today unlike the time of
our parents, a child is entitled to adequate health care and must be immunized against all deadly
diseases to safeguard him from attacks. Both the Federal and state Ministries of health are really

17 Op cit.
10

working and expending monies on the expanded programmes on immunization for the survival
of our children.
v.

Right To Shelter, Food And Clothing

A child is entitled to be sheltered in a comfortable and well ventilated home; he is entitled to be

fed with good and nutritious food for energy body building and strength. A child is entitled to be
clothed by his parents or guardian. This clothing may not necessarily be expensive, but a child
must be clothed properly, befittingly and in accordance with the season.
vi.

Other Rights

These rights include right of child to have free access to either parents; not to be retrained by any
form of protocol. In essence a child whether male or female must be free with both parents and
either parent must be ready at all times to play their roles on issues in which their admonition is
needed. A male child has the right to ask his father concerning any physical changes he notices in
his growth or development i.e. adolescent, while a female3 has the right to ask the mother
concerning her own physiological changes as well. The out-moded and outdated attitude of
parents in shunning their children on issues as the above does more evil than good.
vii.

Child Labour

The United Nations Convention in its Article 18 calls for an out rights prohibition of child labour
which is hazardous or likely to interfere with the childs education or development. Therefore
any type of employment which increases the risk of a child incurring physical or mental harm or
which prevents the child from either attending school or which affects his school performance
should be discouraged. The labour Act18 in its S.59 provides that a child under the age of 12
cannot be employed or work in any capacity except where he is employed by a member of his

18 Cap 198 Laws of the Federation 1990.

11

family on light work of an agricultural, horticultural or domestic character approved by the

Minister. A child can not be required to lift; carry or move anything so heavy as to likely injure
his physical development16. Whatever the form of employment is, a child should not be
prevented from returning to his parents or guardian at the end of each days work.19
The new trend in Europe and United States of America to refuse to patronise products that are
produced with child labour, for example, football produced in China and India.
viii.Circumcision
This is the performance of surgery on the genitals of both girl and boy. This could be by medical
or local surgery. We must draw attention to the fact that there are divergent views among the
people of religion on the desirability or otherwise of female circumcision. The argument put
forward by them is that a girl that is not circumcised will grow up to be promiscuous. The short
answer to this is that immorality is a thing that is imparted and can be controlled if not totality
exterminated by a good family upbringing. The general answer to the objection of the religionists
is that all revealed religions place premium on the prevention of injurious acts to human person
be it an adult or child. Since medically, it has been proved that female circumcision is injurious
then there can be no valid ground to continue with the practice.
ix.

Early Marriage

This is another area where religious have different views from the modern trend. It is said that
delayed marriage encourages immorality. There is no doubt there is some merit in the assertion
but the medical impairment that can result to a young girl given in marriage to a man old enough
to be that the middle of the road approach of modern machine that one should not marry too
early or too late is to be preferred. There can be no doubt about it that it is an abuse of the right

19 See section 59 (10 (b) of Cap 198.

12

of a child who has not attained his or result of the act is manifest in the number of divorce cases
in our local courts all over Nigeria and cases of elopement in many local communities. The
larger society is the worse for the practice.
1.4

Religious Freedom of a Child Nigeria

Like other rights that are entrench in 1999 Constitution the right of freedom of thought,
conscience and religion is also recognized and this is also included in the Right of the Child Act,
2003 particularly section 7 of the Act which provide:
7.(1) Every child has the right to freedom of thought, conscience and religion.
(2) Parents and, where applicable, legal guardians shall provide guidance and direction in the
exercise of these rights having regard to the evolving capacities and best interest of the child.
(3) The duty of parents and, where applicable legal guardians to provide guidance and direction
in the enjoyment of the right in Subsection (1) of this section by their child or ward shall be
respected by all persons, bodies, institutions and authorities.
(4) Whenever the fostering, custody, guardianship or adoption of a child is in issue, the right of
the child to be brought up in and to practice his religions shall be a paramount consideration.
The implication of the provision is that every child have a right to choose religion of their choice
and the parents or guardians cannot stop them but only to guide them towards practice of religion
of their choice.
Recently the United Nations Special Rapporteur on freedom of religion or belief, Heiner
Bielefeldt, on called on all Governments represented at the UN General Assembly to respect
religious practices by children and their families and support families in fulfilling their role in
providing an enabling environment for the realisation of the rights of the child. He said, Every
individual child is a rights holder in his or her own capacity as recognised in Article 14 of the

13

Convention on the Rights of the Child, he recalled during the presentation of his special report
on the rights of the child and his or her parents in the area of freedom of religion or belief. 20
That violations of freedom of religion or belief often affect the rights of children and their
parents, he said. Children, typically girls, from religious minorities for example, are abducted
and forcibly converted to another religion through forced early marriage.21
The rights expert also urged religious communities across the world to ensure respect for the
freedom of religion or belief of children within their teaching and community practices, bearing
in mind the status of the child as a rights holder.22
Religious community leaders should support the elimination of harmful practices inflicted on
children, including by publicly challenging problematic religious justifications for such practices
whenever they occur, he said.
While in many situations of violations the rights of the child and the rights of his or her parents
may be affected in conjunction, it is not always the case, Mr. Bielefeldt noted. The interests of
parents and children are not necessarily identical, including in the area of freedom of religion or
belief.23
The expert highlighted that parents or legal guardians have the right and duty to direct the child
in the exercise of his or her freedom of religion or belief. Such direction should be given in a
manner consistent with the evolving capacities of the child in order to facilitate a more and more
20 NEW YORK / GENEVA (23 October 2015)
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16647&LangID=E accessed on
16 August 2016

21 Ibid
22 Ibid
23 Ibid
14

active role of the child in exercising his or her freedom of religion or belief, thus paying respect
to the child as a rights holder from early on, he said.
Parents are also not obliged to provide a religiously neutral upbringing in the name of the
childs right to an open future, he added. The rights of parents to freedom of religion or belief
include their rights to educate their children according to their own conviction and to introduce
their children to religious initiation rites.24
In his report, the Special Rapporteur discusses issues related to religious socialization; religious
instruction within the family; participation in religious community life; religious education in
schools; the voluntary display of religious symbols in schools; respect for the evolving capacities
of the maturing child; and non-discrimination on the basis of religion or belief.25
CONCLUSION
We have tried to show that in common with other Nigerians, the Nigerian child is entitled to all
the entrenched rights guaranteed in Chapter IV of the 1999 Constitution. It is hoped that no
matter how long the rule of law will hold sway in our policy in the not too distant future, we
have also shown that over and above these general rights, the child has some peculiar rights that
must be observed if we are to have well balanced leaders of tomorrow in the nation. In this age
and time when the other parts of the world are marching unhesitatingly into the next
development in all spheres of human endeavour, Nigeria cannot but devote more time, energy
and resources to the qualitative survival of her children who undoubtedly will lead this country
in the future. The salvation of the nation lies in safeguarding the rights of all citizens but those of
the child in particular.
24 Ibid
25 Ibid
15