CHAPTER ONE

 GENERAL INTODUCTION

1.1 BACKGROUND OF THE STUDY

The right to freedom of thought, conscience and religion is one of the fundamental freedoms that has gained recognition in the International Bill of Rights and this freedom has also been recognized and/or given effect to in the Nigerian domestic laws inclusive of the Nigerian Constitution which is the ground norm of the nation to allow for the domestic application and/or enforcement of this freedom in Nigeria. Thus, the right to freedom of thought, conscience and religion entails the liberty of conscience accorded to the individual to have or adopt any religion or belief including the right to change one‘s religion or belief as well as the freedom to manifest one‘s religious belief in teaching, observance, practice and worship.

However, with the development of child rights in international law which culminated into the adoption of the Convention on the Rights of the Child [CRC] in 1989, an additional legal framework on freedom of thought, conscience and religion which is child specific emerged. Under this Convention (the CRC), protection of the rights of the child to freedom of thought, conscience and religion was recognized and is akin to that embodied in the UDHR and the ICCPR. The relevant provisions of the CRC include Article 14 (1) which provides to the effect that ―States Parties shall

respect the right of the child to freedom of thought, conscience and religion.‖ Article 30 of the CRC further provides that:

In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.

These provisions of the CRC reinforce the tripartite rights of the child to the freedom of thought, conscience and religion on the one hand and the liberty of parents/guardians to secure the religious upbringing of their children as well as the obligation placed upon States in recognizing and respecting this right.

Likewise, this international Convention was also ratified and further domesticated by Nigeria under the Child Rights Act [CRA] 2003 which is the most comprehensive legislation as far as the protection of the rights of the child in Nigeria is concerned. Child Rights Act reinforces the rights of a child to the freedom of thought, conscience and religion and the responsibility of parents and legal guardians thereto as well as that of the State in recognizing and respecting this right. Although it seeks to provide for the rights of the child, it could be wondered how parents and legal guardians especially in Nigeria could uphold the provisions of the CRC/CRA in matters that has to do with children’s latitude to change their religion in view of parental role in this matter.

Nevertheless, given the historical controversies and difficulties that trailed the development of this freedom under international law as well as in other domestic jurisdictions like the United States (US), United Kingdom (UK), France, India, Australia, Germany, etc., and in view of the current state practices of the international community with respect to freedom of thought, conscience and religion that still reflect negative observance of this freedom; the vulnerability and peculiarities of children when it comes to the protection of their rights in respect of this freedom presents another scenario of complex legal problems as to the requirement of special and specific context under which this freedom can be said to apply to child as per its best interest and evolving capacity of mind on the one hand and the challenges of indigenous and orthodox cultural and religious practices that may reflect adverse aspiration to those of the established international norm on this freedom. Thus, the application of this freedom in relation to children requires additional caution and a special consideration of the diverse structure of the international community.

This study will therefore be an endeavor to examine the various context and peculiarities of freedom of thought, conscience and religion as it applies to children with particular reference to the extent of its implementation in Nigeria. Moreover, a discussion of this freedom in Nigeria especially as it relates to children has become of immense importance in view of the various religious conflicts and riots that have engulfed the Nigerian nation but unfortunately, there are not many studies dealing with the protection of this freedom as it relates to the child in Nigeria. It is thus the desire of this study to attain the goal of curbing religious intolerances, discrimination and violence among the youth so as to secure national peace and religious co-existence among the citizenry in

Nigeria.

1.2 STATEMENT OF THE RESEARCH PROBLEM(S)

Issues pertaining to ―religion‖ and the right to ―freedom of thought, conscience and religion‖ pose some of the most difficult and controversial challenge to the universality of the human rights movement generally and to peaceful co-existence in several nations to which Nigeria is not an exception. Although the right to freedom of thought, conscience and religion has nowadays attained recognition under international human rights law inclusive of the Nigerian constitution, yet controversial issues related to this freedom are still prevalent.

Amidst these challenges, international concern and efforts regarding the protection of the rights of the child has materialized into an international convention that have been ratified by many nations including Nigeria wherein state parties are obliged to secure the protection of the rights of the child inclusive of freedom of thought, conscience and religion.

Against this background, certain controversial issues and legal problems related to the protection of the rights of the child to freedom of thought, conscience and religion emerged to the extent that the legitimacy of the State power or policy to control the protection of the rights of the child especially on freedom of thought, conscience and religion becomes questionable as a secular paradigm that seeks to indoctrinate the child to the tents of secularism to the disregard of diverse traditional, religious and cultural practices of the people in a given locality and this may hold true especially in Nigeria if a child is allowed the liberty to adopt any religion independent of the wishes of parents and/or guardians. Thus, given the status of freedom of freedom of thought, conscience and religion in international law and under the Nigerian laws, does state policy oblige parents and guardians to remain aloof or standby to witness adverse religious upbringing of their child more particularly for him/her to change its religion or apostatize just in the name of freedom of thought, conscience and religion?

Therefore, the emergence of child rights protection as it comes to freedom of thought, conscience and religion has brought forth conflict between the role of parents and guardians towards the control and supervision of the religious upbringing and education of their child on the one hand and the need to secure the best interests of the child to enjoy freedom of thought, conscience and religion as a person or human being different from his/her parents and as a citizen of Nigeria. Thus, in the event of this conflict, is it the best interest of the child or of parents that will be given paramount importance?

Moreover, whether the international norms on the protection of the rights of the child particularly freedom of thought, conscience and religion which the Nigerian law seeks to domesticate are compatible with Nigerian indigenous cultural and religious beliefs is a legal question that one way or the other affects the protection of the rights to the child to freedom of thought, conscience and religion in Nigeria.

Besides, on the marginal side of it, there is the problem of lack of attention or dedication by researchers and child rights advocates to this vital aspect of child protection in Nigeria. Most studies concentrate on child justice administration and the protection of the child from abuse and neglect. As the sub-section on literature review indicates, there were little discussion or exploration by academics, advocates and policy makers on freedom of thought, conscience and religion as it applies to children in Nigeria. this lacunae, in our view, poses problem of lack of concern towards articulating the best strategies to enhance and promote the protection of the child right to freedom of thought, conscience and religion in Nigeria. Pertinent to this is the growing negative judicial attitude towards the interpretation of the norms or tenets of freedom of thought, conscience and religion in relation to children in a manner that more or less absolves elements of Western secularism to the disregard of Nigerian indigenous cultural and religious beliefs and practices.

1.3 AIM AND OBJECTIVES OF THE RESEARCH

The principal aim of this research work is to analyze the protection of the rights of the child to freedom of thought, conscience and religion under international law with particular reference to its application in Nigeria. The research work focuses upon the following specific objectives:

1. To assess the level of implementation of freedom of thought, conscience and religion as it relates to child protection in Nigeria.

2. To highlight the basic tenets, nature and scope of the right to freedom of thought, conscience and religion with particular reference to its application on children.

3. To examine and analyze the major contexts or areas under which the right to freedom of thought, conscience and religion is applied with reference to children.

1.4 SCOPE OF THE RESEARCH

The scope of this research is restricted only to the discussion on the rights of the child to freedom of thought, conscience and religion under Nigerian laws.

1.5 RESEARCH METHODOLOGY

Doctrinal method of legal research will primarily be employed. Recourse would be made to primary and secondary legal materials on the subject, that is to say: books, articles, journals, conference and seminar papers, statutes, case law, etc.

1.6 LITERATURE REVIEW

A review of available literatures that have bearing on the subject, ranging from books, articles, seminar and research papers is presented below.

Jeremy T. Gunn, in his scholarly articled titled ―The Complexity of Religion and the Definition of Religion in International Law”, this author addresses the difficulty of defining religion and puts forth a conceptual context and theoretical approach to understanding rather than defining religion. But to differ with this author, it may be maintained that whether religion is adequately defined by law or simply understood with reference to what it connotes, what matters most is that, individuals claim of a particular religion or belief must be recognized and respected by state authorities.

Karen Musalo in his article titled ―Claims for Protection Based on Religion or Belief‖, there were discussion on the international norms on freedom of religion or belief focusing on the provisions of the UNIVERSAL

Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and other relevant international instruments. He further discussed the scope of the right to freedom of religion or belief under international law but much of his discussion focused on religious based claims under the Refugee Convention. Our concern therefore in this work, is to consider its relevance and/or application as regards children.

I. A. Ayua and I. E. Okagbue, in their book titled ―The Rights of the Child in Nigeria, these authors have discussed most of the issues related to child protection in Nigeria with even empirical data to support their views. The areas of child protection that featured prominently in the book are rights of the child to education, health, child labour, child welfare, child abuse, treatment of juvenile offenders, etc. However, the vitality of freedom of thought, conscience and religion has been highly relegated in not being featured prominently in this book. It will thus be the effort of this study to further the literature in this regard by filling this gap.

Tokunbo Ige and Olumide Lewis, while discussing the concept of human rights have made mention of freedom of religion as one of the fundamental freedoms of the individual in a given state or society, only that no more elaboration on the import and application of this freedom in any given context or situation was discussed by the author.13 He further considered freedom of religion as part of civil rights which in essence requires a more positive observance of etiquette in social behavior and sincere consideration of others rights. So also, while discussing fundamental freedoms, he states that it means the state and quality of being free and these include freedom of every person to worship his own way. As regard the Child Rights Convention (CRC), he states that it is the most complete statement of children‘s rights ever made and it is the first to give these rights the force of international law and that respect for human rights begins with the way society treats its children. That notwithstanding, he failed to examine the peculiarities of freedom of thought, conscience and religion to the special needs and vulnerabilities of children.

Kehinde M. Mowoe, in his book titled ―Constitutional Law in Nigeria‖, he had elegantly treated freedom of thought, conscience and religion with even a chapter dedicated to the discussion of this freedom unlike other authors. But that notwithstanding, his discussion of the subject is not child specific as he altogether neglected the relevance of freedom of thought, conscience and religion to the domain of child protection. In fact, while writing post 1989 CRC regime as well as post 2003 CRA regime in Nigeria, he fundamentally omitted both the CRC and CRA from the list of legal framework on freedom of thought, conscience and religion under both international law and the Nigerian domestic laws as part the legal instruments on the subject. It is not wondered, therefore, that he neglects the relevance of freedom of thought, conscience and religion to child protection in Nigeria. Thus, it will be the effort of this study to fill this gap.