INTRODUCTION
The lack of consistency in defining the term “child” poses an issue within the legal framework of Nigeria, encompassing both the definition outlined in international child rights law adopted in Nigeria and domestic laws.
An attempt was made in Article 1 of the Convention on the Rights of a Child [1], which defines a child as “every human being below the age of eighteen years, unless, under the law applicable to the child, the majority is attained earlier.”
This definition of who a child is leaves a lot to be desired,[2] as it lends an even higher degree of complexity to what child labour really is. This is because the lack of a definite age distinction blurs the lines on circumstances that can be characterized as child labour. For instance, Child labour is often described as the employment of children in work that is detrimental to their physical and mental development, interferes with their ability to attend regular schools, and is often mentally, physically, socially, or morally harmful[3]. Noting carefully that who a child is has not been clearly identified, it can be concluded that this definition can be employed in an evasive context.
These uncertainties regardless of various interventions, spanning several decades, have been carried out to curb child labour and exploitation. Foremost amongst these is the legal framework put in place to fight against this menace that threatens the welfare and development of a child.
LEGAL FRAMEWORK FOR THE PROTECTION OF CHILDREN AGAINST LABOUR AND EXPLOITATION
The legal framework addressing child labour and exploitation in Nigeria is quite extensive, comprising both domestic legislation and international treaties to which Nigeria is a party. For the sake of this paper, we shall be considering the following:
CHILD RIGHTS ACT 2003
Passed in 2003, this Act serves as the main legislation for the protection of children and young adults in Nigeria and it establishes the legal framework for the protection of children’s rights in Nigeria. The Act prohibits the engagement of children in any form of labour that is detrimental to their development, setting the minimum age for employment at 15 years.[4] It however provides that children of 14 years can be engaged provided that it does not interfere with the children’s education[5].
The Act further provides that no child shall be exposed to any form of exploitative labour, employed as a domestic help, or even be involved in carrying anything too heavy for his physical physique[6]. This provision in the Child Rights Act is quite comprehensive, as it also envisages the possibility of industrial employment. Going by this provision, all forms of labour capable of impeding the development of a child are prohibited by this law. This begs the question of the effectiveness of this Act as the most common form of domestic help services are rendered by children younger than 14.[7]
THE LABOUR ACT [8]
The Act defines a child as a young person under the age of 12 and less than 18 years as the age for a young person [9]. The Act prohibits child labour but further provides that a child of less than 14 can be employed on the basis of the daily wage or on a day-to-day basis, provided that such labour does not preclude the child from returning to the place of residence of the parents or guardian [10]. Consequently, any labour preventing the same, including night shifts, is completely prohibited by this Act [11].
The Act further provides that no child below 16 should be expected to work underground or on public holidays. This various classification of acceptable labour with varying age brackets has made the implementation of this Act and specific interpretation of this provision of the Act conflicting.
INTERNATIONAL CONVENTIONS ON CHILD LABOUR
The legal framework for the protection of children against child labour and exploitation in Nigeria is largely dependent on international conventions and treaties to which Nigeria is a signatory. Some of the key international instruments Nigeria is party to include:
Convention on the Right of a Child:
This is the primary legal instrument that is targeted towards safeguarding children’s rights. It has received ratification from nearly every nation globally, including Nigeria. It encompasses the safeguarding of every aspect of a child’s rights, encompassing their civil, political, economic, social, and cultural rights. This convention provides in Article 32(1) that;
“States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education or to be harmful to the child’s health or physical, mental, spiritual, moral, or social development”.
It is important to note that this provision stipulates that, for a work to be recognized as exploitative, it must be harmful to the welfare and wellbeing of the child and be considered hazardous. It should be further noted that this article is vague and leaves the ambit of the interpretation to be stretched as far as possible or shrunk as little as state parties desire.
Article 32(2) provides guidance to state parties on the proper mode of implementation of the provisions of this instrument, including the enactment of domestic legislation and putting measures in place to safeguard the welfare of a child.
It’s important to note that despite these legal provisions, child labour remains a significant challenge in Nigeria, particularly in informal sectors and rural areas. Enforcement of these laws and raising awareness about the importance of education and child protection are ongoing efforts in the country.
The Minimum Age Convention No. 138 of 1973:
The Convention addresses the omission in Article 32 of the Convention on the Rights of a Child, which does not specify the age at which children can start working. It specifies that the minimum age for starting employment should not be below the age when compulsory schooling ends and, in any circumstance, should not be under 15 years of age[12]. It also established a minimum age of 14 years for developing countries[13].
Additionally, the Convention stipulates an age range of 13 to 15 years for children engaged in light work, even though the Convention does not provide a specific definition for what constitutes light work [14]. It however grants the authority to Member States to replace the ages of 13 and 15 with 12 and 14 concerning engagements in light work, and the age of 15 with 14 for children who are participating in education or training programs approved by the school authority[15].
TOP OF FROM
Convention on the Worst Forms of Child Labour, No. 182 of 1989:
The Convention is concerned with the prohibition and immediate action for the elimination of the worst forms of child labour. In its preamble, it calls on States’ Parties to prohibit and eliminate the worst forms of child labour as a matter of urgency while setting the age of participation in hazardous work at 18 years [16].
African Charter on the Rights and Welfare of the Child (ACRWC):
The Charter prohibits economic exploitation and the engagement in hazardous labour that might disrupt a child’s physical well-being or mental development. It curiously leaves out the age that falls under the class of a child.
SETBACKS TO THE PROTECTION OF CHILDREN AGAINST CHILD LABOUR AND EXPLOITATION
In a country such as Nigeria, plagued with gross multiplicity of laws in several areas inclusive of child protection laws, the lacuna of uniformity in the definition of who can be classified as a child and what nature of labour is allowable remains a growing concern. Hence, the reason for the need to clearly distinguish who qualifies as a child is to sufficiently protect this class, which is globally recognized as vulnerable.
The general position adopted in Nigeria owing to the Child Rights Act is 18 years. While this might seem like a uniform provision, it is worthy of note that just 24 out of 36 states in Nigeria have ratified this Act.
The continuous existence of these complexities is also evidenced by conflicting legal positions. For instance, Section 2 of the Children and Young Persons Act defines a “child” as a person under fourteen years, while “young person” means a person who has attained the age of fourteen but is below the age of seventeen years. The Labour Act also defines a child as a person below 12 years old [17].
Furthermore, Section 59 of the Labour Act permits the employment of individuals under the age of 14, as long as it’s on a daily wage or day-to-day basis, and they return to their parent’s or guardian’s residence each night, with the exception of children engaged in domestic service. Consequently, this provision allows children below 14 to work, including in domestic service, which contradicts Section 28 of the Child Rights Act, which expressly forbids children from being employed in domestic service. This makes one wonder whether the lawmakers did not envisage that the allowance granted by this provision is very susceptible to abuse. The result of the disparity between the two laws is that it creates complexity and confusion when determining the minimum ages that are applicable for specific types of employment within the country.
Another major issue is the definition of the scope of engagement that constitutes labour. It becomes a slippery slope when an attempt is made to distinguish between activities that can be regarded as acceptable and those regarded as exploitative. According to the International Labour Organization (ILO), when children or adolescents engage in work that does not harm their well-being or education, it is generally seen as a positive activity and is not categorized as child labour. This might tend to imply that just because a worker is a child, it, does not immediately translate to child labour but includes any work that robs children of their childhood, hinders their potential, compromises their dignity, and has adverse effects on their physical and mental development, affecting their educational advancement [18].
Poverty, unemployment, population, inflation, and the high cost of living are the major causes of child labor in Nigeria, and the legal framework merely attempts to treat the syndrome while leaving the sickness unattended to. The effect of this is that while it looks bad on paper, child labor is still very much attainable, and minors are still being exploitatively engaged as parents and even children explore the same as a means of livelihood when faced with grim alternatives [19].
RECOMMENDATIONS
There is a need for all states of the Federation to adopt the Child Rights Act, as this is the first step towards eliminating child labor and exploitation in Nigeria. There should be uniformity in the age classification of a child to properly interpret and implement the protective provisions of the law. There is also an even greater need to attend to the root cause of child labor by improving the standard of living of members of society, providing free basic education for children and increasing the minimum wage to ensure that adults can better provide for their children [20].
CONCLUSION
Despite efforts evidenced by the legal framework analyzed above, child labor remains a significant issue in many parts of the world, particularly in regions with high poverty rates and limited access to education and social services.
It can therefore be duly conceded that child labor and exploitation might not end in a day, but it’s a journey worth embarking on as children, which form a class of people generally described as vulnerable, deserve to be protected.
Snippet: The general position adopted in Nigeria owing to the Child Rights Act is 18 years. While this might seem like a uniform provision, it is worthy of note that just 24 out of 36 states in Nigeria have ratified this Act.
Keywords: child labor, child exploitation, exploitative engagement.
AUTHOR: Oyetola Muyiwa Atoyebi, SAN FCIArb. (U.K)
Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).
Mr. Atoyebi has expertise in and vast knowledge of Litigation Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions. He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.
He can be reached at atoyebi@omaplex.com.ng
CONTRIBUTOR: Pwaveno Ditto
Pwaveno is a member of the Dispute Resolution Team at OMAPLEX Law Firm. She also holds commendable legal expertise in Litigation Practice.
She can be reached at pwaveno.ditto@omaplex.com.ng
[1]Convention on the Rights of a Child, 1990 available at https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child#:~:text=PART%20I-,Article%201,child%2C%20majority%20is%20attained%20earlier. Accessed on the 19th of September, 2023.
[2] Jo Boyden, Birgitta Ling & William Myers, “What works for working children” (1998) Stockholm Rädda barnen, Florence, UNICEF. Pg. 930
[3] Janet Hilowitz, Joost Kooijmans, and Peter Matz.. “Child Labour: A Textbook for University Students.” International Labour Organisation, (2009) 19.
[4] Section 29 of the Act makes applicable to children under the CRA, the provisions of Section 59 of the Labour Act.
[5] Section 28 and 29 of the Child’s Rights Act.
[6] Section 28 of the Child Rights Act
[7] See Samantha Decker, “10 Facts about Child Labor in Nigeria” (2020)THE BORGEN PROJECT available at https://borgenproject.org/child-labor-in nigeria/#:~:text=Estimates%20determine%20that%20the%20current,child%20labor%20in%20Western%20Africa accessed on the 19th of September, 2023.
[8] Cap. L1 LFN 2004
[9] Section 91 of the Labour Act
[10] Section 59 of the Labour Act
[11] Section 60 of the Labour Act
[12] Article 2 (3) of The Minimum Age Convention No. 138 of 1973
[13]Article 2 (3) of The Minimum Age Convention No. 138 of 1973
[14] Article 7 (1) of The Minimum Age Convention No. 138 of 1973
[15] Article 7 (4) of The Minimum Age Convention No. 138 of 1973
[16] Article 2 of Convention on the worst forms of Child Labour, No. 182 of 1989. The Minimum Age Convention No. 138 of 1973, S. 3 (1) (defines hazardous work as any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardise the health, safety or morals of young persons.
[17] Section 91 of the Labour Act
[18] Janet Hilowitz, Joost Kooijmans, and Peter Matz.. “Child Labour: A Textbook for University Students.” International Labour Organisation, (2009) 19.
[19] Eric Edmonds. “Defining Child Labour: A Review of the Definitions of Child Labour in Policy Research.” (2009) International Labour Office, International Programme on the Elimination of Child Labour (IPEC), 5
7 International Labour Organisation, Ending child labour by 2025: A Review of Policies and Programmes, 8-14, International Labour Office (ILO), (2017).
Article was written by: Oyetola Muyiwa Atoyebi, SAN FCIArb (U.K)
Source: @Thenigerianlawyer
