THE RIGHT OF THE CHILD TO RELIGIOUS FREEDOM AND EDUCATION: TWO

CONSTITUTIONAL GUARANTEES AT ODD IN A SECULAR STATE

BY
BARRISTER MURITALA O. ABDULRASHEED

1.1

Introduction

The rights of the Nigerian child to religious and education are contained in various municipal
laws and international instruments. These principles recognise the basic concept that the child is
the foundation of the society and he or she assures its continuity. Accordingly, the survival and
continuity of the human society depends upon the protection, preservation, nurture and
development of the child.
However, it is necessary to define our keywords in this topic before discussing these rights in
some details.
The word Right is derived from the Latin word rectus which means correct, straight, right as
opposed to wrong. It may also mean in accord with law, morality and justice. As a norm, it may
mean that to which a person has just and valid claim, whether it be land, or privilege of doing
something or saying something such as the right of free speech.
A right in its general sense is either the liberty (protected by law) of acting or abstaining from
acting in a certain manner, or the power (enforced by law) of compelling a specific person to do
or abstain from doing a particular thing. Thus, every right involves a person invested with the
right, or the person entitled, a person or persons on whom that right imposes a correlative duty or
obligation; an act of forbearance which is the subject matter of right and in some cases an object,
that is, a person or thing to which the right has reference, as in the case of ownership. A right

therefore in general, is a well-founded claim; and when a given claim is recognised by the civil
law, it becomes an acknowledged claim or legal right enforceable by the power of the State.1
There is no universally accepted legal definition of a child and the word child may depend on the
context in which it appears2. Under the common law and status it means One who has not
attained the age of fourteen years in a child.
The Child Right's Act 2003, passed into law in the Federal Capital Territory (Abuja), defines a
child as a person who has not attained the age of eighteen years. However, according to Section 2
of Children and Young Persons Act (CYPA), enacted in Eastern, Western and Northern regions
(hereafter referred to as CYPA, defined a child to mean a person under the age of fourteen
years, while young person mean a person who has attained the age of fourteen years and is
under the age of seventeen years.
Furthermore, the Immigration Act stipulates that any person below 16 years is a minor, whereas
the Matrimonial Causes Act puts the age of maturity at 21 3. The latter act becomes irrelevant in
practice, since the individual states state their own age for marriage. 4 As for penal responsibility,
Section 50 of the Penal Code (North) states: No act is an offence which is done by a child under
seven years of age; or by a child above seven years of age but under twelve years of age who has

1 The Hon. Justice C.A. Oputa J.S.C. (retired) Human Rights in the Political and Legal Culture of
Nigeria Second Justice Idigbe Memorial Lecture, Uniben, 1986.

2 Re Carlton (1945) Ch 372

3 But it allows persons below this age to be married with the consent of the parents.
4 Innocent Chukwuma, Eric Sottas, Rights of the Child in Nigeria, Report on the implementation of
the Convention on the Rights of the Child by Nigeria, A report prepared for the Committee on the
Rights of the Child, 38th Session Geneva, January 2005 http://www.omct.org accessed 16th August
2016.

not attained sufficient maturity of understanding to judge the nature and consequence of such
act.
These are only some examples of different ages enshrined in a multitude of legal texts and in
customary law all over the country. The official report admits that laws affecting children
continue to be scattered in different legislations5 and explains that the perception of Age as a
definition of a Child depends on who is defining It varies depending on cultural background. 6
The report does also provide for a list of 6 pages of length 7 with different definitions of a
child - depending on the purpose, gender, as well as the region of the country. It does, however,
fail to present any serious suggestion on how this confusing situation could be changed and a
universal definition of a child, valid for boys and girls, effectively implemented.
However, for the purpose of our present discussion it is safe to adopt the definition of the Child
Right's Act 2003 provides a child to means every human being below the age of 18 years.
1.2Legal Framework of Right to Religion Freedom and Education
a.

Right to Religion Freedom

Nigerias constitution guarantees religious freedom, including the right to change ones:
Every person shall be entitled to freedom of thought, conscience and
religion, including freedom to change his religion or belief, and
freedom (either alone or in community with others, and in public or
in private) to manifest and propagate his religion or belief in
worship, teaching, practice and observance. - Constitution of the
Federal Republic of Nigeria.8
5 Ibid, p. 25
6 Ibid
7 Ibid, pp. 25 31. According to the actual legislations, the age for being a child ranges from 7 to 21
years.

8 Section 38 of 1999 Constitution of Federal Republic of Nigeria as Amended

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Encyclopedia Britannica simply defines religion as human beings relation to that which they
regard as holy, sacred, spiritual, or divine9 while the American Heritage Dictionary defines
religion as belief in and reverence for a supernatural power recognized as the creator and
governor of the universe; a particular integrated system of this expression; the spiritual or
emotional attitude of one who recognizes the existence of a superhuman power or powers. 10
The Penguin Dictionary of Religions defines it as a general term used to designate all
concepts concerning the belief in god(s) and goddess(es) as well as other spiritual beings or
transcendental ultimate concerns.11
The right to freedom of religion as entrenched under section 38 of 1999 Constitution of Federal
Republic of Nigeria as Amended can be expressed through the following rights:

Right to thought, conscience or belief;

Right to have a religion or whatever belief of your choice;

Right either individually or in community with others, in private or public, to manifest

a religion or belief through worship, observance, practice and teaching;

Right not to suffer coercion that impairs the freedom to choose a religion or belief;

Right of the State to limit the manifestation of a religion or belief if based in law, and
only as necessary to protect public safety, order, health, morals and the fundamental
rights and freedoms of others.

9 Microsoft Encarta 2009. 1993-2008 Microsoft Corporation. All rights reserved.

10 https://ahdictionary.com/ accessed on 16 August 2016
11 The Penguin Dictionary of Religions Paperback, Second Edition, 800 pages, Published December 1st
1997 by Penguin Books (first published January 1st 1995)

Right to worship and assemble, and to establish and maintain places of worship;

Right to establish and maintain appropriate charitable or humanitarian institutions;

Right to make, acquire and use materials related to rites and customs;

Right to write, issue and disseminate relevant publications in these areas;

Right to teach a religion or belief in places suitable for these purposes;

Right to solicit and receive voluntary financial and other contributions;

Right to train, appoint, elect or designate appropriate leaders;

Right to observe days of rest and celebrate holidays and ceremonies;

Right to establish and maintain communication with individuals and communities at

national and international levels.

Various international conventions have provisions protecting these rights. The United Nations
recognized the importance of freedom of religion or belief as a human right in the 1948
Universal Declaration of Human Rights as a common standard of achievement for all peoples
and all nations. Article 18 of the Declaration states that:
Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in community with others
and in public or private, to manifest his religion or belief in teaching, practice, worship and
observance.
The freedom of religion and belief is also recognised in the International Covenant on Civil and
Political Rights, which was adopted by the United Nations in 1966. Article 18 of the Covenant
states that:

Everyone shall have the right to freedom of thought, conscience and religion. This
right shall include freedom to have or to adopt a religion or belief of his choice, and
freedom, either individually or in community with others and in public or private, to
manifest his religion or belief in worship, observance, practice and teaching.

No one shall be subject to coercion which would impair his freedom to have or to
adopt a religion or belief of his choice.

Freedom to manifest ones religion or beliefs may be subject only to such limitations
as are prescribed by law and are necessary to protect public safety, order, health or
morals or the fundamental rights and freedoms of others.

The States Parties to the present Covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians to ensure the religious and moral
education of their children in conformity with their own convictions.

The 1981 UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination
Based on Religion or Belief contains eight articles; three articles (1, 5, and 6) define specific
rights while the remaining articles (2, 3, 4, 7 and 8) act in a supportive role by outlining
measures to promote tolerance or prevent discrimination. The eight articles constitute an overall
concept to advocate for tolerance and to prevent discrimination based on religion or belief. While
human rights are individual rights, the 1981 UN Declaration also identifies certain rights related
to states, religious institutions, parents, legal guardians, children, and groups of persons.
Religious freedom is a fundamental human right in most democracies with this right being
jealously guarded and protected. The right to religious freedom is indivisible and cannot be
claimed for one particular group at the exclusion of others.

Like other rights that are entrench in 1999 Constitution the right of freedom of thought,
conscience and religion is also recognized and this is also included in the Right of the Child Act,
2003 particularly section 7 of the Act which provide:
7.(1) Every child has the right to freedom of thought, conscience and religion.
(2) Parents and, where applicable, legal guardians shall provide guidance and direction in the
exercise of these rights having regard to the evolving capacities and best interest of the child.
(3) The duty of parents and, where applicable legal guardians to provide guidance and direction
in the enjoyment of the right in Subsection (1) of this section by their child or ward shall be
respected by all persons, bodies, institutions and authorities.
(4) Whenever the fostering, custody, guardianship or adoption of a child is in issue, the right of
the child to be brought up in and to practice his religions shall be a paramount consideration.
The implication of the provision is that every child have a right to choose religion of their choice
and the parents or guardians cannot stop them but only to guide them towards practice of religion
of their choice.
Recently the United Nations Special Rapporteur on freedom of religion or belief, Heiner
Bielefeldt, on called on all Governments represented at the UN General Assembly to respect
religious practices by children and their families and support families in fulfilling their role in
providing an enabling environment for the realisation of the rights of the child. He said, Every
individual child is a rights holder in his or her own capacity as recognised in Article 14 of the
Convention on the Rights of the Child, he recalled during the presentation of his special report
on the rights of the child and his or her parents in the area of freedom of religion or belief. 12

12 NEW YORK / GENEVA (23 October 2015)

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16647&LangID=E accessed on
16 August 2016

That violations of freedom of religion or belief often affect the rights of children and their
parents, he said. Children, typically girls, from religious minorities for example, are abducted
and forcibly converted to another religion through forced early marriage.13
The rights expert also urged religious communities across the world to ensure respect for the
freedom of religion or belief of children within their teaching and community practices, bearing
in mind the status of the child as a rights holder.14
Religious community leaders should support the elimination of harmful practices inflicted on
children, including by publicly challenging problematic religious justifications for such practices
whenever they occur, he said.
While in many situations of violations the rights of the child and the rights of his or her parents
may be affected in conjunction, it is not always the case, Mr. Bielefeldt noted. The interests of
parents and children are not necessarily identical, including in the area of freedom of religion or
belief.15
The expert highlighted that parents or legal guardians have the right and duty to direct the child
in the exercise of his or her freedom of religion or belief. Such direction should be given in a
manner consistent with the evolving capacities of the child in order to facilitate a more and more
active role of the child in exercising his or her freedom of religion or belief, thus paying respect
to the child as a rights holder from early on, he said.
Parents are also not obliged to provide a religiously neutral upbringing in the name of the
childs right to an open future, he added. The rights of parents to freedom of religion or belief
13 Ibid
14 Ibid
15 Ibid
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include their rights to educate their children according to their own conviction and to introduce
their children to religious initiation rites.16
In his report, the Special Rapporteur discusses issues related to religious socialization; religious
instruction within the family; participation in religious community life; religious education in
schools; the voluntary display of religious symbols in schools; respect for the evolving capacities
of the maturing child; and non-discrimination on the basis of religion or belief.17
a.Right to Education
Education is the process of facilitating learning, knowledge, skills, values, belief and habits of a
group of people are transferred to other people through storytelling, discussion, teaching, training
or research. Education frequently takes place under the guidance of educators but learners may
also educate themselves in a process called autodidatic learning.
A right to education has been recognised by some government, at the global level, Article 13 of
the United Nation 1966 International Covenant on Economic, Social and Cultural Right
recognises the right of everyone to an education. For centuries, universities and other institutions
of higher learning had been places where many of the rich and powerful acquired knowledge as a
matter of course while the small number of bright but poor or disadvantaged who could find their
way there did it with considerable effort. That privilege was challenged in 1948 where the right
to education was affirmed in Article 26 of The Universal Declaration Of Human Right, which
further underlined that education is not only a human Right but also a pre-requisite for the
development of society and the individual.

16 Ibid
17 Ibid
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Yet, evidence has consistently shown that education remains a privilege rather than a right.
Universities with a commitment to equity and diversity are still grappling with issues such as
how to reconcile access and quality, and the impact on rankings; and in countries where higher
education is not free, how to impose fees without reducing participation and diversity.
Education does not only require to prepare students with skills and competencies for the work
place but also equip them with values, attitudes, knowledge and confidence to be global citizens.
i.

Education has a right means

The right to education is guaranteed legally for all without any discrimination
States have the obligation to protect, respect and fulfill the right to education
There are way to hold states accountable for violation or deprivation of the right to
education.

According to John Dewey, he said 'Education is not preparation for life; Education is life itself'
which simply means deprivation of right to education is deprivation of right to life which against
section 33 of the 1999 Nigeria Constitution.
The Nigeria Constitution section 18 sub-section 3 says Government shall strive to eradicate
illiteracy; and to this end government shall as and when practicable provide
(a) free, compulsory and universal primary education;
(b) free university education; and
(c) free adult literacy programme
But in Nigeria, Education that supposed to be free has become unaffordable for the poor people
and lucrative business for the rich and prominent people in our society.
ii.

Content of right to education

The right to education encompasses both entitlement and freedom, including:

Right to free and compulsory education

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Right to available and accessible secondary education (including technical and vocational

education and training), made progressively free

Right to equal access to higher education on the basis of capacity made progressively free
Right to fundamental education for those who haven't received or completed primary

education
Right to quality education both in public and private school
Freedom of parents to choose schools for their children which are in conformity with

their religious and moral convictions

Freedom of individuals and bodies to establish and direct education institutions in
conformity with minimum standard established by the state academic freedom of teachers
and students.

iii.

The importance of Education

Education is essential for everyone, it's the level of Education that helps people earn respect and
recognition. In my opinion, it's indispensable part of life both personally and socially. However,
the equal standard of Education is still a major problem that need to be solved and eradicated.
The importance of Education is undeniable for every single person, it goes beyond saying that
education has a positive effect on human life, all people need to study because the advent of
Education can make people gain knowledge and enlarge their view over the world.
Education plays such a rudimentary role in our society that we can't even imagine life without it.
It's determined element for the civilisation of human society and it also help us develop healthy
surrounding and generates an advance community. As a matter of fact, everything we create
today is based on the knowledge that we obtain throughout our life by ways of Education. The
more developed life becomes, the more necessary education is for everyone.
Conclusively, education is absolutely beneficial for society on the whole, it's a life-long process
to each person that need to be reinforced throughout life. However, we need education system

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that may eradicate illiteracy and may provide the common man an access not only to basic
education but also to higher and technical education.
iv.

Result of illiteracy

The result of illiteracy are many and harmful in several aspect. As well as affecting illiterate in
their daily lives and often jeopardizing their future, this scourge has a significant effect on
society both socially and economically.
v.

The result of illiteracy on individuals and society include the following;

For individual

Limited ability to obtain and understand essential information;

lower income;
Lower quality job;
Reduced access to lifelong learning and professional development;
Precarious financial position;
Low self-esteem which can leads to isolation;

For society

Since literacy is an essential tools for individuals and states to be competitive in the new
global knowledge economy, many position remains vacant for lack of personnel

adequately trained to hold them;

The higher the proportion of adult with low literacy proficiency is the slower the overall

longterm GDP rate is;

The difficult understanding societal issues lowers the level of community involvement
and civic participation.

Without the basic tools necessary for achieving their goals, individuals without an adequate level
of literacy cannot be involved fully and on a completely equal basis in political and social
discourse.
vi.

Education Right of the Child

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Every child has a right to be educated and such responsibility is on the parents and the society. A
child must not be made an idle or vagabond as a result of the parents poverty. A child should be
allowed to be educated as far as he could go. A child who is educated would be less burden-some
on the parents and the society when he becomes an adult. Instead he would strive hard to pay
back if not all, at least part of what the parents and society spent on him when he was a child.
Usually a child pays more than what was spent on him. An educated child brings pride and glory
to the family. Moreover it is easier to lead an educated society than one infested with illiteracy.
The Nigerian motion is an example of the latter. This issue would have been frontally addressed
if the provisions of Section 18 of the 1999 Constitution are justiciable18 as earlier stated .
1.3Observance of the Rights
In a typical Africa society of which Nigeria was one, it is customary to all tribal settings that the
rights of a child did not enjoy a universal set of recognition. Each society or village evolved its
own rules in that regard19. Most children were made to suffer many forms of human degradation.
Also it is commonly believed that a parent could allow his child to enjoy certain rights and may
decide to withhold others. Even these rights that we enjoyed by children were determined by the
usefulness of the child to both or either parents at the farm or roadside market. Utility was the
scale of measurement.
According to the Child's Right Act, government at all levels must strive to implement the Act.
Non-governmental organizations should be encouraged to render services and assistance to
children and their family, and to provide policy framework that will ensure the right of the child.

18 Op cit.
19 While most of these African traditional societies accorded some rights to the child, the content,
extent and quality of the rights revolved around the perception of the elders.

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Furthermore, government in order to carry out its task effectively, the Act established Child's
Right Implementation Committees at national, state and the local government levels. It is the
duty of each of the committees at all levels to ensure the observance of the right and welfare of
children, to continually keep under review the state of implementation of the rights of the child,
to develop, and recommend appropriate government specific programmes, and projects that will
enhance the implementation of the right and welfare of the child, to collect, and document
information on all matters relating to the right and welfare of the child, to commission interdisciplinary assessment of the problems relating to the right and welfare of the child, to organize
advocacy activities on the rights and welfare of the child, to coordinate activities of various level
of government relating to the rights and welfare of the child, to prepare and submit periodic
reports on the right and welfare of the child to government, the United Nation and the African
Union. And to perform such other functions relating to the right of the child as may be assigned
to it from time to time.
The committee membership consists of various government ministries, department and
parastetals, non-governmental organizations, academia, children, child experts, United Nation
agencies and the media. The underlining question here is, to what extent have this
implementation committee gone in carrying out their responsibilities?
1.4Recommendation and Conclusion
Bringing child's right awareness to the grassroots requires that all members of the society be
involved and committed-International donors, government, civil societies, the media, and the
private sector, to take responsibility for the protection and enforcement of the Constitutional
Right of the Child. The principles of the right of the child must be more consistently integrated in
the development strategies.

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In lieu of this, we for every individuals to be free from deprivation of education right bondage by
our leaders, we all have function to perform which are;

Raise awareness on the right to education. If individuals knows their rights, they are

empowered to claim them;

Monitor the implementation of the right to education and report regularly on deprivation

and violations.
Advocate and campaign for the full implementation of the right to education, holding the

state accountable;
Seek remedies when there are violation of the right to education.

However, the Nigerian child is entitled to all the entrenched rights guaranteed in Chapter IV of
the 1999 Constitution no just to the religious freedom and education. It is hoped that no matter
how long the rule of law will hold sway in our policy in the not too distant future. In this age and
time when the other parts of the world are marching unhesitatingly into the next development in
all spheres of human endeavour, Nigeria cannot but devote more time, energy and resources to
the qualitative survival of her children who undoubtedly will lead this country in the future. The
salvation of the nation lies in safeguarding the rights of all citizens but those of the child in
particular.

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