Wife of former Chief Justice of Nigeria and member of the African Union Committee of Experts on the Rights and Welfare of the Child, Mrs. Maryam Uwais and Chairman of the Senate Committee on Health, Senator Iyabo Obasanjo-Bello are engaged in a healthy, even if needless, argument on the propriety or otherwise of disallowing children to participate in the recently-held public hearing on the Tobacco Control Bill in the Senate. Sufuyan Ojeifo examines the tenor of the controversy.
The purpose of the public hearing on the Tobacco Control Bill held on July 20 and 21, this year, in the Senate Hearing Room One, was to get stakeholders’ input into the Bill, preparatory to the Third Reading (clause-by-clause consideration and passage). From the various submissions at the hearing, it was evident that the anti-Tobacco Control Bill groups were in the minority. The majority groups understandably succeeded in swaying public sentiments in favour of the Bill, which was sponsored by Senator Olorunnimbe Mamora.The pro-Tobacco Control Bill groups already had their task well-cut out for them by the sponsor of the Bill and the entire membership of the Senate Committee on Health, all of whom were on the same page in their mission to achieve control, sale and consumption of the product. Specifically, the proposed legislation is entitled: “A Bill for an Act to Repeal the Tobacco (Control) Act 1990 Cap T16 Laws of the Federation and to Enact the National Tobacco Control Bill 2009 to provide for the Regulation or Control of Production, Manufacture, Sale, Advertising, Promotion and Sponsorship of Tobacco or Tobacco Products in Nigerian and for other Relates Matters.”
Expectedly, the issue was controversial. Apart from the British America Tobacco Nigeria (BATN), which attempted a diplomatic opposition, there was groundswell of support for the Bill. It agreed that tobacco had impact on public health, but supported appropriate regulation the industry as it would help to reduce the impact.
But the controversy that has unexpectedly bludgeoned its way into the public domain on account of the public hearing, organised by the Senate Committee on Health under the Chair of Senator Iyabo Obasanjo-Bello, centres on the propriety or otherwise of disallowing some school children to air their views on the occasion.
Wife of former Chief Justice of Nigeria and member of the African Union Committee of Experts on the Rights and Welfare of the Child, Mrs. Maryam Uwais and Obasanjo-Bello are engaged in disputation over the decision by the latter to shut out the children from making a presentation at the hearing.
Uwais was miffed that the rights of the school children were abridged. She is, no doubt, an advocate of the protection of the child rights. On her part, Obasanjo-Bello insisted that the children come before their rights and from her position, she is an advocate of the protection of the child. Specifically, Uwais had in a letter to Obasanjo-Bello, copies of which were sent to the Senate President, Senator David Mark and Senator Mamora (sponsor of the Bill) said that in denying the children the opportunity to speak, Obasanjo-Bello had said that she was a mother and so felt the need to protect children.
According to Uwais: “You aid that you would not allow children to be ‘used’ or ‘paraded’ before the Committee and that even in law courts, the evidence of a child would need to be corroborated during a trial. Besides, in your view, since adults were present and knew what the issues were, there was absolutely no need for a person under the age of 18 to participate in the proceedings.
“To further support your own assertions, you added that at hearings in the Senate, persons who intended to contribute could be compelled to swear oaths on the scriptures appropriate to their faiths, which in fact, in your understanding, was another excuse for denying them the right to be heard on an issue that concerns them, also. In conclusion, you mentioned that the Child Rights Act did not allow for children to speak at such fora.”
After citing the various sections of the Constitution, the Child Rights Act 2003 and the African Charter on the Rights and Welfare of the Child (ratified by Nigeria since July 23, 2001), she knocked off the position of Obasanjo-Bello. She said that that public hearing was not a court of law as the Senator would want people to believe. She said “while not delving into the justifications and reasons for the policy, laws and formalities that apply in family court proceedings or in trials where children testify as witnesses and the need for corroboration and/or not swearing on oath or not, the point must be made that rules of evidence that are strictly observed in a court of law do not apply to public hearings.
“Indeed, even in judicial proceedings concerning a child, the court is compelled to make available the opportunity for the views of the child to be heard directly or through an impartial representatives, depending on the circumstances; the fact remains that his or her views must be heard and the court is obliged to ensure that, in its own discretion, predicated upon the best interests of the child…”
The first reaction to Uwais came from Lawyer-Aides in the National Assembly (LANASS), under the leadership of Mr. Akande Oluwatosin, which faulted the position Uwais, to the effect that Obasanjo-Bello violated the rights of the school children by not allowing them to present their position at the just concluded public hearing on the Tobacco Control Bill. The body, in a statement issued in Abuja, said that while Obasanjo-Bello based her decision on the provisions of the 1999 Constitution, Uwais had anchored her protest on the provisions of Section 3 of the Child Rights Act.The Section reads: “The provisions in Chapter 1V of the Constitution of the Federal republic of Nigeria, 1999, or any successive constitutional provisions relating to fundamental rights, shall apply as if those provisions are expressly stated in this Act.”
LANASS said, “From the above provision, it is clear for all purposes and intent that the drafters of the Child Rights Act made it subject to the constitution and besides, it is elementary that the basic law above all laws in every nation is its constitution.”
The group further poked a hole in Uwais’ argument that Section 39 of the 1999 Constitution, which provides for the Right of Freedom of Expression of every Nigerian, including the secondary school students covered them. According to the body, “True, not limited by age but this Section and others-37, 38, 40 and 41, in Chapter 4 are limited by the Derogation Clause as provided in Section 45 (1) of the same Constitution, which states: ‘Nothing in Sections 36, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society-(a) in the interest of defence, public safety, public order, public morality and public health; or (b) for the purposes of protecting the rights and freedom of other persons.’”
The body said, “Sequel to that is the provision of Section 45 (1) (b) that such limitations on the above-named sections can be for the purpose of protecting the rights and freedom of other persons, which, predictably and for the test of reasonableness, is one of the reasons adduced by the Senator (Obasanjo-Bello) for her action that the young persons (school children) be refrained from public discussions on smoking for protectionist reasons.”
LANASS said that it could agree more because “these young people are not even supposed to be found in places where such topics are being discussed, ab-initio.” It observed that Uwais in her position cited Section 19 of the Child Rights Act with the footnote-“Responsibilities of a Child and Parent” but that she omitted to mention Section 20 with the footnote-“Parent, etc., to provide guidance with respect to Child’s Responsibilities.”
Accusing Uwais of insincerity for citing only Section 19 without taking it together with Section 20, LANASS argued that it is only when “both sections are read together as a whole that sufficient legal analysis of that part of the Act might have been done.” The body also tackled Uwais for berating Obasanjo-Bello for purportedly misconstruing the Senate Committee Public hearing as a court. According to the body, “: But unknown to most Nigerians, the senator was right and Mrs. Uwais, ironically, was the erring party. Court, as defined by Section 2 of the Evidence Act, is not restricted to a structure or building where judgments are pronounced but includes judges, magistrates and all persons empowered to take evidence except arbitrators.
“Since National Assembly Committees are empowered, by law, to take evidence, they could constitute what is a court, following the provisions of the Evidence Act. Therefore, the Senator (Obasanjo-Bello) was accurate in her analogy; even if it appears she had no knowledge of the legal truth of her statements.”
But in her reply to Uwais dated July 29, 2009, Obasanjo-Bello said, “…On the second day, Mrs. Uwais was again present. After the first few speakers, I asked what other groups were present and the presence of some children in school uniform was indicated. I had seen the children and assumed they were observers to the proceeding which is allowed and even educative.
“I said and insisted children are not allowed to give uncorroborated evidence in court and that the school children being minors would not be allowed to talk on an issue that could easily be resolved by adults. Please note that apart from being minors, the children submitted no memorandum as individuals or as a group and did not represent any group. The public hearing was specifically on the Tobacco Bill; all other issues were irrelevant unless it directly affected our understanding of the Tobacco issue in Nigeria.”
“According to the sixth edition of the Columbia Encyclopaedia, 2008, the age of consent is the age which according to the law, persons are bound by their words and acts. Below the minor age, unless there are extenuating circumstances, children are not allowed to give evidence in court. On a comparative level, legislative investigations in a Presidential system are fashioned after law courts and Senate Committees here and in the US are allowed to subpoena persons and do have legal backing as courts.
“Committee findings can lead to various reprimands and sanctions and can be followed by arrest. It is a criminal offence to lie before a legislative committee. We are allowed to ask people to take oath if deemed necessary. Senate Committees are allowed to make their own rules as long as it follows the rules of the Senate. Deciding who will speak in the Senate chambers is the prerogative of the Senate President and in a committee room; it is the prerogative of the Chairman of the committee,” she said. She added, “Order 64 of the standing rules of the Senate 2003, says ‘the President in the Senate and Chairman in any Committee shall be responsible for the observance of the rules of the Order in the Senate and Committee respectively and their decision upon any point of order shall not be open to appeal and shall not be reviewed by the Senate except upon a substantive motion after notice.’
“Age of consent is important to protect children from exploitation. It is generally agreed that children can be easily manipulated and their opinions tutored and I don’t believe this is my idea as it is normal in all jurisdictions across the world not to unnecessarily expose children to adult issues such as violence and sexual content. I don’t think I am saying anything that is not universally accepted to say children can be easily influenced.
“To obtain testimony from a minor, the parent or guardian has to be present or there must be verifiable written consent from them. Taking a child out of school on a school day on an issue where there was no disagreement like protecting children from tobacco is insensitive on the part of the people that did it and it’s against the welfare of the children. Middle class people usually do not do this to their children but it’s the children of poorer people that are pulled from school and brought to a hearing room on an issue they do not need to participate in.
“Will these same people allow their own children to be taken out of school for such matter? I am a mother and I will not let any school allow my child to be taken for such an event. The best child right is not about exposing children to undue interference but in letting them grow up to have their own opinions and make their minds up about ideas on their own. That is the essence of the right to Freedom of Expression in the 1999 Constitution alluded to by Mrs. Uwais.
“It is actually child exploitation to subject children to give testimony to prove one’s point especially when the protection of the children from smoking was not a part of the bill that was being disputed. If the children lost confidence from not being allowed to talk in the senate, it was the fault of the people that brought them without clearing or following laid down rules by the committee.
“In order to forestall rancorous and unnecessary disputations during committee hearings, it is the norm to always ask for prior submission of memo before the hearing date so that stakeholders can be listed and if need be appropriately advised. This was not the case with these school children in uniforms during school hours without a tinge of evidence of their parents/guardians consent.”
Obasanjo-Bello continued: “After I made my decision not to allow the children to speak, Mrs. Uwais wrote a note to Senator Mamora who was sitting to my right and he showed me the note and whispered to my ears that I should let the children speak based on the note, I reiterated my point to the audience and moved on. Several minutes later, Mrs. Uwais again sent a note to Senator Ekaette, sitting on my left, showed me another note from Mrs. Uwais but advised that I should go on with the hearing as she was leaving for another committee commitment. I again made my point about not allowing children to speak. Must one listen to Mrs. Uwais’ advocacy for child’s rights in a matter involving Tobacco?”
Consider her summation of the Uwais opposition: “Apparently, I am being blackmailed since last week in national newspapers because I didn’t allow Mrs. Uwais to have her way. My authority as chair of the Committee means nothing to Mrs. Uwais if she is not allowed to have her way or I let the children talk. The hearing was not about children’s right but Tobacco; why should we divert the proceedings to child rights so she would have her way.”
Her conclusion: “Finally, under the United Nations convention on the rights of the child, a child is anyone under the age of 18 and these children need to be protected from exploitation. It is in line with the rules of the Senate as well as under common law not to allow children give uncorroborated evidence. There was no compelling reason to allow the children to give evidence since the issue of tobacco negatively affecting children and health generally was not controverted by anyone at the hearing….
“In consonance with the rules of the Senate, it is my prerogative to allow anyone to talk as the Senate President also has the prerogative to allow any senator or anyone else to talk as he deems fit. By all standards, local and international, public hearings are no place for children. Almost all national issues, directly or indirectly, affect children and that does not mean that we must parade children to give their opinions on all issues.
“Everything from economy to violence in our society affects children but we don’t necessarily parade them before the Senate when such are being discussed. I lived in the US when some of the tobacco hearings were being conducted in the US senate and I never saw children give evidence. I don’t know why in Nigeria with the prominent breaches of the child’s rights, the so called activists for children’s rights cannot do anything to make us feel their impact.
“In all this, I see lack of knowledge of legislative process, rules and procedure. The tobacco bill had a good public hearing and there is no need to create an issue where none exists: not even from a seeming outsider…who weeps louder than the bereaved. I plead with Mrs. Uwais to leave this matter alone and move on to many of the breaches of the Child’s Right Act that occur every day and lead to serious physical and emotional damage to children.” Will this controversy abate or it will continue to dominate the public space over and above the real issue of controlling Tobacco production, manufacture, sale, advertising, promotion, et al?
