Realizing the Right to Education in Africa: Nigerian Law and Practice
This work lends scholarly voice to the call for the attainment of rights to education in Nigeria. It emphasizes the importance of education and acknowledges steps taken by Nigeria in its realization. It examines the practical implication of these steps, in the light of legislations and practices, making special case for children with disabilities and those in rural areas. While noting challenges, it proffers solution by way of useful steps for stakeholders. It concludes that despite financial implications in the face of dwindling resources, education is the veritable tool for transformation, thus a worthy investment.
Education is the best vaccine against ignorance and necessary for the overall wellbeing of humans. It is to the mind, what food is to the body. It is so important that it is recognized as a human right in article 26 of the Universal Declaration of Human Rights (UDHR), the foremost human rights instrument in the world. Due to its unenforceability, subsequent enforceable treaties recognized the right to education. These include, the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of all Forms of Racial Discrimination (CERD), the International Convention on Elimination of all forms of Discrimination Against Women (CEDAW), Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (African Women’s Protocol), the African Charter on Human and Peoples’ Rights (African Charter). Of particular importance, because they are children-related, are the Convention on the Rights of the Child (CRC), and the African Charter on the Rights and Welfare of the Child (African Children’s Charter). Nigeria, alongside other nations signed and ratified these treaties.
2.0 Legal framework
Nigeria’s Constitution recognizes right to education in Section 18 (chapter II). Unfortunately, Section 6(6)©, makes this chapter, non justiceable. A Nigerian high court summarized the position when it held that the provisions of chapter II of the Constitution are not obligatory on the government but discretionary. This has been condemned as removing with the left hand, a gift given with the right hand. It is here submitted that such discretions breed irresponsibility and corruption for politicians who will find reasons for non discharge of their duties.
However, Nigeria took a positive step in domesticating the CRC and the African Children’s Charter by enacting Child’s Right Act (CRA) in 2003. This was followed by the enactment of the Compulsory, Free Universal Basic Education Act of 2004 (UBEA).
Section 15 of CRA provides (1) ‘Every child has the right to free, compulsory and universal basic education and it shall be the duty of the Government in Nigeria to provide such education.’ 15(5) allows female children who become pregnant to continue after delivery. 15(6) penalizes parents and guardians for failure to ensure their children/ward’s completion of junior secondary education with a maximum fine of five thousand Naira or two months imprisonment or both, on subsequent convictions. This is in pari material with sections 2, 3(2) and 4 of the UBEA. Section 15(7) of CRA makes the provisions inapplicable to children with mental disabilities’. Basic education, according to CRA is primary up to Junior Secondary Education while in UBEA, it is childhood care and education and nine years of formal schooling.
The above specific provisions seem to clear every doubt about the intentions of the government as it concerns education of Nigerian children, especially with its explicit duties.
Free education presupposes that education at this level should be totally free with no hidden costs whatsoever. In fact, section 3(2) of UBEA penalizes receipt of fee for services in ‘public schools’ with ten thousand naira fine or three months imprisonment or both. These services are books, instructional materials, classrooms, furniture and free lunch. In reality, despite these provisions, pupils are asked to provide toilet tissues, brooms, and disinfectants etc. the situation is worsened by collection of indirect fees in various forms like development levy, registration fees, infrastructural maintenance levy, exam fees etc. Even where a modicum of free education is in place, it is haphazardly done, at the pleasure of the governor. It is also discriminatorily done in that it applies only to indigenes of the state while non indigenes are made to pay exorbitant fees. This practice obviously violates section 42 of the Constitution that provides for right to non discrimination of all Nigerian citizens. It further makes nonsense of the motto of the constitution as provided in section 15. The result is that education is unaffordable for parents, making the claim of free basic education false.
In the face of expensive education, parents may be forced to choose which child to send to school. When this happens, the traditional myth of son preference disfavors the girl-child.
The Universal Basic Education Commission (UBEC) by section 9(c) of the UBEA is tasked with the function of ‘prescribing minimum standards for basic education …and ensuring effective monitoring of the standards…instructional manuals, personnel audit of teaching and non teaching staff as well as sensitization of general public’. Carrying on this function will eradicate different standards in basic education with the high cost private schools having higher standard than public schools and low cost private schools.
It is here submitted that in view of the above provision, private/public dichotomy at this level is an aberration as the government ought to be solely responsible for providing basic education. The fact that our leaders, who ought to implement these laws, own these astronomical-fees-paying private schools with higher standards, derides the provisions of these Laws.
Children hawking, begging and generally being off school during school hours are common yet, basic education is said to be compulsory. More so, cultural and religious beliefs in some parts, compel girls to marry at less than 18 years before attaining ‘fullage’ by section 29 of the Constitution. Again, many schools lack sanitary facilities making it impossible for girls to attend schools especially during menstruation. In rural and water logged areas, schools are nonexistent with the few ones lacking water, electricity, toilet and other necessary facilities. As a result, teachers refuse posting to them meaning disproportionate teacher: pupil ratio. Also schools in rural areas are far from homes exposing pupils who are forced to walk long distances to the threat of kidnap and other security challenges. The environment in rural areas affects the standard of education there. The persistence of this situation over time appears as if government is punishing these children for their parents’ offence of being poor and residing in rural areas.
Further, children with disabilities are yet to be taken into consideration necessitating holistic inclusive education. A World Bank report reveals that less than 3% of children with disabilities receive formal education in places like Nigeria. Inclusive education will mean making learning aids available and infrastructures accessible in existing schools rather than designing few and far-to-reach ‘special schools’ for them. This has financial implication but if these children are seen as Nigerian children, then educational system should provide for their needs.
While parents have their faults in some of these, it is here maintained, that it behooves on the government to enforce compulsoriness by removing impediments and penalizing defaulting parents. Some opine that compulsoriness is not implemented because it leaves children and youths as political tools for execution of dastardly acts during elections.
There are many things affecting the realization of this right. The first thing is that the 4th schedule of the Constitution tasks Local Government Council with the function of providing and maintaining primary, adult and vocational education while section 1 of the UBEA limits federal Government’s intervention to assistance to the States and Local Governments for the purpose of uniform and qualitative basic education. This is giving the tier of government with the least resource, a herculean task of providing a foundation upon which superstructure will be built. This will be impossible considering that children constitute 45% of Nigeria’s population. This will not only make standardization and monitoring difficult but foundation shaky.
Money is a major issue especially with the present recession. However, budgetary allocation to education has been consistently poor, from 11% in 2015, 8% in 2016 to less than 7% in 2017. This is not only inadequate but less than the UN benchmark of 26%. As if this is not bad enough, corruption and mismanagement of funds affects education. An example is an Independent Corrupt Practices and Other Related Offences Commission (ICPC) report of misappropriation of UBEC fund. Government’s inaction in the face of this and similar reports questions its integrity in this area.
There seem to be a lack of understanding of the content of CRA and UBEA. This became evident when Nigerian government and UBEC argued in the case of SERAP V FRN & UBEC that right to education is non justiceable, years after the enactment of both CRA and UBEA. Disregarding the argument, ECOWAS court rightly held education, an enforceable human right in Nigeria.
Sequel to the foregoing, UBEC is predictably not seen to be discharging its functions of standardization, sensitization of general public, among others.
The stakeholders rather than demand accountability make excuses for government/UBEC, thus an educationist called for introduction of fees in Lagos state, arguing that it will make pupils and parents appreciate the value of education. This argument fails to appreciate the enormous responsibility the CRA and UBEA imposed on government/UBEC.
In the recent case of LEDAP V Federal Ministry Of Education and Anor, it was held that the enactment of the UBEA by the National Assembly has made the right to free and compulsory primary and free junior secondary education contained in chapter II an enforceable right. This judgment will be felt if the following are done:
Amendment of the constitution to make Federal Government responsible for basic education.
Increased budgetary allocation to education as well as plugging avenues of mismanagement of such funds. This will reduce the amount available for embezzlement by public officers.
Prosecution of public officers who embezzle public funds meant for education.
Government/UBEC needs to diligently perform its obligations under the CRA and UBEA.
Intermittent training of teachers and provision of necessary amenities to ensure good standard
Striking down customs, practices, myths that affect education of girls and children with disabilities
Civil societies must increase its advocacy to all education stakeholders and equip the general public with the tool to demand accountability from government/UBEC.
Considering, the importance of basic education, increased funding in this area is necessary.
Education is not only critical but provides an enabling environment for development. It follows that the money spent on basic education is sensible investment that will yield great returns. The non attainment of right to education further violates other rights guaranteed in the Nigerian Constitution and CRA like the rights to life, dignity, and non discrimination. It impedes the achievement of other rights provided for in the CRA like the right to health and right to survival and development. The overall effect is that it will defeat the primary purpose of government as stated in section 14 of the Constitution. Nigerian government should obey its own laws by performing obligations it imposed upon itself. In doing this, the ‘free, compulsory, universal, basic education’ mantra will become real to Nigerian children.
*LLB (OAU )LLM (Specializing in Sexual and Reproductive Rights) University of the Free State South Africa, NP, PNM, Managing Partner @ Okeke Uju Peace & Co and Executive Director @ Centre for Mmadu on Human Rights (C4M) firstname.lastname@example.org,email@example.com.
 Universal Declaration of Human Rights adopted and proclaimed by UN General Assembly Resolution 217A (III) (December 10, 1948) Article 25.
 Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, entry into force 2 September 1990.
 Adopted in Addis Ababa Ethiopia in July 1990 and entry into force November 1999.
Archbishop Olubunmi Okogie v Attorney General Of Lagos state (1981) 2NCLR 337.
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 Primary Schools In Rivers State Now Collecting Exams Fees http://www.nairaland.com/2971167
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 Nigeria needs inclusive education for children with disabilities http://authorityngr.com/2016/04/
 The situation https://www.unicef.org/nigeria/education.html
 Suit No:ECW/CCJ/APP/12/07; Judgment No: ECW/CCJ/JUD/07/10
 FHC Abuja per Tsoho .J. March 2017