A Legal Appraisal Of Adoption Practice Under Nigeria Law

Brief Introduction

Up to 1965, there was no statutory basis in any part of Nigeria for the adoption of a person. This caused a lot of hardship, because even when couples took children into their household on the understanding that they were being adopted, it could not be regarded as legal adoption. They were regarded as guardians or foster parents. The result was that the child’s natural parents might at any time assert their natural rights by demanding the return of the child. This was notwithstanding any close relationship that might have developed between the child and the foster parents or guardians. The first known attempt at providing a statute on adoption was a private member’s bill presented to the then Eastern House of Assembly in April 1958. Unfortunately, the bill was not well received in the House and had to be withdrawn. (Note 5) The first adoption legislation in Nigeria was enacted in the then Eastern Nigeria in 1965, and was known as the Eastern Nigeria Adoption Law, 1965 which came into force on 20th May, 1965. (Note 6) This law now applies in Anambra, Imo, Ebonyi, Abia, Rivers and Bayelsa States. In 1968 an adoption law was promulgated for Lagos State. Subsequent to this, other States followed with their own laws. (Note 7) There are lots of similarities in these laws, just as there are some striking similarities between the Nigerian laws generally and the English Statutes on the topic. By contrast, none of the States in the Northern part of the country (which are in the majority) has any legislation on adoption. Ironically the largest number of adoptable children, i.e., children in dire need of care and protection, come from that part of the country. They are commonly found all over the country as street urchins and beggars being exposed to all kinds of abuse, danger and criminal influences. (Note 8) Though there are no adoption enactments in the Northern part of the country, there are adoption procedures being carried out there. The Child’s Rights Act 2003 was enacted by the National Assembly with a commencement date of 31st July, 2003. As stated in the Explanatory Memorandum annexed to the Act, it “sets out the rights and responsibilities of a child in Nigeria and provides for a system of child justice administration and the care and supervision of a child, among other things”. Specifically, Part XII makes far-reaching provisions regulating adoption throughout Nigeria. However, although the Act is deemed to have come into force since 2003, the Adoption Laws enacted by the States are still extant. The reason is that adoption, in particular, and the rights and welfare of children, in general, are matters within the legislative competence of the States under the Constitution of the Federal Republic of Nigeria 1999. Hence, the National Assembly has no constitutional power to foist the Act on the States. The Act is enforceable as such only in the Federal Capital Territory, Abuja for which the National Assembly has the powers to make laws. Indeed, some States Houses of Assembly have already passed the Child’s Rights Bill into law (Note 9) while others are in the process of doing so. Apparently as a means of checking child trafficking under the guise of adoption, the Act (Note 10) prohibits inter-country adoption as well as the giving and receiving of any payment or reward as a consideration for or to facilitate adoption. The current state of International human rights law is that adoption should be regarded principally as a child care device rather than as a means of providing succour to childless persons or relief to incapable parents, as it was conceived under the old international legal order. Thus, the Act duly recognizes the paramountcy of the welfare and best interests of the child in adoption proceedings, as indeed in “every action concerning a child”.Download Full Material-N5000

Perception of child adoption among parents/care-givers of children attending pediatric outpatients’ clinics in Enugu, South East, Nigeria

 

Adoption could be defined as the official transfer through the legal system of all the parental rights that a biological parent has to a child, along with an assumption by the adopting parents of all of the parental rights of the biological parents that are being terminated and are assumed in their entirety by the adoptive parents, including the responsibility for the care and supervision of the child, its nurturing and training, its physical and emotional and financial support.

Under the United Nations Convention on the Rights of the child of 1989, adoption is recognized as one of the forms of alternative care for children who are unable to remain in their family environment  and as such, adoption serves as a means of prevention of child abuse including child trafficking, and equally enables the adopted children access good education and prevents them from being placed in institutions.

Human trafficking is a major human rights violation, and the United Nations in the year 2000 put up the Palermo protocols, titled “Protocol to prevent, suppress, and punish trafficking in persons, especially women and children”. Article 3(a) of this document defines child trafficking as the recruitment, transportation, transfer, harboring or receipt of persons by means of threat or the use of force or other means of coercion, of abduction, of fraud, of deception, of abuse of power or of a position of vulnerability or the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include at a minimum: Prostitution or other forms of sexual exploitation, forced labor or services, slavery or practice similar to slavery, servitude or the removal of organs.

Adoption in social circle plays the role of legal placement of a homeless child in a childless home. Such provision of care by adults other than the natural parents has occurred throughout history. Adoption was recorded as early as 2350 BC, and Oedipus and Moses (biblical) provide examples of substitute care. In Nigeria, although some learned writers posit that adoption is practiced under native law and custom, it would appear that what they described as adoption is, upon a careful analysis, is either guardianship or fostering or some other peculiar indigenous concepts.

Thus, adoption confers on the child all the rights vis-à-vis his adoptive parent (s) as if the child had been born to them in lawful wedlock as well as imposes on the adoptive parent (s), parental responsibility equivalent to that of the natural parents of the child.

International adoption is currently on the increase worldwide. United Nations Children’s Fund (UNICEF) and many other international children’s organizations promote the idea that un- parented children should be kept at all costs in their country of origin. However, as international adoptions began to expand, UNICEF focused increasingly on its alleged problems, claiming that adoption abuses involving baby buying, fraud and kidnapping were widespread, and subsequently, UNICEF called increasingly for policy changes to limit international adoption.

International adoption is under siege, with the number of children placed dropping each of the last several years, and many countries imposing severe new restrictions. Key forces mounting the attack claim the child human rights mantle, arguing that such adoption denies heritage rights, and often involves abusive practices.

Many nations assert rights to hold on to the children born within their borders, and others support these demands citing subsidiarity principles. But, children’s most basic human rights, at the heart of the true meaning of subsidiarity, are to grow up in the families that will often be found only in international adoption. These rights should trump any conflicting state sovereignty claims.

Study has shown that trans-racial adoption is a veritable means of providing homes for waiting children whose self-esteem is at least as high as that of non-adopted children and whose adjustment is highly satisfactory.

In Africa, some countries have been noted for international adoption including Nigeria, Democratic Republic of Congo, South Africa, Mali, Ghana, Ivory Coast, Morocco, Uganda, and Burkina Faso.

In Nigeria, particularly, aside the adoption of children legitimately by Nigerians and some foreign nationals, cases of child abuse such as the use of under aged children for street hawking, alms begging, and house help remains a challenge despite the domestication and adoption of the Child Right Law by several states in the Federal Republic.  However, the National Agency for the Prohibition of Traffic in Persons and other related matters (NAPTIP) was set up also by the Federal Government on the 8 ^th of August, 2003 to address the scourge of trafficking in persons in Nigeria and its attendant human rights abuses in its entire ramifications.

While countries like China, South Korea, Guatemala, Russia, Romania, and Ukraine have tightened up eligibility rules making it a lot difficult for international adoption, and instead promoting domestic adoption.

The near absence of well-defined policy and legal framework to guide adoption in Africa has encouraged inter-country adoption in Africa, especially in those countries that are not signatories to the Hague Convention (a treaty, which provides a blue print for safe international adoptions of children). It is also possible that poverty is a major drive for people to give up their babies for material wealth.

In Nigeria, the earliest statute on adoption was the 1965 Adoption Law of the former Eastern Region.  This was followed by the adoption edict of 1968 of Lagos State.  Today, many states in Nigeria, especially in the south, have adoption statutes.

However, in 2003, the National Assembly enacted the Child’s Right Act. Part XII of the Act made comprehensive provisions and harmonizes a uniform legislation on rights and welfare of children across Nigeria. The law also made a superseding declaration that its provisions supersede any other statutory provisions on the same subject matter.  Many states in Nigeria have adopted the Nigerian Child’s Right Act and subsequently modified their adoption laws there from.

The factors that necessitate the adoption of a child range from the mere fact of being childless to the desire to replace a dead child, to acquire a companion for an only child, to stabilize a marriage, to legitimate an illegitimate child, to sustain a particular line of descent, to rescue a child in an irreversible situation of abandonment, or to relieve parents who are unable to take care of their child.

In Nigeria, a child is regarded as social security to their parents. And so, every family desires a child. In situations where a couple faces infertility or desirous of a male child for propagation of the family name, every medical means both orthodox and traditional could be applied to remedy the situation. With recent trend of globalization and influence of Western culture in Africa, Nigeria inclusive, child adoption is fast becoming socially and culturally acceptable. This is also supported by the fact that the cost of in – vitro fertilization and intra-gamete transfer is out of reach of many prospective adopters making the choice of child adoption a more preferable option.

A lot of misconceptions and ignorance, however, abound concerning the child adoption process in our society. Ezugwu and colleagues  have reported that majority of infertile women in Enugu, South East Nigeria have heard of child adoption, but only a minority knew its real meaning, its legality, and the process it entails.

Similarly, Omosun and co-worker  in Lagos, South West Nigeria made similar observation with about 85.7% of the respondents in their series having heard about child adoption while about half of them knew the correct meaning of the term child adoption. In the same study, the adoption rate was reported to be as high as 13.9%. Similar findings have also been reported in Sokoto, North West, Nigeria among female infertile patients.

Also, Oladokun and co-workers  have shown that adoption as an alternative to infertility in South West Nigeria is not widely practiced because of some noted barriers including cultural practices, stigmatization, financial implications, and bottlenecks. They suggested measures like advocacy, community mobilization, and enactment of supportive laws that will protect all parties involved as likely to curb the negative attitudes.
However, a lot of middlemen presently abound who persuade prospective adoptive parents to avoid the procedural bottlenecks of adoption and adopt babies through unauthorized agents who keep pregnant girls illegally till their deliveries. The practice was actually started with a good motive by philanthropists who discouraged young pregnant girls not to abort their babies, kept them until they are delivered. And subsequently gave out the babies for adoption. Charlatans have now capitalized on this and turned it into a business.

In our environment, proper harmonization of adoption process with reference to the private sector is still evolving. Most adoptive couples may never have had the opportunity of having pre-and/or post-placement counseling. Some authors have reported low marital adjustments among adopting couples in terms of the roles each should under-take and recommended counseling so as to help such couples adjust favorably to their marital roles.

Aniebue and co- worker  then recommended that emphasis should be placed on post-adoption care, especially in developing countries where complex social and logistic factors militate against adoption practice.

Similarly, many adoptive parents equally complain of certain barriers to choosing adoption as management option to infertility. These barriers were noted to include fear of disloyalty by the child, future claim by the biological parents, lack of genetic linkage with the child, and religious reasons.  Other fears are genetically inherited traits. These concerns could best be handled by counseling prior to the consummation of adoption. A lot of misconceptions and wrong information concerning child adoption still abound in our society. Also, fear of confidentiality makes prospective adoptive parents to patronize unregistered adoptive agents who contract the adoption for them at very exorbitant rates without proper pre-placement medical examination and no official records. Chukwu Larry (2020) in his paper titled adoption of children in Nigeria under the child’s Right Act 2003 had noted that social stigmatization is a major factor contributing to the unpopularity of adoption in Nigeria.

Some couples have adopted babies that have either hemoglobinopathy or pediatric retroviral infection without prior knowledge to mention but a few. While a few couples could adjust and face the challenges thereof, others may resort to child abandonment as an alternative with its attendant risks to the child in question.

There is also dearth of non-governmental organizations (NGO’s) including support groups on child adoption in our society for adequate support of adopting couples, especially during trial periods.

Project Topics And Materials On Child Adoption

With the rising trend of couples seeking child adoption in Nigeria, there is need to ascertain the baseline perception of adoption. Findings from the study will guide appropriate recommendations, which will ultimately improve the practice of child adoption in Nigeria.Download Full Material-N5000

TABLE OF CONTENTS

Title Page i

DECLARATION ii

DEDICATION iii

CERTIFICATION iv

ACKNOWLEDGEMENTS v

TABLE OF STATUTES vii

TABLE OF CONVENTIONS, PROTOCOLS AND OTHER TREATIES viii

TABLE OF CASES ix

TABLE OF ABBREVIATIONS xi

TABLE OF CONTENTS xiii

ABSTRACT xvii

1.0 GENERAL INTRODUCTION 1

1.1 Background to the Study 1

1.2 Statement of the Research Problem 4

1.2.1 Research Questions 11

1.3 Aim and Objectives of the Research 11

1.4 Scope of the Research 12

1.5 Justification for the Research 13

1.6 Research Methodology 14

1.7 Literature Review 15

1.9 Organisational Layout 45

2.0 HISTORICAL DEVELOPMENT OF THE LAW REGULATING

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES IN NIGERIA, AND

CONCEPT OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES,

DEFINITIONS AND CLARIFICATION OF KEY TERMS. 46

2.1 Introduction 46

2.2 Historical Development of the Law Regulating Narcotic Drugs and

Psychotropic Substances in Nigeria. 46

2.3 Concept of Narcotic Drugs and Psychotropic Substances: Definitions and

Clarification of Key Terms 58

2.3.1 International Law 58

2.3.2 International Treaty 60

2.3.3 Nigerian Law 61

xiii

2.3.4 Domestication of International Law 64

2.3.5 Drugs and Drug Abuse 66

2.3.6 Narcotic Drugs 68

2.3.7 Psychotropic Substances 69

2.3.8 Prevention 70

2.3.9 Control 71

2.3.10 Drug Trafficking 71

2.3.11 Compensation and Remedy 72

CHAPTER THREE 74

3.0 DOMESTIC IMPLEMENTATION OF INTERNATIONAL LAW ON

PREVENTION AND CONTROL OF NARCOTIC DRUGS AND

PSYCHOTROPIC SUBSTANCES IN NIGERIA 74

3.1 Introduction 74

3.1.1 Guideline in a Treaty 74

3.1.2 The Principles of Jus Cogens 75

3.1.2 The National Measures for Treaty Implementation. 76

3.1.3 The Process of Domestic Implementation of International Law in Nigeria . 77

3.2 Analysis of Domestic Implementation Treaties on Narcotic Drugs and

Psychotropic Substances 79

3.3 Compatibility of Nigerian Domestic Laws with United Nations Conventions

on Prevention and Control of Narcotic Drugs and Psychotropic Substances 81

3.3.1 The Single Convention on Narcotic Drugs 82

3.3.2 The Protocol to the Single Convention on Narcotic Drugs 86

3.3.3 The Single Convention on Psychotropic Substances 88

3.3.4 The United Nations Convention against Illicit Traffic and Abuse of Narcotic

Drugs and Psychotropic Substances 93

3.3.5 An Analysis of the United Nations Convention against Illicit Traffic and

Abuse in Narcotic Drugs and Psychotropic Substances 95

3.4 An Analysis of Domestic Statutory Law Derived from International Law on

Narcotic Drug and Psychotropic Substances 132

3.4.1 The Dangerous Drug Ordinance 132

3.4.2 The Indian Hemp Decree 134

3.4.3 The Food and Drug Act 135

3.4.4 The Special Tribunal (Miscellaneous Offences) Decree 136

3.4.5 The National Drug Law Enforcement Agency Act 137

xiv

3.5 An Analysis of Domestic and International Institutions Responsible for

Implementing Laws against Narcotic Drugs and Psychotropic Substances. 138

3.5.1 The National Drug Law Enforcement Agency (NDLEA). 138

3.5.2 The Federal High Court 159

3.5.3 The National Assembly 161

3.5.4 The Commission on Narcotic Drugs 163

3.5.5 The International Narcotic Control Board 165

CHAPTER FOUR 167

4.0 PROBLEMS AND CHALLENGES HINDERING THE SUCCESSFUL

DOMESTIC IMPLEMENTATION OF INTERNATIONAL LAW ON

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES IN NIGERIA 167

4.1 Introduction 167

4.1 The Problems Caused by Inadequate Compliance with the Rules and

Obligations of International Law on Illicit Drugs 167

4.2.1 The Legal Status of Illicit Drug Users under the NDLEA Act 168

4.2.2 The Obligation on Nigeria to establish the NDLEA as required by

International Convention 175

4.2.3 The Inability of the Government of Nigeria to Prevent Illicit Drug activities

177

4.3 The Challenges Facing Nigeria’s Government Institutions Responsible for

the Domestic Implementation of International Law on Prevention and Control of

Narcotic Drugs and Psychotropic Substance 178

4.3.1 The Poor State of the Economy and the Rise in Illicit Drug Activities in

Nigeria 182

4.3.2 The Capacity of the NDLEA to Effectively Perform its Functions 182

4.3.3 The Rehabilitation and Treatment of Victims of Drug Abuse in Nigeria .. 185

4.3.4 Challenges Facing the Federal High Court 187

4.3.5 Challenges Facing the National Assembly 188

CHAPTER FIVE 190

5.0 COMPENSATION AND REHABILITATION FOR VICTIMS OF

NARCOTIC DRUG AND PSYCHOTROPIC SUBSTANCES CRIMES IN

NIGERIA 190

5.1 An Analysis Of Compensation For Victims Of Crime Under International

Law 190

5.1.1 The Development of the Law on Compensation for Victims of Crime 191

5.1.2 The Nature, Scope and Trend of Compensation under International Law 193

xv

5.1.3 The Victims of Crime 199

5.1.4 Access to Justice and Fair Treatment 199

5.1.5 Access to Justice 200

5.1.6 Restitution for Victims of Crime 200

5.1.7 Compensation for Victims of Crime 200

5.1.8 Assistance for Victims of Crime 201

5.2 THE FRAMEWORK FOR COMPENSATION AND REHABILITATION

OF VICTIMS OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES

CRIMES UNDER NIGERIAN LAW 203

5.2.1 Determination of Victims of Illicit Drug Offences 205

5.2.2 Drug Users 207

5.2.3 The Third Party Victim 208

5.2.4 The Society at Large 209

5.2.5 Legal Representative of Dependants and Relatives of a Deceased Victim . 210

5.2.6 Legal Provision for Compensation Remedies and Rehabilitation of Victims

of Illicit Drugs in Nigeria 212

5.2.7 The National Drug Law Enforcement Agency Act. 213

5.2.8 The Criminal Code 216

5.2.10 The Penal Code 217

5.2.11 The Administration of Criminal Justice Act, 2015 218

5.3 Why Nigeria Needs a Comprehensive Legal Regime on Compensation For

Victims of Drug Crimes 221

CHAPTER SIX 227

6.0 SUMMARY, CONCLUSION AND RECOMMENDATIONS 227

6.1 Summary 227

6.2 Conclusion 231

6.3 Findings 232

6.4 Recommendations 239

6.4.1 The National Assembly 239

6.4.2 The Federal High Court 245

6.4.3 The NDLEA 245

6.4.4 The Federal Government of Nigeria 246

6.4.5 The United Nations 248

BIBLIOGRAPHY 250Download Full Material-N5000