In Nigeria, May 27 of every year (today) is dedicated to celebrate children. Ironically, children and young people have been the most vulnerable to the country’s socio-economic challenges and are constantly exposed to incidents of poverty, exploitation, abuse and poor health conditions which inhibit their overall development. The UNICEF recently reported that no fewer than 10.5 million Nigerian children are out of school. Also, over two years ago, a terrorist group, Boko Haram abducted over 200 female children, and till date, the government has been unable to locate them.
These unfortunate circumstances, among others can be associated with an unmet need for accessible justice for the Nigerian child.
As a legal concept, access to justice historically refers to a right of access to a court or tribunal to obtain remedy for the violation of legal rights. However, over the last few decades, the term has come to more broadly focus on everyday legal and social problems that people experience from the viewpoint of the people experiencing them. It advocates a range of proactive approaches to manage these everyday issues, and encompasses the availability and effectiveness of the necessary institutions, resources and services to anticipate and resolve civil and legal problems fairly and efficiently.
THE CHILD RIGHTS ACT (“CRA”) AND THE BEST INTERESTS PRINCIPLE
Generally, the CRA constitutes the definitive legal framework for the administration of justice system for children in Nigeria, and it defines a child as a person below the age of 18 years. There are also other national laws and applicable international conventions and regulations which guarantee the rights of the Nigerian child. However, the CRA attempts to consolidate the laws applicable to children, in order to create a dedicated justice system, which affords them better protection than under general law.
Indeed, in order to realize an effective access to justice for any group of people, the peculiar needs and circumstances of that group should be of utmost consideration. To this extent, the CRA provides that in every action concerning a child, whether undertaken by an individual, public or private body, institutions or service, court of law, or administrative or legislative authority the best interest of the child shall be the primary consideration.
The implication of this provision is that in each material case, the best interests of the child become transformed into enforceable rights, which must be identified and determined by the relevant authority. Consequently, the best interest principle signifies an essential prerequisite for the protection and promotion of all other civil, cultural, economic, political and social rights of the child. And so, in any action or proceeding involving a child, justice would mean the primary consideration of his best interests, and access to justice may be construed accordingly.
Yet, in reality, this also means that access to justice would often prove to be a measure of how far the overall system will go to resolve the daily normative conflicts pitched between the otherwise legitimate interests of wider society and the best interests of children. It also raises the fundamental question as to what actually constitutes the best interests of the child, and a further query as to who has the competence to make that finding – judge, guardians, experts or the society.
Lawyers have a huge capacity and responsibility to facilitate access to justice for children, even beyond the courtroom. However, in order to achieve this, they need to be deliberate in their efforts to make the required difference.
The influence that lawyers can exert in this regard will be considered as follows:
1. Lawyers in Private Practice
2. Lawyers in Public Administration
3. Law Teachers
4. Judges (Lawyers on the Bench)
5. The Nigerian Bar Association
1. Lawyers in Private Practice
General Ethics and Professional Conduct
Counsel should be aware of and adhere to applicable professional ethics when dealing with children, especially in proceedings where they are unrepresented. Counsel should be respectful and, to the extent possible, avoid the use of complex legal language or procedural technicalities. Counsel on both sides should act with diligence and promptness to effectively resolve any judicial or administrative proceedings involving the child.
Free Legal Representation
For most children, especially those in conflict with the law, pro bono services would be their only hope of accessing legal advice or representation. Legal practitioners can devise strategies either acting alone or in concert, to provide organized and effective pro bono representation to children where needed.
Sensitization of the General Public
In addition to arguing cases involving violations of children’s rights, they should be actively engaged in mass enlightenment and mobilization with a view to sensitizing the generality of the people towards the realization of justice for children.
Providing Consultation to NGOS
The efforts of organized group acting in concert often prove more effective in human rights advocacy than the isolated exertions of individual actors. There is no doubt that NGOs or volunteer welfare associations play important roles for access to justice across the nation. These groups are often active in providing some forms of legal aid, such as legal assistance, creating legal awareness, legal training and advocacy work. When contrasted with the legal aid initiatives provided by state agencies and the legal profession, the support program offered by NGOs are usually much more accessible for the children, especially the poor and vulnerable living in rural areas.
2. Lawyers in Public Administration:
Policy formulation and enforcement of existing laws
Legal practitioners working in the civil service or sectors of the public service either as politicians or public administrators are well positioned to initiate and manage relevant policies which will promote the best interests of the child. This can be achieved using legislative or administrative channels. The incorporation of international principles applicable to the child and a harmonization of national and regional laws should be given priority in the formulation of legislation touching on children’s rights and freedoms.
Lawyers responsible for drafting laws and policies which would clearly affect the rights or obligations of children should ensure that the language used is simple and unambiguous with a focus on the consistency and certainty of the overall legal framework.
3. The Law Teachers (Lawyers in the Academia):
The child justice system in Nigeria is a developing area of law and law teachers should be relied upon by the justice system to continue to clarify the emerging definitions of access to justice for children in ways which translate to real meaning in their everyday lives. This may necessarily involve collaboration with other disciplines of the social and behavioral sciences to build capacity for access to justice research.
4. The Judge (Lawyers on the Bench):
The role of the judge in the interpretation of what constitutes the best interests of the child in each given case is very critical to enhancing access to justice for children.
In order to advance the interests of the child, judges ought to simplify the applicable rules of proceedings and give broad and progressive interpretations to applicable legal principles. In doing so, a judge would do well to take advantage of the guidance offered by international and comparative law principles applying the same where required to domestic judicial decision.
Also, judges should have high expectations of the attorneys who appear before them in any proceedings involving the child.
5. The Nigerian Bar Association:
Although the Nigerian Bar Association (“NBA”) as a professional association arguably has the most influential advantage to promote access to justice and the rule of law, it has not been very effective in this regard.
Facilitation of Knowledge Sharing
The NBA can organize periodic continued legal and judicial education for lawyers and judges respectively; and specialized trainings for law enforcement, welfare officers and policy leaders on the current laws and standards applicable to the administration of the child justice system. This would also be a good opportunity to expose the weaknesses in the system with a view to managing or eradicating them.
In addition, the NBA can provide leadership by working with the education authorities, to ensure that children are taught their civil rights in a simplified form, as part of their academic curriculum.
Engaging National and Regional Governments
The critical role of the national and regional governments in promoting access to justice for the children can be galvanized and strengthened by the NBA through support efforts and awareness campaigns to improve the quality of local regulations and consistency with the international standards.
The concept of Access to Justice for children in Nigeria is broad and encompassing and aims at realizing the best interests of the child. As the United Nations Sustainable Development Goals (SDGs) agenda sets about the attainment of new global development goals and targets, there is greater appreciation and understanding of the role that access to justice plays in guaranteeing basic rights to education, food and health, and in supporting other dimensions of sustainable development for children.
The lawyer is widely regarded as the expert in access to justice issues. This expertise provides him with the leverage and responsibility to promote access to justice for children in various professional capacities. His role in this regard is undoubtedly critical and requires the effective deployment of management skills and resources in order to achieve any success.
Ed's Note: This article was originally published by the author here.