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(2) Details contained in the Register may be furnished to— (a) persons engaged in bona fide research whose access to the Register is authorized by the Director General for that purpose; or (b) persons or classes of persons authorized by the Director General to have access to the Register on the grounds that their access to the Register will promote the protection of a child or children. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
110 Laws of Malaysia ACT 611 (3) Details furnished under this section shall not include any information which discloses or likely to lead to the disclosure of the identity of any perspn who has given any information that a child is in need of protection.
Offence in respect of Register 121. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
Offence in respect of Register 121.
Any person who furnishes to any other person any details contained in the Register other than pursuant to section 120 commits an offence and shall on conviction be liable to a fine not exceeding ten thousand ringgit or to imprisonment for a term not exceeding two years or to both.
Certificate of Registrar to be evidence 122. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
Certificate of Registrar to be evidence 122.
A certificate purporting to be under the hand of the Registrar as to any entry in the Register, or as to any matter or thing which he is authorized by this Act or any regulation made under this Act to do or to make shall, until the contrary is proved, be admitted in evidence as proof of the facts stated therein as at the date of the certificate.
Protection against suit and legal proceedings 123. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
An action shall not lie and prosecution shall not be brought, instituted or maintained in any Court against the Government, Minister, Director General, Protector, Social Welfare Officer, probation officer, police officer or medical officer for anything done or omitted to be done under this Act— (a) in good faith; (b) in the reasonable belief that it was necessary for the purpose intended to be served thereby; or (c) for carrying into effect the provisions of this Act.
Public servant 124. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
Public servant 124.
All officers appointed or authorized under this Act shall be deemed to be public servants within the meaning of the Penal Code.
Child 111 General penalty 125.
If no penalty is expressly provided for an offence under this Act, a person who commits such offence shall on coiwiction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding two years or to both.
Institution and conduct of prosecution 126. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
Institution and conduct of prosecution 126.
(1) A prosecution in respect of an offence under this Act shall not be instituted except by or with the consent in writing of the Public Prosecutor.
(2) Notwithstanding that he has been authorized under the Criminal Procedure Code to prosecute, a person who is the investigating officer of an offence under this Act shall not prosecute the case in respect of that offence.
Service of document 127. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
(1) Service of document on any person shall be effected by- (a) delivering the document to that person or by delivering the document at the last known place of residence of that person to an adult member of his family; (b) leaving the document at the usual or last known place of residence or business of that person in a cover addressed to that person; or (c) forwarding the document by registered post in a prepaid letter addressed to that person at his usual or last known place of residence or business. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
(2)- If a document is served by prepaid registered post it shall be deemed to have been served on the day succeeding the day on which the document would have been received in the ordinary course of post.
Power to make regulations 128.
(1) The Minister may make such regulations as appears to him to be necessary or expedient for carrying out the provisions of this Act. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
112 Laws of Malaysia ACT 611 (2) Without prejudice to the generality of the powers conferred by subsection (1), the Minister may make regulations for all or any of the following purposes: (a) to prescribe the conduct, management, discipline and control of approved schools, Henry Gurney Schools, probation hostels or centres; (b) to provide for the maintenance, discipline, treatment and education, vocational or otherwise, of the children or other persons detained in approved schools or Henry Gurney Schools including— (i) the powers, duties and functions of the Board of Visitors; (ii) the grant of leave of absence to children and other persons detained; (iii) visits to, and inspections of, the schools by persons or bodies of persons appointed by the Minister from time to time for any area or areas; and (iv) the order or punishment for breaches of discipline of children or other persons detained; (c) to prescribe the duties and responsibilities of probation officers; (d) to prescribe the constitution and duties of Child Welfare Committees; (e) to prescribe the qualifications, duties and training of advisers; (f) to provide for the care, control, detention, discipline, admission, discharge and aftercare, temporary absence, maintenance, education and training of children placed in places of safety and places of refuge; (g) to regulate the management, administration, visitation and inspection of places of safety and places of refuge; (h) to provide f o r - (i) the care, maintenance and education of children placed in the care, custody or control of any fit and proper person under the provisions of this Act; and Child 113 (ii) the duties of such fit and proper person in taking care of the child; (i) to prescribe the selection and qualifications of fit and proper persons with whom a child in need of care and protection may be placed; (j) to require the persons in charge of places of safety and places of refuge to submit to the Director General returns, reports-and information in respect of children placed therein; (k) to | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
in respect of children placed therein; (k) to prescribe the duties and responsibilities of foster parents; (l) to prescribe the composition, duties, functions and procedures of conducting the business of Boards of Visitors; (m) to prescribe the procedures and practice of Child Protection Teams; (n) to prescribe the particulars, photographs or other means of identification to be furnished in relation to a child in need of protection; (o) to require the furnishing of information as to changes of address of every child in need of protection and of the persons having custody of the child, and the transfer of records and registers in such cases; (p) to prescribe the records to be kept in respect of every child in need of protection and the manner in which the records shall be kept; (q) to prescribe the keeping and maintenance of Registers; (r) to prescribe the forms to be used and information to be furnished for any of the purposes of this Act; (s) to prescribe the form of notices, orders, warrants, summonses and bonds under this Act and the manner of service thereof; (t) to prescribe the functions, powers and duties of officers and persons conferred with powers under this Act and the manner and conditions in and under which the powers conferred by this Act shall be exercised by the officers or persons; 114 Laws of Malaysia ACT 611 (u) to prescribe any other matter required or permitted to be prescribed under this Act; and (v) to provide for any other matter which the Minister deems expedient or necessary for the purposes of this Act. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
(3) Regulations made under subsection (1) may provide that the contravention of any provision in the regulations is an offence and that the person who commits the offence is punishable on conviction with a fine or a term of imprisonment or both but may not provide for the fine to exceed five thousand ringgit or the term of imprisonment to exceed two years.
PART XV SAVINGS AND TRANSITIONAL PROVISIONS Interpretation 129. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
In this Part— "repealed Acts" means the Juvenile Courts Act 1947 [Act 90], the Women and Girls Protection Act 1973 [Act 106] and the Child Protection Act 1991 [Act 468] repealed under this Act; "Juvenile Court" means the Juvenile Court established under the Juvenile Courts Act 1947; "appointed date" means the date on which this Act comes into operation.
Repeal 130.
The Juvenile Courts Act 1947, the Women and Girls Protection Act 1973 and the Child Protection Act 1991 are repealed. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
References to Juvenile Court, etc.
131.
(1) All references to the Juvenile Court in any written law, or in any judgment, sentence, order, ruling or decision made under the repealed Acts and subsisting immediately before the appointed date shall, on the appointed date, be construed as references to the Court For Children established under this Act. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
(2) The judgment, sentence, order, ruling or decision of the Juvenile Court, Supervising Court, High Court, Sessions Court or Child 115 Magistrate's Court under the repealed Acts shall on the appointed date be deemed to have been made under this Act and continue to be in force and have effect. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
(3) Any inquiry, trial or proceedings done, taken or commenced in or before the Courts referred to in subsection (2) before the appointed date in so far as it relates to a person under the age of eighteen years shall be deemed to have been done, taken or commenced in or before the Court For Children, Supervising Court, High Court, Sessions Court or Magistrate's Court under this Act and may accordingly be continued and concluded on and after the appointed date. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
(4) Any inquiry, trial or proceedings done, taken or commenced under the Women and Girls Protection Act 1973 before the appointed date and are still pending shall, in so far as it relates to a female person aged eighteen years and above and any offence under the same Act, be continued and concluded under the same Act and for this purpose it shall be treated as if that Act had not been repealed.
Continuance of Council, etc.
132. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
(1) The Co-ordinating Council for the Protection of Children, Child Protection Teams, Juvenile Welfare Committees, Boards of Visitors and committees established, and officers and persons appointed, under the repealed Acts Shall, on the appointed date, be deemed to have been established or appointed under this Act and shall have the powers, rights, privileges, liabilities, duties and obligatipns conferred on the Council, Child Protection Teams, Child Welfare Committees, Boards of Yisitors and committees established under this Act. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
(2) The members of the Council, Teams, Committees, Boards and committees established under the repealed Acts and any officers and persons appointed under the repealed Acts holding office on the day preceding the appointed date shall continue to hold office under this Act until their terms of appointment expire or they resign or their appointments are revoked in accordance with this Act and shall have the same powers, rights, privileges, liabilities, duties and obligations as if they had been appointed under this Act. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
116 Laws of Malaysia ACT 611 (3) Every act or thing done, taken or commenced by the members of the Council, Teams, Committees, Boards, committees, officers and persons referred to subsections (1) and (2), and the Board of Visiting Justices, under the repealed Acts before the appointed date shall, on and after the appointed date, be deemed to have been done, taken or commenced under this Act.
Continuance of rules, etc.
133. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
Continuance of rules, etc.
133.
All rules, regulations, orders, notices, forms, directions and authorization letters made, issued or given under the repealed Acts shall, in so far as they are consistent with this Act, continue in force until revoked or replaced by this Act.
Institutions established or appointed 134. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
Institutions established or appointed 134.
All approved schools, Henry Gurney Schools, places of detention, probation hostels, places of safety, places of refuge and other institutions or centres established or appointed under the repealed Acts shall on the appointed date be deemed to have been established or appointed under this Act.
Prevention of anomalies 135. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
Prevention of anomalies 135.
(1) The Minister may, whenever it appears to him necessary or expedient to do so, whether for the purpose of removing difficulties or preventing anomalies in consequence of the enactment of this Act, by order published in the Gazette make such modifications to any provision in this Act as he thinks fit but the Minister shall not exercise the powers conferred by this section after the expiration of two years from the appointed date. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
(2) In this section, "modifications" includes amendments, additions, deletions, substitutions, adaptations,variations, alterations and non-application of any provision of this Act.
FlRST SCHEDULE (Paragraphs I5(l)(c) and 17(1 )(i)) Offences under sections 299 to 301, 304 to 304A, 305 to 309A, 312 to 319, 321 to 322, 324, 326 to 340, 345 to 351, 353 to 358, 360 to 362, 364 to 373A, 374 to 375, 377, 377A, 377c to 377E of the Penal Code.
Child 117 SECOND SCHEDULE (Section 45) 1. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
Child 117 SECOND SCHEDULE (Section 45) 1.
Offences punishable under Part VI of this Act.
2.
Offences— (a) punishable under sections 309, 312 to 313, 354, 370 to 373, 373A, 376 to 377 of the Penal Code; or (b) involving any acts or matters defined in sections 321 to 322, 339 to 340, 350 to 351, 360 to 362 of the Penal Code. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_1/1721911533353.pdf | https://jknperak.moh.gov.my/htapah/index.php/my/media-htapah/muat-turun/category/10-akta-berkaitan?download=62:child-act-2001-act-611 | Malaysia |
NORTH CAROLINA JOURNAL OF NORTH CAROLINA JOURNAL OF INTERNATIONAL LAW INTERNATIONAL LAW Volume 46 Number 4 Online Issue Article 4 2020 Waging War on a Child's Right to Education in Africa Waging War on a Child's Right to Education in Africa Sydney Plummer Follow this and additional works at: https://scholarship.law.unc.edu/ncilj Part of the Law Commons Recommended Citation Recommended Citation Sydney Plummer, Waging War on a Child's Right to Education in Africa, 46 N.C. J. INT'L L. 49 (2020). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Available at: https://scholarship.law.unc.edu/ncilj/vol46/iss4/4 This Article is brought to you for free and open access by Carolina Law Scholarship Repository.
It has been accepted for inclusion in North Carolina Journal of International Law by an authorized editor of Carolina Law Scholarship Repository.
For more information, please contact [email protected].
Waging War on a Child’s Right to Education in Africa Sydney Plummer† I. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Introduction ................................................................. 49 II.
Effects of Intra-State Warfare and Structural Adjustment Programs on Children in West and Central Africa ........................................................................... 54 III.
Existing Frameworks that Guarantee a Child’s Right to Education in Africa ...................................................... 59 IV. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
International Law and Non-State Actors ..................... 62 V. Cultural Legitimacy and the Right to Education ......... 65 VI.
Education Within the Domestic Legal Frameworks in Nigeria ......................................................................... 67 VII.
Mechanisms That Hold Non-State Actors Accountable for Human Rights Violations ....................................... 69 VIII.
Conclusion ................................................................... 72 I. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Introduction Numerous international treaties1 recognize education as a basic human right, but the realization of a child’s right to education during armed conflict often hinges on the distinction between state and non-state actors drawn in the aftermath of World War II.2 The Geneva Convention of 1949 significantly strengthened protections for shipwrecked armed forces, wounded civilians, medical personnel, and prisoners of war.3 However, the rules established † J.D. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Candidate 2021, University of North Carolina School of Law.
Senior Staff Editor, North Carolina Journal of International Law.
1 See infra Part III (discussing international treaties that recognize education as a basic human right).
2 See infra Part IV (highlighting differences in the way post-WWII treaties cover state versus non-state actors).
3 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T.
3114, 75 U.N.T.S. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
3114, 75 U.N.T.S.
31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T.
3217, 75 U.N.T.S.
85; 50 N.C. J. INT'L L. [Vol. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
XLVI under this Convention reflected the state-centric nature of armed conflict by governing only traditional state-to-state international conflict.4 The body of international law5 that developed in response to the Geneva Convention created a strict “dichotomy between the laws of international armed conflict and non-international conflict.”6 Today, as terrorism perpetrated by non-state actors has become the norm,7 international humanitarian law lacks comprehensive mechanisms to hold non-state actors accountable for human rights violations.8 For example, between 1970 and 2014, the Global Terrorism Database recorded 141,966 terrorist attacks in over 200 countries, with 2.58 percent of these attacks directed at educational facilities, students, and educators.9 In response to the rise in non- traditional conflict, international humanitarian law first began to recognize non-state actors in the 1950s and 1960s when national liberation movements in Africa shed the yoke of colonialism.10 Although the recognition of non-state actors offered promise for holding organizations and individuals responsible for violating the right to education, increasing internal conflicts and civil wars in the twentieth century,11 coupled with a substantial increase in the Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
3316, 75 U.N.T.S.
135.
4 See Seun Solomon Bakare, Boko Haram and the Child’s Right to Education in Africa: Examining the Accountability of Non-State Armed Groups, 18 AFR.
HUM.
RTS.
L.J.
146, 167 (2018).
5 International humanitarian law refers to the law of armed conflict.
Jan Arno Hessbruegge, Human Rights Violations Arising from Conduct of Non-State Actors, 11 BUFF.
HUM.
RTS.
L. REV.
21, 24 (2005).
6 Darin E.W. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
HUM.
RTS.
L. REV.
21, 24 (2005).
6 Darin E.W.
Johnson, The Problem of the Terror Non-State: Rescuing International Law from ISIS and Boko Haram, 84 BROOK.
L. REV.
475, 508 (2019).
7 See id., at 483–84 (noting the size and reach of non-state actors like Al Qaeda, ISIS, and Boko Haram); Bakare, supra note 4, at 167 (“[T]he reality of armed conflict today is less and less state centered.”).
8 Bakare, supra note 4, at 167.
9 The Global Terrorism Database is housed at the University of Maryland. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Naveed Hussain, Why Terrorists Attack Education, GLOBAL COALITION TO PROTECT EDUC.
FROM ATTACK (Feb. 22, 2016), http://www.protectingeducation.org/news/why-terrorists-attack- education [https://perma.cc/WC93-XNHL].
10 See Johnson, supra note 6, at 508 (suggesting that the growth of national liberal movements and domestic armed opposition to colonial governments in the 1950s-80s forced the international community to address the treatment of non-state actors in international law). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
11 See, e.g., David McKenzie, 8 Million Children Have Been Forced out of School 2020 WAGING WAR ON A CHILD'S RIGHT TO EDUCATION IN AFRICA 51 number of jihadist groups worldwide over the last decade, has left education under attack by terrorist organizations.12 When national liberation regimes in Africa forcibly overthrew colonial powers to gain independence during the mid-twentieth century, the United Nations (“UN”) General Assembly acknowledged the legitimacy and self-determination of these groups by granting them participation rights in UN bodies and at international conferences for the negotiation of treaties.13 In response, representatives of the liberation movements and member states convened to establish the Geneva Conventions Additional Protocol I in 1977.14 Protocol I granted additional immunities and protections to non-state actor liberation movements — protections previously afforded only to states — and termed these conflicts “international armed conflicts” to ensure that the domestic law of the host state applied to non-state actors during the transition period.15 However, in the twenty-first century, non-state actors — often terrorist organizations — have “disrupted the traditional dichotomy between states and nonstate actors under international law.”16 While the international community ceded legitimacy to colonial liberation groups in Africa during the twentieth century, non-state actors today do not seek legitimacy from the global community, but govern their territory under a veneer of legitimate | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
their territory under a veneer of legitimate authority.17 Increasingly, modern warfare involves non-state armed groups in mostly intra-state armed conflicts instead of warfare between two or more states.18 As a result, non-state actors remain the “greatest violators of human rights,” but with international humanitarian law based on the premise that “war [is] between two or more states,” by Growing Violence in West Africa, CNN (Jan. 28, 2020), https://www.cnn.com/2020/01/28/africa/sahel-violence-unicef-burkina-faso- intl/index.html [https://perma.cc/4RNC-VJU9] (describing how security incidents result in school disruptions). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
12 Alynna J. Lyon, The United Nations, New Wars, and the Challenge of Peace Operations, 228 in A NEW GLOBAL AGENDA: PRIORITIES, PRACTICES, AND PATHWAYS OF THE INTERNATIONAL COMMUNITY (Diana Ayton-Shenker ed., 2018).
13 Johnson, supra note 6, at 480–81.
14 Id.
at 508.
15 Id.
at 481, 508.
16 Id.
at 476.
17 Id.
at 476, 509.
18 Bakare, supra note 4, at 167.
52 N.C. J. INT'L L. [Vol. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
XLVI accountability for human rights violations committed by non-state actors is largely nonexistent.19 During armed conflict, states bear the responsibility of protecting children,20 but mounting military expenditures can strip states of their capacity to protect a child’s right to education.21 Even though the “right to education has become indispensable and invaluable in a bid to eradicate poverty and to tackle socioeconomic challenges,”22 this right is frequently lost during armed conflict. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Attacks on schools occur often in West and Central Africa, and as of June 2019, violence and insecurity had closed 9,272 schools and denied 1.91 million children in the region the right to education.23 A total of 40.6 million primary and secondary school-aged children remain out of school in West and Central Africa.24 As attacks on education become the “new normal” in modern warfare,25 international organizations must strengthen legal frameworks to hold non-state armed groups accountable for violating the right to education.26 The hostilities in West and Central Africa primarily stem from “ideological opposition to what is seen as Western-style education.”27 In Nigeria, the anti-education terrorist group, Boko 19 Id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
at 167–68.
20 Aisosa Jennifer Isokpan & Ebenezer Durojaye, Impact of the Boko Harm Insurgency on the Child’s Right to Education in Nigeria, 19 POTCHEFSTROOM ELECTRONIC L.J.
2, 25 (2016).
21 The challenge of paying for adequate education is especially difficult for poorer nations, which already struggle to pay for other budget items.
See U.N.
EDUC., SCI., AND CULTURAL ORG., MEETING COMMITMENTS: ARE COUNTRIES ON TRACK TO ACHIEVE SDG 4? | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
11 (2019), http://uis.unesco.org/sites/default/files/documents/meeting-commitments- are-countries-on-track-achieve-sdg4.pdf [https://perma.cc/HHJ4-G2C6].
22 Sandra Fredman, Procedure or Principle: The Role of Adjudication in Achieving the Right to Education, 6 CONST.
CT. REV.
165, 168 (2013).
23 UNICEF CHILD ALERT, EDUCATION UNDER THREAT IN WEST AND CENTRAL AFRICA 3 (2019), https://www.unicef.org/media/57801/file/Education%20under%20threat%20in%20wca% 202019.pdf [https://perma.cc/NHJ8-EMWV].
24 Id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
24 Id.
25 In 2019, there were 742 verified attacks on schools, with more than one-quarter of those attacks in five countries across West and Central Africa.
The Central African Republic had a twenty-one percent increase in verified attacks on schools between 2017 and 2019.
Id.
26 Bakare, supra note 4, at 147.
27 UNICEF CHILD ALERT, supra note 23, at 4. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
2020 WAGING WAR ON A CHILD'S RIGHT TO EDUCATION IN AFRICA 53 Haram, which means “Western civilization is forbidden” in English, primarily targets schools, teachers, students, and educational facilities as part of its larger goal to establish an Islamic state governed by a strict interpretation of Sharia law.28 Although current international legal frameworks in theory protect a child’s right to education during armed conflict, many states, including Nigeria, have failed to incorporate these non-self-executing treaties into their domestic law.29 Attempts by the International Criminal Court (“ICC”) and the UN to impose individual liability on Boko Haram members and other non-state actors offer little promise of success.30 Thus, based on the events that have transpired in Nigeria, international law needs to be overhauled to rectify the harm caused by the misalignment between: (1) non-self-executing international treaties that guarantee a right to education, and (2) domestic law that does not guarantee this right, or even offer a mechanism to hold state and non-state actors accountable for violating a child’s right to education. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Unless international treaties can seamlessly translate into domestic law, the right to education in Africa will remain under attack.
Part II infra gives a brief overview of how intra-state warfare and structural adjustment programs affect a child’s right to education in Africa, before discussing the existing international legal framework and the Nigerian domestic legal framework that guarantee a right to education. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Through the lens of the Boko Haram terrorist group, this article then highlights the current mechanisms (and lack thereof) for holding non-state actors accountable for human rights violations under international human rights law.
By using Nigeria as an example, this article concludes by suggesting 28 GLOBAL COALITION TO PROTECT EDUC. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
FROM ATTACK, EDUCATION UNDER ATTACK 2018 93 (2018), http://www.protectingeducation.org/sites/default/files/documents/eua_2018_full.pdf [https://perma.cc/3TCP-AWBZ] [hereinafter EDUCATION UNDER ATTACK].
29 See Oluwafifehan Ogunde, State Responsibility, Boko Haram and Human Rights Law, LONDON SCH.
OF ECON.
(Apr.
9, 2019), https://blogs.lse.ac.uk/africaatlse/2019/04/09/human-rights-boko-haram-nigeria/ [https://perma.cc/A88P-PHTH]; CONSTITUTION OF NIGERIA (1979), § 12. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
30 See Ewelina U. Ochab, A Second Look at the International Criminal Court, FORBES (July 16, 2017), https://www.forbes.com/sites/ewelinaochab/2017/07/16/a- second-look-at-the-international-criminal-court/#6b37b0462c7e [https://perma.cc/HG4X- AC43] (“However, the ICC is often criticised for being inefficient, excessively expensive, and ineffective, having secured only four convictions [Katanga, Lubanga, Bemba and Al Mahdi] in 15 years of work.”).
54 N.C. J. INT'L L. [Vol. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
54 N.C. J. INT'L L. [Vol.
XLVI that a child’s right to education be incorporated into domestic law to ensure that national legal frameworks parallel international legal standards.
A child’s right to education should no longer be just a laudable goal in a treaty that will never be implemented, but a reality for millions of children worldwide.
II. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Effects of Intra-State Warfare and Structural Adjustment Programs on Children in West and Central Africa Armed conflict prevents the realization of a child’s right to education by exacerbating the effects of mass poverty, underdevelopment, and violence for the one-third of the global total of primary school age children living in the region of West and Central Africa.31 The Boko Haram insurgency in Nigeria, a country with a population of roughly 200 million,32 has produced an “acute humanitarian and forced displacement crisis,” with an estimated 2.1 million people displaced both domestically and internationally in 2015.33 Likewise, an estimated 10 million children nationwide are unable to attend school.34 Countries experiencing armed conflict see a lower quality and standard of education. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
In addition to forcing many African nations to transform schools into shelters for internally displaced people, armed conflict also disrupts the academic calendar and increases economic inequality, such that poorer children drop out of school to support their families.35 Meanwhile, other students may leave school to form unorganized groups to fight the insurgency, like in the Borno state of Nigeria where the government pays a monthly allowance to such unorganized groups.36 With the number of schools forced to close due to increasing insecurity tripling between June 2017 and June 2019,37 attacks on 31 Education, UNICEF, https://www.unicef.org/wca/what-we-do/education [https://perma.cc/NC6K-5YTL] (last visited Aug. 17, 2020). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
32 Population, Total – Nigeria, WORLD BANK, https://data.worldbank.org/indicator/sp.pop.totl?end=2019&locations=ng&start=2019 [https://perma.cc/9YEX-NG8P] (last visited Aug. 19, 2020).
33 Eleonora Bertoni et al., Education Is Forbidden: The Effect of the Boko Haram Conflict on Education in North-East Nigeria, 141 J. DEV.
ECON.
1, 3 (2019).
34 A.C. ONUORA-OGUNO, DEVELOPMENT AND THE RIGHT TO EDUCATION IN AFRICA 2 (2018).
35 Bakare, supra note 4, at 164.
36 Isokpan & Durojaye, supra note 20, at 18–19. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
37 Education in Peril in West and Central Africa, UNICEF (Aug. 23, 2019), 2020 WAGING WAR ON A CHILD'S RIGHT TO EDUCATION IN AFRICA 55 school infrastructure represent the “greatest development setback for countries.”38 Denying the right to education represents a “denial of the full enjoyment of other rights,”39 as education is a “gateway right.”40 Without education, societies remain underdeveloped and youth cannot participate fully in democracy, the business sector, or in the promotion of cultural and linguistic diversity.41 However, the right to education remains an abstract right in many African societies as a result of structural adjustment programs (“SAPs”) implemented in Nigeria42 and other developing nations43 by the World Bank and International Monetary Fund.44 During the 1980s and 1990s, international financial institutions provided loans, grants, and debt forgiveness programs to financially distressed nations to curtail impending bankruptcy and to stimulate African economic development, but the aid came with a catch.45 To receive https://www.unicef.org/stories/education-peril-west-and-central-africa [https://perma.cc/E9VC-3UB7]. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
38 Bakare, supra note 4, at 158.
39 ONUORA-OGUNO, supra note 34, at 5.
40 Foluke Ifejola Adebisi, Decolonising Education in Africa: Implementing the Right to Education by Re-Appropriating Culture and Indigeneity, 67 N. IR.
LEGAL Q.
433, 438 (2016).
41 Klaus D. Beiter, Is the Age of Human Rights Really Over?
The Right to Education in Africa— Domesticization, Human Rights-Based Development, and Extraterritorial State Obligations, 49 GEO.
J. INT’L L. 9, 62 (2017). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
J. INT’L L. 9, 62 (2017).
42 The Structural Adjustment Program was introduced in Nigeria in 1986.
WORLD BANK, NIGERIA STRUCTURAL ADJUSTMENT PROGRAM: POLICIES, IMPLEMENTATION, AND IMPACT, REPORT NO.
13053-UNI ii (1994).
43 The Global North imposed structural adjustment programs on much of the Global South and the majority of Africa. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Some of the African nations that implemented SAPs include, but are not limited to Kenya, Zimbabwe, Madagascar, Ghana, Benin, Togo, Rwanda, Comoros, Jordan, Algeria, and Tanzania.
See Documents & Reports, WORLD BANK, https://documents.worldbank.org/en/publication/documents-reports (search in search bar for “Structural Adjustment in Africa”) [https://perma.cc/E8GN-F754] (last visited May 6, 2020) (providing a curated search with reports for nations that have undergone similar programs). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
44 See Gloria Emeagwali, The Neo-Liberal Agenda and the IMF/World Bank Structural Adjustment Programs with Reference to Africa, in CRITICAL PERSPECTIVES ON NEOLIBERAL GLOBALIZATION, DEVELOPMENT AND EDUCATION IN AFRICA AND ASIA 3 (Dip Kapoor ed., 2011) (arguing that SAPs were products of policies favored by Wall Street, with little regard for their disastrous effects on recipient countries’ economic growth or individuals’ lives). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
45 During the mid-1970s, commodity booms in several African nations resulted in high export earnings and banks willingly loaned African nations money.
However, during the late 1970s and early 1980s, oil prices increased significantly while commodity prices 56 N.C. J. INT'L L. [Vol.
XLVI this money, nations had to meet stringent conditions46 that required them to restructure their entire economies. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
SAPs mandated the removal of subsidies on health, education, and social services and forced African nations to significantly reduce their social spending, which crippled the education sector, resulting in low access to quality education and high dropout rates.47 In Nigeria, public spending per student decreased by 32.96 percent between 1984 and 1988, and the share of education in the national budget fell by almost 8 percent.48 This structural adjustment was accompanied by downward trends in purchasing power, the gross enrollment ratio, female participation in education, and the completion rate, as inflation rates increased from 10 percent in 1980 to 51 percent by 1989.49 SAPs laid the foundation for an inadequate and inaccessible public education system that continues to plague the war-torn nation more than thirty years later, as the World Bank continues to link education funding to “repressive macro-economic conditionalities.”50 The introduction of economically-oriented SAPs in Nigeria ushered in a human capital approach to education that “is not rooted in human rights,” but rather focused on increased productivity, economic growth, and global competitiveness.51 The human capital approach to education still largely drives education policy today and for tea, cocoa, coffee, and phosphates collapsed as the global recession halted demand. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
The global recession caused balance of payments crises across the world, and by the early 1980s, many African nations were on the brink of bankruptcy and “turned to the World Bank, IMF, and bilateral agencies for assistance.” Structural Adjustment in Africa, ENCYCLOPEDIA OF AFRICA (Henry Louis Gates, Jr. & Kwame Anthony Appiah eds., Oxford University Press 2010); see also Emeagwali, supra note 44, at 3. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
46 Common conditionalities included: (1) the “transfer of over 50% of the domestic budget to the creditors”; (2) the devaluation of domestic currency; (3) a liberalization of trade; (4) the privatization of industries, and (5) the removal of subsidies on health, education and social services.
Emeagwali, supra note 44, at 3.
47 Id.
at 3; ONUORA-OGUNO, supra note 34, at 132.
48 Joel B. Babalola et al., Education Under Structural Adjustment in Nigeria and Zambia, 34 MCGILL J.
OF EDUC.
79, 79 (1999). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
OF EDUC.
79, 79 (1999).
49 Id.
at 88–90 (discussing how in Nigeria, “primary schools were faced with the problem of low completion rate following [the introduction of structural adjustment], as evidenced by the fact that “[o]ut of the 2,762 million 1986 primary school cohort, 5 percent did not complete primary [grade] four by 1989, and 56 percent of those dropping out before completing primary [grade] four were girls.”).
50 Beiter, supra note 41, at 45.
51 Id.
at 61. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
2020 WAGING WAR ON A CHILD'S RIGHT TO EDUCATION IN AFRICA 57 poses a threat to the realization of the child’s right to education.52 The consolidation of the education sector within the larger economy prioritizes learners as “assets” to prevent decreasing returns on investment, which ignores the “intricac[ies] of the right to education” intimately connected with the realization of other economic, political, and civil rights.53 A human rights perspective to schooling that views education as a social or positive right, instead of a negative right, must be adopted by Nigeria and the larger international community.54 Education as a social right imposes an onus on the government to ensure that education remains available and affordable for all children.55 The right to education must be recognized in the midst of ongoing, violent civil wars and cultural strife that have been exacerbated by the long- lasting effects of “colonial thought”56 and structural adjustment programs that destabilized the economy and civil society of African nations.57 Because a human capital approach to education “will lead to a more deplorable state of access to education in sub-Saharan African countries,” human capital should be developed within a rights-based perspective that empowers individual children during armed conflict.58 African nations recognize the “importance of education in the development of human capital,” but increasing expenditures on defense leave limited funding for education in areas where schools, teaching materials, and records have been completely obliterated by conflict.59 During times of insurgency, the risk of 52 See generally id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
at 61–62 (discussing the negative effects of the “human capital” approach and describes multiple ways the approach fails to fully develop the personalities of young adults as future members of society).
53 ONUORA-OGUNO, supra note 34, at 129–131.
54 Id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
54 Id.
at 124–25 (arguing “that as much as the government owes the individual the obligation not to prevent access to educational institutions it equally owes the duty to ensure the positive responsibility of assuring the availability and accessibility of education.”).
55 Id.
at 126.
56 Adebisi, supra note 40, at 450.
57 See generally Babalola et. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
57 See generally Babalola et.
al., supra note 48, at 82 (“Observers of the working of the SAP have pointed out that various provisions of the program have contributed to retrenchment, retirement, unemployment, social inequality, poverty, and reduction in the quality of life.”); ONUORA-OGUNO, supra note 34, at 131 (discussing the negative effect of SAPs on a person’s access to social services).
58 ONUORA-OGUNO, supra note 34, at 135.
59 Isokpan & Durojaye, supra note 20, at 13.
58 N.C. J. INT'L L. [Vol. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
XLVI out-of-school children being recruited by armed groups, subjected to gender-based violence, and targeted by traffickers increases significantly.60 Girls face an increased risk of rape, sexual exploitation, abduction, early pregnancy, and child marriage in West and Central Africa — a region where four in ten girls are married before the age of 18.61 After Boko Haram kidnapped 276 girls from a government secondary boarding school in Chibok, Borno, Nigeria on April 14, 2014, many girls remain too apprehensive to return to school62 because Boko Haram specifically opposes the education of girls.63 Boko Haram frequently uses stigmatized victims of sexual violence as suicide bombers, with 41 percent of Boko Haram attacks in 2014 carried out by female suicide bombers.64 While the Nigerian government remains primarily responsible to provide a remedy for the millions of children currently deprived of their right to education, other international initiatives may offer working solutions in the interim.65 In response to the #BringBackOurGirls social media movement following the Chibok abduction in 2014, the UN Special Envoy for Global Education launched the Safe Schools Initiative in Nigeria.66 This initiative protects schools from attack by reinforcing school infrastructure, training staff as school safety officers, creating teacher-student- parent defense units, consolidating schools through zoning in the most at-risk locations, distributing school-in-box kits with learning materials to internally displaced learners, and transferring students to schools in safer parts of the country.67 Similarly, for children in 60 Bakare, supra note 4, at 164. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
61 Id.
at 164–65; UNICEF CHILD ALERT, supra note 23, at 10.
62 Isokpan & Durojaye, supra note 20, at 10–13.
63 Bakare, supra note 4, at 164.
64 Bertoni et al., supra note 33, at 3.
65 Isokpan & Durojaye, supra note 20, at 25.
66 JUSTIN VAN FLEET, SAFE SCHOOLS INITIATIVE: PROTECTING THE RIGHT TO LEARN IN NIGERIA 1 (2015), https://gbc-education.org/wp- content/uploads/2015/01/SSI_Nigeria_October2015_Compressed.pdf [https://perma.cc/5DPK-PNER]. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
67 The Safe Schools Initiative has helped almost 50,000 children displaced from their homes in Nigeria by Boko Haram by transferring students in high-risk areas in the three states of emergency to one of forty-three federal community colleges. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
UNICEF has partnered with the Nigerian government to “provide education to children living in internally displaced camps, with over 28,000 enrolled in a double shift system as of December 2014.” To date, “683 teachers have been trained and over 35,000 school bags 2020 WAGING WAR ON A CHILD'S RIGHT TO EDUCATION IN AFRICA 59 crisis-stricken areas that cannot attend school, the United Nations International Children's Emergency Fund (“UNICEF”) and the Radio Education in Emergencies Programme deliver nine months of broadcast lessons in literacy and mathematics to ensure the right to education remains accessible.68 The opening of several UNICEF- supported community learning centers in West and Central Africa also provides a safe place for children to learn basic reading and mathematics, and to play and write about their family and community history.69 III. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Existing Frameworks that Guarantee a Child’s Right to Education in Africa International humanitarian law protects the fundamental right to education, as education is an “inalienable human right”70 and an “indispensable means of realizing other human rights.”71 Although numerous international and regional treaties guarantee a child’s right to education,72 the extent to which this right is binding during armed conflict between states and non-state actors remains controversial and will be discussed in Part IV.73 Nevertheless, the Fourth Geneva Convention74 protects a child’s right to education during armed conflict: The Parties to the conflict75 shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from their families as a result of the war, are not left to their own resources, and that . | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
.
.
the exercise of .
.
.
their with learning materials and 400 school-in-a-box kits have been distributed to support internally displaced learners.” Id.
68 UNICEF CHILD ALERT, supra note 23, at 5.
69 Id.
70 Tavassoli-Naini Manuchehr, Education Right of Children During War and Armed Conflicts, 15 PROCEDIA - SOC.
& BEHAV.
SCI.
302, 302 (2011); Bakare, supra note 4, at 150.
71 G.A.
Res. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
71 G.A.
Res.
2200A (XXI), International Covenant on Economic, Social and Cultural Rights (Dec. 16, 1966) [hereinafter Covenant on Economic, Social and Cultural Rights] 72 Id.
73 Manuchehr, supra note 70, at 304; Bakare, supra note 4, at 168.
74 Geneva Convention Relative to the Protection of Civilian Persons in Times of War, art.
24, Aug. 12, 1949, 6 U.S.T.
3516, 75 U.N.T.S.
287 [hereinafter Geneva Convention Relative to the Protection of Civilian Persons in Times of War]. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
75 Italicized for emphasis.
60 N.C. J. INT'L L. [Vol. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
XLVI education [is] facilitated in all circumstances.”76 The Fourth Geneva Convention extends to all “parties to the conflict,” which includes both states and non-states.77 Additional international legal frameworks guarantee a child’s right to education, but most, if not all, of these are non-self- executing treaties that require additional legislation by signatory countries to protect the right to education.78 Moreover, most of these treaties guarantee a broad right to education concerned more with the establishment of elementary and secondary schools than with the protection of a child’s right to education during armed conflict.79 Article 78 of the Protocol Additional to the Geneva Conventions provides the most protection for education during armed conflict by requiring that, “[w]henever an evacuation occurs . | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
.
.
each child’s education, including his religious and moral 76 Geneva Convention Relative to the Protection of Civilian Persons in Times of War, supra note 74, art.
24.
77 Id.
See Int’l Comm.
of the Red Cross [ICRC], Commentary of 2016 Article 3: Conflicts Not of an International Character 388 (2016), https://ihl- databases.icrc.org/ihl/full/GCI-commentaryArt3 [https://perma.cc/L3FW-4Y9X].
78 See, e.g., G.A.
Res. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
78 See, e.g., G.A.
Res.
217 (III) A, Universal Declaration of Human Rights, (Dec. 10, 1948) [hereinafter Universal Declaration of Human Rights]; Covenant on Economic, Social and Cultural Rights, supra note 71; G.A.
Res.
34/180, Convention on the Elimination of All Forms of Discrimination Against Women (Dec. 18, 1979) [hereinafter Elimination of All Forms of Discrimination].
79 For example, Article 26(1) of the Universal Declaration of Human Rights guarantees that “everyone has the right to education. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Education shall be free, at least in the elementary and fundamental stages.” Universal Declaration of Human Rights, supra note 78, art.
26.
Article 28 of Convention on the Right of the Child states that “primary education [should be] compulsory and available free to all .
.
.
[to] encourage regular attendance at schools and the reduction of drop-out rates.” G.A.
Res.
44/25, Convention on the Right of the Child (Nov. 20, 1989). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Article 13 of the International Covenant on Economic, Social and Cultural Rights provides that “Parties to the present Covenant recognize the right of everyone to education .
.
.
[as] primary education shall be compulsory and available free to all” and “the development of a system of schools at all levels shall be actively pursued.” Covenant on Economic, Social, and Cultural Rights, supra note 71, art.
13. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
13.
Article 14 of the International Covenant on Economic, Social and Cultural Rights requires “[e]ach State Party to the present Covenant which .
.
.
has not been able to secure .
.
.
compulsory primary education, free of charge [must] work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all.” Id.
art.
14. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
art.
14.
Finally, Article 10 of the Convention on the Elimination of All Forms of Discrimination Against Women requires “Parties [to] take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women.” Elimination of All Forms of Discrimination, supra note 78, art.
10. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
2020 WAGING WAR ON A CHILD'S RIGHT TO EDUCATION IN AFRICA 61 education as his parents desire, shall be provided while he is away with the greatest possible continuity.”80 In addition to the robust protection afforded to a child’s right to education at the international level, several regional treaties guarantee a child’s right to education.81 These treaties include: Article 17 of the African Charter on Human and Peoples’ Rights;82 Articles 4(1),83 5(2),84 and 1185 of the African Charter on the Rights and Welfare of the Child; and Article 13 of the African Youth Charter.86 Unlike other human rights treaties, the African Charter “does not allow for state parties to derogate from their treaty obligations during emergency situations.”87 Thus, it follows from this premise that states who have ratified the African Charter “owe a duty to guarantee the right to education in times of armed conflict,”88 such that governments should be held accountable for non-state actors’ actions with regard to education. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
The premise stated in the African Charter remains unrealized for many states, whose laws are often haphazard or inadequate for this purpose.89 Therefore, these states must revise their laws to guarantee their citizens the right to education. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
For example, in 1983, Nigeria ratified the African Charter on Human and People’s Rights in accordance with Section 12(1) of the then Constitution of Nigeria, which provided: “No treaty between the Federation and any other country shall have the force of law 80 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art.
78, June 8, 1977, 1125 U.N.T.S.
3.
81 Bakare, supra note 4, at 153–54. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
3.
81 Bakare, supra note 4, at 153–54.
82 African Charter on Human and Peoples’ Rights, art.
17, June 27, 1981, 1520 U.N.T.S.
217 (“Every individual shall have the right to education.”).
83 African Charter on the Rights and Welfare of the Child, art.
4(1), July 11, 1990, O.A.U.
Doc.
CAB/LEG/24.9/49 [hereinafter African Youth Charter] (“In all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.”).
84 Id.
art. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
84 Id.
art.
5(2) (“State Parties to the present Charter shall ensure, to the maximum extent possible, the survival, protection and development of the child.”).
85 Id.
art.
11 (“Every child has the right to an education, to develop his or her personality, talents and mental and physical abilities to their fullest potential.”).
86 Id.
art.
13 (“Every young person shall have the right to education of good quality.”).
87 Bakare, supra note 4, at 154.
88 Id.
89 Id.
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XLVI except to the extent to which any treaty has been enacted into law by the National Assembly.”90 Though the Nigerian constitution protects “core fundamental rights,” the Constitution does not protect the right to education.91 Instead, the right to education remains a nonjusticiable “fundamental objective[] and principle[] of state policy” — meaning that citizens cannot legally hold the government accountable for violating such a right solely on the basis of the Constitution.92 While the Nigerian Federal High Court recognized a justiciable, basic right to education in Legal Defence and Assistance Project v. The Federal Ministry of Education93 by combining section 18(3) of the Nigerian Constitution94 and section 1 of the Compulsory Free Universal Basic Education Act of 2004,95 Nigeria has yet to amend its Constitution or enact enabling legislation to guarantee the right to education in times of armed conflict. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
Thus, new self-executing international treaties must be drafted to make the right to education legally binding on the signatories, so state actors can safeguard education from attack by non-state actors during times of conflict.
IV. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
International Law and Non-State Actors Under the traditional approach of international law that originated with the Fourth Geneva Convention of 1949, only states bore specific rights and obligations to enforce international treaties, participate in armed conflicts, be held responsible for breaching another’s legal obligations,96 and prevent non-state actors from violating the rights of third parties.97 Because states bear the 90 Chudi Nelson Ojukwu, Enforcement of the African Charter on Human and Peoples’ Rights as a Domestic Law in Nigeria, 25 INT’L LEGAL PRAC. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
140, 140 (2000).
91 Id.
at 156.
See CONSTITUTION OF NIGERIA (1979), ch.
IV (listing the following as fundamental rights: right to life, right to dignity, right to personal liberty, and right to freedom of thought, conscience and religion).
92 Bakare, supra note 4, at 156.
93 Id.
94 CONSTITUTION OF NIGERIA (1979), § 18(3) (“Government shall strive to eradicate illiteracy; and to this end Government shall as and when practicable provide.”). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
95 Compulsory, Free Universal Basic Education Act of 2004 (2004) § 1 (Nigeria).
96 Jean-Marie Kamatali, The Application of International Human Rights Law in Non- International Armed Conflict: From Rhetoric to Action, 4 J. INT’L HUM.
LEGAL STUD.
220, 236 (2013).
97 Vladyslav Lanovoy, The Use of Force by Non-State Actors and the Limits of Attribution of Conduct, 28 EUR.
SOC’Y OF INT.
L. 563, 565 (2017). | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
2020 WAGING WAR ON A CHILD'S RIGHT TO EDUCATION IN AFRICA 63 primary duty to protect human rights in conflict zones within their territory,98 the international community adopted a rigid distinction: “only Governments can violate human rights and thus, [] armed groups are simply committing criminal acts.”99 The UN High Commissioner for Human Rights has also endorsed this distinction by maintaining that “[s]tates are [] sole[ly] responsible for human rights violations,” such that the acts of non-state groups are not human rights violations, but crimes.”100 As a result, only UN member nations shoulder the responsibility to “promote universal respect for, and observance of, human rights.”101 While the traditional conception of international law “protects the rights of individuals against states,” the distinction often breaks down in times of armed conflict.102 Under the Vienna Convention on the Law of Treaties, treaties are only binding between state parties because states, and states alone, conclude treaties.103 Whereas sovereign states protect human rights by ratifying human rights treaties,104 non-state terror groups lack legitimacy generally and as successor governments and, therefore, have no obligation to enforce treaties.105 Although non-state rebel groups lack legitimacy by international standards, these groups are not entirely disorganized. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
For example, in 2015, Boko Haram controlled over 20,000 square miles of territory in Nigeria and established “sharia courts and a system of governance modeled after ISIS’ system in Iraq and Syria.”106 In many nations, the influence and prevalence of rebel groups has displaced national judicial mechanisms that traditionally redressed human rights violations and made it difficult 98 Johnson, supra note 6, at 495.
99 Kamatali, supra note 96, at 236 (emphasis added).
100 U.N. Comm. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
100 U.N. Comm.
on Human Rights, E/cN.4/1997/3, Annex, ¶ 47 (1996); Kamatali, supra note 96, at 239.
101 U.N. Charter art.
55(c).
102 Johnson, supra note 6, at 494–95.
103 Kamatali, supra note 96, at 235.
104 Johnson, supra note 6, at 494. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
104 Johnson, supra note 6, at 494.
The United Nations Charter in Article 55 calls upon states to “respect[] and promot[e]” human rights and “fundamental freedoms for all without distinction as to race, sex, language, or religion.” Other human rights treaties include: International Covenant on Civil and Political Rights, UN Convention Against Torture, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Convention on the Rights of the Child. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
105 Johnson, supra note 6, at 495.
106 Id.
at 491–92.
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XLVI for legitimate governments to protect human rights during armed conflict.107 Nonetheless, a consensus exists among scholars in the international legal community that international humanitarian law, specifically Common Article 3 of the Geneva Convention and the Additional Protocols to the Geneva Convention, remains binding on rebel groups.108 Common Article 3 imposes obligations upon “each Party to the conflict,” with “conflict” defined to include non- international armed conflicts that occur in “the territory of one of the High Contracting Parties.”109 Thus, it follows that “each Party to the conflict” includes both states and non-state rebel groups because Article I of the Additional Protocol II to the Geneva Convention applies to armed conflicts between (1) “armed forces of a High Contracting Party” and (2) armed groups that exercise control and conduct military operations within the territory of a High Contracting Power.110 The Appeals Chamber of the Sierra Leone Special Court bolstered this international consensus in 2004 by holding that: “it is well settled that all parties to an armed conflict, whether states or nonstate actors are bound by international humanitarian law, even though only states may become parties to international treaties.”111 Nevertheless, some scholars argue that international human rights law has adopted what has been termed the “not-a-cat” syndrome.112 According to international law scholar, Philip Alston,113 the “not-a-cat” syndrome presumes that non-state actors 107 Id. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
at 495; PETER HYLL-LARSEN, THE RIGHT TO EDUCATION FOR CHILDREN IN VIOLENT CONFLICT 5 (2010) https://unesdoc.unesco.org/ark:/48223/pf0000191225 [https://perma.cc/HMQ3-KEQQ].
108 Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T.
3316, 75 U.N.T.S.
135; Kamatali, supra note 96, at 233–34; Int’l Comm. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |
of the Red Cross [ICRC], The Geneva Conventions of 1949 and their Additional Protocols (2010), https://www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva- conventions/overview-geneva-conventions.htm [https://perma.cc/JK9H-LHVR].
109 Kamatali, supra note 96, at 234–35.
110 Id.
111 Kamatali, supra note 96, at 233–34; Prosecutor v. Sam Hinga Norman, Case No.
SCSL-2004-14-AR72(E), ¶ 22 (May 31, 2004).
112 Kamatali, supra note 96, at 236. | https://docs-lawep.s3.us-east-2.amazonaws.com/thematic2f/pw_2/1721905448752.pdf | https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=2092&context=ncilj | Zambia |