EXPLAINER: What do Nigerian laws say about prosecution of underage children?

Photographs and video clips showing malnourished minors brought to face trial at the Federal High Court in Abuja on Friday sparked widespread reactions.

While taking their pleas in court, at least two minors and two others said to be of adult age slumped in the dock. The minors were part of over 100 persons arrested during the #EndBadGovernance protest held in August against rising costs of living. Before the Friday arraignment, the police had detained them for over 90 days after securing a court order to that effect.

Footages of the moments shared on social media riled up Nigerians, opening a floodgate of opinions on the legality of detaining and prosecuting minors and who qualifies as a minor in the eyes of the law.

The conversations around the legal ramifications of prosecuting a child in Nigeria have been fraught with misconceptions, myths, half-truths and misleading claims.

The question is, what do the laws say about prosecuting a child?

PREMIUM TIMES reviewed Nigerian laws and spoke to legal experts to gain informed insights and find the correct answer.

Who is a child?

The definition of a minor, the age of criminal responsibility, and other issues relating to the prosecution of minors are spelt out in laws, including the Child’s Rights Act (CRA), the Children and Young Persons Act (CYPA), the Criminal Code, the Penal Code, and the Administration of Criminal Justice Act (ACJA).

The Child’s Rights Act of 2003 was specifically enacted to protect children’s rights in Nigeria and provide a legal and institutional framework for their protection. It is the most robust legislation covering virtually all child affairs.

According to the CRA, a child is anyone under 18.

Criminal liability of a minor

The Criminal Code, applicable in the 17 southern states of Nigeria, and the Penal Code, applicable in Abuja and the 19 northern states, completely exempt persons under the age of seven from any criminal responsibility.

This is contained in section 30 of the Criminal Code and section 50(a) of the Penal Code.

However, both laws allow the prosecution of persons between the ages of seven and 12 but set a limitation.

Such children in the age bracket can be criminally responsible for an act or omission, but only if it is proven that they were aware of the wrongdoing at the time of committing the offence.

Section 30 of the Criminal Code says for such children to be criminally liable or considered to have committed a crime, it must be proved “that at the time of doing the act or making the omission, he had capacity to know that he ought not to do the act or make the omission.”

Similarly, section 50(b) of the Penal Code says no offence is committed if the child “has not attained sufficient maturity of understanding to judge the nature and consequences of such act.”

This indicates that prosecutors have less flexibility in charging minors under 18 compared to adults.

How to determine child’s fitness for trial

So, the question then arises: how does a prosecutor come to the decision to prosecute an underage?

A lawyer, Selimat Badejoko, highlighted three essential requirements that need to be considered to arrive at such a decision.

According to her, the requirements are “direct evidence of date of birth such as birth certificate, testimony of parents, relatives or classmates, and a medical examination by a medical practitioner.”

The next question is how the prosecution of a child is handled.

Procedure, dos and don’ts of prosecution of children

The Administration of Criminal Justice Act 2015, a federal legislation that has been domesticated with its salient provisions in almost all federation states, points the authorities to the direction to follow when considering prosecuting a minor.

The law provides that when a person below 18 is alleged to have committed an offence, “the provisions of the Child’s Rights Act shall apply.”

It also dictates that “a sentence of death shall not be pronounced or recorded (for a minor), but in lieu of it, the Court shall sentence the child to life imprisonment or such other term as the Court may deem appropriate to make.”

The CRA, as rightly referenced by the ACJA, provides robust guidelines for the entire process of charging, prosecuting and incarcerating a child (anyone below 18 years of age).

Section 204 of the Child’s Rights Act (CRA) explicitly provides that a child cannot be tried at a conventional court of law.

The CRA said in a case where the child is alleged to have committed an offence that amounts to a criminal offence, they can only be tried in the “child justice system and processes set out in the CRA”.

Section 205 guarantees the child’s right to privacy at all stages of child justice administration “in order to avoid harm being caused to the child by undue publicity or by the process of labelling.”

The law states that: “Records of a child offender shall be kept strictly confidential and closed to third parties; made accessible only to persons directly concerned with the disposition of the case at hand or other duly authorised persons; and not be used in adult proceedings subsequent cases involving the same child offender.”

Also, section 212 of the Act dictates that a child may only be detained as a last resort and must be for the shortest period possible.

Section 222 of the CRA, however, states that: “Notwithstanding anything in this Act to the contrary, where a child is found to have attempted to commit treason, murder, robbery or manslaughter, or wounded another person with intent to do grievous harm, the Court may order the child to be detained for such period as may be specified in the order.

“Where an order is made under subsection (1) of this section, the child shall, during that period, notwithstanding anything in the other provisions of this Act, be liable to be detained in such place and on such conditions as the Court may direct, and the child whilst so detained shah be deemed to be in legal custody.”

It is important to emphasise that, according to section 149 and the interpretation section of the CRA, the family court—also known as the juvenile court—holds exclusive jurisdiction over matters involving a child. Consequently, the law envisages that a child may only be arraigned or prosecuted at the family or juvenile court. This court is the sole authority capable of issuing a valid remand order for the child and determine the appropriate detention facility, regardless of the nature of the alleged offences.

Violations

Speaking with PREMIUM TIMES, a Lagos-based lawyer, Mujeed Abdulwasiu, highlighted the various legal violations the Nigerian police committed in the manner of their handling of the tens of minors arrested in connection with the #EndBadGovernance protest.

According to the lawyer, one key infraction was charging and presenting them in conventional court against the provision of the CRA.

Mr Abdulwasiu said that while the police can prosecute those over 12, they fail to do so properly.

“What the law says is that prosecution of a minor in Nigeria should be at a juvenile court, and the provision of the Child’s Rights Act says while prosecuting a child in a juvenile court, their rights and privacy must be protected,” he said.

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There are more violations, including remanding minors in regular prisons for more than 90 days and not taking any steps to protect their privacy.

“It’s clear their faces are in public through multimedia means and publishing their names online. So, this is a sharp contrast to the rules to the provision of the Child Rights Act,” he added.

49. There shall be estatilished for each State of the Federation and the Federal Capital Territory, Abuja, a court to be known as the Family Court (in this Act referred to
as “the Court”) for the purposes of hearing and determining matters relating to children.