Vol. 5 No.1 July, 2017 KUNGBA ARTICLES 1. The Girl-Child’s Right to Education in Nigeria: Examining the Adequacy of its Protection by the State Osifunke Ekundayo...................................A....................................... 1 2. A Comparative Examination of Gross Up Clauses in Commercial Leases Viz-a-viz Withholding Tax (WHT) Laws in United States and Nigeria Olumide K. Obayemi & Oladipupo Saheed Alaka........................18 3. The Status and Jurisdiction of The Code of Conduct Tribunal VRis-Ya-vis The High Court in Nigeria ., , A Salmanu M. Rilwanu & Bobai PaulAli........A.......I..B.....R..................33 4. Effective Internal Regulatory Mechanism: A Pa nLacea for the Control of Incessant Litigations Involving LeadershipN Succession and Pastoral r i *• Tenure among Nigerian Churches DA O -v '• ldowu A. Akinloye................... ..I.B.... A.................................................. 48 5. The Contradictions in the ElFectoral Act 2010 and the 1999 Nigerian Constitution on the Pros eOcutory Powers of the Attorney General on Electoral OffencesTY Akin Olawale SOlIuwadayisi..................... i . . i . .................... ........62 6. StrengtheEninRg the Capacity of the Nigerian National Human Rights CommIVission in the Promotion and Protection of the Right of the Child UOyNeniyi Abe.................................. 71i 7. The Right to Strike under Nigerian Labour Layy: The Need to Delineate the Meaning of Right / m ' 0 * ' ■- . David T. Eyongndi............................................................................. 87 The Legal Perspective of the Protection of Women and Children in Edo State Osuntogun Abiodun Jacob.............................................................. 108 Chief Justice John Marshall in Marbury V Madison: Revisited Prof.A.t. Shehu & T.i. Adedayo.......................................................120 ' 10. Strengthening Intra-party Democracy in Nigeria through Statutory and Judicial Remedies: An Appraisal Olabanjo Olumide Ayenakin & TemidayoAkindejoye............ ....'......... ................. .........$................. 134 * 11. Appraising Freedom of Information Right in Nigeria in the Light of International Standard - Araromi, Marcus Ayodeji........ ........................................ ............... 148 12. The Concept of Confidentiality and its Relevance to Communicable Diseases: The £bola Virus Disease as a Case Study Olusegun, Olaitan Oluwaseyi........................... .............f,............. 170 13. Assessing Contraceptive Use and its Impact on Population CoYntrol in Nigeria R Sunday Akinlolu, Fagbemi...................... ....................R.....A.............. 184 14. Panacea to the Discrimination Against Women aLndI FBemale Child under the Igbo and Yoruba Customary Laws on InNhe ritance Alaba Ibironke Kekere.......................D.....A.......................................... 201 15. The Importance of Trademarks BProAtection in Nigeria Ib ijoke Patricia Byron.....F.... ..I...........................................................216 16. A Legal Perspective o nO Child Custody under the Nigerian Law OluwatosinO. OITgwYezzy.....................................................................231 17. In Quest of EnSergy Security: The Imperatives, Challenges and Prospects of Gas DEevRelopment in Nigeria PNc OIVbutte.................................. 24518U. Non Est Factum: The Paradox in the Law of Sale of Land Hassan I. Adebowale........................................................................263 19. The Need to Regulate Employee Assistance Programmes Practices in Nigeria Simisola O. Akintola & Olohikhuae O. Egbokhare......................280 20. A Guide on Writing a Good, Standard and Acceptable Research Proposal in Law Taiwo, Elijah Adewale...................................................................... 292 AKUNGBA LAW JOURNAL Volume 5 No. 1 July, 2017 Published in 2017 by Faculty of Law, Adekunle Ajasin University, PMB 01, Akungba-Akoko, Ondo State, Nigeria. ISSN 1595-0425 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, elecctronic or mechanical, including photocopying, recording or any retrieval system, without written permission from the copyright holders. Y AR Printed By R St. Paul’s Publishing House IB 5 Dalag Way, Soka Area L Off Challenge Iwo Road Expressway IbadaAn N Oyo State, Nigeria. D F I BA O SIT Y ER UN IV The Girl-Child’s Right to Education in Nigeria: Examining the Adequacy of its Protection by the State OSIFUNKE EKUNDAYCP Abstract Education gives children, especially the girl-child, hope fo r life and work. The right to education fo r girls enables them to reach their fullest potential. Education for all is a tool fo r change, a way out o f poverty and a way to self-d iscovery and personal achievement. In the case o f the girls’ education, not only does the problem lie in the question o f discrimination as the foremost stronghold, but also o f access to education due to certain limiting factors that affect girls' access to formal education. In order to access education, the girl-child must overcome a host o f different barriers that stand between her and her goals. Lack o f educational opportunities makes it difficult fo r the girl-child to enjoy other Y human rights, as the right to education is a basic right andR a prerequisite to the enjoyment o f all others. Two main issueAs are addressed in this paper; first, it addresses the barriers whicRh hinder many girls in Nigeria from attending school, highIlBighting the benefits accrued to individuals and societies from Leducating girls. Second, the paper analyses the protection o f thNis group o f children and their plights in having access to free anAd compulsory primary education through the use o f interDnational human rights instruments and standards, their rAelation to national law and practice. This is aimed at impFro vIin Bg the girls ’ access to education, serving as a call fo r NigerOia to provide education fo r all, especially girls who comprise the majority o f out o f school children in the country. Finally, it is Yrevealed that Nigeria cannot stop the cycle o f poverty, economIicT deprivation and poor health unless everyone has an equal oSpportunity to access education, most especially, its girls. R 1. IntroduEction “EducaNtingI Va girl changes her destiny, as well as those of her future children, and ensuUres that she can contribute to the economic life of her community.”* 1 The high rate of illiteracy prevailing in sub-Saharan Africa countries remains an impediment * B.Sc, MLS, LLB, LLM, PhD, BL; Department of Private and Property Law, Faculty of Law, U niversity o f Ibadan; Telephone Number; + 234 808 926 8046; E mail: segunfunmi@hotmail.com: funkeekundavo55@gmail.com 1 Ann Cotton, ‘The Importance of Educating Girls and Women: The Fight against Poverty in African Rural Communities’, UN Chronicle 49 (April 2007), available at http://www.un.org/ Pubs/chronicle/2007/issue4/0407p49.html. 1 Akungba Law Journal 2017 Vol. 5 No.l to the advancement of women and to development in the region. Kofi Annan, former Secretary General of the United Nations, declared that there is “no tool for development more effective than the education of girls.”2 He compared educating girls to a long-term investment that yields an exceptionally high rate of return the benefits from which accrue to the whole society.3 Literacy of women is an important key to improving health, nutrition and education in the family and to empowering women to participate in decision-making in society.4 Gender equality has been a focal point at several international summits and conferences since the 1990s,5 and the elimination of gender disparity in primary and secondary education was one of the Millennium Development Goals aimed to be achieved by 2015.6 Girls’ ability to enjoy their right to education depends on a wide range of interrelated circumstances, including the family into which they are born, the community in which they grow up and the situation of the country of which they are citizens. 2. Obstacles to Education for Girls Y The obstacles to access to education for girls are broadly groupRed into two categories, first, socio-cultural barriers and secondly, the availabiliAty barrier. These are considered below: IBR 2.1. Socio-cultural Barriers L A main cultural norm which exists in many culturesN in Africa is that educating girls is seen as less valuable, it is believed Athat girls may instead work, providing domestic services. DiscriminatAionD in girls’ access to education persists in many part of the Nigeria, owing to customary attitudes, early marriages and pregnancies. The concept of patriarchIiBsm, which buttresses discriminatory beliefs such as, that once married girls Fbec ome part of another family so investment is lost, and also the opinion th aOt with too much education a girl may have difficulty in getting a husband. CusYtomary practices held over from traditions have relegated women to a position oIfT inferiority. Girls’ domestic obligations are rooted in customs and traditions thatS afford men preferential treatment and provoke school dropout at earlier ages ER than boys. IV 2U KoNfi Annan Secretary General’s keynote address at the Women’s Health Coalition in New York, January 15, 2004, http://www.iin.org SG/SM/9118.3 Ibid. 4 Beijing Platform for Action. Chapter IV. B. Education and training o f women, para 69, 5 The 1990 World Conference on Education for All (Jomtien), Article 3(3) o f the World Declaration on Education for All; the 1995 World Conference on Women (Platform for Action, Beijing (UN Doc. A/CONF. 177/20/Rev. 1,1996), paras 263 and 279); the 1990World Summit for Children (Plan of Action for Implementing the World Declaration on the Survival, Protection and Development o f Children in the 1990, para 10); and the 2000 World Education Forum (Dakar) (Articles 7(ii) and (v) and 8(vi) o f the Dakar Framework for Action. 6 UN Millennium Developments Goals, http://www.un.org/millenniumgoals [accessed on 3rd May 2013]. 2 The Girl-Child’s Right to Education in Nigeria: Examining the Adequacy... The difficulties facing young and teenage girls are often aggravated by other types of exclusion linked to disabilities, ethnic or geographical origin, sexual preferences, and religious beliefs among other things. When poverty combines with marriage and early motherhood, formal education becomes even more distant for girls, who have virtually no choices other than domestic work and raising their children. Early marriages and pregnancies, child labour and domestic-related tasks are among the main barriers to girls’ education. Early marriages are often based on a type of socialization that reinforces the idea held by parents that the eventual aspiration for girls is matrimony. Patriarchal practices that limit female autonomy and keep young and teenage girls away from education usually involve early marriage, or unwanted pregnancies and motherhood. Article 11(3) (e) of the African Charter on the Rights and Welfare of the Child (ACRWC) obliges State Parties to take special measures to ensure equal access of girls to education. ACRWC also highlights the entitlements of girls who become pregnant before completing their education that they should ‘have an oppYortunity to continue with their education on the basis of their individual ability’ R,7 In reality, when a girl who is attending school gets pregnant she is robbed of aAn opportunity to better her future because she will be required to quit schoolR with little or no chance to return to school, whereas, from the provision ofI ABCWRC, pregnancy should not terminate a girl’s hope of having an educatio nL. Culture may give meaning and value to human lives, bNut they may also be contexts of oppression. For example the culture whereby a gAirl is married off at a young age thereby prevents her from enjoying her right Dto primary education. Pollis points out that it is a widely held view that the “cultAure argument” is still eagerly exploited by States to justify repressive intern alI Bpractices and to shield themselves from justifiable criticism for gross humanF rights violations.8 An example is where culture is being used to justify discrimination against girls, whereby male children are given preference to receive ed uOcation over the female children in many African countries, including NiIgTeriaY. Care must be taken not to allow cultural relativism to be deployed to shieSld certain harmful but well entrenched social practices from external critique,R for example, child marriage which prevents a group of children especially, theE girls, from having access to education. 2.2. UNnaIvVailability o f Educational Infrastructures as Barriers to Access In URights Based programming on education, availability relates broadly to the availability of an adequate number of functioning educational institutions, programmes and infrastructure for the right to be fulfilled.9 Availability also refers to the provision of facilities such as sanitation and clean water, as well as enough classrooms. The indicators for availability elements are broadly, safe school 7 Article 11 (6) ACRWC. 8 Pollis, A., ‘Towards a New Universalism: Reconstruction and Dialogue’, (1998) 16 Netherlands Quarterly Human Rights, 5-19 at 17. 9 CESCR, General Comments nol3, (Right to education), para 6(a), see also; Article 13(2) (e) ICESCR. 3 Akungba Law Journal 2017 Vol. 5 No.l buildings, sufficient numbers of qualified teachers, and availability of schools in rural areas. The indicators would also include sufficiency of school infrastructure, sufficient blackboards, tables, desks, chairs and space per class, adequate sanitation facilities, available clean drinking water, well ventilated classrooms, canteens, and recreational facilities. Girls face various obstacles which have adverse effects on girls’ access to school and their retention in the system. Some of these are; the long distances girls must travel to get to school; to the lack of safe transport; to the sparse recruitment of women teachers; to the limited attention paid to girls with special educational needs; and lack of adequate and physically and otherwise accessible toilets for girls which is exacerbated by sexual harassment and violence by teachers and boys as major problems facing females in education. These are factors which inhibit girls’ full participation at school. The resultant effect of this is that it adversely affects the retention and increase the drop-out rate of girls. The lack of specific opportunities, school infrastructure, teaching materials, qualified teachers and direct and supplementary services for exercising the right to educatioYn (such as food, health services and safety on the way to and from school) are Rhindrances to availability of education for girls in Nigeria Investing in formAal education and training for girls, with its exceptionally high social and economiRc return, has attested to be one of the best means of achieving viable developmeInBt and economic growth that is both sustained and sustainable.10 L Literacy of girls and women is an important key toN improving health, nutrition and education in the family and to empowerinDg wAomen to participate in decision­making in society.11 As Tomasevski rigAhtly pointed out “education operates as multiplier, enhancing the enjoyment of all rights and freedoms where the right to education is effectively guaranteed, IaBs opposed to depriving people ...especially girls and women .. .of the enjoymFen t of many if not all rights and freedoms where the right to education is vio lOated...”12Education of girls can hYelp break the cycle of poverty, boost the economy and improve health and IaTffirms the human rights and dignity of women. ACRWC, in Article 11(3) (e), identifies categories of children whose educational opportunities should specificalSly be protected these are; pregnant, gifted and disadvantaged children. TEhiRs provision is important to girl-child, who can belong to these categoIriVes. The reference to “gifted children” is a good reminder of the fact that chiNldren’s capabilities and ambitions should not be judged on their sexes. In sum, Ueducation has a profound effect on girls and women’s ability to claim other rights and achieve status in society, such as economic independence. 10 Beijing Platform for Action adopted September 1995.Chapter IV. B. Education and training of women, para 69. 11 Mahmud, S & Amin, S ‘Girls’ schooling and marriage in rural Bangladesh’, (2007) 5(4) ICCDR Periodicals, 4. 12 Tomasevski, K ‘Human Rights in Education as Prerequisite for Human Rights Education’, in Right to Education Primers, No. 4, (Gothenburg: Lund 2001), available at available at www.right-to-education.org 4 The Girl-Child’s Right to Education in Nigeria: Examining the Adequacy... 3. Non-discrimination and Equality The principles of equality and non-discrimination form the basis of all human rights instruments and cut across all the rights found within human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR) in its article 26 prohibits discrimination in law or in any field regulated and protected by public authorities. Thus, when legislation is adopted by a State party, it must comply with the requirement of article 26 ICCPR that its content should not be discriminatory. In other words, the application of the principle of non-discrimination contained in article 26 is not limited to those rights which are provided for in the Covenant.13 Article 1 of Convention on the Elimination of All forms of Discrimination against Women (CEDAW) provides a definition of discrimination against women on the basis of sex. “For the purposes of the present Convention, the term ‘discrimination against women’ shall mean any distinction, exclusion or restriction Y made on the basis of sex which has the effect or purpose of impairiRng or nullifying the recognition, enjoyment and exercise by woAmen, irrespective of their marital status, on a basis of equality ofR men and women, of human rights and fundamental freedom sL inI t Bhe political, economic, social, cultural, civil or any other field.”14 Article 1 of CEDAW includes both direct and indirecNt discrimination.15 Article 2 further highlights that the State is responsible for vAiolations of rights within both the public and private sphere regardless of whAethDer those violations are committed by State or non-State actors. It is noteworthy that both the CESCR and the Human Rights Committee have adopted the defiInBition of discrimination found in article 1 of the Women’s Convention.16 The pFrin ciple of non-discrimination on the basis of sex is an immediate and not a pro gOressive obligation.17 The Human Rights Committee has noted that the principleY should be guaranteed, including during states of emergency while any public emergency derogation should show that they are non-discriminatory.18SIT ER 13 W. VandeInVhole Non Discrimination and Equality in the view of the UN Human Rights Treaty BNodies (Antwerp, Intersentia, 2005). See also, HRC General Comment No 18 Non­discrUimination para 13.14 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), UNTS 1249 p. 13 (entered into force 03 September 1981), available in: Aguide to resources for treaty research prepared by the Bora Laskin Law Library, available at: http:// zuides.librarv.utoronto.ca/content.php?pid=163673&sid= 1381603 [accessed 17 June 2014], 15 See CESCR general comment 16, paras. 12 and 13 for definitions of direct and indirect discrimination 16 Human Rights Committee General Comment No 18 Non-discrimination, para 6. 17 CESCR General Comment 16 (2005) Article 3: the equal right of men and women to the enjoyment of all economic, social and cultural rights, para 16, see also CESCR General Comment No 3 The Nature of States Parties Obligations (art 2(1) (1990). 18 Human Rights Committee general comment 28, Equality of rights between men and women (Art 3), para. 7. 5 Akungba Law Journal 2017 Vol. 5 No.l The Vienna Convention on the Law of Treaties, 1969 provides that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” 19 The African Commission adopted the Human Rights Committee definition of equality from General Comment 18 noting: ‘The right to equality is very important. It means that citizens should expect to be treated fairly and justly within the legal system and be assured of equal treatment before the law and equal enjoyment of the rights available to other citizens.’20 Also the Committee on Economic, Social and Cultural Rights (CESCR) General Comment 16 on Equal rights of men and women in the enjoyment of economic, social and cultural rights21 and Human Rights Committee General Comment 18 on Non Discrimination22 both expounded discrimination and gender inequality. 3.1. Non Discrimination in Education The fundamental principles established in the UNESCO Convention against Discrimination in Education is aimed at ensuring that education becomes truly inclusive by effectively reaching the unreached especially the poor, maYrginalised and the vulnerable groups, children, young people and rural popuAlatRion denied of equal access to education.23 Discrimination in education is aR violation of rights and is proscribed by the UNESCO. The Dakar FrameBwork for Action also emphasises the elimination of all forms of discrimination LanId prioritises the excluded, vulnerable and marginalised children.24 The prohNibi tion against discrimination enshrined in Article 2(2) of the International CAovenant on Economic Social and Cultural Rights (ICESCR) is subject to neither progressive realisation nor the availability of resources; it applies fully and iDmmediately to all aspects of education and encompasses all internationall yI pBroh Aibited grounds of discrimination.25 In some circumstances, separate educational systems or institutions for groups, defined by the categories in ArtiFcle 2(2), are not deemed to constitute a breach of the Covenant.26 According tOo the Article, separate institutions can be made for different sexes, religioTusY or linguist groups without their focus on particular groups being considered dIiscrimination.27 The bypass of what could be consideredS 19 Vienna CEonvRention on the Law o f Treaties, 1969, 1155 UNTS 331, art. 27. Specific HumanI RVights Issues: Reservations to Human Rights Treaties.20 InN Legal Resources Foundation v. Zambia Communication 211/98, Decision o f the UAfrican Commission on Human and Peoples’ Rights, 29th Ordinary Session, April/May 2001. 21 CESCR general comment 16 E/C. 12/2005/4,11 August 2005, paras. 2, 3 ,1 0 & 22. 22 Human Rights Committee general comment 18 on Non Discrimination CCPR/C/ 21.R ev.l.A ddl, paras. 1& 12. 23 Article 1 UNESCO Convention against Discrimination in Education 1960. 24 Dakar Framework for Action, Education for All: Meeting our Collective Commitments. Adopted by World Education Forum. Dakar, Senegal 26-28 April 2000. 25 Article 2(2) and 3 ICESCR, Article 2 6 ICCPR, Article 2 CRC and Limburg Principles at 35 & 37. 26 CESCR, General Comment nol3, para 33. 27 Article 2(2) and 3 ICESCR, Article 26 ICCPR, Article 2 CRC and Limburg Principles a 35 & 37. 6 The Girl-Child’s Right to Education in Nigeria: Examining the Adequacy... discrimination results from the principle enshrined in Article 2 of the Universal Declaration Human Rights (UDHR) and reproduced in the UNESCO Convention itself,28 by which parents are free to choose their children’s institutions other than those maintained by public authorities. However, such of institutions must conform to minimum laid down standards and must not be aimed at securing exclusion of a group.29 The principle of non-discrimination extends to all persons of school age residing in the territory of a State party, including non-nationals and irrespective of legal status.30 All such discrimination are in direct contradiction with the requirements in Article 29(1 )(a) of the Convention on the Rights of the Child (CRC), that education be directed to the development of the child’s personality, talents and mental and physical abilities to their fullest potential.31 Article 21(1) of ACRWC aims to protect children from harmful social and cultural practices that affect children’s welfare, dignity and development, “in particular customs and practices discriminatory to the child on the grounds of sex or other status”. This is an important addiYtion to the general provision of non-discrimination, as it recognises that attitudeRs towards certain groups of children are harmful practices that result in discriRminAation against them. The principle of non-discrimination in education is an immedIiaBte obligation, and it plays a key role in empowering marginalised groups such aLs women and girls, and helps to combat wider discrimination within societies.N No n-discrimination applies to all aspects of education including access to educAation, the content of education, teaching methods, the outcomes of learning, eDducation staffing, as well as laws, policies and administrative practices. StatesA have a minimum core obligation to ensure that resources are allocated in a nBon-discriminatory manner. Therefore as States develop and expand educatiFona lI programmes, particular segments of the population should not be passe dO over and States must not direct the girl-child to an inferior standard of educYation. 3.2. Equality IT Van Bueren has nRoteSd that the right to education on the basis of equal opportunity is so fundameEntal to the child’s right to education that the drafters of the CRC made all other aspects of the right to education dependent upon it.32 Article 28(1) places a duItVy on State Parties to recognise the right of the child to education with a viUewN to achieving the right progressively ‘on the basis of equal opportunity’. Verheyde has also pointed out that the principle of equality implies that special 1 Article 2(b), UNESCO Convention against Discrimination in Education 1960. Article 7, UNESCO Convention against Discrimination in Education 1960. 10 CESCR General Comment No 13, para 3. 1 CRC Committee General Comment No 1, para 10. ; Van Bueren, G The International Law on the Rights of the Child, (Dordrecht: Martinus Nfijhoff Publishers, 1994), pp245-248. 7 Akungba Law Journal 2017 Vol. 5 No.l attention should be given to specific groups which are particularly vulnerable to discrimination in education and which consequently require special policies.33 Gender equality has been a focal point at several international summits and conferences since the 1990s,34 and the elimination of gender disparity in primary and secondary education was one of the Millennium Development Goals aimed to be achieved by 2015.35 Article 11 (3) (e) of the ACRWC obliges State Parties to take special measures to ensure equal access of girls to education. The Charter also highlights the entitlements of girls who become pregnant before completing their education and should ‘have an opportunity to continue with their education on the basis of their individual ability’ .36 The high rate of illiteracy prevailing in sub- Saharan Africa countries remains an impediment to the advancemept of women and to development in the region. State Parties are supposed to implement immediate measures both to prevent discrimination arising and to eliminate discrimination where it has already occurred.37 The measures are clearly set out: repeal any statutory, administrative instruction or practice which involves discrimination.38 This includes proYhibiting any form of assistance provided by public authorities to educationAal Rinstitutions which restrict or express preference solely on the ground thaBt pRupils belong to a particular group39 and granting equal access to education to children who are residents and foreign nationals.40 The CRC Committee hLasI used the principle of non-discrimination in its General Comment on the aims of Education.41 In this Comment, the Committee gives exampAlesN of how children might be discriminated against in relation to Article 29 of the CRC, and shows that discrimination in education goes beyond denDial of access. For example, gender discrimination can be manifest in curr icIuBla t Ahat are inconsistent with the principles of gender equality, or unfriendFly environments which discourage girls’ Y OIT 33 Verheyde, M., ComSmentary on the UN Convention on the Right to Education Article 28, The Right to EducRation, (Leiden: Martinus Nijhoff, 2006), 40.34 The 1990 WEorld Conference on Education for All (Jomtien), Article 3(3) o f the World DeclaratioInV on Education for All; the 1995 World Conference on Women (Platform for ActionN, Beijing (UN Doc. A/CONF.177/20/Rev. 1,1996), paras 263 and 279); the 1990World SuUmmit for Children (Plan of Action for Implementing the World Declaration on the Survival, Protection and Development o f Children in the 1990, para 10); and the 2000 World Education Forum (Dakar) (Articles 7(ii) and (v) and 8(vi) o f the Dakar Framework for Action. 35 UN Millennium Developments Goals, http://www.un.org/millenniumgoals [accessed on 3rd May 2013]. 36 Article 11 (6) ACRWC. 37 Art 3 UNESCO Convention Against Discrimination in Education . 38 Art 3(a) and (b) UNESCO Convention Against Discrimination in Education . 39 Art 3(c) UNESCO Convention Against Discrimination in Education. 40 Art 3(d) UNESCO Convention Against Discrimination in Education. 41 CRC General Comment N ol (2001), Article 29(1), The aims o f education CRC/GC/ 2001/ 1. 8 The Girl-Child’s Right to Education in Nigeria: Examining the Adequacy... participation.42 Non-discriminatory education benefits both girls and boys and thus ultimately contributes to more equal relationships between women and men. In sum, the principles of equality and non-discrimination are embedded throughout the human rights framework and prescribe that all rights must be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.43 4. The Principle of Interrelatedness of Rights - Right to Life, Survival and Development and the Right to Education As reiterated in the Vienna Declaration, ‘[a]ll human rights are universal, indivisible and interdependent and interrelated’.44 This was also affirmed in Proclamation of Teheran45 as follows; “[...], (b) The full realisation of civil and political rights without the enjoyment of economic, social and cultural rights is impossible; the achievement of lasting progress in the implementation of humanY rights is dependent upon sound and effective national Rand international policies of economic and social developmAent as recognised by the Proclamation Teheran 1968.” IBR This principle entails two things. First, all human rights Lmust be given the same attention. There is no hierarchical order whatsoever be tween civil and political rights, on the one hand, and economic, social anAd cNultural rights, on the other. Second, the interdependence and interreAlatDedness of rights entails that the protection and fulfilment of one right often depends on the protection and fulfilment of other rights. This in turn, calls for cBollaboration among different sectors for fruitful im plem entation of natFion aIl programs, strategies and policies. Interdependence and indivisibility of human rights require engaging a wide range of stakeholders to promote col laOboration among sectors and levels of government, and external partners. Y Speaking in respectS of IthTe right to education, Tomasevski endorsed the principle by stating that thRe right to education embodies elements of economic, social and cultural rightsE as well as civil and political rights.46 This thus asserts that the realization Vof other rights which a person is entitled to cannot be detached from theNI 42 CURC General Comment 1 paralO. 43 UDHR Article 2, ICESCR Article 2(2); ACRWC in Article 3; UNESCO Convention against Discrimination in Education, 1960, Article 1(1). 44 Vienna Declaration and Program of Action adopted by the World Conference on Human Rights on 25,h Junel993, UN doc.A/CONF.157/23, para. 5. 43 Proclamation of Teheran of 1968, Art 1 Resolution 32/130. 46 Tomasevski, Katarina Annual Report of the Special Rapporteur on the right to education- Katarina Toinaevski, 11 January 2001, E/CN.4/2001/52, (Annual Report 2001), p.3. See also; Katarina Tomaevski, ‘Has the Right to Education a Future within the United Nations? A Behind-the-Scenes Account by the Special Rapporteur on the Right to Education 1998- 2004’, (2005) 5 Hum. Rts. L. Rev. 205. 9 Akungba Law Journal 2017 Vol. 5 No.l realisation of other rights to which he or she is entitled. The international community must treat human rights globally in a fair and equal manner, on the same footing and with the same emphasis. While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States regardless of their political, economic and cultural systems to promote and protect all human rights and fundamental freedom.47 Survival and life are basic conditions for the enjoyment of other rights. Article 6 of CRC sets the child’s right to life and, in the “maximum extent possible”, to survival and development. It is one of the general principles of the rights of the child, and it is a basic prerequisite for children’s enjoyment of the right to education. It is noteworthy that decisions by courts in other jurisdictions demonstrate how they have upheld the right to education in its various dimensions even when not explicitly identified in the constitution.48 For example the Supreme Court of India has considered the right to education to be implicit in the right to life, as education is basic to the dignified enjoyment of life.49 In essence, Article 6 of the CRC is therefore inclusive of the girl-child as it links the right to life to both survival and dReveYlopment.A 5. International legal framework R International and regional human rights laws, standards and mBechanisms (including national human rights institutions) make explicit the rLighIts and protections all human beings are entitled to, including where SNtate s are obligated to play a facilitating and protective role. Relevant provisions on education in international and regional human rights instruments includeD ArAticle 26 of the UDHR, Article 1 of the UNESCO Convention against DiscrimiAnation in Education (1960), Article 13 of the ICESCR, Articles 28 &29 of the CRBC, Article 17 ACHPR and Article 11 of the ACRWC. Nigeria has ratified all thFe l isIted human rights instruments that are legally binding.50 This list of instrumenOts reveal that the child’s right to education (including the girl-child) is one of the m ost protected rights in international law. Furthermore, from the perYspective of human rights, education is fundamental, as it enables individuals to bTe aware of the rights they have and empowers them to be able to demand theSse Irights. The importance and the role of education of the girl- child cannotE beR underestimated; it is a principal factor in preparing her for her 47VienNna IDVeclaration and Program of Action adopted by the World Conference on Humar Rights on 25th Junel993, UN doc.A/CONF. 157/23, para 5. 48 USee for example; Brown v.Board of Education.). 347 US 483 (1954), Unni Krishnan J.P v State of Andhra Pradesh, (1993) AIR SC 2178, Mohini Jain v State of Karnataka. (1992' AIR SC 1858 and Government of Republic of South Africa v Grootboom 2001 (1) SA 46 (CC). 49 Unni Krishnan JP and Others v. State ofA ndhra Pradesh, judgment o f4.2.19 93, (1993) 1 SCC 635, 11 and Mohini Jain v. State o f Karnataka, judgment o f 30.7.1992, (1992) 3 SCC 666, in which the Supreme Court specifically stated that “the right to education flows directly from the right to life.” 50 Nigeria ratified; ICESCR and ICCPR on 29/07/1993, CRC on 19/07/1991 and ACRWC on 23/06/2001 available: http://wwwl.umn.edu/humanrts/research/ratification-nigeria.html [accessed 12 January 2014], 10 The Girl-Child’s Right to Education in Nigeria: Examining the Adequacy... future role in the development of her nation. Education is ‘both a human right in itself and an indispensable means of realising other human rights’51 Many human rights can only be accessed through education, such as the right to health, freedom of expression and freedom from discrimination, therefore education is the ‘key’ that unlocks other human rights.52 There are some international laws with provisions that specifically addressed the protection of the right to education irrespective of sex. The ICCPR states that ‘[_] all persons are equal before the law and are entitled without any discrimination to the equal protection of the law’.53 Also the UNESCO Convention against Discrimination in Education 1960 - The purpose of the Convention is to eradicate all forms of discrimination in education, in other words, it is aimed at ensuring the equality of opportunity for all in having access to education. Article 1 of the Convention provides that: “[T]the term discrimination includes any distinction, exclusidi, limitation or preference which being based on race, colour, sex, language, religion or other opinion, national or social origin,Y economic condition or birth, has the purpose of nullifying or impairRing equality of treatment in education and in particular: a) Of depAriving any person or group of persons access to education ofB anRy type or level; b) Of limiting any person or group of persons toI education of an inferior standard;...” N L The issue of non-discrimination in education is veAry vital to the enjoyment of the right to education for the child because thAereD can be discrimination based on gender, ethnicity or physical disability, particularly in Africa. It is noteworthy that the Nigerian Constitution also has specifIiBc provision for the protection of the child from any form of discrimination.54 The CRC Committee in its General CFomment No.l, the Aims o f Education,55 where the Committee notes in respYect oOf Article 29 of the CRC as follows: “[t]he aims of education that it sets ouIt,T which have been agreed to by all state parties, promote, support and protect Sthe core value of the value of the Convention: the human dignity innate in eRvery child and his or her equal and inalienable rights....”56 The CRC ComEmittee, like HRC Committee and CESCR publishes its interpretation of the conItVent of its provisions in the form of General Comments on thematic issues. NGeneral Comments carry considerable weight and serve an important funcUtion of defining and clarifying interpretation of provisions or other related topics in the instrument in order to assist and promote further the implementation 31 CESCR General Comment 13 The Right to Education, (art!3), E/C. 12/1999/10, 8 December 1999, para 1. 52 Tomasevski, K., ‘Removing obstacles in the way o f the right to education’ Right to education Primers Nol, (Gothenburg: Novum Grafsika AB 2009), 9. 53 Article 26 o f the ICCPR. 54 S. 42(5) 1999 Constitution o f Nigeria. 35 CRC, General Comment Nol (2001), The Aims of Education CRC/GC/2001/1. 36 Ibid para 1. 11 Akungba Law Journal 2017 Vol. 5 No.l of the Convention. General Comments, though not legally binding, serve as important jurisprudential functions to the meaning of rights and duties under the CRC. It is important to consult the General Comment when assessing the State party’s obligation in respect of a particular right because it elaborates the specific right in question. The CRC Committee states further that Article 29 emphasises the message of child- centered education:- that the key goal of education is the development of the individual child’s personality, talents and abilities, in recognition of the fact that every child has a unique characteristic, interest, abilities and learning needs.57 In other words, the goal of education is to empower the girl-child by developing his or her skills, learning and other capacities, human dignity, self-esteem and self- confidence. In essence, making education accessible and available for the girl- child would enable her to develop her character and also be able to live a fulfilled life within the society. 6. National Implementation: revealing the connection between theory anRd pYractice. While this paper argues that the right to education of girls is coverAed by existing legal instruments, it also gave instances of international lawsB proRtecting the right. It is thus necessary to examine whether in practice, the implementation of the right to education of girls in Nigeria leads to adequate protectioLn fIor them through laws, policies and programmes. In the Nigerian constitution fre edom from discrimination is a fundamental right.58 Although Nigerian CoNnstitution guarantees non­ discrimination on grounds of sex, religion, ethnicDityA, political opinion, circumstances of birth and place of origin, however, it is noted that while guaranteeing equality before the law, it is silent on the relatBionA between potentially discriminatory customary or religious laws and thFe n oIn-discrimination provision.Early marriage, for example, Ohinders a girl’s chances of continuing with her education and this in turn hYam pers her life chances. The constitution guarantees equality, therefore the prTinciple of constitutional supremacy should prevail. If the constitution is the suprIeme law of the country, one would expect that other laws such as customary aSnd other personal laws should be in compliance therewith. In this respect, thEe lRaw should prohibit any discrimination and guarantee to all persons equal and eVffective protection against discrimination.Even thoIugh the Constitution incorporates a provision of non-discrimination,59 the CoNmmittee of the CRC, in its combined third and fourth reports’ concluding obUservations on Nigeria in 2010,60 raised concerns that de facto discrimination against children was still prevalent in Nigeria and is widely tolerated in the State 57 Ibid para 9. 58 Section 42(2) 1999 Constitution of Nigeria provides: “No citizen o f Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.” 59 Section 42 (2) 1990 Constitution o f Nigeria. 60 Committee on the Rights o f the Child Concluding observation: Nigeria CRC/C/NGAJ CO/3-4, para. 28 12 The Girl-Child’s Right to Education in Nigeria: Examining the Adequacy... party. Of particular concern was vis-a-vis the girl child, children with disabilities, and street children. The Committee requested the State party to provide more information in its next periodic report on measures taken to give practical effect to the principle of non-discrimination in relation to these groups.61 Education is critical to the future of all children, but especially to those who are vulnerable, that is; children such as the orphaned, street children, girl-child, children living in conflict areas and children who belong to sections of a community, such as from indigenous or minority groups or lower status. Initiatives undertaken to increase enrolment and retention of girls have been developed by Nigerian government and are being implemented. Such initiatives include the National Strategy on Girls’ Education and FGN Fender Education Project.62 To boost girl-child Education nationwide, tripartite partnership programme and funding between the Federal and State Governments and UNICEF had been launched since 2011 and has commenced disbursement of funds for the training of female teachers to States Universal Primary Education Boards. Sokoto state, one of the states with poor girl-child education record, trains 800 female tYeachers (2012-13) with N49.5m granted to 224 school-based management AcomRmittees as critical components in achieving UBE for all.63 Despite all the enRcouraging efforts from Government, early marriage is still a big cause of schooIlB drop outs, due to the ingrained negative cultural attitude. Early marriage is serious problem primarily, because it h iLnders a girl’s chances of continuing with her education and this in turn hampNers her life chances. Nigeria enacted the CRA as its national legislation on D16 JAuly 2003 with the aim of giving effect to the principles of the CRC and the ACRWC. However, since its enactment, the CRA has had problems with oppositioAn from some Northern states, where there is a large population of MusFlim sI, B on grounds that some provisions of the CRA were deemed as contraryO to Islamic norms, especially the provisions on marriageable age and gender discrimination against girls. The CRA stipulates eigThtYeen years as the marriageable age64 whereas under customary and Islamic laws, a girl child who has attained puberty is marriageable. This custom has been aIn impediment to the education of the girl-child for many years in Nigeria. RApaSrt from the predominantly Muslim North of Nigeria, the South Eastern statesE are opposing the CRA on the ground that it is contrary to the customs, IeVspecially where daughters cannot inherit landed property from their parentNs. There was opposition to the enactment because the Act introduced values thaUt were against religious and cultural beliefs of the people.65 These cultural and 61 Ibid. 62 CRC Concluding Observation of Report Submitted by Nigeria June 2010, CRC/C/NGA/ Co/3-4, para 28 see also, Nigeria’s 5th Periodic Country Report: - 2011-2014 on the Implementation of the African Charter on Human and Peoples’ Rights in Nigeria, June 2014. 63 Nigeria’s 5th Periodic Country Report: - 2011-2014 on the Implementation o f the African Charter on Human and Peoples’ Rights in Nigeria June 2014, para 2. “ Section 21 CRA. “ Owasanoye, B., ‘The Regulation o f Child Custody and Access in Nigeria 39(2) Family Law Quarterly, 405. 13 Akungba Law Journal 2017 Vol. 5 No.l religious obstacles have prevented some of the states from adopting the CRA into their state legislations. This opposition is directly against the non-discrimination stipulated in both the CRC66 and the ACRWC,67 and also runs contrary to the Nigerian Constitution which provides that no child shall be discriminated against as a result of gender, religion, or circumstances of birth.68 A child should be able to enjoy all the human rights laid down or proclaimed in the constitution and other legislations of the individual countries and particularly in international conventions or declarations. 7. Recommendations Nigeria cannot stop the cycle of poverty, economic deprivation and poor health unless everyone has an equal opportunity to access education. Based on the summary of findings discussed above, the main recommendations of this paper are: 7.1. Make education to be accessible to girls, without discriminationY Nigeria must ensure equal access to primary education to all children ofR school age residing in its territory. The importance of educating the poor, the RexcAluded children in urban slums and the rural poor and the girl- child must receive special consideration, with indisputable commitment to ensuring theIirB access to education. In addressing issues concerning access to education of thLe girl child, government should have visible policy of mainstreaming a gendeNr pe rspective into all policies and programmes so that before decisions are taken, an analysis is made of the effects on girls and boys, respectively. DA Retention of girls must be encourageBd bAy allocating appropriate budgetary resources and by enlisting the support of the community and parents through campaigns and incentives including scIholarships, for out-of-school girls. About the attitude and approaches o F Of parent towards education of their children, the state has an obligation to pYrotect the child from a third party that wants to prevent the child from receiving Teducation. So compulsory education should be emphasised and legal sanctions agIainst erring parents should be enforced. There is also the RneeSd for the State to adopt measures that would eliminate barriers to the implemEentation of relevant laws and ensure that national laws and policies that protect children are effectively implemented and enforced. Retention of girls must be eInVcouraged by allocating appropriate budgetary resources and by enlisting the suNpport of the community and parents through campaigns and incentives incUluding scholarships, for out-of-school girls. Nigeria must ensure equal access to primary education to all children of school age irrespective of sex.69 The attitude 66 Art.2 CRC. 67 Art. 3 ACRWC. 68 Section 42(2) 1999 Constitution o f Nigeria. Section 10 o f the CRA also prohibits discrimination against any child on grounds of gender, religion or circumstances o f birth. But under Sharia law the son inherits twice what the daughter inherits. In South Eastern Nigeria, only sons can inherit landed property. This is to prevent a non-family member (i.e a son-in-law) from inheriting from the wife’s family. 69 CESCR General Comment 13,The Right to Education, E/C.12/1999/10, para.34. 14 The Girl-Child’s Right to Education in Nigeria: Examining the Adequacy... and approaches of parents towards education of their children should be addressed. There is the need for the government in addition, to adopt measures that would eliminate barriers to the implementation and ensure that national laws and policies mat protect the girl-child are effectively implemented and enforced. Through information and awareness-raising campaigns, government should ensure that r’amilies desist from giving preferential treatment to boys when sending their children to school. It is a well-known fact that the Nigeria cannot stop the cycle of poverty, economic deprivation and poor health unless everyone has an equal opportunity to access education. 7.2. Increase in Funding o f Education It is recommended that the funding allocation for education needs to be increased because ensuring free primary education for all children in Nigeria is the foremost challenge to the country. The Government should increase the budgetary allocation to education because of its importance to the national economy, and impleYment safeguards, which with proper monitoring, would contribute more significantly to the empowerment of the public. The allocation of educational resourceAs sRhould be based on systematically worked out strategic priorities. R In addition it is suggested that it should be included in the ConsItBitution of Nigeria, constitutional provisions for financing education, for example, the Constitution of Brazil70 contains elaborate provisions in this regard which Lis commendable. The Brazil Constitution provides for sharing of resources andN responsibility at all levels in the Brazil’s federal system. 18 per cent of the taDx reAvenue at the federal level and 25 per cent at state and municipal level are reAquired to be allocated to education, with priority to basic education (elementary and secondary education). These constitutional provisions also cover sIcBholarships to be provided to needy students.71 This is worth emulatinOg foFr Nigeria. 7.3. Better Management and Administration o f Education Policies intended for impIlTemYenting education should be based on accurate data and sound analysis. TSo achieve universal free and compulsory education for all children, accurate information collection systems need to be implemented; when the data has beeEn cRollected, a suitable plan can be proposed.72 There is need to improve datIaV collection and information systems (disaggregated by variables that include Nsex, age, household characteristics and ethnicity) in order to identify vulneUrable groups and to inform state policy and programming at all levels. Accurate data and monitoring of learning achievement are also critical, for planning and budgeting, as well as for evaluation and accountability. Without accurate and 70 2010 Constitution of the Federative Republic o f Brazil 71 Ibid, Article 212 72 Wilson, Duncan & Melchiorre, Angela, Analysing education budgets through the lens of human rights: a two-step process, RTE Framework for budget analysis, http:// r 2 e . g n . a p c . o r g / s i t e s / r 2 e . g n . a p c . o r g / f i l e s / R T E % 2 0 f r a m e w o r k % 2 0 f o r %20budget%20analysis.pdf accessed on 14July 2014. 15 Akungba Law Journal 2017 Vol. 5 No.l reliable data, no meaningful planning can be done and it will be difficult to avoid policy breakdown at the implementation stage.73 The necessity to gather reliable data is supported by Kasper in her statement that ‘applying the tenets of the CRC requires disaggregation of national data by age, gender and ethnic background so that the vulnerable group will be identified and polices developed’.74 The non-availability of these statistics on Nigeria can be traced to the following factors; misunderstanding of the concept of gender, poor funding, lack of awareness of the need for gender disaggregation, non­ mainstreaming of gender issues and concerns into data collection instruments.75 This requires urgent attention because non-availability of reliable and comprehensive disaggregated statistics will lead to exclusion of gender issues in the formulation and implementation process of policies and programmes on education. 7.4. The State's Willingness or Political Commitment The exclusion of girls which has hitherto obstructed gender parity and eqYuality in education reflects not only poverty and other structural factors, buAt aRlso a lack of political will on the part the State that views education as a non-essential service not as a human right. Political will and stronger national leadersRhip are needed foi the effective and successful implementation girls’ educIaBtion in Nigeria. The Government should implement laws to protect childre nL from culture and beliefs that are prejudicial to education. They should comNmit to preserving the dignity girls and engage the public to accept their respoAnsibility to protect them. The adoption of positive measures means thaDt not only should all discriminatory laws be abolished, but that Nigeria shouAld also do more than enact legislation prohibiting discrimination against g iIrlBs and women. This can entail combating discrimination actively, and chanFging the general negative perception of female group. To break with this structure of lopsidedness, calls for a complete overhaul of societies and cultures in or dOer to encourage men and women to live together on an equal footing. As is evYident from the provision of CEDAW, the elimination of prejudicial customSs anIdT all other practices based on the idea of the inferiority or superiority of eiRther of the sexes or on stereotyped roles for men and women poses the main chaEllenge to the identification of education policies.76IV 73 UHinNchliffe, Keith, ‘Public Expenditures on Education in Nigeria: Issues, Estimates and Some Implications’, Africa Region Human Development Working Paper Series (Human Development Sector Africa Region), (The World Bank 2002). 74 Kasper, J., “The Relevance of U.S. Ratification of the CRC for Child Health” (2010) 89(5) Child Welfare 27. 75 Nigeria’s 5th Periodic Country Report: - 2011-2014 on the Implementation of the African Charter on Human and Peoples’ Rights in Nigeria, June 2014, p.25, available: http://www.achpr.org/states/nigeria/reports/5th-2011-2014/ [accessed 12lh February 2015]. 76 Article 5 of CEDAW 16 The Girl-Child’s Right to Education in Nigeria: Examining the Adequacy... There is the need for the State to do away with discriminatory attitudes and stereotypes, as well as customs and practices handed over from traditions that have consigned women to a position of inferiority. Nigeria have ratified the Protocol on the rights of women in Africa to the African Charter on Human and People’s Rights,77 therefore must incorporate it provisions into a national legislation. Transforming the right to education from an idea into a living reality requires national level action in line with international normative framework. To fulfil their roles as stated in article 4 of the Convention, “States Parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention.” Investing in formal education and training for girls, with its exceptionally high social and economic return, has attested to be one of the best means of achieving viable development and economic growth that is both sustained and sustainable.78 8. Conclusion This paper has endeavoured to reveal that the right to education of girls in NYigeria requires the government to address it urgently. It is established that the Rright can indeed be grounded on international human rights laws and the state’s iAnternational obligation in that regard. The main hindrances that impinge onI tBhe Rimplementation of girls’ access to education and the various causes that exc lLude the girl-child from receiving education in Nigeria has been critically analNysed in this paper. Overall, as with many development efforts, the complete sAolution to implementing free qualitative education for the girl-child will be an on-going challenge. Nevertheless, to bring Nigeria in compliance with internatiDonal human rights standards on education, the State needs to be willing toA constitutionally and affirmatively recognise the right to education anFd pIri Boritise its resources purposefully and differently to what is currently the practice. The last sentence should appropriately be that education of girls shouldO not only be a national issue, but also, a global priority, as the present assault o n the freedom to learn and to access education by girls must end. ITY ER S NIVU 77 Protocol to the African Charter on Human and Peoples’ Rights on the Right o f Women in Africa. OAU Doc CAB/LEG/66.6/Rev.l.available at http://www..refworld.orp/docid/ 3f4bl39d4.html accessed August 8, 2017. Nigeria ratified the protocol on February 18 2005. 78 Beijing Platform for Action adopted September 1995.Chapter IV. B. Education and training o f women, para 69. 17