Religion is an inseparable human companion in the world today. The role it plays in the society can never be overemphasized. As such, children grow into these set of beliefs, most times, against their wishes.
As a child, you have little or no say in your own dealings. The level of attention, care and treatment a child gets are mostly dependent on the religious beliefs of the parents, guardian or those in loco parentis.
A religion therefore, is a group of beliefs and rituals. It consists of rules, stories and symbols which are adopted by the society, a group or a person.
Various Definition of a Child
A child according to Section 277 of the Child’s Rights Act, 2003 is defined as a person under the age of eighteen years.
Oxford Advanced Learner Dictionary (8thedn, Oxford University Press, 2007) p. 246 equally defined a child as a young person who is not yet an adult.
In further definition of a child, BA Garner, Black’s Law Dictionary (8thedn, USA: West Publishing Co, 2004) p. 254 said that a child is a person who is under the age of majority.
Child, as defined in Article 1 of the Convention on the Rights of the Child, includes ―every human being below the age of 18, unless under applicable law, majority is attained earlier.
Child protection is the term used by UNICEF to refer to protection of children from violence, exploitation and abuse through both prevention and response actions.
Children and Freedom of Religion
Legally speaking, children, like adults, have the freedom to choose and practice their religion, this right being protected by article 14 of the Convention on the Rights of the Child:
“States Parties shall respect the right of the child to freedom of thought, conscience and religion.”
Interestingly, this rhymes with Section 38 of the 1999 Constitution.
The African Charter on the Rights and Welfare of the Child of 1999 also defends religious freedom for children in Article 9.
Whereas the law permits children to have freedom of choosing which religious beliefs to follow, most times it is not always the case. As a child, decisions that affect the person’s wellbeing are largely those of the child’s parents. Unfortunately, some of these decisions may likely not be in the child’s best interest. Usually, all religious fundamentalism, be it Christian, Muslim, Jewish or others, endangers the children’s rights, especially those of girls. Certain religious interpretations linked to ancestral traditions can be the source of violence committed against children.
Evolution of Child Rights
The evolution of the child rights regime by the International community dates back to the 19th century as a result of the plight the children were faced with, during the world war. This evolution in child protection thinking has also led to an increasing emphasis on more holistic approaches to humanitarian interventions for children in situations of armed conflict. There is increasing recognition of the multi-dimensionality of the individual child and that his/her corresponding needs and rights are located in a variety of equally significant domains. This necessitates an integrated approach to protection, which entails collaboration across disciplines and innovative models of partnership.
Child Rights and Religion
It must be said that child protection actors are acknowledging that in order to protect children they need a better understanding of the values and norms of their operational contexts, and that religion plays an important role in defining and shaping those. Child protection work is grounded in and informed by values that are widely shared by most religious belief systems, though they have tended not to be expressed in religious language. It is important to identify these shared values and come to mutual understandings of their role in child protection and religious life, as well as to understand the distinctions between religious and cultural values, beliefs and norms, as these are often overlapping and intertwined in nuanced ways.
Child’s Rights Protection
A child, like an adult, is also inured with a good number of rights. Child’s rights protection goes a little further to protect the vulnerability of a child, largely because as a child, he/she lacks the mental capacity to make decisions. Where those decisions are to be made by an adult on behalf of a child, recourse must be had to a number of things, one of which is the best interest of the child. One of these numerous rights enjoyed by a child is the right to life. The right to live is a universally recognized right for all human beings. It is a fundamental right which governs all existing rights. In the absence of the right to life, all other fundamental rights have no reason to exist. For children, the right to life is the chance to be able to live and have the possibility to grow, to develop and become adults from birth, all children have the right to have their life protected. The right of a child to life against the right of his parents to veto such right in vindication of their religious conscience, the overriding consideration should be the best interest of the child.
Tega Esabuno’s Case
Where a child ought to be given opportunity to live but same is denied by one who is in the position to protect the child’s right, what will happen? It is against this backdrop that necessitated the intervention of various entities, including the government and the court to take issues of child’s rights protection serious. One of such instances where the Court has intervened to protect a child’s right to live is the recent decision of Tega Esabuno & Anor v. Dr. Tunde Faweya & Ors (2019) LPELR-46961(SC).
In this case, The 2nd Appellant (Mrs. Rita Esabunor) is the mother of the 1st Appellant, (Tega Esabunor, a minor, who however sued through his next friend, Mrs. Rita Esabunor). She gave birth to him on April 19, 1997 at the Chevron Clinic, Lekki Peninsula in Lagos. Within a month of his birth (i.e. on 11 May, 1997) he fell gravely ill and he was taken back to the Chevron Clinic for urgent treatment by his mother. The 1st Respondent (Dr. Tunde Faweya) who treated the 1st Appellant found that he urgently needed blood transfusion. The 2nd Appellant and her husband made it abundantly clear to the 1st Respondent that on no account should their child be given blood transfusion reason being that there were several hazards that follows blood transfusion such as contracting Aids, Hepatitis etc and that as members of the Jehovah witness sect, blood transfusion was forbidden by their Religion. The next day, the learned counsel for the Commissioner of Police, Lagos State, moved an Originating Motion Ex parte before the 5th Respondent (M. Olokoba, Chief Magistrate Grade 1, Lagos Magisterial District) which motion was brought under Section 27 (1) and (30) of the Children and Young Person’s Law Cap 25 of Lagos State. Granting the prayer sought, the Magistrates’ court ordered that: “The medical authorities of the Clinic of Chevron Nigeria Limited Lekki Peninsula Lagos are hereby authorised to do all and anything necessary for the protection of the life and health of the child, TEGA ESABUNOR. It is further ordered that the said medical authorities do revert to this Court to report their compliance with this order which shall forthwith be served on them.” On receipt of the Order of the Chief Magistrate, blood transfusion was administered on the 1st Appellant by the 1st Respondent on the same day. The 1st Appellant got well and was discharged. The 2nd Appellant filed an application on notice at the High Court wherein she sought for the setting aside of the order made which was dismissed. The Appellants’ were not satisfied with the Ruling of the High Court and filed an appeal at the Court of Appeal which affirmed the decision of the trial Court hence, their appeal to the Supreme Court. At the Supreme Court affirmed the decision of the Court of Appeal, thereby dismissing the Appellants’ appeal.
The gravamen of the Court’s decision in Tega Esabunor & Anor v. Dr. Tunde Faweya & Ors (Supra) was succinctly captured in the words of the eminent Jurist of the Supreme Court, Rhodes-Vivour, J.S.C to the effect that:
“All adults have that liberty of choice. This freedom has been exercised in accordance with the rule of law. All adults have the inalienable right to make any choice they may decide to make and to assume the consequences. When it involves a child different considerations apply and this is so because a child is incapable of making decisions for himself and the law is duty bound to protect such a person from abuse of his rights as he may grow up and disregard those religious beliefs. It makes no difference if the decision to deny him blood transfusion is made by his parents. When a competent parent or one in loco parentis refuses blood transfusion or medical treatment for her child on religious grounds, the Court should step in, consider the baby’s welfare, i.e. saving the life and the best interest of the child, before a decision is taken. These considerations outweigh religious beliefs of the Jehovah Witness Sect.”
Effect of Tega Esabunor’s Case
Another striking point evident in the decision under discuss is the fact that it has revalidated various statutory and legislative enactments, inclusive of international instruments geared towards child protection.
For instance, the Child’s Right Act, is replete with judicial powers to ascertain the survival and total well-being of the child. Section 13 of the Act provides particularly for the right to health and health Services of the child.
Section 13(2) of the Act specifically provides that:
“Every Government, parent, guardian, institution, service, agency, organization or body responsible for the care of a child shall endeavor to provide for the child the best attainable state of health:”
Section 59(a) provides that:
“Where it appears to the Court in proceedings in which a question arises as to the welfare of a child, that it may be appropriate for a care supervision order to be made with respect to that child, the Court may direct the appropriate authority to undertake an investigation of the child’s circumstances.”
Children generally have fewer rights than adults and are classed as not able to make serious decisions, and legally must always be under the care of a responsible adult. Children are the assurance of the continuity of the human society. Without children today there will be no society of humans’ tomorrow. Yet they are the most vulnerable members of the society. They lack the physical, emotional and mental maturity required to face life. They, therefore, require special safeguards, care and protection. In addition, children are unique by their nature and their needs and as such the normal rights guaranteed adults are not adequate to cater for the special needs of children. Again, the kind of leaders we will have tomorrow depends on the kind of children we have today. Abused, maltreated and neglected children become stunted emotionally and physically, and lack the confidence to face life. They are therefore deprived of the opportunity to develop their full potentials. These and many more were the core principles which the Court by this decision sorts to establish.
The above decision is timely and a welcome development. It is indeed not expected to derogate from global standard on appropriate measures to handle children related issues. We must also bear in mind that since the ratification of the CRC, the AU Charter on the Rights and Welfare of the Child and other relevant international instruments, Nigeria has instituted various legislative and institutional measures aimed at addressing various forms of violence against children. These enacted legislations include The Child’s Rights Act (CRA) 2003 and Trafficking in Persons (Prohibition) Law, Enforcement and Administration Act 2003.
Institutions Protecting Child’s Rights
The Government of Nigeria has also evolved some institutions charged with child protection issues and protection against violence. Among Them are: National and State Child Right Implementation Committees; Child Development Departments in the Federal and State Ministries of Women Affairs; National Council of Child Rights Advocates of Nigeria (NACCRAN) as the umbrella NGO involved in Child Rights advocacy; Nigerian Children’s Parliament and the National Agency for the Prohibition of Trafficking in Persons.
In conclusion therefore, it is our conviction that if this decision and all other regulations pertaining thereto can be replicated in all the States of the federation it will nip in the bud various injustices and child abuse pervading some parts of the country.
GABRIEL CHIKWADO EZE, ESQ.