Conditional Right to Child Education in Nigeria: Punishing the Child for the Parents’ Sins

Abstract

The question this paper seeks to answer is: can the refusal of parents to pay taxes be the basis for the State to deny their child’s right to education? In ISH-16, the High Court of Lagos State, Nigeria, answered the question in the affirmative. This paper seeks to answer otherwise. It argues that human rights theory cannot support the Court’s reasoning. However, because the paper is more legal than philosophical, it neither attempts to give a ‘full’ philosophical account of human rights nor discusses the ‘best’ theory that can support its thesis. Instead, the paper adopts Williams’ Phenomenological Conclusions on human rights and the Kin Punishment Theory to assert its claim. First, the paper argues that from Williams’ Phenomenological Conclusions that P (a State) which owes Y (the child) X (the right to education) and must procure X for Y, the parents’ duty to pay taxes to the State finds no place in those conclusions. Second, the paper posits that the Kin Punishment Theory, a rule of customary international law, prohibits the kin – no matter how close or grave the crime is – from being punished for the sin of a close relative. Human rights theory considers the desert basis for punishing the kin of the offender to be ‘zero.’ The paper lays three premises: (1) that human rights attach to personhood; (2) that a child is a separate person who has a legal personality since human rights law has detached the child from patria potestas; and (3) that requiring a condition (tax payment) from the parents before their child can enjoy the right to education is a punishment. From these premises, the paper concludes that punishing the child (by denying them their right to education) because their parents (other persons) refuse to pay tax violates the Kin Punishment Theory.