International Law and Child Labour in Nigeria: Specific Challenges and Alternative Normative Standards

INTERNATIONAL LAW AND CHILD LABOUR IN NIGERIA: SPECIFIC CHALLENGES AND ALTERNATIVE NORMATIVE STANDARDS

Daniel Ogunniyi

A thesis submitted for the degree of Doctor of Laws

UNIVERSITEIT ANTWERPEN

BELGIUM

2019

To The Only Wise God

ACKNOWLEDGEMENTS

In the summer of 2014, I was lucky to be at the right place at the right time. I was working as a

Research Intern at the Centre for Human Rights, Pretoria, South Africa, where Prof Vandenhole was invited to lead a programme on the Right to Development. My fledgling interest in children’s rights and his leading scholarship in the field made the University of Antwerp a desired destination for my PhD research. My deepest gratitude to Prof Vandenhole, first, for agreeing to supervise my research, and also, for his excellent supervision throughout the doctoral programme – his guidance and scholarship will continually be a source of inspiration to me.

I also owe a debt of gratitude to members of my Doctoral Committee: Prof Koen de Feyter and

Prof Jacobijn Olthoff. These two scholars contributed immensely to my development as a researcher and to the success of this thesis; much thanks professors! Also, special thanks to the members of the doctoral jury: Dr Thoko Kaime, Dr Kelly Reyniers and Prof Karl Hanson for their time and involvement as examiners of this thesis. I should also extend my sincere appreciation to two other individuals – Prof Colin Reid, of the University of Dundee, for his remarkable mentorship during my LLM in Dundee; and Prof Frans Viljoen, of the Centre for

Human Rights, Pretoria, for his academic support during my internship in Pretoria.

My gratitude also goes to the many other friends and colleagues who have helped in one way or another on this journey, especially members of the Law and Development Research Group:

Alberto Pecoraro, Arne Vandenbogaerde, Deborah Casalin, Devanshi Saxena, Gamze Turkelli,

Hilary Chidiebere Nwosu, Kata Dozsa, Liliana Lizarazo Rodriguez, Rachel Hammonds,

Vincent Bellinkx, Warren Johannes, Yousra Benfquih, Yuliang Pang and other colleagues in the Law Faculty. Also, a million thanks to my former colleagues at the OPCW, especially

Johann Thorvardarson and Leandra Nobs, with whom I had many interesting conversations on international law.

My sincere appreciation also goes to my parents, Barrister & Mrs Ola Ogunniyi – thanks very much for your love and relentless support. Also, thanks to Dunsin & Jerry, for being the best siblings in the world. To all the members of my Church, Deeper Life, Antwerp, I say thank you.

My special thanks particularly go to Pastor Jonathan Johnson and Lucy Johnson for the friendship and spiritual support. Finally, a special thank you to Damilola Akintayo, for always

‘standing in the gap’.

Daniel Ogunniyi Antwerp March 2019

‘When the lives and the rights of children are at stake, there must be no silent witnesses’

- Carol Bellamy (former Executive Director UNICEF)

ABSTRACT

Child labour is regulated by a variety of international and regional legal instruments. The plurality of norms also implies the likelihood of conflict in certain thematic areas. From an international human rights law perspective, the areas of convergence and/or divergence in the governing instruments have not been comprehensively studied, even though they have great implications for the protection and promotion of children’s rights. Also, at the national level in

Nigeria, the manner in which the relevant governing instruments have been incorporated is yet to be comprehensively studied. This study therefore assesses child labour norms both from international and national perspectives to understand their relevance in the broader agenda to protect children. The study demonstrates the complexities of incorporating children’s rights

(child labour) treaties in Nigeria and further reveals that numerous children in Nigeria remain trapped in the web of child labour as defined in existing treaties. Given the scope of the problem, the study offers specific recommendations on how to address the legal as well as the economic dimensions of the challenge. The study further explores the potential roles of international development cooperation as a mechanism for combating poverty, and indirectly, child labour, in Nigeria and elsewhere in the developing world.

ABBREVIATIONS

ACRWC African Charter on the Rights and Welfare of the Child

AGOA African Growth and Opportunity Act

CEDAW Convention on the Elimination of all Forms of Discrimination against Women

CRA Child’s Rights Act

CRC Convention on the Rights of the Child

CYPA Children and Young People’s Act

CYPO Children and Young People’s Ordinance

DRD Declaration on the Right to Development

EBA Everything But Arms

ECOWAS Economic Community of West African States

ECPAT End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes

EFCC Economic and Financial Crimes Commission

GATT General Agreement on Tariffs and Trade

GSP Generalised System of Preferences

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic Social and Cultural Rights

ICPC Independent Corrupt Practices Commission

ICRC International Committee of the Red Cross

ILC International Law Commission

ILO International Labour Organisation

ILS International Labour Standards

LA Labour Act

LDCs Least Developed Countries

LFN Laws of the Federation of Nigeria

MFN Most Favoured Nation

NDHS Nigerian Demographic and Health Survey

NDLEA National Drug Law Enforcement Agency

NPC National Population Commission

NWLR Nigerian Weekly Law Report

SDGs Sustainable Development Goals

TCL Transnational Criminal Law

UDHR Universal Declaration of Human Rights

UN United Nations

UNICEF United Nations International Children's Emergency Fund

UNTOC UN Convention against Transnational Organised Crime

WTO World Trade Organisation

TABLE OF INSTRUMENTS

 African Charter on Human and People’s Rights, 1981

 African Charter on the Rights and Welfare of the Child, 1990

 African Union Convention on Preventing and Combating Corruption, 2003

 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes

and Their Disposal (1989)

 Cartagena Protocol on Biosafety (2000)

 Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or

Punishment (1984)

 Convention concerning Discrimination in Respect of Employment and Occupation, No

111 (1958)

 Convention concerning Equal Remuneration of Men and Women Workers for Work of

Equal Value, No 100 (1951)

 Convention concerning Freedom of Association and Protection of the Right to Organise,

No 87 (1948)

 Convention concerning Minimum Age for Admission to Employment, No 138 (1973)

 Convention concerning the Abolition of Forced Labour, No 105 (1957)

 Convention concerning the Application of the Principles of the Right to Organise and

to Bargain Collectively, No 98 (1949)

 Convention concerning the Prohibition and Immediate Action for the Elimination of the

Worst Forms of Child Labour, No 182 (1999)

 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the

Prostitution of Others, 1949

 Convention on Biological Diversity (1992)

 Convention on International Trade in Endangered Species of Wild Fauna and Flora

(1973)

 Convention on the Elimination of All Forms of Discrimination Against Women (1979)

 Convention on the Prevention and Punishment of the Crime of Genocide (1948)

 Convention on the Rights of the Child (1989); Convention concerning Forced or

Compulsory Labour, No 29 (1930)

 Criminal Law Convention on Corruption (Council of Europe), 1999

 Declaration on the Right to Development, 1986

 Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949

 ILO Convention No. 10 – Minimum Age (Agriculture) 1921

 ILO Convention No. 112 – Minimum Age (Fisherman), 1959

 ILO Convention No. 123 – Minimum Age (Underground Work), 1965

 ILO Convention No. 33 – Minimum Age (Non-Industrial Employment), 1932

 ILO Convention No. 5 – Minimum Age (Industry), 1919

 ILO Convention No. 58 – Minimum Age (Sea), (Revised), 1936

 ILO Convention No. 59 – Minimum Age (Industry) (Revised), 1937

 ILO Convention No. 60 – Minimum Age (Non-Industrial Employment) (Revised), 1937

 ILO Convention No. 7 – Minimum Age (Sea), 1920

 ILO Domestic Workers Convention, 2011 (No. 189)

 ILO Minimum Age Convention, 1973 (No. 138)

 ILO Worst Forms of Child Labour Convention, 1999 (No. 182)

 Inter-American Convention against Corruption, 1996

 International Convention on the Elimination of All Forms of Racial Discrimination

(1965)

 International Covenant on Civil and Political Rights (1966); International Covenant on

Economic Social and Cultural Rights (1966)

 International Covenant on Civil and Political Rights, 1966

 International Covenant on Economic Social and Cultural Rights, 1966

 Kyoto Protocol to the United Nations Framework Convention on Climate Change

(1998)

 Montreal Protocol on Substances that Deplete the Ozone Layer (1987)

 Optional Protocol to the Convention on the Rights of the Child on the involvement of

children in armed conflict, 2000

 Optional Protocol to the Convention on the Rights of the Child on the sale of children,

child prostitution and child pornography, 2000

 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the

Protection of Victims of Non-International Armed Conflicts (Protocol II), 1977

 Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and

Children, supplementing the United Nations Convention against Transnational

Organized Crime

 Recommendation No.124 – Minimum Age (Underground Work), 1965

 Stockholm Convention on persistent Organic Pollutants (2001) EN L 303/60 Official

Journal of the European Union 31.10.2012

 The Convention against Torture (CAT)

 The United Nations Framework Convention on Climate Change (1992)

 UN Convention against Corruption 2003

 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,

1988

 UN Convention against Transnational Organised Crime, 2000

 UN Convention on Psychotropic Substances, 1971

 UN Convention on the Elimination of all Forms of Discrimination against Women, 1979

 UN Convention on the Rights of the Child, 1989

 UN Single Convention on Narcotic Drugs, 1961

 United Nations Convention against Corruption (2004)

 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic

Substances (1988)

 United Nations Single Convention on Narcotic Drugs (1961)

 United Nations Convention on Psychotropic Substances (1971)

 Universal Declaration of Human Rights, 1948

 Worst Forms of Child Labour Recommendation, 1999 (No. 190)

TABLE OF CONTENTS

CHAPTER 1: INTRODUCTION

1.1 BACKGROUND 17 1.2 PROBLEM STATEMENT 18 1.3 RESEARCH QUESTIONS 20 1.4 METHODOLOGY 21 1.5 SIGNIFICANCE OF STUDY 22 1.6 STRUCTURE OF THE THESIS 24

CHAPTER 2: THE PROHIBITION OF CHILD LABOUR IN INTERNATIONAL HUMAN RIGHTS LAW

2.1 Introduction 30 2.2 Children’s Rights and Child Labour Prohibition in Historical Context 31 2.3 What Really Is Child Labour In International Human Rights Law? 34 2.4 The Elimination of Child Labour under the Minimum Age Convention 37 2.5 The Worst Forms Convention and the Prioritisation Approach of the ILO 43 2.6 The Protection from Child Labour under the CRC 52 2.7 The Protection from Child Labour under the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography 60 2.8 The Protection from Child Labour under the Optional Protocol on the Involvement of Children in Armed Conflict 65 2.9 The Concept of Child Labour under The African Children’s Charter 74 2.10 The Approach of other Relevant Treaties to the Concept of Child Labour 85 2.10.1 The Universal Declaration of Human Rights 85 2.10.2 The International Covenant on Civil and Political Rights 86 2.10.3 The International Covenant on Economic Social and Cultural Rights 91 2.11 Revisiting the meaning of Child Labour 95 2.12 Conclusion 97

CHAPTER 3: THE DEVELOPMENT OF CHILDREN’S RIGHTS AND THE CHALLENGE OF TREATY DOMESTICATION IN NIGERIA

3.1 Introduction 100 3.2 Childhood in Premodern Nigeria 101 3.3 The Development of Child Labour Standards in Nigeria 106 3.4 Monism, Dualism and Treaty Domestication in Nigeria 109 3.4.1 The Concepts of Monism and Dualism in International Law 109 3.4.2 The Legal Approach to Treaty Domestication in Nigeria 111 3.5 Legal Pluralism and The Challenge of Domesticating Children’s Rights Treaties in Nigeria 113 3.5.1 The Extent of Legal Pluralism in Nigeria 113 3.6 The Complexities of Domesticating Children’s Rights (Child Labour) Treaties in Nigeria 116 3.7 Problems Confronting the Nigerian Child Rights Act 118 3.8 Religious and Cultural Grounds for Opposing the CRA 121 3.9 The Legal Implementation of Child Labour Standards in Nigeria 127 3.9.1 The Prohibition of Child Labour under the CRA 127 3.10 Child Labour Prohibition under the Labour Act 134 3.11 The Prohibition of Child Labour under the Trafficking Act 139 3.12 The legality of the Labour/Trafficking Act in the Protection from Child Labour in Nigeria 148 3.13 Status of the Labour/Trafficking Act in Nigeria 149 3.14 Relevance of the Labour/Trafficking Acts in the Protection from Child Labour 151 3.15 Summary of Treaty Domestication 152 3.15 Conclusion 155

CHAPTER 4: ASSESSING THE PREVALENCE OF CHILD LABOUR IN NIGERIA

4.1 Introduction 157 4.2 The Prevalence of Child Labour in Nigeria 158 4.3 The nature and forms of Child Labour in Nigeria 160 4.3.1Child Labour in Public and Semi-Public Places 161 4.3.2Child Labour within Private Households 168

4.3.3 Child Labour in the Agricultural Sector 176 4.3.4 Child Labour within the Public School System in Nigeria 180 4.5 Conclusion 182

CHAPTER 5: THE BARRIERS TO EFFECTIVE ELIMINATION OF CHILD LABOUR IN NIGERIA

5.1 Introduction 184 5.2 The Extent and Manifestations of Poverty in Nigeria 185 5.2.1 Examining Poverty as A Barrier to Child Labour Elimination in Nigeria 187 5.3 Corruption and Child Labour In Nigeria 195 5.3.1 Defining Corruption? 195 5.3.2 The Relationship between Corruption and Human (Children’s) Rights 197 5.3.3 The Extent of Corruption in Nigeria and the Relationship with Child Labour 200 5.4 Conclusion 206

CHAPTER 6: ASSESSING ALTERNATIVE MULTILATERAL AND UNILATERAL FRAMEWORKS FOR COMBATING CHILD LABOUR

6.1 Introduction 208 6.2 Assessing the global responses to combat child labour 209 6.3 Combating child labour through Sustainable Development Goals 209 6.4 Trade-based strategies for combating child labour 213 6.5 The European Union trade-based strategies for combating child labour 223 6.6 Unilateral trade measures for combating child labour: The case of the US 213 6.7 A critical assessment of trade-based measures for combating child labour 228 6.8 Conclusion 234

CHAPTER 7: ‘FIXING CHILDREN’S RIGHTS’: ALTERNATIVE APPROACHES TO CHILD LABOUR IN NIGERIA

7.1 Introduction 237 7.2 Research Summary/findings 238 7.3 Specific Recommendations 244 7.4 The Future of Children’s Rights: International Development

Cooperation as an Alternative Measure to Combat Poverty and Child Labour? 259 7.5 The potential Legal Basis for International Cooperation to Address Poverty in Third States 263 7.6 Conclusion 274

BIBLIOGRAPHY 277

Chapter one

1.1 BACKGROUND

Treaties or treaty provisions governing children’s rights and child labour are multifarious.

However, it is often the case that these diverse legal instruments accord different levels of protection to children, in some cases, in a conflicting manner. From an international human rights law perspective, a comprehensive assessment is yet to be made regarding the common or divergent areas, even though they have great implications for the protection and promotion of children’s rights. The study presents the international and regional instruments governing the practice of child labour to understand the specific ways in which the issue is addressed in the treaties; and further discusses the problem of implementing the relevant treaties at the domestic level in Nigeria. The study also engages with the determinants of child labour in Nigeria as well as the alternative strategies designed to respond to the problem.

It is generally well-known that following the ratification of a treaty, the real challenge is the practical translation of such treaty promises at the local level.1 It has, for instance, been observed that, ‘children are more likely to be victims of human rights violations than adults, and African children are more likely to be victims than children on other continents.’2 Thus, apart from the assessment of relevant international normative instruments which is presented in the next chapter, the second segment of the study seeks to understand the extent to which the legal norms have been incorporated in Nigeria as well as their effectiveness in eliminating child labour in the country.

1 Christof Heyns and Frans Viljoen ‘The Impact of the United Nations Human Rights Treaties on the Domestic Level’ (2001) 23 Human Rights Quarterly, 483.

2 Frans Viljoen, ‘The African Charter on the Rights and Welfare of the Child’ in C Davel (ed), Introduction to child law in South Africa (Juta, Cape Town, 2000) 214, 215.

Nigeria is Africa’s most populous country, with an estimated population of 200 million.3

Children make up around 50% of the country’s population4 – implying that, some of the highest incidents of child labour in Africa are carried out in the country. More specifically, a recent

ILO estimate reveals that Nigeria has the highest number of child labourers among ECOWAS countries,5 with around 10.5 million children toiling in different exploitative conditions.6 It has also been observed that, nationwide, children between ages 5 – 9, are found to work nearly 18 hours per week, on average, largely in unpaid activities, while children between ages 10 – 14 years are consistently found to exceed the internationally recognised threshold of 20 hours per week.7 Apart from this, Nigeria is a recognised source, transit and destination country for child trafficking (regarded as a worst form of child labour).

Beyond these statistics however, this study aims to understand the specificities of the problem including possible legal solutions (i.e., through legislation) which may help improve the conditions of working children in Nigeria.

1.2 PROBLEM STATEMENT

Child labour is both a complex and complicated subject. These complexities manifest themselves at both theoretical and practical levels and at both national and international levels.

3 See: https://countrymeters.info/en/Nigeria (accessed 07/03/2019).

4 Ibid (accessed 07/03/2019).

5 The Economic Community of West African States consisting of 15 states.

6 ILO, The Twin Challenges of Child Labour and Educational Marginalisation in the ECOWAS Region: An Overview (Pre-publication release, July 2014, Understanding Children’s Work) 16. Other studies have indicated that there are between 12 to 15 million child labourers in Nigeria for those between the ages of 10-14 years, see, Ojo-Ajibare, ‘Child Work and Street Trading in Nigeria: Implications for Vocational Adult Education’ (2013) 6(2) Journal of Educational Review, 225.

7 Nicola Jones and others, ‘Promoting Synergies between Child Protection and Social Protection in Nigeria’ (2012) 14 London: ODI. 11.

Regarding the international regulation of the practice, instruments and treaties are relatively numerous. For instance, there exists the UN Convention on the Rights of the Child, the relevant

ILO Conventions (i.e., Conventions 138 and 182), and the African Charter on the Rights and

Welfare of the Child. The subject of child labour is also touched upon in other treaties not specifically focusing on children’s rights, e.g., The International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights

(ICCPR) etc. As there is no singular/autonomous governing instrument or what may be considered as the authoritative legal norm in the field, it is worth examining whether the existing instruments are complementary to each other or inconsistent. Inconsistencies in the treaties may for instance create implementation difficulties, as States such as Nigeria, may be subject to all the relevant treaties simultaneously.

Furthermore, at the domestic level, the interaction between legal normative instruments and the social aspects of child labour has been particularly fraught with many difficulties. The legal approach to the concept which, in many instances, sets specific standards for entry into the work force, constitute a contested aspect of the concept. In this regard, it is often questioned whether states at different levels of economic developments should be regulated by universal standards.

Also, cultural differentiation is often raised to justify the need for different sets of standards.

Thus, arguments that legal normative standards are not reflective of differing social realities are widespread in this field.

More specifically, at the level of Nigeria, two sets of problems manifest themselves: legal and economic challenges. The legal challenge largely emanates from the complex legal architecture of Nigeria. In this regard, the constitution of the Federal Republic of Nigeria specifies that the federating states must be involved in the enactment of certain legal provisions which includes children’s rights. In other words, child related issues are not within the exclusive competence of the federal government. However, as the federal government, not the states, are empowered

to ratify international treaties, the federal government exercised this powers to ratify the UN

Convention on the Rights of the Child, (notwithstanding that it lacks the constitutional powers to legislate on child-related matters at the domestic level). As a dualist state, treaties are generally not self-executing in Nigeria, thus, where the subject matter of the treaties relates to children’s rights, the constituent states must be jointly involved with the federal parliament in the enactment of a national legislation. Thus, while Nigeria acceded to the UN Convention on the Rights of the Child (UNCRC or CRC) in 2001, the domestication of the instrument (i.e., the adoption of a national instrument) has been highly complicated. In many ways, the plural legal orders in the country and the differing perceptions of childhood makes consensus (of the constituent states) difficult to achieve. After several negotiations and parliamentary processes, the UNCRC was finally domesticated in 2003 through the Child Rights Act. However, even though the UNCRC has been domesticated (through a contestable procedure), 11 of the thirty- six states of Nigeria have failed to re-enact the domesticating instrument. This has created a legal implementation crisis with legal vacuums existing in certain states of the country.

Another issue engaged with in this study is the effectiveness and/or usefulness of international standards in addressing the problem of child labour in Nigeria. It is well-known that Africa has a high rate of child labour. However, beyond the statistics, an assessment of the underlying causative factors is deserving of research attention in order to proffer appropriate solutions to the problem.

1.3 RESEARCH QUESTIONS

The primary question this thesis seeks to answer is:

 Have existing international norms in any way contributed to the reduction and/or

elimination of child labour in Nigeria? (Assessment); what legal (and other) means could

be taken to protect children from child labour in Nigeria? (Prescriptive)

Q1. With regard to the assessment exercise, the sub-questions to be considered are:

Q1.1. In what ways do the relevant treaties address the issue of child labour?

Q1.2. What specific measures have been taken to implement the international

standards at the domestic level?

Q1.3. What is the current state of child labour activities in Nigeria?

Q1.4. What are the factors inducing child labour in Nigeria?

Q1.5. What alternative measures are available for regulating child labour in Nigeria?

Q.2. With regard to the prescriptive exercise, the question to be considered is:

Q.2.1. What legal (and other) means could be taken to protect children from child

labour in Nigeria?

The above research questions are addressed in a systematic manner in the succeeding chapters.

1.4 METHODOLOGY

This study primarily utilises desk (library) research to answer the research questions. The starting point is the analysis of international and regional children/human rights instruments addressing the subject of child labour. Primary and secondary sources are utilised to assess the approach of the relevant normative instruments to child labour. It is generally essential to first understand the international regulation of child labour before attempt is made to understand the extent of implementation at the domestic level. Thus, the domestic implementation section of the study examines the relevant child labour legislation in Nigeria. This part examines the complexities of translating international treaties to domestic laws in Nigeria. A number of

secondary sources are also consulted to make sense of the implementation progress that has been made as well as the difficulties confronted.

Furthermore, to understand the prevalence and forms of child labour in Nigeria, existing secondary sources are relied upon to have a better understanding of the practice. Suggestions made in the study are also grounded in both primary and secondary sources. A number of literature are specifically consulted to support the positions taken in this aspect.

1.5 SIGNIFICANCE OF THE STUDY

Africa has the highest rates of child labour in the world,8 of which, Nigeria contributes significantly to these rates. Although there are reports that the practice is declining globally, there is little evidence to support this assessment on the ground. In an attempt to make sense of the practice, lawyers and anthropologists often take opposing stances and continue to disagree on effective ways to address the problem. On one side of the spectrum, lawyers often canvass for the ‘implementation approach’, with the notion that the problem is mainly legal, and from this standpoint argue for the implementation of existing legal standards.9 These lawyers usually conceive existing child labour (and other human rights) problems as largely connected to legal implementation deficits. This approach conceives full legal implementation as decisive in ending child labour. Thus, what can be criticised for existing social problems is the failure to effectively translate the norms at the domestic level.10 On the other hand, anthropologists

8 Sonia Bhalotra, ‘Child Labour in Africa’ (2003) OECD Social, Employment and Migration Working Papers, No. 4, OECD Publishing, Paris, 4.

9 In this regard, Wouter Vandenhole notes that many children’s rights scholarships have focused on the ‘implementation gap approach,’ based on the assumption that norms and standards are clear, sufficient and unproblematic. See generally, Wouter Vandenhole et al, Routledge International Handbook of Children’s Rights Studies (Routledge 2015) 38, 39.

10 See generally, James J Silk and Meron Makonnen ‘Ending Child Labor: A Role for International Human Rights Law’ (2003) 22 Saint Louis University Public Law Review. In this regard, the authors particularly note that,

sometimes argue for the abandonment of strict legal prohibitions contained in the relevant treaties, by highlighting the beneficial aspects of work in a context specific framework.11

Expectedly, at the international level, relevant treaty bodies tend to adopt more positivist (top- down) leanings. Recommendations and concluding observations emanating from those bodies often contain the usual phrases urging States Parties to implement the relevant treaties.

However, the reproduction of these recommendations rather seem to uncritically engage with the practice of child labour in the local context. They largely preserve the status quo, and cannot be argued to have any meaningful effect on the ground, as far as Nigeria is concerned.

Thus, from this perspective, this study positions itself at the intersection of the legal and anthropological approach to the subject. The extreme positions taken by both sides may arguably not improve the conditions of children. In this regard, the conclusions of this study attempts to find a balance between law and society.

‘Although ratified by the vast majority of countries, the conventions prohibiting child labor, like human rights conventions generally, have weak enforcement mechanisms. While enforcement of human rights treaties relies upon treaty monitoring bodies with extremely limited powers, the ILO conventions do not even have reporting or international examination requirements’, (see p 363); in other words, the authors consider weak enforcement/implementation mechanisms as responsible for child labour prevalence. The authors further noted that efforts to eradicate child labour have been hampered by the practical deficiencies inherent in the enforcement provisions of United Nations and ILO conventions (see p 366). This approach is reflective of the views often embraced by legal scholars.

11 For instance, Manfred Liebel has attempted to reconsider the utility of the language of rights in children’s rights discourses by focusing more on how children themselves conceive and interpret their rights, not on how the rights are construed by global policy makers. Liebel specifically notes that ‘in order to ensure that children embrace rights and use them for themselves, they must be conceptualized in a context specific way and give answers to the children’s life experiences. The task cannot be only to “implement” formally existing children’s rights, but they must rather be reflected according to their cultural, political and structural coherence and weighed against possible consequences for children’s lives.’ See Manfred Liebel ‘Introduction’ in Manfred Liebel Children’s Rights from Below: Cross-Cultural Perspectives (Palgrave Macmillan, 2012) 2. See also Michael FC Bourdillon, Ben White and William E Myers ‘Re-assessing minimum-age standards for children’s work’ (2009) 29(3/4) International Journal of Sociology and Social Policy, 106-117; where the authors note that efforts to promote universal minimum-age policies should cease until their effect on children has been reliably measured. They also argue that more energy and investment should rather be devoted to alternative, proven ways of combating forms and conditions of work that are genuinely likely to cause harm, and to promoting access to education (see pp 106, 108, 109).

With specific regard to Nigeria, this study also addresses an area that has been so far neglected by researchers. The majority of child labour studies do not attempt to uncover the specific causes of child labour both at the legal and social levels. Arguably, this is the first study to have made this attempt with specific focus on Nigeria. Also, while the legal gaps existing in some states may seem obvious, most legal studies do not attempt to question the underlining reasons for the gaps. The present study addresses these issues. Furthermore, certain non-child centred instruments are studied – the Labour Act and the Trafficking Act – to understand their approach to, and usefulness for, protecting children. This study makes an important contribution in this area by looking beyond the Child Rights Act (which is the usual focus), to understand if other legislation which apply nationwide may perform legal gap-filling roles in the absence of the

CRA in the non-enacting states. Given the failure of the law to eliminate child labour in Nigeria, this study probes further to understand other multilateral and unilateral strategies formulated to respond to the phenomenon. The proposals made in this study could set a new paradigm in the regulation of child labour, not only in Nigeria, but across the developing world.

1.6 STRUCTURE OF THE THESIS

Chapter Two: The Prohibition of Child Labour in International Human Rights Law

This chapter engages with research question (RQ) 1.1: ‘in what ways do the relevant treaties address the issue of child labour?’ Before engaging with the treaties in more detail, the chapter attempts to examine the concept of child labour from a historical perspective to understand the context in which the treaties emerged. The historical analysis of the practice at the western/global level is also helpful in understanding if the evolutionary process in Nigeria is similar. A potential differentiation in the historical trajectories may justify a differentiated approach to child labour regulation in Nigeria. Following this, the chapter attempts to clarify the meaning of child labour itself, to provide a useful framework for subsequent analysis. This

is particularly relevant as the legal meaning of the concept sometimes differs from the social connotation. After demonstrating the ambiguities surrounding the concept, the chapter turns to consider the relevant treaties, to understand the manner in which child labour is legally construed. Apart from the definitional aspects, the approach of the Minimum Age Convention to the concept is analysed. Other treaties are also assessed including the ILO Worst Forms

Convention (Convention 182), the UN Convention on the Rights of the Child, The Optional

Protocol on the Sale of Children, Child Prostitution and Child Pornography, The Optional

Protocol on the Involvement of Children in Armed Conflict, the African Charter on the Rights and Welfare of Children. Some non-child labour specific instruments are also considered, especially the International Bills of Rights. The goal here is to present a comprehensive assessment of child labour from an international human rights perspective. Certain issues touched upon in this chapter are seldom discussed in the context of child labour, e.g., involvement of children in armed conflict, child prostitution etc. Also, apart from the direct relevance for child labour discourses and analysis, the chapter serves as a useful reference for understanding the areas of convergence and/or divergence in the international instruments.

After considering the relevant treaties, the chapter draws a conclusion on the legal connotation of child labour, which forms the basis for terminological understanding in subsequent chapters.

Chapter Three: The Development of Children’s Rights and the Challenge of Treaty

Domestication in Nigeria

Following the discussion of the international regulation of child labour, chapter three examines the ramifications of the concept at the domestic level. The chapter deals with RQ 1.2 ‘what specific measures have been taken to implement the international standards at the domestic level?’ It focuses mainly on the domestication problems encountered in Nigeria with regard to the Child Rights Act 2003. The chapter traces the history of child labour including the legal regulation of the practice in Nigeria. In this regard, the trajectories of child labour and child

labour regulation in Western Europe and Nigeria can be more easily juxtaposed, thus highlighting the historical differences. The process of treaty incorporation in international law is also examined in this chapter (i.e., monism and dualism), given its relevance for Nigeria. It is demonstrated that even though Nigeria is a dualist state, additional obstacles are confronted when domesticating children’s rights treaties, as childhood-related issues fall under a ‘special’ enactment regime. This leads to the consideration of relevant obstacles including the contexts in which the problems emanate from. The role of legal pluralism in the implementation crises is considered as well as other specific problems preventing the effective legal implementation of the Child Rights Act. After assessing the content of the Child Rights Act, attempt is made to understand if Nigerian children may be afforded legal protection by other instruments not subject to the implementation difficulties. In this regard, the Labour Act as well as the

Trafficking Act are considered, to understand if they can play gap-filling roles in protecting children from child labour.

Chapter Four: Assessing the Prevalence of Child Labour in Nigeria

Chapter four of this thesis, addresses RQ 1.3 ‘what is the current state of child labour activities in Nigeria?’ The chapter examines the social realities of child labour in Nigeria, to understand whether or not existing legal norms have any effect on the ground. The goal of the chapter is to test the effectiveness or perhaps ineffectiveness of current protection measures, which are largely webbed around legal normative standards. In this context, effectiveness is not measured by a quantitative metric, but merely an attempt to gauge the interaction between legal norms and social realities. Although there is an obvious bias to conclude that child labour is prevalent in Nigeria, beyond these sentiments however, the chapter aims to specifically highlight the issues, to serve as concrete basis for formulating new strategies. The chapter first presents a general overview of the problem (including estimates and statistics) to shed light on the extent, scope and nature of the challenge, following which the sectoral nature of the problem is

presented. In this regard, four sectoral groupings are examined, including child labour in public and semi-public places, child labour within private households, child labour in the agricultural sector, and child labour within the public school system in Nigeria.

Chapter Five: The barriers to effective elimination of child labour in Nigeria

Chapter five of this thesis responds to RQ 1.4 ‘what are the factors inducing child labour in

Nigeria?’ The chapter mainly seeks to understand the causative factors of child labour in the country, focusing specifically on the economic elements. Thus, while chapter four points to the fact that child labour is an ongoing challenge in Nigeria, this chapter attempts to understand the factors behind the practice. Two main sub-issues are considered as economic causative factors: poverty and corruption. Although corruption tends to be more aligned with politics, they are considered under the economic grouping in this study given that the subject matter relates to economic resources. These themes are examined as the underlying basis for child labour prevalence in Nigeria.

Chapter six: Assessing alternative multilateral and unilateral frameworks for combating child labour

Chapter six of this thesis engages with RQ 1.5 ‘what alternative measures are available for regulating child labour in Nigeria?’ This chapter is prompted by the failure of dominant legal strategies for combating child labour. The chapter examines the various policy and other strategic means of responding to the problem. Certain international, regional and national strategies designed to supplement existing international normative frameworks on child labour are specifically examined. The relevant strategies are examined from two perspectives: solidarity approach and conditionality approach. In this regard, at the international level, the utility of the Sustainable Development Goals (SDGs) as a tool for combating child labour is explored from a solidarity standpoint. Other (trade-related) arrangements formulated by

developed countries to address child labour problems extraterritorially are considered from a trade conditionality perspective. In this context, the regional framework available at the

European Union level in regards to child labour is examined. This aspect specifically examines the manner in which the Generalised System of Preferences (GSP) under the World Trade

Organisation’s (WTO) General Agreement on Tariffs and Trade (GATT) are being adapted to fight child labour in foreign countries. Apart from this, the unilateral trade measures developed by the US which are being deployed to tackle child labour problems are examined. These measures are conceived as broader measures which may, in part, address the poverty situations in developing countries if appropriately implemented.

Chapter Seven: ‘Fixing children’s rights’: alternative approaches to child labour in Nigeria

This chapter addresses RQ 2.1 ‘what legal (and other) means could be taken to protect children from child labour in Nigeria?’ It begins with the understanding that previous chapters have identified two major problems with regard to child labour in Nigeria. While chapter three presented the legal complexities of implementing child labour instruments in Nigeria, chapters four and five addressed the socioeconomic aspects of the problem by assessing (the challenge) and identifying the root causes. Chapter six also examined the alternative measures available for regulating child labour in Nigeria. It was however revealed that child labour remains an ongoing problem despite the existence of the alternative strategies. In light of the existing problems, this chapter provides helpful insights to address the legal and socioeconomic challenges. Drawing on the research findings, a set of specific recommendations are made – these recommendations are partly grounded in the adoption of a new normative instrument.

Beyond the conclusions derived from the study, from a forward looking perspective, this chapter also considers the potential role of international development cooperation as a

mechanism for addressing poverty in Nigeria and other developing countries, given the relationship between poverty and child labour.

Chapter Two

THE PROHIBITION OF CHILD LABOUR IN INTERNATIONAL HUMAN RIGHTS

LAW

2.1 INTRODUCTION

This chapter analyses the perspective of relevant instruments addressing the issue of child labour. Before engaging with this theme, attempt is made to clarify the meaning of child labour.

This chapter recognises that, the problem of child labour operates, at least, on two different levels. One is the problem of definition, while the other is the problem of regulation. The definitional problem relates to the various ambiguities surrounding the meaning of ‘child labour’. The regulatory problem, on the other hand, largely concerns the relevance or applicability of child labour standards, especially in non-Western societies; that is, whether international children’s rights laws should continue to govern children’s work in regions where the notion of childhood is understood more differently from the ones conceived in the treaties.

Although the definitional and regulatory problems may seem entwined to some extent, the definitional one appears primary, and essential to addressing the second problem. Thus, this chapter will focus on the problems of definition and prohibition at the international level, while the domestic problems will be dealt with in subsequent chapters.

To have a clearer insight into how the term ‘child labour’ is legally conceived, the ILO

Minimum Age Convention, as well as certain reports of the ILO secretariat are considered.

Following this, the chapter explores the approach of the key children’s rights instruments, with regard to the term. Thus, apart from the part which seeks to clarify the meaning of child labour, this chapter extensively investigates the perspectives of the relevant treaties on the concept. A number of treaties are examined, including, the ILO Minimum Age Convention, the ILO Worst

Forms Convention, the UN Convention on the Rights of the Child, (and its optional protocols), and the African Charter on the Rights and Welfare of the Child. Apart from this, other treaties that are not specifically child centred but have some relevance are examined. This is mainly to understand whether the relevant treaties adopt a consistent approach to child labour, or whether there are differences in their perspectives. While the idea of child labour is often construed from the narrower lens of work-place exploitation, this chapter will demonstrate that the practice is much broader, and may include such practices as, child sexual exploitation, child trafficking, among others. Thus, efforts to regulate ‘child labour’ should not be limited to ‘work’ in the traditional employment context alone.

2.2 CHILDREN’S RIGHTS AND CHILD LABOUR PROHIBITION IN HISTORICAL

CONTEXT

The history of children’s rights in general is relatively recent. One of the early writers to consider the different images of childhood, Aries, observed that, the idea of childhood and children’s rights was completely non-existent during medieval times.12 He came to this conclusion after studying the paintings of the middle Ages, and observed that, only in the

16th/17th centuries did some moralists begin to recognise the importance of schooling and

12 See generally Franziska Humbert, The Challenge of Child Labour in International Law, (Cambridge University Press 2009) 15.

education for children.13 Even then, work still had the approval of religion and morality.14 As

J. F Feddersen indicated in The Life of Jesus for Children (1787): ‘It is God’s will that people avoid all idleness and should work from their earliest years.’15 Children’s work was therefore, rarely criticised. John Locke, on his part proposed the age of three as the start of work. 16 This climate of opinions thus encouraged manufacturers to employ the service of children on a large scale, especially during the industrial revolution.17

Beginning from the 1760s, however, philosophers, such as Jean-Jacques Rousseau began to argue, that, children had a right to childhood and the inherent right to enjoy it.18 Following this period, there was a complete outrage against the exploitation of working children.19

Perspectives of what constituted childhood thus gradually began to change. For the first time, a link between rights and children’s work was eventually forged during the 1830s, in Great

13 Ibid; Aries specifically noted that there had been no distinctive vocabulary of childhood, in medieval times. While infants below age seven were generally regarded as vulnerable, very little attention was given to them, probably because of their high level of mortality. Another writer, Stone, supported this view that the high level of infant mortality in earlier centuries resulted in a low level of affection for younger children. See generally, L Stone, The Family, Sex and Marriage in England 1500 – 1800 (London, Penguin). It is however worth noting, that, Aries’s view on the early perception of childhood has been somewhat criticised. Subsequent writers have questioned some of his thesis and methodologies in this regard. For a fuller discussion on this see Trevor Buck, International Child Law (Routledge 2014), P3 – 5.

14 Hugh Cunningham and Shelton Stromquist, ‘Child labour and the rights of children: Historical pattern of decline and persistence’ in Burns H Weston, Child Labor and Human Rights: Making Children Matter (Lynne Rienner 2005) 58.

15 Quoted in Hugh Cunningham and Shelton Stromquist, ibid.

16 ibid

17 See generally, Hugh Cunningham and Pier Paolo Viazzo ed, ‘Child labour in historical perspective 1800-1985: Case studies from Europe, Japan and Colombia (UNICEF International Child Development Centre, 1996).

18 Hugh Cunningham and Shelton Stromquist, (n 14) 60.

19 Ibid.

Britain.20 Around the same period, other countries in Europe, especially Belgium and France equally drew a connection between human rights and children’s lives.21

Thus, states like Britain, France and Belgium where the industrial revolution seemed to have had the greatest impact in Europe all took specific national measures to legally prohibit child labour. However, to achieve a wider protection, especially for the children toiling in dangerous conditions elsewhere across the world, an international response was necessary. Accordingly, the first international treaty on child labour was adopted by the International Labour

Organisation (ILO) in 1919.22 The ILO adopted the Minimum Age (industry) Convention No.5 as well as the Convention on the Night Work of Young Persons (industry), No.6 the same year.

Not surprisingly, however, these conventions focused on industrial works. This may partly be because the conventions were mostly driven by western European states, which had just emerged from the era of industrial revolution. Five years later, in 1924, the very first international declaration of human rights by any inter-governmental organisation was made.23

The instrument, called: the Declaration of the Rights of the Child (1924), entirely focused on protecting children’s rights. These efforts serve as the foundation for the current international normative framework on child labour.

20 Ibid 55.

21 See generally, Hugh Cunningham and Pier Paolo Viazzo ed, ‘Child labour in historical perspective 1800-1985: Case studies from Europe, Japan and Colombia (UNICEF International Child Development Centre, 1996) 35 -37.

22 Holly Cullen, The Role of International Law in the Elimination of Child Labor (Martinus Nijhoff 2007 2007) 2.

23 Trevor Buck, International Child Law (Routledge 2014), 21.

2.3 WHAT REALLY IS CHILD LABOUR IN INTERNATIONAL HUMAN RIGHTS

LAW?

In a literal sense, child labour may simply suggest the involvement of children in some form of economic activities. This is commonly depicted by pictures of impoverished children, working in mines, or in construction projects.24 Legally speaking, however, the term is understood more differently. As indicated above, the history of the term as well as the prohibition of child labour can be traced back to different political negotiations and settlements, especially during the 18th and 19th centuries in Western Europe. These negotiations culminated in national legislations, and eventually in what are now the international standards on child labour. Thus, given its legal roots, the definition of child labour can be understood purely in a legal sense.25 It is generally worth acknowledging that in recent decades the concept has become more convoluted. Different interpretations of the term have emerged, resulting in a growing lack of certainty as to what the concept really means.26

Child labour is arguably one of the most ambiguous concepts in the field of children’s rights.27

The concept is sometimes given a broad interpretation, to cover all forms of work, benign or exploitative. In a literal sense, the word ‘labour’ may simply suggest all forms of work, without any negative connotation. For instance, such terms as ‘labour force’, ‘labour union’ etc, are

24 Tendai Charity Nhenga-Chakarisa, ‘Who Does the Law Seek to Protect and from What? The Application of International Law on Child Labour in an African Context’ (2010) 10 African Human Rights Law Journal 162

25 Cullen (n 22) 6

26 Ibid; see also Augendra Bhukuth, ‘Defining Child Labour: A Controversial Debate’ (2008) 18(3) Development in Practice 385-394.

27 See generally, David M Smolin, ‘Strategic Choices in the International Campaign against Child Labor’ (2000) 22 Human Rights Quarterly, 947, 948.

often used to reflect the wider labour movement, especially in the context of legitimate adult work. Thus, the term ‘labour’ in itself is not problematic.

However, the preamble to ILO C138, for instance provides, that, ‘the abolition of child labour’ is the main goal of the convention. Although the convention does not contain any definition of child labour,28 what may be inferred is that all aspects of works are targeted.29 This is more evident with the obligation imposed on states to progressively raise the minimum age for admission to employment. Article 1 of C138 specifically provides that, ‘each Member for which this Convention is in force undertakes to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.’ In this regard, legal scholar, David Smolin correctly observes that, the idea of progressively raising the minimum age is relatively vague and problematic, as the ‘ceiling’ is not defined.30 The only requirement is that the age must be raised to a ‘level consistent with the fullest physical and mental development of young persons’.31 Thus, if a state progressively raises its relevant minimum age for all works to 18 years, for instance, such measures would still be considered as fulfilling the goal to abolish child labour. For such states, works

28 Rufaro Audrey Mavunga, ‘A Critical Assessment of the Minimum Age Convention 138 of 1973 and the Worst Forms of Child Labour Convention 182 of 1999’ (2013) 16 PER: Potchefstroomse Elektroniese Regsblad, 121, 2013, 125.

29 See, Smolin (n 27), 950. The Travaux Preparatoire of C138 however indicates, that, the convention was not ‘intended simply as a static instrument prescribing a fixed minimum standard but as a dynamic one aimed at encouraging the progressive improvement of standards and of promoting sustained action to attain the objectives.’ See generally, Minimum Age for Admission to Employment, ILO, 57th Sess., Rep. IV(1), (1972) 31.

30 David Smolin, ibid 950.

31 Article 1 C138 generally provides that, ‘each Member for which this Convention is in force undertakes to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.’

undertaken by those below the age 18 years would be regarded as illegal, notwithstanding their nature. Smolin thus concluded that, the ILO has succeeded in creating ‘an official definition of

“child labour” which necessarily has no fixed definition.’32 The obligation imposed on states to progressively raise their relevant minimum ages, and the need for ‘the abolition of child labour’ clearly suggests that, C138 intends to limit the involvement of children in the work place, not just in exploitative activities alone.33

However, despite the content of the Minimum Age Convention, the effective abolition of child labour has proved to be a difficult task. This prompted the adoption of Convention 182, targeting the worst forms of child labour (unconditional worst forms). It is to be noted, that, despite the adoption of Convention 182, Convention 138 remains one of the cornerstone instruments of the ILO. Thus, the conception of child labour in the treaty is still effective. The next sections will assess the manner in which the relevant treaties engage with the term and practice. Following these assessments, a working definition of child labour is adopted at the end of the chapter, for consistent understanding in subsequent usage.

32 Smolin (n 27) 950.

33 Holly Cullen for instance argues that, the approach of ‘C138 is based on a policy that employment of children is almost fundamentally unacceptable.’ She further questions, whether the notion of abolition (which derives from anti-slavery movements of the 18th and 19th centuries in the west) was ever necessary for child labour. See Cullen (n 22) 2, 3. Franziska Humbert however argues that, while the objective of the convention may be understood as targeting all forms of work or labour, the many exceptions in the convention reflects that the treaty distinguishes between tolerable child work and exploitative child labour. See generally Humbert (n 12), 89.

2.4 THE ELIMINATION OF CHILD LABOUR UNDER THE MINIMUM AGE

CONVENTION

As previously noted, the current international regime on children’s rights was largely inspired by the experiences of western states.34 This is particularly true for the Minimum Age

Convention. Between the first ILO convention adopted in 1919, and 1973, when the Minimum

Age Convention was adopted, some nine specific conventions, and in addition one recommendation were adopted, all setting a minimum age for admission to employment, in different sectors.35 Most of these conventions continue to bind states parties and even remain open for signature to this day, at least in theory. In practice, however, the sector-specific instruments have been largely superseded by the Minimum Age Convention of 1973.36

Thus, article 1, of the Minimum Age Convention provides that:

Each Member for which this Convention is in force undertakes to pursue a national

policy designed to ensure the effective abolition of child labour and to raise

34 One of the earliest states to legally regulate the age of admission to work, was France, with the French law of 1841; the relevant age under the French law was set at 8 years: see Matteo Borzaga, Limiting the Minimum Age: Convention 138 and the Origin of the ILO’s Action in the Field of Child Labour, in Nesi Giuseppe and N Luca, Child Labor in a Globalized World: A Legal Analysis of ILO Action (Ashgate Publication Limited 2008) 39.

35 The earlier Conventions as well as Recommendation included: ILO Convention No. 5 – Minimum Age (Industry), 1919; ILO Convention No. 7 – Minimum Age (Sea), 1920; ILO Convention No. 10 – Minimum Age (Agriculture) 1921; ILO Convention No. 33 – Minimum Age (Non-Industrial Employment), 1932; ILO Convention No. 58 – Minimum Age (Sea), (Revised), 1936; ILO Convention No. 59 – Minimum Age (Industry) (Revised), 1937; ILO Convention No. 60 – Minimum Age (Non-Industrial Employment) (Revised), 1937; ILO Convention No. 112 – Minimum Age (Fisherman), 1959; Recommendation No.124 – Minimum Age (Underground Work), 1965; ILO Convention No. 123 – Minimum Age (Underground Work), 1965.

36 Cullen (n 22) 2; the preamble to the Minimum Age Convention indeed recalls the sector-specific conventions and notes, that, ‘the time has come to establish a general instrument on the subject, which would gradually replace the existing ones applicable to limited economic sectors…’

progressively the minimum age for admission to employment or work to a level

consistent with the fullest physical development of young persons.

The provisions of article 1 above generally impose two obligations on states. On the one hand, states are required to take effective measures to abolish child labour, while on the other hand, they are obliged to progressively raise the minimum age for admission to employment or work.

As already pointed out, the progressive obligation stipulated in the article is problematic. For instance, if a state decides that children generally attain their fullest physical development at 18 years, the consequence of raising the minimum age for ‘employment’ or ‘work’, would make children below that age ineligible to work. Additionally, in some regions, or even within a state, it is possible that, some children generally experience less physical development (growth) as a result of malnutrition or for genetic reasons. Thus, prohibiting child labour on the basis of

‘physical development’ may engender a form of discrimination against children who experience less physical development. In other words, children who mature early may be guaranteed an early admission into the workforce, than older children who experience slower physical growth.

In this regard, article 1 specifically mentions ‘employment’ or ‘work’, indicating that all categories of works are targeted. This approach may be somewhat far-reaching and have negative implications for many children in the developing world.

Article 2(3) further provides that the relevant minimum age shall not be less than the age of compulsory schooling and may not be less than 15 years, in any case. However, for less developed states, 14 years may be fixed as the applicable minimum age. It is worth noting that, these provisions generally relate to non-hazardous forms of work.

Further exceptions are contained in article 7. The article reads as follows:

1. National laws or regulations may permit the employment or work of persons 13 to 15

years of age on light work which is –

a) not likely to be harmful to their health or development; and

b) not such as to prejudice their school, their participation in vocational orientation or

training programmes approved by the competent authority or their capacity to

benefit from the instruction received.

2. National laws or regulations may also permit the employment or work of persons who

are at least 15 years of age but have not yet completed their compulsory schooling on

work which meets the requirements set forth in sub-paragraphs (a) and (b) of paragraph

1 of this Article.

3. The competent authority shall determine the activities in which employment or work

may be permitted under paragraphs 1 and 2 of this Article and shall prescribe the number

of hours during which and the conditions in which such employment or work may be

undertaken.

4. Notwithstanding the provisions of paragraphs 1 and 2 of this Article, a Member which

has availed itself of the provisions of paragraph 4 of Article 2 may, for as long as it

continues to do so, substitute the ages 12 and 14 for the ages 13 and 15 in paragraph 1

and the age 14 for the age 15 in paragraph 2 of this Article.

Three broad categories of works may be generally identified from the convention. The first relates to work for which the minimum age may not be less than 14 years or the age of completion of compulsory schooling.37 Works undertaken in this category, although less clearly defined, must not be likely to harm the health and development of the child involved, and must

37 See, article 2(3) & (4) as well as article 7(1),(2) & (4) ILO C138.

not prejudice school attendance.38 It is to be noted that, while works undertaken in this category must not be harmful, they, strictly speaking, lie outside of those that may be regarded as light work.39 The second category relates to light work, for which the minimum age is 12 years (in less developed states).40 The introduction of a lower age, with regard to light work, clearly demonstrates that, the first category is not particularly concerned with light works.41 Indeed, the applicable minimum age in the first category (i.e., article 2) is 14 years, and light work is not in any way mentioned in the article. As is the case with the first category, works under the light work category must not be likely to harm the health and development of the child and must not prejudice school attendance or vocational training.42

Article 3 of the convention contains the third category. It provides in 3(1) that, the minimum age for admission to any type of employment or work which may likely jeopardise the health of young persons shall not be less than 18 years – reaffirming the wider international views on childhood.43 Article 3(3), however provides that, following consultation with relevant organisations of employers and workers, employment in such potentially ‘hazardous’ jobs may

38 See, article 2(3) & (4) as well as article 7(1),(2) & (4).

39 In accordance with article 7 of the convention, children can undertake light works as from age 12, in which case, children in the first category can also ‘take-on’ light works.

40 See, article 7(1) & (4).

41 Breen Creighton, is of the view that, article 7 of the convention is clearly based on the premise that employment or work under the age of 15 or 14 for less developed countries, is not to be permitted under any circumstances. In other words, light work is not to be regarded as ‘work’, in the proper sense. See generally, Breen Creighton, ‘Combating Child Labour: The Role of International Labour Standards’ (1996) 18 Comp. Lab. LJ 362 378

42 See, article 7(1).

43 At first, this article seems to suggest that work which endangers the health, safety or morals of children may be acceptable once the workers concerned have attained the age of 18. Creighton however notes that the real intention of the article is to protect younger children from potentially hazardous jobs, and not an endorsement of harmful jobs in any case. See, Creighton (n 41) 380.

be possible from the age of 16 years, on the condition that the health, safety and morals of the young persons concerned are fully protected, and the child has received adequate instruction or training on the relevant work. Thus, age 16 and above may represent the relevant age for works which may be likely hazardous, if the conditions are met. It is also worth mentioning that, the definition of ‘hazardous’, is not only limited to ostensibly dangerous works, works undertaken below age 16 could still qualify as hazardous, especially if excessive or intense.44 In such cases, hazardous works are clearly prohibited, without any exception. Exceptions are only granted to children 16 years and above.

Generally, the international consensus on childhood, especially in the CRC (also embodied in

ILO C138), is that, anyone below the age of 18, is considered to be a child. This notion of childhood is largely founded on the principle of protection, which is one of the central ideas of international children’s rights law. Before the age of 18 years, a child is sometimes considered incompetent to form a reasoned or independent opinion. This, together with their perceived vulnerabilities may explain the protectionist views, which excludes younger children from activities that may be considered harmful.45 Michael Bourdillon et al, have however argued that, C138 generally assumes that children increasingly benefit from their withdrawal from

44 See generally, ILO, The end of child labour: Within reach, Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, (2006) 6.

45 Creighton (n 41) 380. It has been further noted that, the words ‘protection’ or ‘protect’ occur not less than 47 times in the CRC, at least 19 times in the Universal Declaration of Human Rights, and 33 times in the African Charter on the Rights and Welfare of the Child. See, Kristen E. Cheney, ‘Conflicting protectionist and participation models of children’s rights’, in Afua Twum-Danso Imoh and Nicola Ansell, Children’s Lives in an Era of Children’s Rights: The Progress of the Convention on the Rights of the Child in Africa (Routledge 2014) 18.

work, whereas this assumption may need further empirical justification, as there are considerable evidence to question it.46

It should be indicated that, the notion of human rights is not only about protection, children also have the right to participate in matters affecting them.47 A balance should be struck between protection and participation rights48 to ensure that children are only excluded from works which may reasonably result in exploitation. Also, the obligation to progressively raise the relevant minimum age for all ‘works’ and ‘employments’ is arguably superfluous - the views of children themselves (e.g., as evidenced by working children’s movements) do not seem to be reflected in this approach. As observed by French social scientist, Michel Bonnet, ‘one shouldn’t be hypnotised by the problem of child labour, but instead should open one’s eyes and ears to working children and listen to what they have to say to us.’49 Attention should rather focus on

46 Michael FC Bourdillon, Ben White and William E Myers, ‘Re-Assessing Minimum-Age Standards for Children’s Work’ (2009) 29 International Journal of Sociology and Social Policy 108. (118 – 129)

47 The concept of participation under article 12 of the convention guarantees the freedom in expressing ones views and the right to be heard in any judicial and administrative proceedings affecting the child; see generally Kristen C Cheney, ‘Conflicting protectionist and participation models of children’s rights’, Imoh and Ansell (n 45) 19.

48 The right to participate, from a human rights perspective, may for instance entail the right of a child to freely decide on whether or not to work. Although participation rights is mainly embodied in article 12 of the CRC, the right has been argued to include, the freedom of expression (article 13); freedom of thought, conscience and religion (article 14); freedom of association and peaceful assembly (article 15); access to information (article 17), see generally, E. Kay M. Tisdall, ‘Children and young people’s participation: A critical consideration of Article 12’, in Vandenhole and others (n 9) 185. An expanded view of these rights may thus be argued to include the right to work, especially for some children that are legally prohibited from working. From the perspective of working children, Victor P. Karuna, for instance noted, that, a human rights/child- centred approach would imply, respect for children’s views and opinions with regard to their work. Broader solutions to the problematic aspects of child labour and the right to work should also involve them. See, Victor P. Karuna, ‘Working Children as Change Makers: Perspectives from the South’, in Weston (n 14) 304.

49 Michel Bonnet ‘Le Travail des enfants: terrain de luttes’ (1999) Lausanne: Editions Page deux, 11, quoted from Manfred Liebel, ‘Working Children as social subjects: The contribution of working children’s organizations to social transformations’ (2003) 10(3) Childhood, 265 (265-285).

eliminating particularly exploitative practices, as opposed to all works, which may be the consequence of this provision in the ILO instrument.

2.5 THE WORST FORMS CONVENTION AND THE PRIORITISATION APPROACH

OF THE ILO

Few years before convention 182 was adopted, the ILO noted in a report that, children generally experience the highest form of vulnerability when they work in hazardous occupations and industries.50 Like adults, they are susceptible to all the dangers that may be associated with work. However, work hazards that affect adults affect children even more strongly.51 Some works can be so harmful that they may permanently alter the physical or psychological development of children, leaving them with serious consequences later in life.52 The report further highlighted various works and sectors that may irreversibly damage the enjoyment of childhood and deny the promise of the future.53 Hazard particularly manifests in areas,

50 ILO, Child Labour: Targeting the intolerable (ILO Geneva, 1996), 9. Hazardous work is generally understood as ‘any activity or occupation that, by its nature or type, has or leads to adverse effects on the child’s safety, health (physical or mental) and moral development. Hazards could also derive from excessive workload, physical conditions of work, and/or work intensity in terms of the duration or hours of work even where the activity or occupation is known to be non-hazardous or safe’. See ILO, The end of child labour: Within reach, Global Report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, (2006) 6. This indicates that, hazardous works are not necessarily sector-specific. Works undertaken in relatively ‘safe’ sectors, if excessive, may for instance be considered hazardous.

51 ILO, Child Labour: Targeting the intolerable (ILO Geneva, 1996), 9.

52 ILO, Child Labour: Targeting the intolerable (ILO Geneva, 1996), 9.

53 ILO, Child Labour: Targeting the intolerable (ILO Geneva, 1996), 9 – 14.

including, violence and sexual abuse, slavery and forced labour, prostitution and trafficking of children.54

Acknowledging the importance of prioritisation, the ILO stated that, not all countries are institutionally and financially equipped to ‘confront’ the differing faces of exploitative child labour at once. Choices must therefore be made as to where to concentrate the limited human and material resources. The most logical and humane strategy would be to ‘focus scarce resources first on the most intolerable forms of child labour, such as, slavery, debt bondage, child prostitution and work in hazardous occupations and industries[…].’55

The above reflects the background to the Worst Forms Convention. The convention elaborates on the notion of worst forms in article 3, where it provides that:

For the purposes of this Convention, the term the worst forms of child labour comprises:

(a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of

children, debt bondage and serfdom and forced or compulsory labour, including forced

or compulsory recruitment of children for use in armed conflict;

(b) the use, procuring or offering of a child for prostitution, for the production of

pornography or for pornographic performances;

production and trafficking of drugs as defined in the relevant international treaties;

54 Article 3 C182; see also, ILO, Child Labour: Targeting the intolerable (ILO Geneva, 1996), 14 – 17.

55 ILO, Child Labour: Targeting the intolerable (ILO Geneva, 1996), 20.

(d) work which, by its nature or the circumstances in which it is carried out, is likely to

harm the health, safety or morals of children.56

Before proceeding to analyse the content of this article, it is worth mentioning that, in contrast to the Minimum Age Convention, C182 only addresses one of the three categories identified under C138. Thus, while C138 covers a range of activities, including, light work, for which the minimum age is 12; works undertaken between ages 14 – 15 years, which may not necessarily be light but must not be hazardous; and potentially hazardous works, which can only be undertaken from age 18 years or 16, if certain conditions are met, C182 only focuses on the third category.57 However, unlike C138, whereby 16 and 17 year olds can undertake some form of dangerous works under protective conditions, the Worst Forms Convention contains no such exception. Article 2 explicitly provides that, ‘the term child shall apply to all persons under the age of 18.’ In other words, no child is expected to be involved in any type of work which is by nature considered hazardous. The Recommendation 190 which accompanies Convention 182, however tends to lower the age with regard to article 3(d) to 16 years, in consonance with the

Minimum Age Convention. It provides in article 4 that:

For the types of work referred to under Article 3(d) of the Convention and Paragraph 3

above, national laws or regulations or the competent authority could, after consultation

with the workers' and employers' organizations concerned, authorize employment or

work as from the age of 16 on condition that the health, safety and morals of the children

56 Article 3.

57 Article 3(d) C182.

concerned are fully protected, and that the children have received adequate specific

instruction or vocational training in the relevant branch of activity.

Indeed, article 4 of the Recommendation is almost a verbatim reproduction of article 3(3) of the Minimum Age Convention, which lowers the age for hazardous work to 16 years. 58 Also, since article 3(d) of the Worst Forms Convention is relatively vague in terms of its content,59

Recommendation 190 offers some guidance. The Recommendation60 provides that:

In determining the types of work referred to under Article 3(d) of the Convention, and

in identifying where they exist, consideration should be given, inter alia, to:

(a) Work which exposes children to physical, psychological or sexual abuse;

(b) Work underground, under water, at dangerous heights or in confined spaces;

handling or transport of heavy loads;

(d) work in an unhealthy environment which may, for example, expose children to

hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations

damaging to their health;

58 Article 3(3) of C138 provides that, ‘Notwithstanding the provisions of paragraph 1 of this Article, national laws or regulations or the competent authority may, after consultation with the organisations of employers and workers concerned, where such exist, authorise employment or work as from the age of 16 years on condition that the health, safety and morals of the young persons concerned are fully protected and that the young persons have received adequate specific instruction or vocational training in the relevant branch of activity.’

59 The article does not clearly define the actual type of work that is referred to. Article 4 however stipulates that the type of work referred to in article 3(d) ‘shall be determined by national laws or regulations or by the competent authority’. The article also makes reference to Recommendation 190, especially article 3 and 4.

60 Article 3(a) – (e), Recommendation 190.

(e) Work under particularly difficult conditions such as work for long hours or during

the night or work where the child is unreasonably confined to the premises of the

employer.

More specifically, it is worth pointing out that, within the worst forms of child labour presented in article 3(a) – (d) of C182, a distinction is usually drawn between conditional and unconditional worst forms.61 The first three categories, contained in article 3(a) – (c), are usually referred to as the unconditional worst forms of child labour, while the last category, in article 3(d) is often regarded as the conditional worst form, in that, activities belonging to this category may become permissible upon the satisfaction of certain conditions, including, adequate protection and age requirements (that is, children must be at least 16 years old).62

Thus, practices such as, slavery, slavery-like practices, prostitution, child pornography, etc, are absolutely prohibited in international law, and cannot be legitimised by the fulfilment of the conditions laid down in article 4 of Recommendation 190.

It should be stated that, the Worst Forms Convention is generally intended as a tool for mobilisation and prioritisation, as opposed to an expansion of international law. 63 This is especially true, as practices prohibited under the convention can be found elsewhere in other treaties.64 From a labour perspective, however, David Smolin, argues that, the convention is quite unusual in many ways, in that, much of its content addresses criminal, as opposed to,

61 Marco Pertile, ‘Introduction: The Fight against Child Labour in a Globalised World’ in Giuseppe and Luca (n 34) 10.

62 ibid.

63 Smolin (n 27).

64 ibid.

purely labour matters.65 For instance, the link between drug trade and compulsory military recruitment can be more easily established with criminal law than it is with labour regulations.66

Nonetheless, these relative overlaps may be quite inevitable, especially considering that the prohibited practices also contain extensive labour/economic elements. Thus, the vulnerability of children demands that their conditions be addressed in a more comprehensive manner, which may imply that criminal law and labour issues must converge in a single treaty, as the Worst

Forms Convention. It should be mentioned here that as the unconditional worst forms of child labour are equally prohibited for adults, the question of balancing between protection and participation rights for children earlier argued have no significance here – the argument only applies to other forms of child labour which includes the conditional worst forms referenced in article 3(d).

Thus, in accordance with article 3(a) of C182, children may not be involved in any such activities, including slavery and other analogous practices, such as trafficking of children, debt bondage and serfdom, forced or compulsory labour, which includes, forced or compulsory recruitment of children for use in armed conflict. As pointed out above, it must be remembered that the majority of these unconditionally prohibited practices already constitute serious human rights abuses, whether committed against adults or children.67 Although the idea of slavery may for instance seem less popular today, as compared to the era of the slave trade movement, there is evidence that the practice still exists, though on a smaller scale.68

65 ibid.

66 ibid.

67 Cullen (n 22) 13.

68 A study for instance demonstrates that the practice still exists in some parts of Africa, especially in, Liberia, Mauritania and Sudan. See generally, ILO, ‘Stopping Forced Labour: Global Report under the Follow-up to

It is worth noting that the prohibition of slavery and slave trade featured prominently in more than 75 multilateral and bilateral treaties from the early 19th century onwards.69 Thus, the Worst

Forms Convention does not articulate any new idea in the real sense, it rather brings to centre stage the idea of slavery, with particular reference to children. Article 1 of the 1926 League of

Nations Slavery Convention, for instance defines slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.’ The convention called upon states to ensure ‘progressively and as soon as possible, the complete abolition of slavery.’70

the ILO Declaration on Fundamental Principles and Rights at Work’, 2001, 16 – 18. Also, there have been more recent report of slavery in Libya, in which migrants (including Nigerians) have been used as slaves: see http://www.bbc.com/news/world-africa-42492687 (assessed 22/05/2018)

69 See Anne T Gallagher, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground-A Response to James Hathaway’ (2008) 49 Va. J. Int’l L. 799, 800 (789 – 848).

70 Article 2. The notion of ‘abolition of child labour’ in C138, was probably inspired by this provision. As previously noted, some scholars including Holly Cullen, argue that, the language of progressive abolition in the Minimum Age Convention largely derives from anti-slavery movement of previous centuries. See Holly Cullen (n 19) 2. It should be noted that, while the 1926 convention clearly prohibits slavery, it does not address slavery-like practices, such as debt bondage. The rationale for this could probably be because ownership is the central theme in slavery, as reflected in article 1 of the convention, whereas, debt bondage for instance may not involve incidents of legal ownership. Article 5 of the 1926 convention however addresses forced labour – which indeed may not involve any form of ownership. It urges states to ‘take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery.’ Given the gaps under the 1926 convention, especially with regard to the definition of slavery, an additional supplementary convention was necessary to fill the void. Thus, the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, was adopted to include other practices analogous to slavery. The Supplementary Convention provides in article 1 that: Each of the States Parties to this Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention signed at Geneva on 25 September 1926: (a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined; (b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status; (c) Any institution or practice whereby: (i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or (ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or (iii) A woman on

Also, with regard to the forced or compulsory recruitment of children for use in armed conflict, article 3(a) generally makes no reference to the nature of the conflict (i.e whether internal or international). In this regard, it has been pointed out that, the convention specifically addresses the issue of child soldiers as a purely child labour issue.71 Accordingly, the nature of a conflict, whether internal or international is irrelevant as far as the Worst Forms Convention is concerned.72 In other words, the child labour element cuts across both internal and international armed conflict. Cullen further noted that, the phrase ‘for use in armed conflict’ in article 3(a) is much broader than the concept of ‘direct participation’ in hostilities,73 which may be found in other relevant treaties (this will be further elaborated in subsequent sections in this chapter). In other words, ILO C182 would apply to both direct and indirect hostilities.

Furthermore, article 3(b) & (c) considers ‘the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances;’ as well as

‘the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties,’ as constituting an unconditional worst form of child labour. It has been observed that, measures addressing slavery may also cover such issues as, trafficking in person.74 Indeed, the travaux préparatoires of the UDHR reflects that, the notion of ‘slavery’ under article 4 of the instrument was intended

the death of her husband is liable to be inherited by another person; (d) Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.

71 Holly Cullen, ‘Does the ILO Have a Distinctive Role in the International Legal Protection of Child Soldiers’ (2011) 5 Hum. Rts. & Int’l Legal Discourse, 73. (63 – 81)

72 ibid.

73 ibid.

74 Cullen (n 22). 17.

to include the trafficking in children and women.75 However, it does not seem to make any difference whether or not there is a link between slavery and trafficking. What is more important is that, they both constitute criminal activities in international law. It should also be indicated that, the consent of a child to acts of prostitution or production of pornography, may not lessen the criminal nature of the act, with regard to the perpetrator.76 International regimes77 in this aspect generally aim to protect, rather than prosecute children.78

The Worst Forms Convention is, in many ways, a useful addition to the normative agenda on children’s rights. Also, the prioritisation approach of the treaty helpfully brings together in one single document the fragmented content of other relevant treaties. This is particularly helpful in elucidating the meaning of child labour beyond the traditional connotations often ascribed to the term, which usually do not include e.g., the involvement of children in armed conflict etc.

Finally, it should be stated that, while the instrument is generally consistent with C138, the same criticisms that apply to C138 also applies to article 3(d) of C182, as the latter provision in conjunction with Recommendation 190 embodies and/or reflects the contents of C138.

75 ibid.

76 ibid.45.

77 Together with the other conventions already highlighted, one of the Optional Protocols to the Convention on the Rights of the Child, is specifically devoted to the issue of protection from child prostitution and pornography. This will be further discussed in the next part, on the CRC and the elimination of exploitative child labour.

78 It has for instance been noted that, certain countries have tended to treat the affected children as criminals instead of victims, especially where the children involved have reached the legal age of consent. See Cullen (n 22) 43. The ILO global report earlier referred to, stipulates that ‘Child prostitution, child pornography and the sale and trafficking of children are crimes of violence against children. They must be treated as crimes and attacked as the most serious crimes are attacked. Such repellent abuses are so far removed from any normal notion of work or labour that it seems strange to focus on them in an ILO report. Yet while they are crimes they are also forms of economic exploitation akin to forced labour and slavery.’ See ILO, Child Labour: Targeting the intolerable (ILO Geneva, 1996), 66.

2.6 THE PROTECTION FROM CHILD LABOUR UNDER THE CRC

The CRC is arguably the most important legal document in the field of children’s rights.79 It positions children’s rights as an ‘independent’ but yet inclusive component of the broader human rights framework. In this regard, the CRC affirms the double nature of children’s rights in terms of its special (unique to children) and general human rights nature. By far the most ratified human rights treaty,80 the CRC creates a set of obligations for which states may be legally held accountable.81 Over the last two decades, the convention together with other international instruments, notably, the ILO conventions C138 & C182, has forged a complementary alliance to eliminate the practice of child labour. Accordingly, there are specific provisions in the convention which address the issue of child labour. Article 32 provides that:

1. 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.

2. States Parties shall take legislative, administrative, social and educational measures

to ensure the implementation of the present article. To this end, and having regard to the

relevant provisions of other international instruments, States Parties shall in particular:

79 The convention was adopted by the UN General Assembly on 20 November 1989 and entered into force 2 September 1990.

80 The only state that is yet to ratify being the United States.

81 See generally, Didier Reynaert etal, Introduction: A critical approach to children’s rights, in Vandenhole and others (n 9).

(a) Provide for a minimum age or minimum ages for admission to employment;

(b) Provide for appropriate regulation of the hours and conditions of employment;

enforcement of the present article.

It is worth noting that, while article 32(1) primarily targets the more exploitative or harmful forms of work, it also prohibits works that may not necessarily be exploitative or harmful in the real sense, but may potentially interfere with children’s education. Thus, light work may for instance be prohibited if it will likely interfere with children’s schooling – if education is construed in the narrow sense of schooling. This is the only prohibition under article 32(1) that is not expressly tied to exploitation, hazard or harm. It should be indicated however, that, this provision tends to idealise education. It presents education as easily accessible, forgetting that access to, or lack of it, may be tied to other factors, including economic factors. A strict interpretation of this provision in poorer families could create a scenario whereby children do not work, and yet they do not attend schools, since their families cannot afford it. Indeed, while work may potentially rob children of formal education, it must also be remembered that work can also help to seize it.82 In this regard, a number of studies have demonstrated that, children sometimes work to help pay for their studies.83

It should also be pointed out, that, article 32(1) implicitly recognises certain forms of work as acceptable. Works that are not exploitative or harmful, and do not interfere with children’s education may be regarded as acceptable in accordance with the article. Apart from this, the

82 Bourdillon, White and Myers (n 11) 109.

83 ibid.

provision of article 32(1) specifically refers to the likelihood of hazard or harm, with regard to children’s education, health, physical, mental, spiritual, moral and social development. A similar provision may also be found in the Minimum Age Convention as well as in the Worst

Forms Convention, with a slight variation. The Minimum Age Convention for instance addresses work which is ‘likely to jeopardise the health, safety or morals of young persons.’84

The Worst Forms Convention on the other hand contains almost exactly the same provision as

C138. It protects children from any work that is ‘likely to harm the health, safety or morals of children.’85 Thus, while C138 uses the word ‘jeopardise’, C182 employs the word ‘harm’. Also, while C138 aims to protect ‘young persons’, C182 simply utilises the word ‘children’.86 More generally, the scope of article 32(1) of the CRC is much broader than that of the ILO conventions. The CRC specifically aims to protect the education, health, physical, mental, spiritual, moral and social development of children. Also, article 32(1) of the CRC utilises the word ‘child’, without making any reference to such phrase as ‘young persons’, as may be found in C138.

Article 32(2) of the convention further requires states to take certain steps, including, setting a minimum age for admission to employment, regulation of the hours and conditions of employment, as well as providing appropriate sanctions to ensure compliance with the convention. The provision of article 32(2) (a) requiring states parties to set a minimum age can be fulfilled by ratifying the ILO Minimum Age Convention which is solely devoted to this issue.

84 Article 3(1) & (3) C138.

85 Article 3(d) C182.

86 Ibid.

With regard to article 32(2) (b), on the regulation of hours and conditions of employment, there is little guidance, either in the CRC or elsewhere, which may help states to formulate their own laws. The content of article 32 rather tends to contain abstract obligations, but misses detail.

Furthermore, for the most part, the article presents what should be done but does very little to demonstrate how it should be done – while this can be argued to be typical of human rights provisions in general, additional specifications in this regard would be helpful in advancing the goals embodied in the Convention. Presumably, without the ILO’s Minimum Age Convention, for instance, the content of article 32(2) (a) would largely remain vague and difficult to implement. Since the idea of hours and conditions of employment have not been normatively defined, at least at the international level, different interpretations may be expected. Cullen argues that, C138 makes no provision for protective working condition, in accordance with its abolitionist agenda. She further noted that, the ILO operates on the assumption that by eliminating the employment of children, the idea of hours or conditions of employment would become a non-issue.87

However, UNICEF, has attempted to formulate a threshold to determine the number of hours that children may work. According to the organisation, ‘children can do “light work” -- non- hazardous work for no more than 14 hours a week, and that does not interfere with schooling.

Children under the minimum working age who are engaged in more than light work are in child labour.’88 Additionally, to ensure that activities, such as household chores are not completely unregulated, UNICEF indicates that, household chores in excess of four hours per day amount

87 See generally Cullen (n 22) 4.

88 UNICEF, What the Economic Crisis means for Child Labour (UNICEF East Asia, Bangkok 2008) 4.

to child labour.89 Indeed, the organisation itself acknowledges the relativity of this regulation. 90

Carrying heavy materials for less than four hours a day could be as detrimental as working longer than four hours. Also, the factors considered before arriving at the specified number of hours can be questioned. In other words, why should we limit children’s work to 14 hours a week, in terms of light work? Why not 15 or 16 hours, or even more? The same also applies to household chores. Additionally, the approach of the organisation does not reflect certain regional peculiarities, in terms of economic or cultural factors that may cause some children to work longer hours – in the same way the ILO Minimum Age Convention makes concession to children from developing countries, by lowering the age at which they can work.

As previously indicated, the idea of child labour extends beyond the usual notions of economic exploitation. Child labour could also manifest in the use of children in other harmful contexts, outside of the traditional workplace. Thus, the CRC equally prohibits the categories of works regarded as unconditional worst forms under ILO C182. Article 33 of the CRC for instance provides that:

States Parties shall take all appropriate measures, including legislative, administrative,

social and educational measures, to protect children from the illicit use of narcotic drugs

and psychotropic substances as defined in the relevant international treaties, and to

prevent the use of children in the illicit production and trafficking of such substances.

In line with article 3(c) of ILO C182, it is evident that the use of children in the production or transfer of illicit drugs and psychotropic substances is a worst form of child labour, which is

89 UNICEF, Child Labour, Education and the Principle of Non-Discrimination,(UNICEF New York 2005), P 6.

90 Ibid.

unconditionally prohibited. Therefore, the prohibition under article 33 of the CRC simply reaffirms an already established principle of international law. The ratification and implementation of C182, as well as other drug control treaties, including, the UN Single

Convention on Narcotic Drugs of 1961, the UN Convention on Psychotropic Substances of

1971, and the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic

Substances of 1988, may in many ways satisfy the requirements of article 33, which imposes an obligation on states to take all appropriate measures to protect children from the use, and also from being used to traffic illicit substances.

Furthermore, article 34 of the CRC provides that:

States Parties undertake to protect the child from all forms of sexual exploitation and

sexual abuse. For these purposes, States Parties shall in particular take all appropriate

national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity;

(b) The exploitative use of children in prostitution or other unlawful sexual practices;

Although the notion of sexual exploitation is prohibited in a number of instruments, the CRC is the first international treaty to place a comprehensive duty on states in this regard.91 It is also worth noting that, the provision of article 34 above is largely consistent with article 3(b) of the

Worst Forms Convention. The scope of article 34 is however much broader than that of C182.

91 Humbert (n 12) 75.

Article 3(b) of C182 simply prohibits ‘the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances.’ The content of the Worst

Forms Convention in this regard is less exhaustive in nature, in that, it only relates to the use of children for ‘prostitution’ and ‘pornography’, whereas, article 34 of the CRC expands the scope to include ‘any unlawful sexual activity’ or ‘unlawful sexual practices.’

However, the notion of ‘unlawful’ in the context is somewhat problematic. It tends to suggest that children may lawfully engage in the practice. Generally, Van Bueren argues that the qualification is included because the age of sexual emancipation may be attained much earlier in some states.92 Apart from this, while article 3(b) of the Worst Forms Convention employs the phrase ‘the use’ of children, article 34(b) & (c) of the CRC, utilises the phrase the

‘exploitative use of children’. The two phrases certainly convey different meanings. In a rather implicit way, the CRC categorises such conduct into exploitative and non-exploitative forms.

For instance the term ‘exploitation’ is correctly used in article 32 of the CRC in the context of

‘economic exploitation’, demonstrating that there are instances where work may be acceptable.

However, the phrasing, ‘the exploitative use of children’, in the context of sexual exploitation is rather implausible. It tends to suggest that, there are instances where the sexual exploitation of children may be permissible. Since this practice is unconditionally prohibited in international law, there should be no qualification in its prohibition in the CRC.93 Again, as earlier

92 Geraldine Van Bueren, The International Law on the Rights of the Child, (Martinus Nijhoff, 1998) 276.

93 It has been noted that, during the drafting phase of the CRC, the chairman of the drafting committee attempted to introduce the idea of ‘social exploitation’ into the treaty. This was however rejected, for being too vague. Instead, the call to tackle the more ‘exploitative’ and ‘unlawful’ forms of sexual activities began to emerge. Thus, the main reasons why the words ‘exploitative’ and ‘unlawful should be included, were articulated by some delegates. They argued that not all sexual practices were unlawful with regard to those below the age of 18 years. The French as well as the Dutch delegates particularly argued that the purpose of the article was not to regulate the sexual life of children, but rather to protect them from exploitation. See generally, Sharon Detrick ed., The United Nations Convention on the Rights of the Child: A Guide to the Travaux Preparatoires (The Hague, Martinus Nijhoff Publishers, 1992), p. 430. Cited in Vitit Muntarbhorn,

mentioned, the consent of a child cannot justify the practice. Article 1 of the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of

Others, for instance provides that, parties to the Convention agree to punish any person who,

‘procures, entices or leads away, for purposes of prostitution, another person, even with the consent of that person.’ Generally, the Protocol to Prevent, Suppress and Punish Trafficking in

Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime later adopted is similar to the 1949 Convention

(discussed further below).

Furthermore, article 35, require states to take all appropriate measures to ‘prevent the abduction of, the sale of or traffic in children for any purpose or in any form.’ This provision also finds support in article 3(a) of the Worst Forms Convention, which prohibits ‘all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict.’ The Minimum Age Convention on its part contains no equivalent provision, since its approach is to regulate the age of admission to legally permissible works, as opposed to activities that are unconditionally prohibited. While the CRC only spells out the practice to be prohibited, the Worst Forms Convention further categorises them as practices similar to slavery. Identifying these practices as analogous to slavery further demonstrate their negative status, and why concrete actions must be taken to prohibit them. The next part will examine the Optional Protocol to the CRC on the sale of children, child prostitution and child pornography.

A Commentary on the United Nations Convention on the Rights of the Child – Article 34, Sexual Exploitation and Sexual Abuse of Children (Martinus Nijhoff, 2007) 23, 24.

2.7 THE PROTECTION FROM CHILD LABOUR UNDER THE OPTIONAL

PROTOCOL ON THE SALE OF CHILDREN, CHILD PROSTITUTION AND CHILD

PORNOGRAPHY94

The Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OP

I) was adopted in 2000, following sustained international pressure95 to develop a specific instrument that protects children from sexual exploitation.96 A children’s rights perspective in this context particularly demands a change from the much broader approach of earlier treaties.97

These instruments largely conceive child prostitution and other related offences as purely criminal law matters, and placed much emphasis on extradition.98 The protocol places emphasis on child protection, without undermining the criminal elements of the prohibited conduct, with regard to perpetrators. The Protocol also provides strategic guidance on how states can effectively fulfil their obligations under the CRC.99 Accordingly, article 2 defines the key issues addressed in the Protocol, including sale of children, child prostitution, and child pornography.

It provides that:

94 The Optional Protocol is one of the three supplementary protocols to the CRC.

95 Outside of the UN system, the agenda for an international instrument to protect children from sexual exploitation was promoted by the first and second World Congresses against Commercial Sexual Exploitation of Children (Stockholm, 1996; Yokohama, 2001). Lindsay Buckingham, ‘Child Sex Tourism’, in Neil Boister and Robert J. Currie, Routledge Handbook of Transnational Criminal Law, (Routledge, 2015) 220

96 Lindsay Buckingham, Child Sex Tourism, in Neil Boister and Robert J. Currie, Routledge Handbook of Transnational Criminal Law, (Routledge, 2015) 219, 220

97 Cullen (n 22) 43.

98 ibid.

99 Marta Santos Pais, ‘The Protection of Children from Sexual Exploitation Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography’ (2010) 18 The International Journal of Children’s Rights, 559

(a) Sale of children means any act or transaction whereby a child is transferred by any

person or group of persons to another for remuneration or any other consideration;

(b) Child prostitution means the use of a child in sexual activities for remuneration or

any other form of consideration;

in real or simulated explicit sexual activities or any representation of the sexual parts of

a child for primarily sexual purposes.

It is worth noting that the word ‘consideration’ mentioned in article 2(a) & (b) is a terminology drawn from the law of contract.100 It generally means something of value, even if actual money is not involved.101 In line with this, ECPAT,102(one of the main NGOs working to protect children from commercial sexual exploitation) has attempted to draw a distinction between general sexual abuse on the one hand, and commercial sexual exploitation on the other.

According to the organisation, commercial sexual exploitation is often profit motivated and will not include other forms of sexual abuses.103 In particular, this is what qualifies it as a form of economic exploitation, and therefore its link to child labour.

100 Vitit Muntarbhorn, A Commentary on the United Nations Convention on the Rights of the Child – Article 34, Sexual Exploitation and Sexual Abuse of Children (Martinus Nijhoff, 2007) 3.

101 Ibid.

102 ECPAT is an acronym for ‘End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes.’ The organisation was extensively involved in organising first World Congress on the sexual exploitation of children, held in Stockholm in 1996.

103 ECPAT, Report on the Implementation of the Agenda for Action against Commercial Sexual Exploitation of Children (2001–2002), 18, 19 cited in Holly Cullen, 45.

Moreover, the definitions contained in article 2(a) & (b) helpfully clarify the content of other treaties where similar practices are prohibited, but left undefined. Indeed, the Optional Protocol is the first international instrument to define such terms as, ‘sale of children’, ‘child prostitution’ and ‘child pornography.’104 The Protocol is particularly relevant, as it elaborates on the content of article 34 of the CRC, which prohibits the exploitative use of children in prostitution and pornography, as well as article 35 which equally prohibits the sale of children, among other things. The Worst Forms Convention, as previously noted, also prohibits the practices enumerated in article 2 of the Optional Protocol, however without offering any clarification as to their meanings.105 Apart from this, the 1949 Convention for the Suppression of the Traffic in

Persons and of the Exploitation of the Prostitution of Others, which was dedicated to the prohibition of sexual exploitation, for instance failed to define the relevant terms. Thus, the adoption of the Optional Protocol fills an important void in our legal understanding of the terms.

If left undefined, the legal prohibition may assume a rather social connotation. For instance, the social meaning of prostitution (sex work) may simply suggest an individual who sexually gratifies another, for monetary reward. Whereas, legally speaking, at least as defined under the

Optional Protocol, the practice does not have to be remunerated in monetary terms. All that is required is some form of consideration. It should also be pointed out that, the prohibition under the Optional Protocol is more expansive, and not limited to the ‘exploitative use’ of children, as may be found in the CRC.

Further, OP I calls on states to take legislative steps to criminalise offences described in the instrument, whether committed domestically or transnationally, by individuals or by organised

104 Humbert (n 12) 78.

105 See generally, article 3 C182.

groups.106 States parties are particularly required to make these ‘offences punishable by appropriate penalties that take into account their grave nature.’107 It should be mentioned here that, the phrase ‘grave nature’ in this context reflects the highly exploitative nature of the practice. Nowhere in any of the child specific treaties is the expression used. 108 Instead, the phrase is commonly used in international criminal law to describe such heinous practices as, genocide, war crimes, and crimes against humanity.109 As such, the practices prohibited under the Protocol are arguably of a higher status than other forms of exploitation.110 Also, the inclusion of ‘transnational’ as well as ‘organised’ crimes into the Optional Protocol is novel.

More specifically, while a state may generally exercise jurisdiction over any such offence that occurs ‘in its territory or on board a ship or aircraft registered in that State,’111 in accordance with the territoriality principle, a unique feature of the Protocol is that, it empowers states to exercise extraterritorial jurisdiction.112 Thus, an offence of this sort need not be committed in the territory of the prosecuting state. States parties may exercise jurisdiction once it can be established that, the alleged offender is a national of that particular state, or a national of another state, but has his habitual residence in the territory of the relevant state, based on the nationality

106 Article 3(1) Optional Protocol.

107 Article 3(3) Optional Protocol.

108 Especially the CRC, C138 and C182.

109 In the context of the wider international crimes, the preamble to the Rome Statute for instance provides that, ‘such grave crimes threaten the peace, security and well-being of the world.’ Thus, the notion of gravity is often employed to indicate the most serious crimes of concern to the international community.

110 Article 7(g) of the Rome Statute for instance defines crimes against humanity to include sexual slavery and enforced prostitution.

111 Article 4(1) Optional Protocol.

112 Lindsay Buckingham, Child Sex Tourism, in Neil Boister and Robert J. Currie, Routledge Handbook of Transnational Criminal Law, (Routledge, 2015) 222

principle.113 This is particularly relevant in cases of sex tourism, where the perpetrator often commits the offence abroad and is back to his home country. In such cases, the nationality principle can be invoked to prosecute the alleged offender. Additionally, states may exercise jurisdiction if the victim is one of its nationals (known as the passive personality principle).114

Apart from its children’s rights perspective, another unique feature of the Optional Protocol is that it also doubles as a Suppression Convention.115 Given the extended powers granted to states

(for instance to prosecute transnational crimes), the Protocol is an important element of the wider transnational criminal law (TCL).116 Thus, even though the main children’s rights treaties, including the CRC and ILO C182, equally prohibit some of the practices contained in the Optional Protocol, they however fail to address the procedure to follow, especially when perpetrators flee to other states (i.e., extradition). The relevance of TCL and indeed the Optional

Protocol is captured by Neil Boister, when he noted that, ‘States enforce their own criminal laws, thus expressing their sovereignty; and yet because of sovereignty, they must rely on the sovereignty of other states if they are to enforce their laws against transnational criminals that

113 Article 4(2)(a) Optional Protocol;

114 Articke 4(2)(b). Similar provisions may also be found in the Lanzarote Convention of the Council of Europe adopted in 2007.

115 Suppression Conventions are multilateral treaties that impose specific obligations on states to criminalise certain forms of transnational activities, and to provide legal assistance to other states. Crimes in this regard are usually referred to as ‘treaty crimes’ or ‘crimes of international concern’, because states acting alone are unable to suppress them, they must forge an alliance to suppress them. See generally Neil Boister, Human Rights Protections in the Suppression Conventions, 2(2002) Hum. Rgts. L.R. 199, 200. (199 – 227). Thus, Suppression Conventions are usually concluded ‘with the purpose of suppressing harmful behaviour by non- state actors.’ See generally Neil Boister, Transnational Criminal Law? (2003) 14(5) EJIL 955. (953 – 976)

116 Transnational Criminal Law (TCL) should not be confused with international criminal law. Generally, TCL refers to ‘the indirect suppression by international law through domestic penal law of criminal activities that have actual or potential trans-boundary effects.’ See Neil Boister, Transnational Criminal Law? (2003) 14(5) EJIL 955. (953 – 976). International criminal law on the other hand refers to the ‘criminal law applicable in international criminal tribunals where individual criminal responsibility is directly applied under international law.’ See Neil Boister and Robert J. Currie, Routledge Handbook of Transnational Criminal Law, (Routledge, 2015) 11

operate extraterritorially.’117 Accordingly, article 5 of the Protocol addresses the issue of extradition. It provides that, all the crimes described in the Protocol are extraditable, and the absence of a formal extradition treaty between relevant states, should not be a ground to deny prosecution. In such cases, the article provides that the Optional Protocol may serve as a legal basis for any such extradition.118 It is however worth noting, that, the Optional Protocol may serve as a legal basis, only if the relevant states are parties to the instrument, that is, the Optional

Protocol. Thus, alleged offenders may still evade prosecution if they flee to states that are not parties to the Optional Protocol and do not have an extradition agreement with the state calling for prosecution.

2.8 THE PROTECTION FROM CHILD LABOUR UNDER THE OPTIONAL

PROTOCOL ON THE INVOLVEMENT OF CHILDREN IN ARMED CONFLICT

The normative agenda to regulate the conscription as well as the voluntary involvement of children in armed organisations has been ongoing for several years, especially at the international level. Notably, the Geneva Conventions of 1949, and their Additional Protocols of 1977 contain extensive provisions to protect children from both international as well as internal armed conflicts.119 Thus, the adoption of the Optional Protocol on the Involvement of

Children in Armed Conflict (OP II) did not completely emerge from a legal vacuum.120 Beyond the broader International Humanitarian Law, the current protocol is a more direct response to

117 Neil Boister, The Concept and Nature of Transnational Criminal Law, in Neil Boister and Robert J. Currie, Routledge Handbook of Transnational Criminal Law, (Routledge, 2015) 11

118 Article 5(2) Optional Protocol.

119 Radhika Coomaraswamy, ‘The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict – Towards Universal Ratification’, (2010) 18 International Journal of Children’s Rights 537.

120 Radhika Coomaraswamy, ibid.

the growing exploitation of children during armed conflicts. It expands the scope of article 38 of the CRC, which provides that:

1. States Parties undertake to respect and to ensure respect for rules of international

humanitarian law applicable to them in armed conflicts which are relevant to the child.

2. States Parties shall take all feasible measures to ensure that persons who have not

attained the age of fifteen years do not take a direct part in hostilities.

3. States Parties shall refrain from recruiting any person who has not attained the age of

fifteen years into their armed forces. In recruiting among those persons who have

attained the age of fifteen years but who have not attained the age of eighteen years,

States Parties shall endeavour to give priority to those who are oldest.

4. In accordance with their obligations under international humanitarian law to protect

the civilian population in armed conflicts, States Parties shall take all feasible measures

to ensure protection and care of children who are affected by an armed conflict.

The inconsistencies between article 38 above and other provisions of the CRC as well as existing international law, warranted the adoption of an additional protocol. More specifically, article 38(2) above stipulates age 15 as the minimum age for direct involvement in hostilities, whereas other provisions of the CRC generally consider 18 years as the relevant age for admission to work, in accordance with article 1 of the instrument. While article 32(2) (a) of the

CRC for instance contemplates the lowering of the age below 18 years, it is clear that the context is different. In other words, the provision is not likely intended to be interpreted in the context of child soldiering, which is certainly one of the most dangerous forms of works. Thus, by calling on states to take measures to fix ‘a minimum age or minimum ages for admission to

employment’, article 32(2) (a) generally refers to less dangerous works. Indeed, there should be no controversy as to this, as the ILO Minimum Age Convention 138, had earlier clarified the instances where the idea of a minimum age might be relevant. The content of article 38 of the CRC is thus a clear departure from the wider notion of ‘protection’ canvassed in the treaty nor does it advance the goal of child participation. Again, the idea of balancing between protection and participation earlier referenced in this study relates to other areas of work, not the unconditional worst forms which includes child soldiering. Apart from this, the provision of article 38(2) above only applies to direct involvement in hostilities. In other words, children below the age of 15 years may indirectly take part in hostilities.121 This provision tends to undermine existing International Humanitarian Law which already applies to both direct and indirect involvement in hostilities;122 and was opposed to by several States during the drafting of the instrument. The opposing States preferred an absolute ban with regard to the participation

121 Fiona Ang, ‘Article 38 – Children in Armed Conflicts’ in André Alen and others (eds), A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff 2005) 37.

122 Existing International Humanitarian Law standards, especially the Additional Protocol II to the Geneva Convention had for instance protected children against indirect participation during internal conflict. See generally Radhika Coomaraswamy, ‘The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict – Towards Universal Ratification’, Int. J. C. Rights. 18(2010) 538. More generally, the language of article 38(2) CRC tends to mirror the provisions of article 77(2) of the Additional Protocol I to the Geneva Convention regarding direct participation in hostilities; article 77(2) states: ‘The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces (. . .). On the other hand, the Additional Protocol II to the Geneva Convention is differently worded as it omits the use of ‘direct’. The article states: ‘Children shall be provided with the care and aid they require, and in particular (. . .) children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities.’ Thus, article 38(2) in many ways challenges the content of the Additional Protocol II to the Geneva Convention by limiting its scope only to direct participation. It is to be noted however that Additional Protocol II addresses non-international armed conflict while Additional Protocol I addresses international armed conflict.

of children below the age of 15 years.123 Thus, the Optional Protocol was adopted to respond to some of these challenges.

It is possible to question the link between the involvement of children in armed conflict and the concept of child labour. The answer to this is however not far-fetched. The ILO Convention

182 for instance defines the worst forms of child labour to include, ‘all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict’ (emphasis added).124 This provision demonstrates that the forced recruitment of children by armed organisations is a practice similar to slavery, and thus prohibited in absolute terms. It is worth pointing out that, the Worst Forms Convention only applies to forced or compulsory recruitment of children, it does not address instances of voluntary enlistment into any armed group.

Thus, the Optional Protocol to the CRC sets out to address some of the inadequacies of earlier instruments, especially the CRC. Article 1 of the Protocol provides that, ‘States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities.’ The major difference between this provision and article 38 of the CRC is that, the relevant age under the CRC is 15 years, while the applicable age under the Optional Protocol is 18years. Thus, the Optional Protocol has only

123 Matthew Happold, ‘Child Soldiers in International Law: The Legal Regulation of Children’s Participation in Hostilities’ (2000) 47 Netherlands International Law Review 27, 36. Nevertheless, direct was inserted into the final text of the instrument. Commenting on this a writer notes that: ‘Many delegations belonging to the Working Groups drafting this article had expressed to be in favour of the deletion of the word ‘direct’, but in the end, the adoption of the third paragraph was considered to render the prevention of 15- to 18-year olds taking any part in hostilities while they could be legitimately recruited, unrealistic’, see: Fiona Ang, ‘Article 38 – Children in Armed Conflicts’ in André Alen and others (eds), A Commentary on the United Nations Convention on the Rights of the Child (Martinus Nijhoff 2005) 37.

124 Article 3(a) C182.

rectified an aspect, that is, the raising of the age of direct participation in hostilities to 18 years.125 The other aspect which concerns the indirect involvement of children (below 18 years) is left unattended to. Despite the progress made, the failure of the Optional Protocol to address this issue nonetheless constitutes a fundamental gap in the instrument.

Also, article 2 provides that, ‘States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.’ This provision bears some semblance with the ILO Worst Forms Convention, which equally prohibits the forced or compulsory recruitment of children for use in armed conflict.126 In this regard however, it should be mentioned that, article 38 of the CRC adopts a rather elusive language. Although it obliges states parties to respect relevant international humanitarian laws, it does not specifically employ the word ‘forced’ or ‘compulsory’, neither does it explicitly mention the word

‘voluntary’ recruitment of children. The failure of the Worst Forms Convention to explicitly

125 It is worth mentioning that while the notion of direct participation has traditionally related to the protection of civilians from being considered as legitimate targets during hostilities, i.e., civilians who do not directly participate in hostilities may not be targeted; the terms ‘active’ and ‘direct’ are usually viewed synonymously in international humanitarian law, see: Joshua Yuvaraj, ‘When Does a Child ‘Participate Actively in Hostilities’ under the Rome Statute? Protecting Children from Use in Hostilities after Lubanga’ (2016) 32(83) Utrecht Journal of International and European Law, 70. Furthermore, in 2009, the International Committee of the Red Cross (ICRC) released an interpretive Guidance regarding the notion of direct participation in hostilities; although not a legally binding instrument, the ICRC guideline stipulates a set of criteria on acts which may be characterised as direct involvement in hostilities: (1) Threshold of harm: the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury or destruction on persons or objects protected against direct attack; (2) Direct causation: there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which that act constitutes an integral part; (3) Belligerent nexus: the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another: see, Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC, 2009) 11. More generally, there is very little guidance on the meaning of ‘indirect’ participation in the interpretive guideline, see ibid, 43. It has however been noted elsewhere that, indirect participation includes in particular, gathering and transmission of military information, transportation of arms and munitions, provision of supplies etc., see, Yves Sandoz, Christopher Swinarski and Bruno Zimmerman, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff 1987) para 3187.

126 Article 3(a) C182.

address the issue of voluntary recruitment of children, and the elusive wording of the CRC is however dealt with to some extent by the Optional Protocol. It provides in article 3 that:

1. States Parties shall raise the minimum age for the voluntary recruitment of persons

into their national armed forces from that set out in article 38, paragraph 3, of the

Convention on the Rights of the Child, taking account of the principles contained in that

article and recognizing that under the Convention persons under the age of 18 years are

entitled to special protection.

2. Each State Party shall deposit a binding declaration upon ratification of or accession

to the present Protocol that sets forth the minimum age at which it will permit voluntary

recruitment into its national armed forces and a description of the safeguards it has

adopted to ensure that such recruitment is not forced or coerced.

3. States Parties that permit voluntary recruitment into their national armed forces under

the age of 18 years shall maintain safeguards to ensure, as a minimum, that:

(a) Such recruitment is genuinely voluntary;

(b) Such recruitment is carried out with the informed consent of the person's parents or

legal guardians;

(d) Such persons provide reliable proof of age prior to acceptance into national military

service.

4. Each State Party may strengthen its declaration at any time by notification to that

effect addressed to the Secretary-General of the United Nations, who shall inform all

States Parties. Such notification shall take effect on the date on which it is received by

the Secretary-General.

5. The requirement to raise the age in paragraph 1 of the present article does not apply

to schools operated by or under the control of the armed forces of the States Parties, in

keeping with articles 28 and 29 of the Convention on the Rights of the Child.

Although article 3 above is a considerable improvement on earlier instruments, especially the

CRC and the ILO Worst Forms Convention, nevertheless, the provision does not fully address the issue of children’s voluntary recruitment into armed forces. More importantly, article 3(1) of the Optional Protocol makes reference to article 38 of the CRC in a rather confusing manner.

It requires states parties to raise the minimum age for voluntary recruitment into their armed forces above the one set out in article 38(3) of the CRC, whereas, that provision in the CRC makes no express mention of ‘voluntary recruitment’. Among other things, article 38(3) of the

CRC provides that, ‘States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces…’. This provision can for instance be argued to refer to forced or compulsory recruitment. If this is the case, then the idea of raising the age in connection with the CRC may be difficult to substantiate.

Also, the safeguards contained in article 3(3) of the Optional Protocol may be unnecessary if the involvement of children in armed conflict was genuinely considered to be an unconditional worst form of child labour. Considering the harm or risk involved in military activities, fixing the relevant age at 18 years would have reflected a wider international consensus, in conformity with article 3 of the Worst Forms Convention. Since the involvement of children in armed

conflict is classed under the same category as such practices, including prostitution or child pornography,127 which may not be justified by the consent of the child, it is not clear how to reconcile the inconsistency between article 3(3) of the Optional Protocol and article 3(a) of the

Worst Forms Convention which addresses unconditionally prohibited forms of child labour.

Article 4 of the Optional Protocol further stipulates that, ‘armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.’ The phrase ‘under any circumstances’ in this article implies that, armed groups are prohibited from recruiting children below the age of 18 years, either voluntarily or forcibly. This is an important provision, considering that neither the CRC nor the

Worst Forms Convention impose any particular obligation on non-state armed groups.

Whereas, the vast majority of children that take part in armed conflicts are recruited by non- state entities.128 However, this provision may be difficult to enforce, given that the traditional architecture of international human rights laws is designed to address states – only states can become parties to treaties and therefore bound by treaty obligations, strictly speaking.129 Also, it is to be noted that the language ‘should’ utilised in article 4 above is often employed in legal writings to denote a desirable objective not a mandatory one – mandatory obligations are usually conveyed with such words as ‘must’. This implies that no strict obligations are imposed on non-state armed groups in this provision. In any case, it appears that the activities of non-

127 Article 3(a) of C182 for instance groups forced or compulsory recruitment for use in armed conflict together with prostitution, child pornography and other practices analogous to slavery.

128 Radhika Coomaraswamy, ‘The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict – Towards Universal Ratification’, Int. J. C. Rights. 18(2010) 540.

129 Exceptionally, armed groups in non-international armed conflicts are bound inter alia by article 3 of the 1949 Geneva Convention IV, and in some cases, the Second Additional Protocol to the Geneva Conventions. See generally, Daragh Murray, Human Rights Obligations of Non-State Armed Groups, (Hart Publishing, Oxford, 2016) 7. See also, Convention IV, relative to the Protection of Civilian Persons in Time of War (Adopted 12 August 1949); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), (Adopted 8 June 1977).

state actors are generally expected to be regulated by the relevant states.130 However, given the reality that some non-state actors wield enormous powers,131 effective regulation by state actors may prove difficult. In this regard, there might be opportunities in resorting to the International

Criminal Court (ICC). The Rome Statute of the Court expressly prohibits the ‘conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities.’132 The expression ‘conscripting or enlisting’ utilised here implies that the active recruitment of children and passively allowing them to enlist are equally prohibited.133 The challenge here, however, is that the Rome Statute only relates to children below the age of 15. In this case, prosecution for the recruitment of children above that age but below age 18 may fall outside the scope of the ICC. Nonetheless, the ICC may still serve a deterrence role to discourage the recruitment of child soldiers, especially for those below age

15. Thus, while state actors may lack de facto powers to regulate the activities of such armed

130 More recent studies have however explored possible ways of expanding the traditional scope of human rights obligations beyond the current state-centred approach, to include non-state actors. Andrew Chapman for instance challenged the view that efforts to extend human rights duties to non-state actors may confer some legitimacy of such actors. He argues that existing rules of international law already contain some elements which may cause non-state actors to be held accountable for violations. The enforcement regimes of international tribunals for instance demonstrate that individuals, even in the absence of state links, may be held accountable and punished at the national and international level. See, Andrew Clapham, Human Rights Obligations of Non-State Actors, (OUP, 2006) 25 - 30. See also, Daragh Murray, Human Rights Obligations of Non-State Armed Groups, (Hart Publishing, Oxford, 2016) 7.

131 Aside from their military capabilities, some non-state actors have well established institutions like courts, or arbitration tribunals, some are also reported to collect taxes. See Daragh Murray, Human Rights Obligations of Non-State Armed Groups, (Hart Publishing, Oxford, 2016) 2.

132 Article 8(2)(e)(vii) of the Rome Statute.

133 William Schabas, An Introduction to the International Criminal Court (Cambridge, 3rd ed, 2007) 50; cited in Sandhya Nair ‘Child soldiers and international criminal law: Is the existing legal framework adequate to prohibit the use of children in conflict? (2017) 2, Perth Journal of International law, 48.

groups, the resources available at the international level (ICC) may be deployed to achieve a measure of retributive justice.134

2.9 THE CONCEPT OF CHILD LABOUR UNDER THE AFRICAN CHILDREN’S

CHARTER135

Although the African Charter on the Rights and Welfare of the Child (African Children’s

Charter, or ACRWC) bears some semblance with the CRC, the Charter however has some distinct features. The instrument specifically takes into account the virtues of the African cultural heritage, historical background, as well as the values of African civilisation.136 The charter was specifically designed as a regional response to some perceived omissions in the

CRC. More importantly, since African states played a rather marginal role in the drafting of the

134 The ICC for instance secured its first ever conviction, in a case which incidentally involved the recruitment of children into a non-state armed group. In this regard, Thomas Lubanga Dyilo was found guilty by the ICC on 14 March 2012, of war crimes, for enlisting and conscripting children under the age of 15 years and using them to participate actively in hostilities in his militia group, Union of Congolese Patriots. Lubanga was sentenced to 14 years of imprisonment on 10 July 2012. This sentence was confirmed by the Appeals Chamber of the Court on 1 December 2014. See generally: The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06.

135 The African Charter on the Rights and Welfare of the Child, is the regional instrument protecting the rights of children in the African continent. Generally, while the CRC entered into force within a year after its adoption, it took nearly ten years for the African Children’s Charter to enter into force. Thus, while the instrument was adopted on 11 July 1990, it only entered into force 29 November 1999, as it initially failed to receive the required number of ratifications it needed to enter into force, (i.e ratification by 15 states), as stipulated under article 47(3) of the instrument.

136 Amanda Lloyd, ‘Evolution of the African Charter on the Rights and Welfare of the Child and the African Committee of Experts: Raising the gauntlet’, 2002, 10, IJCR 180.

CRC,137 the adoption of an instrument which reflected the regional peculiarities and which also demonstrated the African conception of children’s rights was considered necessary.138

Generally, the ACRWC contains a brief and unequivocal definition of a child. It provides in article 2 that, ‘a child means every human being below the age of 18 years.’ Thus, unlike article

1 of the CRC which provides that, ‘a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’, the African

Children’s Charter leaves no room for exception. It has however been argued that the qualification in the CRC was inspired by the fact that certain communities view the duration of childhood much differently.139 Quite ironically, the African Children’s Charter, which symbolises a testament to an African conception of childhood, and which canvasses for children’s economic involvement in certain contexts, adopts a fixed and inflexible definition of childhood. In other words, while the exception contained in article 1 of the CRC was largely targeted at non-Western children, including those from Africa, the charter which originates from the continent fails to identify with such perspective; this issue is discussed further in chapter 7 where a more flexible approach is suggested.

With specific regard to the notion of child labour, article 15(1) of the African Children’s Charter provides that, ‘[e]very child shall be protected from all forms of economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s physical, mental, spiritual, moral, or social development.’ Although the content of article 15(1) is closely

137 Morocco, Algeria, Senegal and Egypt, were the only African states that took active roles during the drafting process. See generally, Julia Sloth-Nielsen, ‘Modern African Childhoods: Does Law Matter?’ in Michael Freeman, Law and Childhood Studies: Current Legal Issues, (OUP, 2012) 124.

138 Julia Sloth-Nielsen, ‘Modern African Childhoods: Does Law Matter?’ (ibid).

139 Danwood Mzikenge Chirwa, ‘The Merits and Demerits of the African Charter on the Rights and Welfare of the Child’ (2002) 10 The International Journal of Children s Rights 158.

worded as article 32 of the CRC, yet, there remains some divergence between the two instruments. Article 32 of the CRC provides 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.’ Thus, unlike the CRC, the African

Children’s Charter draws no particular link between child labour and education. In other words, works which interfere with education are not necessarily unlawful under the charter.

Further, it is worth noting, that, the content of Article 15(2) of the ACRWC is more specifically worded than the corresponding provision in the CRC. The article provides that, ‘State Parties to the present Charter take all appropriate legislative and administrative measures to ensure the full implementation of this Article which covers both the formal and informal sectors of employment and having regard to the relevant provisions of the International Labour

Organization’s instruments relating to children.’ Thus, unlike article 32(2) of the CRC, article

15(2) of the African Children’s Charter specifically mentions the formal as well as informal economy.140 Therefore, this provision not only has a normative relevance for economic activities undertaken in the traditional workplace, but also in the family as well as other largely unregulated sectors. Furthermore, article 15(2) also mentions that national implementation measures must conform to relevant ILO conventions. The equivalent provision in article 32(2) of the CRC however employs a much broader phrasing. It indicates that, ‘and having regard to the relevant provisions of other international instruments.’ Although no specific instrument is

140 The informal economy may generally refer to ‘all forms of “informal employment”—that is, employment without labour or social protection—both inside and outside informal enterprises, including both self- employment in small unregistered enterprises and wage employment in unprotected jobs.’ See Martha Alter Chen, Rethinking the Informal Economy: Linkages with the Formal Economy and the Formal Regulatory Environment (2007) DESA Working Paper No. 46, 2. On the contrary, a marked distinction of the formal economy is regulation and higher levels of protection.

mentioned, it is clear that ‘the relevant provisions of other international instruments’ would include the ILO treaties.

Article 15(2) of the ACRWC further requires state parties to particularly:

(a) provide through legislation, minimum wages for admission to every employment;

(b) provide for appropriate regulation of hours and conditions of employment;

enforcement of this Article;

(d) promote the dissemination of information on the hazards of child labour to all sectors

of the community.

The content of paragraphs (a) & (d) above are quite unique, in that, there are no equivalent provisions under article 32 of the CRC. Although article 15(2) above does not impose an express obligation to ‘[p]rovide for a minimum age or minimum ages for admission to employment’, like article 32(2) of the CRC, specific reference to the ILO conventions under article 15(2) has largely rectified this void. In other words, taking measures that conform with the ILO instruments may also imply an obligation to provide a minimum age for admission to employment.

With regard to the use of children in armed conflict, it is worth noting that, the African

Children’s Charter is the only legally binding instrument at the regional level to explicitly address this theme.141 Thus, article 22 of the ACRWC provides that:

1. State Parties to this Charter shall undertake to respect and ensure respect for rules of

international humanitarian law applicable in armed conflicts which affect the child.

2. State Parties to the present Charter shall take all necessary measures to ensure that no

child shall take a direct part in hostilities and refrain in particular, from recruiting any

child.

3. State Parties to the present Charter shall, in accordance with their obligations under

international humanitarian law, protect the civilian population in armed conflicts and

shall take all feasible measures to ensure the protection and care of children who are

affected by armed conflicts. Such rules shall also apply to children in situations of

internal armed conflicts, tension and strife.

It should be noted that, the content of article 22(1) above is almost a verbatim reproduction of article 38(1) of the CRC. However, unlike the CRC, the unequivocal definition of a child as anyone below the age of 18 years in the ACRWC, tends to resonate throughout the instrument.

The obligation imposed on states in article 22(2) above, to ensure that children do not take direct part in hostilities, has to be read together with article 2 of the instrument, which contains the definition of a child. Accordingly, children below the age of 18 years may not take direct part in hostilities. This provision radically departs from the CRC which it tends to model in

141 Karl Hanson, ‘International Children’s Rights and Armed Conflict’ (2011), 5(1) Human Rights & International Legal Discourse, 46.

many instances. The African Children’s Charter is indeed the first and only regional instrument to set 18 years as the minimum age for recruitment and direct participation in hostilities.142 At the international level, a similar provision in the CRC for instance provides that, ‘States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.’ The problem with this aspect of the CRC and its implications for children has already been addressed under the Optional Protocol on armed conflict above. It should be stated that, the African Children’s Charter largely contains a degree of uniformity, which is evidently absent in the CRC. Thus, the charter is a considerable improvement over the CRC in this regard, as children below the age of 18 are legally protected from taking direct part in hostilities. It should however be noted that, the African Children’s

Charter only protects children from taking ‘direct’ part in hostilities, without making any references to ‘indirect’ hostilities. Thus, similar problem observed in the CRC and the Optional

Protocol on Armed Conflict, is still perpetuated in the ACRWC.143

Also, like the CRC, the African Children’s Charter makes no distinction between forced and voluntary recruitment of children. However, since there are no age variations in the ACRWC, such distinctions may be irrelevant. In order words, ‘straight 18 years’ would arguably apply

142 Radhika Coomaraswamy, ‘The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict – Towards Universal Ratification’, (2010) 18 Int. J. C. Rights. 539.

143 In this regard, Karl Hanson notes that, for states that have ratified both the CRC as well as the Optional Protocol on armed conflict, indirect participation is technically allowed if children are members of the national armed force, at least according to the wordings of the two instruments (article 38(2) CRC & article 1 of the Optional Protocol), but prohibited if they belong to non-state armed groups, since these groups are prevented from ‘any’ use in hostilities of children below the age of 18 years. Hanson further pointed out that, the Committee on the Rights of the Child, in its interpretation of the relevant provisions also bypassed the distinction between ‘direct’ and ‘indirect’ involvement in hostilities. For instance, the Committee simply employed the phrase ‘the involvement in hostilities’, in its General Recommendation on Children in Armed Conflict of 1998. (Report on the Nineteenth Session, Recommendation Adopted by the Committee on the Rights of the Child: Children in Armed Conflict (CRC/C/80) 1998, 4); see generally, Karl Hanson, ‘International Children’s Rights and Armed Conflict’ (2011), 5(1) HR&ILD, 52.

whether the recruitment is forced or voluntary. With regard to forced recruitment for instance, the Optional Protocol to the CRC provides that, ‘States Parties shall ensure that persons who have not attained the age of 18 years are not compulsorily recruited into their armed forces.’ 144

While the age for forced recruitment is fixed at 18 years, the Protocol however backtracks with regard to voluntary recruitment. As previously noted, it presents a number of safeguards to be observed whenever children below age 18 are to be voluntarily recruited.145 None of these safeguards or age relaxation may however be found in the African Children’s Charter, indicating that, whether recruitment is forced or voluntary, the applicable age would be 18 years.

Also, while article 22 of the ACRWC generally protects children from taking direct part in

(international) armed conflicts, article 22(3) offers additional protection, by stipulating that the provision equally applies to situations of internal armed conflicts. For the most part, the wording of the African Children’s Charter leaves no room for assumption, in the sense that, the express mention of internal armed conflict demonstrates its relevance not only for international hostilities, but also for internal ones. Neither the CRC nor the Optional Protocol makes any express mention of internal armed conflict.

As previously noted, while engaging with C182, Holly Cullen observed that, the ILO convention specifically addresses the issue of child soldiers as a purely child labour issue. 146

She concluded that, the nature of a conflict, whether internal or international is irrelevant as far

144 Article 2 Optional Protocol.

145 Article 3 Optional Protocol on Armed conflict.

146 Holly Cullen, ‘Does the ILO have a distinctive role in the International Legal Protection of Child Soldiers?’ (2011) 5(1) HR&ILD, 73.

as the Worst Forms Convention is concerned.147 In the same vein, considering that the element of child labour is almost always present in the recruitment of (underage) child soldiers

(notwithstanding the subject matter of the treaty), it may be argued that a failure to expressly refer to internal armed conflict in a treaty, may not diminish its relevance in situations of internal strife – since the notion of child labour is always to be internally regulated by states. In other words, states have an obligation under international law to protect children from child labour; this obligation can be extended to protect children from being recruited by armed groups during hostilities (whether internal or international).

Regarding the recruitment of children by non-state armed groups, like the CRC, the African

Children’s Charter also fails to specifically address this theme. Article 22(2) provides that,

‘State Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and refrain in particular, from recruiting any child.’ Thus, as duty bearers, this article explicitly addresses state parties. While we can for instance interpret the word ‘recruitment’ in article 22(2) to cover both ‘forced’ as well as ‘voluntary’ forms, the article cannot be interpreted to cover both state and non-state armed groups. A contextual reading of the article will indicate this. Thus, even though state armed forces are not expressly mentioned, this provision exclusively applies to them, and may not be extended to non-state armed actors; nonetheless, states would be expected under their obligation to protect to prevent any such recruitment by non-state armed entities.

With regard to the sexual exploitation of children, article 27 of the ACRWC provides that:

147 Ibid.

1. State Parties to the present Charter shall undertake to protect the child from all forms

of sexual exploitation and sexual abuse and shall in particular take measures to prevent:

(a) the inducement, coercion or encouragement of a child to engage in any sexual

activity;

(b) the use of children in prostitution or other sexual practices;

Comparing this provision with the CRC, a writer correctly observed that, the African Children’s

Charter has carefully avoided some of the criticisms levelled against the UN Convention. 148 A number of these criticisms have already been pointed out under the CRC section above. More specifically, the corresponding provision under the CRC obliges states parties to prevent, ‘the inducement or coercion of a child to engage in any unlawful sexual activity,’ 149 and ‘the exploitative use of children in prostitution or other unlawful sexual practices,’150 as well as ‘the exploitative use of children in pornographic performances and materials.’151 Thus the ACRWC has succeeded in dropping the controversial wordings employed in the CRC, including

‘exploitative’ and ‘unlawful’. While the CRC for instance prohibits the ‘exploitative’ use of children, the African Children’s Charter generally prohibits the ‘use’ of children. Therefore,

148 Chirwa (n 139) 166.

149 Article 34(a) CRC.

150 Article 34(b) CRC.

151 Article 34(c) CRC.

under the ACRWC, there can be no valid ground to use children in any of the identified categories.152 This aspect of the ACRWC is a major improvement over the CRC.

Further, in a relatively similar manner, the ACRWC153 and the CRC154 both prohibit the use of children in the production and trafficking of narcotic drugs and other psychotropic substances.155 The relevant provision under the ILO Worst Forms Convention, although worded somewhat differently, also has essentially the same content as the ACRWC and the CRC.156

With specific regard to the abduction, sale and trafficking of children, article 29 of the African

Children’s Charter provides that:

State Parties to the present Charter shall take appropriate measures to prevent:

(a) the abduction, sale of, or traffic in children for any purpose or in any form, by any

person including parents or legal guardians of the child;

(b) the use of children in all forms of begging.

152 See generally, Vitit Muntarbhorn, A Commentary on the United Nations Convention on the Rights of the Child – Article 34, Sexual Exploitation and Sexual Abuse of Children (Martinus Nijhoff, 2007) 18, 19.

153 Article 28 ACRWC.

154 Article 33 CRC.

155 Generally, while article 28 of the African Children’s Charter provides that, ‘State Parties to the present Charter shall take all appropriate measures to protect the child from the use of narcotics and illicit use of psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the production and trafficking of such substances’; article 33 of the CRC stipulates that, States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.

156 Article 3(c) of ILO C182 for instance prohibits, ‘the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties.’

This provision, in consonance with the more specific wording of the ACRWC, contains provisions that may not be found in the CRC. For instance the corresponding article under the

CRC only obliges states parties to ‘… prevent the abduction of, the sale of or traffic in children for any purpose or in any form.’157 Thus, the African Children’s Charter goes a step further by specifically including the parents and legal guardians of the child. This is potentially to prevent certain widespread practices in some parts of Africa, whereby parents or legal guardians are directly involved in the illegal transfer of children. The phrasing of the CRC may for instance cause attention to be misplaced, by focusing on individuals not legally connected to the child, whereas, it may be that the bulk of these practices are carried out by those in loco parentis or even the biological parents of the child. Thus, the African Children’s Charter is an important contribution in this regard. Also, the ACRWC explicitly prohibits the use of children in all forms of begging. In this regard, it has been observed that the ACRWC is the first international human rights instrument to contain any such prohibition.158 This is equally another important contribution, as it captures a practice that sometimes occurs on a large scale in some African countries. Indeed, this is probably one of the commonest forms of child labour experienced by children in some of the African countries, whereby children are sent out to beg (e.g., by their guardians), and at the end of the day nearly all their proceeds are taken away from them.159

157 Article 35 CRC.

158 Chirwa (n 139) 166.

159 A prime example of this is the experience of Talibe children in Senegal. Talibes are children (mostly boys), who take Quranic instructions from Marabouts (religious teachers). Parents have long sent their children for religious education from these individuals, with whom the children typically reside until completion of their Islamic studies. Given the enormous influence of the Marabouts, thousands of children, including many brought from neighbouring countries are forced to beg for the benefit of their Quranic teachers. Thus Marabouts have today turned religious education to their own economic advantages. The Human Rights Watch for instance, indicates that, these Islamic teachers often demand that children bring back a certain amount of money, sugar and uncooked rice, and whenever they fail to meet a daily quota, the punishment is always severe. See generally, Human Rights Watch, Off the Backs of the Children: Forced Begging and Other Abuses

2.10 THE APPROACH OF OTHER RELEVANT TREATIES TO THE CONCEPT OF

CHILD LABOUR

This section examines the perspective of other (non-child specific) human rights treaties to the concept of child labour. This will demonstrate whether the relevant instruments take any particularly different approach to the concept, or whether their perspectives are consistent with some of the treaties already considered. Also, the prohibition of child labour in some of these treaties may demonstrate the normative importance of the theme, in that, it extends beyond the scope of child-specific treaties. However, since some of these instruments have already been highlighted above (e.g., the 1926 League of Nations Slavery Convention; the 1956

Supplementary Convention), this section will only focus on other relevant instruments not yet addressed.

2.10.1 THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

As a starting point, it is useful to indicate that, the Universal Declaration of Human Rights

(UDHR), although not a treaty, and as such, not a legally binding instrument, generally has extensive relevance in the field of international human rights law.160 The UDHR together with the two Covenants adopted in 1966161 for instance make up what is generally known as the international bill of rights.162 With regard to slavery, article 4 of the UDHR provides that, ‘no

against Talibes in Senegal (HRW New York, 2010) 2, 4. Thus, effective implementation of the African Children’s Charter may help curtail some of these exploitative practices, in the form of begging.

160 It has been pointed out that, much of the content of the UDHR stem from customary international law. See generally, M. A. Glendon, ‘The rule of law in the Universal Declaration of Human Rights’, (2004) 2 Northwestern University Journal of International Human Rights, 5.

161 The International Covenant on Civil and Political Rights, and the International Covenant on Economic Social and Cultural Rights.

162 Kevin Bales & Peter T. Robbins, ‘No One Shall be Held in Slavery or Servitude: A Critical Analysis of International Slavery Agreements and Concepts of Slavery’, (2001) 2 Human Rights Review, 26 (18 – 45).

one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.’ It is worth noting that, this article generally refers to slavery, servitude and the slave trade, and makes no specific mention of practices analogous to slavery,163 ‘such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour’, as may be found in article 3 of the ILO Worst Forms Convention for instance.164 Also, nowhere in the UDHR was the right of children to be protected from economic exploitation expressly mentioned.

However, the adoption of the International Covenant on Civil and Political Rights (ICCPR), as well as the International Covenant on Economic Social and Cultural Rights (ICESCR) in 1966 expanded and further translated some of the content of the UDHR in more concrete terms.

2.10.2 THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

The ICCPR was adopted in 1966 and entered into force in 1976. The scope of the treaty covers nearly all aspects of international human rights law. With specific regard to child labour, like the UDHR, article 8 of the ICCPR prohibits, inter alia, slavery and servitude. The article however goes further to prohibit other activities, including forced or compulsory labour. The wording of article 8 reads as follows:

163 See, Silvia Scarpa, ‘Child Trafficking: International Instruments to Protect the Most Vulnerable Victims’, (2006) 44(3), Family Court Review, 438. (429 – 447).

164 It has however been argued that the notion of ‘servitude’ in article 4 of the Declaration was intended to cover practices including forced or compulsory labour. See, N. Lassen, ‘Article’ in G. Alfredsson & E Asbjorn (eds), The Universal Declaration of Human Rights, A Common Standard of Achievement (Martinus Nijhoff, 1999) 105, Cited in Franziska Humbert. In accordance with the view canvassed by Lassen, Franziska Humbert further argued that, since the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, addresses the notion of exploitative child labour as a form of modern slavery, the prohibition of ‘servitude’ in article 4 of the UDHR may be interpreted to include exploitative child labour. See generally, Humbert (n 12) 45.

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2. No one shall be held in servitude.

3.(a) No one shall be required to perform forced or compulsory labour;

(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;

(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;

(ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;

(iii) Any service exacted in cases of emergency or calamity threatening the life or wellbeing of the community;

(iv) Any work or service which forms part of normal civil obligations.

Since all the rights contained in the ICCPR are applicable to both adults and children alike, the content of article 8 above is thus relevant for the present study.165 Generally, while an absolute ban is placed on practices such as slavery, servitude, and all forms of the slave-trade,166 article

8(3) allows for certain exceptions with regard to forced or compulsory labour. The prohibition of forced or compulsory labour may for instance not preclude a competent court from imposing a sentence of hard labour on offenders. It is however worth noting that, while article 8 broadly applies to all individuals, including children, the exceptions contained in article 8(3) may not always apply to children. For instance, the provision may not apply to a child who has not attained the age of majority in civil and criminal matters.167 This age is generally to be

165 Interpreting this article, The Human Rights Committee has particularly noted that, ‘having regard to their obligations under article 8, States parties should inform the Committee of measures taken to eliminate trafficking of women and children, within the country or across borders, and forced prostitution. They must also provide information on measures taken to protect women and children, including foreign women and children, from slavery, disguised inter alia as domestic or other kinds of personal service. States parties where women and children are recruited, and from which they are taken, and States parties where they are received should provide information on measures, national or international, which have been taken in order to prevent the violation of women’s and children’s rights.’ See, Human Rights Committee, General Comment 28, Equality of rights between men and women (article 3), U.N. Doc. CCPR/C/21/Rev.1/Add.10 (2000), Para 12. Thus, although children are not specifically mentioned in this article, it nonetheless applies to them. Previous recommendations of the Human Rights Committee to the states, including, the Philippines, Sri Lanka, Mali, demonstrate the need to eradicate child trafficking as part of their obligations under the article 8 of the ICCPR. See generally, Silvia Scarpa, ‘Child Trafficking: International Instruments to Protect the Most Vulnerable Victims, 44(3) (2006), Family Court Review, 438.

166 Article 4(2) ICCPR.

167 There is generally no international consensus on a specified minimum age. Ton Liefaard, has pointed out that the highly controversial nature of the issue is a major reason for the lack of consensus. See generally, Ton Liefaard, ‘Juvenile Justice from an International Children’s Rights Perspective’ in Vandenhole and others (n 9) 243.

determined by the relevant states parties,168 but may not be less than 12 years in any case. 169

Moreover, even for those who have attained the age of majority, the exceptions in article 8(3) may still not apply to children. In the first instance, a sentence of hard labour usually occurs in the context of detention and deprivation of personal liberty, whereas, article 37(b) of the CRC states that: ‘No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.’170 Furthermore, with specific regard to a sentence of hard labour, it seems the provisions of article 8(3) would only apply to adults to the exclusion of children. In this regard, the United Nations Rules for the

Protection of Juveniles Deprived of their Liberty states:

All disciplinary measures constituting cruel, inhuman or degrading treatment shall be

strictly prohibited, including corporal punishment, placement in a dark cell, closed or

solitary confinement or any other punishment that may compromise the physical or

168 For instance, article 40(3) (a) of the CRC oblige state parties to establish ‘a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.’ In a similar vein, article 17(4) of the African Children’s Charter urge relevant states parties to set ‘a minimum age below which children shall be presumed not to have the capacity to infringe the penal law.’ Elaborating on the content of article 40(3), the UN Committee on the Rights of the Child has pointed out that, ‘children who commit an offence at an age below that minimum cannot be held responsible in a penal law procedure. Even (very) young children do have the capacity to infringe the penal law but if they commit an offence when below [the minimum age of criminal responsibility] the irrefutable assumption is that they cannot be formally charged and held responsible in a penal law procedure. For these children special protective measures can be taken if necessary in their best interests.’ See, Para. 31, General Comment No. 10 of 2007, on Children’s Rights in Juvenile Justice, CRC/C/GC/10, 25 April 2007.

169 The CRC Committee has argued that, a minimum age below the age of 12 years is internationally considered to be too low and therefore unacceptable. Accordingly, states parties are encouraged to raise the relevant age to 12 years at the absolute minimum. See Para. 32, General Comment No. 10 of 2007, on Children’s Rights in Juvenile Justice, CRC/C/GC/10, 25 April 2007.

170 Similar to article 37(b), the UN Human Rights Committee has noted that: ‘Children should not be deprived of liberty, except as a measure of last resort and for the shortest appropriate period of time, taking into account their best interests as a primary consideration with regard to the duration and conditions of detention, and also taking into account the extreme vulnerability and need for care of unaccompanied minors.’ See Human Rights Committee, General Comment No. 35, CCPR/C/GC/35, para 18.

mental health of the juvenile concerned. […] Labour should always be viewed as an

educational tool and a means of promoting the self-respect of the juvenile in preparing

him or her for return to the community and should not be imposed as a disciplinary

sanction. (Emphasis added)

The above Rules provide guidance that a sentence of hard labour may not be imposed on the child; any form of work undertaken while in detention must seek to promote the ‘self-respect’ of the child and must be such that empowers the child to integrate into society after completing the prison term. The absence of an equivalent provision (i.e., provisions analogous to article 8 para 3) in any of the child labour specific treaties generally affirms this reasoning that children are not intended to be subjected to hard labour. Thus, Juvenile courts may be precluded from imposing any such sentence on children.

Article 24 of the ICCPR is another provision which specifically recognises the special status of children and the need to protect them from economic exploitation.171 The article provides that,

‘every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.’ This article therefore imposes an obligation on the family, the society and the state to ensure that children are accorded a level of protection which takes their vulnerabilities into account. The Human

171 It should be pointed out that during the drafting process of the ICCPR, a number of states opposed the inclusion of an article which specifically bothered on children’s rights. These states argued that this inclusion was unnecessary considering that the Covenant applied to all individuals irrespective of age and status. Also, ‘if the rights of one special group were singled out for mention in a separate article, the same would have to be done for other groups in need of protection, such as the aged, the mentally handicapped, etc.’ See generally, Draft International Covenants on Human Rights, Report of the Third Committee, (Seventeenth Session, UN General Assembly) A/5655, 10 December 1963, Para 68, 69.

Rights Committee172 has for instance elaborated on the content of this article, in its General

Comment No. 17 of 1989.173 The Committee noted that:

‘every possible economic and social measure should be taken … to prevent them [i.e

children] from being subjected to acts of violence and cruel and inhuman treatment or

from being exploited by means of forced labour or prostitution, or by their use in the

illicit trafficking of narcotic drugs, or by any other means.’174

Generally, while the content of article 24 may seem less applicable to child labour, the above interpretation by the treaty body demonstrates its relevance in child labour contexts.

2.10.3 THE INTERNATIONAL COVENANT ON ECONOMIC SOCIAL AND

CULTURAL RIGHTS

Like the ICCPR, the ICESCR was adopted in 1966 and also came into force in 1976. Although the treaty is generally applicable to both adults and children alike, certain provisions in the instrument have exclusive relevance for children. In particular, article 10(3) provides that:

Special measures of protection and assistance should be taken on behalf of all children

and young persons without any discrimination for reasons of parentage or other

conditions. Children and young persons should be protected from economic and social

exploitation. Their employment in work harmful to their morals or health or dangerous

172 The Human Rights Committee is the treaty monitoring body of the ICCPR.

173 General Comment No. 17, adopted at the Thirty-fifth session of the Human Rights Committee, on 7 April 1989

174 General Comment No. 17, adopted at the Thirty-fifth session of the Human Rights Committee, on 7 April 1989.

to life or likely to hamper their normal development should be punishable by law. States

should also set age limits below which the paid employment of child labour should be

prohibited and punishable by law.

It should be noted that, outside of the child-specific treaties, this article in the ICESCR is probably the most useful instrument to protect children from child labour.175 It has been pointed out that, the treaty is the first human rights instrument to explicitly prohibit the economic exploitation of children.176 There is for instance a relative semblance between the wording of this article and the content of other relevant treaties that followed, including the CRC.177 The scope of this article however covers not only economic exploitation, but also social exploitation.

It is worth noting that, while the child-specific treaties do not specifically employ the phrase

‘social exploitation’, they nonetheless require states to take effective measures to protect children from activities which may be hazardous or interfere with children’s ‘social development’.178

Despite its merits, to a large extent, the rights contained in the ICESCR are mainly limited by the idea of ‘progressive realisation’.179 The concept of progressive realisation generally

175 It should be mentioned that, like the ICCPR, a number of states opposed the inclusion of exploitative child labour in the ICESCR. They argued that such issues should be left to the ILO to handle. However, the majority of states were of the view that an inclusion in the ICESCR was warranted, given the exploitative nature of the act. See, Report of the Eighth Session of the Commission on Human Rights, Chapter IV, Annexes I-VI, eighth session, 1952, E/2256, p. 23. Cited in Franziska Humbert (n 12) P 63.

176 Franziska Humbert (n 12) P 66.

177 Article 32 CRC. See also article 15 ACRWC.

178 See article 32 CRC; article 15(1) African Children’s Charter.

179 Article 2(1) of the instrument provides that, ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.’

‘constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time.’ 180 Thus, since the content of article 10(3) with regard to child labour roughly spreads across the obligations to respect, protect and fulfil – which in this context would arguably require economic resources to satisfy, the ICESCR may ordinarily prove difficult as a mobilisation instrument to urgently address the problem of child labour. However, chapter 7 of this thesis re-engages with this issue, especially the provision of ESC rights through the framework of extraterritorial obligations.

Having discussed the above instruments which address the subject of child labour from a broader perspective, it should be indicated that other instruments, in particular the Domestic

Workers Convention adopted in 2011 (ILO C159), are also relevant in the context of child labour prohibition. Although framed to specifically address domestic work, and thus addressing a narrower aspect of child labour, the treaty is nonetheless relevant. Article 3 of the convention for instance urges member states to take measures which may facilitate the effective abolition of child labour.181 Furthermore, article 4(1) of the convention states that ‘Each Member shall set a minimum age for domestic workers consistent with the provisions of the Minimum Age

Convention, 1973 (No. 138), and the Worst Forms of Child Labour Convention, 1999 (No.

182), and not lower than that established by national laws and regulations for workers

180 The Committee on Economic, Social and Cultural Rights (CESCR) General comment No. 3: The nature of States parties obligations (Art. 2, par.1) Fifth session 14/12/90, para 9. The CESCR further note that the idea of progressive realisation ‘differs significantly from that contained in article 2 of the International Covenant on Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d'être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal.’ Ibid.

181 Article 3(2) (c).

generally.’ Article 4(2) further prohibits any domestic work which deprives the relevant children of educational opportunities. In many ways, the abolitionist approach of the instrument tends to be modelled after the Minimum Age Convention, while the prohibition of works preventing educational opportunities seems to be inspired by both the CRC and the Minimum

Age Convention. The scope and relevance of the Domestic Workers Convention in relation to

Nigeria is discussed further in chapter 4 of this thesis.

Additionally, the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially

Women and Children, supplementing the United Nations Convention against Transnational

Organised Crime (Palermo Protocol), is relevant in the protection from child labour. Although a non-child specific instrument, the title as well as the content give specific attention to the usual victims of trafficking – women and children. Article 3 of the instrument states:

(a) "Trafficking in persons" shall mean the recruitment, transportation, transfer,

harbouring or receipt of persons, by means of the threat or use of force or other forms

of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position

of vulnerability or of the giving or receiving of payments or benefits to achieve the

consent of a person having control over another person, for the purpose of exploitation.

Exploitation shall include, at a minimum, the exploitation of the prostitution of others

or other forms of sexual exploitation, forced labour or services, slavery or practices

similar to slavery, servitude or the removal of organs;

(b) The consent of a victim of trafficking in persons to the intended exploitation set forth

in subparagraph (a) of this article shall be irrelevant where any of the means set forth in

subparagraph (a) have been used;

purpose of exploitation shall be considered "trafficking in persons" even if this does not

involve any of the means set forth in subparagraph (a) of this article;

(d) "Child" shall mean any person under eighteen years of age.

The Palermo Protocol adopted by the UN General Assembly in 2000 was ratified by Nigeria the following year in 2001. As may be seen, article 3 of the Protocol prohibits all forms of trafficking especially in the areas of prostitution, forced labour, slavery and other analogous practices. In many ways, this prohibition language accords with article 3 of the ILO Worst

Forms Convention, which prohibits similar practices for all children below the age of 18.

Similar obligations are also imposed by article 35 of the CRC and, more broadly, the Optional

Protocol on the Sale of Children – making trafficking in children an issue of utmost importance.

Article 5(1) of the Palermo Protocol further provides that ‘Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the conduct set forth in article 3 of this Protocol, when committed intentionally.’ Thus, states parties are required to criminalise all forms of trafficking in children in their national instrument. The extent to which this has been translated in Nigeria is considered in the next chapter.

2.11 REVISITING THE MEANING OF CHILD LABOUR

Having considered the various treaties regulating child labour activities at the international level, this section aims to recall and/or summarise the legal meaning of the term, to ensure consistent understanding in subsequent usage. Generally, as pointed out earlier, the term child labour does not necessarily imply all economic activities undertaken by children, but rather prohibited child work.

Under the Minimum Age Convention (C. 138), States Parties are called upon to set a minimum working age of at least 14 years or the age of completion of compulsory schooling in developing countries.182 The Convention also indicates that national authorities may set a lower age limit of 13, or 12 years in the case of developing states when the activity involves light work which is not likely to harm the health and development of children nor likely to prejudice their attendance at school or approved vocational training.183 The third category of regulation in the

Minimum Age Convention is those which can be potentially harmful or hazardous, for which the relevant minimum age is 18 (or 16, if adequate safety and health measures are provided). 184

Thus, an activity may qualify as child labour if undertaken by children below the specified ages in the three categories.

Apart from the Minimum Age Convention, the ILO Convention on the Worst Forms of Child

Labour (C. 182), is also another cornerstone instrument which addresses the subject of child labour. The Convention 182 spells out a list of practices generally regarded as unconditional worst forms of child labour, for which no child may participate in; these practices include slavery and slavery-like practices, child prostitution, child pornography, etc.185 Similarly, the

UN Convention on the Rights of the Child, although not a labour-specific instrument, equally recognises the right of every 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’.

182 See article 2(3) & (4) as well as article 7(1), (2) & (4).

183 See article 7(1) & (4).

184 See article 3(1)-(3).

185 See generally article 3, ILO Convention 182.

Based on the above, child labour generally denotes a prohibited form of work. Two broad categories can be identified from the treaty regulations: those prohibited on the basis of age and/or conflict with education and those unconditionally prohibited. With regard to activities prohibited on the basis of age and/or conflict with education, child labour is considered to occur when age-specific works are undertaken by children below the specified ages, or when children within the relevant ages do not attend schools as a result of work. The second category refers to works which are prohibited for all children regardless of age (i.e., worst forms). The subsequent chapters in this study refers to the two categories of work as the ‘traditional forms’ of child labour or simply ‘child labour’, and the unconditional worst forms as the ‘more exploitative forms’ of child labour. It should be noted however that activities falling under the two categories are generally prohibited, notwithstanding the language used to describe them.

2.12 CONCLUSION

This chapter has surveyed and analysed the key instruments in regards to child labour. In particular, it has examined the different types and forms of child labour including how they are engaged with in the relevant norms. Some problems with the concept of child labour were also identified in this study. More specifically, this study has demonstrated that, the wider notion of child labour should not be construed from the narrow lens of work place exploitation alone.

The term should be generally understood to include: slavery, trafficking, debt bondage, forced recruitment of children for use in armed conflict, prostitution and pornography, and illicit activities. This view is consistent with the provisions of article 3 of the Worst Forms

Convention, which identifies the highlighted practices as ‘worst forms of child labour’.

Therefore, measures undertaken to prohibit child labour should be extended to practices contained in article 3 of the ILO Worst Forms Convention, as opposed to only those under article 32 of the CRC, or under article 15 of the African Children’s Charter.

Also, by assessing the approach of the international instruments to child labour, some common trends and/or differences were identified. For instance, a number of provisions in the CRC as well as the African Children’s Charter were found to prohibit child labour in similar terms.

These include the content of article 32 of the CRC as well as article 15 of the African Children’s

Charter which largely build on the rights guaranteed under article 10(3) of the ICESCR. A number of differences were also identified. For instance, while the CRC contains some age variations depending on the theme, the African Children’s Charter is rather more consistent by adopting a straight age 18 approach. Also, another main difference in the approach of the instruments is that, while the CRC require states parties to generally ‘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’, the African Children’s Charter draws no particular link between economic exploitation and education. Accordingly, works which interfere with education are not necessarily unlawful under the ACRWC. Also, with regard to child sexual exploitation for instance, although the relevant treaties all prohibit the practice, the approach of the CRC is however somewhat different from others, as it qualified the practice.

For instance, instead of prohibiting the ‘use’ of children, the treaty only prohibits the

‘exploitative use’ of children. However, the Optional Protocol that followed has to some extent rectified this defect. The Protocol generally defines the relevant practices without any such qualification. This chapter further indicated that some gaps still exist in the current international children’s rights instruments. For instance, the indirect involvement of children (below 18 years) in armed conflict, is not addressed in any of the relevant children’s rights treaties.186 In sum, this chapter has offered a comprehensive assessment of the relevant instruments aiming

186 As earlier indicated, this issue was captured by the Additional Protocol II to the Geneva Convention which protected children against indirect participation during internal conflict. The manner in which the relevant children’s rights instruments are worded may undermine the provisions on the Additional Protocol II to the Geneva Convention.

to protect children from child labour. The next chapter will now, examine, in an integrated manner, the extent to which the relevant treaties have been domesticated in Nigeria.

Chapter Three

THE DEVELOPMENT OF CHILDREN’S RIGHTS AND THE CHALLENGE OF

TREATY DOMESTICATION IN NIGERIA

3.1 INTRODUCTION

Having taken a much broader approach to the concept of child labour in chapter 2, i.e., by assessing the concept beyond the prism of workplace exploitation, and also, having engaged with the relevant instruments available at the international level - this chapter will attempt to provide context for the preceding analysis by aiming to understand the manner in which the concept is legally translated in Nigeria. However, before the question of treaty domestication is fully dealt with, attempt is made to first understand the historical roots of child labour regulation in the country, i.e., whether they were introduced by international law or developed from a different source. Thus, the chapter on the one hand, examines the evolution of children’s rights in Nigeria, and, on the other hand, assesses the implementation of child labour standards in the country. Owing to the logical connectedness of children’s rights and child labour, the assessments made in this chapter are gleaned from the broader development of children’s rights in the country. Thus, the chapter begins by presenting the historical trajectories of the concept of childhood as well as the development of child labour standards in the country. This aspect demonstrates the complex history of children’s rights in Nigeria from inception and provides context for problems currently faced in the country (which is considered in the second part of the chapter).

Moreover, in considering the extent and challenges of implementing relevant child labour treaties, this chapter addresses the issues of legal pluralism and its manifestations on child labour protection in Nigeria. This aspect considers how the fraught relations between different legal norms (common law, Islamic law and customary law) impact on the implementation of

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relevant treaties. In this regard, it is reflected that a number of states in Nigeria, especially those in the mainly Muslim north, have continued to object to the Child Rights Act (CRA), 2003,187 such that the statute has no legal significance in these states. The basis and implications of these objections are highlighted. Also, in the absence of the CRA in the states, alternative legal avenues which may offer protection from child labour are examined.

3.2 CHILDHOOD IN PREMODERN NIGERIA188

The more popularised concept of childhood and children’s rights is a relatively recent agenda in Nigeria.189 Prior to colonialism, and the broader recognition of children’s rights at the international level, the term was understood much differently in the country.190 For instance, the chronological determination of childhood, later promoted by western states, did not feature in the traditional conception of the term. Births were mostly unregistered during this period, thereby making the age eighteen child-adult transition somewhat unrealistic. Also, although childhood was generally recognised as a distinct phase of life,191 what was fundamentally

187 The Child Rights Act, 2003, is the federal statute which domesticates the UN Convention on the Rights of the Child.

188 ‘Premodern Nigeria’ is utilised here to refer to the period prior to the universalisation of human rights norms, as well as the period during which the region (Nigeria) was yet to be contacted by western travellers and missionaries.

189 Even in Western Europe, it has been argued that the concept of childhood did not emerge until the seventeenth century; see generally, Philippe Aries, Centuries of Childhood: A Social History of Family Life, translated from the French by Robert Baldick (New York: Vintage Books, 1962). Supporting this view, Julia Sloth Nielsen notes that, ‘Pre-colonial and to a significant extent even colonial Africa was a rural society, functioning with a pre- industrial subsistence economy, and with children as part and parcel of the means of production. Aries, Prout and James and others have linked the emergence of childhood to the industrial revolution in western society, and law has been shown to be a critical adjunct to this process. Commencing with the emergence of laws restricting child labour, the founding of the welfare system and the antecedents of the juvenile court, the vision of childhood as an era of protective concern is a post-industrial period development.’ See Julia Sloth-Nielsen, ‘Modern African Childhoods: Does Law Matter?’ (n 137) 119.

190 Indeed, the premodern understanding of the concept continues to operate across many cultures in the country.

191 A distinct phase of life here indicates that childhood was generally considered as a developmental stage separate from adulthood. In this regard, Julia Sloth-Nielsen, argues that attempts to deny the existence of this phase in

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different was the age in which transition is made into adulthood. Also, unlike the case in western countries, younger children (yet to make the child-adult transition) were traditionally perceived as actors owing certain duties to their families as well as communities, whereas in the western understanding, childhood is widely regarded as a vulnerable or innocent state.192 In this regard, a commentator has pointed out that, ‘the African child is always a “child” in relation to his or her parents who expect, and are traditionally entitled to, all forms of support in times of need and old age. Thus, it can be argued that in terms of this concept, childhood is not only of a relatively shorter duration, but it is also, in a sense, a never-ending status.’193

To a large extent, childhood in premodern Nigeria was a sociocultural construct, whereby each ethnic group set its own social expectations as well as conditions of progression to adulthood. 194

premodern Africa belies ‘the protections accorded children within the family by other means. For instance, it is well known that children’s voices were heard through older relatives such as grandmothers whose role was to protect the children’s interests thereby allowing for less formal and more interactive relationships between grandparents and their grandchildren’; see generally Julia Sloth-Nielsen, ‘Modern African Childhoods: Does Law Matter?’ (n 137) 118.

192 In this regard, Julia-Sloth Nielsen observes that, ‘the period during which a person was presumed in traditional African society to be a child was a diffuse one: on the one hand, children were expected to assume responsibilities towards the household from an early age. These could include adult-type responsibilities, such as child rearing in relation to younger siblings, tending crops and livestock, fetching water and, in an overall sense, contributing in essential ways to the means of production and reproduction. In this sense, 'childhood', as known in the western world today, was not a protected period of physical and psycho-social development in African societies. Rather it was a time-limited period of consummate dependency, followed by a gradual and inexorable progression into adult life: this progression commenced almost immediately a child could function independently.’ She further noted that, ‘African childhood was generally marked by constant changes in status, roles and responsibilities, rather than having a single exit point at a defined age. The actual legal transition into a senior societal role was a functional outcome of various and different occurrences, procedures or events. Establishing a hearth could be one, circumcision another, or taking a wife a third: the context and the cultural vehicle for transformation to adult status differed across cultures and tribes.’ See also, K Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: An Evolution of the Language of Duties’ (1995) 35 Virginia Journal of international Law 339.

193 See Afua Twum-Danso, ‘The Political Child’, in Angela McIntyre (ed), Invisible Stakeholders: Children and War in Africa, (Institute for Security Studies, 2005) 13. It should however be pointed out that the prolonged perception of childhood canvassed here, tends to conflict with the equally traditionalist argument, that, a child (below age 18) already becomes an adult once s/he can take-on adult responsibilities. The utility of this argument is that, in premodern Africa/Nigeria, parents possessed a right to request support and assistance from their children, a practice which arguably did not feature in the same time-period in advanced states.

194 Saheed Aderinto, ‘Colonialism and the Invention of Modern Nigerian Childhood’ in Saheed Aderinto (ed), Children and Childhood in Colonial Nigerian Histories (Palgrave Macmillan, 2015) 4.

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Accordingly, the idea of childhood was rather fluid and had nothing to do with a particular age.

In certain context for instance, the transition may be determined on the basis of an individual’s position in the social hierarchy, as opposed to biological age. It has been observed that, in pre- colonial northern Nigeria, it was possible for an uncle to be younger than his nephew, while in polygamous families, the senior wife may exercise authority over junior wives (regardless of age). For the most part, adulthood was generally attained by having a dependent, not necessarily by attaining a specific age. A boy generally ‘becomes a man when he takes a wife,’ while ‘a girl becomes a woman when she has a baby.’195 The relatively short lifespan of an average person in Nigeria and much of Africa may partly explain the early transition from childhood into adulthood. In this regard, it has been argued that, ‘because an average life span is short and survival is a struggle, a long period of dependency as a child is a luxury that families cannot afford.’196 Thus, numerous prevailing factors, which are not likely experienced elsewhere (e.g., western countries), contributed to the image of childhood in pre-modern Nigeria, an image which continues to manifest to this day, especially in more traditional settings.

The perception of children however began to change with the efforts of Christian missionaries and the British colonial government in Nigeria. The colonial government specifically recognised children’s vulnerabilities through a range of legal measures. For instance, in 1877, an ordinance was passed to protect children from economic exploitation.197 In December of the same year, the British colonial government in Lagos passed the Alien Children Registration

195 Murray Last, ‘Towards a Political History of Youth in Muslim Northern Nigeria, 1750 – 2000,’ in Jon Abbink and Ineke Van Kessel (eds), Vanguard or Vandals: Youth, Politics and Conflict in Africa (Brill, 2005) 40.

196 T W Bennett, Using children in armed conflict: A legitimate African tradition? Monograph No 32, Institute of Security Studies, Pretoria, 1998, 19, cited in Afua Twum-Danso, ‘The Political Child’, in Angela McIntyre (ed), Invisible Stakeholders: Children and War in Africa, (Institute for Security Studies, 2005) 13.

197 Abosede A George, Making Modern Girls: A History of Girlhood, Labour, and Social Development in Colonial Lagos, (Ohio University Press, 2014), 2 – 4.

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Ordinance into law. The ordinance mandated the registration and protection of alien children residing in Lagos. From 1863 onwards, births, deaths, as well as statutory marriages which took place in Lagos were documented by the colony government.198 It has however been argued that the core ethos of modern childhood promoted by western entities did not completely replace the pre-colonial or more traditional one. Instead, they coexisted in a somewhat opposing and contradictory manner.199

Assessing the evolution of childhood in Africa, a childhood historian has noted that, if the concept of childhood emerged in western Europe from the seventeenth century, the concept arguably emerged in Africa (Nigeria) during the nineteenth century, when activities of certain forces including western missionaries, western-educated Africans as well as colonial masters resulted in what is understood as ‘modern African or ideal childhood’.200 These entities, inspired by western ideals generally held the view that childhood, like other aspects of Africa’s contact with colonialism could be modernised.201 Therefore the basis upon which childhood was determined had to be abandoned.

It is worth indicating here that, while historians have generally examined the entrenchment of

Christianity in West Africa, there is rarely any acknowledgment that the modern conception of childhood is historically grounded in mission education. It was in the mission schools that children were exposed to new ideas of work and play, education and faith – an otherwise

198 Abosede A George, ibid.

199 Saheed Aderinto, ‘Colonialism and the Invention of Modern Nigerian Childhood’ (n 194) 2

200 Ibid 5.

201 Ibid.

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unfamiliar paradigm for many African children.202 Thus, the introduction of western education in Nigeria was first undertaken by Christian missionaries, not by British colonial rulers. As a result, Nigerian children first encountered western-styled education through these missionaries.203

The above demonstrates that effort to redefine the meaning of childhood in Nigeria generally predates the more recent era of international children’s rights law. In any case, however, whether this agenda was promoted by western missionaries, British colonial government or more recently through international legal standards, a common thread is the presence of western elements in all three spheres. It should however be pointed out that the idea of chronological age was introduced into Nigeria through colonialism, not through the CRC or other international instruments. Chronological age was introduced as a signpost by which progression through life was measured.204 Before the introduction of this more rigid form of categorisation, Nigerian traditional societies operated through a rather flexible emphasis on the satisfaction of certain social responsibilities as the maker of maturity. Thus, colonialism sought to displace the pre- existing conceptions of childhood among Nigerian ethnicities, by attempting to create a more homogeneous idea of childhood, on the basis of age and other western ideals. 205 In a broader sense however, efforts of Christian missionaries laid the groundwork for the current normative trends (on children’s rights) in Nigeria, not necessarily the international instruments. Areas

202 The Christian missionaries pioneered Western literacy in Nigeria since the 1840s. It was only in the 1920s that the colonial authorities became directly involved in providing education to Nigerian children. See generally Saheed Aderinto, ‘Colonialism and the Invention of Modern Nigerian Childhood’ (n 194) 5, 23.

203 Saheed Aderinto, ibid 5

204 Ibid 6.

205 Ibid.

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where missionary activities could not penetrate (mostly the northern region) remain opposed to the broader children’s rights system to this day.

3.3 THE DEVELOPMENT OF CHILD LABOUR STANDARDS IN NIGERIA

Prior to colonialism, children’s economic activities in Nigeria were largely unregulated.206 To address this challenge, the colonial authorities adopted a range of legal measures beginning from the late nineteenth century. One such measure was the 1877 Ordinance adopted to protect children’s vulnerabilities and to specifically shield them from child labour.207 It should be stated that, children’s work during this time were mostly based in the informal sector – partly because the formal economy was relatively undeveloped. Colonialism however paved the way for a number of British companies to prospect for mineral resources in Nigeria. Consequently, the presence of British mining companies in the country beginning from the 1900s ensured a gradual transition of children into the formal economy.208

206 See generally, Francis Azalahu Akwara, Adekunle G Soyibo, Michael S Agba, ‘Law and Children’s Rights Protection: The nexus for a sustainable development in Nigeria (2010) 6(2) Canadian Social Science 29.

207 Abosede A George, Making Modern Girls: A History of Girlhood, Labour, and Social Development in Colonial Lagos, (n 197), 2 – 4.

208 The extent of child labour (in the mines) was for instance highlighted during a visit by delegates of the International Confederation of Free Trade Unions to Nigeria, in the 1950s. During this visit, it was discovered that children as young as 8 years were involved in mining activities in the Jos Plateau area. The Nigerian colonial administration as well as the Labour Advisory Committee, in London were briefed about this emerging realities. It is to be noted that the Nigerian government had in 1944 made a proposal to completely ban child labour, this proposal became binding law in 1950. In an exchange between the Colonial Office and the Nigerian government, the government pointed out that: ‘The employment of any person on the minesfield under the age of 16 is prohibited by law, and it is an offence for an employer to employ anyone less than 16 years of age. It is also an offence for a parent or guardian to permit a person under 16 to be so employed.’ See generally, Tokunbo Aderemi Ayoola, The Colonial Office and the Employment of Children in the Nigerian Tin Mines in the 1950s, in Saheed Aderinto (ed), Children and Childhood in Colonial Nigerian Histories (Palgrave Macmillan, 2015) 148-155. This experience reveals that involvement of much younger children in potentially harmful activities, including mining has long been prohibited in Nigeria, even before ILO C138 was adopted at the international level. As noted in the previous chapter, the Minimum Age Convention provides that children may only undertake mining activities from the age of 16 years, provided their health, safety and morals are fully protected. Although it is not clear whether the applicable Nigerian law contained the same level of protection as ILO C138.

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Moreover, child labour, especially those in the informal sector was further regulated by the

Children and Young People’s Ordinance (CYPO), passed into law in 1943.209 The CYPO specifically criminalised street hawking/trading by children. Among other things, the ordinance prohibited children below the age of 14 years from selling goods on the street and also from

‘playing, singing or performing for profit,’ – activities which were widespread among Nigerian children.210 To justify this prohibition, abolitionists attributed much of the underage prostitution at the time to hawking and street trading by girls.211 It is worth mentioning that the CYPO, was, for the most part, modelled after the UK’s Children and Young Person’s Act of 1933. Thus, to a large extent, transformations in childhood were from inception closely tied to a western interpretation of ‘ideal’ childhood, marked by notions of innocence, powerlessness and dependence.212

Apart from the relevant prohibition of children’s economic activities, another important provision in the CYPO was the establishment of juvenile courts and a juvenile justice system. 213

This provision ensured the prosecution of delinquent children including those in violation of the relevant street trading regulations. Accordingly, the first juvenile courts in Nigeria were opened in Lagos and Calabar in 1946. In terms of implementation, a number of street trading-

209 Abosede George, ‘Within Salvation: Girl Hawkers and the Colonial State in Development Era Lagos’, in Saheed Aderinto (n 194), 201.

210 “Children and Young Persons Street Trading Regulations, 1946 Made Under the Children and Young Persons Ordinance, 1943,” Annual Volume of the Laws of Nigeria Containing All Legislation Enacted during the Year 1946 (Lagos: Government Printer, 1948).

211 It was specifically argued that, ‘A girl would be asked that she must sell all the goods handed to her within a specific period. If she could not get people to buy them she would somehow find ways and means of obtaining money to give to the mother or the guardian.’ See “Women’s Welfare League’s Protest Meeting against Moral Dangers Proves a Big Success” Govt Will Be Asked to Forbid Hawking by Girls of Tender Age.” Daily Service 10 August 1944.

212 Abosede George, ‘Within Salvation: Girl Hawkers and the Colonial State in Development Era Lagos’, in Saheed Aderinto (n 194), 213.

213 Ibid 201.

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related arrests were made. However, evidence indicates that, the number of girls arrested for street trading alone far exceeded the number of boys jointly arrested for criminal offences and street trading violations.214 While this may reflect the gendered nature of the arrests, it more importantly demonstrates that, children, not their parents, were detained for activities likely authorised by such parents. Between 1946–1951, hundreds of children were arrested and prosecuted at magistrate courts for hawking related charges.215 Thus, children found to be in contravention of the relevant trading laws were required to pay fines, which in all cases were either paid by parents or guardians.216

It is also worth noting that, although street trading was prohibited, juvenile courts sometimes decided to place children on probation for a number of years, requiring them to work as maidservants.217 This tends to suggest that, the goal was not the complete elimination of child labour, only those occurring in public spaces were targeted. It should be indicated that, the prohibition of street trading was resisted at various levels of the society. Some parents questioned the relevance of such prohibitions and argued that the duty to regulate children should always remain with them (parents).218 Others argued that hawking in itself contained enormous benefits which outweighed the protection advocated by the state.219 Nonetheless,

214 Ibid, 216.

215 Ibid 217.

216 Ibid 217.

217 Ibid 219.

218 ‘The Children and Young Persons Ordinance,’ Daily Service, October 14, 1946, cited in Abosede George, ‘Within Salvation: Girl Hawkers and the Colonial State in Development Era Lagos’, in Saheed Aderinto (n 194) 221

219 Abosede George, ‘Within Salvation: Girl Hawkers and the Colonial State in Development Era Lagos’, in Saheed Aderinto, (n 194) 224.

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street trading and arrests of street traders continued into the independence period.220 More importantly however, the prohibition of children’s work and the objections that followed reveal the age-long tensions between western vs traditional conception of children and children’s work. It also demonstrates that some legal standards had already existed in Nigeria before the adoption of child (labour) specific norms at the international level. This assessment is important as later in the thesis, effort is made to engage with child labour regulation from a bottom-up approach. Thus, understanding the history of legal regulation in the country would provide a framework for effectively engaging with current problems confronted in Nigeria.

3.4 MONISM, DUALISM AND TREATY DOMESTICATION IN NIGERIA

3.4.1 The Concepts of Monism and Dualism in International Law

The status and place of international law in national law has been the subject of much theoretical discussion since the seventeenth century.221 This debate primarily revolves around the theories of monism and dualism, especially how international law is integrated in the domestic legal order. This analysis is useful for our discussion on the process of implementing child labour treaties in Nigeria. Thus, only aspects relevant for this study will be considered, without going into the philosophical details of the concepts.

Generally, monism and dualism are substantive theories relating to the nature of law, the nature of international law, the overlap between international law and domestic law, constitutional law as well as the authority of international law.222 Monism generally considers both international

220 Ibid 223.

221 Donald Rothwell et al., International law: Cases and materials with Australian perspectives (Cambridge University Press, 2014) 199.

222 Basak Çali, The Authority of International Law: Obedience, Respect, and Rebuttal (Oxford University Press, 2015) 137.

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and municipal law as belonging to the same legal order.223 The monist variant traditionally understands both systems (municipal and international laws) as reflecting two sides of the same coin, and thus constitutes a unified, single legal regime. It should be mentioned here that, despite the argued unification, it is sometimes the case that international law takes opposing stance to national laws or vice versa, the question then arises – which law takes primacy in the event of conflicts between the two? The answer to this question is not always straightforward.

However, the general view for the most part is that international law is superior to national law.

Thus, in the event of a conflict between the two, international law prevails.224 In other words, while monism generally recognises the coexistence of international and national laws, it also affirms the superiority of the former over the latter.225

On the other hand, dualists argue that international and municipal laws do not belong to the same realm, but instead operate in different legal orders. Advocates of this theory generally reject the notion that international law enjoys a superior status over municipal law. Under this school, rules of international law cannot operate directly in the domestic legal system without undergoing the process of ‘transformation’.226 Transformation in this sense may be achieved through an authoritative legal act. In essence, international treaties may be inapplicable in jurisdictions with dualist leanings, since the dualist theory broadly emphasises the primacy of domestic laws over international laws in conflict situations. The central element under this categorisation is transformation – once a treaty is legislatively translated, it becomes legally binding in such dualist states. The ideological basis for this procedure is, to legally preserve the

223 Ademola Abass, Complete International Law: Texts, Cases and Materials (Oxford University Press, 2014) 304

224 Ibid 305.

225 Ibid.

226 Dejo Olowu, International Law: A Textbook for the South Pacific (CDPublishing.org, 2010) 108, 109.

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traditional law making roles of the legislature, since it restricts the executive from involving itself in law making processes simply by signing a treaty. In other words, the force of a treaty following signature by the executive is thought to transfer legislative functions to the executive.

Therefore, transformation by the legislature is considered to remedy this gap.

It is however worth mentioning that, international law may not always be subjected to the monist-dualist binary. For instance, customary international law (which is different from the treaty variant) is generally understood to transcend such dichotomies. Thus, an international custom needs not be statutorily translated to become binding in a dualist state for instance. It is also worth noting that, the lines between both theories are sometimes blurred and not always clear-cut. It is for example common to find so called monist states embracing certain elements of dualism and vice-versa. This has resulted in a sub-categorisation, often regarded as ‘strong- monists’, ‘weak monists’, or ‘strong dualists’, ‘weak dualists’.227

3.4.2 The Legal Approach to Treaty Domestication in Nigeria

Like many common law countries, Nigeria may be broadly classified as a dualist state. The basis for this classification is derived from section 12 of the 1999 constitution, which provides that:

227 In this ideological variant, strong monist for instance hold that ‘international law must trump domestic law and domestic judges must apply international law directly and set aside domestic law when international law conflicts with it’. Weak monists on the other hand disagree with strong monists. ‘They do not subscribe to a hierarchical view and turn international law when they see a clear authority pronouncement by international law…’ Thus, weak monists are mostly concerned with finding a balance between the force of domestic law and the authority of international law. With regard to dualism, strong dualists would for instance be fully opposed to according any authority to international law, while weak dualists may regard international law as a domestic gap filler. ‘They would only turn to international law created jointly by their own political authority with others when the political authority as a single actor has not enacted any legislation on the very same matter at all.’ See generally, Basak Çali, The Authority of International Law: Obedience, Respect, and Rebuttal (n 222) 145.

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(1) No treaty between the Federation and any other country shall have the force of law to

the extent to which any such treaty has been enacted into law by the National Assembly.

(2) The National Assembly may make laws for the Federation or any part thereof with

respect to matters not included in the Exclusive Legislative List for the purpose of

implementing a treaty.

(3) A bill for an Act of the National Assembly passed pursuant to the provisions of

subsection (2) of this section shall not be presented to the President for assent, and shall

not be enacted unless it is ratified by a majority of all the House of Assembly in the

Federation.

The content of the above provision, especially 12(1), was clarified by the Nigerian Supreme

Court in Abacha v. Fawehinmi,228 where the court noted that, ‘an international treaty entered into by the Government of Nigeria does not become binding until enacted into law by the

National Assembly’. The Supreme Court further noted that, ‘where, however, [a] treaty is enacted into law by the National Assembly, […] it becomes binding and our Courts must give effect to it like all other laws falling within the Judicial power of the Courts.’ Thus, for treaties to become legally binding within the country, the national assembly (the federal parliament) must take a further step to legally transform such instruments. Once such treaties are domesticated however, they automatically enjoy the same legal force as any other law enacted by the parliament, and no hierarchical distinction may be made between such laws and others which originated from the parliament.

It should however be noted that the process of transformation is not always straight-forward in

Nigeria. The content of section 12(2) & (3) above introduces a range of complexities which, as will be demonstrated in the next sections hinder the effective implementation of children’s

228 (2000) 6 NWLR [Pt.660]228.

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rights treaties in the country. Thus, while the general rule on treaty domestication is indicated in section 1 of the 1999 constitution, subsections 2 & 3 present a range of exceptions which makes it somewhat difficult to implement treaties with children’s rights content. This will be elaborated upon in the next sections.

3.5 LEGAL PLURALISM AND THE CHALLENGE OF DOMESTICATING

CHILDREN’S RIGHTS TREATIES IN NIGERIA

3.5.1 The Extent of Legal Pluralism in Nigeria

It has been observed that ‘wherever there were movements of people, wherever there were empires, wherever religions spanned different language and cultural groups, wherever there was trade between different groups, or different groups lived side by side, it was inevitable that different bodies of law would operate or overlap within the same social field.’ 229 Given that many of these realities, including the existence of numerous empires and cultures, or trade between different groups etc., have been experienced at one time or the other in Nigeria’s history, it is inevitable that legal pluralism would manifest in the country.230 Thus, the Nigerian state is steeped in pluralism of different sorts. There is ethnic pluralism, language pluralism, religious pluralism, legal pluralism, custom pluralism, and other forms of pluralisms.

Apart from being the most populous African country, Nigeria ranks among the most ethnically diverse states in the world, with well over 250 ethnicities.231 With specific regard to legal

229 Brian Z Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’, (2008) 30 Sydney Law Review, 381.

230 Ibid.

231 Abdulmumini Oba, ‘The Sharia Court of Appeal in Northern Nigeria: The Continuing Crises of Jurisdiction’, 52(4), The American Journal of Comparative Law (2004) 859. (859 – 900). Some argue that there are about 500 ethnic groups in the country, see Umar Alkali et al, ‘Nature and Sources of Nigerian Legal System: An exorcism of a wrong notion’, (2014) 5 International Journal of Business, Economics and Law 2.

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pluralism, it is worth noting that, this form was mainly inspired by western colonisation; since prior to this period, each group was regulated by distinct (largely unwritten) customary codes.

British colonisation however heralded the conflation of autonomous norms and sometimes competing traditions within a single country. Thus, while customary norms (in the newly formed country) were never homogeneous, the transplantation of British legal system to Nigeria furthered this pluralistic trend. In this regard, Abdulmumini Oba, correctly notes that, ‘Law in

Nigeria is a plural complex with the English style common law, Islamic law and the indigenous

African law’ otherwise known as customary laws operate in a competing manner.232

The basis for introducing Islamic law into Nigeria’s legal jurisprudence, is to accommodate one of the country’s predominant religions.233 Generally, Nigeria’s population is roughly split between a majority Muslim north and a largely Christian south,234 with a fraction of the population identifying with indigenous African religions.235 Thus, the Nigerian constitution creates a number of specialised courts to administer Islamic law issues, as well as customary law matters, alongside regular courts across the country.236 Although, there are some Muslim

232 Abdulmumini Oba, ‘Neither Fish nor Fowl: Area Courts in the Ilorin Emirate in Northern Nigeria’, (2008) 58 Journal of legal Pluralism 69.

233 In legal normative terms, Islamic law has been administered in much of present day northern Nigeria since the fourteenth century, see, Abdulmumini Oba, ‘Neither Fish nor Fowl: Area Courts in the Ilorin Emirate in Northern Nigeria’ ibid 70. It is also worth mentioning that, Islam has been the dominant religion in northern Nigeria, since at least the tenth century, when it was introduced by Muslim merchants from North Africa, see generally, Rose C Uzoma, ‘Religious Pluralism, Cultural Differences and Social Stability in Nigeria’, (2004) Brigham Young University Law Review, 655.

234 It should however be noted that Nigeria cannot be neatly divided into the Muslim north – Christian south binary, as there are pockets of Christian adherents in the north, just as there are sizable number of Muslims in the south. Apart from this, worshipers of traditional African religions cannot be tied to any particular region in the country, as such worshippers maybe found across the country. See generally, Abdulmumini Oba, ‘Religious and Customary Laws in Nigeria’, (2011) 25 Emory International Law Review 882.

235 Rose C Uzoma, ‘Religious Pluralism, Cultural Differences and Social Stability in Nigeria’, (n 233), 653

236 It should be noted that, although in practice, the relevant Islamic courts only operate in the north, while the customary courts largely operate in the southern region (some northern states with both Christian and Muslim population have both courts operating side by side), there is no such restriction in the constitution. The constitution

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population in southern Nigeria, there are generally no specialised courts to entertain purely

Islamic law matters in the region. Thus, Muslims in southern Nigeria are generally regulated by the official state law or by customary laws, like the Christian population.237 Islamic law is therefore not much strengthened in southern Nigeria as is the case in the north.

Thus, for the most part, laws in Nigeria are comprised of statutory laws,238 Islamic laws, as well as customary laws, which create a space for legal pluralism.239 Furthermore, the nature of

Nigeria’s federal system whereby federal and state governments share legislative powers, with states possessing even more extensive powers on certain issues, including matters on children’s lives creates some challenges. This is essentially the crux of the domestication and implementation challenge (of children’s rights treaties) in Nigeria. It should be added that the

merely provides that such courts may be provided ‘for any state that requires it.’ See for instance section 275, 280 of the 1999 constitution. In other words, Islamic courts may be established in the south, just as customary courts may also be established in the north if it can be established that states in the relevant regions require it. However, the relative absence of this reality firmly reflects the religious and traditional leanings of the two regions. For the constitutional basis of the regular and specialised courts, see generally section 230 – 284 of the constitution.

237 In Nigeria, customary law has been interpreted since the colonial era to include Islamic law. This is particularly so in northern Nigeria where section 2 of the High Court Law provides that ‘Native Law and Custom’ includes Islamic law, see Laws of Northern Nigeria, High Court Law (1963) Cap. 49 § 34. Notwithstanding this however, customary courts have no competence to apply Islamic law, their jurisdiction is limited to customary issues and only customary laws may be applied. Since there are no sharia courts in southern Nigeria, southern Muslim may only approach the relevant High courts. This has however been criticised by some scholars. Abdulmumini Oba, for instance argues that this may leave complex Islamic law matters in the hands of judges not versed in Islamic law. The same argument has been advanced for the limited jurisdiction of the relevant Islamic courts in the north, as their jurisdiction only covers matters relating to personal (civil) laws. Thus, Islamic law matters other than civil are entertained by regular courts. See generally, A.A Oba, ‘Islamic Law as Customary Law: The Changing Perspective in Nigeria’, (2002) 51 International and Comparative Law Quarterly, 817 – 850. It should however be added that, ‘the south now has arbitral panels to resolve conflicts among Muslims, the awards of which are recognized in some states’ formal courts. The Lagos State Independent Sharia Panel, established by the Supreme Council for Sharia in Nigeria (a voluntary civil organization) in 2003, has, in addition to the usual family law matters (divorce, maintenance, and child custody), heard other matters.’ See, Abdulmumini Oba, ‘Religious and Customary Laws in Nigeria’, (n 234) 891.

238 Statutory laws in this context would broadly include domesticated treaties as well as received English laws.

239 Case laws, developed by the courts are also recognised as constituting a source of law in Nigeria. To avoid a legal vacuum, especially where issues are not comprehensively addressed by existing legislation, judges are empowered to made binding pronouncement. See Umar Alkali et al, Nature and Sources of Nigerian Legal System: An exorcism of a wrong notion, 5 International Journal of Business, Economics and Law (2014) 6.

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problem is not unconnected with religious tensions which have polarised Nigeria since inception. In this regard, states in the north have continually resisted attempts by the central government to extend the Child’s Rights Act (which incorporates the CRC) to the region. Such states are however constitutionally empowered to do so. Since the content of the Child’s Rights

Act is often perceived to conflict with Islamic values and traditions (its origin being traced to western Christian states), the ‘subservient’ law is therefore rejected by many northern states.

Thus, in these states, children’s rights treaties have no concrete normative relevance. This problem will be considered in more detail in the next section.

3.6 THE COMPLEXITIES OF DOMESTICATING CHILDREN’S RIGHTS (CHILD

LABOUR) TREATIES IN NIGERIA

As earlier noted, Nigeria subscribes to the dualist variant of treaty incorporation. However, as will be indicated in this section, the process of treaty incorporation is more complex, especially where childhood matters are involved. Since Nigeria is state party to a number of treaties which prohibit child labour,240 the country is internationally obliged to implement the relevant instruments. In this regard, the CRC specifically indicates that, ‘States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention…’241 A similar provision may also be found in the

ACRWC.242 Of particular relevance here is the obligation to legislatively implement the treaties. In this regard, it is worth noting that before the Child’s Rights Act was enacted in

240 These treaties include the ACRWC, the CRC with its Optional Protocol, ILO C138 & 182, etc.

241 Article 4 CRC.

242 Article 1 of the African Children’s Charter provides that, ‘Member States of the Organization of African Unity, Parties to the present Charter shall recognize the rights, freedoms and duties enshrined in this Charter and shall undertake the necessary steps, in accordance with their Constitutional processes and with the provisions of the present Charter, to adopt such legislative or other measures as may be necessary to give effect to the provisions of this Charter.’

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Nigeria, a number of unsuccessful attempts were made to legally transform the applicable treaties. For instance, in 1993, a comprehensive children’s rights bill was drafted and presented to the federal parliament for approval.243 The bill was however opposed by a number of religious and traditional groups, on grounds that it largely conflicted with Islamic and customary norms.244 Thus, the government mandated a special committee to review the bill, taking into account the religious and customary laws.245 Again, the bill failed to succeed, for similar religious and customary reasons.

With increased international pressure however,246 Nigeria finally enacted the Child’s Rights

Act in 2003. In accordance with the relevant international instruments, the CRA defines a child as ‘a person under the age of eighteen years.’247 This way, the statute repealed and reviewed a number of existing (children’s rights) legislation in the county, including the Children and

Young People’s Act (CYPA) 1958,248 which defined a child as a person under the age of fourteen years, and a young person as an individual who has attained the age of fourteen years

243 Olayinka Silas Akinwunmi, ‘Legal impediments on the practical implementation of the Child Rights Act 2003’, (2009) 37(3) The Journal of Legal Information 385.

244 Ibid 386.

245Ibid.

246 For instance, one of the main recommendations of the CRC committee, following the submission of the country’s first report in 1993 was the domestication of the treaty. The committee particularly expressed a deep concern ‘that the rights of the child as provided for in the Convention have yet to be invested with effective legal status in Nigeria as the draft children's decree remains to be finalized and adopted. The Committee, while noting the very positive development represented by the drafting and revision of a children's decree, expresses its regret that a copy of the draft decree in its entirety was not made available to the Committee. The lack of such enabling legislation raises serious doubts as to the priority previously given to the rights of the child in Nigeria. The Committee raises these points in the light of the conclusion it reached from examining the State party’s report and its dialogue with the delegation that certain legislation currently in force in Nigeria in relation to the rights of the child is not in conformity with various articles of the Convention, including article 1’; see Concluding Observation CRC/C/15/Add.61, 30 October 1996, para 7.

247 Section 277 CRA.

248 The CYPA 1958 revised the Children and Young People’s Ordinance of 1943.

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but under the age of seventeen years.249 The Act also repealed section 91 of the Labour Act

(LA) which defined a child as ‘a young person under the age of twelve years.’ 250 Apart from this, the CRA brings into a single document the fragmented pieces of legislation on the rights of children. Nonetheless, it should be noted that the CRA has been extensively challenged since adopted in 2003, such that the statute is only applicable in 24 of Nigeria’s 36 states. 251

3.7 PROBLEMS CONFRONTING THE NIGERIAN CHILD RIGHTS ACT

The problem of domesticating the CRA across Nigeria emanates from a much broader issue.

As already noted, Nigeria is a federation composed of 36 relatively autonomous and equal states, with each having an independent legislature. Generally, it should be pointed out that, the content of the Nigerian constitution is broadly structured into three categories and areas of legislative competence. The first relates to matters within the ‘exclusive legislative powers’ of the federal parliament, as expressly provided for in the constitution;252 the second category relates to matters in which both federal and state parliaments may jointly exercise legislative powers, otherwise known as ‘concurrent legislative powers’.253 The third category concerns issues in which only state legislatures may exercise authority, referred to as ‘residual legislative powers’. The residual powers of states in this regard affect matters which are neither within the exclusive competence of the federal legislature, nor within the concurrent powers of both

249 Section 2, Children and Young Peoples Act.

250 Labour Act, Cap L1, Laws of the Federation of Nigeria (LFN), 2004.

251 Oluwaseun Ajaja, ‘Revisiting the Child Rights Act’, available at http://punchng.com/revisiting-child-rights-act/ published online 16/4/2016 (accessed 1/11/2016).

252 Issues on the exclusive legislative list include: state creation, custom and excise duties, creation of banks, defence, citizenship, diplomatic and consular relations, external affairs, extradition, nuclear energy, etc., see generally, Second Schedule of the constitution (Part I, on Legislative Powers).

253 Concurrently shared powers include legislation relating to: electricity and the establishment of electric power station, health care, archives and public records of state governments, establishment of educational institutions etc., see Second Schedule of the constitution (Part II, on the ‘extent of federal and state legislative powers’).

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federal and state legislatures.254 Thus, the federal parliament is generally incompetent to legislate on matters considered to fall within state’s residual powers.

However, it should be noted that the above only constitutes the general rule. As earlier pointed out, treaties are not self-enforcing in Nigeria. Section 12(2) of the constitution specifically provide that ‘the National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty.’ This provision demonstrates that the federal parliament may domesticate a treaty notwithstanding that the subject matter falls outside of its exclusive competence. Thus, treaty domestication exceptionally broadens the powers of the federal parliament. However, section

12(3) stipulates further conditions to be satisfied before any such treaties may become binding within the country. The section provides that, ‘a bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the President for assent, and shall not be enacted unless it is ratified by a majority of all the House of

Assembly in the Federation.’ In other words, for a ‘domesticating bill’ to become legally binding, it must be ratified by a majority of state legislatures.

Under the Nigerian constitution, child related matters lie outside the exclusive competence of the National Assembly.255 The Second Schedule of the constitution contains an exhaustive list of issues belonging to the exclusive as well as concurrent legislative lists, which excludes childhood issues. The absence of childhood issues on the exclusive and concurrent lists thus

254 Edoba B.Omoregie, Implementation of Treaties in Nigeria: Constitutional Provisions, Federalism Imperative and the Subsidiarity Principle, (Extract of proceedings of the 2nd International Conference on Public Policy (ICPP, 2015), 1-4 July 2015, Milan, Italy) 3, sourced from: http://www.icpublicpolicy.org/conference/file/reponse/1437385813.pdf on 11/10/2016.

255 See generally, Part I & II, Second Schedule of the constitution on legislative powers.

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makes it a matter within the residual powers of the constituent states.256 For instance, subjects ranging from national defence, diplomatic relations to issues of nuclear energy, etc., are particularly indicated on the exclusive legislative list; while issues related to taxation, scientific and technological research, archives and public records etc., are contained in the concurrent list

– powers in this list are jointly shared by the National Assembly and the Assemblies of States.

Thus, in accordance with section 12(2) & (3) of the constitution, the absence of childhood matters on the exclusive legislative list implies that, the majority of state parliaments must give their consent before the CRC may be legally incorporated. However, given that many states were either religiously or culturally opposed to the CRC, the federal legislature failed to achieve the minimum support required for domestication. Nonetheless, the National Assembly went ahead with the domestication process at the federal level – in which case the CRA would only apply in Abuja (the federal capital in Nigeria).257

Thus, the approach of the federal parliament resulted in a legal vacuum in the constituent states, in terms of protection from child labour and other exploitative practices. As of writing however,

24 of Nigeria’s 36 states258 have now re-enacted the CRA, although with differing and

256 It should be indicated that, there is no such categorisation as ‘residual powers’ in the schedule to the Nigerian constitution. It is however widely acknowledged that powers lying outside out-side of the exclusive and concurrent list reside with states.

257 The National Assembly is constitutionally empowered to make laws for the Federal Capital Territory, Abuja. Section 299 of the constitution specifically provides that: ‘The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation; and accordingly - (a) all the legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the courts of a State shall, respectively, vest in the National Assembly, the President of the Federation and in the courts which by virtue of the foregoing provisions are courts established for the Federal Capital Territory, Abuja; (b) all the powers referred to in paragraph (a) of this section shall be exercised in accordance with the provisions of this Constitution; and (c) the provisions of this Constitution pertaining to the matters aforesaid shall be read with such modifications and adaptations as may be reasonably necessary to bring them into conformity with the provisions of this section.’

258 The 12 states yet to re-enact are: Adamawa, Bauchi, Borno, Enugu, Gombe, Kaduna, Kano, Katsina, Kebbi, Sokoto, Yobe, Zamfara; source https://www.nigerianbulletin.com/threads/list-of-nigerian-states-that-are-yet-to- domesticate-child-rights-act-of-2003.172268/ (accessed 18/8/2018)

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sometimes far-reaching reservations.259 This complex reality therefore demonstrates, that, treaty ratification may not automatically translate to legal protection for children. To date,

Nigeria continues to grapple with the complexities of domesticating the CRC and other children’s rights instruments (through the CRA) across the country. It is worth emphasising that, the relevant objections are more religious and cultural than a direct opposition to child labour standards. Some of the specific grounds of objection will be discussed in the next section.

3.8 RELIGIOUS AND CULTURAL GROUNDS FOR OPPOSING THE CRA

This section examines the specific grounds prompting the non-enactment of the CRA by 11 of

Nigeria’s 36 states. As demonstrated below, most of the grounds for objecting to the CRA are more connected to religious and cultural factors and to a lesser extent to child labour prohibitions contained in the statute. However, given that these non-child labour grounds are contained in the same statute (i.e., CRA) as those regulating child labour activities, it is impossible for the constituent states to adopt a separate instrument to specifically regulate child labour activities. Thus, the CRA has to be enacted in whole not in part. Consequently, the relevant grounds are considered here. The specific grounds are: prohibition of child marriage, prohibition of marriage to an adopted child, prohibition of skin marks and tattoos and prohibition of child labour.

1) Prohibition of Child Marriage: the CRA provides in section 21 that, ‘no person under the

age of 18 years is capable of contracting a valid marriage, and accordingly a marriage so

contracted is null and void and of no effect whatsoever.’ The prohibition of child marriage

259 In a 2010 Concluding Observation on Nigeria, the CRC Committee noted that, ‘most northern states of the State party have not yet domesticated the CRA.’ The Committee further observed that ‘some states that have passed such legislation have adopted a definition of the child which is not in compliance with that of the Convention.’ See, Committee on the Rights of the Child, CRC/C/NGA/CO/3-4, 21 June 2010, Para 7. An example of a state that has adopted a lower age is, Jigawa state, where for instance, the age of marriage is lowered to 13 years.

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in the CRA challenges a deeply entrenched practice which possesses both religious and

cultural ramifications.260 Indeed, it should be mentioned that, before the CRA was adopted

in 2003, child marriage was somewhat recognised under the Marriage Act (provided

parental consent was sought and obtained).261 However, section 21 of CRA which prohibits

child marriage now supersedes the relevant section of the Marriage Act for states that have

re-enacted the CRA. Despite this prohibition, in the predominantly Muslim north for

instance, it is estimated that 48 percent of girls are married by age 15, while 78 percent are

married before their 18th birthday.262 Also, the 2008 Nigerian Demographic and Health

Survey (NDHS), puts the median age of marriage in the north-western region at 15.2.263

The NDHS also demonstrates that 46 percent of women across Nigeria between ages 20 –

49, were married by age 18, while 58 percent were married by age 20.264 This explains the

failure to adopt the CRA in northern Nigeria where child marriage is widespread. It should

also be stated that, even in the south where the CRA has been enacted, some challenges

may still arise in translating such standards into reality, as child marriage is not only a

problem of the north, but occurs across Nigeria.

260 See generally, Tim S Braimah ‘Child marriage in northern Nigeria: Section 61 of part I of the 1999 Constitution and the protection of children against child marriage’ (2014) 14 African Human Rights Law Journal 474-488.

261 Section 18 of the Marriage Act specifically stipulate that, ‘If either party to an intended marriage, not being a Consent widower or widow, is under twenty-one years of age, the written consent of the father, or if he be dead or of unsound mind or absent from Nigeria, of the mother, or if both be dead or of unsound mind or absent from Nigeria, of the guardian of such party, must be produced annexed to such affidavit as aforesaid before a licence can be granted or a certificate issued.’

262 Gimba Victor Kyari and Joseph Ayodele, ‘The Socio-economic Effect of Early Marriage in North Western Nigeria’, (2014), 5(14) Mediterranean Journal of Social Sciences, 586

263 The relevant median age in the south-eastern region was however put at 22.8 – demonstrating that child marriage is less practiced in the southern region compared to the north. See, National Population Commission (NPC) [Nigeria] and ICF Macro. 2009. Nigeria Demographic and Health Survey 2008. Abuja, Nigeria: National Population Commission and ICF Macro 95.

264 National Population Commission (NPC) [Nigeria] and ICF Macro. 2009. Nigeria Demographic and Health Survey 2008. Abuja, Nigeria: National Population Commission and ICF Macro 4.

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2) Prohibition of marriage to an adopted child: unlike the prohibition of child marriage which

is often rejected on both religious and cultural grounds, prohibition of marriage between

members of an adoptive family and adopted children is mainly opposed on religious

(Islamic) grounds. In this regard, section 147 of the CRA provides that, ‘A marriage

between a person who has adopted a child under this Act or a natural child of the person

who adopted the child and the adopted child is hereby prohibited and any such marriage

shall be null and void.’ The section further provides that, any such marriage is an offence

which may be subject to imprisonment of up to fourteen years. The content of section 147

is broadly considered (especially by the predominantly Muslim states) to conflict with

Islamic norms and traditions. Felix Nzarga, for instance, argues that, the relevant provision

in the CRA contravenes the express provisions of the ‘Qur’an and Sunnah of the Holy

Prophet on adoption of children.’265 Chapter 33: 4-6, of the Qur’an is often cited as authority

for rejecting the wider (western) notion of adoption. The chapter provides that, ‘... nor hath

He made those whom ye claim [to be your sons] your sons. This is but a saying of your

mouths. But Allah sayeth the truth and he showeth the way. Proclaim their real parentage.

That will be more equitable in the sight of Allah. And if ye know not their fathers then [they

are] your brethren in the faith and your clients.’266

It is worth indicating however, that, adoption, as more legally understood, was well

practiced and recognised in pre-Islamic Arab societies, whereby an adopted child was

265 Felix Daniel Nzarga, ‘Impediments to the Domestication of Nigerian Child Rights Act by the States’, (2016) 19, Journal of Culture, Society and Development, 52.

266 Quoted in Usang M Assim and Julia Sloth-Nielsen, ‘Islamic Kafalah as an alternative care option for children deprived of a family environment’, (2014) African Human Rights Law Journal, 326

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entitled to the same legal rights and privileges enjoyed by biological children.267 During this

era, the rules of affinity and consanguinity were strictly enforced, such that marriage

between an adopted child and a member of the adoptive family was impossible.268 However,

this practice was reversed when the Prophet Mohammed, got attracted to the wife of his

adopted son, Zayd, and subsequently got married to her (following a divorce between her

and Zayd, mainly to serve Prophet Mohamed’s interest).269 The principle was thus

established that, adoption constituted no real relationship. Consequently, this interpretation

would legitimise any marriage between an adopted child and members of the adoptive

family. The relevant portion of the Qur’an (Chapter 33: 4-5), was thus formulated, became

authoritative, and effectively abolished the earlier conception of adoption.270

Thus, from a broader perspective, Oba, argues that, given its divine nature, Islamic law is

more definitive, and regulates all Muslims.271 In other words, Islamic law potentially

supersedes other laws. He further notes that, in Islam, there is no distinction between the

secular and the spiritual – ‘everything [including adoption] falls into the realm of

267 Ibid.

268 Ibid.

269 Ibid.

270 Further commenting on this, Usang Assim notes that, 'the abolition of adoption further gained support because adoption in pre-Islamic Arabia was practised together with certain acts that were not supported by Islam. For instance, a family could disclaim a member and a person could renounce his biological family. Such practices were popular because adoption into another family was always a possibility. Such actions were considered unacceptable in the creation of a new Islamic community in Mecca and Medina at the time. Consequently, although some scholars argue that adoption in Islam is mubah and have called for a reform of Muslim legal traditions to conform to the formal notion of adoption, the general and popular position is that adoption is prohibited in Islam, the practice of which amounts to a sin of apostasy (kufr). The eventual inclusion of kafalah in CRC reflects the current Islamic populist position on adoption.’ See, Usang M. Assim and Julia Sloth-Nielsen, ‘Islamic Kafalah as an alternative care option for children deprived of a family environment’, (n 266) 327.

271 See generally, A.A Oba, ‘Islamic Law as Customary Law: The Changing Perspective in Nigeria’, (n 237) 817 – 850.

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religion.’272 In the same line of argument, Abun Nasr, notes that, ‘to the pious Muslim, God

is the legislator and the Sharia is an expression of his ordinance…’273 Accordingly, with the

entrenchment of Islam in much of northern Nigeria, it is inevitable that a conflict situation

would arise between Islamic and official state law – the prohibition of marriage to an

adopted child is thus considered a direct violation of rights under Islamic law.

3) Prohibition of skin marks and tattoos: this provision in the CRA is another ground for the

broader objection to the statute. More specifically, section 24 provides that: ‘No person

shall tattoo or make a skin mark or cause any tattoo or skin mark to be made on a child.’

The section further provides that, ‘A person who tattoos or makes a skin mark on a child

commits an offence under this Act and is liable on conviction to a fine not exceeding five

thousand naira or imprisonment for a term not exceeding one month or to both such fine

and imprisonment.’

This provision challenges some widely held practices which have extensive local

ramifications, not only in northern Nigeria, but also in the southwestern region of the

country. In the northern region for instance, it is sometimes considered fashionable for

ladies, including girls, to wear tattoos on their skin. Also, although the practice of skin

(tribal) marks which is more widespread among the Yoruba people in southwestern

Nigeria,274 generally seems to be receding, the prohibition in the CRA is nonetheless

perceived as somewhat far reaching.

272 A.A Oba, ‘Islamic Law as Customary Law: The Changing Perspective in Nigeria’ ibid 845.

273 Quoted in A.A Oba, ‘Islamic Law as Customary Law: The Changing Perspective in Nigeria’, ibid 831.

274 Felix Nzarga observes that, although the practice of skin marking among the Yoruba people began during the transatlantic slave era (for purposes of tribal identification), the practice continued long after, not for the same initial reasons. Instead, people often forget the original motivation for certain practices, but stick to them ‘just

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4) Prohibition of child labour: it is interesting to note that opposition to the CRA is also

founded on the prohibition of certain aspects of child labour. In this regard, section 30(2)(a),

provides that, a child shall not be used ‘for the purpose of begging for alms, guiding beggars,

prostitution,..’ Section 30(2)(c) further provides that, no child may be used to hawk goods

or services on main city streets, brothels or highways. It should be mentioned that, across

Nigeria, but also more specifically in the northern states, alms begging and the use of

children as guides to visually impaired individuals is widespread. More impoverished

children known as almajiris275 may be found on streets across northern Nigeria, begging

alms.276 It is apparent that, the full implementation of the CRA in the relevant states may

because [it is] our culture.’ See Felix Daniel Nzarga, Impediments to the Domestication of Nigerian Child Rights Act by the States, (n 265), 54.

275 ‘Almajiris’ are arguably some of the most exploited and marginalised groups of children in Nigeria today. In terms of its history and meaning, Fowoyo Joseph Taiwo, note that the word almajiri generally implies ‘seeker of Islamic knowledge.’ Thus, given the Islamic injunction that ‘the best among you (Muslims) are those who learn the Qur'an and teach it,’ there was proliferation of informal Qur’anic schools (the almajiri system) across northern Nigeria, during the pre-colonial era. However, Taiwo further notes that, during colonial rule, ‘[t]he British invaded the region and killed most of the Emirs and disposed some. The Emirs lost control of their territories and accepted their new roles, as mere traditional rulers. They also lost fundamental control of the Almajiri system. The British deliberately abolished state funding in respect to the system arguing that, they were religious schools. With loss of support from the government, its immediate community and the helpless Emirs, the Almajiri system collapsed like a pile of cards. Karatun Boko, western education was introduced and funded instead. The pupils now turned, Almajirai together with their Mallams, having no financial support resorted to begging and other menial jobs for survival. This is certainly the genesis of the predicament of the Almajiri system today.’ See Fowoyo Joseph Taiwo, ‘Transforming the Almajiri Education for the Benefit of the Nigerian Society’ 3(9) Journal of Educational and Social Research (2013) 67, 68. (67 – 72). In a similar vein, Niyi Awofeso, Jan Ritchie & Pieter Degeling, observe that, ‘Nigeria’s post-independence federal governments have neither formally recognized Almajiri schools as part of Nigeria’s educational structure, nor provided funding for their operations. The fact that the heritage has survived, and continues to grow despite a century of neglect and intimidation by colonial and post-independence governments indicates the high level of acceptance, among the underclass, of the religious and political issues used by custodians of the heritage to justify its continuation.’ See, Niyi Awofeso and Jan Ritchie and Pieter Degeling, The Almajiri Heritage and the Threat of Non-state Terrorism in Northern Nigeria – lessons from Central Asia and Pakistan’ 26(4) Studies in Conflict & Terrorism (2003) 317

276 The CRC Committee recognised the plight of Almajiri children in its 2010 Concluding Observation on Nigeria, when it urged the Nigerian government to prevent ‘children from living and working in the street, including the alamajiri children, by ensuring that children in street situations are provided with adequate nutrition, clothing, housing, health care and educational opportunities, including vocational and life-skills training, in order to support their full development’, see, Committee on the Rights of the Child, CRC/C/NGA/CO/3-4, 21 June 2010, Para 85(C).

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threaten the livelihoods of those using children to beg and to participate in other unlawful

activities.

3.9 THE LEGAL IMPLEMENTATION OF CHILD LABOUR STANDARDS IN

NIGERIA

Beyond the grounds highlighted in the previous section, the broader approach to child labour both in the CRA and in other domestic legislation is worth assessing. Understanding whether child labour protection rights are accommodated elsewhere (in other statutes) may be relevant for children in states that have yet to adopt the CRA. Before exploring the other instruments however, the CRA itself will be assessed against the broader international instruments.

3.9.1 The Prohibition of Child Labour under the CRA

Section 30 is the main child labour implementation section in the CRA. The section broadly provides that:

(1) No person shall buy, sell, hire, let on hire, dispose of or obtain possession of or

otherwise deal in a child.

(2) A child shall not be used:

(a) for the purpose of begging for alms, guiding beggars, prostitution, domestic or sexual

labour or for any unlawful or immoral purpose; or

(b) as a slave or for practices similar to slavery such as sale or trafficking of the child,

debt bondage or serfdom and forced or compulsory labour;

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(d) for any purpose that deprives the child of the opportunity to attend and remain in

school as provided for under the Compulsory, Free Universal Basic Education Act;

(e) procured or offered for prostitution or for the production of pornography or for any

pornographic performance; and

(f) procured or offered for any activity in the production or trafficking of illegal drugs

and any other activity relating to illicit drugs as specified in the National Drug Law

Enforcement Agency Act.

(3) A person who contravenes the provisions of subsection (1) of this section commits

an offence and is liable on conviction to imprisonment for a term of ten years.

The above provisions broadly cover the different categories of child labour, including the

‘traditional’ forms as well as the more exploitative forms, otherwise known as the unconditional worst forms of child labour. Generally, section 30 is to some extent an amalgam of various international and regional instruments on child labour. It should be pointed out that, section

30(1), which places a ban on the sale, hire or purchase of children, etc., approaches the subject from a broader economic perspective, as opposed to actual work. In other words, the section addresses exploitation from the perspective of child commodification, not harmful work per se.

However, the scope of section 30(2) is more related to actual work. It should also be mentioned here that, the definition of a child in the CRA as every person below the age of 18 years, has extensive implications for section 30 – it implies that a ‘straight eighteen’ ban on child labour is applicable. Thus, work which may be undertaken by children between ages 14 – 17 years for instance (as may be found in the ILO minimum age convention) is not recognised in the CRA.

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Accordingly, section 30(2) (a) stipulates that, no child shall be used ‘for the purpose of begging for alms, guiding beggars, prostitution, domestic or sexual labour or for any unlawful or immoral purpose.’ In more specific terms, the prohibition of alms begging or the use of children as guide to beggars is not provided for at the broader international level – neither the CRC nor the ILO instruments contain any such prohibition. Instead, equivalent prohibitions may only be found at the regional level, in the African Charter on the Rights and Welfare of the Child. In this regard, article 29 of the ACRWC obliges state parties to take appropriate measures to prevent ‘the use of children in all forms of begging.’277 In a Concluding Observation on Nigeria, the African Committee of Experts recognised the prevalence of this problem in Nigeria. 278 In general, the prohibition of this context-based practice in the CRA may offer additional protection to children in the country.

Further, section 30(2)(b) provides that, no child shall be used ‘as a slave or for practices similar to slavery such as sale or trafficking of the child, debt bondage or serfdom and forced or compulsory labour.’ This provision particularly tends to model the ILO C182 on the worst forms of child labour, which in similar terms prohibit ‘all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict’.279 Unlike ILO C182 however, the involuntary recruitment of children for use in armed

277 Although the African Committee of Experts (the treaty monitoring body), is yet to adopt a General Comment on article 29, arguably, a broad interpretation of ‘all forms of begging’ in article 29 may cover not only the child beggars, but also the use of children as guide to beggars’.

278 See, Concluding Recommendation of the African Committee of Expert on the Rights and Welfare of the Child on Nigeria, issued during its 12th session; see specifically para 7 & 8; available at http://www.acerwc.org/download/concluding_observations_nigeria/?wpdmdl=8751 (accessed 17/10/2016)

279 Article 3(a) ILO Worst Forms Convention. It should be added that no equivalent provision may be found in the CRC, especially with regard to slavery and slavery-like practices. The prohibition is however largely consistent with Articles 1 and 2 of the 1926 League of Nations Slavery Convention as well as article 1 of the 1956

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conflict is not prohibited under the same section (i.e., section 30(2) b). A somewhat analogous provision may nonetheless be found in section 34 of the CRA. Section 34, CRA provides that,

‘no child shall be recruited into any of the branches of the armed forces of the Federal Republic of Nigeria.’ The section further provides that, ‘the Government or any other relevant agency or body shall ensure that no child is directly involved in any military operation or hostilities.’

Although the section initially appears to only address recruitment into state armed forces, the latter part tacitly expands its scope to include the involvement of children in ‘any’ military operation or hostilities. The word ‘any’ in the context may be interpreted to include recruitment by non-state armed groups. However, the drawback is that, the scope of section 34 is only limited to ‘direct’ participation – indirect participation is not targeted by the section.

As regards the content of section 30(2)(c) which prohibits the use of children ‘for hawking of goods or services on main city streets, brothels or highways’, it should be noted that a comparable prohibition is not found in any international or regional instrument. However, the history of this prohibition can be traced back to earlier colonial laws in Nigeria, especially the

Children and Young People’s Ordinance of 1943. As earlier indicated in this chapter, the CYPO prohibited children below the age of 14 years from selling goods on the street. The difference between the two statutes however is that, while the CYPO only targets children below the age of 14 years, the CRA applies to all children below the age of 18 years. Also, it is to be noted that the prohibition of hawking of goods under the CRA mainly applies to those carried out on

‘main’ city streets, brothels or highways. In other words, hawking of goods in more remote areas may be permissible under the CRA, since only those on ‘main’ streets are expressly prohibited. This qualification probably takes the widely practiced (across Nigeria) phenomenon into account and recognises the difficulty which may arise from absolute prohibition, especially

Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, which jointly prohibit the slavery and slavery-like practices.

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its adverse consequences in poorer families. Also, the section implicitly recognises that street trading is potentially less dangerous in local communities, compared to those in more urban areas. In Lagos state for instance (where the practice of street hawking in traffic is more widespread), countless children have been knocked down by moving vehicles.280

Arguably, if hawking (especially in traffic) were a more global phenomenon, it would likely be listed among the unconditional worst forms of child labour, given its highly hazardous nature.

Notwithstanding the absence of prohibition at the broader international level however, the prohibition in the CRA may offer additional protection for the growing number of children toiling in this dangerous condition in Nigeria.

Also, the CRA in section 30(2) (d) further prohibits the use of children ‘for any purpose that deprives the child of the opportunity to attend and remain in school as provided for under the

Compulsory, Free Universal Basic Education Act.’ For the most part, this provision somewhat translates article 32(1) of the CRC which among other things conceives child labour as ‘any work that is likely to be hazardous or to interfere with the child's education.’ Thus, in accordance with section 30(2) (d) CRA, work undertaken by children need not be exploitative, strictly speaking, to qualify as child labour. The only requirement is deprivation of education opportunities. It should be indicated here that, this provision is somewhat ‘radical’, at least from an African perspective. It endorses the more western conception of child labour, which construes work and education as mutually exclusive. At the African regional level for instance,

280 For instance, a child hawker was recently killed by an articulated truck, when the driver attempted to evade arrest by state officials. To address this recurrent phenomenon, the Lagos state government recently renewed its commitment to enforce the ‘Lagos State Street Trading and Illegal Market Prohibition Law 2003’, which restricts street trading and hawking in the metropolis. See generally, http://www.lagosstate.gov.ng/2016/07/01/lagos-goes- tough-on-street-trading-hawking/ (accessed 18/10/2016).

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no such connection between education and child labour is drawn in the ACRWC.281 Thus, taking the CRC and the ACRWC into account, it is clear that section 30(2) (d) of the CRA is more universal in approach than regional.282

Further, the content of section 30(2) (e) which provides that, a child shall not be ‘procured or offered for prostitution or for the production of pornography or for any pornographic performance’ is broader in scope than article 34 of the CRC, which among other things only target the ‘exploitative’ use of children in prostitution and pornographic activities. Thus, in accordance with the CRA, under no circumstance can children be subjected to any such practice, whether exploitative or not. In this regard, the CRA models the more expansive definition contained in the Optional Protocol to the CRC283 considered in the preceding chapter.

Also, the prohibition in section 30(2) (f) with regard to the procurement or offering of children for the production or trafficking of illicit drugs is largely in consonance with article 33 of the

CRC.284 It should be noted that, although article 33 also prohibits the use (consumption) of such illicit substance by children, it is clear that such prohibitions fall outside the meaning of

281 In this regard, article 15(1) of the ACRWC provides that, ‘every child shall be protected from all forms of economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s physical, mental, spiritual, moral, or social development,’ where as the equivalent provision in the CRC (article 32) stipulate 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.’ Thus, with regard to ‘education’ and ‘work’, it is clear that both instruments differ in their conception of child labour.

282 As pointed out in the previous chapter, ILO C138 also contains extensive provisions which emphasise school attendance. The convention specifically protects children from works which may likely prejudice school attendance. See generally articles 2(3) and 7, ILO C138.

283 See article 2, Optional Protocol on the sale of children, child prostitution and child pornography.

284 Article 33 provides that, ‘States Parties shall take all appropriate measures, including legislative, administrative, social and educational measures, to protect children from the illicit use of narcotic drugs and psychotropic substances as defined in the relevant international treaties, and to prevent the use of children in the illicit production and trafficking of such substances.’

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economic exploitation.285 This probably explains why this aspect is excluded from the relevant

(child labour) section in the CRA.

To conclude the analysis of section 30 of the CRA, in terms of retribution, it should be mentioned that, the relevant section on punishment is somewhat limited in scope. In this regard, section 30(3) provides that ‘a person who contravenes the provisions of subsection (1) of this section commits an offence and is liable on conviction to imprisonment for a term of ten years.’

In other words, only the violation of subsection (1), i.e., the prohibition of the sale, hire, or purchase of children etc., is singled out for punishment. The section is silent on the punishment for other exploitative practices. It should also be noted that international child labour instruments are also generally silent on the type or nature of punishment to be imposed for violating relevant standards – these are largely left for States to decide in conformity with their obligations to implement the specific treaties. It is argued here that, the punishment sections of other relevant statutes e.g., the NDLEA Act286 or the Trafficking Act may apply, whenever drug or trafficking related offences are committed.

In sum, while largely consistent with the relevant international standards, one noticeable addition to the CRA, as pointed out above, is how it broadens the scope of child labour to include child commodification. This part potentially underscores the motive of dealing in child

– i.e., buying and selling of children are usually undertaken with the goal of economic exploitation. The individuals dealing in child (e.g., sellers) are actors in the broader chain; even though they may not exploit the children directly, they facilitate the exploitation process, which warrants their criminal liability. Also, the idea of using children to, e.g., beg for alms, guide beggars etc., are generally beyond the conceptual scope of child labour as may be found in the

285 Indeed, the scope of article 33 is generally not limited to economic exploitation alone.

286 National Drug Law Enforcement Agency Act.

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international instruments. However, this provision addresses a problem that is largely unique to the African region, which is why the issue is addressed in both the CRA and the ACRWC. The next section examines other specific legislation which, in many ways, translate the child labour treaties, and which may thus be relevant for children, especially in states that have yet to re- enact the CRA.

3.10 CHILD LABOUR PROHIBITION UNDER THE LABOUR ACT

The Nigerian Labour Act,287 although not a child specific instrument, has some relevance in the protection from child labour. In this regard, section 29 of the CRA provides that, ‘the provisions relating to young persons in […] the Labour Act shall apply to children under this Act.’

Accordingly, section 59 of the Labour Act provides that:

(1) No child shall-

(a) be employed or work in any capacity except where he is employed by a member of

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

by the Minister; or

(b) be required in any case to lift, carry or move anything so heavy as to be likely to

injure his physical development.

It is worth emphasising here that, unlike the CRA, the Labour Act distinguishes between a child and a young person. The Labour Act defines a child as a ‘young person under the age of twelve years’, while a young person is defined as ‘a person under the age of eighteen years.’ 288

Accordingly, section 59(1) above recognises the right of children (below the age of 12 years)

287 Labour Act, Cap L1, Laws of the Federation of Nigeria (LFN), 1990.

288 Section 91 Labour Act.

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to undertake light works in a family enterprise. Although under the ILO Convention 138, light or any form of work is generally prohibited for children below the age of 12,289 the exception contained in article 5(3) of the Convention with regard to work within a family enterprise somewhat legitimises the right of children (including those below age 12) to undertake light work, in consonance with the Labour Act. In this regard, article 5(3) of ILO C138 provides that:

The provisions of the Convention shall be applicable as a minimum to the following:

mining and quarrying; manufacturing; construction; electricity, gas and water; sanitary

services; transport, storage and communication; and plantations and other agricultural

undertakings mainly producing for commercial purposes, but excluding family and

small-scale holdings producing for local consumption and not regularly employing

hired workers. (emphasis added).

Of particular relevance here is the latter part which recognises children’s economic activities within the family sector. In other words, while the general rule is that children below the age of

12 may not work, the prohibition does not apply to work within a family or small scale holdings producing for local consumption etc., – indicating that younger children (below age 12) may work in such sectors. It should be mentioned, however, that the provision in the ILO C138290 which stipulates that engagement in light works must not prejudice school attendance etc., is not found in the Labour Act.291 Furthermore, apart from section 59(1) which addresses work undertaken within a family enterprise, other sub-sections in section 59 also regulate child labour in the more formal sectors, including industrial works. However, like article 6 of ILO C138,

289 See article 7 (1)(a) as well as 7(4), ILO C138

290 See for instance articles 2(3); 7(1)(b) ILO C138.

291 In a sense, education and work are not treated as mutually exclusive in the Labour Act. Although, it may be that the Labour Act deliberately avoids going into issues which are not labour related stritu sensu.

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works undertaken in technical schools are excluded from the scope of industrial works.292 Also, the Act contains some specific provisions which are largely absent in international treaties. For instance, children below the age of 14 years are allowed to undertake waged employment, provided they return to their places of residence each night.293 The requirement to return ‘home’ is somewhat unique to the Labour Act and was probably included to offer additional protection to children. However, this requirement to return home is not extended to children employed in domestic service.294

Other provisions in the Labour Act also prohibit underground work, machine work, and other potentially dangerous works by children below the age of 16 years.295 To some extent, the prohibition of dangerous work for children below the age of 16 years is consistent with article

292 For instance section 59(2) provide that ‘No young person under the age of fifteen years shall be employed or work in any industrial undertaking: Provided that this subsection shall not apply to work done by young persons in technical schools or similar institutions if the work is approved and supervised by the Ministry of Education (or corresponding department of government) of a State.’

293 '59(3) A young person under the age of fourteen years may be employed only- (a) on a daily wage; (b) on a day-to-day basis; and (c) so long as he returns each night to the place of residence of his parents or guardian or a person approved by his parents or guardian: Provided that, save as may be otherwise provided by any regulations made under section 65 of this Act, this subsection shall not apply to a young person employed in domestic service. (4) No young person under the age of sixteen years shall be employed in circumstances in which it is not reasonably possible for him to return each day to the place of residence of his parent or guardian except- (a) with the approval of an authorized labour officer; and (b) on a written contract (which, notwithstanding any law to the contrary, shall not be voidable on the ground of incapacity to contract due to infancy) conforming with Part I of this Act: Provided that, save as may be otherwise provided by any regulations made under section 65 of this Act, this subsection shall not apply to a young person employed in domestic service.’

294 Ibid.

295 Section 59(5) ‘No young person under the age of sixteen years shall be employed- (a) to work underground; or (b) on machine work; or (c) on a public holiday. (6) No young person shall be employed in any employment which is injurious to his health, dangerous or immoral; and, where an employer is notified in writing by the Minister (either generally or in any particular case) that the kind of work upon which a young person is employed is injurious to the young person's health, dangerous, immoral or otherwise unsuitable, the employer shall discontinue the employment, without prejudice to the right of the young person to be paid such wages as he may have earned up to the date of discontinuance. (7) No person shall continue to employ any young person under the age of sixteen years after receiving notice either orally or in writing from the parent or guardian of the young person that the young person is employed against the wishes of the parent or guardian: Provided that this subsection shall not apply to a young person employed under a written contract entered into with the approval of an authorized labour officer.’

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3(3) of ILO C138,296 as well as article 3(d) of ILO C182 (read together with Recommendation

190).297 As indicated in the previous chapter, Recommendation 190 interprets the content of article 3(d) ILO C182 to include underground work, and use of dangerous machinery etc. 298

More importantly, the Recommendation also stipulate the minimum age for potentially dangerous works to be 16 years. However, it should be noted that, the requirement in ILO C138 that such works may only be undertaken where ‘the health, safety and morals of the young persons concerned are fully protected and that the young persons have received adequate specific instruction or vocational training in the relevant branch of activity’,299 is not contained in the Labour Act.

It is also worth indicating that, unlike much of the international instruments, the Labour Act stipulates in clear terms the permissible hours of work. In this regard, section 59(8) provides that:

No young person under the age of sixteen years shall be required to work for a longer

period than four consecutive hours or permitted to work for more than eight working

296 Although as a general rule, article 3(1) of C138 provide that children below the age of 18 years may not work in potentially dangerous sectors, article 3(3) however provides a lower age (16 years), on condition that certain requirements are satisfied. The article more specifically provide that, ‘Notwithstanding the provisions of paragraph 1 of this Article, national laws or regulations or the competent authority may, after consultation with the organisations of employers and workers concerned, where such exist, authorise employment or work as from the age of 16 years on condition that the health, safety and morals of the young persons concerned are fully protected and that the young persons have received adequate specific instruction or vocational training in the relevant branch of activity.’

297 In this regard, article 3(d) ILO C182 restricts children below age 18 years from undertaking ‘work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.’ Article 4 of Recommendation 190 however provides that, ‘For the types of work referred to under Article 3(d) of the Convention and Paragraph 3 above, national laws or regulations or the competent authority could, after consultation with the workers' and employers' organizations concerned, authorize employment or work as from the age of 16 on condition that the health, safety and morals of the children concerned are fully protected, and that the children have received adequate specific instruction or vocational training in the relevant branch of activity.’

298 See generally, article 3(a) – (e), Recommendation 190.

299 A similar provision is also contained in article 4 of Recommendation 190.

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hours in any one day: Provided that, save as may be otherwise provided by any

regulations made under section 65 of this Act, this subsection shall not apply to a young

person employed in domestic service.

This provision is, some ways, consistent with article 32(2)(b) of the CRC which obliges states parties to ‘provide for appropriate regulation of the hours and conditions of employment’. Also, it should be mentioned that the Labour Act equally regulates other categories of works including night work,300 employment in a vessel,301 and also imposes an obligation on employers to keep

300 Section 60 of the Act generally reads: ‘60(1) Subject to this section, no young person shall be employed during the night. (2) Young persons over the age of sixteen years may be employed during the night in the following industrial undertakings or activities which by reason of the nature of the process are required to be carried on continuously day and night, that is to say- (a) in the manufacture of iron and steel, in processes in which reverberatory or regeneratory furnaces are used and in the galvanizing of sheet metal or wire (except the pickling process); (b) glass works; (c) manufacture of paper; (d) manufacture of raw sugar; and (e) gold mining reduction work. (3) Young persons over the age of sixteen may be employed during the night in cases of emergency which- (a) could not have been controlled or foreseen; (b) are not of a periodical character; and (c) interfere with the normal working of an industrial undertaking. (4) In this section, "night" means a period of at least twelve consecutive hours, including- (a) in the case of young persons under the age of sixteen years, the interval between ten o'clock in the evening and six o'clock in the morning; and (b) in the case of young persons over the age of sixteen years but under the age of eighteen years, a prescribed interval of at least seven consecutive hours falling between ten o'clock in the evening and seven o'clock in the morning. (5) For the purposes of subsection (4) (b) of this section, the Minister may prescribe different intervals for different areas, industries, undertakings or branches of industries or undertakings, but shall consult the employers' and workers' associations or organizations concerned before prescribing an interval beginning after eleven o'clock in the evening.’

301 Section 61(5) defines vessels to include ‘floating craft of every description except ships of war.’ More generally, section 61 provides that: ‘61(1) No young person under the age of fifteen years shall be employed in any vessel, except where- (a) the vessel is a school or training vessel and the work on which the young person is employed is- (i) work of a kind approved by the Minister, and (ii) supervised by a public officer or by a public department; or (b) only members of the young person's family are employed. (2) No young person shall be employed in a vessel as a trimmer or stoker: Provided that, where a trimmer or stoker is required in a place in which only young persons are available, young persons of and over the age of sixteen years may be employed in that capacity, so however that two such young persons shall be engaged and employed in the place of each trimmer or stoker required. (3) No young person shall be employed in any vessel other than a vessel in which only persons of his family are employed unless he is in possession of a certificate signed by a registered medical practitioner to the effect that he is fit for the employment or work; and, where such a certificate is issued, then- (a) subject to paragraph (b) of this subsection, the certificate shall be valid for one year from the date of issue, or, if it would otherwise expire in the course of a voyage, until the end of the voyage in question; and (b) the certificate may at any time be revoked by a qualified medical practitioner if he is satisfied that the young person is no longer fit for the employment or work. (4) There shall be included in every agreement with the crew of a vessel a list of young persons who are members of the crew, together with particulars of the dates of their births; and, in the case of a vessel in which there is no such agreement, the master shall keep a register (which shall at all times be open to inspection by an authorized

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registers which document the ages, date of employment, conditions as well as nature of employment of all ‘young persons’.302 The registers must be produced for inspection when required by authorised state officers. This is mainly to ensure that relevant statutory regulations are strictly adhered to. In sum, the Labour Act, although more generic in scope, contains some specific provisions which implements the contents of international child labour instruments.

However, as earlier mentioned, the provisions in the Labour Act sometimes exceed the scope of relevant international standards; e.g., the provision that children below the age of 14 years may undertake waged employment provided they return home at night. This provision was probably intended to offer additional protection to children.

3.11 THE PROHIBITION OF CHILD LABOUR UNDER THE TRAFFICKING ACT

The Nigerian legislature recently enacted the Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2015, which repeals the 2005 anti-trafficking legislation in the country.303 The new legislation was adopted to reflect more recent developments in trafficking, especially those that were not addressed in the repealed statute. The legislation also serves to incorporate the Palermo Protocol referenced in the preceding chapter. Generally speaking, the

Trafficking Act, 2015, targets a wide range of exploitative practices, especially some of those referred to as unconditional worst forms of child labour.304 In section 82 of the Act, a child is defined as ‘a person under the age of 18 years.’ This definition is in accordance with international standards, including the Palermo Protocol – as such, distinctions between a child

labour officer or customs officer) of such young persons as may be employed in the vessel with particulars of the dates of their births and the dates on which they became or ceased to be members of the crew.’

302 Section 62, Labour Act.

303 Trafficking in Persons (Prohibition) Enforcement and Administration Act, 2003 (as amended in 2005).

304 It is worth indicating that the Trafficking Act is not explicitly mentioned in the CRA, this is probably because it is the most recently adopted of the three legislation. Thus, the Trafficking Act may equally perform complementary roles since it is labour-related and applies to children.

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and a young person as found in the Labour Act is not made here. In more specific terms, section

16 of the Trafficking Act provides that:

(1) Any person who procures or recruits any person under the age of 18 years to be

subjected to prostitution or other forms of sexual exploitation with himself, any person

or persons, either in Nigeria or anywhere else, commits an offence and is liable on

conviction to imprisonment for a term of not less than 7 years and a fine of not less than

N1, 000,000.00.

(2) Any person who procures or recruits any person under the age of 18 years to be

conveyed from his usual place of abode, knowing or having reasons to know that such

a person may be subjected or induced into prostitution or other forms of sexual

exploitation in any place outside Nigeria, commits an offence and is liable on conviction

to imprisonment for a term of not less than 7 years and a fine of not less than

N1,000,000.00.

Generally, the above provision reflects the wider international consensus on the prohibition of sexual exploitation.305 Also, at the domestic level, the provision gives stronger expression to the prohibition of trafficking and other forms of sexual exploitation contained in the CRA.

Under section 16 of the Trafficking Act, child trafficking offences are expressly criminalised and may be punished with a prison term of not less than 7 years and a fine not less than

N1,000,000.00 (about €3,000). Also, it is worth emphasising that, section 16(2) targets the recruitment of children to be used as prostitutes outside of Nigeria. This prohibition is highly relevant, especially since Nigeria is one of the main source countries for trafficked girls/women in Europe (being the main destination region). In this regard, C.S Baarda notes that, ‘the number

305 See for instance, article 34 & 35, CRC; article 3 of ILO C182; and more generally, the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.

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of Nigerian victims of human trafficking for sexual exploitation is among the highest of any ethnicity in Western Europe.’306 This practice often generates a continuous source of profit for traffickers, since victims constitute a flexible and largely inexpensive source of ‘labour’. 307

Usually, victims can be exploited for a prolonged period of time, to offset the transit cost and also for profit motives. Paolo Campana, observes that Nigerians as well as other victims are typically requested to pay between $40,000 – $70,000 to the traffickers, which translates into

‘victims being held captive for a minimum of one year to (often) three years or more.’ 308 Thus, the Trafficking Act may deter potential traffickers, if well implemented.

Furthermore, as indicated in the previous chapter, the Optional Protocol to the CRC 309 may serve as an extradition treaty – in this regard, between the source country (Nigeria) and destination countries (mainly European states).310 Accordingly, since many of the destination

306 C.S Baarda, ‘Human Trafficking for Sexual Exploitation from Nigeria into Western Europe: The Role of Voodoo Rituals in the functioning of a Criminal Network’ (2016). 13(2) European Journal of Criminology, 258.

307 Paolo Campana, ‘The Structure of Human Trafficking: Lifting the Bonnet on a Nigerian Transnational Network’ (2016), 56, Brit.J.Criminol. 72. Generally, research indicate that the Edo ethnicity make up the highest number of Nigerians trafficked abroad. In response to this, the Edo state government has adopted relevant anti- trafficking laws, including the Criminal Code (Amendment) Law, 2000. In this regard, Kigbu and Hassan note that, ‘The Criminal Code (Amendment) Law, 2000 of Edo State, in its effort to curb human trafficking, introduced stiffer punishments for the offence. Again, a new section 223A was inserted and prescribed punishment of two years imprisonment or a fine of N500,000.00 or both for any person who “sponsors a girl or woman by giving her any financial, physical or material assistance to enable her travel out of Nigeria” for prostitution or any immoral act or administers any oath on any woman or girl or performs any fetish ritual in order to enable her travel out of Nigeria or engage in sexual dealings with any person.’ See S.K Kigbu and Y.B Hassan, ‘Legal Framework for Combatting Human Trafficking In Nigeria: The Journey so Far’ (2015) 38, 214. (205 – 220); see also, Ine Nnadi, ‘Sex Trafficking and Women – The Nigerian Experience’ (2013), 6(3) Journal of Politics and Law, 185.

308 Paolo Campana, ‘The Structure of Human Trafficking: Lifting the Bonnet on a Nigerian Transnational Network’ ibid.

309 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, 2000.

310 Article 5 (1) of the Optional Protocol provides that, ‘The offences referred to in article 3, paragraph 1, shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties and shall be included as extraditable offences in every extradition treaty subsequently concluded between them, in accordance with the conditions set forth in such treaties; (2). If a State Party that makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider the present Protocol to be a legal basis for extradition in respect of such offences. Extradition

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countries are states parties to the relevant Optional Protocol, the Nigerian government may request extradition (of foreign based traffickers), and upon success, effectively prosecute them in line with the Trafficking Act. This is especially possible since section 16(2) of the Trafficking

Act mainly targets offences with transnational elements. It should be noted that, the approach of section 16(2) in this regard is generally in consonance with article 3(1) of the Optional

Protocol,311 which obliges states parties to take legislative steps to criminalise offences described in the instrument, whether committed domestically or transnationally.

Also, section 17 of the Trafficking Act further prohibits sexual exploitation, especially recruitment for pornography or pornographic performances. The section stipulates that:

(1) Any person who-

(a) procures, recruits, uses or offers any person under the age of 18 years for the

production of pornography or for pornographic performances;

(b) allows a person under the age of 18 years to be harboured in a brothel, commits an

offence and is liable on conviction to imprisonment for a term of not less than 7 years

and a fine of not less than N 1,000,000.00.

(2) Notwithstanding the punishment prescribed in subsection (1) of this section, a

convicted person under this section shall, in addition to the prescribed punishment, be

liable to a term of not less than 1 year imprisonment where he administered or stupefied

the victim with any drug substance.

shall be subject to the conditions provided by the law of the requested State.’ However, as pointed out in the previous chapter, the Optional Protocol has to be implemented by all the states involved in the extradition process before it can serve as a basis for extradition.

311 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, 2000.

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As may be seen from the above provision, section 17(1) (a) & (b) explicitly prohibits the use of children for pornographic purposes or the harbouring of children in brothels. Offences of this nature are liable on conviction to at least 7 years imprisonment and a fine not less than

N1,000,000.00. Apart from this, section 17(2) stipulates additional punishment where victims are made unconscious, through the use of drug substances. In such cases, traffickers may be sentenced to additional 1 year imprisonment. Thus, sex trafficking offences committed with the use of drug substances may be liable to imprisonment of at least 8 years. The rationale for this additional punishment is probably because administration of abusive substances may remove the exercise of good judgment and consent by victims.

Also, section 18 of the Trafficking Act stipulates that ‘any person, who organizes, facilitates or promotes foreign travels which promote prostitution or other forms of exploitation of any person or encourages such activity, commits an offence and is liable on conviction to imprisonment for a term of not less than 7 years and a fine of not less than N 1,000,000.00.’ It should be pointed out that, although this provision seems to restate the content of section 16(2) earlier indicated (with regard to transnational sex trafficking), some distinct features may be drawn between the two provisions. For instance, while section 16(2) is more child-specific in scope, section 18 generally applies to both children and adults alike. As may be seen, section

18 utilises the phrase ‘exploitation of any person’, suggesting that not only children are targeted, but also adults. Beyond this however, the prohibition in both sections acknowledge the prevalence of transnational sex trafficking with Nigeria as a source country. Thus, this aspect of the Trafficking Act (prohibiting child sexual exploitation) is generally consistent with international standards; the effective implementation of these provisions may well eliminate, or at least reduce this highly exploitative practice.

Further, the Trafficking Act also contains some relevant prohibitions on the forced recruitment of children for use in armed conflict. Like the relevant international standards considered in the

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previous chapter, the Trafficking Act provides in section 19, that, ‘any person who traffics any person for the purpose of forced or compulsory recruitment for use in armed-conflict, commits an offence and is liable on conviction to imprisonment for a term of not less than 7 years and a fine of not less than N1, 000,000.00.’ Although, section 19 is generally broader in scope, i.e., protects ‘any person’, it is clear that children are included, and therefore may not be forced or compulsorily used in any such exploitative practice.312 It is however worth mentioning that section 19 does not specify whether state armed forces or non-state actors are targeted, in less explicit terms, it broadly prohibits any ‘forced or compulsory recruitment for use in armed conflict’. It may be argued that since, no specific armed group is mentioned, the section would apply to both state and non-state actors.

Another important provision in the Trafficking Act, is section 23, which regulates the employment of child domestic workers. It provides in section 23 that:

(1) Any person who-

(a) employs, requires, recruits, transports, harbours, receives or hires out a child under

the age of 12 years as a domestic worker, commits an offence and is liable on conviction

to imprisonment for a minimum term of 6 months and not exceeding 7 years;

(b) employs, requires, recruits, transports, harbours, receives or hires out a child to do

any work that is exploitative, injurious or hazardous to the physical, social and

psychological development of the child, commits an offence and is liable on conviction

312 In similar terms, section 22 equally prohibits forced labour (of any form), which is also relevant for children. The section reads: ‘Any person who— (a) requires, recruits, transports, harbours, receives or hires out a person to be used for forced labour within or outside Nigeria; or (b) permits any place or premises to be used for the purpose of forced labour, commits an offence and is liable on conviction to imprisonment for a term of not less than 5 years and a fine of not less than N 1,000,000.00.’

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to imprisonment for a minimum term of 2 years but not exceeding 7 years without an

option of fine.

(2) Notwithstanding the punishment prescribed in subsection (1) of this section, a

convicted person under this section shall, in addition to the prescribed punishment, be

liable to-

(a) a term of not less than 2 years imprisonment where the child is denied payment or

reasonable compensation for services rendered; or

(b) a term of not less than 3 years where the child is defiled or inflicted with bodily

harm.

It should be indicated that, not all employment of child domestic workers is considered exploitative under section 23(1) (a) – only those below the age of 12 years is considered an offence and therefore exploitative. Accordingly, as a general rule, children above the age of 12 years may work as domestic workers under the Trafficking Act. However, elements of exploitation or harm must not be present, as may be seen in section 23(1)(b). In terms of punishment, unlike sex trafficking offences, punishment under section 23(1) is relatively less.

For instance, imprisonment for offences committed under section 23(1) may not exceed 7 years and no fine is stipulated, whereas, for the most part, imprisonment for sex trafficking offences has no maximum term, only a minimum is usually stipulated (not less than 7 years). In addition to the prison term, a fine usually not less than N1,000,000.00 is charged for sex trafficking offences. This indicates that child domestic work is considered to be generally less hazardous as compared to sex trafficking for instance. Indeed, child domestic work is not listed among the practices regarded as worst forms of child labour in ILO C182. Thus, the reduced punishment in this regard implicitly takes the distinction between ‘traditional’ child labour (usually less exploitative) and the worst forms of child labour into account.

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Generally, the recognition of domestic work for children aged 12 and above tends to realistically engage with the widespread phenomenon in Nigeria,313 as opposed to a blanket prohibition which denies existing realities and may be rather difficult to implement. This approach is largely in consonance with relevant international standards, especially ILO C138,314 which recognises the right of children as young as 12 years of age to undertake light work.

Although no reference to light work is made in section 23(1), it would be expected that children are not subjected to conditions which are otherwise hash. In a general sense, it should be indicated that the employment of child domestic workers seem to be more dominant in southern

Nigeria,315 than in the north. Usually, families with modest income or the more affluent ones engage the service of children from poorer families, often committing to finance their education. However, contrary to what is contemplated in the Trafficking Act, in reality, child domestic workers are often victims of economic exploitation (this issue is further elaborated upon in 4).

It is also worth pointing out that section 23(2) stipulates additional punishment where a child domestic worker ‘is denied payment or reasonable compensation for services rendered’ or where the relevant child is ‘defiled or inflicted with bodily harm’. In the case of failure to remunerate or pay reasonable compensation, an additional prison term of 2 years is stipulated, while an additional term of 3 years is indicated whenever a child is defiled or inflicted with bodily harm. In general, it should be pointed out that, since section 23 addresses a rather obscure

313 It has been argued that the majority of economically active children in Nigeria are employed as child domestic workers; see for instance, Emeka Emmanuel Okafor, ‘Child Labour Dynamics and the Implications For Sustainable Development in Nigeria’, (2010) 12(5), Journal or Sustainable Development in Africa, 11.

314 Article 7(1) & (4) ILO C138.

315 An extensive study of child domestic work in Oyo, Nigeria (one of the southern states), has for instance been conducted by Oludayo Tade and Adeyinka Aderinto; see generally Oludayo Tade and Adeyinka Aderinto, ‘Factors influencing the demand for domestic servants in Oyo, State, Nigeria’ (2012), 4(1) International Journal of Child, Youth and Family Studies 521 – 545.

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sector where child exploitation may easily escape government scrutiny, concrete measures must be taken if this provision is to be meaningfully translated. Beyond the regulation of child domestic work, it should be pointed out that the Trafficking Act also prohibits all forms of slave dealings, with stiffer punishment.316 In sum, the Trafficking Act addresses a range of exploitative practices, and therefore advances the goal of eliminating child labour. In terms of its consistency with international treaties, as earlier mentioned, the statute gives expression to aspects of international law not well addressed in the CRA. In particular, while prohibiting child sexual trafficking, the statute addresses offences committed nationally or transnationally in conformity with article 3(1) of the Optional Protocol on the sale of children, child prostitution and child pornography. The statute also stipulates punishments for violating the relevant standards. In terms of child domestic work, although international law does not state the categories of work that may be regarded as light work, the Trafficking Act seems to qualify such activities as light work, as it prohibits domestic work only for children below the age of 12 years.

316 In this regard, section 24 provides that, ‘Any person who recruits, imports, exports, transfers, transports, buys, sells, disposes or in any way traffics in any person as a slave or accepts, receives, detains or harbours a person as a slave, commits an offence and is liable on conviction to imprisonment for a term of not less than 7 years and a fine of not less than N2, 000,000.00.’ As may be seen, the fine imposed under this section may not be less than N2, 000,000.00, whereas, for other relevant offences, the Act generally stipulate that, a fine not less than 1,000,000.00 may be imposed. This reflects that slavery, strictly speaking is considered to be more exploitative. Accordingly, section 25 further stipulate that, ‘Any person who- (a) deals, keeps, receives or harbours any person for the purpose of holding or treating that person as a slave; (b) places, receives, harbours or holds any person as a pledge, pawn, in servitude or security for debt or benefits; whether due or to be incurred; (c) transports, transfers or in any way induces any person to come into Nigeria in order to hold, possess, deal or treat such person as a slave or to be used as a pledge or security for debt; or (d) enters into any contract or agreement with or without consideration for the purpose of doing or accomplishing any of the purposes enumerated in this section, commits an offence and is liable on conviction to imprisonment for a term of not less than 7 years and to a fine of not less than N2,000,000.00.’

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3.12 THE LEGALITY OF THE LABOUR/TRAFFICKING ACT IN THE

PROTECTION FROM CHILD LABOUR IN NIGERIA

As earlier indicated in this chapter, the National Assembly (the federal parliament) lacks exclusive competence to enact purely child-centred laws, or to domesticate a treaty with children’s rights content without securing the overwhelming support of states across the federation. Contrary to the constitutional framework however,317 the parliament unilaterally enacted the CRA, and expected relevant states to follow suit. To date, the statute has however failed to gain widespread acceptance across Nigeria. It should be reemphasised here, that, the grounds for objecting to the CRA earlier considered are legitimised because child related issues are not listed on the exclusive legislative list, for which the national assembly may exercise full legislative powers. If such issues were however listed on the exclusive legislative list, the need to re-enact the CRA in the constituent states would not have arisen, as the statute would apply nationally (even though the dissenting views may still be voiced). In line with the current constitutional framework however, the relevant states may legally exercise the right not to re- enact the CRA, as the action of the federal legislature is ultra vires in the first instance. It is worth noting however, that, the CRA is not rejected simply because the federal legislature acted beyond its constitutional powers, i.e., by enacting without securing the overwhelming support of states. Instead, the main grounds of objection are those already highlighted in this chapter, i.e., prohibition of marriage to an adopted child, prohibition of child marriage, prohibition of skin marks/tattoos, prohibition of child labour.

The failure to re-enact the CRA may however have negative effects on children in the relevant states, especially in the area of child labour, which is the main focus of this study. Accordingly, this section aims to address a number of questions including, what is the status of the Labour

317 That is, the constitutional requirement to involve the constituent states in the enactment process.

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Act and the Trafficking Act in Nigeria? i.e., do they apply nationally or must be re-enacted in the constituent states? If these instruments apply nationally, is the federal legislature not acting beyond its constitutional powers by legislating on child related matters? Can these statutes play a gap filling role in the absence of a more overarching instrument (i.e., CRA)?

3.13 STATUS OF THE LABOUR/TRAFFICKING ACT IN NIGERIA

The 1999 constitution of the federal republic of Nigeria is the central legislation which clarifies law making competences in the country. The constitution indicates the ‘what’ (i.e., issues) and

‘who’ (i.e., relevant parliament, whether federal or state) is competent to legislate on specific matters. As already pointed out in this chapter, the constitution generally excludes child related issues from the exclusive legislative competence of the National Assembly, indicating that, state legislatures are the primary law makers in their respective jurisdictions. However, given that the constituent states have no powers to either sign or ratify a treaty – even when the subject matter is child related, the federal government by virtue of its international standing is expected to ratify, but must also involve the states in the domestication process.318 This demonstrates that, under the constitution, powers to make child laws are mainly devolved to states.319

Unlike child-centred issues, however, the constitution explicitly grants the federal legislature powers to enact labour related statutes. In this regard, the second schedule to the constitution clearly includes ‘labour’ on the exclusive legislative list. This confers wide legislative powers on the National Assembly, to make labour related laws for every part of the federation. It should however be pointed out that, the constitution makes no distinction between child work and labour in general (adult labour), the second schedule merely describes the National Assembly’s

318 Section 12, 1999 constitution.

319 As already pointed out. The exclusive powers of the federal legislature (in child-related matters) is only limited to the Federal Capital Territory, in Abuja.

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powers to cover, ‘labour, including trade unions, industrial relations; conditions, safety and welfare of labour; industrial disputes; prescribing a national minimum wage for the Federation or any part thereof; and industrial arbitration’.320 Thus, the Labour Act is a statute of the federal parliament and applies nationally. As a result, questions of state re-enactment do not arise. Also, as regards the Trafficking Act, although the exclusive legislative list makes no express mention of ‘trafficking’, in practice, trafficking is generally considered to fall under the competence of the National Assembly. Moreover, listing this in the exclusive legislative list may be considered redundant as trafficking is technically a ‘labour’ issue – which is already listed in the exclusive list. Thus, the statute was enacted by the National Assembly as a federal legislation which applies nationally.

However, the relevant question here is whether the federal legislature may legally enact child labour laws (in the Labour and Trafficking Acts) for the whole federation. The answer to this is not explicit, as there is no clear legal provision, either in the constitution or elsewhere on this.

Research conducted in this regard reflects that the question has also not been addressed either by the courts or in the legal literature. In general, it must be acknowledged that, labour is a somewhat overlapping subject, such that a neat separation of legislative powers (between federal and state legislatures) may be difficult to accomplish. With regard to the Labour Act for instance, it may be argued that, powers to make labour laws (for adults) would implicitly include powers to determine the age of entry into the work force. Thus, if the federal legislature adopts age 16 as the relevant admission age for employment, this clearly touches upon questions of childhood, and will automatically ‘drag’ the parliament into child labour discourses. The same argument also goes for the Trafficking Act, i.e., a purely adult-centric legislation may be unrealistic. Generally, a parallel may be drawn between the Labour/Trafficking Act and

320 No 34, Second Schedule to the 1999 Constitution.

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instruments like the Convention on the Elimination of all forms of Discrimination against

Women (CEDAW). For instance, while the CEDAW is not specifically child-centred, some of its contents address the protection of children.321 In other words, although the drafters of the

CEDAW were clearly mandated to draft an instrument which protects women in general, this effort inevitably touches on girls. In the same vein, while the Labour/Trafficking Acts targets labour and trafficking issues in a broader sense, they also address child labour matters.

It should be pointed out however, that, beyond the areas of intersection (i.e., provisions which apply to both children and adults alike), the Labour/Trafficking Acts, also contain some more specific regulation of children’s work, as well as prohibition of child trafficking, which may legitimately raise the question of legislative competence. However, to date, there is no evidence of any of the states objecting to these statutes despite their child labour content. Beyond the issue of objection, it may be beneficial to harmonise the fragmented pieces of legislation into one document, in this way similar norms and standards would apply across the federation.

3.14 RELEVANCE OF THE LABOUR/TRAFFICKING ACTS IN THE PROTECTION

FROM CHILD LABOUR

As earlier indicated in this chapter, 11 of Nigeria’s 36 states are yet to re-enact the Child Rights

Act.322 With specific regard to child labour, the failure to re-enact the CRA would ordinarily create a legal vacuum, and consequently the economic exploitation of children. However, the

321 For instance article 16(2) of CEDAW provides that: ‘The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.’ Also, other provisions in the CEDAW may be relevant for the protection of female children. For instance, the provision of article 6 CEDAW on the prohibition of trafficking of women may be applicable to children; the article provides that: ‘States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.’

322 Oluwaseun Ajaja, ‘Revisiting the Child Rights Act’ (n 251).

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application of the Labour/Trafficking Acts across Nigeria implies that children are not completely without legal protection. These statutes are highly relevant, and may usefully protect children from child labour activities. In a sense therefore, the Labour/Trafficking Acts are essential gap-fillers in the absence of a more overarching provision (i.e., the CRA) in the non- enacting states. In many ways, the three legislation seem to be complementary in nature. As earlier indicated, section 29 of the CRA for instance acknowledges the complementarity between the CRA and the Labour Act, where it states that: ‘the provisions relating to young persons in […] the Labour Act shall apply to children under this Act.’ The Trafficking Act is the most recent of the three pieces of legislation,323 which probably explains the reason it was not referenced in the CRA. In the event of conflict between the three statutes, as the primary children’s rights legislation, it would be expected that the CRA would take priority.

3.15 SUMMARY OF TREATY DOMESTICATION

Although a number of gaps still exist in terms of a comprehensive legal approach to children’s rights and to child labour, it is safe to conclude that Nigeria has taken positive steps towards domesticating relevant international treaties. Indeed, as earlier indicated, more effort is required to ensure that existing legal vacuums in the country are addressed effectively. Regarding the issue of domestication, it is to be noted that in Nigeria, the practice seems to be that children’s rights treaties are domesticated through diverse instruments. Thus, it is not the case that the content of instruments like e.g., the CRC, is systematically domesticated through the CRA.

While the CRA may be said to broadly domesticate the CRC, certain key issues pertaining to children are also addressed by other thematic instruments. This explains why issues like child

323 The Labour Act was enacted in 1990 (Laws of the Federation), the CRA in 2003, the Trafficking Act was originally adopted in 2005 and repealed by the 2015 Act.

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trafficking and child labour (which are part and parcel of the CRC) are addressed by the

Trafficking Act and the Labour Act, in addition to the provisions contained in the CRA.

To summarise, the domestication assessment above reveals that such treaties as the CRC, OP I,

OP II, Palermo Protocol as well as the ACRWC are given legal force domestically mainly through the Child Rights Act, Labour Act and the Trafficking Act, while the ILO Conventions, in particular C138 and C182 have been mainly domesticated through the Labour Act. The table below presents the key international treaties and the corresponding national instruments – the table does not reflect every treaty provision assessed, but only indicates some of the key articles.

Generally, while the national statutes mainly domesticate the corresponding international treaties, the scope of national laws may however overlap with the content of another treaty.

Table of Treaty Domestication

No. TREATY TREATY ARTICLE/THEMATIC NATIONAL

STATUS ISSUE LEGISLATION/SECTION

1. UN CRC Ratified Art. 32 – General child labour Sec. 30 CRA – General child provision labour provision; contains additional provisions not found in CRC e.g., prohibits use of children for alms begging, hawking of goods etc. 2. OPSC Ratified Art. 2 & 3 – Sale of Sec. 30 (1) & (2) (e) CRA – children/prostitution prohibited When read together prohibits the sale & use of children for prostitution. 3. OPAC Ratified Art. 1 – Direct participation in Sec. 34 CRA – Complete ban on armed conflict prohibited for direct participation in armed children under 18; conflict either by state or non- Art. 3 (3) – Recognises the state actors – applies to all voluntary recruitment of children below age 18.

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children under 18 into national armed forces when safeguards are maintained; Art. 4 – Recruitment by non- state armed groups prohibited 2. ILO C138 Ratified Art. 7(1) & (4) – Minimum age Sec. 59 Labour Act – Child for light work 12. labour prohibited for all children Art. 5(3) – Grants exception for below age 12. The section grants light work in family & small exception for children less than scale holdings below 12; 12 when light work is involved & undertaken in family or small scale sector.

Art. 3(1) & (3) – Potentially Sec. 59(5) Labour Act - No child hazardous work may be under 16 may work underground undertaken by children 16 years or carry out work that may harm & above where adequate their health. protection is provided. 3. ILO C182 Ratified Art. 3(a) – (c) Prohibition of Sec. 30 CRA - Slavery, Worst Forms of CL trafficking, forced or compulsory labour, prostitution, use and/or trafficking of children for illicit drug production all prohibited.

4. Palermo Ratified Arts. 3 & 5 – Trafficking Sec. 16 – 18 Trafficking Act - Protocol prohibited Trafficking for prostitution or sexual exploitation prohibited;

Sec. 30(2)(b) CRA – Trafficking in children prohibited

5. ACRWC Ratified Art. 15 – General child labour Section 30 CRA prohibits all Prohibition (Child labour not works including those that linked to interference with deprive children of educational education); opportunities (models the CRA not ACRWC); Art. 29 – No use of children in all forms of begging

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Sec. 30(2)(a) CRA – No use of children to beg for alms

6. Domestic Not Art. 4(1) – For domestic work, Sec. 23 Trafficking Act – Workers Ratified states parties to set a minimum Minimum age for domestic work Convention age consistent with ILO C138 & set at 12, consistent with Art. 7(1) C182 & (4) ILO C138.

3.15 CONCLUSION

This chapter has engaged with the evolution of childhood and child labour standards in Nigeria, as well as the current child labour protection frameworks in the country. The consideration of relevant standards from a historical perspective reveals the role of Christian missionaries and the British colonial authorities in norms creation. Thus, contrary to widespread assumptions that the legal protection from child labour originated from international standards, it has been demonstrated that the groundwork for these frameworks was laid by the missionaries as well as the British authorities. This aspect also revealed that regions in Nigeria where Christian missionaries could not penetrate remain largely opposed to international children’s rights laws to this day.

With regard to treaty domestication, it was indicated in this chapter that, although Nigeria subscribes to the dualist variant of treaty transformation, mere enactment by the federal parliament may not translate to nationwide application. In this regard, it was revealed that the

Child’s Rights Act, 2003, which mainly domesticates the UN Convention on the Rights of the

Child and other treaties related to children’s rights, has been fraught with many challenges. On the one hand, the constitutional provision that requires states to be involved in the domestication of certain treaties (i.e., treaties whose subject matters are not contained in the exclusive legislative list), implies that, states must be jointly involved in the domestication of child-related

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instruments. However, the pluralistic nature of Nigeria would make consensus almost impossible to achieve. Thus, although the CRA was passed in 2003, several years after, the statute is yet to gain widespread acceptance across Nigeria. While this may seemingly pose a challenge for child labour protection, it was however found that, other relevant instruments (the

Labour Act as well as the Trafficking Act) may offer a level of protection, especially in states where the CRA is not re-enacted.

Regarding the interactions between international instruments and the national statutes on child labour, this chapter has demonstrated that while the national legislation largely prohibit child labour in similar terms as the international instruments, the national instruments go a step further to prohibit certain practices that seem to be unique to Nigeria and the African region e.g., child begging. Also, some additional measures are provided at the domestic level, e.g., the provision in Section 59(3) of the Labour Act requiring children below the age of 14 years to return to their parents or guardians every night.

Finally, the broad approach to child labour adopted in this study – to include the less traditional forms – are also reflected in the national implementing instruments. The three key legislations considered in this chapter when read together address the traditional forms of child labour as well as the so called unconditional worst forms.

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Chapter Four

ASSESSING THE PREVALENCE OF CHILD LABOUR IN NIGERIA

4.1 INTRODUCTION

While the previous chapters have demonstrated the legal standards on child labour both at the international and national levels, and the areas where national standards diverge from international ones, this chapter examines the extent to which the national laws engage with child labour problems on the ground. Thus, the current chapter examines the social realities of child labour in Nigeria, to understand whether or not existing legal norms have any effect in reality.

Ultimately, the goal here is to test the effectiveness or perhaps ineffectiveness of current regulatory measures. In this context, effectiveness is not measured on a quantitative basis, but merely an attempt to gauge the impact of legal norms on social realities. The prevalence of child labour (despite the existence of norms) may for instance spur further inquiries into the specific causes of the problem; this way, the relevant root causes can be addressed directly. While examining the prevalence of child labour in Nigeria vis-à-vis the domestic governing instruments, this chapter occasionally makes reference to international treaties in order to provide proper context for the analysis. In this regard, although chapter two was devoted to the analysis of international instruments without contextualising them, the current chapter to some extent touch upon the domestic relevance of some of these treaties.

In terms of assessment, the chapter focuses on the sectoral nature of child labour in Nigeria, i.e., sectors in which the practice tends to be prevalent. In this regard, four sectoral groupings are examined, including child labour in public and semi-public places, child labour within private households, child labour in the agricultural sector, and child labour within the public school system in Nigeria. The assessments made in this chapter mainly rely on secondary

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sources. The chapter reveals that child labour remains a problematic social issue in Nigeria, which the law in its current form has been unable to effectively address.

4.2 ASSESSING THE PREVALENCE OF CHILD LABOUR IN NIGERIA

Child labour, i.e. prohibited child work, is a fundamental social problem in Nigeria. Studies indicate that efforts of successive governments to eradicate the phenomenon have yielded little success. For instance, recent ILO estimates reveal that Nigeria has the highest number of child labourers among ECOWAS countries,324 with around 10.5 million children toiling in different exploitative conditions.325 Nicola Jones et al., note that, nationwide, children between ages 5 –

9, are found to work nearly 18 hours per week, on average, largely in unpaid activities, while children between ages 10 – 14 years are consistently found to exceed the internationally recognised threshold of 20 hours per week.326 Apart from this, Nigeria is a recognised source, transit and destination country for child trafficking (regarded as a worst form of child labour).

In this context, children are either trafficked internally or trafficked abroad for purposes of sexual exploitation (mainly in Europe), and are forced to beg or work as street vendors

(especially in Saudi Arabia).327 While this study mainly focuses on the extent of child labour in

Nigeria, not those that occur externally, the fact that Nigeria serves as a source country may demonstrate the ineffectiveness of national laws.

324 The Economic Community of West African States (ECOWAS) consists of 15 states, including Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo.

325 ILO, The Twin Challenges of Child Labour and Educational Marginalisation in the Ecowas Region: An Overview (n 6) 16. Other studies have indicated that there are between 12 to 15 million child labourers in Nigeria for those between the ages of 10-14 years, see, Ojo-Ajibare, ‘Child Work and Street Trading in Nigeria: Implications for Vocational Adult Education’ (2013) 6(2) Journal of Educational Review, 225.

326 Nicola Jones et al., Promoting synergies between child protection and social protection in Nigeria (n 7)11.

327 See Nigeria: Moderate Advancement, Report of the US Department of Labour 2013.

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Child labour poses a serious threat to the full enjoyment of children’s rights in Nigeria. Apart from its potential effects on the health and development of children, the practice also threatens children’s education rights. Studies indicate that, of the 42.1 million Nigerian children eligible for primary education, about 19.8 million are out of school.328 The situation is far worse for those eligible for secondary school education: of the 33.9 million eligible children, only 6.4 million are attending school. Several children attempt to combine school and work (some 26.8% among those between ages 7-14years),329 mostly to pay school fees; however, this combination hardly succeeds.330 Children who neither participate in economic activities nor are enrolled in schools are mostly those below age 6, either because of their perceived immaturities (in terms of work), or because of widespread delay in school enrolment among Nigerian children.331 With regard to the gendered nature of education and work, studies reveal that about 27% of female children and 25% of male children combine both school and work; while the participation of males in full-time work is consistently higher that the estimates for female children of all ages.332 In terms of age categorisation, studies reveal that the involvement of children in labour activities is highest among those between ages 5-11 years.333

As already indicated, child labour is generally widespread across Nigeria. In northern Nigeria, for instance, it is common for families to send children from rural to urban areas to receive

328 Nicola Jones et al., ibid 11.

329 2013 Findings on the Worst Forms of Child Labour, Nigeria: Moderate Advancement (United States Department of Labour’s Bureau of International Labour Affairs, 2013) 586.

330 Nicola Jones et al., (n 7) 11.

331 Benjamine Chiedozie Okpukpara, and Ngozi Odurukwe ‘Incidence and determinants of child labour in Nigeria: Implications for poverty alleviation (AERC Research Paper 156, African Economic Research Consortium, Nairobi, 2006) 6.

332 Ibid.

333 Ibid 10.

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Koranic education from Islamic teachers. While these children (widely referred to as almajiri) would normally receive some Koranic lessons, they are often forced to beg on the streets and then forced to surrender to their teachers whatever money they collect on the street. In this regard, although evidence is somewhat limited, there are indications that many of these children are sometimes deliberately wounded or scarred, to arouse public sympathy and consequently receive donations.334 Children in this form of child labour can be as young as 3 years of age. 335

In 2010, for instance, the Ministerial Committee on Madrash Education estimated that there were about 9.5 million almajiri children in Nigeria.336 With regard to southern Nigeria for instance, child labour is equally widespread; the problem often manifests in the context of child domestic works, agricultural child labour, among other forms of practices. The next section will examine in more detail the specific forms and sectoral nature of child labour in Nigeria.

4.3 THE NATURE AND FORMS OF CHILD LABOUR IN NIGERIA

Generally, Nigerian children may be found working in some uniquely exploitative settings, which may seldom exist in other countries. The forms of work undertaken by these children are often determined by different socio-economic factors in the country, which vary according to state or regional differences.337 Although child labour occurs both in the formal and informal sectors in Nigeria, the majority of children may be found working in the informal sectors.338 It is worth pointing out here that, informal works occur both in urban and rural areas. However,

334 See Nigeria: Moderate Advancement, Report of the US Department of Labour 2013.

335 Thomas Imoudu Gomment and Obi Success Esomchi, ‘Nigeria: Breeding Future Terrorists. A study of Almajiri of Northern Nigeria and Islamic Militia’ (2017) Conflict and Security Journal, 83

336 2013 Findings on the Worst Forms of Child Labour, Nigeria: Moderate Advancement (United States Department of Labour’s Bureau of International Labour Affairs, 2013).

337 Ina Gankam Tambo, Child Domestic Work in Nigeria: Conditions of Socialisation and Measures of Intervention (Waxmann Munster/New York, 2014) 137.

338 UNICEF, Nigeria Country Program: Information Sheet (UNICEF Nigeria, 2006).

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the larger majority of such informal works tend to be undertaken in rural areas. In this regard, although there is a statistical decline in the number of rural dwellers in Nigeria, a higher percentage of the Nigerian population continues to live in rural areas.339 This implies that most

Nigerian children live in rural areas and often work in the informal sectors.340 To better understand the effectiveness of legal regulation vis-à-vis the national laws already studied, four sectoral groupings are examined, including: (i) child labour in public and semi-public places;

(ii) child labour within private households; (iii) child labour in the agricultural sector; and (iv) child labour within the public school system in Nigeria.341 These selections are made as they generally reflect the areas in which child labour activities are more prevalent in Nigeria. This is affirmed by a UNICEF study conducted in Nigeria which also touched upon some of these themes.342

4.3.1 CHILD LABOUR IN PUBLIC AND SEMI-PUBLIC PLACES

Public and semi-public works are used in this context to refer to works undertaken by children either on the streets (public) or in makeshift settings (semi-public) which are mostly located in public places. For the most part, while activities categorised as public works are mobile in nature, in that the affected children are always on the move, semi-public works are largely stationary in nature, often operated from ram-shackled shops or locations. In this regard, several

339 A World Bank statistics for instance indicates that while 80% of the Nigerian population lived in rural areas in 1975, the number of rural dwellers as of 2015 has dropped to 52%. See generally: http://data.worldbank.org/indicator/SP.RUR.TOTL.ZS?locations=NG (accessed 29/03/2017).

340 Albert Ukaro Ofuoku and David Eduvie Idoge, ‘Child Labour in Agricultural Production and Socioeconomic Variables among Arable Farming Households in Nigeria’, (2014) 29(2) Journal of Rural Social Sciences, 68.

341 This grouping is a slight modification of a categorisation by UNICEF; see UNICEF, Nigeria Country Program: Information Sheet (UNICEF Nigeria, 2006).

342 UNICEF, Nigeria Country Program: Information Sheet (UNICEF Nigeria, 2006).

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studies demonstrate that a large proportion of Nigerian children are economically active in different public and semi-public settings.343 The problem is considered in more detail below.

Child labour in public places in Nigeria

In terms of public/street works, a huge number of Nigerian children continue to work in several exploitative ventures. In this regard, some 64% work as street vendors, 13% as beggars, 4% as shoe shiners, 6% as car washers/watchers, 5% as scavengers picking metals or containers from junkyards, and 8% as feet washers.344 Several studies have affirmed these appalling realities.345

With regard to street trading for instance, many children involved in the activity are often exploited by adults, either by forcefully taking their goods, or even sexually assaulting them. 346

It is also worth indicating that this phenomenon is not limited to rural areas alone, the problem has equally been on the increase in major urban cities across Nigeria.347 It is to be noted that the Child Rights Act, prohibits any practice which may deprive children of opportunities to attend and remain in school.348 However, the use of children in various economic activities

343 See for instance, Faloore Olutola Omiyinka, ‘Social networks and livelihood of street children in Ibadan, Nigeria’ (2009) 1(5) International Journal of Sociology and Anthropology, 82- 89. See also, UNICEF, Nigeria Country Program: Information Sheet (UNICEF Nigeria, 2006).

344 UNICEF, Nigeria Country Program: Information Sheet (UNICEF Nigeria, 2006)

345 See for instance, Oyeniyi Aransiola and Melvin Agunbiade, ‘Coping Strategies of Street Children in Nigeria, (2009) 2(2) Journal of Social & Psychological Sciences 13 – 34.

346 CID Clark and Sumaina Yesufu, ‘Child Street Trading as an aspect of child abuse and Neglect in Oredo Municipality of Edo State, Nigeria as Case Study’ (2012) 8(5) European Scientific Journal, 150; see also Ojo Matthias Olufemi Dada, ‘A sociological investigation of the determinant factors and the effects of child street hawking in Nigeria: Agege, Lagos State under survey’ (2013), 3(1) International Journal of Asian Social Science, 118.

347 Joshua Oyeniyi Aransiola et al ‘Proliferation of Street Children in Nigeria: Issues and Challenges’, (2009) 9(4) Journal of Social Work, 372; see also, Caroline Skinner, ‘Street Trade in Africa: A Review (Working Paper No. 51, April 2008) 7

348 Section 30(2)(d) CRA 2003, provides that, ‘a child shall not be used for any purpose that deprives the child of the opportunity to attend and remain in school as provided for under the Compulsory, Free Universal Basic Education Act’.

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sometimes has far reaching consequences, such that many children are forced to drop out of school.

In a study where some 120 street-trading children (between ages 10 – 18 years) were interviewed, the different forms of street-trading activities by children were demonstrated. It was found that these activities are more widespread among females than males – 60.8% were females, while 39.2% were males.349 In making their sales, many of these children either bear the sometimes heavy commodities on their heads, shoulders, or at times on wheel barrows. 350

It should also be pointed out here that, the use of children in street-trading activities (hawking) is prohibited in clear terms in the Childs Rights Act.351 However, in this regard, the CRA makes reference to specific places where hawking is prohibited, including ‘main city streets, brothels or highways’. The implication of this provision is that such practices may be undertaken in areas not explicitly mentioned in the Act. The logic behind the selective prohibition is not entirely clear. However, as mentioned in the previous chapter, it may well be that the drafters recognise the difficulties which may arise from an absolute prohibition, especially its adverse consequences for poorer families in more rural areas.

With regard to children working as street beggars, it has been indicated that the practice is another form of exploitative labour commonly experienced by Nigerian children. In this regard, it is estimated that about 5 million children may be found begging across the streets of

349 O.R Ashimolowo, A.K Aromolaran, S.O Inegbedion, ‘Child street-trading activities and its effect on the educational attainment of its victims in Epe local government of Lagos state’, (2010), 2(4), Journal of Agricultural Science, 213. In this regard, some 40.8% of the respondents were involved in the sale of sachet/bottled water in the typically hot Nigerian weather; some of the other respondents sold other commodities including oranges 9.2%, bread 6.7%, popcorn 7.5%, akara 7.5%, etc, ibid.

350 Ibid.

351 Section 30(2) (c) CRA specifically provides that no child shall be used ‘for hawking of goods or services on main city streets, brothels or highways.’

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Nigeria.352 The majority of these children often live far away from their parents. In most cases, they are sent by their parents to receive religious education from certain religious teachers, however, when classes are over, these children (usually boys) take to the streets and market- places to beg for money or to scavenge for rotten fruits and discarded leftovers. Some cultural historians have argued that, this culture of begging, popularly referred to as the almajiri system can only be understood by considering the history of the system.353 Historically, the community was expected to cater for these children, through a ‘community feeding system’, 354 and street begging was never intended to feature in the process.355 However, the practice has somewhat transitioned, and has assumed a rather exploitative dimension, mostly by the Koranic teachers.

It has been observed that, for many of the children, ‘the street is their father, the street is their mother, the street is their culture, the street is their tradition.’356

Apart from children who are dropped off by their parents and left to survive by themselves, the widespread displacement induced by terrorist activities in northeast Nigeria has equally

352 Chika Oduah, ‘Activists seek end to child begging “culture” in Nigeria’, available at: http://www.voanews.com/a/child-begging-culture-nigeria-activists/3485356.html (accessed 5 April 2017).

353 Chika Oduah, ‘Activists seek end to child begging “culture” in Nigeria’, (Ibid). It has also been pointed out that the Almajiri system was originally ‘established as an organized and comprehensive system of education for learning Islamic principles, values, jurisprudence and theology. It was a replica of Islamic learning centers in many Muslim countries, such as the madrasah in Pakistan, Malaysia, Egypt and Indonesia (Danbuzu, 2012). During the pre-colonial period in Northern Nigeria, the system was funded from the state treasury and ‘zakkat’ funds under the control of the emirs. Apart from this, the community supported these almajiri, most of whom came from faraway places to enroll in these schools. The students were at liberty to acquire vocational and occupation skills in between lessons and so were involved in farming, fishing, well construction, masonry, tailoring, etc. (Danbuzu, 2012). This is well captured by Bala (2014), who posited that the Almajiri schools, as practiced during the pre- colonial days, were maintained by the state, communities, parents, zakkah (almsgiving), wagf (endowment) and supplemented by the teachers and students through farming. Begging was completely unheard of.’ See Thomas Imoudu Gomment and Obi Success Esomchi, ‘Nigeria: Breeding Future Terrorists. A study of Almajiri of Northern Nigeria and Islamic Militia’ (n 335) 81.

354 Chika Oduah, ‘Activists seek end to child begging “culture” in Nigeria’, (n 352).

355 Thomas Imoudu Gomment and Obi Success Esomchi, ‘Nigeria: Breeding Future Terrorists. A study of Almajiri of Northern Nigeria and Islamic Militia’ (n 335).

356 Ibid.

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increased the number of children begging on the streets.357 In this regard, while children in the latter group may be distinguished from those affiliated with some Koranic teachers, the uniting factor is that both categories of children may be found roaming the streets begging for food or money. Apart from its exploitative nature, some studies also demonstrate that children involved in street begging are easy recruits for terrorist organisations,358 either for use as suicide bombers, or direct involvement in combat operations.359 There is also the possibility that children who are not forcibly recruited by such terrorist organisations may become voluntary future recruits. Unable to beg any more, the only viable alternative could then be terrorism. This reflects how child labour could lead into other social problems.

Furthermore, as already pointed out, child-scavengers are other sub-categories of public child labourers in Nigeria. Generally, many of the children in this category have a daily routine of walking several kilometres searching for dump-sites, where they rummage heaps of junks for materials that can be resold to recycling companies.360 While some of these children are involved in the activities in order to support themselves and their families, others engage in it

357 Ibid.

358 In this regard, Gomment and Esomchi specifically observed that ‘almajiri and Boko Haram are now like primary pupils graduating into secondary school. The two are inseparable and Boko Haram cannot exist without almajiri. If there is any difference between almajiri and Boko Haram, it should be a matter of semantics. Thurston (2013) found that the violent Northern Nigerian sect Boko Haram draw some of its recruits from the almajiri. Other scholars note that the almajiri system in the Northern part of Nigeria made the intensive membership mobilization of Boko Haram easy,’ Thomas Imoudu Gomment and Obi Success Esomchi, ‘Nigeria: Breeding Future Terrorists. A study of Almajiri of Northern Nigeria and Islamic Militia’ (n 335) 86.

359 For instance, a 2015 report on Nigeria by the US Bureau of International Affairs indicate that, children as young as age 7 were recruited by terrorist group Boko Haram, to participate in ‘combat operations, burn houses, cook, and work as look-outs and porters’. Other children were used to ‘carry out numerous suicide bombings.’ See generally, 2015 Findings on the Worst Forms of Child Labour, Nigeria: Moderate Advancement (United States Department of Labour’s Bureau of International Labour Affairs, 2015). See also, Iro Aghedo and Surulola James Eke, ‘From Alms to Arms: The almajiri phenomenon and internal security in Northern Nigeria’ (2013) 28(3), The Korean Journal of Policy Studies, 97 – 123.

360 Arukaino Umukoro, ‘A day in the Lies of Kid Scavengers’, available at http://www.cracong.org/a-day-in-the- lives-of-kid-scavengers/ (accessed 7 April 2017).

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as a way of raising money to pay for school fees.361 The majority of children involved in this form of work are boys, who typically start their day at 9:30am and work until around 4pm, earning less than $1 a day.362 In this regard, it has been observed that, ‘scavenging has become a major part of the informal economy, with suppliers, middle men and end users (recycling companies) across the chain. Sadly, kid scavengers are the most vulnerable of these groups, as they bear the brunt of most of the hard work, as well as the occupational hazards that go with it.’363

Before considering semi-public works, another form of work that should be mentioned in the grouping of public works is, bus conducting. In many ways, activities undertaken in this regard bear the hallmarks of child labour (as opposed to child work) as they sometimes prevent children from attending schools and are usually undertaken by children working for more than

8 hours a day.364 Generally speaking, child bus conducting has become one of the more prominent forms of child labour in urban Nigerian cities. The widespread rural-urban migration in Nigeria has increased transportation pressure in many urban cities, and thus created a high demand for buses and taxis.365 Relevant studies indicate that, in certain instances, the parents of some of these children are never consulted before their children are recruited.366 In terms of

361 Ibid.

362 Ibid.

363 Ibid.

364 As earlier pointed out, section 59(8) of the CRA prohibits children younger than 16 years from working longer than 8 hours in any one day. The section states: ‘[n]o young person under the age of sixteen years shall be required to work for a longer period than four consecutive hours or permitted to work for more than eight working hours in any one day: Provided that, save as may be otherwise provided by any regulations made under section 65 of this Act, this subsection shall not apply to a young person employed in domestic service’.

365 Emeka Emmanuel Okafor, ‘Child labour dynamics and the implications for sustainable development in Nigeria’ (n 313), 13.

366 Ibid.

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its impact on children’s education, although some of the child bus conductors combine this activity with schooling, others are completely out of the school system. Those combining both

(work and study), often work to pay for relevant school fees or to support their families. On the other hand, those involved in full time work may generally have no prospect of returning to school.367 As regards the working conditions and the associated risks, Emeka Okafor notes that, in most cases, their ‘bosses (the drivers) determine their terms and conditions of service,’ also, the children ‘may be subjected to all kinds of exploitation by their bosses and aggressive passengers.’368 The work assumes a more dangerous dimension when bus drivers do not wait for the child-conductors to re-enter the buses at every stop. These children will have to chase, catch up with, and then find a way to re-enter the buses in a highly dangerous manner.369

Child labour in semi-public places in Nigeria

Child labour in semi-public places are common place in Nigeria. These forms of activities are usually operated from makeshift locations, where children perform laborious works of different nature. Works belonging to this grouping include: vulcanising/apprentice mechanic works

(24%), iron/metal works (6%), carpentry (14%), tailoring/weaving (14%), hairdressing/barbing

(18%), catering (8%).370 It should be mentioned here that, although many of these activities are not expressly mentioned in the national legislations or in relevant international instruments, they are nevertheless activities which may be classified as child labour stricto sensu, especially

367 Ibid.

368 Ibid.

369 The present author has personally experienced this on several occasions, especially in larger state capitals in Nigeria. See also Paul Odoeme, Human Rights and the Mission of the Church in Nigeria (Lit Verlag Munster, 2013) 64.

370 This is a slightly modified variant of a previous study by UNICEF; See UNICEF, Nigeria Country Program: Information Sheet (UNICEF Nigeria, 2006).

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when the relevant age requirements are violated or when the works affect children’s schooling371– which is often the case in Nigeria.

4.3.2 CHILD LABOUR WITHIN PRIVATE HOUSEHOLDS

This section mainly examines the extent of child labour in domestic settings (child domestic work). Generally speaking, child domestic work may be understood as activities undertaken by children in a house other than their own,372 in an employment context. An important element here is the presence of an employment relationship. In this regard, the Domestic Workers

Convention of the ILO, broadly construes domestic work as ‘work performed in or for a household or households’,373 and a domestic worker as ‘any person engaged in domestic work within an employment relationship.’374 The Convention further indicates that, ‘a person who performs domestic work only occasionally or sporadically and not on an occupational basis is not a domestic worker.’375 Thus, the presence of an employment relationship is a key element

371 Although many of the children involved in these activities are not technically exploited by others (e.g., adults), as they are sometimes acting on their own volition, the scope of child labour is not limited to questions of economic exploitation (by others) alone. Article 32 of the CRC puts it more clearly, by stipulating 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.’ Thus, economic exploitation is not the only metrics for identifying child labour. Apart from the economic exploitation element, the article further imposes an obligation on states to protect children from performing works that may negatively affect their education, spiritual, moral or social development.

372 See Evelyn Omoike, ‘In the best interests of the child: the case of child domestic workers in Ghana and Nigeria’, in Afua Twum-Danso Imoh and Nicola Ansell (n 45) 125. See also, UNICEF ‘Child Domestic Work’, (Innocenti Digest, 1999) 2.

373 Article 1(a) ILO Domestic Workers Convention, 2011 (No. 189).

374 Article 1(b) ILO Domestic Workers Convention, 2011 (No. 189); a UNICEF study on the subject equally defines child domestic workers as ‘children under the age of 18 who work in other people’s households, doing domestic chores, caring for children and running errands, among other tasks. [including] live-in child domestics, that is children who work full-time in exchange for room, board, care, and sometimes remuneration.’ See UNICEF ‘Child Domestic Work’, (Innocenti Digest, 1999) 2.

375 Article 1(c) ILO Domestic Workers Convention, 2011 (No. 189).

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of child domestic work. Also, as pointed out above, works undertaken by children in their own homes may not be regarded as child domestic work – the practice relates to works undertaken in households other than their own.

Although in Nigeria, child domestic work is prohibited explicitly for children below the age of

12 years,376 the practice however remains one of the more dominant forms of child labour, especially in urban areas. In this regard, children well below the age of 12 years are often recruited to undertake hard and strenuous works. To a large extent, the employers of the relevant children are usually civil servants, professionals, and other well-off individuals in urban

Nigerian cities.377 Children engaged in this form of work are often recruited from more rural areas in Nigeria or other neighbouring countries, including Togo and Benin Republic, to work for these urban dwellers.378 It has been argued that the unavailability of quality education in the rural areas constitutes a push-factor which motivates such rural-urban migration, and therefore child domestic work.379

The proliferation of child domestic works in Nigeria today cannot be fully understood without grasping the historical context of the practice. Historically, parents encouraged their children to live with close or distant relatives, especially where it was difficult for them to provide adequate care for their children. This practice was particularly reinforced by the collectivist orientations

376 Section 23(1)(a) of the Trafficking Act provides that any person who, ‘employs, requires, recruits, transports, harbours, receives or hires out a child under the age of 12 years as a domestic worker, commits an offence and is liable on conviction to imprisonment for a minimum term of 6 months and not exceeding 7 years;’ similarly, subsection (b) provides that anyone who ‘ employs, requires, recruits, transports, harbours, receives or hires out a child to do any work that is exploitative, injurious or hazardous to the physical, social and psychological development of the child, commits an offence and is liable on conviction to imprisonment for a minimum term of 2 years but not exceeding 7 years without an option of fine.’

377 Ina Gankam Tambo, (n 337) 138.

378 Omojola Awosusi and Grace Modupe Adebo, ‘Domestic servants and rural-youth urban migration in Nigeria: Issues for national intervention’ (2012), 2(5), International Journal of Humanities and Social Science 271.

379 Ina Gankam Tambo, (n 337) 139.

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which existed (and continue to exist) among many African families. In some cases, children were sent to young couples (usually having some ties with the child’s family) that may require some form of assistance, especially where they do not have children of their own or where their children are still very young. The relationship between the young children and the host families was never quantified in monetary terms but largely based on mutual benefits. While the children assisted with domestic works, the host family in turn took care of the children’s daily up-keep and training, usually in the form of skill acquisition that may improve their life qualities.380 This practice however began to change with time. In this regard, Awosusi and Adebo, observe that,

‘with time and changes in societal values, the issues of traditional extended families and the attendant problem of child abuse led to the reduction and disappearance of children living with their extended family members.’381

Today, the practice has changed completely. Children as young as 6 years of age are sometimes informally employed on a monthly, quarterly or yearly basis, to render domestic services.

Unlike in the past when similar services were rendered based on family relationships, these services are now rendered largely on pecuniary grounds. It has been pointed out that the relevant child workers are usually employed through a sham process, whereby some agents based in larger cities connect the children with well-off families in need of domestic workers.382 The children are never involved in the contract negotiation process and are forced to work long hours (up to 18 hours per day in some cases),383 all year round. In the end, more than three-

380 Omojola Awosusi and Grace Modupe Adebo, (n 378) 271.

381 Ibid.

382 Oludayo Tade and Adeyinka A. Aderinto, ‘Factors influencing the demand for domestic servants in Oyo, state, Nigeria’ (n 315) 523.

383 Assefa Admassie, ‘Explaining the High Incidence of Child Labour in Sub-Saharan Africa’, (2002) African Development Bank, 257.

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fourth of their earnings go to the agents.384 Usually the first to rise and the last to sleep, child domestic workers are constantly overworked and seldom afforded educational rights.385 Outside of the households they work with and the agents, the children often have no one to turn to for help. It is common for these children to endure various degrees of verbal, physical and sexual assaults, combined with starvation in some instances.386 In cases of physical abuse, the police are almost always reluctant to get involved – they often consider these relations as belonging to the realm of family affairs.387

The nature of child domestic works in Nigeria is sometimes strenuous that even adults may find similar works to be exhausting. For instance, apart from their more regular works of helping to raise younger kids and doing household chores, many of these child domestic workers are often forced to undertake some more dangerous activities, including working with electricity

384 Omojola Awosusi and Grace Modupe Adebo, (n 378) 272.

385 Assefa Admassie, (n 383) 257. The denial of educational rights to children has been considered to be a harmful practice. In this regard, Holly Cullen observes that, ‘as has been noted in other contexts, particularly the European Committee on Social Rights monitoring the European Social Charter, domestic work within the family can be equally harmful in terms of preventing a child from benefiting from education.’ See Holly Cullen, The Role of International Law in the Elimination of Child Labour (n 22) 142.

386 In this context, Jonathan Blagbrough, specifically noted that, ‘working away from home, often with very limited opportunities for family contact, the child is under the complete control of his or her employer. Child domestic workers in these situations routinely suffer a loss of freedom, identity, and self-esteem, and denial of schooling. Their isolated situation, coupled with their ambiguous role in the employers’ household, makes them particularly vulnerable to physical, verbal, and sexual abuse. If and when violence does occur, their dependency on their employers for basic needs and their acceptance of the violence as an occupational hazard make them far less likely to report it.’ See Jonathan Blagbrough, ‘Worst Forms of Child Labour: Child Domestic Labor’ in Hugh Hindman (ed), The World of Child Labour: An Historical and Regional Survey, (M. E Sharpe, 2009) 87. Also, Holly Cullen notes that, ‘the factors that make child domestic work a cause of concern for campaigners against abusive child labor include the relative lack of freedom, vulnerability to abuse, the relatively high numbers of very young children, lack of remuneration or lack of control of remuneration and lack of contact with family and friends’; See Holly Cullen, The Role of International Law in the Elimination of Child Labour (n 22) 142.

387 Nicola Jones et al., Promoting synergies between child protection and social protection in Nigeria (n 7) 17.

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generating machines; works of this nature have sometimes resulted in burns, electric shocks and other domestic injuries.388

Nonetheless, there is an international obligation to take all reasonable steps to address the problem. For instance, the ILO Convention 189 (Domestic Workers Convention) obliges states parties to set relevant minimum ages. In this regard, article 4(1) of the Convention provides that, ‘Each Member shall set a minimum age for domestic workers consistent with the provisions of the Minimum Age Convention, 1973 (No. 138), and the Worst Forms of Child

Labour Convention, 1999 (No. 182), and not lower than that established by national laws and regulations for workers generally.’ Also, article 4(2) stipulates that, ‘Each Member shall take measures to ensure that work performed by domestic workers who are under the age of 18 and above the minimum age of employment does not deprive them of compulsory education, or interfere with opportunities to participate in further education or vocational training.’ 389 It is

388 Nicola Jones et al., Ibid. It should also be pointed out that, although child domestic work has been one of the rather prominent forms of child labour in Nigeria, the practice has however failed to gain the level of attention it deserves, in terms of regulation. This is partly because the hidden nature of the home obscures it from public scrutiny; see Oludayo Tade and Adeyinka A. Aderinto, ‘Factors influencing the demand for domestic servants in Oyo, state, Nigeria’ (2012) International Journal of Child, Youth and Family Studies, 4(1), 523; see also Assefa Admassie, ‘Explaining the High Incidence of Child Labour in Sub-Saharan Africa’, (n 383) 257. Supporting this view, Holly Cullen argues that ‘the central issue surrounding the regulation of child domestic work is invisibility.’ See Holly Cullen, The Role of International Law in the Elimination of Child Labour (n 22) 142.

389 Apart from the provisions of the Domestic Workers Convention, the accompanying Recommendation to the convention contains further clarification. In this regard, article 5 of Recommendation No. 201 (concerning Decent Work for Domestic Workers) provides that: ‘(1) Taking into account the provisions of the Worst Forms of Child Labour Convention, 1999 (No. 182), and Recommendation (No. 190), Members should identify types of domestic work that, by their nature or the circumstances in which they are carried out, are likely to harm the health, safety or morals of children, and should also prohibit and eliminate such child labour; (2) When regulating the working and living conditions of domestic workers, Members should give special attention to the needs of domestic workers who are under the age of 18 and above the minimum age of employment as defined by national laws and regulations, and take measures to protect them, including by: (a) strictly limiting their hours of work to ensure adequate time for rest, education and training, leisure activities and family contacts; (b) prohibiting night work; (c) placing restrictions on work that is excessively demanding, whether physically or psychologically; and (d) establishing or strengthening mechanisms to monitor their working and living conditions. Also, article 6(1) states that ‘Members should provide appropriate assistance, when necessary, to ensure that domestic workers understand their terms and conditions of employment.’ There is also a requirement that the terms and conditions of such employments must include: ‘a job description’.

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however worth noting that, as of writing, Nigeria has yet to ratify the Domestic Workers

Convention. Nevertheless, a combined reading of the Trafficking Act, the Child Rights Act, as well as the ratified ILO conventions (notably the Minimum Age Convention and the Worst

Forms Convention) would impose similar obligations contained in article 4 of the Domestic

Workers Convention. In more specific terms, section 23(1)(a) of the Nigerian Trafficking Act for instance criminalises the employment of children below the age of 12 years as domestic workers. Despite these provisions however, in Nigeria, children younger than the stipulated minimum age are often found undertaking domestic works. Also, as earlier mentioned, the majority of children involved in domestic work are almost always denied educational opportunities. These practices clearly contravene section 23(1)(a) of the Trafficking Act and the more general protections accorded to children under the CRA.

Regarding the exploitative nature of child domestic work, it is worth indicating that, although the act is not explicitly mentioned in such treaties as the Worst Forms Convention, the practice may nonetheless be covered by the categories of prohibited works, e.g., slavery, trafficking.390

However, some proof may be needed to demonstrate that the domestic work indeed amounts to slavery, trafficking etc.391 In this regard, the UN Working Group on Contemporary Forms of

Slavery has attempted to forge a link between child domestic work and slavery, by stating that child domestic work is a form of slavery-like practice.392 Also, the content of article 1(d) of the

1956 UN Supplementary Convention on Slavery, in many ways tend to support this perspective;

390 For instance, article 3(a) of the Convention defines the worst forms of child labour to include ‘all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;’ also, article 3(d) defines the worst forms of child labour to include ‘work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.’

391 Holly Cullen, The Role of International Law in the Elimination of Child Labour (n 22)144.

392 Ibid.

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the article defines slavery to include, ‘any institution or practice whereby a child or young person under the age of 18 is delivered by either or both of his natural parents or by his guardian to another person, where for reward or not, with a view to the exploitation of the child or young person or of his labour.’ Even though child domestic work is not expressly mentioned, the content of this article bears the hallmark of the practice. However, it should be stated that, embracing this view may create some difficulties, given the potential conflict between the

Nigerian Trafficking Act (which stipulates age 12 as the minimum employment age for domestic work) and the Worst Forms Convention (which prohibits in explicit terms relevant activities by those below age 18).

More specifically, article 23(1)(a) of the Nigerian Trafficking Act provides that anyone who

‘employs, requires, recruits, transports, harbours, receives or hires out a child under the age of

12 years as a domestic worker, commits an offence and is liable on conviction to imprisonment for a minimum term of 6 months and not exceeding 7 years’. This clearly demonstrates that trafficking for domestic work is considered to be less harmful compared to, for instance, trafficking for prostitution, where the relevant minimum age is 18 years, in consonance with the Worst Forms Convention.393 However, beyond the attempted efforts to forge a connection between child domestic works and slavery, it seems, to some extent, that, the ILO does not fully embrace this line of thinking, since describing child domestic work as a form of slavery would make it absolutely prohibited like other acts listed in C182. The ILO’s perspective can for instance be inferred from the content of the Domestic Workers Convention indicated above, where article 4(2) provides that, ‘Each Member shall take measures to ensure that work performed by domestic workers who are under the age of 18 and above the minimum age of employment does not deprive them of compulsory education, or interfere with opportunities to

393 See for instance, article 16 Nigerian Trafficking Act; see also article 3 ILO C182.

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participate in further education or vocational training.’ The key phrase here is ‘work performed by domestic workers who are under the age of 18’; this reveals that child domestic work may be permissible, especially when carried out by children above the legal minimum age of employment - 12 years in the case of Nigeria. The implication of this is that, child domestic work is not treated any differently from other works which conform to the legal minimum age.

However, one may also argue that this approach potentially ignores the fact that a considerable number of child domestic workers (at least in the case of Nigeria) are trafficked.

The point should also be made here that the Nigerian Trafficking Act makes the issue more complex to assess, in that child trafficking in itself is generally considered to be a prohibited act, however, in this case, the anti-trafficking legislation seems to only protect children below the age of 12 from the act. In other words, not all trafficked children undertaking domestic works in Nigeria may enjoy legal protection, only those below the age of 12 may enjoy this protection.

To conclude this section, going back to the issue of employment relationships, it should be stated that, while some child domestic workers may possess some form of employment contracts, other legal standards must be taken into consideration to ensure better protection, these would include: the basic requirements under the law of contract which requires that a valid contract must be specific and legal; and also the requirement that there should be some form of consideration and relevant parties must have capacity.394 These additional safeguards could make it harder for children to make it to this highly exploitative sector. However, a challenge here is that the children themselves are typically not a contracting party, older adults usually sign such contracts on their behalf. Thus, focus should not only be placed on the

394 See generally, Stephen A Smith, Atiyah’s Introduction to the Law of Contract, (6th edn, Clarendon Press, Oxford 2005); see also, Ewan McKendrick, Contract Law: Text, Cases and Materials (6th edn, Oxford University Press 2014).

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additional safeguards referenced above, stronger measures should also be taken to prevent adults from signing such voidable contracts on behalf of children.

4.3.3 CHILD LABOUR IN THE AGRICULTURAL SECTOR

This section examines the extent of children’s employment in the agricultural sector in Nigeria.

The agricultural sector is by far the highest employer of child labour, not only in Nigeria, but also globally.395 In a study on children’s employment in West African countries (including

Nigeria), the ILO noted that, at least two of every three children in employment work in this particular sector – some 85.2% in the case of Nigeria.396 The overwhelming concentration of children in this sector is particularly worrisome, given that the sector is one of the three most dangerous areas to work at any age, alongside construction and mining (in terms of work-related fatalities and other associated risks).397 Children working in the agricultural sector can face a variety of hazards, including exposure to pesticide, snake bite etc.398

It should be emphasised however that not all agricultural works would fit the definition of child labour; age-appropriate activities that are of lower risks and which pose less interference with children’s education and leisure time, can be considered a normal part of their development. 399

However, most agricultural works are physically demanding and strenuous, they ‘can involve

395 Alec Fyfe notes that, the agricultural sector is widely regarded as a complex and diverse economic sector where most child labour is found, see generally, Alec Fyfe, ‘Worst Forms of Child Labour: Agriculture’ in Hugh Hindman (ed), The World of Child Labour: An Historical and Regional Survey, (M. E Sharpe, 2009) 82.

396 ILO, The Twin Challenges of Child Labour and Educational Marginalisation in the ECOWAS Region: An Overview (n 6) 23.

397 ILO, The Twin Challenges of Child Labour and Educational Marginalisation in the Ecowas Region: An Overview ibid. See also article 5(3), ILO C138. See also, Alec Fyfe (n 396) 82.

398 ILO, The Twin Challenges of Child Labour and Educational Marginalisation in the Ecowas Region: An Overview ibid.

399 ILO, An Overview of Child Labour in Agriculture (ILO IPEC, World Day Against Child Labour, 2007).

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long periods of standing, stooping, bending, repetitive and forceful movements in awkward body positions…and carrying heavy or awkward loads - baskets, bundles of crops, water containers, etc. - often over long distances.’400 Also, child labourers in most cases utilise dangerous cutting tools, including machetes, sickles etc., to clear weeds and harvest crops.

Apart from this, children risk falling off from trees or ladders while harvesting crops or even being killed by farm machineries, including tractors.401

A large amount of the relevant child labourers regularly work on their parents’ farms usually after school, during weekends or school holidays. Some of the children however work full time without any enrolment in schools.402 As previously indicated in this chapter, child labour is predominantly concentrated in the more rural areas, these are areas where subsistence agriculture is the main occupation. To a large extent, the agricultural sector in Nigeria is characterised by small-scale farmers, who lack sufficient resources to either mechanise or commercialise their enterprise. Since ‘children are the assets of poor families’,403 it is common for them to work long hours in animal or crop production, mainly for their parents. An author specifically noted that, in Nigeria, children are perceived as ‘economic assets, a basis for material wealth, possession and power, as they provide additional labour power for increased productivity.’404 Accordingly, a study conducted in South-west Nigeria, reveals that more than

70% of the children (interviewed) worked directly for their parents, largely in cassava

400 ILO, An Overview of Child Labour in Agriculture ibid. See also, Alec Fyfe, ibid 82.

401 ILO, An Overview of Child Labour in Agriculture ibid.

402 See generally, A.I Adeoti., A.S Coster., & A.O Gbolagun, Child Farm Labour in Rural Households of South- West Nigeria, (2003) 1, International Journal of African and Asian Studies 47-56.

403 Assefa Admassie, ‘Explaining the High Incidence of Child Labour in Sub-Saharan Africa’, (n 383) 262.

404 Adelaja Odutola Odukoya, ‘Child Labour in Nigeria: Historical Perspective’ in Hugh Hindman (ed), The World of Child Labour: An Historical and Regional Survey, (M. E Sharpe, 2009) 231.

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plantations.405 In this regard, while male children were mainly involved in field preparation, weeding and planting, the female children were involved in harvesting, transportation and processing of the relevant produce.406 A different study which examined the extent of agricultural child labour (in Ogun state), also revealed that about 75% of the children interviewed were involved solely in agricultural works, and were not involved in other economic activities.407 The majority of the relevant children started working in this sector from as early as age 5.408

One question to consider here is whether the use of children in agricultural works may come under the exception contained in the Minimum Age Convention, i.e., article 5(3) which provides that: ‘The provisions of the Convention shall be applicable as a minimum to the following: mining and quarrying; manufacturing; construction; electricity, gas and water; sanitary services; transport, storage and communication; and plantations and other agricultural undertakings mainly producing for commercial purposes, but excluding family and small-scale holdings producing for local consumption and not regularly employing hired workers.’ As may be seen from this provision, although child labour is explicitly prohibited in ‘plantations and other agricultural undertakings’, the prohibition only applies to ‘production for commercial purposes.’ Thus, given that the majority of agricultural works in Nigeria are undertaken by small-scale farmers who do not produce for commercial purposes, it is clear that this provision does not provide adequate protection for such children, especially since there are no standards regarding the number of working hours etc. Furthermore, the content of the CRA regarding

405 A.I Adeoti., A.S Coster., & A.O Gbolagun, (n 402) 49.

406 Ibid.

407 M.U Agbonlahor et al., ‘Determinants of Child Farm Labour in Rural Households of Ogun State, Nigeria’, (2007) 2(1) Asset series, 101.

408 Ibid.

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agricultural child labour is largely modelled after article 5(3) of the Minimum Age Convention.

Section 28(b) of the CRA provides that no child shall be ‘employed to work in any capacity except where he is employed by a member of his family on light work of an agricultural, horticultural or domestic character’ (emphasis added). Therefore, it is worth considering whether these provisions, in particular, the CRA, can validly justify the use of children in the agricultural sector, which is sometimes considered to be dangerous.

Generally speaking, to determine whether or not children can work in the agricultural sector, the relevant test would be: whether or not the specific practice (i.e., agricultural child labour) is hazardous, harmful or interferes with children’s schooling.409 It should first be indicated that, there can be no valid justification for any form of child labour (i.e., prohibited work) – it makes no difference whether the relevant children are involved in subsistence agriculture or commercial ones. That being said however, the question on whether children can work in the agriculture sector, would largely depend on the nature and specificities of the work. For instance, light agricultural works which do not interfere with children’s education may be legally permissible. Thus, the decision has to be made on a case by case basis. However, there is overwhelming evidence that agricultural activities in Nigeria can be highly dangerous and exploitative. Therefore, a conclusion can be reached that the CRA has largely been unable to address the problems of agricultural child labour in Nigeria. Furthermore, section 28(b) of the

CRA contains no minimum protection floors and seems to assume that children may not be exploited in contexts as family employment.

409 See article 32 CRC.

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4.3.4 CHILD LABOUR WITHIN THE PUBLIC SCHOOL SYSTEM IN NIGERIA

Although educational institutions are often regarded as a sanctuary from child labour, a specific form of child labour that is widespread in Nigeria and almost never mentioned in the literature is the type which occurs within the school system (especially public schools). Activities undertaken in this regard tend to challenge the wider international approach, which considers child labour and school attendance as polar opposites. This is for instance demonstrated in the wording of the various treaties, including the CRC which considers work that interferes with education as child labour. The question here however is: how about works that occur within the school system? This form of work is for instance the experience of many children in Nigerian public schools (both primary and secondary). Arguably, no study has been conducted in this area – this is however a reality that the present author has witnessed on countless occasions.410

It should be stated here that the relevant practices seem to find support in the ILO Minimum

Age Convention, which excludes certain forms of works from the scope of the instrument. In this regard, article 6 provides that:

This Convention does not apply to work done by children and young persons in schools

for general, vocational or technical education or in other training institutions, or to work

done by persons at least 14 years of age in undertakings, where such work is carried out

in accordance with conditions prescribed by the competent authority, after consultation

with the organisations of employers and workers concerned, where such exist, and is an

integral part of--

410 For media evidence (including photos) of visibly young children cutting grass in Nigerian schools see: https://www.lindaikejisblog.com/2017/07/photos-child-labour-or-training.html (accessed 17/01/2019).

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(a) a course of education or training for which a school or training institution is primarily

responsible;

(b) a programme of training mainly or entirely in an undertaking, which programme has

been approved by the competent authority; or

occupation or of a line of training.

Translating the above provision, the CRA provides in article 28(2) that ‘No child shall be employed or work in an industrial undertaking and nothing in this subsection shall apply to work done by children in technical schools or similar approved institutions if the work is supervised by the appropriate authority.’ Many children are required to undertake rigorous works in the context of approved school subjects e.g., Agricultural studies. In this regard, children are required to plant crops and apply chemicals without the necessary protection measures, as part of the relevant subject.411 Also, it is common for children to be handed sharp cutlasses to do agricultural works – many of the public schools in Nigeria have cutlass-rooms stuffed with cutlasses usually provided by children during the initial enrolment process – providing such tools is considered mandatory. In many instances, these children are compulsorily required to cut grasses on specified days, under very harsh conditions. This provides the schools with, not cheap, but unpaid labour. At times, children also have to serve punishment cutting grasses. Thus, to save cost from external labour, the threshold for such punishment is very low, including noise making, lateness to school etc. The child labour practiced within the school system in Nigeria, although highly dangerous, are unfortunately unreported in the literature. Apart from the risk arising from using sharp cutlasses, the relevant

411 Rufaro Audrey Mavunga, ‘A critical Assessment of the Minimum Age Convention 138 of 1973 and the Worst Forms of Child Labour Convention 182 of 1999’, (n 28) 138.

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children also regularly develop blisters on their palms, after working long hours. Also, other forms of exploitation that regularly occur are instances whereby, ‘students plant but teachers reap’. In this regard, even though the children may be directly involved in the planting and harvesting process, the produce are considered to belong to the institution/teachers. It should be stated that the requirement to protect children from economic exploitation and from undertaking harmful/hazardous work, generally transcends the content of article 6 of the ILO

Minimum Age Convention as well as section 28(2) of the CRA; these protective standards must be applied (by the school authorities) when relying on this exception. Admittedly, it is unlikely that the drafters of the ILO convention, which was domesticated through the CRA, anticipated this negative interpretation within the school system in Nigeria. Potential ways to address this problem are indicated in chapter 7.

4.5 CONCLUSION

This chapter has examined the nature and forms of child labour in Nigeria. It has demonstrated that despite the existence of legal norms, the practice remains an ongoing challenge in Nigeria.

In this regard, some relevant statistics were presented to demonstrate the extent and manifestations of the problem. Also, apart from the thematic/sectoral focus, some problematic aspects of regulatory norms were pointed out. For instance, it was indicated that article 5(2) of the Minimum Age Convention and section 28(1)(b) of the CRA which recognise children’s work in small-scale family (agricultural) undertakings do not provide adequate protection for children, especially since there are no standards regarding the number of working hours. Apart from the potential exploitation which may occur as a result of this gap, the chapter also indicated a sector that has been neglected in the literature – child labour in the Nigerian public school system. In this regard, it was pointed out that the content of article 6 of the Minimum Age

Convention as well as section 28(2) of the CRA, recognising children’s work in technical schools or similar approved institutions could constitute a basis for child labour practices. These

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provisions have been somewhat capitalised upon to exploit school children. In both cases however (i.e., agricultural child labour in family undertakings, and child labour within the school system), it was indicated that the legal requirements to protect children from undertaking harmful or hazardous work supersedes the relevant exceptions, and must always be taken into account whenever children are to be involved in work-related activities. In other words, while some work may be permissible in the school system (as part of a course) or in small-scale agricultural settings, the work must not be of a nature that can constitute harm to children.

Given the prevalence of child labour in Nigeria, the next chapter examines the economic causative factor for the phenomenon.

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Chapter five

THE BARRIERS TO EFFECTIVE ELIMINATION OF CHILD LABOUR IN NIGERIA

5.1 INTRODUCTION

This chapter examines the underlying causative factors for child labour in Nigeria. Certain economic factors are specifically focused upon in this chapter to understand how they induce and reinforce child labour proliferation in the country.412 Although there are several possible explanations for child labour prevalence in developing countries in general, however, one major explanation consistently identified in the literature (including in Nigeria) is poverty.413 The findings in chapter 4 further support this view, as children in the various categories studied e.g., those working in public and semi-public places, child domestic workers, etc., mainly work for economic reasons. With specific regard to child domestic work, it was indicated that the practice

412 Although this thesis focuses mainly on economic factors, it should be noted that there are other factors. For instance, studies on children’s work in Nigeria demonstrate that culture is a potential determinant. In this regard, many parents across the country, especially the rural dwellers believe that involving their children in economic activities has cultural benefits. In this regard, children are not required to work for mere pecuniary reasons, but rather to preserve certain traditions. In the context of agricultural child labour for instance, many parents argue that by involving their children in farm work, they learn valuable skills and work ethic which may help them manage life’s complexities. These parents also consider the involvement of children in various economic activities as ways of transmitting pre-existing norms and traditions to younger generations, so they do not disappear. See Albert Ukaro Ofuoku., David Eduvie Idogu., & Bishop Ochuko Ovwigho‘Child labour in Agricultural production and socioeconomic variables among arable farming households in Nigeria’ 76 (n 340). Also, street hawking, which is another form of child labour popular across Nigeria, tends to enjoy some cultural legitimation. In this regard, the practice is widely considered a feminine activity, based on the thinking that it helps female children fulfil their culturally defined gender roles. This activity is particularly thought to enhance the ‘facilitation of “girl bonding” which provides them with the personal “space” for peer socialization’. See Aisha Ningi Ibrahim et al., ‘Cultural Dynamics of Child Labour in Yobe State Nigeria’ (2015), 20(5) IOSR Journal of Humanities and Social Sciences, 77. Aisha Ningi Ibrahim et al., specifically point out that, girl hawking is considered ‘as an opportunity for exposure to future husbands outside their clan. Thus, hawking provided them with opportunities of connecting with future husbands, especially those suitors coming from other cliques… Usually, the time spent on the street is regarded as part of their leisure time with prospective suitors especially on big market days.’ Ibid.

413 See for instance Assefa Admassie, ‘Explaining the high incidence of child labour in Sub-Saharan Africa’, (n 383) Assefa argues that, ‘By far, the most important supply side factors propagating child labour in sub-Saharan Africa could be poverty and lack of educational alternatives. Poverty is the main, if not the most important factor compelling parents to deploy their children into work obligations.’ – p61. The poverty determinant has also been confirmed in studies specifically focusing on Nigeria, see e.g., Dimeji Togunde and Arielle Carter, ‘Socioeconomic Causes of Child Labour in Urban Nigeria’ (2006) Journal of Children and Poverty 12(1) 73-89; Abdulaziz Shehu, Ibrahim Muhammad Kangiwa and Nura Sidi Umar ‘The effect of Household Poverty on Child Labour in Nigeria’ (2015) 6(7) Journal of Economics and Sustainable Development, 59-65.

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is more widespread among poorer children, whereby well-off families employ them to undertake various forms of works. Another economic causative factor considered in this chapter is corruption. Corruption is considered as an indirect causative factor for child labour. In this regard, corruption affects negatively the potentials for wealth redistribution in the country which in turn reinforces child labour. Also, this chapter demonstrates how the diversion by politicians of subsidies intended for farmers result in the use of children in agricultural work.

This chapter proceeds with the assumption that broader solutions to the poverty issue could contribute substantially to child labour decline in Nigeria and in other developing countries.

5.2 The Extent and Manifestations of Poverty in Nigeria414

In Nigeria, poverty has been measured in accordance with four key indicators: relative, objective, $1 per day,415 and subjective measures.416 With regard to relative poverty, a study conducted by the Nigerian National Bureau of Statistics analysed the expenditure of households using relevant economic indicators (Consumer Price Index). Households with expenditure

414 Generally, the term ‘poverty’ has been accorded various definitions in the literature. For instance, some authors have defined poverty as income insufficient to enable individuals to ‘play the roles, participate in the relationships, and follow the customary behaviour which is expected of them by virtue of their membership of society.’ See, Peter Townsend, The International Analysis of Poverty (Hemel Hempstead: Harvester-Wheatsheaf, 1992) 10, cited in Katherine A Magnuson, ‘Parents in poverty’ in Marc H Bornstein (ed) Handbook of parenting: Volume 4 Special Conditions and Applied Parenting (Lawrence Erlbaum Publishers, 2002) 96. Others scholars have defined the concept without regard to income; in this context, poverty is defined directly in terms of deprivation indicators, e.g., access to a telephone and appliances, or wearing old rather than new cloths. See, Katherine A Magnuson, ‘Parents in poverty’ in Marc H Bornstein (ed) Handbook of parenting: Volume 4 Special Conditions and Applied Parenting (Lawrence Erlbaum Publishers, 2002) 96.

415 In measuring poverty, the World Bank generally seems to consider extreme poverty as earning less than $1.90 a day. In this regard, the Bank has noted that ‘half of the extreme poor live in Sub-Saharan Africa. The number of poor in the region fell only by 4 million with 389 million people living on less than US$1.90 a day in 2013, more than all the other regions combined.’ Furthermore, the Bank noted that, ‘in 2013, 10.7 percent of the world’s population lived on less than US$1.90 a day, compared to 12.4 percent in 2012.’ This indicates that, by the World Bank’s measurement, the poverty line is drawn at income of $1.90 a day; individuals earning below this amount may be considered poor. The $1 a day poverty threshold previously utilised now seems outdated. See generally The World Bank Group, Poverty and Shared Prosperity 2016: Taking on Inequality (The World Bank, Washington, DC, 2016) 35.

416 National Bureau of Statistics, Nigeria Poverty Profile 2010, (NBS, 2012) 13

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greater than two-thirds of the total household per capital expenditure were classified as non- poor, while those below are regarded as poor. In the final analysis, the study showed that about

69% of Nigerians are living in poverty. On the other hand, the objective assessment of poverty, otherwise known as Food Energy Intake measure of poverty, demonstrates that about 60.2% of

Nigerians are poor. With regard to the $1 a day measurement, some 56.6% of the Nigerian population were found to be poor, as of 2010. It is clear that if measured by the currently applicable standard of $1.90, more Nigerians will fall below the poverty line. The fourth indicator, the subjective measurement of poverty, is a self-assessment model of sort, it seeks the opinions of members of households on their economic state. The result generally mirrors the three previous categories, suggesting that poverty remains a continuing challenge in

Nigeria.417

It should be mentioned here that poverty has varied manifestations across the country. In this regard, although the national estimate of relative poverty is put at 69%, the poverty rate in some states is far worse. For instance, it is estimated that about 81.2% of the population in Sokoto state (located in northern Nigeria) are living in poverty.418

The scale of poverty and economic inequality in Nigeria is outrageous, as it has continued to grow in the context of an expanding economy. Also, the gap between the few rich and ‘the army of the poor’ has continued to widen.419 The rate of poverty in Nigeria is however not due to lack of resources (as the country has vast amount of natural resources), but partly due to mismanagement of state resources. More specifically, the overlap between political and

417 National Bureau of Statistics, Nigeria Poverty Profile 2010, (NBS, 2012) 13.

418 National Bureau of Statistics, Nigeria Poverty Profile 2010, (NBS, 2012) 23.

419 An OXFAM report for instance indicates that, ‘While more than 112 million people were living in poverty in 2010, the richest Nigerian man will take 42 years to spend all of his wealth at 1 million per day’, see OXFAM International Inequality in Nigeria: Exploring the Drivers (OXFAM, 2017) 4.

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economic powers tends to bend the allocation of resources and income in favour of the few rich and powerful.420 This creates massive inequality across the country, including high unemployment rates.421 Apart from this, the tax system in the country tends to worsen the conditions of the poor, especially for those working in the informal sector. While on the one hand, big multinational companies receive tax waivers and tax holidays, the poor are often aggressively taxed by state agents.422 Thus, entities that should be subject to higher taxation are given concessions, while those that need help are further exploited by the unfair regime. This taxation system has contributed to the broader state of poverty in Nigeria.

5.2.1 EXAMINING POVERTY AS A BARRIER TO CHILD LABOUR ELIMINATION

IN NIGERIA

The household surveys conducted in Nigeria have consistently demonstrated that poverty remains widespread and continuing in the country. Relevant statistics have shown that the incidence of poverty rose from 27.2% in 1980 to 65% in 1996; it declined to 54.4% in 2004 and again picked up to 69% in 2010.423 These trends have enormous implications for child labour.

In this regard, it has been observed that:

420 An OXFAM report for instance indicates that, ‘While more than 112 million people were living in poverty in 2010, the richest Nigerian man will take 42 years to spend all of his wealth at 1 million per day’, see OXFAM International Inequality in Nigeria: Exploring the Drivers (OXFAM, 2017) 13.

421 The unemployment situation in the country for instance reached desperate levels in March 2014, when some 6.5 million people visited recruitment centres to apply for 4,000 openings at the Nigeria Immigration Service – at least 16 people died in the stampede that ensued.

422 Commenting on the tax regime in Nigeria, OXFAM notes that: ‘The tax system is largely regressive: the burden of taxation mostly falls on poorer companies and individuals … to meet their revenue generation targets, the government – especially at the state level – opts for aggressive taxation of the informal sector, sometimes imposing erratic taxes according to needs. As a consequence, small and medium enterprises and men and women in the informal sector face multiple taxation, accompanied in some cases by human rights violations’ see OXFAM International Inequality in Nigeria: Exploring the Drivers (OXFAM, 2017) 5.

423 Abdulaziz Shehu, Ibrahim Muhammad Kangiwa and Nura Sidi Umar ‘The effect of Household Poverty on Child Labour in Nigeria’ (n 413) 61.

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The unabated rise in the level of poverty in Nigeria has led to a continuous decline in

the economic wellbeing of … households, which subsequently increases the intensity of

child labor in the country. It also limits the capability of individual household members

in the country to attain a minimal state of wellbeing measured in terms of education,

health, food security and human development.424

Thus, limited economic resources force families to seek alternative avenues, such that children are often conscripted into the work force. As pointed out in chapter four, the majority of the working children are involved in a range of activities including farming, domestic works, public and semi-public works. Research indicates that many of the working children are forced into these activities as a form of coping strategies to survive economic hardships. A number of economic factors have been offered to explain the overall decline in the standard of living across

Nigeria.425 At the national level, the staggering decline in ‘Gross National Products (GNP), increased rural/urban migration, cut-backs in funding for education and social intervention programs, deregulation of job markets, and the Structural Adjustment Programs (SAPs) prescribed by the International Monetary Fund have had detrimental effects on families.’ 426

Given the broader economic outlook, children have somewhat become the extra agents needed to supplement household income. Generally speaking, the majority of households (especially rural dwellers) in Nigeria have no access to good shelter, live in overcrowded houses and do massive physical work. Under these conditions, affording the educational expenses of children,

424 Ibid.

425 Ibid

426 Dimeji Togunde and Arielle Carter, ‘Socioeconomic Causes of Child Labour in Urban Nigeria’, (n 413) 77.

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such as school uniforms, school fees etc., is usually challenging.427 Thus, the relevant children are sometimes without no other alternative than to work to support their families.

Child labour and household poverty

This section examines the link between household (parental) income and the likelihood of children’s economic participation. Generally, it has been observed that, parental socioeconomic profiles play an important role in determining whether or not a child will work; family socioeconomic characteristics may also determine whether the earnings are utilised to support household expenses or whether the children keep their earnings to themselves.428 Thus, in many ways, household poverty does have far reaching implications for children and for child labour.

Assessing the manifestations of poverty from a broader perspective, American anthropologist,

Oscar Lewis,429 once noted that, the concept constitutes a sub-culture with marked features that cuts across geographical boundaries. In what he refers to as the ‘culture of poverty’, he noted that the nature of this culture ‘transcends national boundaries and regional and rural-urban differences within nations. Wherever it occurs, its practitioners exhibit remarkable similarity in the structure of their families, in interpersonal relations, in spending habits, in their value systems and in their orientation in time.’430 This assessment on poverty is fairly accurate when child labour is taken into account. For instance, a remarkable similarity may be identified in low-income countries which usually have the highest child labour rates across the world. In this regard, it is almost the case that child labour and household poverty are inextricably tied

427 Abdulaziz Shehu, Ibrahim Muhammad Kangiwa and Nura Sidi Umar ‘The effect of Household Poverty on Child Labour in Nigeria’ (n 413)

428 Dimeji Togunde and Arielle Carter, ‘Socioeconomic Causes of Child Labour in Urban Nigeria’ (n 413) 74.

429 Oscar Lewis, ‘The Culture of Poverty’, (1966) 215(4) American, 19.

430 Oscar Lewis, ibid.

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together; wherever there is one, there is very likely to be the other, regardless of geographical location. This particularly captures the reality in Nigeria, whereby nearly 70% of the population may be regarded as poor according to the relative poverty measurement.

Oscar Lewis further observed that, ‘a relief system that barely keeps people alive perpetuates rather than eliminates poverty and the pervading sense of hopelessness. People in a culture of poverty produce little wealth and receive little in return. Chronic unemployment and underemployment, low wages, lack of property, lack of savings, absence of food reserves in the home and chronic shortage of cash imprison the family and the individual in a vicious circle.’ 431

Thus, for parents with no steady income, ‘who live in the present without expectations of the future,’432 involving their children in economic activities is usually the default option.

Arguments about the psychosocial implications of harmful works on children (especially future consequences), seldom resonates with these parents, as their concern is daily survival, not future promises. Therefore, a strong present-time orientation, reinforced by poverty, undermines the legitimacy of child labour prohibition in the eyes of poorer parents.

In more specific terms, Albert Ofuoku et al., have studied the socioeconomic relationships between small-scale agricultural production and child labour in Nigeria. The study reveals the relevant challenges that arable farming households often grapple with, and more specifically, the strong link between poverty and child labour.433 The study demonstrates that the average household size in Nigeria is 11 persons.434 Thus, with household heads earning considerably

431 Oscar Lewis, ibid 21.

432 Oscar Lewis, ibid 23.

433 Albert Ukaro Ofuoku., David Eduvie Idogu & Bishop Ochuko Ovwigho ‘Child labour in Agricultural production and socioeconomic variables among arable farming households in Nigeria’, (n 340) 72.

434 Ibid.

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low income and having to cater for around 10 persons, seeking alternative avenues to augment the family income may be inevitable. In most cases, the relevant household heads often involve their children in farming activities to save money that may be otherwise spent on hired labour.

In this regard, children are usually classified into age groups, with tasks assigned to them on this basis.435 As pointed out in the previous chapter, children involved in farming activities are usually exposed to a number of hazards, either from use of sharp farming implements or chemicals that can be highly injurious. Children applying chemical substances can for instance be exposed to immediate physical injuries such as skin burn, or some more devastating injuries that may leave them permanently deformed.

Generally, it can be said that the economic factors associated with child labour include low parental income, high cost of living, as well as high cost of labour (i.e., hired labour). 436 The

ILO has indeed acknowledged that ‘poverty is certainly the greatest single force driving children into the workplace. Income from a child's work is felt to be crucial for his/her own survival or for that of the household.’437 The ILO further pointed out that ‘children from large families are more likely to be at work than those from small families, simply because the parents' income is quite insufficient to support a large family.’438 As already reflected in this study, the realities across Nigeria tend to support the views of the ILO on the negative effects

435 Albert Ukaro Ofuoku et al., observed that children aged 6 and 9 years (30%), 10 to 13 (32.92%) and 14 to 17 years old (37.08) are often involved in various degrees of farming activities, including planting and weeding on the basis of their age; more intense works are usually assigned to older children. See generally, Albert Ukaro Ofuoku., David Eduvie Idogu., & Bishop Ochuko Ovwigho ‘Child labour in Agricultural production and socioeconomic variables among arable farming households in Nigeria’, (n 340) 74.

436 Ibid 72.

437 ILO, Causes of Child Labour, available at: http://www.ilo.org/moscow/areas-of-work/child- labour/WCMS_248984/lang--en/index.htm (accessed 11/08/2017).

438 Ibid.

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of poverty. Thus, it may be acknowledged that economic hardships could be highly severe that child labour becomes a rational choice for poorer families.

Furthermore, the terrorist activities in northeast Nigeria also have broader economic implications for families living in the region, especially in the context of child labour. In this regard, several industries have been destroyed or shut down since the activities of the terrorist group, Boko Haram, intensified in 2009.439 In many ways, children’s economic dependence on adults has been threatened, as a result of job loss or forced displacement. Also, a number of household heads have been killed in the ongoing insurgency, thus forcing many orphaned children to join the work force. It is worth indicating here that there are no effective social welfare programs in Nigeria, which may serve as safety nets.440 The harsh economic conditions and the struggles of children have for instance been recognised and taken into account by some educational institutions in the country. In this regard, many secondary schools in Nigeria now operate both morning and afternoon shifts, to accommodate for children’s economic activities without compromising school attendance.441This demonstrates that the law in its current form cannot serve as a quick-fix mechanism to eliminate child labour, especially where the question of poverty is not addressed. Supporting the poverty hypothesis, ‘Dimeji Togunde & Arielle

Carter have argued that, in societies where there are ‘low wages, rising rates of unemployment, and declining household incomes, the labor participation of children who can contribute to the household income is essential for alleviating economic stress and meeting the consumption

439 Bassey Enya Ndem., Baghebo Michael., & Out Chris Awa, ‘Child labour in Nigeria and its Economic implications: A case study of Calabar Municipality’ (2012) 2(9), Research on Humanities and Social Sciences, 154.

440 Some recent reports have however indicated that the present administration in the country is working to assist poorer families with 5,000 a month ($16.4), with the goal of reaching up to five million beneficiaries by 2021; see, The Punch Newspaper, ‘Nigeria deploys social welfare scheme to help the poor’, 26 January 2017, available at http://punchng.com/nigeria-deploys-social-welfare-scheme-help-poor/ (accessed 14/08/2017).

441 Nicola Jones et al., ‘Promoting synergies between child protection and social protection in Nigeria’ (n 7) 25.

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requirements of the household.’442 Studying the interface between poverty and child labour in

Abeokuta, Ogun State (southwest Nigeria), the authors further noted that, over four-fifth of children in the state give their earnings to their parents; thus, supporting the argument that many children are involved in child labour activities mainly to support their family economy. 443 In this regard, nearly all the parents interviewed (nine out of ten) identified poverty as the main reason why their children work.444 Therefore, the issue of household poverty must be accorded adequate attention if the legal prohibition of child labour is likely to be effective.

Poverty, parental education and child labour

With poverty as the central theme, this section examines the relationship between parental education and child labour. There seems to be a particularly strong link between these three elements, and one may easily produce the others. Regarding the link between parental education and child labour, it has been observed that, child labour is usually less prevalent in families with better educated parents.445 In this regard, higher parental education tends to reduce the likelihood that children will work, and if they work, only do so for fewer hours.446 Apart from the link between child labour and parental education, it is worth pointing out here that, there is a strong correlation between poverty rates and parental education. An OXFAM report for instance demonstrates that, 75.8% of the poorest women in Nigeria have never been to school.447 Thus, it is often the case that children of more affluent and better educated parents

442 ‘Dimeji Togunde & Arielle Carter, ‘Socioeconomic causes of child labour in urban Nigeria’, (n 413) 75

443 Ibid 80.

444 Ibid.

445 Ibid.

446 Ibid 74.

447 See OXFAM International Inequality in Nigeria: Exploring the Drivers (OXFAM, 2017) 4.

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continue the family tradition of acquiring formal education and shunning child labour; while, children of poorer and less educated parents, on the other hand, are likely to perpetuate the vicious cycle of poverty, illiteracy and consequently child labour.

Dimeji Togunde and Arielle Carter have specifically observed that, children’s average work hours in Nigeria largely relate to the income and education of their parents.448 In this regard, children of highly educated parents are more likely to work fewer hours, compared to those of less educated parents.449 Also, the higher the occupational status of parents, the less likely it is that children will work long hours. As Sigita Grundiza and Cristina Lopew Vilaplana put it,

‘the education level of parents has a strong impact on the education level of their children. This can be explained by the parents' ability to financially support their children's studies and/or to pass a perception of the importance of education to their children. In turn, the education level is one of the most important individual factors for adults in reducing the risk of poverty and being able to secure acceptable living conditions for themselves and their families.’ 450 This demonstrates the intergenerational link between parental income and the income of offspring as well as parental education and the education of offspring. The relevance of parental education for child labour can also be inferred from this context. Apart from this, in the context of agricultural child labour, it has been observed that, as most of the farming household heads in

Nigeria are uneducated, it can be somewhat difficult for such parents to make sense of the relevant child labour legislation, leading them to involve their children in labour activities. 451

448 ‘Dimeji Togunde & Arielle Carter, ‘Socioeconomic causes of child labour in urban Nigeria’, (n 413) 80.

449 Ibid.

450 Sigita Grundiza & Cristina Lopew Vilaplana, ‘Intergenerational transmission of disadvantage statistics: Is the likelihood of poverty inherited?’ available at: http://ec.europa.eu/eurostat/statistics- explained/index.php/Intergenerational_transmission_of_disadvantage_statistics (accessed 16/08/2017).

451 Albert Ukaro Ofuoku., David Eduvie Idogu., & Bishop Ochuko Ovwigho, ‘Child labour in Agricultural production and socioeconomic variables among arable farming households in Nigeria’, (n 340) 77.

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Therefore, it is clear that poor parental education (often caused by poverty) can induce child labour in an intergenerational manner. In sum, in the context of poverty, child labour appears to be a coping mechanism, and will likely diminish when parents have better socio-economic and educational opportunities.452

5.3 CORRUPTION AND CHILD LABOUR IN NIGERIA

This section considers corruption as a causative factor for child labour. It is worth mentioning here that this theme can also partly explain the prevalence of poverty in Nigeria. Thus, while this section examines the question of poverty from the perspective of corruption, it also treats corruption itself as a distinct causative factor for child labour. Before engaging with the theme in broader detail, effort is first made to clarify the idea of corruption for consistent understanding in usage; following this, the deep entrenchment of the practice is demonstrated in Nigeria together with its human rights implications. Finally, the theme is linked to child labour prevalence in the country.

5.3.1 DEFINING CORRUPTION?

Corruption is generally not defined in relevant international treaties.453 The applicable treaties that utilise the term often require state parties to criminalise specific acts and behaviours,

452 Francine Mestrum, ‘Child poverty in the context of global social development’, in Wouter Vandenhole et al., Routledge international handbook of children’s rights studies (n 9) 364.

453 The relevant international treaties include the UN Convention against Corruption 2003; UN Convention against Transnational Organised Crime (UNTOC); the Council of Europe Criminal Law Convention on Corruption. In the definition section of the African Union Convention on Preventing and Combating Corruption, the practice is merely conceived as ‘the acts and practices including related offences proscribed in this Convention’. This approach suggests that a legal normative definition is not adopted, however, the content of the convention may offer some helpful guidance in identifying which acts qualify as corruption.

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including bribery, abuse of influence etc., without any further clarification as to definition.454

However, outside of those treaties, corruption is commonly defined as ‘the abuse of entrusted power for private gain.’455 In Nigeria, without explicitly defining the term, section 2 of the

Corrupt Practices and other Related Offences Act 2000 states that corruption ‘includes bribery, fraud and other related offences’. The practice often occurs where public officials have direct responsibilities to provide public services.456 Also, corruption tends to manifest when an institution or public official has monopoly over certain goods or services that generates rent, and has discretionary powers to decide who will receive those goods or services without being accountable.457 In many ways, corruption is a deeply rooted practice grounded in a country’s socio-cultural antecedent, bureaucratic traditions and policies as well as political and economic development. It is generally symptomatic of deep institutional weaknesses and often leads to inefficient social outcomes.458

The notion of corruption is often categorised into ‘petty’ corruption and ‘grand’ corruption, depending on the enormity or scale of the practice. However, these categorisations only describe variations of the same phenomenon, and have little significance in legal normative terms.459 Thus, the phenomenon, understood as lack of accountability by public officials in the provision of public services, is discussed here without any recourse to the distinctions.

454 Radha Ivory, Corruption, Asset Recovery, and the Protection of Property in Public International Law: The Human Rights of Bad Guys (Cambridge University Press, 2014) 22.

455 Transparency International, ‘What is Corruption’ available at https://www.transparency.org/what-is- corruption#define (accessed 29/08/2017).

456 Selçuk Akçay, ‘Corruption and Human Development’, (2006) 26(1) Cato Journal 29. (29-48)

457 Selçuk Akçay, ibid.

458 Ibid.

459 Anne Peters, ‘Corruption and Human Rights’ (Basel Institute on Governance, Working paper series No. 20) 10.

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5.3.2 THE RELATIONSHIP BETWEEN CORRUPTION AND HUMAN

(CHILDREN’S) RIGHTS

In the predominant practice of the United Nations, weak vocabulary is often used to describe the relationship between corruption and human rights.460 Thus, it is worth questioning whether any strong relationship exists between the two concepts. In terms of its legal significance, such connection will help to properly situate the discourse on corruption in the context of legal duty and how corrupt practices may result in child labour. Thus, this section attempts to demonstrate the link between corruption and human rights, and how the former induces child labour activities in Nigeria.

A commentator has pointed out that ‘the protection of human rights is inversely affected by the presence of corruption in a society.’461 The presence of corruption will likely ‘prevent a state from fulfilling its duties to respect, protect, and fulfil the human rights of its citizens.’ 462

Recognising the entrenchment of corruption in Nigeria and its negative implications for children’s rights, the UN Committee on the Rights of the Child has specifically noted that

‘corruption remains endemic’ in Nigeria, and has ‘adverse effects on the protection and promotion of children’s rights’ in the country.463 In this regard, the Committee urged the

Nigerian government to, ‘take all necessary measures to effectively prevent and combat corruption, in particular by reinforcing enforcement of existing mechanisms under the State party’s anti-corruption reform programme and by investigating and prosecuting all suspected

460 Anne Peters, ibid 12.

461 James Thuo Gethii, ‘Defining the relationship between human rights and corruption’, (2009), 31(1) U. Pa. J. Int’l L, 147.

462 James Thuo Gethii, ibid.

463 See, Committee on the Rights of the Child, CRC/C/NGA/CO/3-4, 21 June 2010, Para 16.

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cases of corruption.’464 Furthermore, in terms of the socio-economic implications of the practice, it has been pointed out that:

Corrupt management of public resources compromises the Government’s ability to

deliver an array of services, including health, educational and welfare services, which

are essential for the realization of economic, social and cultural rights. Also, the

prevalence of corruption creates discrimination in access to public services in favour of

those able to influence the authorities to act in their personal interest, including by

offering bribes. The economically and politically disadvantaged suffer

disproportionately from the consequences of corruption, because they are particularly

dependent on public goods.465

The human rights implications of corruption have for instance been recognised by a few countries at the forefront of social rights protection, including India and South Africa. With regard to South Africa for instance, the approach is to assert that corruption is a clear violation of human rights. In one of its rulings, the country’s Constitutional Court stated that ‘corruption and maladministration are inconsistent with the rule of law and the fundamental values of our

Constitution. They undermine the constitutional commitment to human dignity, the achievement of equality and the advancement of human rights and freedoms.’ 466 This clearly

464 Committee on the Rights of the Child, CRC/C/NGA/CO/3-4, 21 June 2010, Para 17(a).

465 See, Office of the High Commisioner for Human Rights and the Government of Poland U.N. Conference on Anti-Corruption Measures, Good Governance and Human Rights; cited in James Thuo Gethii, ‘Defining the relationship between human rights and corruption’, (n 461) 148.

466 Constitutional Court of South Africa, South African Association of Personal Injury Lawyers v Health and Others, 28 November 2000, (CCT 27/00) [2000] ZACC 22, para. 4; cited in Anne Peters, ‘Corruption and Human Rights’ (Basel Institute on Governance, Working paper series No. 20) 12.

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reveals that corruption is a direct violation of human rights. This approach has also been maintained in India, where in 2012, the Supreme Court of the Country held that, ‘corruption

[...] undermines human rights, indirectly violating them’, the court further noted that

‘systematic corruption is a human rights violation in itself.’467 Furthermore, in its guidelines for national reports, the Inter-American Commission on Human Rights specifically considers the ratification and effective implementation of the Inter-American Convention against Corruption as indicators of national progress.468

Corruption affects human rights in multifarious ways. For instance, the rights to food, health, education etc., can be compromised if relevant state officials are bribed before access can be gained to these basic rights. Also, corruption by high-level officials can hinder the government from fulfilling its obligations to respect and protect the rights of the people.469 Some implicit relationships can also be found, especially in the area of education rights. The right to education is particularly mentioned here as it often features in the definition of child labour. In this regard, it has been argued that ‘corruption is directly correlated to poor educational achievement in

African countries,’470 it usually takes the form of bribery as a precondition for gaining admission to educational institutions. Apart from this, corruption may increase the cost of educational services, and may also lower the quality of these services.471

467 [2012] 9 S.C.R. 601 602 State of Maharashtra through CBI, Anti-corruption Branch, Mumbai v. Balakrishna Dattatrya Kumbhar (Criminal Appeal No. 1648 of 2012), 15 October 2012, para. 14; cited in Anne Peters, ‘Corruption and Human Rights’ (Basel Institute on Governance, Working paper series No. 20) 12.

468 Anne Peters, ‘Corruption and Human Rights’ (Basel Institute on Governance, Working paper series No. 20) 17.

469 James Thuo Gethii, ‘Defining the relationship between human rights and corruption’ (n 461), 126.

470 James Thuo Gethii, ibid 182.

471 Selçuk Akçay, ‘Corruption and Human Development’, (n 456) 33.

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The African Union Convention on Preventing and Combating Corruption further tends to demonstrate the link between corruption and human rights protection. Among other things, the thematic based instrument (corruption) specifically obliges state parties to ensure ‘respect for human and peoples’ rights in accordance with the African Charter on Human and Peoples

Rights and other relevant human rights instruments’ and also to promote ‘social justice to ensure balanced socio-economic development.’472 There is very clearly an intersection between these two themes – the abuse of public powers (corruption) may result in the violation of human rights, especially economic and social rights. Therefore, corruption increases inequality on different levels; it more specifically induces unequal distribution of resources. In this context,

Rose-Ackerman argues that, ‘corruption also tends to distort the allocation of economic benefits, favouring the haves over the have-nots leading to a less equitable income distribution.

A share of the country's wealth is distributed to insiders and corrupt bidders, contributing to inequalities in wealth.’473

5.3.3 THE EXTENT OF CORRUPTION IN NIGERIA AND THE RELATIONSHIP

WITH CHILD LABOUR

Although for many years, Nigeria (like many other African countries) has been grappling with different governance problems, the issue of corruption however appears to be more worrisome.474 Corruption is a cross-cutting theme that affects nearly every sector and system

472 Article 3, African Union Convention on Preventing and Combating Corruption.

473 Rose-Ackerman, S, ‘The Political Economy of Corruption’ in K.A Elliot (ed.) Corruption and the Global Economy, (Washington: Institute for International Economics, 1997) 33; cited in Selçuk Akçay, ‘Corruption and Human Development’, (n 456) 34.

474 O.O Adeyemi et al, ‘The manifestation of Corruption in Nigeria: A critical X Ray of some selective development’ (2012), 2(4) International Journal of Physical and Social Sciences, 1.

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of the country, including at political, civil service475 and judicial levels.476 The extent of corruption at the political and bureaucratic levels however tends to have the highest negative effect on children’s rights and child labour. In this regard, allegations of document forgery and corrupt enrichment are widespread across the country; the first Speaker of the House of

Representatives was for instance removed from office in 1999 for this reason. Also, the senate presidency ‘changed three times between 1999 and 2003 over allegations of fraud and financial mismanagement.’477 Financial mismanagement will inevitably affect the equitable distribution of national wealth. The country’s corruption watchdog, the Economic and Financial Crimes

Commission (EFCC), noted that between 1960 and 2005, some $20 trillion was stolen from the national treasury by public office holders.478 Also, more recently, the former Central Bank

Governor, Lamido Sanusi Lamido, alleged that around $20 Billion was missing from the crude

475 Generally, one can hardly enter any office in Nigeria to sign documents etc., without financial or other inducement. The bribery process is usually initiated by the security personnel at the entrance before the relevant services are rendered; see, O.O Adeyemi et al, ‘The manifestation of Corruption in Nigeria: A critical X Ray of some selective development’ ibid 2.

476 Eva Brems & Charles Olufemi Adekoya, argue that the Nigerian judiciary is not spared from the widespread corruption that has plagued the country, they specifically note that, ‘Corruption in the justice administration system in Nigeria takes many forms. These include: the acceptance of gratification or other considerations by the presiding judge or magistrate to influence the decision in a case in favour of one of the parties; collusion between litigants (often the plaintiffs) and the court bailiffs; faking the actual service of court process, as well as forged endorsements of service in the court records, with the aim of ensuring the non-appearance of the defendant to defend the suit, so that the plaintiff can obtain a default judgment against the real defendant, who has no knowledge of the suit.’ See Eva Brems & Charles Olufemi Adekoya, ‘Human Rights Enforcement by People Living in Poverty: Access to Justice in Nigeria’, (2010), 54(2) Journal of African Law, 268.

477 Augustine Nwabuzor, ‘Corruption and Development: New Initiatives in Economic Openness and Strengthened Rule of Law’ (2005) 59, Journal of Business Ethics, 130.

478 OXFAM International Inequality in Nigeria: Exploring the Drivers (OXFAM, 2017) 5. The other agency established by the government to fight corruption is the Independent Corrupt Practices Commission (ICPC).

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oil account of the country; shortly after making this pronouncement, he was removed from office under controversial circumstances.479

Corrupt and weak institutions may generally create a climate of impunity, whereby the relevant practices are not investigated or punished.480 This is a problem that traverses the length and breadth of Nigeria. In this regard, prosecution is seldom instituted, especially when more powerful Nigerians are involved. The case of James Ibori (former governor of Delta state between 1999-2007) perfectly demonstrates this reality. During 2012, the former governor was convicted by a UK court and served prison term in the UK subsequently for laundering state funds (£50m); the London Metropolitan police indeed stated that Ibori embezzled £157m of

Nigerian public funds.481 However, it is worth noting that James Ibori was never prosecuted for financial crimes in Nigeria, arguably because the system was corrupt.482 The problem of poverty in Nigeria is therefore compounded by high levels of corruption in the country. The 2010/2011

Global Corruption Barometer of Transparency International for instance showed that 73% of

479 Tim Cocks & Joe Brock, ‘The extraordinary story of Nigeria’s $20 billion oil money leakage’ available at: http://uk.businessinsider.com/r-special-report-anatomy-of-nigerias-20-billion-leak-2015-2?r=US&IR=T (accessed 04/09/2017).

480 Zehra F. Arat’s reflection on corrupt practices in general tends to capture some other actors and dimensions of the practice in Nigeria. In this regard, she noted that ‘Powerful investors—individuals as well as national or transnational corporations—usually use their power to bribe officials to ignore violations [and] pressure governments to relax employment restrictions’; see, Zehra F. Arat, ‘Analysing Child Labour as a Human Rights Issue: Causes, Aggravating Policies and Alternative Proposals’ (2002), 24(1) Human Rights Quaterly, 183.

481 Mark Tran, ‘Former Nigeria state governor James Ibori receives 13-year sentence’, available at: https://www.theguardian.com/global-development/2012/apr/17/nigeria-governor-james-ibori-sentenced (accessed 04/09/2017).

482 Although state governors enjoy immunity from prosecution while in office, James Ibori was never prosecuted (in Nigeria) after completing his term in office.

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Nigerians believe the levels of corruption in the country are on the increase, and that the police, political parties as well as the judiciary are particularly corrupt.483

Having discussed the prevalence of corruption in Nigeria, how the practice particularly relates to child labour is worth assessing in more detail. The functionalist theory484 is utilised here to explain the link between corruption and child labour i.e., the breakdown in a system may affect the functioning of other segments in the system. For a society to function as an organic whole, every sector must perform its function. In this context, corruption is conceived as the dysfunctional segment in the organic whole of Nigeria, which leads to problems in other areas.

Generally, many human rights treaties, especially the International Covenant on Economic,

Social and Cultural Rights (ICESCR) imposes a duty on the Nigerian state to realise relevant socioeconomic rights; as indicated in chapter 2 of this thesis, article 2 of the ICESCR provides that, ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.’ Without reopening the legal debates surrounding the present article in terms of justiciability, one thing is settled, which is that states have an

483 Emilie Secker, ‘Barriers to the effective implementaiton of the UN Convention on the Rights of the Child in the Niger Delta of Nigeria’, in Afua Twum-Danso Imoh and Nicola Ansell (eds), Children’s Lives in an Era of Children’s Rights: The Progress of the Convention on the Rights of the Child in Africa (n 45) 173.

484 The functionalist theory is mainly based on the works of Herbert Spencer, Emile Durkheim, Talcott Parsons, and Robert Merton. The theory states that, ‘society is a system of interconnected parts that work together in harmony to maintain a state of balance and social equilibrium for the whole. For example, each of the social institutions contributes important functions for society: Family provides a context for reproducing, nurturing, and socializing children; education offers a way to transmit a society’s skills, knowledge, and culture to its youth; politics provides a means of governing members of society; economics provides for the production, distribution, and consumption of goods and services; and religion provides moral guidance and an outlet for worship of a higher power.’ See generally, Linda A. Mooney, David Knox & Caroline Schacht, Understanding Social Problems (Cengage learning, 2015) 8.

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obligation to fulfil the content of the convention. Even though there may be valid grounds (e.g., economic constraints at state level) for inability to fulfil this obligation, it may be argued that the usual alibis hardly apply to Nigeria. In other words, ‘the maximum of available resources’ argument may not constitute a valid ground for failing to fulfil the relevant obligations, at least in Nigeria. As has been demonstrated, much of Nigeria’s wealth has been plundered through various corrupt schemes. Furthermore, it has been pointed out that, many children work, not because they desire to work, but because they are poor; thus, it is particularly difficult to reconcile the revenues accruing from sale of crude oil, for instance, with the widespread poverty across the country.

Using the functionalist theory, it is argued here that, failure of the Nigerian state to fulfil its

ESC obligations (especially as a result of corrupt practices) could mount pressure on families to find alternative sources of revenue i.e., child labour. In this context, a three-layered relational structure is conceived, whereby the state occupies the highest rung, parents in the middle, and children at the bottom. As parents occupy the middle position between the state and children, their structural roles are crucial. In a well functional system, parents receive from the state and redistribute to children, however, in a dysfunctional system (where there is a breakdown in state function), parents sometimes push their children to join the work force. In this regard, Zehra F.

Arat, for instance points out that, ‘more importantly, what many employers [especially state entities] fail to provide for adult workers—e.g., “living wages,” disability benefits, a healthy and safe work environment, health care coverage, and childcare allowances—create the conditions that increase the family dependency on child labor. Parents, who normally care about the welfare and future of their children, participate in the process by allowing, or even forcing,

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their children to work.’485 A breakdown in the relational framework between the state and citizens can therefore explain the indirect effects of corruption on child labour in Nigeria.

A further indirect relationship between corruption and child labour is also noticeable in the agricultural sector in Nigeria. In this regard, Albert Ofuoku et al., note that the little input empowerments (such as seeds and fertilisers) offered by the federal government to small-scale farmers at subsidised fee are usually hijacked by politicians, such that the support never reaches the real targets. These inputs are often diverted to the few influential large-scale farmers and resold above the government approved or subsidised price.486 The implication of this is that families denied such support may have to make up for the deficits by involving their children in various child labour activities. Other studies have also examined the negative effects of corruption on children’s rights in Nigeria, especially in the area of access to justice.487 In terms of child labour, the conclusions drawn from the study on access to justice may also be relevant.

As pointed out in the preceding chapter, child domestic work is one of the most prevalent child labour practices in Nigeria, it was indicated that the relevant children are often denied access to justice, especially in cases of physical abuse. However, regarding the law enforcement agents in Nigeria, Emilie Secker observes that many police officers are generally not aware of the existence of the Child Rights Act, while others who have some knowledge of it are completely oblivious of its content.488 Secker further points out that the lack of financial resources to

485 Zehra F. Arat, ‘Analysing Child Labour as a Human Rights Issue: Causes, Aggravating Policies and Alternative Proposals’ (2002), 24(1) Human Rights Quarterly, 183

486 Albert Ukaro Ofuoku., David Eduvie Idogu., & Bishop Ochuko Ovwigho, ‘Child labour in Agricultural production and socioeconomic variables among arable farming households in Nigeria’, (n 340), 77.

487 Emilie Secker, ‘Barriers to the effective implementaiton of the UN Convention on the Rights of the Child in the Niger Delta of Nigeria’, in Afua Twum-Danso Imoh and Nicola Ansell (eds), Children’s Lives in an Era of Children’s Rights: The Progress of the Convention on the Rights of the Child in Africa (n 45) 183.

488 Emilie Secker, ibid 183.

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investigate cases of abuse in Nigeria (including child labour exploitation) is not due to lack of resources, but internal corruption within the police force. She also noted that the corruption within the police force should generally ‘be assessed in relation to the endemic corruption in the Nigerian legal system.’489 Thus, failure of the authorities to act may create an enabling environment for child labour. The link between corruption in the education sector and child labour has also been demonstrated.490 In this context, it was pointed out that, embezzlement of education funds would mean ‘overcrowded classrooms and crumbling schools or no schools at all.’491 Such realities often discourage parents from sending their children to schools, and instead, conscript them into farming activities, which in turn may lead to child labour.492

Widespread corruption in Nigeria therefore constitutes a major challenge in the agenda to eliminate child labour.

5.5 CONCLUSION

The prevalence of child labour is an undeniable reality in Nigeria. This chapter has considered one of the main determinants of the practice in the country, in particular, economic factors. It was demonstrated that widespread poverty in Nigeria forces parents to utilise their children in various economic activities. Also, largescale corruption in Nigeria is seen to skew the redistribution of wealth in favour of the more powerful and affluent, leaving poorer families in perpetual squalor. This has created an enabling environment for child labour. It was

489 ibid.

490 Kéma Alexis Foua Bi, Enduring Child Labour on Ivory Coast’s Cocoa Farms: Practicality of the ILO Standards and the Missed Opportunities (Unpublished PhD Thesis, Brunel University, 2014) 97.

491 Kéma Alexis Foua Bi, ibid.

492 Kéma Alexis Foua Bi, ibid.

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demonstrated in this chapter that solutions to the poverty issue could contribute substantially to child labour decline in Nigeria. As existing legal norms have largely failed to eliminate child labour activities in Nigeria, the next chapter turns to assess a range of multilateral and unilateral frameworks formulated to, inter alia, alleviate the poverty situations in developing countries

(through trade concessions), and at the same time, to eliminate child labour in such countries.

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Chapter 6

ASSESSING ALTERNATIVE MULTILATERAL AND UNILATERAL

FRAMEWORKS FOR COMBATING CHILD LABOUR

6.1 INTRODUCTION

The prevalence of child labour at the domestic level in Nigeria and the apparent limitations of the law to eradicate the phenomenon reflects the complex nature of the practice. To a large extent, the complexities surrounding child labour with regard to Nigeria exemplifies the wider realities across the developing world. To this end, this chapter now turns to examine the various policy and other strategic means of responding to the problem. Specifically, certain international, regional and national strategies designed to supplement existing international normative frameworks on child labour are studied. The relevant strategies are examined from two perspectives: solidarity approach and conditionality approach. In this regard, at the international level, the utility of the Sustainable Development Goals (SDGs) as a tool for combating child labour is explored from a solidarity standpoint. Other (trade-related) arrangements formulated by developed countries to address child labour problems extraterritorially are considered from a trade conditionality perspective. In this context, the regional framework available at the European Union level in regards to child labour is examined. This aspect specifically examines the manner in which the Generalised System of

Preferences (GSP) under the World Trade Organisation’s (WTO) General Agreement on Tariffs and Trade (GATT) is being adapted to fight child labour in foreign countries. Apart from this, the unilateral trade measures developed by the US which are being deployed to tackle child labour problems are examined. These measures are conceived as broader measures which may, in part, address the poverty situations in developing countries if appropriately implemented.

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6.2 ASSESSING THE GLOBAL RESPONSES TO COMBAT CHILD LABOUR

In a report submitted by the UN Secretary General to the Economic and Social Council in 2017, the Secretary General remarked that: ‘while the number of children from 5 to 17 years of age who are working has declined from 246 million in 2000 to 168 million in 2012, child labour remains a serious concern. More than half of child labourers (85 million children) participate in hazardous work and 59 per cent of them work in the agricultural sector.’ 493 Although some progress has been made in the fight against child labour globally, the statement by the Secretary

General attests to the fact that child labour problems are still ongoing despite the existence for many years of legal normative standards. Thus, the next section evaluates the utility of the

SDGs as a tool for fighting child labour. The SDGs are discussed here as a tool for combating child labour on the basis of international solidarity as opposed to binding normativity.

6.3 COMBATING CHILD LABOUR THROUGH SUSTAINABLE DEVELOPMENT

GOALS

The prevalence of child labour globally is considered by the UN as a major development challenge. During 2015, the UN General Assembly adopted a Resolution entitled:

‘Transforming our world: the 2030 Agenda for Sustainable Development’.494 This Resolution containing 17 development goals builds on the Millennium Development Goals with a view to, inter alia, improving human dignity. Goal 8 of the Sustainable Development Goals (SDGs) is particularly relevant to this study as it addresses the subject of child labour. In this regard,

Target 8.7 of the goal urges states parties to: ‘Take immediate and effective measures to

493 E/2017/66, Report of the Secretary-General, ‘Progress towards the Sustainable Development Goals’, dated 11 May 2017 at P10.

494 A/RES/70/1, Resolution adopted by the General Assembly on 25 September 2015, entitled: ‘Transforming our world: the 2030 Agenda for Sustainable Development’, dated 21 October 2015 at P20.

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eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, including recruitment and use of child soldiers, and by 2025 end child labour in all its forms.’

The content of target 8.7 is generally consistent with the more expansive scope given to child labour in this study, in that, it addresses the issues of slavery, trafficking, the worst forms of child labour, the recruitment and use of children in armed organisations and the more traditional forms of child labour. Particularly of note here is the objective of ending all forms of child labour by year 2025, which has an earlier deadline compared to many other objectives set forth in the SDGs (which are aimed to be realised by 2030). This in many ways reflects the urgency and priority accorded to the subject of child labour in the Sustainable Development Goals.

Furthermore, target 16.2 calls on states to ‘end abuse, exploitation, trafficking and all forms of violence against and torture of children.’

The goals and targets contained in the SDGs are generally considered to be complementary to one another as opposed to a stand-alone set of standards. It is specifically noted in the preamble to the Resolution adopting the SDGs that the 17 goals and 169 targets contained in the document are ‘integrated and indivisible’ and are crucial for achieving sustainable economic, social and environmental developments. It is to be noted that poverty is a cardinal theme addressed in the

SDGs. In this regard, the opening paragraph in the preamble notes that: ‘We recognize that eradicating poverty in all its forms and dimensions, including extreme poverty, is the greatest global challenge and an indispensable requirement for sustainable development.’ Also, poverty is presented as the first goal in the list of 17 goals. In light of the integration and indivisibility approach adopted to the relevant goals, it is clear that addressing child labour problems cannot be achieved in isolation without tackling poverty issues. It is to be noted that SDG target 8.7

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falls under the ‘people’ dimension,495 the social pillar and the rights-based nature of the 2030

Sustainable Development Agenda.496

To achieve the relevant goals and standards, states are called upon to act in a collaborative manner to implement the plans. The idea of development ‘partnership’ is generally considered crucial for achieving an equitable and more sustainable world.497 As has been demonstrated in this study, child labour is particularly tied to poverty, development partnership to address poverty in poorer countries may thus advance the goals of eliminating child labour. Considering the potential benefits of development partnership to realise the SDGs, the SDGs stipulate under the Partnership goal that: ‘We are determined to mobilize the means required to implement this

Agenda through a revitalized Global Partnership for Sustainable Development, based on a spirit of strengthened global solidarity, focused in particular on the needs of the poorest and most vulnerable and with the participation of all countries, all stakeholders and all people.’498 The idea of global solidarity to improve the economic conditions of the poor and vulnerable has the potential to reduce child labour in many developing countries including Nigeria. Furthermore, in the context of sustainable economic growth and decent work for all, the SDG urges more developed countries to: ‘Increase Aid for Trade support for developing countries, in particular least developed countries, including through the Enhanced Integrated Framework for Trade- related Technical Assistance to Least Developed Countries.’499 From a general perspective, it has to be acknowledged that the primary obligation for realising these goals falls on national

495 The 17 goals contained in the SDG broadly fall under 5 dimensions (5 Ps) i.e., People, Planet, Prosperity, Peace, and Partnership, see A/RES/70/1, p2.

496 https://www.ilo.org/global/topics/dw4sd/themes/child-labour/lang--en/index.htm (accessed 14/09/2018)

497 Partnership is listed among the 5 development ‘Ps’ contained in the UN Resolution, i.e., (People, Planet, Prosperity, Peace, and Partnership), see A/RES/70/1, p2.

498 A/RES/70/1, p2.

499 Goal 8, target 8.a SDG, A/RES/70/1, p 20.

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governments, in this case, the Nigerian government. National governments are, in principle, expected to provide public goods; they can further act as ‘a regulator, a monitor, a coordinator of collective action or simply as an authority to create an enabling environment for SDG implementation.’500 Nevertheless, the SDG guidelines demonstrate that multi-stakeholder engagement is essential for a coherent implementation of the goals.501 In this regard, a collaboration between the private sector, national governments as well as foreign governments may be imperative. These measures are considered necessary for improving the livelihoods of all, in particular, children involved in child labour.

It should be mentioned that the SDG indicator set forth for target 8.7 relates to the ‘proportion and number of children aged 5–17 years engaged in child labour, by sex and age.’502 At present, the performance report for Nigeria does not specify how much progress has been made in realising the relevant target.503 However, regarding all 17 SDGs, Nigeria ranks poorly compared to other countries, scoring 150 of the 156 countries assessed.504 In view of the interdependent nature of, and solidarity approach to the SDGs, the next chapter will assess how solidarity, in particular, international cooperation could be a potential alternative for tackling child labour.

500 Joachim Monkelbaan, Governance for the Sustainable Development Goals: Exploring an Integrative Framework of Theories, Tools, and Competencies (Springer Singapore, 2019) 55.

501 Arild Underdal and Rakhyun E Kim, ‘The Sustainable Development Goals and Multilateral Agreements’ in Norichika Kanie and Frank Biermann (eds) Governing through Goals: Sustainable Development as Governance Innovation (Manchester Institute of Technology, 2017) 241-242.

502 Global indicator framework for the Sustainable Development Goals and targets of the 2030 Agenda for Sustainable Development, A/RES/71/313, E/CN.3/2018/2.

503 See, SDG Index and Dashboards Report 2018, Nigeria Overall Performance (Sustainable Development Solutions Network, Bertelsmann Stiftung, 2018).

504 Ibid.

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6.4 TRADE-BASED STRATEGIES FOR COMBATING CHILD LABOUR

The rise in international trade has strengthened the trend in which consumers buy more and more products from foreign countries. However, these foreign products are sometimes produced under conditions that are fundamentally different from those applicable in the importing countries.505 Thus, trade-based strategies are often designed by importing countries to prevent importation of goods potentially produced with child labour. These market-oriented regulatory strategies generally differ from the more conventional ways of regulating child labour through international legal standards. Proponents of the market-oriented strategies argue that such measures can contribute to altering the commercial behaviour of producers or consumers of specified commodities and products and ultimately discourage child labour. 506

It is worth stating here that trade related issues are generally governed by the World Trade

Organisation’s (WTO) General Agreement on Tariffs and Trade (GATT). At the core of the

WTO system are two key principles governing trade relations between contracting parties: (i)

Most-favoured Nation (MFN) treatment – requiring that equal treatments be accorded to all

WTO members;507 and (ii) National Treatment – prohibiting discrimination between imports and domestic goods.508 The implication of these two principles, especially the most-favoured

505 Hans-Rimbert Hemmer, Thomas Steger and Rainer Wilhelm, ‘Child Labour and International Trade: An Economic Perspective’ (Working Paper: Entwicklungsökonomische Diskussionsbeiträge, No. 22) 24.

506 Frank J Garcia and Soohyun Jun, ‘Trade-based Strategies for Combating Child Labour’ in Burns H Weston (n 14) 402.

507 Article 1(1) of the GATT states: ‘With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges, and with respect to all rules and formalities in connection with importation and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of Article III,* any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.

508 Article 3(1) provides that: The contracting parties recognize that internal taxes and other internal charges, and laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation,

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nation treatment, is that differential treatments are prima facie violations of WTO standards. 509

However, countries often justify the legality of their actions by having recourse to the policy exceptions contained in the GATT. In this regard, the so called ‘Enable Clause’ of the

WTO/GATT allows for preferential treatments to be accorded to developing countries.510 This exception serves as an indirect means of addressing child labour problems, whereby countries believed to rely on child labour in their workforce are not given preferential treatments.511 Other direct measures such as import prohibition etc., are also means through which the goal of eliminating child labour in foreign states are being realised. These direct measures are often justified by the exceptions contained in article XX of the GATT. The relevant measures, referred to here as the conditionality approach, are considered in more detail below. They are considered with a specific focus on the approach of the European Union (regional) as well as

distribution or use of products, and internal quantitative regulations requiring the mixture, processing or use of products in specified amounts or proportions, should not be applied to imported or domestic products so as to afford protection to domestic production. Article 3(2) further provides that: The products of the territory of any contracting party imported into the territory of any other contracting party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied, directly or indirectly, to like domestic products. Moreover, no contracting party shall otherwise apply internal taxes or other internal charges to imported or domestic products in a manner contrary to the principles set forth in paragraph 1.

509 Frank J Garcia and Soohyun Jun, ‘Trade-based Strategies for Combating Child Labour’ in Burns H Weston (n 14) 402.

510 The preambular paragraph 1 of the WTO/GATT Differentiation and More Favourable Treatment Reciprocity and Fuller Participation of Developing Countries (Decision of 28 November 1979) (so-called “Enabled Clause”) provides that: ‘Notwithstanding the provisions of Article I of the General Agreement, contracting parties may accord differential and more favourable treatment to developing countries, without according such treatment to other contracting parties.’

511 Prior to 1971, the WTO system had no legal basis for granting preferential treatments to developing countries. A preferential tariff programme was however agreed upon within the GATT during 1971 in the form of a 10-year waiver to the ‘most favoured nation’ principle. In this way, industrialised nations were authorised to establish a Generalised System of Preference which would extend to all developing countries. Subsequently, during the Tokyo Round of Negotiations in 1979, the GATT contracting parties adopted the Decision on differential and More Favourable Treatment, known as the ‘Enabling Clause’. See Americo Beviglia Zampetti, Fairness in the World Economy: US Perspectives on International Trade Relations (Edward Elgar, 2006) 165. See also, Isabel Feichtner The Law and Politics of WTO Waivers: Stability and Flexibility in Public International Law (Cambridge University Press, 2012) 98-99.

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the United States (unilateral), given that the two entities have the most sophisticated trade-based strategies for combating child labour.

6.5 THE EUROPEAN UNION TRADE-BASED STRATEGIES FOR COMBATING

CHILD LABOUR

The trade-based efforts of the EU with regard to child labour elimination is primarily coordinated through the so called Generalised Scheme of Preferences (GSP). The GSP is an autonomous development-oriented trade policy instrument designed to provide developing countries a range of tariff preferences which will give their exports easier access to the European

Union than those from more industrialised countries.512 More specifically, the applicable EU

Regulation513 governing the GSP defines the scheme as the mechanism through which ‘the

Union provides preferential access to its market through any of the preferential arrangements referred to in Article 1(2).’ In this regard, article 1(2) makes provision for a range of tariff preferences which include ‘(a) a general arrangement; (b) a special incentive arrangement for sustainable development and good governance (GSP+); and (c) a special arrangement for the least-developed countries (Everything But Arms (EBA)).’

The broader goal which the GSP seeks to achieve is more generally indicated in the preambular paragraph 7 of the EU Regulation, which provides that:

By providing preferential access to the Union market, the scheme should assist

developing countries in their efforts to reduce poverty and promote good governance

and sustainable development by helping them to generate additional revenue through

512 See http://europa.eu/rapid/press-release_IP-96-1190_en.htm (accessed 29/09/2018)

513 Article 2(a) of the Regulation (EU) No 978/2012 of The European Parliament and of The Council of 25 October 2012 applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008. The Regulation governs the activities of the European Union in regards to the GSP.

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international trade, which can then be reinvested for the benefit of their own

development and, in addition, to diversify their economies. The scheme’s tariff

preferences should focus on helping developing countries having greater development,

trade and financial needs.

Although the elimination of child labour is not directly referenced in the preamble to the EU

Regulation, this is indirectly addressed in the GSP as will be discussed shortly. With regard to the content of article 1(2) mentioned above, article 4 of the Regulation provides more clarity by stating that countries determined ‘by the World Bank as a high-income or an upper-middle income country during three consecutive years immediately preceding the update of the list of beneficiary countries’ may not benefit from the ‘general arrangement’ under the GSP. It is worth noting that the relevant list of beneficiaries contains a number of developing countries which includes Nigeria.514 Furthermore, the special incentive arrangement for sustainable development and good governance, i.e., GSP+ is particularly relevant in relation to the goal of eliminating child labour in foreign countries. In this context, article 9 of the EU Regulation states that a GSP beneficiary country may benefit from the tariff preferences if it is considered to be vulnerable515 and has complied with some 27 core conventions addressing human rights, labour rights etc.516 Thus, the approach of the EU is mainly to condition trade preferences and

514 See Annex II of the EU Regulation.

515 A country is considered vulnerable and thus eligible for the GSP+ if: ‘i) it is not competitive enough on the EU market (defined as an import-share ratio) and ii) it does not have a diversified export base (defined as a non- diversification ratio).’ See http://trade.ec.europa.eu/doclib/press/index.cfm?id=1006 (accessed 28/09/2018).

516 The 27 conventions are grouped into two categories i.e., Core human and labour rights UN/ILO Conventions as well as Conventions related to the environment and to governance principles. The 27 conventions are: 1. Convention on the Prevention and Punishment of the Crime of Genocide (1948); International Convention on the Elimination of All Forms of Racial Discrimination (1965); International Covenant on Civil and Political Rights (1966); International Covenant on Economic Social and Cultural Rights (1966); Convention on the Elimination of All Forms of Discrimination Against Women (1979); Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984); Convention on the Rights of the Child (1989); Convention concerning Forced or Compulsory Labour, No 29 (1930); Convention concerning Freedom of Association and Protection of the Right to Organise, No 87 (1948); Convention concerning the Application of the Principles of the Right to

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benefits, inter alia, on the ratification and implementation of treaties including the UN CRC,

ILO Minimum Age Convention 138, ILO Worst Forms Convention 182 etc.517 In this way, non- compliance with the relevant conventions may lead to withdrawal of trade benefits. Although

Nigeria is listed by the EU as meeting the vulnerable country threshold, the country has, however, never featured on the GSP+ beneficiary list, perhaps due to its inability to meet the

Organise and to Bargain Collectively, No 98 (1949); Convention concerning Equal Remuneration of Men and Women Workers for Work of Equal Value, No 100 (1951); Convention concerning the Abolition of Forced Labour, No 105 (1957); Convention concerning Discrimination in Respect of Employment and Occupation, No 111 (1958); Convention concerning Minimum Age for Admission to Employment, No 138 (1973); Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, No 182 (1999); Convention on International Trade in Endangered Species of Wild Fauna and Flora (1973); Montreal Protocol on Substances that Deplete the Ozone Layer (1987); Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989); Convention on Biological Diversity (1992); The United Nations Framework Convention on Climate Change (1992); Cartagena Protocol on Biosafety (2000); Stockholm Convention on persistent Organic Pollutants (2001)EN L 303/60 Official Journal of the European Union 31.10.2012; Kyoto Protocol to the United Nations Framework Convention on Climate Change (1998); United Nations Single Convention on Narcotic Drugs (1961) United Nations Convention on Psychotropic Substances (1971); United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988); United Nations Convention against Corruption (2004).

517 Article 9 of the EU Regulation specifically states that: 1. A GSP beneficiary country may benefit from the tariff preferences provided under the special incentive arrangement for sustainable development and good governance referred to in point (b) of Article 1(2) if: (a) it is considered to be vulnerable due to a lack of diversification and insufficient integration within the international trading system, as defined in Annex VII; (b) it has ratified all the conventions listed in Annex VIII (the ‘relevant conventions’) and the most recent available conclusions of the monitoring bodies under those conventions (the ‘relevant monitoring bodies’) do not identify a serious failure to effectively implement any of those conventions; (c) in relation to any of the relevant conventions, it has not formulated a reservation which is prohibited by any of those conventions or which is for the purposes of this Article considered to be incompatible with the object and purpose of that convention. For the purposes of this Article, reservations shall not be considered to be incompatible with the object and purpose of a convention unless: (i) a process explicitly set out for that purpose under the convention has so determined; or (ii) in the absence of such a process, the Union where a party to the convention, and/or a qualified majority of Member States party to the convention, in accordance with their respective competences as established in the Treaties, objected to the reservation on the grounds that it is incompatible with the object and purpose of the convention and opposed the entry into force of the convention as between them and the reserving state in accordance with the provisions of the Vienna Convention on the Law of Treaties; (d) it gives a binding undertaking to maintain ratification of the relevant conventions and to ensure the effective implementation thereof; (e) it accepts without reservation the reporting requirements imposed by each convention and gives a binding undertaking to accept regular monitoring and review of its implementation record in accordance with the provisions of the relevant conventions; and (f) it gives a binding undertaking to participate in and cooperate with the monitoring procedure referred to in Article 13.

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other requirements, especially, compliance with the relevant treaty provisions.518 Given its tendency to be politicised, some scholars have criticised the effectiveness and legitimacy of the

GSP mechanism as a tool for fighting child labour. Notably, Cullen has pointed out that:

Even GSP provisions requiring conformity with core labour standards can be politicised

through discretionary elements in those systems. Furthermore, as the GSP is available

only to developing countries, it provides a less than universal monitoring mechanism

for core labour standards. Child labour is however a problem not solely found in

developing countries. Neither the United States nor the United Kingdom have fully

eradicated the problem.519

Indeed, the GSP mechanisms could portray the scenario of a group of powerful states policing other less powerful states as regards conformity with international child labour standards, whereas child labour practices are not completely eradicated in those countries themselves.

Article 10 of the EU Regulation further provides that, the special incentive arrangement for sustainable development and good governance shall be granted only if some specified conditions are met. In this regard, the procedure is initiated by a GSP beneficiary country making a request to that effect, following which examination is made by the EU Commission to ascertain whether the requesting country has fulfilled the conditions laid down in the

518 The list of countries meeting the vulnerability criteria is available at: http://trade.ec.europa.eu/doclib/docs/2012/november/tradoc_150043.pdf (accessed 28/09/2018). Also, as of 2017, there were only 9 beneficiaries under the GSP+: Armenia, Bolivia, Cabo Verde, Kyrgyzstan, Mongolia, Pakistan, Paraguay, the Philippines and Sri Lanka. Although Sri Lanka was formerly delisted, in 2010, the country was included again in the list of beneficiaries in 2017. See: http://europa.eu/rapid/press-release_MEMO-18- 350_en.htm (accessed 29/09/2018).

519 Holly Cullen, ‘The Limits of International Trade Mechanisms in Enforcing Human Rights: The Case of Child

Labour,’ (1999) 7 International Journal of Children’s Rights 24. (1-29).

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Regulation, especially, compliance with human and labour rights standards.520 It is worth noting that the effectiveness of the GSP+ can be questioned as it has a higher threshold that may not be easily met by the developing countries it purports to assist. These countries need these trade reliefs in the first instance, to be able to address internal child labour problems effectively. To this end, most African countries are not part of the so called GSP+ scheme, even though they continue to be part of other schemes e.g., the general arrangement or the EBA indicated below.

The third arrangement under the GSP framework, indicated under article 1(2) (c) of the EU

Regulation, i.e., a special arrangement for the least-developed countries (Everything But Arms

(EBA), is available to any country defined by the UN as a least developed country.521 The countries on the list enjoy full duty free, quota free access for all products except for arms.522 It should be noted however that, all three arrangements under the GSP may be utilised as a tool for combating child labour. In this context, article 19 of the EU Regulation makes possible the withdrawal of any of trade preferences if it is determined that the provisions of the Regulation have been violated. In particular, the article states, inter alia, as follows:

1. The preferential arrangements referred to in Article 1(2) may be withdrawn

temporarily, in respect of all or of certain products originating in a beneficiary country,

for any of the following reasons:

(a) serious and systematic violation of principles laid down in the conventions listed in

Part A of Annex VIII;

520See article 10(1) of the Regulation. Also, article 10(2) provides that: ‘The requesting country shall submit its request to the Commission in writing. The request shall provide comprehensive information concerning the ratification of the relevant conventions and shall include the binding undertakings referred to in points (d), (e) and (f) of Article 9(1).’

521 See article 17 EU Regulation.

522 See article 18 EU Regulation.

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(b) export of goods made by prison labour;

substances or precursors), or failure to comply with international conventions on anti-

terrorism and money laundering;

Of particular importance here is article 19(1) (a) which states that the preferential arrangements may be withdrawn where there is serious and systematic violations of the principles laid down in the conventions listed in Part A of Annex VIII – in this regard, Part A of Annex VIII makes reference to the 27 conventions addressing different thematic issues which include labour rights. More specifically, it should be noted that Part A of Annex VIII addresses what it refers to as ‘Core human and labour rights UN/ILO Conventions’ while Part B refers to ‘Conventions related to the environment and to governance principles’. Clearly, the specific reference to Part

A (and the exclusion of Part B) in article 19(1)(a) shows that trade preferences are intended as an indirect measure to tackle human rights problems, including child labour. Thus, where contracting parties are found to violate e.g., ILO C 138, the EU states may decide to withdraw the relevant trade benefits accorded to such states, thereby serving as an indirect means to ensure treaty compliance. As of writing however, it seems that the idea of compliance with relevant conventions has not been aggressively implemented, as only a few countries have been fully withdrawn from the GSP since its inception – i.e., Belarus (withdrawn in 2007), Myanmar

(1997) – the two countries were withdrawn from the general arrangement on the grounds of serious and systematic violations of labour rights.523 For GSP+, benefits accruing to Sri Lanka

523 In particular, Belarus was withdrawn due to its non-compliance with its International Labour Organisation (ILO) obligations relating to freedom of association for workers; see http://europa.eu/rapid/press-release_IP-07- 844_en.htm (accessed 29/09/2018). Myanmar, on the other hand was withdrawn due to the country’s ‘forced labour practices’, see http://europa.eu/rapid/press-release_IP-96-1190_en.htm (accessed 29/09/2018); see also: http://trade.ec.europa.eu/doclib/docs/2012/december/tradoc_150164.pdf (accessed 28/09/2018). Countries like Georgia have been withdrawn from the scheme not on human rights grounds but on account of its preferential market access under a Deep and Comprehensive Free Trade Area (DCFTA) with the EU. This is in compliance with article 4(1) (b) of the EU Regulation which provides that a country may not be a GSP beneficiary if ‘it benefits

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were withdrawn in 2010 due to non-effective implementation of certain human rights conventions.524 As a result, imports from the country to the EU only benefited from the standard

GSP preferential treatment.525

From a general perspective, some have argued that, ‘reform-minded states can use trade to address extraterritorially the problem of child labor occurring within other jurisdictions. For example, they can offer trade preferences to child labor states that are conditioned on compliance with international labor standards pertinent to child labor.’526 However, the effectiveness of the EU’s GSP as a mobilisation tool to combat child labour is highly doubted, as most countries where child labour is widespread, including Nigeria, are not part of the additional arrangement (GSP+). Nigeria and many other developing countries are either part of the general arrangement or the special arrangement for least-developed countries – yet, there is evidence (e.g., as already demonstrated in this thesis) to indicate that child labour remains a major challenge in Nigeria. It is worth stressing here that although the idea of preference withdrawal may be applied to all three schemes in the GSP, it appears that stronger emphasis is placed on the GSP+ in terms of compliance with relevant international treaties. This is

from a preferential market access arrangement which provides the same tariff preferences as the scheme, or better, for substantially all trade.’

524 See the info document: The EU’s new Generalised Scheme of Preferences (GSP), available at: http://trade.ec.europa.eu/doclib/docs/2012/december/tradoc_150164.pdf (accessed 28/09/2018). The decision to withdraw Sri Lanka from the list of countries benefiting from the GSP+ was based on the findings of an investigative body Commissioned by the EU. It has been pointed out that: ‘The investigation relied heavily on a variety of reports and statements made by UN Special Rapporteurs and Representatives, other UN bodies and reputable human rights NGOs and identified significant shortcomings in respect of Sri Lanka's implementation of three UN human rights conventions – the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT) and the Convention on the Rights of the Child (CRC) – effective implementation of which forms part of the substantive qualifying criteria for GSP+.’ See http://trade.ec.europa.eu/doclib/press/index.cfm?id=515 (accessed 01/10/2018).

525 However, Sri Lanka was restored to the list of GSP+ beneficiaries in 2017 having complied with the relevant standards. See: http://europa.eu/rapid/press-release_MEMO-18-350_en.htm (accessed 29/09/2018).

526 Frank J Garcia and Soohyun Jun, ‘Trade-based Strategies for Combating Child Labour’ in Burns H Weston, (n 14) p 401.

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evidenced by the fact that in addition to the general provisions on withdrawal of benefits stated in article 19, the article making provision for the GSP+ (article 9) also specifically states, inter alia, that the preferences are only available to countries that have complied with the 27 conventions addressing human rights, labour rights etc. The conditions are neither specifically indicated in article 4 with regard to general arrangement nor in article 17 as regards the special preferences available to least developed countries. The case of Sri Lanka also emphasises this point: even though the country was withdrawn from the GSP+, it was still benefiting from the general GSP arrangement. Also, the fact that the GSP+ is a voluntary scheme for which developing countries intending to join are required to make a formal application (subject to approval by the EU), makes it a less desirable strategy to combat child labour – such developing countries may simply elect not to join the scheme based on their self-assessed level of treaty compliance. Thus, by electing not to join the GSP+, child labour activities may continue to flourish in such developing countries.527

527 Besides the trade-based measures discussed above, it is worth mentioning here that the EU has also entered into partnership agreements with African countries under the framework of the African, Caribbean, and Pacific Group of States – this relationship is guided by the Cotonou Agreement. Although intended to be a partnership arrangement based on mutuality in order to address issues related to governance, human rights, development etc., the so called ‘partnership’ has turned out to be a one-sided arrangement and another term for a donor-recipient relationship. Despite the lop-sidedness, the framework may still be utilised by the EU to address child labour issues in Africa (or by ACP countries to address rights violations in the EU), it has, however, focused more on governance related issues in Africa. See generally, Hugo Stokke, ‘Conditional Partners? Human Rights in EU-ACP Relations’ in Margot E. Salomon, Arne Tostensen and Wouter Vandenhole, Casting the Net Wider: Human Rights, Development and New Duty-Bearers, (Intersentia Antwerp – Oxford, 2007) 125-149.

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6.6 UNILATERAL TRADE MEASURES FOR COMBATING CHILD LABOUR: THE

CASE OF THE US

A variety of trade related strategies are in place in the United States with the potential to combat child labour extraterritorially.528 As earlier indicated, the ‘Enable Clause’ of the WTO/GATT allows for preferential treatments to be accorded to developing countries. This exception is also relevant in the US in terms of trade preferences granted to developing countries, including

Nigeria.529 However, the US variant of the GSP is generally different in content from that of the EU. In this regard, the enabling US legislation, the Trade Act of 1974, provides in section

501 that:

The President may provide duty-free treatment for any eligible article from any

beneficiary developing country in accordance with the provisions of this title. In taking

any such action, the President shall have due regard for—

(1) the effect such action will have on furthering the economic development of

developing countries through the expansion of their exports;

(2) the extent to which other major developed countries are undertaking a

comparable effort to assist developing countries by granting generalized

preferences with respect to imports of products of such countries;

(3) the anticipated impact of such action on United States producers of like or

directly competitive products; and

528 Tiaji Salaam-Blyther, Charles Hanrahan and Nicolas Cook, Child Labor in West African Cocoa Production: Issues and U.S. Policy (CRS Report for Congress - Congressional Research Service, 2005) 12.

529 A list of designated beneficiary countries updated in March 2018, for instance includes Nigeria; see: https://ustr.gov/sites/default/files/gsp/Beneficiary%20countries%20March%202018.pdf (accessed 01/10/2018)

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(4) the extent of the beneficiary developing country’s competitiveness with

respect to eligible articles.

Section 502(a) of the Act provides that the US President is authorised to a designate country as either a beneficiary developing country or a beneficiary least developing country. 530 As mentioned above, the approach of the US generally differs from that of the EU, as a number of additional factors are considered when deciding whether or not to designate a country as a beneficiary under the GSP – eligibility is further subject to a host of other considerations, including the domestic and foreign policy of the respective countries in relation to the US. 531

530 The section states, inter alia, that: ‘(1) SPECIFIC COUNTRIES — The following countries may not be designated as beneficiary developing countries for purposes of this title: (A) Australia. (B) Canada. (C) European Union member states. (D) Iceland. (E) Japan. (F) Monaco. (G) New Zealand. (H) Norway. (I) Switzerland.

531 Section 502 (b) (2) of the Trade Act makes provision for other bases for ineligibility. It states inter alia that ‘the President shall not designate any country a beneficiary developing country under this title if any of the following applies: (A) Such country is a Communist country, unless — (i) the products of such country receive non-discriminatory treatment, (ii) such country is a WTO Member (as such term is defined in section 2(10) of the Uruguay Round Agreements Act) (19 U.S.C. 3501(10)) and a member of the International Monetary Fund, and (iii) such country is not dominated or controlled by international communism. (B) Such country is a party to an arrangement of countries and participates in any action pursuant to such arrangement, the effect of which is— (i) to withhold supplies of vital commodity resources from international trade or to raise the price of such commodities to an unreasonable level, and (ii) to cause serious disruption of the world economy. (C) Such country affords preferential treatment to the products of a developed country, other than the United States, which has, or is likely to have, a significant adverse effect on United States commerce.’ Section 502(b) (2) (d) further provides that a country is ineligible is it: (I) has nationalized, expropriated, or otherwise seized ownership or control of property, including patents, trademarks, or copyrights, owned by a United States citizen or by a corporation, partnership, or association which is 50 percent or more beneficially owned by United States citizens, (II) has taken steps to repudiate or nullify an existing contract or agreement with a United States citizen or a corporation, partnership, or association which is 50 percent or more beneficially owned by United States citizens, the effect of which is to nationalize, expropriate, or otherwise seize ownership or control of property, including patents, trademarks, or copyrights, so owned, or (III) has imposed or enforced taxes or other exactions, restrictive maintenance or operational conditions, or other measures with respect to property, including patents, trademarks, or copyrights, so owned, the effect of which is to nationalize, expropriate, or otherwise seize ownership or control of such property, unless clause (ii) applies. (ii) This clause applies if the President determines that— (I) prompt, adequate, and effective compensation has been or is being made to the citizen, corporation, partnership, or association referred to in clause (i), (II) good faith negotiations to provide prompt, adequate, and effective compensation under the applicable provisions of international law are in progress, or the country described in clause (i) is otherwise taking steps to discharge its obligations under international law with respect to such citizen, corporation, partnership, or association, or (III) a dispute involving such citizen, corporation, partnership, or association over compensation for such a seizure has been submitted to arbitration under the provisions of the Convention for the Settlement of Investment Disputes, or in another mutually agreed upon forum, and the President promptly furnishes a copy of such determination to the Senate and House of Representatives.’

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Also, developing countries which have not implemented their international obligations to eliminate the worst forms of child labour are not eligible for preferential treatments under the

GSP.532 Additionally, section 502(b) (2) (g) stipulates that a country which has not ‘taken or is not taking steps to afford internationally recognized worker rights to workers in the country’ may not benefit from the preferential treatment available under the GSP. Section 507(4) further defines the term internationally recognised worker rights to include ‘a prohibition on the use of any form of forced or compulsory labor;’ as well as ‘a minimum age for the employment of children, and a prohibition on the worst forms of child labor’ and ‘acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.’ This approach also differs from the EU’s GSP, in which specific work related treaties are mentioned.

However, it is worth noting here that countries which are otherwise not eligible for preferential treatments under the GSP in the United States may still be granted such preferences where ‘the

President determines that such designation will be in the national economic interest of the

United States.’533 In other words, national economic interest is given a stronger consideration when deciding whether or not to grant preferences to developing countries. However, it is worth noting that other US legislation may generally prevent the importation to the US of goods produced with child labour. In particular, section 307 of the US Tariff Act of 1930534 states that:

532 Section 502(B)(2)(H) of the US Trade Act. The Trade Act defines the worst forms of child labour in similar terms as those contained in Article 3 of the ILO Worst Forms Convention. Specifically, section 507(6) of the Act defines the worst forms of child labour as: ‘(A) all forms of slavery or practices similar to slavery, such as the sale or trafficking of children, debt bondage and serfdom, or forced or compulsory labor, including forced or compulsory recruitment of children for use in armed conflict; (B) the use, procuring, or offering of a child for prostitution, for the production of pornography or for pornographic purposes; (C) the use, procuring, or offering of a child for illicit activities in particular for the production and trafficking of drugs; and (D) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety, or morals of children.’ It further states that: ‘The work referred to in subparagraph (D) shall be determined by the laws, regulations, or competent authority of the beneficiary developing country involved.’

533 See the concluding clause in Section 502(b).

534 19 U.S.C. 1307.

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All goods, wares, articles, and merchandise mined, produced, or manufactured wholly

or in part in any foreign country by convict labor or/ and forced labor or/and indentured

labor under penal sanctions shall not be entitled to entry at any of the ports of the United

States, and the importation thereof is hereby prohibited, and the Secretary of the

Treasury is authorized and directed to prescribe such regulations as may be necessary

for the enforcement of this provision.

Section 307 further defines the term ‘forced labor or/and indentured labor’ to include ‘forced or indentured child labor’. In relation to Nigeria, a report recently released by the US

Department of Labour states that: ‘Gold, Manioc/Cassava, Sand’ are some goods typically produced by child labourers in the country and are therefore ineligible for importation in the

US.535 The list further indicates that ‘Cocoa, Granite, Gravel (crushed stones)’ are often produced either with forced labour or child labour in Nigeria.536 The specific ban on the importation of such goods thus renders the national economic interest exception (discussed under the US’s GSP) inapplicable, as they are expressly prohibited from importation under the

Tariff Act, and therefore may not be given preferential treatments. However, the integrity or good faith element of importation ban has been questioned by many scholars, especially when undertaken on a unilateral basis. Some have argued that ‘unilateral measures are often undertaken under the pressure of national interest groups pretending to defend the interests of

"exploited" children in LDCs while in fact seeking to protect their own wealth. In order not to be exposed to the reproach of protectionism, the issue of international labour standards should

535 See Bureau of International Labor Affairs, U.S Department of Labor’s 2018 list of goods produced by child labor or forced labor (US Department of Labor, 2018) 9; available at: https://www.dol.gov/sites/default/files/documents/ilab/ListofGoods.pdf (accessed 02/10/2018).

536 See ibid.

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be left to multilateral negotiations.’537 Import prohibition could, therefore, be a pretext for achieving self-serving goals without the objective intention to protect children extraterritorially.

Apart from the trade measures indicated above, the US has a specific programme of preferential treatment designed for African countries. In this regard, the African Growth and Opportunity

Act (AGOA) enacted by the US Congress on 18 May 2000, seeks to enhance market access to the US for qualifying countries in Sub Sahara Africa, including Nigeria. Qualification for

AGOA preferences is generally based on a set of conditions laid down in section 104 of the

Act. To qualify for and remain eligible for the relevant preferences, ‘each country must be working to improve its rule of law, human rights, and respect for core labor standards.’538 In particular, section 104 provides, inter alia, that the US President is authorised to designate a sub-Saharan African country as eligible for trade preferences if it is determined that that country has established, or is making continual progress toward establishing: ‘protection of internationally recognized worker rights, including the right of association, the right to organize and bargain collectively, a prohibition on the use of any form of forced or compulsory labor, a minimum age for the employment of children, and acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health;’539 and that such a country ‘does not engage in gross violations of internationally recognized human rights or provide support for acts of international terrorism and cooperates in international efforts to eliminate human rights violations and terrorist activities.’540 Although it is not clear how the

537 Hans-Rimbert Hemmer, Thomas M Steger, and Rainer Wilhelm, ‘Child labour and international trade: An economic perspective,’ (1997) Entwicklungsökonomische Diskussionsbeiträge, No. 22, Univ., Professur für Volkswirtschaftslehre und Entwicklungsländerforschung, Gießen, 28.

538 See: https://agoa.info/about-agoa.html (accessed 02/10/2018)

539 Section 104 (a) (1) (f) AGOA Act.

540 Section 104 (a) (3) AGOA Act.

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AGOA scheme has directly influenced attitudes in regards to child labour use in Nigeria, the scheme has however been more effectively used as a tool for enforcing broader human rights and rule of law in many beneficiary countries.541 Despite this however, its potential to fulfil a protectionist agenda could generally undermine its usefulness as a mechanism to combat child labour.

6.7 A CRITICAL ASSESSMENT OF TRADE-BASED MEASURES FOR COMBATING

CHILD LABOUR

Although as mentioned earlier, GATT recognises the grant of preferential treatments to developing WTO member states, it is to be noted however that, in principle, the GATT rules do not explicitly contain provisions which make trade relations conditioned on compliance with labour standards.542 The only specific mention of a labour standard in the WTO rules is in article

XX of GATT543 – the general exception provision. The article states inter alia:

Subject to the requirement that such measures are not applied in a manner which would

constitute a means of arbitrary or unjustifiable discrimination between countries where

the same conditions prevail, or a disguised restriction on international trade, nothing in

this Agreement shall be construed to prevent the adoption or enforcement by any

contracting party of measures:

541 For instance during 2016, Burundi’s AGOA status was revoked due to non-compliance with the eligibility criteria in the area of human rights, governance, and the rule of law. In previous years, the AGOA status of some other countries have been previously revoked e.g., The Gambia - on human rights grounds; South Sudan - for political violence and armed conflict. The AGOA status of the Democratic Republic of Congo was also terminated during 2011 over concerns regarding widespread corruption, child labour etc., in the country. See Sophia Lin and Rutuja Pol, Tools of Trade: The Use of U.S. Generalized System of Preferences to Promote Labor Rights for all (The International Corporate Accountability Roundtable, 2018) 18.

542 Tiaji Salaam-Blyther, Charles Hanrahan and Nicolas Cook, Child Labor in West African Cocoa Production: Issues and U.S. Policy (n 528) 20.

543 Ibid.

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(a) necessary to protect public morals;

(b) necessary to protect human, animal or plant life or health;

(d) necessary to secure compliance with laws or regulations which are not inconsistent

with the provisions of this Agreement, including those relating to customs enforcement,

the enforcement of monopolies operated under paragraph 4 of Article II and Article

XVII, the protection of patents, trade-marks and copyrights, and the prevention of

deceptive practices;

(e) relating to the products of prison labour;544

Thus, article XX (e) above is the only specific provision in the GATT permitting exceptions to state parties obligations in cases where prison labour has been used to produce a product.545 As a result, scholars have disagreed as to whether international trade is an appropriate forum to enforce child labour standards and whether such measures could withstand a challenge in a

544 Paragraphs F - J of Article XX contain further exceptions: (f) imposed for the protection of national treasures of artistic, historic or archaeological value; (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption; (h) undertaken in pursuance of obligations under any intergovernmental commodity agreement which conforms to criteria submitted to the CONTRACTING PARTIES and not disapproved by them or which is itself so submitted and not so disapproved;* (i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; Provided that such restrictions shall not operate to increase the exports of or the protection afforded to such domestic industry, and shall not depart from the provisions of this Agreement relating to non-discrimination; (j) essential to the acquisition or distribution of products in general or local short supply; Provided that any such measures shall be consistent with the principle that all contracting parties are entitled to an equitable share of the international supply of such products, and that any such measures, which are inconsistent with the other provisions of the Agreement shall be discontinued as soon as the conditions giving rise to them have ceased to exist. The CONTRACTING PARTIES shall review the need for this sub-paragraph not later than 30 June 1960.

545 Tiaji Salaam-Blyther, Charles Hanrahan and Nicolas Cook, Child Labor in West African Cocoa Production: Issues and U.S. Policy (n 528) 20.

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WTO dispute settlement.546 From a general standpoint, it has been stated that for an article XX exception to succeed, a three-step inquiry process is required: ‘First, the stated policy must come within the scope of one of the categories listed under Article XX … Second, the measure complained of must be either “necessary” or “related to” the policy allegedly being furthered, depending on the paragraph. Finally, the chapeau … of Article XX requires that the application of any measure that otherwise meets the first two tests must not constitute a means of arbitrary or unjustifiable discrimination between countries.’547 Consequently, it has been argued that

‘article XX permits policy-driven discrimination between countries as long as it is not arbitrary or unjustifiable.’548

The exceptions contained in article XX (a) and XX (b) (i.e., public morals exception and measures necessary to protect human, animal or plant life or health) have been argued to be the most relevant exceptions with regard to child labour,549 and as such can be invoked to justify the legality of child labour related trade sanction.550 Starting with article XX (a) exception, it can be argued that the idea of public morality is vague. The WTO panel has, however, attempted to shed some light on the term by stating that the term ‘denotes standards of right and wrong conduct maintained by or on behalf of a community or nation.’551 Nevertheless, the use of the public morals exception, especially in the context of outwardly directed measures has been

546 Ibid.

547 Frank J Garcia and Soohyun Jun, ‘Trade-based Strategies for Combating Child Labour’ in Burns H Weston, (n 14) 411.

548 Ibid.

549 Franziska Humbert, ‘The WTO and Child Labour: Implications for the Debate on International Constitutionalism’ in Henner Gott (ed), Labour Standards in International Economic Law (Springer, 2018) 101.

550 Frank J Garcia and Soohyun Jun, ‘Trade-based Strategies for Combating Child Labour’ in Burns H Weston, (n 14) 411.

551 See WTO Panel Report, United States — Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/R, dated 10 November 2004, para 6.465.

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debated extensively among scholars.552 While some are in favour of such means to prohibit child labour extraterritorially others are opposed to it on the basis of its imprecise nature and its legal utility. In this regard, it has been observed that article XX (a) exception lacks an extraterritorial force as ‘the notion of public morals is very variable in different States and the application of such a subjective concept with extraterritorial effects could put the whole system of reciprocal commercial advantages guaranteed by the GATT at grave risk.’553 Previous actions of the US government of using article XX (a) exception to ban the importation of goods made with child labour have been argued as not necessarily falling under the public morals exception.554 However, directly opposed to this view, Frank J Garcia and Soohyun Jun contend that ‘if we view international law as an evolving system, then one could read into Article XX(a) the core labor rights stipulated in the ILO Declaration on Fundamental Principles and Right at

Work, including the elimination of child labor.’555 The writers further noted that, ‘the content of public morals should have a universal and evolutionary character as manifested by the increasing number of international agreements with widespread ratifications among states, and by the ILO Declaration setting forth core labor rights.’556 Rachel Harris and Gillian Moon, have

552 Mark Wu, ‘Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging Public Morals Clause Doctrine’ (2008) 33(1) Yale Journal of International Law, 244.

553 Diego J. Liftin Nogueras and Luis M. Hinojosa Martinez, ‘Human Rights Conditionality in the External Trade of the European Union: Legal and Legitimacy Problems’ (2001) 7 Columbia Journal of European Law 328. See also, Dexter Samida, ‘Protecting the Innocent or Protecting Special Interests? Child Labor, Globalization, and the WTO’ (2005) 33 Denver Journal of International Law and Policy, 426; where the author suggested that article XX (a) is unlikely to succeed as a means of prohibiting child labour extraterritorially.

554 Steve Charnovitz, ‘The Moral Exception in Trade Policy’, (1998) 38 Virginia Journal of International Law, 736-742. In the event of a case before the GATT Panel, Charnovitz argues that by attempting to ground child labour ban under article XX (a), ‘WTO panels will be confronted with difficult arguments that will challenge the past insularity of the trade regime.’

555 Frank J Garcia and Soohyun Jun, ‘Trade-based Strategies for Combating Child Labour’ in Burns H Weston, (n 14) p 412. See also Robert Howse, ‘The World Trade Organisation and the Protection of Workers’ Rights’ (1999) Journal of Small and Emerging Business Law, 142, 143. (131-172)

556 Frank J Garcia and Soohyun Jun, ibid 413.

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also reached similar conclusions by stating that ‘there is scope for prima facie WTO- inconsistent human rights measures to be excepted through a broad and evolving reading of at least these sub-articles of art XX.’557 It is however submitted that the prohibition of child labour extraterritorially on the basis of the public moral exception lacks a strong legal foundation.

Morality is often assessed on the basis of the values of the importing country,558 which may not necessarily be valid in the exporting country. Indeed, the application of the moral argument as an inwardly-directed measure should generate less controversy, since the measures are applied internally, where homogeneous values may potentially exist. In this regard, citing the US –

Gambling case, the WTO Panel in China - Measures Affecting Trading Rights and Distribution

Services for Certain Publications and Audiovisual Entertainment Products, has pointed out that states ‘should be given some scope to define and apply for themselves the concepts of “public morals” ... in their respective territories, according to their own systems and scales of values’559

(emphasis added). Thus, the definition and application of moral standards should, in principle, be applied on a territorial basis. However, further justifications have been advanced for the extraterritorial argument. For instance, it has been argued that ‘with regard to the issue of extraterritoriality of trade measures on child labour, it is possible to argue that the prohibition of child labour is part of ius cogens and since ius cogens norms apply erga omnes, the morals of the international community are concerned and no problem of extraterritoriality exists.’560

However, what this argument misses is whether there is a universally accepted meaning of

557 Rachel Harris and Gillian Moon, ‘GATT Article XX and Human Rights: What do we know from the first 20 years?’ (2015) 16 Melbourne Journal of International Law, 16.

558 Steve Charnovitz, ‘The Moral Exception in Trade Policy’, (n 554) 696.

559 WTO Panel Report, China — Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R, dated 12 August 2009, para 7.759.

560 Franziska Humbert, ‘The WTO and Child Labour: Implications for the Debate on International Constitutionalism’ in Henner Gott (ed), (n 549) 102.

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morality; while a principle might indeed be argued to have attained a ius cogens status in international law, this is not a verdict on morality. Public morality is a variable concept which lacks a monolithic meaning.

Regarding the linkage between the public morals principle and human rights, James Harrison has for instance pointed out that public morals is a broad concept, as such ‘the full range of human rights norms and principles that are codified in international legal instruments’ could be covered by the principle.561 He further notes that WTO jurisprudence demonstrates the inclination of panels to take a rather flexible approach to the term. Similarly, Robert Howse has pointed out that arguments that human rights norms should be excluded from the meaning of public morals would be difficult to sustain.562 To avoid the possibility of using the public moral exception selectively and in a subjective manner, it is important that the principle be further developed (in terms of its human rights link) and given clearer interpretation by purely human rights bodies or widely accepted as forming part of international law (e.g., through state practice) as opposed to interpretation given in a WTO forum.

As earlier indicated, article XX (b) exception i.e., ‘measures necessary to protect human, animal or plant life or health,’ is another provision often relied upon to legitimise a trade sanction on a foreign state. With reference to child labour, such arguments are usually grounded on the assumption that child labour could be injurious to human health.563 In regards to WTO practice,

Sarah Joseph has noted that the organisation’s Appellate Body has demonstrated its willingness

561 James Harrison, The Human Rights Impact of the World Trade Organization (Hart, 2007) 211.

562 Robert Howse, ‘Back to Court after Shrimp/Turtle? Almost but Not Quite Yet: India’s Short Lived Challenge to Labour and Environmental Exceptions in the European Union’s Generalized System of Preferences’ (2003) 18 American University International Law Review 1333, 1368. Cited in Rachel Harris and Gillian Moon, ‘GATT Article XX and Human Rights: What do we know from the first 20 years?’ (2015) 16 Melbourne Journal of International Law, 16.

563 Tiaji Salaam-Blyther, Charles Hanrahan and Nicolas Cook, Child Labor in West African Cocoa Production: Issues and U.S. Policy (n 528) 21.

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‘to concede the necessity of impugned measures when public health issues are at stake’, given the high importance attached to health related issues. She further argues that this willingness would potentially extend to the human rights related issues because they are equally of the highest importance.564 Generally, while there is arguably a strong link between child labour and the health of children, the contention remains whether the goal of child protection can be objectively realised in a WTO setting where self-interest underpins many of the agendas. Thus, it is questionable whether such trade measures are not smokescreens for trade protectionism.

Again, the institutional competence of the WTO system can be questioned with regard to child labour. As Holly Cullen has rightly noted: ‘There are several difficulties with the idea of enforcing labour standards through WTO institutional structures. The WTO lacks representation of the social partners, unlike the ILO. It lacks expertise or experience with human rights issues. In particular, it lacks experience with the range of methods deployed by the ILO in promoting labour standards, including the provision of technical assistance, which has proved effective in the area of child labour.’

6.8 CONCLUSION

A number of frameworks have been developed to supplement the existing international normative instruments on child labour. This chapter has assessed some of these frameworks from an international (SDGs), regional (EU), and national (US) perspective. The chapter finds that child labour is engaged with in the SDGs as a development challenge; in the spirit of solidarity, states and other development partners are urged to play active roles to, inter alia, eliminate the problem across the world. At present, it is somewhat early to assess the effectiveness of the SDGs in regards to child labour, as they were only adopted in 2015. It is

564 Sarah Joseph, Blame It on the WTO? A Human Rights Critique (Oxford University Press, 2013) 113; Cited in Rachel Harris and Gillian Moon, ‘GATT Article XX and Human Rights: What do we know from the first 20 years?’ (2015) 16 Melbourne Journal of International Law, 24.

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however hoped that the instrument would play a role in improving the conditions of children through the instrumentality of international cooperation.

This chapter has also examined the relevant trade-based strategies for combating child labour with a particular focus on strategies formulated by the more developed states. In this regard, the manner in which the EU and the US employ trade conditionality to fight child labour has been examined. In particular, in the context of the EU, it was found that the GSP+, which is arguably the most effective tool for combating child labour (within the GSP mechanism), at least in theory, cannot be invoked against Nigeria and other African states where child labour is prevalent, as they are not part of the scheme. Although Nigeria currently enjoys trade preferences under the general GSP arrangement, this scheme is largely ineffective as a tool for fighting child labour; Nigeria’s membership of the scheme subsists despite evidence of child labour prevalence in the country.

The GSP variant available in the United States has also been studied. In this regard, while eligibility for trade preferences in the EU is measured against compliance with some 27 treaties, the approach is different in the United States. Eligibility for trade preferences in the United

States is determined, inter alia, by the compliance of such states with the so called internationally recognised worker rights, i.e., a prohibition on the use of any form of forced or compulsory labour, a minimum age for the employment of children, and a prohibition on the worst forms of child labour. Also, such countries must not adopt policies that are not favourable to the United States. The AGOA is another measure designed by the US to improve human rights conditions (including child labour elimination) in Africa. To qualify for preferences under this scheme, each country must be working to improve its rule of law, human rights, and respect for core labour standards.

Despite the potentials of the conditionality approach to grant market access to developing countries and to improve broader human rights conditions, its tendency to be used for trade

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protectionism whittles down its efficacy. Trade conditionality is a double-edged sword which could serve two contrasting goals simultaneously. Furthermore, this chapter has assessed the issues surrounding the use of trade arrangements to combat child labour. In particular, some

GATT exceptions were considered (article XX), as regards their link to the issue of child labour.

It was questioned whether the goal of child labour elimination can be objectively realised in a

WTO setting where activities are sometimes driven by self-interest. Also, the institutional competence of the WTO was questioned with regard to child labour – the WTO lacks the expertise and mandate to preside over child labour matters; such matters should be left to relevant thematic bodies to handle. In sum, it can be concluded that, despite the existence of the frameworks considered in this chapter, child labour remains a challenge faced by many developing countries, including Nigeria. This potentially calls for a rethink of current approaches to child labour; this issue will be dealt with in more detail in the next chapter.

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Chapter Seven

‘FIXING CHILDREN’S RIGHTS’: ALTERNATIVE APPROACHES TO CHILD

LABOUR IN NIGERIA

7.1 INTRODUCTION

This study has, so far, assessed the extent of child labour in Nigeria. It has been demonstrated that child labour continues to be a challenge in Nigeria despite the legal and other efforts to end it. In this chapter, I suggest a range of measures for responding to child labour challenges in

Nigeria. Generally, the chapter is guided by the thinking that if child labour is to be eliminated in Nigeria there has to be a nationally applicable law which takes context into account; this law must be accompanied by sound poverty reduction strategies. In specific terms, the chapter makes seven recommendations for responding to the issues identified in this study. It contends that implementing these recommendations may offer better protection for Nigerian children.

Also, although not directly connected to the conclusions that can be drawn from this study on the persistence of child labour in Nigeria, I assess from a forward looking perspective the potential utility of international development cooperation as a means to combat poverty and child labour in the developing world. Against the views often advanced by developed countries that no development obligation is owed to developing countries, I assess a number of legal instruments to support a claim that an obligation to cooperate potentially exists. This assessment is made to highlight the potentials of development cooperation as a means for eliminating child labour in the developing world.

In the sections below, I first present a summary/finding of this research before engaging with the specific recommendations. Following this, the potential future alternative is presented.

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7.2 RESEARCH SUMMARY/FINDINGS

The extent to which international legal standards engage with child labour as well as the realities of the practice in Nigeria have been studied in this research. The first substantive chapter of the thesis (chapter two), assessed the regulation of child labour from an international legal perspective. This chapter did not assess child labour from the linear framings which often limit it to work place exploitation alone, but approached it from a much broader perspective, including such issues as trafficking, sexual exploitation, use of children in armed conflict etc.

Based on the relevant treaties, in particular the Minimum Age Convention, the legal meaning of child labour was deduced. The first point to note here is that contrary to wider perceptions, the term child labour does not necessarily imply all economic activities undertaken by children, but rather prohibited child work - i.e., work legally prohibited in the treaties. In this regard, the

Minimum Age Convention calls on States Parties to set a minimum working age of at least 14 years or the age of completion of compulsory schooling in developing countries. 565 The

Convention further indicates that national authorities may set a lower age limit of 13, or 12 years in the case of developing states when the activity involves light work which is not likely to harm the health and development of children nor likely to prejudice their attendance at school or approved vocational training.566 The third category of regulation in the Minimum Age

Convention is those which could be potentially harmful or hazardous, for which the relevant minimum age is 18 (or 16, if adequate safety and health measures are provided).567 Therefore, an activity may qualify as child labour if undertaken by children below the ages specified in the

Convention. Apart from the Minimum Age Convention, the meaning of child labour is further

565 See article 2(3) & (4) as well as article 7(1), (2) & (4).

566 See article 7(1) & (4).

567 See article 3(1)-(3).

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deduced from the ILO Worst Forms Convention 182. Convention 182 spells out a list of practices generally regarded as unconditional worst forms of child labour, for which no child may participate in; the practices include slavery and slavery-like practices, child prostitution, child pornography, participation in armed conflict.568 Similarly, the UN CRC contains another category of work regarded as child labour: it considers any work which conflicts with education as exploitative and therefore constituting child labour. Therefore, two broad categories of child labour can be identified from the treaties: those prohibited on the basis of age and/or conflict with education and those unconditionally prohibited.

Some inconsistencies are however noticed within specific treaties notwithstanding the legal provisions. In relation to armed conflict, for example, article 38 of the CRC contains a range of exceptions which may allow children as young as 15 years to take direct part in hostilities – this in some ways contradicts the express prohibition on child labour contained in the treaty.569

Although the adoption of the Optional Protocol on Armed Conflict has largely rectified the problem in the CRC in relation to child recruitment and direct participation in armed hostilities

– by raising the relevant age to 18 – however, some problems still remain in the current international standards. For instance, the indirect involvement of children (below 18 years) in armed conflict is not addressed in any of the relevant treaties. Also, the issue of voluntary recruitment of children above 15 years is not sufficiently dealt with in the legal standards.570

568 See generally article 3, ILO Convention 182.

569 Also, the provision implicitly negates the content of the Worst Forms Convention prohibiting the recruitment of children under 18 for use in armed conflict.

570 While the age for forced recruitment is fixed at 18 years in OPAC, the Protocol however backtracks with regard to voluntary recruitment. It presents a number of safeguards to be observed whenever children below age 18 are to be voluntarily recruited – see generally article 3 OPAC.

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The treaties are also sometimes found to contradict themselves; the CRC for instance requires states parties to ‘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’,571 on the other hand, the African Children’s Charter draws no particular link between child labour and education. Accordingly, works which interfere with education are not necessarily unlawful under the ACRWC provided that they do not ‘interfere with the child’s physical, mental, spiritual, moral, or social development’.572 As is argued below, the international standards do not seem to take the specific realities of the African child into account

– they seem to be modelled for and best suited to the western child. This is highlighted as an area for improvement in terms of legal reforms. Further recommendations are made below on how to address other gaps in the legal standards. That being said, the theoretical analysis of the treaties lays a foundation for the assessments made in subsequent chapters.

With regard to treaty implementation, chapter three indicates that Nigeria is a dualist country in terms of treaty incorporation. As such, mere ratification may not translate to nationwide applicability. Section 12 of the constitution stipulates that for treaties to become legally binding within the country, the national assembly (the federal parliament) must further adopt a domesticating instrument. The section also provides that where a ratified treaty relates to issues not contained in the exclusive or concurrent legislative list, a bill to adopt a legislation shall not be passed unless it is supported by ‘a majority of all the House of Assembly in the

Federation.’573 Children’s rights is one such issue not contained in the exclusive or concurrent

571 Article 32 CRC.

572 Article 15(1) ACRWC.

573 Section 12 of the constitution provides more generally: '(1) No treaty between the Federation and any other country shall have the force of law to the extent to which any such treaty has been enacted into law by the National Assembly. (2) The National Assembly may make laws for the Federation or any part thereof with respect to matters not included in the Exclusive Legislative List for the purpose of implementing a treaty. (3) A bill for an Act of the National Assembly passed pursuant to the provisions of subsection (2) of this section shall not be presented to the

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list; as such the consent of the majority of states is required. Generally, a particular problem which has emerged in Nigeria is the absence of nationally applicable child rights legislation.

The Child’s Rights Act, 2003, which is the main child rights legislation in the country and which domesticates relevant child rights treaties, has a controversial history and continues to be opposed by some states in the country. More specifically, the constitutional provision requiring the consent of states (for treaty domestication) and ceding residual rights to states on child-related issues has revealed the polarising nature of children’s rights in Nigeria. In this regard, although the CRA was passed in 2003, several years after, the statute is yet to be re- enacted across the country – the basis for rejecting the legislation (mainly by the Muslim northern states) includes child marriage prohibition, prohibition of marriage to an adopted child etc., contained in the CRA.

This study however found that some other instruments, notably the Labour Act as well as the

Trafficking Act may offer protection, especially in the northern states where the Child Rights

Act is yet to be re-enacted. However, it is worth noting that, even though the Labour Act and the Trafficking Act address some aspects of child labour, they do not address all facets of the phenomenon, the CRA contains some further provisions on the subject which are not present in the Labour or Trafficking Acts.574 Thus, while the Labour Act and the Trafficking Act offer protection to children in their stand-alone format, there is need for a more comprehensive legislation such as the CRA. In this way, uniform standards would apply across the federation.

Also, there is added value in harmonising the legislation into one instrument while also particularising it to mirror the specific context where it applies (this is discussed further in the recommendation section below).

President for assent, and shall not be enacted unless it is ratified by a majority of all the House of Assembly in the Federation.’

574 See section 28 of the CRA for instance. 241

With a view to understanding the scope of child labour in Nigeria vis-à-vis existing legal standards, a range of sectors were examined in chapter four. The chapter found that notwithstanding the existing norms on child labour, the persistence of child labour could be noted, which suggests the ineffectiveness of current legislation. Although the chapter did not capture every individual sector in which child labour is practised, it was however revealed that the practice remains an ongoing challenge that is yet to be overcome in Nigeria. More specifically, the chapter inter alia examined child labour within private households, child labour in the agricultural sector, and child labour within the public school system in Nigeria. With regard to private households for instance, it was pointed out that child domestic work is prevalent, and a range of exploitation goes along with that work. In practice, where exploited children complain to the police, the police treat such matters as falling within the private realm, and often take no action. Thus the issue is not redressed. Furthermore, it has been indicated that a number of exploitation is carried out in the public school system in Nigeria. In this regard, there is evidence that children are routinely required to cut grass as punishment for potential misconducts, thus undermining their protection rights.

Chapter five of this thesis further considered the economic dimensions of child labour in

Nigeria. In this regard, poverty and corruption were considered as economic causative factors.

It was found that widespread poverty in Nigeria forces parents to utilise their children in various economic activities. Also, largescale corruption in Nigeria is seen to bend the redistribution of wealth in favour of the more powerful and affluent, leaving poorer families in their impoverished state. This has created a context where child labour flourishes. This chapter argued that mere enactment of laws to ban children’s work may not entirely address the problem, broader efforts must be made to directly address the root cause of the problem. In particular, effective measures must be adopted to reduce widespread poverty in the country.

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Given that child labour remains prevalent in Nigeria despite the existence of legislation, this study further assessed the frameworks developed to supplement existing normative standards on child labour. Chapter six assessed the relevant frameworks from an international (SDGs), regional (EU), and national (US) perspective. It was found that child labour is engaged with in the SDGs as a development challenge; in the spirit of solidarity, states and other development partners are urged to play active roles to, inter alia, eliminate the problem across the world.

Furthermore, the relevant trade-based strategies for combating child labour with a particular focus on strategies formulated by the more developed states was assessed. If well-implemented, these strategies have the potential to contribute to poverty alleviation, and in turn, child labour decline in developing countries. However, in the context of the EU for instance, the GSP+, which is arguably the most effective tool for combating child labour (within the GSP mechanism), at least in theory, cannot be invoked against Nigeria and other African states where child labour is prevalent, as they are not part of the scheme. The GSP variant available in the

United States was also assessed. Generally, eligibility for trade preferences in the United States is determined, inter alia, by the compliance of beneficiary states with the so called internationally recognised worker rights, i.e., a prohibition on the use of any form of forced or compulsory labour, a minimum age for the employment of children, and a prohibition on the worst forms of child labour. The African Growth and Opportunity Act or AGOA is another measure designed by the US to improve human rights conditions (including child labour elimination) in Africa. To qualify for preferences under this scheme, each country must be working to improve its rule of law, human rights, and respect for core labour standards. In general, despite the potentials of the conditionality approach to grant market access to developing countries and to improve broader human rights conditions, its tendency to be used for trade protectionism undermines its validity. Thus, despite the frameworks, chapter six

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demonstrated that child labour remains an ongoing challenge in Nigeria. This calls for a rethinking of current approaches to the practice.

7.3 SPECIFIC RECOMMENDATIONS

A number of recommendations are presented below to respond to the specific problems identified in this thesis. The recommendations are prompted by the unique and complex nature of Nigeria, in terms of the legal architecture and the fraught interaction with society.

(i) Adoption of new child labour legislation. As pointed out above, the CRA has

suffered a domestication challenge in some Nigerian states. Many of the Muslim

states in northern Nigeria have refused to re-enact the CRA partly on the basis that

some provisions contained in the statute are contrary to Islamic norms and traditions.

As indicated earlier, there are two other child labour legislation in Nigeria: the

Labour Act and the Trafficking Act. However, since the three legislation are largely

complementary and do not reproduce one another, the non-enactment of the CRA

which is the primary child rights legislation in Nigeria could create deficits

especially in states where the CRA is rejected. Generally, the CRA was intended to

serve as the main child rights legislation, while being complemented by other

statutes. The labour provisions contained in the CRA specifically engage with a

range of child labour practices575 and further refers to the Labour Act by stating that:

575 Section 28 of the CRA states: (1) Subject to this Act, no child shall be‐ (a) subjected to any forced or exploitative labour; or (b) employed to work in any capacity except where he is employed by a member of his family on light work of an agricultural, horticultural or domestic character; or (c) required, in any case, to lift, carry or move anything so heavy as to be likely to adversely affect his physical, mental, spiritual, moral or social development; or (d) employed as a domestic help outside his own home or family environment. (2) No child shall be employed or work in an industrial undertaking and nothing in this subsection shall apply to work done by children in technical schools or similar approved institutions if the work is supervised by the appropriate

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‘The provisions relating to young persons in sections 58, 59, 60, 61, 62 and 63 of

the Labour Act shall apply to children under this Act.’576 Thus, while the Labour

Act and the Trafficking Act577 could perform complementary and/or gap-filling

roles, there is need for a national child rights legislation.

Furthermore, there is need to harmonise the relevant child labour norms – i.e., the

bringing together of the fragmented legislation into a single document. Thus, I make

two separate proposals here for responding to the challenge, with stronger

preference for the latter. While the first alternative could make possible the national

applicability of the CRA, it may however be unable to achieve the goal of norms

harmonisation.

Regarding the first proposal, one possible way of achieving national applicability of

the CRA might be to amend the Nigerian constitution, to make childhood issues a

matter of joint legislative powers by both the federal and state governments.578 In

this regard, as opposed to the current practice whereby states retain residual powers

over childhood issues, inserting such issues in the concurrent list, would allow both

authority. (3) Any person who contravenes any provision of subsection (1) or (2) of this section commits an offence and is liable on conviction to a fine not exceeding fifty thousand naira or imprisonment for a term of five years or to both such fine and imprisonment. (4) Where an offence under this section is committed by a body corporate, any person who at the time of the commission of the offence was a proprietor, director, general manager or other similar officer, servant or agent of the body corporate shall be deemed to have jointly and severally committed the offence and may be liable on conviction to a fine of two hundred and fifty thousand naira.

576 Section 29 CRA.

577 It is worth indicating that the Trafficking Act is not explicitly mentioned in the CRA, this is probably because it is the most recently adopted of the three legislation. Thus, the Trafficking Act may equally perform complementary roles since it is labour-related and applies to children.

578 Daniel Ogunniyi, ‘The Challenge of Domesticating Children’s Rights Treaties in Nigeria and Alternative Legal Avenues for Protecting Children’ (2018) 62(3) Journal of African Law, 469.

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states and the national government to exercise legislative powers on child-related

matters jointly.579 With regard to matters on the concurrent list, even though the

national and state assemblies have joint legislative powers, states may not adopt

laws that conflict with the federal law. This is generally consistent with the

constitutional theory of ‘covering the field’ which was reaffirmed by the Nigerian

Supreme Court in Fawehinmi v Babangida.580 Thus, theoretically, this approach

could make available a nationally applicable child rights legislation in Nigeria.

However, the utility of the above suggestion may be limited. Moving child-related

issues to the concurrent list may work to preserve the status quo, in that the CRA

would still retain its current form and content which may not fully reflect the realities

of many working children. Although legally speaking state legislatures may be

obligated to adopt similar norms as the national legislation, however, given existing

trends, it is unlikely that the statute will enjoy the de facto support of states currently

opposed to it, as the religious grounds for opposing the CRA would still remain.581

Also, it should be acknowledged that the process of constitutional amendment could

be complex. Section 9 of the Nigerian constitution stipulates that, changes can only

be made to the constitution when a two-third majority vote is achieved at both

chambers of the National Assembly; this must also be approved by at least 24 of

579 Ibid.

580 (2003) 12 WRN 1 SC.

581 It should however be mentioned that some aspects of child labour e.g., using children as beggars is a ground for rejecting the CRA; thus, for the new legislation to enjoy fuller national support, the root causes of such issues, in particular poverty, must be addressed, otherwise, the new statute may encounter the same fate as the CRA.

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Nigeria’s 36 states.582 In principle, even if the states currently opposed to the CRA

are not in support of such amendment, the amendment may still succeed. The

number of states required for the amendment to succeed seems to be the exact

number of those that have re-enacted the CRA. If the hurdle with regard to the

number of votes required is scaled, an amendment should normally be possible.583

However, it is worth mentioning that even where an amendment is achieved, the

content of the CRA would still be retained and states currently opposed to it may

not give it the needed support it demands. Thus, a second approach is suggested here

which is that a purely child labour legislation be adopted to avoid the non-labour

grounds for rejecting the CRA. The content of the new legislation may focus solely

on child labour. Although it has been demonstrated earlier that children may enjoy

protection through such instruments as the Labour Act and the Trafficking Act, the

new legislation suggested here could have the added value of bringing the

fragmented norms together, thereby granting more visibility to issues of child

labour. In this way, the new norm would serve as the authoritative legal document

582 Section 9 of the Constitution states: (1) The National Assembly may, subject to the provision of this section, alter any of the provisions of this Constitution. (2) An Act of the National Assembly for the alteration of this Constitution, not being an Act to which section 8 of this Constitution applies, shall not be passed in either House of the National Assembly unless the proposal is supported by the votes of not less than two-thirds majority of all the members of that House and approved by resolution of the Houses of Assembly of not less than two-thirds of all the States. (3) An Act of the National Assembly for the purpose of altering the provisions of this section, section 8 or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of each House, and also approved by resolution of the House of Assembly of not less than two-third of all States. (4) For the purposes of section 8 of this Constitution and of subsections (2) and (3) of this section, the number of members of each House of the National Assembly shall, notwithstanding any vacancy, be deemed to be the number of members specified in sections 48 and 49 of this Constitution.

583 Despite the somewhat complex procedure, the 1999 constitution of Nigeria has been amended at least 4 times since its inception. See: Channels Television, ‘Full List of 1999 Constitution Amendment’, available at https://www.channelstv.com/2017/07/27/full-list-1999-constitution-amendment/ (accessed 14/03/2019).

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on child labour in Nigeria. Generally, while the new labour statute may bring

together the existing pieces of legislation, I further suggest that the content of the

new norm be adapted to the national context (this is discussed below). The adoption

of a new norm in Nigeria could also help incorporate the other recommendations

enumerated below. Having said this, I should note that enacting a child labour

legislation could undermine the adoption of a wider child rights law. In other words,

this option takes a narrower approach to issues of children’s rights by focusing

exclusively on child labour. While children in northern Nigeria where the CRA is

currently inapplicable may enjoy statutory protection from child labour, they may

not enjoy such level of protection in other areas not related to child labour. This is

one drawback of this recommendation.

The adoption of a child labour legislation is nevertheless conceived as a progressive

step towards uniformity and the wider goal of child protection as opposed to current

realities whereby standards do not apply equally across Nigeria. I should further

note that, while this research focuses specifically on child labour, relevant legislative

actors in Nigeria may facilitate the goal of child protection by formulating laws

which take religious and cultural sensitivities into account.

(ii) Norm Contextualisation. This study has revealed that apart from the legal

challenges, especially the non-enactment of the CRA by certain states, child labour

remains prevalent across Nigeria. Further, the existence of other nationally

applicable instruments does not seem to have made any difference in eliminating

the phenomenon; which is partly one reason why this research favours the adoption

of alternative set of norms. It has been indicated earlier in this study that child labour

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remains widely practiced across northern and southern Nigeria – even though the

CRA is applicable in the southern region. The point here therefore is that the CRA in its current form might be unable to respond to the complex nature of child labour in Nigeria.

Indeed, this study has identified poverty as a major causative factor for child labour,

I suggest further below that poverty reduction strategies be adopted in Nigeria with particular effort devoted to fighting corruption. Furthermore, on account of the poverty prevalence, I emphasise here the importance of contextualising child labour norms, as existing standards do not seem to fully reflect and respond to local situations. For instance, the age of admission to the workforce contained in the

Labour Act may not take the economic realities in Nigeria into account – the contents are generally modelled after relevant international standards on child labour; in which case, the activities of many children will almost always conflict with relevant legal provisions. It is therefore important to particularise legal standards to address specific local cases.

In many ways, this recommendation on norms contextualisation is aiming at broader reforms at the international level and eventually to give room for local reforms. To a large extent, economic differences globally may warrant the need for differentiated norms locally. From a theoretical perspective, although human rights are somewhat rooted in natural law, which should supposedly create context neutrality in their application, there is generally no objective viewpoint to picture an abstract human

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being.584 Eva Brems has for instance pointed out that the idea of context neutrality

which is canvassed by certain scholars is an illusion. She further argues that ‘as the

drafters of the 1948 Universal Declaration of Human Rights were predominantly

white, well-off, adult Western men, the rights it protects are inevitably tailored more

to the needs and aspirations of that group than to those of – relatively unknown –

others.’585 She remarks that ‘at the level of standard setting, as well as at the levels

of interpretation and application of human rights standards and in the context of

determining human rights priorities, Western dominance in international power

relations has often translated into a disproportionate Western influence in shaping

international human rights.’586 Thus, Brems argues for what she calls ‘inclusive

universality’, noting that ‘equality requires not only that similar situations be treated

in the same way, but also that different situations be treated differently… if human

rights are to be universal in the sense that they apply in an equal manner to all human

beings, they must take into account specific circumstances relevant to the lives of

these human beings.’587 A number of other scholars have also made similar

arguments, including Cohen-Jonathan as well as Delmas-Marty, who argue for a

‘pluralist conception of human rights’ whereby a national margin of appreciation

can be fused with other common standards to accommodate the existing

differences.588 Also, Kaushik Basu has stressed the need for flexibility in labour

584 Eva Brems ‘Inclusive Universality and the child-caretaker dynamic’ in Karl Hanson and Olga Nieuwenhuys, Reconceptualising Children’s Rights in International Development: Living Rights, Social Justice, Translations (Cambridge University Press, 2013) 200.

585 Eva Brems ibid 200

586 Ibid.

587 Ibid, 203.

588 Cohen-Jonathan ‘Universalité et singularité des droits de l’homme’ (2003) 53, Revue Trimestrielle des Droits de l’Homme 3-13; M Delmas-Marty, ‘DE la Juste dénomination des droits de l’homme’ (1998) 35, Droit et

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related norms. He remarks that ‘to look for a single set of standards for all countries

is to have virtually no standards. ILS [International Labour Standards] must be

flexible enough to take account of the different stages of development of different

nations.’589

From a national standpoint, more recently, Bolivia lowered its minimum age for

admission to the workforce below the international standard, to mirror its local

context.590 In many ways, the measure adopted in Bolivia could indeed be said to be

contravening the principle of pacta sunt servanda591 and therefore violating

international law. Thus, instead of recommending similar measures for Nigeria,

broader reforms at the international level is recommended. For instance, African

Cultures 35, 105-106; both articles cited in Eva Brems ‘Inclusive Universality and the child-caretaker dynamic’ in Karl Hanson and Olga Nieuwenhuys, Reconceptualising Children’s Rights in International Development: Living Rights, Social Justice, Translations (n 577) 202. Commenting on the uniqueness of Africa and the separate identity of Africans, Mutua has, for instance, argued that, ‘the transplantation of the narrow formulations of western liberalism cannot adequately respond to the historical reality and the political and social needs of Africa. The sacralisation of the individual and the supremacy of the jurisprudence of individual rights in organised political and social society is not a natural, “transhistorical” or universal phenomenon, applicable to all societies, without regard to time and place.’ See Makau Wa Mutua, ‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’ (1995) 35 Virginia Journal of International Law 341. This may suggest that, applying rules with different historical origins in Africa may naturally create social tension. In this regard, Okere has also remarked that, the ‘African conception of man is not that of an isolated and abstract individual, but an integral member of a group animated by a spirit of solidarity.’ See B. Obinna Okere, ‘The protection of Human Rights in Africa and the African Charter on Human Rights and Peoples’ Rights: A comparative Analysis with the European and American Systems (1984) 6 Human Rights Quarterly, 141, 148; cited in Makau Wa Mutua, ibid, 359, 360.

589 Kaushik Basu, ‘International Labour Standards and Child Labour’, in Maurizio Franzini and Felice R. Pizzuti (eds) Globalisation, Institutions and Social Cohesion (Springer, 2001) 120

590 The applicable national law exceptionally recognises (contrary to international children’s rights laws) the work of children below the age of 12, provided the Ombudsman Office for Childhood and Adolescence authorises such works. See generally, Edward van Daalen and Nicolas Mabillard, ‘Human rights in translation: Bolivia’s law 548, working children’s movements, and the global child labour regime’ (2018) The International Journal of Human Rights, 1-24.

591 For instance, article 26 of the Vienna Convention on the Law of Treaties (VCLT) states: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith.’

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countries may collude at the UN to make proposals recognising the authority of

regional bodies to legislate on child labour.592 The adoption of a regional child

labour treaty could in many ways preclude measuring child labour in Nigeria against

international standards but against the regional standard. Legal reform may

particularly focus on adapting the applicable provisions in articles 2 and 7 of the

ILO Minimum Age Convention to the regional context – i.e., the lowering of ages

to reflect the economic differences in Africa. Although the ILO Convention already

contains some (age) flexibilities between developed and developing countries, such

flexibilities are too minimal considering the wide economic gaps between most

northern and southern countries.593 The continued prevalence of child labour despite

the existing flexibilities is potential evidence that relevant norms are not best suited

to the context. As the lowering of age would have broader implications for children’s

health and development, policy makers should consult widely with experts to arrive

at an appropriate age for entry into the work force.

592 As opposed to purely national standards which could create monitoring problems, reforms at the regional level could facilitate the monitoring of relevant national standards. The African Committee on the Rights of the Child could be tasked with such monitoring obligations.

593 See articles 2(3) & article 7 ILO Minimum Age Convention, for the age differentiation. Article 7 speaks more to this issue. It states: 1. National laws or regulations may permit the employment or work of persons 13 to 15 years of age on light work which is-- (a) not likely to be harmful to their health or development; and (b) not such as to prejudice their attendance at school, their participation in vocational orientation or training programmes approved by the competent authority or their capacity to benefit from the instruction received. 2. National laws or regulations may also permit the employment or work of persons who are at least 15 years of age but have not yet completed their compulsory schooling on work which meets the requirements set forth in sub-paragraphs (a) and (b) of paragraph 1 of this Article. 3. The competent authority shall determine the activities in which employment or work may be permitted under paragraphs 1 and 2 of this Article and shall prescribe the number of hours during which and the conditions in which such employment or work may be undertaken. 4. Notwithstanding the provisions of paragraphs 1 and 2 of this Article, a Member which has availed itself of the provisions of paragraph 4 of Article 2 may, for as long as it continues to do so, substitute the ages 12 and 14 for the ages 13 and 15 in paragraph 1 and the age 14 for the age 15 in paragraph 2 of this Article.

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Indeed, the suggestion on norm contextualisation may seem at odds with existing

international normative standards and could be challenged as exposing international

law to fragmentation and lack of coherence. However, as a study by the International

Law Commission (ILC) on a related subject suggests, while fragmentation may

indeed be moving international law in the direction of legal pluralism, it may not

seriously undermine ‘legal security, predictability or the equality of legal

subjects.’594 Furthermore, recognising the possible inevitability of pluralism at the

international level, the ILC noted that in the same way as a space for legal pluralism

exists at the national level (although this is sometimes problematic), ‘International

law will need to operate within an area where the demands of coherence and

reasonable pluralism will point in different directions.’595

(iii) Harmonisation of laws on the participation of children in armed conflict. Some

inconsistencies and/or inadequacies have been noted in international treaties

regarding how they address the involvement of children in armed conflict. For

instance, while article 38(2) of the CRC prohibits the recruitment of children below

the age of 15 into state armed forces, article 1 of the Optional Protocol on armed

conflict later raised the age for forced recruitment to 18. While the defects in the

CRC (in terms of age) could be said to have been addressed in the Optional Protocol,

594 Report of the Study Group of the International Law Commission Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law (A/CN.4/L.682 13 April 2006) 248.

595 The ILC however emphasised the continuing force of international law despite fragmentation, by stating that ‘the techniques of lex specialis and lex posterior, of inter se agreements and of the superior position given to peremptory norms and the […] notion of “obligations owed to the international community as a whole” provide a basic professional tool-box that is able to respond in a flexible way to most substantive fragmentation problems. They can be used so as to give expression to concerns (e.g. economic development, human rights, environmental protection, security) that are legitimate and strongly felt.’ Ibid, ILC Report, 249.

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a problem central to the treaties is that they all fail to address the indirect

participation of children below the age of 18 years. At the African level, the

ACRWC also fails to address this issue. Furthermore, although the ILO Worst

Forms Convention prohibits the ‘forced or compulsory recruitment of children for

use in armed conflict’, a challenge, however, is that this treaty only applies to ‘forced

or compulsory recruitment’, the question of voluntary recruitment is not addressed;

the same deficit is found in the OPAC. Also, although section 34 of the CRA (which

domesticates the treaties) prohibits the recruitment of all children in hostilities, the

focus only relates to direct recruitment. In this regard, it is recommended that a more

unequivocal law be adopted to prohibit issues related to forced and voluntary

recruitment, and direct and indirect use of children below the age of 18 years in

armed conflict, whether internal or international. Although this study did not assess

the extent to which this gap has impacted on child labour in Nigeria, it is argued

however that the adoption of a comprehensive legislation prohibiting all aspects of

the practice could ensure increased legal protection for children. More so, in

accordance with the Worst Forms Convention, the practice may be regarded as a

worst form of child labour which should be unconditionally prohibited.

(iv) Non-consideration of work and education as mutually exclusive or as

constituting child labour. Article 32 of the CRC defines child labour to include

‘any work that is likely to be hazardous or to interfere with the child's education’.

In other words, the relevant work need not be hazardous to be prohibited; conflict

with education is sufficient ground for prohibiting relevant work. Although the

African Children’s Charter does not contain any such provision as the CRC, the

national legislation in Nigeria, the CRA, seems to be modelled after the CRC. The

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CRA prohibits any work ‘for any purpose that deprives the child of the opportunity

to attend and remain in school as provided for under the Compulsory, Free Universal

Basic Education Act’.596 However, contrary to this provision, research sufficiently

demonstrates that, children’s participation in work is an important way of learning

essential life and occupational skills such as parenting and farming.597 Some studies

also suggest that children who work as teenagers are more likely to succeed as adults

than those who never worked.598 Generally, children should be able to choose

between work and school. Also, school and work are two separate issues that must

be treated separately; thus, it may be more beneficial if child labour treaties focus

exclusively on labour issues, and focussing less on other themes. Moreover,

education should not always be construed from the prism of formal school enrolment

alone, work could also be a form of learning for some children. Also, the legal

prohibitions ignore the fact that formal education is not always a given – not all

children will have the means to attend school; even where education is free, other

incidental costs (e.g., text books, uniforms) could still render the school system

unaffordable for poor families.

Thus, in the new legislation, it is suggested that the link to education in child labour

treaties be excluded. The relevant provision may be phrased in similar terms as the

African Children’s Charter which draws no particular link between the two. Where

children work, their work must be consistent with relevant legal standards. What is

596 Section 30 CRA.

597 Michael FC Bourdillon, Ben White and William E Myers, (n 11) 110.

598 See generally J Boyden., B Ling., and W Myers, What works for children (Radda Barnen & UNICEF, Stockholm, 1998) 91, 92; see also JT Mortimer, Work and Growing up in America (Harvard University Press, 2003) 204, 205.

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of particular importance here therefore is that whatever work children undertake

must be such which does not expose them to exploitation.599

(v) Prohibition of child labour within the school system. It was pointed out in chapter

4 that both article 6 of the Minimum Age Convention as well as section 28(2) of the

CRA, recognise children’s work in technical schools or similar approved

institutions. This in many ways could constitute a basis for exploiting children

within the school system in Nigeria. In many public schools in Nigeria, children are

routinely required to cut grass as punishment for any perceived misconduct.600

However, this provision must be revisited if children are to enjoy fuller legal

protection. For children attending school, the new child labour legislation must

clearly stipulate that child labour is prohibited within the school system, the use of

children to cut grass, for instance, must attract punishment – this is perhaps one of

the clearest forms of exploitation, since the goal is to punish, the children’s work is

never remunerated.

Apart from this, there should be strict monitoring: school inspectors can be

appointed to routinely visit the relevant public schools; students can be interviewed

by inspectors to ascertain the conditions under which they study and whether any

form of child labour is practiced. While prohibiting explicitly the use of children to

cut grass etc., the relevant law should be framed in a way that works of a technical

nature that relate directly to children’s studies continue to be recognised.

599 The goal of achieving child literacy could perhaps be a reason for linking the two issues together. However, it is suggested that child literacy goals should not be pushed through a child labour instrument.

600 Media evidence (including photos) of visibly young children cutting grass in Nigerian schools is available here: https://www.lindaikejisblog.com/2017/07/photos-child-labour-or-training.html (accessed 17/01/2019).

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(vi) Anti-corruption and poverty reduction measures. As already indicated in this

study, poverty is one of the main causative factors for child labour in Nigeria. Thus,

this recommendation views poverty from the prism of corruption – i.e., efforts to

combat corruption in Nigeria is conceived as an implicit strategy to reduce poverty.

Undoubtedly, corruption has increased the rates of poverty in the country601 and

therefore child labour. More generally, it is widely acknowledged that corruption

reduces economic growth and in the long-term discourages local and foreign direct

investment.602 From an obligations perspective, it is clear that the Nigerian

government has a responsibility to address issues of poverty in the country. This

obligation is implied in the UDHR603 as well as the ICESCR which urges states to

provide socioeconomic rights to everyone and to protect children from economic

and social exploitation.604 Although certain government agencies such as the

Economic and Financial Crimes Commission (EFCC), and the Independent Corrupt

Practices Commission (ICPC) have been established to fight corruption in Nigeria,

these agencies have however been unable to tackle the problem effectively. The

601 In a recent assessment by PWC, the organisation noted that: ‘corruption in Nigeria could cost up to 37% of Gross Domestic Products (GDP) by 2030 if it’s not dealt with immediately. This cost is equated to around $1,000 per person in 2014 and nearly $2,000 per person by 2030. The boost in average income that we estimate, given the current per capita income, can significantly improve the lives of many in Nigeria.’ see PWC, ‘Impact of Corruption on Nigeria’s economy’, available at: https://www.pwc.com/ng/en/press-room/impact-of-corruption-on-nigeria-s- economy.html (accessed 02/02/2019).

602 Odo Linus Ugwu, ‘The Impact and Consequences of Corruption on the Nigerian Society and Economy’, (2015) 4(1), International Journal of Arts and Humanities, 180.

603 Article 25 of the UDHR states: ‘‘everyone has the right to a standard of living adequate for the health and wellbeing of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment…’

604 See article 2 & 10(3) ICESCR.

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authorities must therefore adopt sound strategies for tackling corruption with the

ultimate goal of lifting children out of poverty and then child labour.605

(vii) Training law of enforcement agents and establishment of a special child

protection unit within the Nigerian Police Force. As indicated earlier, exploited

child domestic workers in practice complain to the police about the exploitation

faced; however, such complaints are usually dismissed by police officers as mere

family matters. This suggests that relevant law enforcement agents are probably less

acquainted with child rights issues, and may require better training to reverse this

trend. Thus, it may be useful to designate a unit within the police force to perform

oversight duties over childhood issues; unit officers can be specially trained on

605 The government could consider a range of strategies including: (i) reforming public administration and finance management – in this regard, Transparency International (TI) has observed that financial management reforms and the strengthening of auditing agencies have succeeded in many countries and has greater effects than mere public sector reforms. These measures are particularly recommended as relevant public sector reforms (e.g., establishment of EFCC and ICPC) have not yielded any meaningful results in Nigeria. It is specifically recommended that, auditing agencies working in concert with members of civil society organisations be tasked with the financial auditing of government agencies; (ii) Promoting transparency and access to information – based on its technical experience in the area of anti-corruption, TI notes that ‘countries successful at curbing corruption have a long tradition of government openness, freedom of the press, transparency and access to information.’ In Nigeria, the extent of transparency and press freedom is arguably below par compared to countries where corruption is less prevalent. The willingness to make government functioning more transparent could reduce the rates of corruption in the country; (iii) Closing international loopholes – In Nigeria, it is often the case that looted state funds are transferred to foreign banks. Clearly, without access to the international financial system, it would be difficult to launder and hide stolen money. During 2018 for instance, Swiss authorities returned to Nigeria, a sum exceeding $300m, stolen by former Nigerian Head of State, Sani Abacha. It is clear that foreign states could play important roles to facilitate anti-corruption efforts in Nigeria. It is worth mentioning here that the Fifth Schedule to the Nigerian Constitution titled Code of Conduct for Public Officers prohibits all public officers from maintaining or operating a bank account in any country outside of Nigeria. The Code also requires public officers to publicly declare their properties and assets. However, these provisions are not accompanied by any punishment section when there is a violation. The Code merely stipulates that anyone who does an act in violation of the Code either personally, ‘through a nominee, trustee, or other agent shall be deemed ipso facto to have committed a breach of this Code.’ Generally, this weak language may not facilitate the effective prosecution of public office holders for corruption. Thus, at the national level, it is recommended that this aspect of the Code of Conduct be amended and a punishment provision inserted for possible violation. Also, cooperation with foreign states, especially in the area of information sharing should be prioritised; this could ensure that illegitimate money and assets owned by public office holders are communicated to the Nigerian authorities – undeclared assets could for instance be forfeited to the state after adequate investigation. This partnership could greatly advance anti- corruption efforts in Nigeria.

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relevant child rights laws. In this way, police officers are better equipped to respond

to issues of child abuse and/or exploitation. This can particularly prove useful for

child domestic workers and even child labour existing in the school system, as

children themselves can report anonymously to the police regarding any exploitation

faced. When police officers have better understanding of child labour and children’s

rights in general, children may experience better protection.

The remainder of this thesis explores potential future alternatives for dealing with poverty and child labour. I should note that issues considered are not directly linked to the preceding assessment; they nonetheless have broader relevance to the research. Also, while the above recommendations are mostly grounded in legal reforms, it is certainly the case that their effectiveness may be undermined by poverty prevalence. In other words, good laws may not necessarily imply that child labour will disappear. This also does not imply that context-specific laws are not important – they are the legal basis from where other mechanisms (e.g., poverty alleviation measures) must proceed.

7.4 THE FUTURE OF CHILDREN’S RIGHTS: INTERNATIONAL DEVELOPMENT

COOPERATION AS AN ALTERNATIVE MEASURE TO COMBAT POVERTY AND

CHILD LABOUR?

As indicated above, the assessments made in this section do not inevitably flow from the findings on child labour in Nigeria. Instead, they are conceived as possible ways of dealing with the wider challenge of poverty and also child labour in the developing world. In this regard, I discuss the potential utility of international development cooperation for addressing these problems. Generally, it is acknowledged that poverty and child labour are primarily territorial matters that should be addressed on a territoriality basis. International cooperation is however

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considered as a measure for states lacking the resources to deal with poverty and child labour in their territories.

In the sections below, I put forward some legal grounds for which international development cooperation could be conceived as a binding obligation owed by developed to developing states.

For the most part, this aspect of the thesis is forward looking and is not necessarily a direct response to child labour, but to poverty. Addressing poverty could, in many ways, impact on child labour and improve the conditions of children that work for economic reasons.606 In this regard, I put forward some legal and historical grounds for rethinking development cooperation, contrary to current approaches whereby developed states often consider their obligations to be voluntary and non-legal.

The concentration of poverty in the global south generally requires a rethinking of current approaches to socioeconomic rights. Although theoretically, it may be argued that poverty is not the only causative factor for child labour, however, it is widely acknowledged that poverty is a major cause. Thus, this may necessitate the adoption of new strategies for tackling the phenomenon. The traditional human rights model which focuses on the individual obligations of states can generally be considered to be outdated.607 This territorial approach to human rights is probably informed by civil and political rights, in which ICCPR obligations are largely

606 I should note that the causal link between poverty alleviation and reduction in child labour has not been fully studied in this thesis. Nonetheless, there is evidence that child labour is more prevalent in poorer countries compared to the more affluent ones, more so, this study has found that poverty is a causative factor for child labour in Nigeria.

607 Margot E Salomon, Global Responsibility for Human Rights: World Poverty and the Development of International Law (Oxford University Press, 2007) 6.

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framed in a territorial sense.608 However, it must be pointed out that most socioeconomic rights instruments often lack the delimiting clauses on territorial or jurisdictional obligations.609

Given the enduring link between poverty and child labour, efforts to achieve social change in terms of child labour would require a renewed engagement with territoriality concepts on ESC rights. This might require stronger economic cooperation between wealthy and poorer states to address poverty in southern countries. In many ways, efforts to address child labour and poverty in Nigeria (and Africa) demand that stock be taken and existing progress assessed – i.e., dominant approaches to child labour should be re-examined to understand their effectiveness or lack of it. Focusing solely on the duties of the territorial state and less on international cooperation to address global poverty is not likely to effect any meaningful change on the phenomenon. In this regard, Margot Salomon remarks that ‘world poverty figures are evidence that key aspects of the existing political-economic order severely undermine the creation of an environment conducive to justice being served,’610 especially economic justice. A similar issue was raised during the Vienna World Conference on Human Rights, where it was acknowledged that ‘the existence of widespread poverty inhibits the full and effective enjoyment of human rights’,611 it was also affirmed that ‘extreme poverty and social exclusion constitute a violation of human dignity.’612 Furthermore, the Committee on Economic, Social and Cultural Rights has

608 Malcolm Langford, Fons Coomans and Filipe Gomez Isa, ‘Extraterritorial Duties in International Law’, in Malcolm Langford, Wouter Vandenhole, Martin Scheinin, & Willem Van Genugten (Eds.), Global Justice, State Duties: The Extraterritorial Scope of Economic, Social, and Cultural Rights in International Law (Cambridge: Cambridge University Press 2013) 57.

609 ibid.

610 Margot E Salomon, Global Responsibility for Human Rights: World Poverty and the Development of International Law, (n 607) 47.

611 Vienna Declaration and Programme of Action, 1993, article 14.

612 Vienna Declaration and Programme of Action 1993, article 25.

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pointed out that ‘while statistics do not provide a complete understanding of poverty, these shocking figures signify massive and systemic breaches’ of international law.613 Thus, considering the prevalence of poverty in Nigeria, it is clear that the international obligation to address child labour problems would be difficult to achieve, as there is a strong linkage between the two (i.e., poverty and child labour). I should note that the assessment made here is not to absolve the Nigerian government of its obligations to provide socioeconomic rights. The strong grip of corruption across the country could certainly undermine arguments for development cooperation. In fact, the goal of development cooperation could be defeated if corruption is not tackled first. Therefore, the need to prioritise anti-corruption efforts in Nigeria is vitally important. Having said this however, the prevalence of corruption should not hinder an assessment (on development cooperation) which is not only relevant for Nigeria but could also benefit other countries where (corruption is minimal but) poverty is widespread. Moreover, on a purely legal basis, corruption discourses should not be tied to development cooperation. In other words, if development cooperation is agreed to constitute a legal obligation, this obligation has to be fulfilled without any recourse to conditionality (e.g., development cooperation can only be forged if corruption is absent). This is however not to defend corruption. In many ways, fighting corruption in Nigeria and elsewhere in the developing world could facilitate the ultimate goal of development cooperation, which in this context is to create a better world for poorer children.

Therefore, the point is that shared prosperity from states in the global north to those in the south could improve the economic conditions in the south which might in turn reduce the trends in

613 Committee on Economic, Social and Cultural Rights, E/C.12/2001/10, 10 May 2001, Para 4.

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child labour.614 In the sections below, I put forward some evidence demonstrating that there is an emerging legal obligation for international development cooperation.

7.5 THE POTENTIAL LEGAL BASIS FOR INTERNATIONAL COOPERATION TO

ADDRESS POVERTY AND CHILD LABOUR IN THIRD STATES

Generally speaking, the International Covenant of Economic, Social and Cultural Rights615 is one of the cardinal international instruments which impose, in concrete terms, an obligation to cooperate internationally to address socioeconomic issues in third states.616 Also, the CRC in article 4 stipulates that ‘States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.

With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.’617

614 In terms of widespread corruption for instance, among other things, it may well be that the practice was inspired by poverty and the need to secure intergenerational economic needs. Thus, greater prosperity can potentially make corruption superfluous.

615 Article 2(1) of the Covenant provides that ‘Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.’

616 Wouter Vandenhole introduces the term ‘third state obligation’ as a more useful alternative to extraterritorial obligation’. He specifically notes that ‘the term “third State obligations” is more apt from the perspective of individuals in the South, with regard to whom both the own State and third States have certain obligations under the CRC.’ He further stated that, ‘In principle, the term third State obligations is to be preferred from a human rights point of view, for it takes the perspective of the rights holders as a starting point.’ See Wouter Vandenhole, ‘Economic, Social and Cultural Rights in the CRC: Is There a Legal Obligation to Cooperate Internationally for Development?’ (2009) 17 International Journal of Children’s Rights, 24-25.

617 It should be noted that apart from article 4 CRC, the idea of international cooperation also features in articles 23(4); 24(4); and 28(3) of the instrument.

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Clarifying the content of article 4 above, the CRC Committee noted in General Comment 5

(2003) that, the article ‘reflects a realistic acceptance that lack of resources - financial and other resources - can hamper the full implementation of economic, social and cultural rights in some

States…’618 The Committee further noted that ‘States need to be able to demonstrate that they have implemented “to the maximum extent of their available resources” and, where necessary, have sought international cooperation’.619 Moreover, ‘When States ratify the Convention, they take upon themselves obligations not only to implement it within their jurisdiction, but also to contribute, through international cooperation, to global implementation.’620 The Committee pointed out that the CRC ‘should form the framework for development assistance related directly or indirectly to children.’621 In this regard, programmes of donor states are required to be rights-based; member states are also advised ‘to meet internationally agreed targets, including the United Nations target for international development assistance of 0.7 per cent of gross domestic product.’622

Building on General Comment No. 5 of 2003, the CRC Committee issued a follow up General

Comment in 2016 (General Comment No. 19), where it acknowledged the role of national authorities to prioritise the socioeconomic rights of children.623 In the context of international cooperation however, General Comment 19 noted that:

618 Committee on the Rights of the Child, General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6) CRC/GC/2003/5, Para 7

619 Committee on the Rights of the Child, CRC/GC/2003/5, Para 7

620 Committee on the Rights of the Child, CRC/GC/2003/5, Para 7

621 Committee on the Rights of the Child, CRC/GC/2003/5, Para 61

622 Committee on the Rights of the Child, CRC/GC/2003/5, Para 61

623 The Committee noted that, ‘all government branches, levels and structures that play a role in devising public budgets shall exercise their functions in a way that is consistent with the general principles of the Convention’ (para 19); the Committee further pointed out that, ‘States parties have an obligation to show how the public budget-

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States parties have an obligation to cooperate with one another in the promotion of

universal respect for, and observance of, human rights, including the rights of the child.

States that lack the resources needed to implement the rights enshrined in the

Convention and its Optional Protocols are obliged to seek international cooperation, be

it bilateral, regional, interregional, global or multilateral. States parties with resources

for international cooperation have an obligation to provide such cooperation with the

aim of facilitating the implementation of children’s rights in the recipient State.624

The General Comment further noted that:

States parties should demonstrate that, where necessary, they have made every effort to

seek and implement international cooperation to realize the rights of the child. Such

cooperation may include technical and financial support in relation to implementing

children’s rights in the budget process, including from the United Nations.625

Considering the idea of international cooperation in the CRC, Wouter Vandenhole, however, remarks that, whether this reference amounts to an extraterritorial legal obligation is open to debate.626 He further noted that, the obligation to fulfil i.e., transfer resources from northern to southern countries ‘is politically the most contentious one and legally the most difficult one to

related measures they choose to take result in improvements in children’s rights. States parties shall show evidence of the outcomes obtained for children as a result of those measures. It is not enough to show evidence of measures taken without evidence of results if article 4 of the Convention is to be satisfied’ (para 24); UN Committee on the Rights of the Child General comment No. 19 (2016) on public budgeting for the realization of children’s rights (art. 4) CRC/C/GC/19.

624 UN Committee on the Rights of the Child, General comment No. 19 (2016) on public budgeting for the realization of children’s rights (art. 4) CRC/C/GC/19, para 35.

625 UN Committee on the Rights of the Child, General comment No. 19 (2016) on public budgeting for the realization of children’s rights (art. 4) CRC/C/GC/19, para 36.

626 Wouter Vandenhole, ‘Economic, Social and Cultural Rights in the CRC: Is There a Legal Obligation to Cooperate Internationally for Development?’ (n 616) 23.

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prove.’627 Thus, he argued that while states in the global south cannot make general claims for transfer of resources from northern states, some specific legal obligations do exist, including the 0.7% commitment from donor states indicated above.628 Arguing against the view that international obligation might possibly entail cooperation to provide economic assistance to developing countries, he remarked that ‘no general legal obligation exists under the CRC to cooperate internationally for development, or to provide development assistance for the realisation of economic, social and cultural rights of children in developing countries, commensurate with need.’629 Although member states did not submit any reservation or declaration delimiting the scope of international cooperation, Vandenhole is of the view that this ‘does not mean in itself that a general and undifferentiated legal obligation to cooperate internationally for development (in particular with regard to children) can be deducted from the

CRC.’630 However, the view that the commitment of donor countries to provide 0.7% of their

GNP to developing countries constitutes a legal obligation (while others may not), tends to subject the obligation to provide ESC rights extraterritorially to the discretion of the more developed countries, i.e., obligations to fulfil only exist when the developed states agree that they exist. By the same logic, the obligations rejected by the developed states would be considered as non-existent. This self-determining approach (i.e., subject to the commitment of the donor countries) to the legality of norms is, however, subjective and should be rejected.

627 Ibid 24.

628 Ibid 26.

629 Ibid.

630 Wouter Vandenhole, ‘Economic, Social and Cultural Rights in the CRC: Is There a Legal Obligation to Cooperate Internationally for Development?’ (n 616) 33. Elsewhere, Vandenhole has further noted that developed countries, in this case, EU countries, are under a general legal obligation to respect and to protect ESC rights in the South, he is however skeptical as to the binding status of the obligation to fulfil; see Wouter Vandenhole, ‘EU and Development: Extraterritorial obligations under the International Covenant on Economic, Social and Cultural Rights’ in Margot E. Salomon, Arne Tostensen and Wouter Vandenhole, Casting the Net Wider: Human Rights, Development and New Duty-Bearers, (Intersentia Antwerp – Oxford, 2007) 86, 103-105.

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Other authors, in particular, Michael Wabwile, seem to disagree with the view enunciated by

Vandenhole. In this regard, noting that traditional statism poses a legal obstacle to the universal fulfilment of ESC rights,631 Wabwile argues that, the developed states with their economic capacity to address the ESC problems of developing states ‘could be required as a matter of legal obligation to go beyond their domestic responsibilities to support the fulfilment of economic and social rights in other countries.’632 Wabwile further argues that, the fact that such extraterritorial obligations (to fulfil) are contested and disputed by the more developed states are insufficient grounds for concluding that they do not legally exist.633 In general, it is to be noted that rejecting the idea of extraterritorial legal obligation to fulfil ESC rights undermines the value attached to human rights.

Apart from article 4 of the CRC, it is worth pointing out here that the Optional Protocol (to the

CRC) on the Sale of Children, Child Prostitution and Child Pornography also makes reference to international cooperation. In this regard, article 10(4) of the Protocol provides that:

States Parties shall take all necessary steps to strengthen international cooperation by

multilateral, regional and bilateral arrangements for the prevention, detection,

investigation, prosecution and punishment of those responsible for acts involving the

sale of children, child prostitution, child pornography and child sex tourism. States

Parties shall also promote international cooperation and coordination between their

631 Michael Wabwile, ‘Re-Examining States' External Obligations to Implement Economic and Social Rights of Children’ (2009) 22, Canadian Journal of Law and Jurisprudence, 412.

632 Michael Wabwile, ibid 410. Wabwile further argues that ‘Moreover, for persons living in failing and failed states that are unable to guarantee fulfilment of basic human rights, the only approach to human rights obligations applicable to their predicament is one that recognises the legal responsibility of other states to contribute to the protection and fulfilment of their rights.’ (ibid).

633 Michael Wabwile, ibid 437.

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authorities, national and international non-governmental organizations and international

organizations.

Similarly, article 7(1) of the Optional Protocol (to the CRC) on the involvement of children in armed conflict states that:

States Parties shall cooperate in the implementation of the present Protocol, including

in the prevention of any activity contrary thereto and in the rehabilitation and social

reintegration of persons who are victims of acts contrary thereto, including through

technical cooperation and financial assistance. Such assistance and cooperation will be

undertaken in consultation with the States Parties concerned and the relevant

international organizations.

Regarding the idea of extraterritorial legal obligations to fulfil ESC rights, there appears to be conflicting perspectives among scholars on the status of this right. However, the views enunciated by Vandenhole above seem to reflect the position taken by many developed states i.e., developed countries have no general legal obligation to provide development assistance to poorer states. Generally, in the increasingly interdependent global economy where developing countries face enormous challenges to implement human rights (child labour) treaties, there are two possibilities: it is either the fulfilment of ESC rights are deferred to a later date when developing states will have stronger capacity to provide such rights or international cooperation to fulfil ESC rights in third states is accorded priority.634 As the former would produce undesired consequences, conceiving ESC rights as a binding legal obligation of more developed states could provide a better outcome for children.

634 Matthew Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective of its Development (Oxford: Clarendon Press, 1995) at 144; cited in, Michael Wabwile, ibid 414.

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Generally speaking, the idea of international development cooperation to address the economic challenges in developing countries is consistent with the UN Charter. In this regard, article 1(3) of the Charter states, inter alia, that the purpose of the UN is to ‘achieve international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.’ This form of cooperation goes beyond e.g., the grant of trade preferences through tariff cancelations etc., as reflected in the preceding chapter, but demand provision of financial assistance to such developing countries.

Thus, the legal basis for claiming ESC rights extraterritorially, can, arguably, be deduced from the relevant treaties and UN documents considered above; this obligation is further necessitated by the endemic poverty situations in the developing world. Beyond these considerations, I make other arguments for recognising the legal status of this obligation: (i) international cooperation as a post-colonial obligation of developed states; and (ii) international cooperation as a neoliberal obligation.

(i) International cooperation as a post-colonial obligation of developed states

This section treats the question of international cooperation as a post-colonial obligation of developed states, especially those with a colonial history in the developing countries. In this regard, the exploitation of Africa during colonial rule is presented as a ground for according a binding status to international development cooperation. In many ways, it can be argued that

Nigeria (Africa) is where it is today partly because of past colonial activities. In this regard, one has to bear in mind that contact between different societies reshapes (either positively or negatively) their respective rates of development.635 In How Europe Underdeveloped Africa,

635 Walter Rodney, How Europe Underdeveloped Africa (Howard University Press, Washington, D.C., 1982) 33.

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Walter Rodney, for instance, studied how Europe and Africa developed separately prior to the arrival of the Westerners.636 He noted that, Africa in its ‘uncontaminated’ form, had well organised systems including appreciable levels of development roughly comparable to that of

Europe.637 In this regard, Rodney traced the trajectory of Europe (in Europe) from communalism, slavery, feudalism to capitalism/socialism. In the same vein, while Africa equally experienced the communal phase, it never made it to the later stages before the system was taken over by Western forces. As communalism is one particular phase which all societies have experienced,638 Africa was denied the benefit of developing at a relatively equal pace like the rest of the western world.639

Indeed, while Europe and Africa may not have been at exactly the same level at the time, it can be argued that Africa would have steadily moved out of the communal phase into the more sophisticated phases of development.640 However, it should also be pointed out that, prior to

636 A number of criticisms have however been levelled against Rodney’s study/views on Africa’s development and the wider view that Africa’s underdevelopment is attributable to the West. See for instance, Klas Ronnback, Labour and Living Standards in Pre-Colonial West Africa: The Case of the Gold Coast (Routledge, 2016); JD Fage, An Introduction to the History of West Africa (Cambridge University Press, 1962).

637 Walter Rodney, (n 635) 34.

638 Ibid 37.

639 Some scholars have however challenged this view of development stages, noting that ‘the quite one-sided emphasis upon external factors behind underdevelopment was the theorizing over a so-called “African mode of production.” By the concept “mode of production”, Karl Marx essentially meant a “system of forces of production and social relations that organizes and directs the forces of production.” In Marx’s early writings, he described the modes of production as a set of sequence, or a set of stages of development, including slavery, feudalism and capitalism. The sequence was based primarily on Marx’s reading of the history of Western societies, and it has not always been possible to fit non-European societies into Marx’s general stage-theory of development.’ See, Klas Ronnback, Labour and Living Standards in Pre-Colonial West Africa: The Case of the Gold Coast (Routledge 2016), 5. Klas Ronnback further noted that, ‘Marx himself added the caveat that there existed a specific “Asiatic mode of production”, which on many accounts differed from the modes of production associated with Western societies.’ P 5.

640 Egypt and Ethiopia are examples of African countries that were already making the transition from communalism to feudalism.

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colonialism, the early Europeans exploited Africans in varying economic proportions; this practice of exploitation became rather formalised during the colonial era.641

In this context, Africa can make claims for international cooperation (or reparations) as a way of remedying past injustices. In this regard, Rodney particularly noted that ‘Western Europe and Africa had a relationship which insured the transfer of wealth from Africa to Europe.’ 642

He further noted that ‘[t]he developed and underdeveloped parts of the present capitalist section of the world have been in continuous contact for four and a half centuries. The contention here is that over that period Africa helped to develop Western Europe in the same proportion as

Western Europe helped to under-develop Africa.’643 Commenting on the era of the slave trade for instance, historian, Immanuel Wallerstein pointed out that, the slave trade wreaked havoc on many African societies and ‘served as the cutting edge of the peripheralization of Africa’. 644

In terms of international cooperation to address poverty in Nigeria and Africa, reversing this

641 The view that Africa is where it is today because of western/colonial exploitation has however been challenged by a number of scholars. For instance, in 1955, JD Fage published a study referencing the beneficial impact of slave trade on West Africa. He particularly noted that the political expansion of the Oyo Empire (present day western Nigeria), power and wealth was directly connected to the Atlantic slave trade. Fage pointed out that rulers of the empire amassed enormous wealth due to their involvement in the transatlantic trade movement. With regard to the Benin, Fage similarly related the increasing political power and influence of the empire to the provision of arms and the purchase of slaves by Europeans. See generally, JD Fage, A History of Africa (London: Hutchinson, 1978); JD Fage, An Introduction to the History of West Africa (Cambridge University Press, 1962). A foremost Nigerian historian, Ade Ajayi has however contested the arguments put forward by Fage. With regard to the Oyo Empire for instance, Ajayi noted that, the empire did not owe its prosperity to the slave trade prevalent at the time, instead, he contended that the rise of the empire was partly linked to the regional trade in which horses were imported to ease production activities. Revenues from taxation, land, agricultural production also contributed to the prosperity of the empire. See JF Ade Ajayi and Robert Smith, Yoruba Warfare in the Nineteenth Century (Cambridge University Press, 1964; JFA Ajayi, ‘The British occupation of Lagos, 1851-1861’ (1961) 69 Nigerian Magazine, 96-105; cited in Mohammed Basjir Salau, ‘The Atlantic Slave Trade and the Impact on the Nigerian Hinterland, 1500-1900, in Akinwumi Ogundiran, Precolonial Nigeria: Essays in Honor of Toyin Falola (Africa World Press, Inc. 2005) 447-470.

642 Walter Rodney, (n 635) 75.

643 Ibid.

644 Immanuel Wallerstein, ‘The Three Stages of African Involvement in the World Economy’, in P Gutkind and I Wallerstein (eds), The Political Economy of Contemporary Africa (Beverly Hills: Sage Publications, 1976), 40.

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trend (of wealth transfer) is certainly not out of place. Although colonialism ended in Nigeria and much of Africa, more than 50 years ago, its impact continues to be felt to this day. It is worth mentioning that previous calls for reparations by the former colonies have been rejected by the former colonial powers.645 For the most part, the colonial powers argue that they cannot be held accountable for the conduct of previous actors.646 They also argue that reparations will do very little to address the problems faced by many post-colonial states today.647 However, this argument is not convincing; even though the present generation of Europeans are not directly responsible for this wrongful act, they, nonetheless, continue to enjoy the gains of

Africa’s exploitation. The prevalence of poverty, and logically child labour, in Nigeria and across Africa can be partly redressed through international cooperation (combined with anti- corruption efforts suggested earlier in the case of Nigeria).

(ii) International cooperation as a neoliberal obligation

Developed countries have benefited disproportionately from the global free market system. At the international level, the neoliberal system advocates for the free movement of goods, services, capital and people, including corporations.648 In this regard, multinational companies have established deep roots in many African countries including Nigeria. These entities, especially oil prospecting multinational companies contribute to ongoing environmental, and indirectly, human degradation in the country. Also, with regard to international trade arrangements, some developed states claiming to adopt fair trade practices have concealed non-

645 Anna Dunham, ‘Should There Be Reparations to Post-Colonial States?’ (ODU IDEA FUSION; ODUMUNG 2017 Issue Brief) available at https://www.odu.edu/content/dam/odu/offices/mun/2017/ib-2017-fourth- reparations-final.pdf (accessed 18/12/2017).

646 Anna Dunham, ibid.

647 Ibid.

648 David M. Kotz, ‘Globalization and Neoliberalism’ (2002) 14(2) Rethinking Marxism 65.

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transparent systems which make the global economic order unduly favour them. In this regard,

Koen De Feyter for instance demonstrates how the agricultural policy of the European Council has negatively affected developing countries. He specifically notes the contradiction between development aid given to southern countries and the subsidies given to local farmers in Europe for the same products. These western farmers then export the relevant products to the developing countries, thereby undermining the potential of producers in the third world.649

Western countries and their corporations contribute enormously to Africa’s current economic problems. In the neoliberal context, a recent study reveals that while $134 billion flows into

Africa each year, mostly in the form of aid, loans and foreign investment, $192 billion is taken out in the same time period.650 These monies are taken out mainly in profits made by foreign companies, tax avoidance etc. As a result, Africa suffers a net loss of $58 billion a year; yet, the industrialised countries are widely praised for aids given to African states, despite the gains made. The problem of tax avoidance by multinational companies was particularly pointed out in chapter 5 as contributing to widespread poverty in Nigeria. In this regard, while multinational companies receive generous tax waivers and tax holidays, the poor are aggressively taxed by the state. It is submitted here that the tax regimes be reviewed to have multinational companies pay a share of their taxes in the host states (in this case Nigeria), and the other share in their home countries. This can provide more development funds for the Nigerian government.

Apart from this, in development terms, a stronger commitment may be required from industrialised countries. The contribution of 0.7% in development aid seems too meagre compared to the amount realised from Africa including Nigeria. This obligation is more

649 Koen De Feyter, World Development Law: Sharing Responsibility for Development (Intersentia Antwerp – Groningen – Oxford, 2001) 118.

650 Health Poverty Action et al., Honest Accounts? The true story of Africa’s billion dollar losses (Curtis Research, 2014) 5.

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pertinent, as it is well-known that, states, not corporations, are the primary duty bearers in international human rights law. This is however not to absolve multinational corporation from development obligations as well. As indicated in the section on SDGs in chapter 6, a multi- stakeholder initiative may be useful in achieving broader development goals in Nigeria and

Africa. Thus, apart from the roles of developed states, multinational corporations, as stakeholders, must also play active roles in developing the countries and communities where they operate their businesses. Finally, it is worth mentioning here that despite the negative aspects of globalisation, the phenomenon may also have the potential to be a force for good.651

For this to happen however, economic globalisation must be seen as ‘the speeding up of development and the reduction of absolute poverty in a manner that ensures economic, social and environmental sustainability.’652

7.6 CONCLUSION

The complexity of Nigeria and of child labour requires a specific re-engagement with child labour in a more contextualised way. This chapter has identified some specific issues bedevilling children’s rights and child labour in Nigeria. In particular, the chapter has recommended: the adoption of a new child labour statute; the contextualisation of norms, the harmonisation of laws on the participation of children in armed conflict; non-consideration of work and education as mutually exclusive; anti-corruption and poverty reduction measures; the prohibition of child labour within the school system; as well as training of law enforcement

651 Margot E Salomon (n 607) 47.

652 Ibid.

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agents and establishment of a special child protection unit within the Nigerian police force.

Implementing these recommendations may offer better protection for Nigerian children.

Also, in light of the widespread poverty situation in Africa and its implications for children’s rights and child labour, the potential utility of international development cooperation was examined as a forward-looking mechanism for fighting poverty in the developing world. It was demonstrated that, at present, obligations to provide ESC rights extraterritorially is contested by many developed states. This chapter however attempted to argue for the binding legal status of this right. The legal basis is reinforced by the language of cooperation contained in the

ICESCR, the CRC, the UN Charter and other UN documents. Furthermore, some other grounds

(i.e., post-colonial and neo-liberal considerations) were examined as basis for according a legal status to this right. In sum, as has been demonstrated in this study, child labour is a highly complicated issue in Nigeria, and may not be expected to disappear immediately. However, the recommendations offered in this study could improve the lives of children over time and also help navigate the complexities of finding a norm that recognises the inherent human dignity of

Nigerian children while taking their socioeconomic contexts into account.

275

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BIBLIOGRAPHY

BOOKS & JOURNALS

Abbink J and Van Kessel I (eds), Vanguard or Vandals: Youth, Politics and Conflict in Africa

(Brill, 2005)

Ademola A, Complete International Law: Texts, Cases and Materials (Oxford University

Press, 2014)

Adeoti A.I., Coster A.S., & Gbolagun A.O ‘Child Farm Labour in Rural Households of South-

West Nigeria', (2003) 1, International Journal of African and Asian Studies 47-56.

Aderinto S (ed), Children and Childhood in Colonial Nigerian Histories (Palgrave Macmillan,

2015)

Adeyemi O.O et al, ‘The manifestation of Corruption in Nigeria: A critical X Ray of some selective development’ (2012), 2(4) International Journal of Physical and Social Sciences, 1-

Admassie A, ‘Explaining the High Incidence of Child Labour in Sub-Saharan Africa’, (2002)

African Development Bank 251 – 275

Agbonlahor M.U et al., ‘Determinants of Child Farm Labour in Rural Households of Ogun

State, Nigeria’, (2007) 2(1) Asset series, 97-108

Aghedo I and Eke S J, ‘From Alms to Arms: The almajiri phenomenon and internal security in

Northern Nigeria’ (2013) 28(3), The Korean Journal of Policy Studies, 97 – 123.

Ajayi JFA and Smith R, Yoruba Warfare in the Nineteenth Century (Cambridge University

Press, 1964

277

Ajayi JFA, ‘The British occupation of Lagos, 1851-1861’ (1961) 69 Nigerian Magazine

Ajibare O, ‘Child Work and Street Trading in Nigeria: Implications for Vocational Adult

Education’ (2013) 6(2) Journal of Educational Review, 225-235

Akazawa T., Aoki K., Bar-Yosef O (eds), Neandertals and Modern Humans in Western Asia

(Springer, Boston, MA, 2002)

Akçay S, ‘Corruption and Human Development’, (2006) 26(1) Cato Journal 29. (29-48)

Akinwunmi O.S, ‘Legal impediments on the practical implementation of the Child Rights Act

2003’, (2009) 37(3) The Journal of Legal Information 385 - 396

Akwara F A., Soyibo A G., Agba M S, ‘Law and Children’s Rights Protection: The nexus for a sustainable development in Nigeria’ (2010) 6(2) Canadian Social Science 26-33

Alen A et al., (eds), A Commentary on the United Nations Convention on the Rights of the Child

(Martinus Nijhoff 2005)

Alfredsson G & Asbjorn E (eds), The Universal Declaration of Human Rights, A Common

Standard of Achievement (Martinus Nijhoff, 1999)

Alkali U et al, ‘Nature and Sources of Nigerian Legal System: An exorcism of a wrong notion’,

(2014) 5 International Journal of Business, Economics and Law 1-10

Amachree G, ‘Recent trends in child labour and child trafficking in Nigeria’ Labour Law

Review 27

Aransiola J.O et al ‘Proliferation of Street Children in Nigeria: Issues and Challenges’, (2009)

9(4) Journal of Social Work, 372 371 – 385

278

Aransiola O & Agunbiade M, ‘Coping Strategies of Street Children in Nigeria’, (2009) 2(2)

Journal of Social & Psychological Sciences, 13 – 34

Arat Z.F, ‘Analysing Child Labour as a Human Rights Issue: Causes, Aggravating Policies and

Alternative Proposals’ (2002), 24(1) Human Rights Quarterly, 177-204

Aries P, Centuries of Childhood: A Social History of Family Life, translated from French by

Robert Baldick (New York: Vintage Books, 1962)

Ashimolowo O.R., Aromolaran A.K., Inegbedion S.O, ‘Child street-trading activities and its effect on the educational attainment of its victims in Epe local government of Lagos state’,

(2010), 2(4), Journal of Agricultural Science, 211-220

Assim U and Sloth-Nielsen J, ‘Islamic Kafalah as an alternative care option for children deprived of a family environment’, (2014) African Human Rights Law Journal, 322 – 345

Awofeso N and Ritchie J and Degeling P, ‘The Almajiri Heritage and the Threat of Non-state

Terrorism in Northern Nigeria – lessons from Central Asia and Pakistan’ (2003) 26(4) Studies in Conflict & Terrorism 311 – 325

Awosusi O and Adebo G.M, ‘Domestic servants and rural-youth urban migration in Nigeria:

Issues for national intervention’ (2012), 2(5), International Journal of Humanities and Social

Science 271 – 278

Baarda C.S, ‘Human Trafficking for Sexual Exploitation from Nigeria into Western Europe:

The Role of Voodoo Rituals in the functioning of a Criminal Network’ (2016) 13(2) European

Journal of Criminology, 257 – 273

279

Bales K & Robbins P.T, ‘No One Shall be Held in Slavery or Servitude: A Critical Analysis of

International Slavery Agreements and Concepts of Slavery’, (2001) 2 Human Rights Review,

18 – 45

Bennett T.W, Using children in armed conflict: A legitimate African tradition? Monograph No

32, Institute of Security Studies, Pretoria, 1998

Bhalotra S, ‘Child Labour in Africa’ (2003) OECD Social, Employment and Migration

Working Papers, No. 4, OECD Publishing, Paris.

Bhukuth A, ‘Defining Child Labour: A Controversial Debate’ (2008) 18(3) Development in

Practice 385-394

Boister N and Currie R.J, Routledge Handbook of Transnational Criminal Law, (Routledge,

2015)

Boister N, ‘Human Rights Protections in the Suppression Conventions’, 2(2002) Hum. Rgts.

L.R. 199 – 227

Boister N, ‘Transnational Criminal Law?’ (2003) 14(5) EJIL 953 – 976

Bonnet M, ‘Le Travail des enfants: terrain de luttes’ (1999) Lausanne: Editions Page deux.

Bornstein M.H (ed) Handbook of parenting: Volume 4 Special Conditions and Applied

Parenting (Lawrence Erlbaum Publishers, 2002)

Bourdillon MFC, White B and Myers W.E ‘Re-assessing minimum-age standards for children’s work’ (2009) 29(3/4) International Journal of Sociology and Social Policy, 106-117

Boyden J., Ling B., and Myers W, What works for children (Radda Barnen & UNICEF,

Stockholm, 1998)

280

Braimah T S, ‘Child marriage in northern Nigeria: Section 61 of part I of the 1999 Constitution and the protection of children against child marriage’ (2014) 14 African Human Rights Law

Journal 474-488

Brems E & Adekoya C.O, ‘Human Rights Enforcement by People Living in Poverty: Access to Justice in Nigeria’, (2010), 54(2) Journal of African Law, 258-282

Buck T, International Child Law (Routledge 2014)

Bulhan H A, ‘Stages of Colonialism in Africa: From Occupation of Land to Occupation of

Being’ (2015) 3(1) Journal of Social and Political Psychology 239-256.

Bulhan H.A, ‘Stages of Colonialism in Africa: From Occupation of Land to Occupation of

Being’ (2015) 3(1) Journal of Social and Political Psychology 239-256

Çali B, The Authority of International Law: Obedience, Respect, and Rebuttal (Oxford

University Press, 2015)

Campana P, ‘The Structure of Human Trafficking: Lifting the Bonnet on a Nigerian

Transnational Network’ (2016), 56, Brit.J.Criminol. 68 – 86

Charnovitz S, ‘The Moral Exception in Trade Policy’, (1998) 38 Virginia Journal of

International Law, 736-742

Chen M.A, Rethinking the Informal Economy: Linkages with the Formal Economy and the

Formal Regulatory Environment (2007) DESA Working Paper No. 46, 2

Chirwa D.M, ‘The Merits and Demerits of the African Charter on the Rights and Welfare of the Child’ (2002) 10 The International Journal of Children s Rights, 157 – 177

Clapham A, Human Rights Obligations of Non-State Actors, (OUP, 2006)

281

Clark CID and Yesufu S, ‘Child Street Trading as an aspect of child abuse and Neglect in Oredo

Municipality of Edo State, Nigeria as Case Study’ (2012) 8(5) European Scientific Journal, 148

– 158

Cohen-Jonathan G ‘Universalité et singularité des droits de l’homme’ (2003) 53, Revue

Trimestrielle des Droits de l’Homme 3-13

Coomaraswamy R, ‘The Optional Protocol to the Convention on the Rights of the Child on the

Involvement of Children in Armed Conflict – Towards Universal Ratification’, (2010) 18

International Journal of Children’s Rights 535 – 549

Craven M, The International Covenant on Economic, Social and Cultural Rights: A Perspective of its Development (Oxford: Clarendon Press, 1995)

Creighton B, ‘Combating Child Labour: The Role of International Labour Standards’ (1996)

18 Comp. Lab. LJ 362 – 396

Cullen H, ‘Does the ILO have a distinctive role in the International Legal Protection of Child

Soldiers?’ (2011) 5(1) HR&ILD, 63 – 81

Cullen H, ‘The Limits of International Trade Mechanisms in Enforcing Human Rights: The

Case of Child Labour,’ (1999) 7 International Journal of Children’s Rights 1-29

Cunningham H and Viazzo P P (eds), ‘Child labour in historical perspective 1800-1985: Case studies from Europe, Japan and Colombia (UNICEF International Child Development Centre,

1996).

Dada O.M.O, ‘A sociological investigation of the determinant factors and the effects of child street hawking in Nigeria: Agege, Lagos State under survey’ (2013), 3(1) International Journal of Asian Social Science, 114 – 137.

282

Davel C (ed), Introduction to child law in South Africa (Juta, Cape Town, 2000)

De Feyter K, ‘Towards a Framework Convention on the Right to Development’ (Friedrich-

Ebert-Stiftung, International Policy Analysis, 2013)

De Feyter K, World Development Law: Sharing Responsibility for Development (Intersentia

Antwerp –Groningen – Oxford, 2001) 245

Delap E, ‘Economic and Cultural Forces in the Child Labour Debate: Evidence from

Bangladesh’, (2001) 37(4), The Journal of Development Studies, 1-22

Delmas-Marty M, ‘DE la Juste dénomination des droits de l’homme’ (1998) 35, Droit et

Cultures 35, 105-106

Detrick S (ed)., The United Nations Convention on the Rights of the Child: A Guide to the

Travaux Preparatoires (The Hague, Martinus Nijhoff Publishers, 1992)

Dunham A, ‘Should There Be Reparations to Post-Colonial States?’ (ODU IDEA FUSION;

ODUMUNG 2017 Issue Brief)

Elliot K.A (ed.) Corruption and the Global Economy, (Washington: Institute for International

Economics, 1997)

Fage J.D, A History of Africa (London: Hutchinson, 1978)

Fage J.D, An Introduction to the History of West Africa (Cambridge University Press, 1962)

Feichtner I, The Law and Politics of WTO Waivers: Stability and Flexibility in Public

International Law (Cambridge University Press, 2012)

Foua Bi K A, Enduring Child Labour on Ivory Coast’s Cocoa Farms: Practicality of the ILO

Standards and the Missed Opportunities (Unpublished PhD Thesis, Brunel University, 2014)

283

Foua Bi K.A, Enduring Child Labour on Ivory Coast’s Cocoa Farms: Practicality of the ILO

Standards and the Missed Opportunities (Unpublished PhD Thesis, Brunel University, 2014)

Franzini M and Pizzuti F.R (eds) Globalisation, Institutions and Social Cohesion (Spinger,

2001)

Freeman M (ed), Law and Childhood Studies: Current Legal Issues, (OUP, 2012)

Gaffney-Rhys R, ‘International Law as an Instrument to Combat Child Marriage’, (2011) 15(3),

Int. Jour. of Hum. Rgts. 359 – 373

Gallagher A.T, ‘Human Rights and Human Trafficking: Quagmire or Firm Ground-A Response to James Hathaway’ (2008) 49 Va. J. Int’l L. 789 – 848

George A.A, Making Modern Girls: A History of Girlhood, Labour, and Social Development in Colonial Lagos, (Ohio University Press, 2014)

Gethii J.T, ‘Defining the relationship between human rights and corruption’, (2009), 31(1) U.

Pa. J. Int’l L, 125-202

Giedd J.N et al, ‘Brain development during childhood and adolescence: a longitudinal MRI study’ (1999) 2(10) Nature Neuroscience 861

Giuseppe N and Luca N, Child Labor in a Globalized World: A Legal Analysis of ILO Action

(Ashgate Publication Limited 2008)

Glendon M.A, ‘The rule of law in the Universal Declaration of Human Rights’, (2004) 2

Northwestern University Journal of International Human Rights.

Gomment T.I and Esomchi O.S, ‘Nigeria: Breeding Future Terrorists. A study of Almajiri of

Northern Nigeria and Islamic Militia’ (2017) Conflict and Security Journal, 80-92.

284

Gott H (ed), Labour Standards in International Economic Law (Springer, 2018).

Gutkind P & Wallerstein I (eds), The Political Economy of Contemporary Africa (Beverly Hills:

Sage Publications, 1976).

Hanson K and Nieuwenhuys O, Reconceptualising Children’s Rights in International

Development: Living Rights, Social Justice, Translations (Cambridge University Press, 2013)

Hanson k, ‘International Children’s Rights and Armed Conflict’ (2011), Human Rights &

International Legal Discourse, 5(1), 40 – 62.

Happold M, ‘Child Soldiers in International Law: The Legal Regulation of Children’s

Participation in Hostilities’ (2000) 47 Netherlands International Law Review 27-52

Harris R and Moon G, ‘GATT Article XX and Human Rights: What do we know from the first

20 years?’ (2015) 16 Melbourne Journal of International Law 1-52

Harrison J, The Human Rights Impact of the World Trade Organization (Hart, 2007)

Health Poverty Action et al., Honest Accounts? The true story of Africa’s billion dollar losses

(Curtis Research, 2014)

Hemmer H R, Steger T M, and Wilhelm R, ‘Child labour and international trade: An economic perspective,’ (1997) Entwicklungsökonomische Diskussionsbeiträge, No. 22, Univ., Professur für Volkswirtschaftslehre und Entwicklungsländerforschung, Gießen

Hemmer HR., Steger T and Wilhelm R, ‘Child Labour and International Trade: An Economic

Perspective’ (Working Paper: Entwicklungsökonomische Diskussionsbeiträge, No. 22)

Heyns C and Viljoen F ‘The Impact of the United Nations Human Rights Treaties on the

Domestic Level’ (2001) 23 Human Rights Quarterly

285

Hindman H (ed), The World of Child Labour: An Historical and Regional Survey, (M. E Sharpe,

2009).

Howse R, ‘The World Trade Organisation and the Protection of Workers’ Rights’ (1999)

Journal of Small and Emerging Business Law 131-172

Human Rights Watch, Off the Backs of the Children: Forced Begging and Other Abuses against

Talibes in Senegal (HRW New York, 2010)

Humbert F, The Challenge of Child Labour in International Law, (Cambridge University Press

2009).

Ibrahim A N. et al., ‘Cultural Dynamics of Child Labour in Yobe State Nigeria’ (2015), 20(5) IOSR

Journal of Humanities and Social Sciences, 71-79.

Imoh A Twum-Danso and Ansell N, Children’s Lives in an Era of Children’s Rights: The

Progress of the Convention on the Rights of the Child in Africa (Routledge 2014)

Ivory R, Corruption, Asset Recovery, and the Protection of Property in Public International

Law: The Human Rights of Bad Guys (Cambridge University Press, 2014)

James A and Prout A, Constructing and Reconstructing Childhood (Falmer Press, 2nd edn

1997)

Jones N et al, ‘Promoting Synergies between Child Protection and Social Protection in Nigeria’

(2012) 14 London: ODI.

Joseph S, Blame It on the WTO? A Human Rights Critique (Oxford University Press, 2013)

Jumoke O and Akinola A, ‘The rights to life, health and development: The Ebola virus and

Nigeria’, (2017) 17, African Human Rights Law Journal, 194-218

286

Kanie N and Biermann F (eds) Governing through Goals: Sustainable Development as

Governance Innovation (Manchester Institute of Technology, 2017)

Kigbu K and Hassan Y.B, ‘Legal Framework for Combatting Human Trafficking In Nigeria:

The Journey so Far’ (2015) 38 Journal of Law, Policy and Globalisation, 205 – 220

Kistenbroker H V, ‘Implementing Article 32 of the Convention on the Rights of the Child as a

Domestic Statute: Protecting Children from Abusive labour practices’, (2012) 44, Case Western

Reserve Journal of International Law 921-954

Kotz D M, ‘Globalization and Neoliberalism’ (2002) 14(2) Rethinking Marxism 64-79

Kyari V G and Ayodele J, ‘The Socio-economic Effect of Early Marriage in North Western

Nigeria’, (2014), 5(14) Mediterranean Journal of Social Sciences, 582 – 592.

Langford M et al., (eds) Global Justice, State Duties: The Extraterritorial Scope of Economic,

Social and Cultural Rights in International Law (Cambridge University Press, 2013)

LeVine R.A et al., Child care and culture: Lessons from Africa (Cambridge University Press,

1994)

Lewis O, ‘The Culture of Poverty’, (1966) 215(4) American, 19.

Liebel M, ‘Working Children as social subjects: The contribution of working children’s organizations to social transformations’ (2003) 10(3) Childhood, 265-285

Liebel M, Children’s Rights from Below: Cross-Cultural Perspectives (Palgrave Macmillan,

2012).

287

Liftin Nogueras D J and Hinojosa Martinez L M, ‘Human Rights Conditionality in the External

Trade of the European Union: Legal and Legitimacy Problems’ (2001) 7 Columbia Journal of

European Law

Lin S and Pol R, Tools of Trade: The Use of U.S. Generalized System of Preferences to Promote Labor

Rights for all (The International Corporate Accountability Roundtable, 2018)

Lloyd A, ‘Evolution of the African Charter on the Rights and Welfare of the Child and the

African Committee of Experts: Raising the gauntlet’, 2002, 10, IJCR 180.

Mavunga R.A, ‘A Critical Assessment of the Minimum Age Convention 138 of 1973 and the

Worst Forms of Child Labour Convention 182 of 1999’ (2013) 16 PER: Potchefstroomse

Elektroniese Regsblad, 122 – 168

McIntyre A (ed), Invisible Stakeholders: Children and War in Africa, (Institute for Security

Studies, 2005)

McKendrick E, Contract Law: Text, Cases and Materials (6th edn, Oxford University Press

2014).

Melzer N, Interpretive Guidance on the Notion of Direct Participation in Hostilities under

International Humanitarian Law (ICRC, 2009)

Monkelbaan J, Governance for the Sustainable Development Goals: Exploring an Integrative

Framework of Theories, Tools, and Competencies (Springer Singapore, 2019)

Mooney L.A., Knox D & Schacht C, Understanding Social Problems (Cengage learning, 2015)

Mortimer J.T, Work and Growing up in America (Harvard University Press, 2003).

288

Muntarbhorn V, A Commentary on the United Nations Convention on the Rights of the Child –

Article 34, Sexual Exploitation and Sexual Abuse of Children (Martinus Nijhoff, 2007)

Murray D, Human Rights Obligations of Non-State Armed Groups, (Hart Publishing, Oxford,

2016)

Mutua M.W, ‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the

Language of Duties’, (1995) 35, Virginia Journal of International Law, 339-380

Nair S, ‘Child soldiers and international criminal law: Is the existing legal framework adequate to prohibit the use of children in conflict? (2017) 2, Perth Journal of International law, 40-54.

Ndem B.E., Michael B., & Awa O.C, ‘Child labour in Nigeria and its Economic implications:

A case study of Calabar Municipality’ (2012) 2(9), Research on Humanities and Social

Sciences 149-160

Nhenga-Chakarisa T.C, ‘Who Does the Law Seek to Protect and from What? The Application of International Law on Child Labour in an African Context’ (2010) 10 African Human Rights

Law Journal 161 – 196

Nnadi I, ‘Sex Trafficking and Women – The Nigerian Experience’ (2013), 6(3) Journal of

Politics and Law, 179 – 188

Noguchi Y, ‘ILO Convention No. 182 on the Worst Forms of Child Labour and the Convention on the Rights of the Child’ (2002) 10 The International Journal of Children’s Rights 355-369

Nwabuzor A, ‘Corruption and Development: New Initiatives in Economic Openness and

Strengthened Rule of Law’ (2005) 59, Journal of Business Ethics, 121-138

289

Nzarga F.D, ‘Impediments to the Domestication of Nigerian Child Rights Act by the States’,

(2016) 19, Journal of Culture, Society and Development, 48 – 55

Oba A, ‘Neither Fish nor Fowl: Area Courts in the Ilorin Emirate in Northern Nigeria’, (2008)

58 Journal of legal Pluralism 69 – 92

Oba A, ‘Religious and Customary Laws in Nigeria’, (2011) 25 Emory International Law

Review 881 – 895

Oba A, ‘The Sharia Court of Appeal in Northern Nigeria: The Continuing Crises of

Jurisdiction’, (2004) 52(4), The American Journal of Comparative Law 859 – 900

Oba A.A, ‘Islamic Law as Customary Law: The Changing Perspective in Nigeria’, (2002) 51

International and Comparative Law Quarterly, 817 – 850

Odoeme P, Human Rights and the Mission of the Church in Nigeria (Lit Verlag Munster, 2013).

Ofuoku A.U and Idoge D.E, ‘Child Labour in Agricultural Production and Socioeconomic

Variables among Arable Farming Households in Nigeria’, (2014) 29(2) Journal of Rural Social

Sciences, 67 – 80

Ogundiran A, Precolonial Nigeria: Essays in Honor of Toyin Falola (Africa World Press, Inc.

2005)

Ogunniyi D, ‘The Challenge of Domesticating Children’s Rights Treaties in Nigeria and Alternative

Legal Avenues for Protecting Children’ (2018) 62(3) Journal of African Law, 447-470.

Okafor E.E, ‘Child Labour Dynamics and the Implications for Sustainable Development in

Nigeria’, (2010) 12(5), Journal or Sustainable Development in Africa, 8 – 21.

290

Okere B O, ‘The protection of Human Rights in Africa and the African Charter on Human Rights and

Peoples’ Rights: A comparative Analysis with the European and American Systems (1984) 6 Human

Rights Quarterly 141-159

Okpukpara B.C, and Odurukwe N ‘Incidence and determinants of child labour in Nigeria:

Implications for poverty alleviation (AERC Research Paper 156, African Economic Research

Consortium, Nairobi, 2006)

Olowu D, International Law: A Textbook for the South Pacific (CDPublishing.org, 2010)

Omiyinka F.O, ‘Social networks and livelihood of street children in Ibadan, Nigeria’ (2009)

1(5) International Journal of Sociology and Anthropology, 82- 89.

Omoregie E.B, Implementation of Treaties in Nigeria: Constitutional Provisions, Federalism

Imperative and the Subsidiarity Principle, (Extract of proceedings of the 2nd International

Conference on Public Policy (ICPP, 2015), 1-4 July 2015, Milan, Italy)

Pais M.S, ‘The Protection of Children from Sexual Exploitation Optional Protocol to the

Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child

Pornography’ (2010) 18 The International Journal of Children’s Rights, 551 – 566.

Peters A, ‘Corruption and Human Rights’ (Basel Institute on Governance, Working paper series

No. 20) 12.

Pujol J et al, ‘When Does Human Brain Development End? Evidence of Corpus Callosum

Growth up to Adulthood’ (1993) 34 Annals of neurology 71-75;

Qerimi Q, Development in International Law: A Policy-Oriented Inquiry (Martinus Nijhoff

Publishers, 2012)

Rodham H, ‘Children under the law’, (1973) 43(4), Harvard Educational Review, 487-514

291

Rodney W, How Europe Underdeveloped Africa (Howard University Press, Washington, D.C.,

1982)

Ronnback K, Labour and Living Standards in Pre-Colonial West Africa: The Case of the Gold

Coast (Routledge, 2016)

Ronnback K, Labour and Living Standards in Pre-Colonial West Africa: The Case of the Gold

Coast (Routledge, 2016);

Rothwell D et al, International law: Cases and materials with Australian perspectives

(Cambridge University Press, 2014).

Salaam-Blyther T, Hanrahan C and Cook N, Child Labor in West African Cocoa Production:

Issues and U.S. Policy (CRS Report for Congress - Congressional Research Service, 2005)

Salomon M E, Tostensen A and Vandenhole W, Casting the Net Wider: Human Rights,

Development and New Duty-Bearers, (Intersentia Antwerp – Oxford, 2007)

Salomon M.E, Global Responsibility for Human Rights: World Poverty and the Development of International Law, (Oxford University Press, 2007)

Samida D, ‘Protecting the Innocent or Protecting Special Interests? Child Labor, Globalization, and the WTO’ (2005) 33 Denver Journal of International Law and Policy,

Sandoz Y, Swinarski C and Zimmerman B, Commentary on the Additional Protocols of 8 June

1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff 1987)

Scarpa S, ‘Child Trafficking: International Instruments to Protect the Most Vulnerable

Victims’, (2006) 44(3), Family Court Review, 429 – 447.

Schabas W, An Introduction to the International Criminal Court (Cambridge, 3rd ed, 2007).

292

SDG Index and Dashboards Report 2018, Nigeria Overall Performance (Sustainable

Development Solutions Network, Bertelsmann Stiftung, 2018).

Shehu A, Kangiwa I.M and Umar N.S ‘The effect of Household Poverty on Child Labour in

Nigeria’ (2015) 6(7) Journal of Economics and Sustainable Development, 59-65

Silk J.J and Makonnen M ‘Ending Child Labor: A Role for International Human Rights Law’

(2003) 22 Saint Louis University Public Law Review.

Skinner C, ‘Street Trade in Africa: A Review (Working Paper No. 51, April 2008) 1-37.

Smith S.A, Atiyah’s Introduction to the Law of Contract, (6th edn, Clarendon Press, Oxford

2005)

Smolin D.M, ‘Strategic Choices in the International Campaign against Child Labor’ (2000) 22

Human Rights Quarterly.

Stone L, The Family, Sex and Marriage in England 1500 – 1800 (London, Penguin).

Tade O and Aderinto A.A, ‘Factors influencing the demand for domestic servants in Oyo, state,

Nigeria’ (2012) International Journal of Child, Youth and Family Studies, 4(1), 521-545;

Taiwo F.J, ‘Transforming the Almajiri Education for the Benefit of the Nigerian Society’

(2013) 3(9) Journal of Educational and Social Research, 67 – 72.

Tamanaha B.Z, ‘Understanding Legal Pluralism: Past to Present, Local to Global’, (2008) 30

Sydney Law Review, 375 – 411.

Tambo I.G, Child Domestic Work in Nigeria: Conditions of Socialisation and Measures of

Intervention (Waxmann Munster/New York, 2014) 137.

293

The World Bank Group, Poverty and Shared Prosperity 2016: Taking on Inequality (The World

Bank, Washington, DC, 2016) 35.

Tjale A and De Villiers L, Cultural Issues in Health and Health Care: A Resource Book for

South Africa (Juta, 2004).

Togunde D & Carter A, ‘Socioeconomic Causes of Child Labour in Urban Nigeria’, (2006)

12(1) Journal of Children & Poverty, 73-89

Townsend P, The International Analysis of Poverty (Hemel Hempstead: Harvester-Wheatsheaf,

1992)

Ugwu O. L, ‘The Impact and Consequences of Corruption on the Nigerian Society and

Economy’, (2015) 4(1), International Journal of Arts and Humanities, 177-190.

Uzoma R.C, ‘Religious Pluralism, Cultural Differences and Social Stability in Nigeria’, (2004)

Brigham Young University Law Review, 651 -664

Van Bueren G, The International Law on the Rights of the Child, (Martinus Nijhoff, 1998)

Vandenhole W et al, Routledge International Handbook of Children’s Rights Studies

(Routledge 2015)

Vandenhole W, ‘Economic, Social and Cultural Rights in the CRC: Is There a Legal Obligation to Cooperate Internationally for Development?’ (2009) 17 International Journal of Children’s

Rights, 23-63

Wabwile M, ‘Re-Examining States' External Obligations to Implement Economic and Social

Rights of Children’ (2009) 22, Canadian Journal of Law and Jurisprudence, 407-449

294

Wallerstein I, ‘The Three Stages of African Involvement in the World Economy’, in P Gutkind and I Wallerstein (eds), The Political Economy of Contemporary Africa (Beverly Hills: Sage

Publications, 1976)

Weston B.H (ed) Child Labor and Human Rights: Making Children Matter (Lynne Rienner

Publishers, 2005)

White L.A, The Evolution of Culture: The Development of Civilization to the Fall of Rome,

(Routledge, 2016)

Wu M, ‘Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging

Public Morals Clause Doctrine’ (2008) 33(1) Yale Journal of International Law 215-251

Yuvaraj J, ‘When Does a Child ‘Participate Actively in Hostilities’ under the Rome Statute?

Protecting Children from Use in Hostilities after Lubanga’ (2016) 32(83) Utrecht Journal of

International and European Law, 69-93

Zampetti A B, Fairness in the World Economy: US Perspectives on International Trade

Relations (Edward Elgar, 2006)

REPORTS

ECPAT, Report on the Implementation of the Agenda for Action against Commercial Sexual

Exploitation of Children (2001–2002),

ILO, An Overview of Child Labour in Agriculture (ILO IPEC, World Day Against Child

Labour, 2007).

ILO, Child Labour: Targeting the intolerable (ILO Geneva, 1996), 14 – 17.

295

ILO, Stopping Forced Labour: Global Report under the Follow-up to the ILO Declaration on

Fundamental Principles and Rights at Work, (2001), 16 – 18.

ILO, The end of child labour: Within reach, Global Report under the follow-up to the ILO

Declaration on Fundamental Principles and Rights at Work, (2006).

ILO, The Twin Challenges of Child Labour and Educational Marginalisation in the Ecowas

Region: An Overview (Pre-publication release, July 2014, Understanding Children’s Work)

ILO/IPEC, Ending Child labour in domestic work and protecting young workers from abusive working conditions (ILO, 2013).

National Bureau of Statistics, Nigeria Poverty Profile 2010, (NBS, 2012) 13.

National Population Commission (NPC) [Nigeria] and ICF Macro (2009) Nigeria Demographic and Health Survey 2008. Abuja, Nigeria: National Population Commission and ICF Macro 95.

National Population Commission (NPC) [Nigeria] and ICF Macro. 2009. Nigeria Demographic and Health Survey 2008. Abuja, Nigeria: National Population Commission and ICF Macro 4.

OXFAM International Inequality in Nigeria: Exploring the Drivers (OXFAM, 2017)

UN, Report of the Secretary-General, ‘Progress towards the Sustainable Development Goals’,

E/2017/66, dated 11 May 2017

UN, Resolution adopted by the General Assembly on 25 September 2015, entitled:

‘Transforming our world: the 2030 Agenda for Sustainable Development’, A/RES/70/1, dated

21 October 2015

UNDP, Human Development Report 2016: Human Development for Everyone (The United

Nations Development Programme, 2016)

296

UNICEF Child Domestic Work, (Innocenti Digest, 1999)

United States, 2013 Findings on the Worst Forms of Child Labour, Nigeria: Moderate

Advancement (United States Department of Labour’s Bureau of International Labour Affairs,

2013)

GENERAL COMMENTS/CONCLUDING OBSERVATIONS

Concluding Recommendation of the African Committee of Expert on the Rights and Welfare of the Child on Nigeria, issued during its 12th session

General Recommendation on Children in Armed Conflict of 1998. (Report on the Nineteenth

Session, Recommendation Adopted by the Committee on the Rights of the Child: Children in

Armed Conflict (CRC/C/80) 1998, 4)

UN Committee on Economic, Social and Cultural Rights, Statement adopted by the Committee on Economic, Social and Cultural Rights on 4 May 2001, E/C.12/2001/10

UN Committee on the Rights of the Child (CRC), General comment No. 10 (2007): Children's

Rights in Juvenile Justice, 25 April 2007, CRC/C/GC/10

UN Committee on the Rights of the Child (CRC), General comment no. 5 (2003): General

Measures of implementation of the Convention on the Rights of the Child, 27 November 2003,

CRC/GC/2003/5

UN Committee on the Rights of the Child (CRC), General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29

May 2013, CRC /C/GC/14

297

UN Committee on the Rights of the Child (CRC), General comment no. 19 (2016): Public

Budgeting for the Realization of Children’s Rights (art. 4) 20 July 2016, CRC/C/GC/19

UN Committee on the Rights of the Child, CRC/C/NGA/CO/3-4, 21 June 2010

UN Human Rights Committee (HRC), CCPR General Comment No. 17: Article 24 (Rights of the Child), 7 April 1989

UN Human Rights Committee (HRC), CCPR General Comment No. 28: Article 3 (The

Equality of Rights between Men and Women), 29 March 2000, CCPR/C/21/Rev.1/Add.10

WEB SOURCES

Ajaja O, ‘Revisiting the Child Rights Act’, available at: http://punchng.com/revisiting-child- rights-act/ published online 16/4/2016

Cocks T & Brock J, ‘The extraordinary story of Nigeria’s $20 billion oil money leakage’ available at: http://uk.businessinsider.com/r-special-report-anatomy-of-nigerias-20-billion- leak-2015-2?r=US&IR=T

Grundiza S & Vilaplana C.L, ‘Intergenerational transmission of disadvantage statistics: Is the likelihood of poverty inherited?’ available at: http://ec.europa.eu/eurostat/statistics- explained/index.php/Intergenerational_transmission_of_disadvantage_statistics http://europa.eu/rapid/press-release_IP-07-844_en.htm http://europa.eu/rapid/press-release_IP-96-1190_en.htm http://europa.eu/rapid/press-release_MEMO-18-350_en.htm

298

https://www.pwc.com/ng/en/press-room/impact-of-corruption-on-nigeria-s-economy.html http://trade.ec.europa.eu/doclib/docs/2012/december/tradoc_150164.pdf http://trade.ec.europa.eu/doclib/docs/2012/november/tradoc_150043.pdf

http://trade.ec.europa.eu/doclib/press/index.cfm?id=515 http://www.unicef.org/infobycountry/nigeria_statistics.html http://www.worldometers.info/world-population/nigeria-population/ https://agoa.info/about-agoa.html https://ustr.gov/sites/default/files/gsp/Beneficiary%20countries%20March%202018.pdf https://www.dol.gov/sites/default/files/documents/ilab/ListofGoods.pdf https://www.ilo.org/global/topics/dw4sd/themes/child-labour/lang--en/index.htm https://www.nigerianbulletin.com/threads/list-of-nigerian-states-that-are-yet-to-domesticate- child-rights-act-of-2003.172268/

ILO, ‘Causes of Child Labour’, available at: http://www.ilo.org/moscow/areas-of-work/child- labour/WCMS_248984/lang--en/index.htm

Oduah C, ‘Activists seek end to child begging “culture” in Nigeria’, available at: http://www.voanews.com/a/child-begging-culture-nigeria-activists/3485356.html

Schiraldi V and Western B, ‘Why 21 year-old offenders should be tried in family court’,

(published online 2 October 2015) Source: https://www.washingtonpost.com/opinions/time-to- raise-the-juvenile-age-limit/2015/10/02/948e317c-6862-11e5-9ef3-fde182507eac_story.html

299

The Punch Newspaper, ‘Nigeria deploys social welfare scheme to help the poor’, 26 January

2017, available at http://punchng.com/nigeria-deploys-social-welfare-scheme-help-poor/

Tran M, ‘Former Nigeria state governor James Ibori receives 13-year sentence’, available at: https://www.theguardian.com/global-development/2012/apr/17/nigeria-governor-james-ibori- sentenced

Transparency International, ‘How to stop corruption: 5 Key Ingredients’ https://www.transparency.org/news/feature/how_to_stop_corruption_5_key_ingredients

Transparency International, ‘What is Corruption’ available at https://www.transparency.org/what-is-corruption#define

Umukoro A, ‘A day in the Lies of Kid Scavengers’, available at http://www.cracong.org/a-day- in-the-lives-of-kid-scavengers/

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