The Right To Free Primary And Junior Secondary Education In Nigeria: A Justiciable Right Or Not?

It is, of course, no doubt that education is a productive tool in shaping the life of human by broadening his intellect. It is not also a question that the level of education of citizens of any nation plays a pivotal role in equipping them with sophisticated intellectual potentials that yields to nation building.

Pursuant to this fact, the constitution of the federal republic of Nigeria has in various sections, make adequate provisions to uplift literacy and in the contrast, to eradicate illiteracy. And with such provisions, every government is duty bound to ensure that every Nigerian child (living in Nigeria ; section 5(1) of the Compulsory, Free Universal Basic Education Act clearly exempts children resident outside Nigeria) acquire basic education. Then, this paper work is aimed at orienting every Nigerian Child about their right to such privileges and parents, guardians, their duty of seeing to its enforcement.

The Provision Of Free Primary And Free junior Secondary Education As A Duty Of The Government.

Starting with the of Section 18(3) of the CFRN 1999 which provides that;
“Government shall strive to eradicate illiteracy; and to this end Government shall as and when practicable provide
(a) free, compulsory and universal primary education;
(b) free secondary education;
(c) free university education; and
(d) free adult literacy programme.”

Items 30 of part II of the Second Schedule and item 2(a) of the Fourth Schedule of the 1999 Constitution of the FRN saddled the House of Assembly of States with powers and responsibilities “to make laws for the state with respect to technical, vocational, post-primary, primary or other forms of education including the establishment of institution for the purpose of such education ; and Local Government Council with functions to include “participation in the government of a state as respects to the provision and maintenance of primary, adult and vocational education respectively.

It would have been a morally questionable action if the Federal Government hadn’t any duty in contribution to this, leaving it all to to the state and local government council since it’s constitutionally placed within their legislative competence. But nonetheless, as it stands, the Federal Government is by the Compulsory, Free Universal Basic Education Act (CFUBEA) 2003, in section 1, shouldered with intervention but by rendering assistance to the States and Local Governments in Nigeria, purportedly for uniform and qualitative basic education throughout Nigeria.

In subsequent legislation, section 2(1) of the Compulsory, Free Universal Basic Education Act (CFUBEA) 2003 provides that ;
“Every Government in Nigeria shall provide free, compulsory and universal basic education for every child of primary and junior secondary school age.”
Going further, section 15(1) of the Child’s Rights Act (CRA) 2003 precisely states that;
“Every child has the right to free, compulsory and universal basic education and it shall be the duty of the Government in Nigeria to provide such education.” (Emphasis on the words underlined.)

It is explicit that the grundnorm and other legislations as they were cited, have vested powers and confer responsibilities on the authorities aforementioned so as to to ensure adequate provision of opportunities to education. This is to see to the effect that an average Nigerian child acquires education.

Where A Government Fails To Conform To These Provisions, Can A Child’s Right To Free Education Be Enforced In A Court Of Law?

Consequentially, I kid you not, that where the Government anywhere in the country fails to do the needful by not adhering to these clear provisions of the law, would amount to breach of duty and it’s actionable in a court of law.

Though, it was argued ab initio, that the right to free education provided in section 18(3) of 1999 Constitution is by section 6(6)(c) of the CFRN 1999 rendered non-justiciable.

But, however, this was settled in the case LEDAP GTE & Ltd v. Federal Ministry of Education & Anor (978 of 2015)[2018]2, wherein Honorable Justice J.T. Tsoho of the Federal High Court placing his reliance upon the Supreme Court decision in the case of A.G. Ondo State v. A.G. of the Federation (citation withheld) held that the right is justiciable and enforceable, and thereby declared inter alia that; “Having been guided by the pronouncements of the Supreme Court in the case of A.G Ondo State v. A.G Federation, I hold that with the enactment by the National Assembly of the Compulsory, Free Universal Basic Education Act, 2003, the specific provisions covered by that Act have become justiciable or enforceable by the Courts.

“The failure to adopt and implement free, compulsory and universal primary education and free junior secondary education is a breach of the constitutional obligation of the government that failed to do so, being a failure of the duty and responsibility of such head of government to exercise power to conform to, observe and apply section 18 of the constitution and sections 2 and 3 of the Compulsory, Free Universal Basic Education Act 2003.” “That the plaintiff……have the legal right to bring this action to demand that Federal Government and State Governments adopt and implement the provisions of the Compulsory, Free Universal Basic Education and Free Junior Secondary Education”.

Thus, to make a clear insight on the basis of Justice Tsoho’s decision given above, in the case of A.G Ondo v. A.G Federation which he relied upon, Uwaifo JSC of the Supreme Court ruled that; “as to the non justiciability of the fundamental principles and objectives in chapter II of our constitution, section 6(6)(c) says so. While they remain mere declarations, they cannot be enforced by legal process…. But the directive principle (of some of them) can be made justiciable by legislation…By this, it simply means that all the directive principles need not remain mere or pious declarations. It is for the executive and the national assembly, working together to give expression to any of them through appropriate enactment as occasion may demand…. Since the constitution placed the provisions of chapter II under the Exclusive legislative list which is to be legislated upon by the National Assembly, then any further enactment made by the National Assembly in regards to any of the provisions in chapter II will automatically make that provision justiciable.

For clarity, the position Justice Tsoho of the Federal High Court is that, the further enactment of the Compulsory, Free Universal Basic Education Act by the National Assembly has automatically made the Child’s right to education Justiciable.

Again, in the case of SERAP v. FGN & UBEC ECW/CCJ/APP/0808 [ECOWAS, Oct. 27, 2009], though the relief sought by the applicant for a declaration that every Nigerian child is entitled to free, compulsory education by virtue of Article 17 of African Child’s Rights Act, section 15 of the Child’s Rights Act 2003 and sections 2 and 3 of the CFUBEA 2003 was not contended but rather affirmed, the ECOWAS Community Court of Justice held that the right (in question) is justiciable and enforceable in Nigeria.

In simple terms, law suit can be filed against the Government who fails to perform this constitutional obligation.
Therein, parents, guardians, Civil Society Organizations (CSOs) and human rights groups can institute a legal action against the government for failing to provide free primary and free junior secondary education for Nigerian children.

Parents’, Guardians’ and Education Stakeholders’ Duties As To Child’s Right To Free Education—What Happens When There Is Breach Of Duty

Substantially, by virtue of sections 2(2)(a)(b), 4(1) of the Compulsory, Free Universal Basic Education Act 2003 and section 15(2)(a)(b) of the Child’s Rights Act 2003;
-Every parent or guardian shall ensure that his child or ward attends and completes his; primary school education; junior secondary school education.
This has placed a responsibility on parents, guardians to make sure their child or ward receives full-time primary and junior secondary education suitable to his age, ability, aptitude by regular attendance at school.

Inclusively, the stakeholders in education in a Local Government Area shall by the provision of section 2(3) of the CFUBEA 2003, ensure that every parent or person who has the care and custody of a child performs the duty imposed on him under section 2(2) of the Act (as it was earlier mentioned).

Consequentially, the failure of a parent or guardian to carry out this responsibility is a criminal offense punishable by law. On this note, section 2(4)(a)(b)(c) of the CFUBEA 2003, and section 5(6)(a)(b)(c) of the Child’s Rights Act 2003 provides thus;
-where a parent or guardian who has the care and custody of a child, fails in the duty imposed on him by the sections (earlier discussed), commits an offence and is liable;
•On first conviction, to be reprimanded;
•On second conviction, to a fine of #2000.00 or imprisonment for a term of 1 month or to both; and
•On subsequent conviction, to a fine of #5000.00 or imprisonment for a term of 2 months or to both.

It is worthy of note that fees are not to be paid, as services in public primary and junior secondary schools shall be provided free of charge. And a person who receives or obtains fee for services rendered in the said institutions commits an offence and is liable on conviction; to a fine of not exceeding #10,000.00 or imprisonment for a term of 3 months or to both. (Section 3(1)(2) of the Compulsory, Free Universal Basic Education Act 2003).

Conclusively, parents, guardians and Stakeholders in education are encourage to endeavor that children acquire the basic education rightfully provided for them under due provisions of the law, and as well to take necessary legal steps and actions where the government fails to make the provisions for the basic education.

About the Author

Adams Mustapha Itopa.
Ambassador, Students Human Rights Club.
200 Level, Faculty Of Law.
Ahmadu Bello University Zaria.
Phone: 09033775773
Email: [email protected]
Facebook@ AL Mustopha

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