Legal experts have urged President Bola Tinubu to ensure rehabilitation and compensation for minors detained as a result of the #EndBadGovernance protests, citing violations of child rights laws, writes Onozure Dania
Legal practitioners have called on President Bola Tinubu to take further action after his directive for the release of the minors arraigned before the Federal High Court in Abuja over their involvement in the #EndBadGovernance protests.
Tinubu had given the directive in response to the public outcry that greeted the arraignment of the minors who also looked starved.
Justice Obiora Egwatu of the Federal High Court in Abuja had dismissed the case against the protesters following an application by the Attorney-General of the Federation.
Upon their release, Vice President Kashim Shettima advised them to turn a new leaf and build responsible futures for themselves.
However, legal practitioners have demanded more actions even after the President’s proclamation and subsequent release of the minors. Among them are a Senior Advocate of Nigeria Wahab Shittu, who stressed the need for comprehensive rehabilitation and compensation for the released minors.
Shittu said, “The president has taken the first step by directing their release, which is commendable. The president should go a step further by rehabilitating, re-orientating, and compensating the victims through comprehensive welfare schemes that address their immediate concerns.
This action would reinforce that he is sensitive to the people’s needs and is ready to meet their expectations.”
On his part, the Convener of Access to Justice, Joseph Otteh, criticised the initial arrest and subsequent detention as unjust and excessive.
“First of all, their arrest and detention were reckless and ill-advised. On top of that, trumped-up charges that had no objective basis were preferred against them.
I don’t think anyone believes that allegations of terrorism and treason were rightly made against these defendants. They were wrongly and maliciously arrested for exercising their constitutional rights,” Otteh said.
Otteh stressed the constitutional obligation of authorities to apologise and compensate in such cases.
“The Constitution makes it clear that when individuals are unjustly detained, it is incumbent on the arresting authority to actively apologise and compensate them.
The suggestion to pay compensation is not out of place; it is embedded in the very facts of their arrest and detention. The effort to tag them as terrorists and accuse them of treason was simply an attempt to give a dog a bad name to hang it. The arrest and detention were wrongful and malicious. It makes sense to argue that these individuals are entitled to be compensated,” Otteh said.
He argued that every aspect of the arrest, detention and trial of the #EndBadGovernance protesters was badly managed.
Otteh stressed that these defendants ought not to have been arrested in the first place, seeing they are legitimating exercising a constitutional right.
According to him, given that they were minors, the Child Rights Act mandates, under Sec. 211(b) that, “upon an arrest, ”the Court or police, as the case may be, shall, without delay, consider the issue of release. All the minors ought to have been considered for immediate release, first by the police, and then by the court immediately upon arraignment.
On the evidence, this was not done. The court was also under a duty not to order the detention of minors unless they are convicted of offences involving violence against another person or there is persistence in committing other serious offences. The court failed to undertake this duty.
“Also, under the Administration of Criminal Justice Act 2015, the Court did not have the power to remand the defendants in custody for two months as it did. Section 296 of the ACJ Act provides that upon an application for remand of any person, a remand order shall be for a period not exceeding 14 days in the first instance.
A court, where there is reasonable cause, may renew this remand order for another 14 days; and a last time of another 14 days in appropriate cases.
After a total of these 42 days, the court is required to discharge a crime suspect unconditionally if he or she has not been arraigned.
Those defendants were already entitled to a discharge as of Friday. Yet again, the court failed to safeguard the rights of the defendant protesters. The courts ought to be the bulwarks against tyranny and oppression and not its frontline enablers.”
In his contribution, a Senior Advocate of Nigeria, Kunle Adegoke, said he doesn’t know what particular age the arrested protesters claimed or have attributed to them.
According to him, if they are below the age of 17, they must be considered minors and the question of criminal responsibility as to whether, at that particular age, they can be said to have a criminal mind and can be said to have legally committed an offence will arise.
Adegoke argued that though some of the individuals arraigned looked underage, they might be older. He maintained that minors typically could not be subjected to criminal trials due to the presumption that they lack the requisite criminal intent.
Adegoke stated that they might not be said to have that criminal mind that can be prosecuted for an offence.
“Children cannot be prosecuted for an offence in the same way as adults. In such cases, minors are usually referred to foster or child-remand homes to undergo correctional processes. So in such a situation, I’m sure counsel representing the defendants in this instance would have objected concerning the competence of the courts to assume jurisdiction over the trial of these minors. If it is established that they are minors, the court will rule on the competence of the charges. If the charges are found incompetent, the children will be referred to appropriate facilities for rehabilitation.”
Another Senior Advocate Prof Sam Erugo, said that it was unfortunate that the Police continued to misrepresent obvious facts in the justice system.
Erugo added, “It is unfortunate that the police will continue to misrepresent obvious facts in the justice system, even in these current embarrassing and pathetic cases of children detained and dehumanised over nothing.
Under the Child Rights Act, Nigeria’s justice system distinguishes between children and adults. The Act replaced the juvenile justice system established by the defunct Children and Young Persons Act, ensuring greater protections for minors. It prioritises the child’s best interests in all cases, including when there is suspicion of a crime.
“Under the extant Act, children accused of committing crimes are to be taken to a family court, which has the authority to handle such matters and provide adequate safeguards. These safeguards include protecting the child’s welfare and avoiding public exposure.
A child cannot be arraigned in regular courts or publicly, as happened recently in Abuja. The Act stipulates that children must be dealt with in specialised family courts and cannot be detained in adult correctional centres.”
Erugo emphasised that minors must receive proper legal handling to prevent exposure to environments that could worsen their situation.
“Special provisions are required for children accused of crimes, and family courts are equipped to handle such matters in the best interest of the child. “Detaining children in adult facilities violates both the law and their basic rights.”
On his part, Prof. Damilola Olawuyi, a Senior Advocate of Nigeria, said that the shocking revelations about the detention of children were a flagrant disregard for international law, especially the Convention on the Rights of Child to which Nigeria is a party.
He stated that Article 3 mandates that, in all decisions taken within the administration of juvenile justice, the best interest of the child shall be a primary consideration.
“This is why our Child Rights Act also recognises the need for a separate juvenile justice system for children below 18 years, with a primary focus on rehabilitation and restorative justice for them when they violate the law,” Olawuyi said.
Olawuyi noted that the principles of a fair trial, the presumption of innocence, having appropriate legal assistance and the support and presence of their parents, as well as ensuring the process must all be met when arraigning a minor in court.
He said, ”To therefore detain children and subject them to inhumane and repressive conditions is not only illegal but is also an avoidable embarrassment to Nigeria.
The children should have been brought through the restorative juvenile justice procedures under our laws to ensure their interests are prioritized and protected and this standard has sadly not been met in this case. An in-depth investigation should be conducted to ensure that erring officers involved face the full wrath of the law.
“This incident also raises the need for continuous human rights training, capacity development and support for our law enforcement agencies to ensure alignment with international human rights standards at all times, in the performance of their functions.”
Also, another Senior Advocate of Nigeria, Wolemi Esan, stated that the Children and Young Persons Act, also known in various states as the Children and Young Persons Law, along with the Children’s Rights Act, establishes specific procedures for dealing with juvenile offenders.
He said that the law classifies children into three categories: those under 7 years old, those aged 7 to under 12, and those aged 12 to under 14.
According to him, children under the age of 7 are not considered criminally responsible, as stated in Section 30 of the Criminal Code Act, which specifies that individuals below this age cannot be held accountable for their actions.
He stressed that those aged 7 to 12 may be held liable if they understood the implications of their actions, while children aged 12 to 14 fall under the jurisdiction of juvenile courts.
Esan further noted that however, there are circumstances where regular courts may assume jurisdiction, such as when a juvenile commits a capital offence, as outlined in Section 8(2) of the Children and Young Persons Law, or when a juvenile is tried alongside an adult, according to Section 6(2) of the Children and Young Persons Law.
“Importantly, Section 6(2) of the Children and Young Persons Law mandates that the court must verify a child’s age before proceeding, allowing for adjournments to confirm this information.
“The Children’s Rights Act outlines specific procedures that include confidentiality, expedited trials, and non-custodial measures.
Section 212(1) of the Child Rights Act, stipulates that a child may only be detained pending trial as a last resort and for the shortest possible time, whenever feasible, alternatives to detention, such as placement with family or in educational settings, should be pursued.
“Section 212(2) of the Child Rights Act requires that while in detention, a child must receive care, protection, and necessary support, including social, educational, vocational, psychological, medical, and physical assistance.
“It remains unclear whether these processes were followed in the case of the putative minors recently charged with terrorism and treason related to the August #EndBadGovernance protests,” he said.