SERAP Drags Senior Nigerian Officials To ICC ‘For Leaving 13.2 Million Children Out Of School’

Socio-Economic Rights and Accountability Project (SERAP) has
sent a petition to Mrs. Fatou Bensouda, Prosecutor, International
Criminal Court (ICC), urging her to use her “good offices to
investigate whether the problem of out-of-school children in
Nigeria, and the failure of the Nigerian authorities over the years
to address it amount to violence against children and crimes
against humanity within the jurisdiction of the ICC.”

The organization urged Mrs Bensouda to: “push for those
suspected to be responsible for this problem, including current and
former presidents and state governors since 1999, who directly or
indirectly have individually and/or collectively breached their
special duty toward children, and are therefore complicit in the
crime, to be tried by the ICC.”

In the petition dated 19 July 2019 and signed by SERAP deputy
director Kolawole Oluwadare, the organization said: “Investigating
and prosecuting high-ranking Nigerian officials and providing
reparations to victims will contribute to serving the best
interests of Nigerian children, the most vulnerable citizens in our
country, and ending the impunity that is denying them their right
to education and a life free of violence and fear.”

SERAP said: “These out-of-school Nigerian children have been
exposed to real danger, violence and even untimely death. Senior
Nigerian politicians since 1999 have failed to understand the
seriousness of the crime of leaving millions of children out of
school, and have made an essential contribution to the commission
of the crime.”

SERAP also said: “The ICC has stated in the Lubanga case that
the interruption, delay and denial of the right of children to
education is a crime within the jurisdiction of the Court. SERAP
believes that the reality for children living in the Ituri region
of the Democratic Republic of the Congo is similar to the reality
faced by millions of out-of-school children in Nigeria, as the
situation is depriving an entire generation of children of their
right to education and human dignity.”

The petition read in part: “There is no immunity for crimes
under the Rome Statute. The crime of leaving millions of Nigerian
children out of school is an opportunity for your Office to show
the Court’s commitment to effectively enforce its Policy on
Children and other important statements of international criminal
justice.”

“Putting millions of Nigerian children that should be in school
on the street exposes them to violence, including sexual violence,
gender violence, abduction, and other forms of exploitation and
violence against children, and implicitly amounts to enslavement,
trafficking of children, and ill-treatment, three of the eleven
acts that may amount to a crime against humanity under the Rome
Statute.”

“Unless the ICC declares the problem of over 13 million
out-of-school Nigerian children as violence against children and
crime against humanity, and hold those suspected to be responsible
since 1999 to account, the number of out-of-school children will
continue to rise, and these children may never receive any formal
education at all.”

“Nigeria is a state party to the Rome Statute and deposited its
instrument of ratification on 27 September 2001. According to
Nigeria’s Universal Basic Education Commission (UBEC), the
population of out-of-school children in Nigeria has risen from 10.5
million to 13.2 million.”

“This figure is based on a joint survey conducted in 2015 by the
United Nations Children Fund (UNICEF) and the Nigerian government.
Data by the UNICEF also shows that one in every five of the world’s
out-of-school children is in Nigeria. However, Nigeria’s former
Minister of Education Mr Adamu Adamu has suggested the figure of
out-of-school children in Nigeria to be 10,193,918, citing a recent
‘National Personnel Audit’ of both public and private schools in
the country.”

“According to the former Minister of Education, all of the 36
states in Nigeria are affected by the problem of out-of-school
children but the problem is more widespread and systematic in the
following states: Kano, Akwa Ibom, Katsina, Kaduna, Taraba, Sokoto,
Yobe, Zamfara, Oyo, Benue, Jigawa and Ebonyi states.”

“Girls are disproportionately represented among out-of-school
children. In north-eastern Nigeria alone, 2.8 million children are
in need of education-in-emergencies support in three
conflict-affected States (Borno, Yobe, Adamawa). In these States,
at least 802 schools remain closed and 497 classrooms are listed as
destroyed, with another 1,392 damaged but repairable.”

“Under Nigerian law and international human rights treaties to
which Nigeria is a state party, the Nigerian authorities at both
the Federal and State levels have a legally binding obligation to
immediately provide free, universal quality primary education for
all Nigerian children, and to progressively provide education at
all other levels without discrimination.”

“Nigerian authorities over the years have restricted educational
opportunities for children with disabilities including by failing
to provide equipment such as hearing aids, ramps to school
buildings, wheelchairs, crutches, glasses and surgery to children
in need, and failing to address educational challenges facing
children with disabilities, in general.

“SERAP notes the launch by your Office in 2016 of the Policy on
Children, which aims to send ‘a firm and consistent message that
humanity stands united in its resolve that crimes against children
will not be tolerated and that their perpetrators will not go
unpunished.’ The Policy aims to assist your Office in its efforts
to robustly address these crimes, bearing in mind the rights and
best interests of children.”
“SERAP notes also that at the launch of the Policy you stated among
others that, ‘a crime against a child is an offence against all of
humanity; it is an affront to our basic tenets of human decency.
Children are our greatest resource, and must be protected from harm
so as to reach their full potential. We, at the ICC, intend to play
our part through the legal framework of the Rome Statute’.”

“This statement is entirely consistent with the UN Convention on
the Rights of the Child, to which Nigeria is a state party and
shows that children will not be invisible in the exercise of the
jurisdiction of the ICC, and that your Office will extend its work
to ensure the well-being of children, including millions of
out-of-school Nigerian children.”

“The Rome Statute’s sensitivity towards children’s issues is
clearly demonstrated in Article 68(1) to the effect that the Court
must ‘have regard to all relevant factors, including gender and the
nature of the crime, in particular, where the crime involves sexual
or gender violence or violence against children.’ Under Article
54(1), ‘the Prosecutor shall take into account the nature of the
crime, in particular where it involves violence against
children.’”

“SERAP is seriously concerned that the problem of out-of-school
children is widespread and systematic, cutting across the 36 states
of the country and Abuja, and spanning many years since 1999. The
problem of out-of-school children has had catastrophic effects on
the lives of millions of children, their families and communities,
akin to violence against children under the Court’s Policy, and
crimes against humanity as contemplated under the Rome Statue.”

“The Rome Statute in article 7 defines “crime against humanity”
to include “inhumane acts causing great suffering or injury,”
committed in a widespread or systematic manner against a civilian
population. The common denominator of crimes against humanity is
that they are grave affronts to human security and dignity.”

“The consequences of throwing millions of Nigerian children that
should be in school out on the street are similar to those of the
offences in article 7(1)(k) of the Rome Statute. Senior government
officials know well or ought to know that their failure to prevent
millions of Nigerian children from roaming the street will expose
the children to violence, deny them their human dignity and
exacerbate the growing insecurity in the country.”

“SERAP considers the apparent failure of successive governments
and high-ranking government officials to prevent widespread and
systematic problem of out-of-school children as amounting to
complicity under the Rome Statute.”

“This crime against Nigerian children has continued to rob our
children of their innocence, childhood, and often, tragically,
resulted in their untimely deaths, denying Nigeria of its future
potential and of its greatest resource.”

“The national authorities of the Court’s States Parties form the
first line of defense in addressing the crimes against children, as
they shoulder the primary responsibility for the investigation and
prosecution of perpetrators of the crimes. But successive
governments in Nigeria have been unwilling or unable to address the
problem of out-of-school children, and end the crime against
humanity.”

“SERAP believes that substantial grounds exist to warrant the
intervention of the Prosecutor in this case. Pursuant to the Rome
Statute, the Prosecutor has power to intervene in a situation under
the jurisdiction of the Court if the Security Council or states
parties refer a situation or if information is provided from other
sources such as the information SERAP is providing in this
case.

SERAP therefore urged the ICC Prosecutor
to:

1. Urgently commence an investigation proprio motu on the
widespread and systematic problem of out-of-school children in
Nigeria since the return of democracy in 1999, with a view to
determining whether these amount to violence against children and
crime against humanity within the Court’s jurisdiction. In this
respect, we also urge you to invite representatives of the Nigerian
government to provide written or oral testimony at the seat of the
Court, so that the Prosecutor is able to conclude since available
information whether there is a reasonable basis for an
investigation, and to submit a request to the Pre-Trial Chamber for
authorization of an investigation;
2. Bring to justice those suspected to be responsible for
widespread and systematic problem of out-of-school children in
Nigeria;
3. Urge the Nigerian government to fulfil its obligations under the
Rome Statute to cooperate with the ICC; including complying with
your requests to arrest and surrender suspected perpetrators of the
widespread and systematic crime of leaving millions of Nigerian
children out of school, testimony, and provide other support to the
ICC
4. Compel the Nigerian authorities at the Federal and State levels
to ensure that millions of out-of-school children are afforded
their right to education, access to justice, and ensure reparations
to victims, including restitution, compensation, rehabilitation and
guarantee of non-repetition