Every Child has a Right to Develop

Link to the Laws cited in this Article https://progender.org/laws-cited-in-the-article-every-child-has-a-right-to-develop/

Link to the abridged version of this Article https://progender.org/14-points-on-the-article-every-child-has-a-right-to-develop/

The above is one of the rights of the child provided and guaranteed under local, regional and international laws.

Recent occurrences in the African cybersphere are troubling for the right of a child to development. Sometime in 2022, the abuse tape of a child, who as at then schooled in Lagos¹, was released. This November 2024, news was abound that a certain citizen of Equatorial Guinea was enmeshed in sex tapes scandal, it was alleged that there were about 400 sex tapes recovered.² These tapes were released on social media.

It has been estimated that “more than 5 billion people around the world use social media.”³ I could not get the exact data but there are reports of rising number of children, young persons using social media⁴. Examples of social media include – Facebook, Instagram, X, Telegram, YouTube, WhatsApp, etc.

We must sound the alarms now and save the African continent, save the children, save womanhood, save motherhood, save humanity, save dignity, save integrity, save neighborliness, save virtue. If the number of sex tapes being reported by the media is true, then there is a sex tape epidemic in the continent, someone or persons have put the populace at risk. The direct parties involved should not be shamed nor subjected to ridicule, their families, children (whether biological or not) and concerns as well. Whoever caused those images to be released should be made accountable.

The Violations

Every child who comes across any of the sex or sexual images from the recordings has had their rights infringed upon. Local, regional and international laws protect the rights of the child as a human being and as a minor. The rights to life, dignity, privacy, family life, mental health, freedom from torture and so on are some of the rights guaranteed. The recent occurrence has in some way or the other violated or derogated from local, regional and international regulations which protect the child. Below are listed some of the violations or derogations –

1.       Right to life.

• CRC – Article 6

• CFRN – Section 33

• ACHPR – Article 4

• UDHR – Article 3

• ICCPR – Article 6

• ACRWC – Articles 5(1)

I like to adopt the argument that the right to life is in some way derogated from when the right to adequate standard of living is impeded. The standard of living of children is impeded by images which make the cyberspace unsafe for them.

2.       Right to development

• CRC – Articles 6(2), 27, 29

• CRA – Section 4

• ACHPR – Articles 24, 29

• ACRWC – Articles 5(2), 11(2) (a), 20(1) (b), 21(1)

• ICESCR – 13

Their right to development is hampered when the cyberspace is unsafe for them. Their development should not be geared that it is acceptable or normal to release intimate images of persons, or that is acceptable to make such images without adequate consent.

3.       Right to information which promotes their well being.

• CRC – Article 17

With the release of the images, the moral well being, physical, mental and spiritual health of African children are put in jeopardy.

4.       Right to education⁵

• CRC – Article 29

• ACHPR – Article 17

• ACRWC – Article 11

• ICESCR – Article 13  

The education of children should be directed to aid in their right formation and to help them attain their highest potentials. They should not be educated by or with the intimate images that have flooded internet. The time children spend on the internet, depending on the circumstance may form part of their formal or informal education.

5.       Right to health (particularly mental health) 

• CRA – Section 13

• ACHPR – Article 16

• ICESCR – Article 12

Children have a right to good mental health. Their mental health and development must be preserved and protected.

Children of the Parties

The rights of children (whether biological or not) of the direct parties involved have been trampled upon as well. Their rights to dignity, privacy, family life, preservation of identity, and so on have been trampled upon. Children are intricately connected to their parent(s), being minors there are matters which they cannot undertake by themselves, such as – to enter contract, sue and be sued, acquire or dispose property, give consent, etc. (save where exceptions apply). An unlawful interference in the privacy right of their parent(s) is also an unlawful interference in their right to privacy. A derogation of the right of their parent(s) to dignity is also a derogation of their right to dignity. They are dependents of their parent(s) or guardians. Below are listed some of the violations or derogations –

1.       Right to dignity

• CRA – Section 11

• CFRN – Section 34

• ACHPR – Article 5

• UDHR – Article 1

The rights of their children to dignity have been impeded with the release of the images. Their parents being subjected to ridicule, and undignified in the process, the dignity rights of the individuals have been trampled upon. This affects the dignity of their children and families. 

2.       Right to privacy

• CRC – Article 16

• CRA – Section 8 

• CFRN – Section 37 

• ACRWC – Article 10 

• UDHR – Article 12

• ICCPR – Article 17

The derogation of the right of the individuals to privacy is also a derogation of the right of their children to privacy. Asides this, the events that have occurred have made them subjects of public scrutiny; this may also constitute a breach depending on the facts.     

3.       Right to family, family life

• CRC – Article 16

• CRA – Section 8

• ACRWC – Article 10

• UDHR – Article 12

• ICCPR – Article 17

The rights of the children to family, family life have been grossly impeded. Some of them may stop going to school for a while⁶, some may change school, their family may have to change location, some of the children may delete or have their social media accounts deleted, some of the children have been restricted from leaving the house or doing things which they ordinarily do, their interactions with relatives, family friends and friends may have been restricted or stopped entirely.

4.       Right to preservation of identity

• CRC – Article 8

The right of the children to preserve their identity, family relations is impeded. The identities of their parents have been undesirably exposed and brought to ridicule.

5.       Right to parental care

• CRA – Section 14 

• ACRWC – Article 19

The children are entitled to parental care. If the psychological, emotional, mental well being of their parents have been affected as a result of the release of the sex images, this might also affect their ability to render parental care. The ability of their parents to earn a living is possibly affected by the occurrence – it was reported that the man in the occurrence, was dismissed from his job⁷, some may argue that he was dismissed for his conduct and not for the sex images, one way or another the sex images adds to the debacle. The financial stance and future of the families may be jeopardized if the parents’ ability to earn a living is impeded.

Money that should be spent on the children and the family may be spent on other matters – such as legal fees, social media / image consultants and so on.

Recognition and Protection of the Family

Regional and International Regulations recognize and guarantee protection for the family. Some of the relevant regulations include –

• ACHPR – Article 18

• ACRWC – Article 18 

• UDHR – Article 16(3)

• ICCPR – Article 23(1)

• ICESCR – Article 10(1)

The families which have been directly affected should be afforded the protection which these regulations provide.

ACHPR a Unique Regional Regulation

The ACHPR spells out some duties for individuals and the state. Some of these duties are to fellow individuals, the state, community, family, and so on. Other international regulations also stipulate some duties as well. Some duties are contained in the following articles –

Duties to the family, society, state. Duty of mutual respect and tolerance. Duty to preserve harmonious development of the family.  

• ACHPR – Articles 27, 28, 29 (duties of individuals)

Duty of state to ensure that the child has access to information and material that promote their moral well being, physical and mental health.

• CRC – Articles 17, 29 (1)(a)(b)(c) (duties of the state)

Duty of state to protect against child abuse and torture. Duty of state to eliminate harmful social and cultural practices.

• ACRWC – Articles 16, 21 (duties of the state)

Special protection measures to be taken for children and young persons to protect them from social exploitation.

• ICESCR – Article 10(1),(3) (duties of the state)  

Responsible Journalism and dissemination of information

With more than 5 billion users of social media in the World⁸, in some way or another we are disseminating information; so social media users should as much as possible practice safe dissemination of information.

Journalists and social media users can mitigate the situation at hand by not publicly sharing the images, but if they must share them, then the faces of the parties involved should be blurred or covered, to protect their identity. More so because there are controversies as to whether or not the recordings were consented to, even if there was consent, to what degree?

Social Media Platforms Have a Role to Play

Social media platforms have an increased role to play. Children and young persons make use of social media.

Under its Terms of Service, WhatsApp states that one must be at least 13 years old to use their services –

“Age. You must be at least 13 years old to register for and use our Services (or such greater age required in your country or territory for you to be authorized to register for and use our Services without parental approval). In addition to being of the minimum required age to use our Services under applicable law, if you are not old enough to have authority to agree to our Terms in your country or territory, your parent or guardian must agree to our Terms on your behalf. Please ask your parent or guardian to read these Terms with you.”⁹

Social media platforms should be responsible for their services accessed by minors who use their platform. Reasonable steps are taken to protect minors from harmful content.

The social media platform has stated in its policies, the steps it takes to keep the platform safe from unwholesome content, such as –

“Actions We May Take –

When we become aware of illegal content or a violation of our terms and policies, we may take action, including the following, and depending on the nature of the content or violation:

•Warning users of violations of these Guidelines

•Temporarily or permanently suspending an account on our service

•Preventing further activity in groups and/or communities [more info here]

•Removing violating account or group profile information from our servers

•Revoking or blocking use of a group or community’s invite link, and/or

•Reporting child sexual abuse material to NCMEC and/or competent authorities

We may take additional actions as reflected in the WhatsApp Terms of Service.”¹⁰

The social media platform has banned the sharing of illegal content. See also their privacy policy.¹¹

Non-Governmental Organisations (NGOs) have a role to play

NGOs should co-operate with the Government, citizens and other stakeholders to create solutions to the problem.

The Function of ACHPR

ARTICLE 45
“The functions of the Commission shall be:

To promote human and peoples’ rights and in particular:
to collect documents, undertake studies and researches on African problems in the field of human and peoples’ rights, organise seminars, symposia and conferences, disseminate information, encourage national and local institutions concerned with human and peoples’ rights and, should the case arise, give its views or make recommendations to Governments.
to formulae (sic) and lay down, principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms upon which African Governments may base their legislation.
cooperate with other African and international institutions concerned with the promotion and protection of human and peoples’ rights.”

Africa abounds with beautiful cultures, mutual respect for fellow human beings.

The Cs

Consent, create, containment, contamination, continuous, compounding, compensation.   

There have been claims of consent or no consent in the creation of the sex tapes. Even if there was consent, to what degree (also, degree as to period of storage), was there also consent in the release and sharing thereof? Any creation of the sex tape without adequate consent is a gross violation of the person(s).

If there was adequate consent in the creation, then the images should have been contained because they have the capacity to do peril. Having failed to contain the images, the African cybersphere has been contaminated.

This is neither an advocacy for, nor against extra-marital sex, the creation of sex tapes, etc. (that is not our focus). However, in the eyes of the law, recordings of intimate or private nature in private places have to be consented to. I have read of a country where hosts are legally required to inform guests of CCTV cameras installed in areas of the house where the guest is reasonably expected to have access to.

The release of the sex tapes and the continuous sharing is a continuous gross violation of the persons, it compounds the situation and the negative effects.

There should be apologies and adequate compensation for the children of the direct parties. There should never be any blame or consequences for them.

In Nigeria, Section 24 of the Cybercrime (Prohibition, Prevention, etc.) Act 2015 prohibits cyberstalking.

A case for Strict Liability

We have all been affected in one way or another. Having not asked to be inundated with reels or sexual images of real people in real circumstances.

Let us call to mind the rule in Rylands v Fletcher.

“The tort known as the rule in Rylands v Fletcher as established in this case is:

“A person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequences of its escape” ”¹²

The inundation of the sex tapes are damaging for the continent¹³ (assuming and hoping that it has not spilled over to the cybersphere of other continents). They are a gross violation of the rights of the children of the continent. The African child deserves to be compensated.

Case law

Article 8 ECHR

In the case of Khadija Ismayilova v. Azerbaijan 65286/13 57270/14 the applicant a journalist in Azerbaijan had complained that her privacy rights under Article 8 of the ECHR had been breached and that the breach was carried out in relation to her practice of her profession as a journalist. There were also allegations that the breach was carried out on the orders of official authority.

In her Judgment of 10/4/2019 the European Court of Human Rights (Fifth Section) held –

“…

116.  The Court considers that the acts complained of were grave and an affront to human dignity: an intrusion into the applicant’s home in the form of unauthorised entry into her flat and installation of wires and hidden video cameras inside the flat; a serious, flagrant and extraordinarily intense invasion of her private life in the form of unauthorised filming of the most intimate aspects of her private life, which had taken place in the sanctity of her home, and subsequent public dissemination of those video images; and receipt of a letter threatening her with public humiliation. Furthermore, the applicant is a well-known journalist and there was a plausible link between her professional activity and the aforementioned intrusions, whose purpose was to silence her (see further paragraph 119 below).

…

174.  The Court refers to its findings of violations of Articles 8 and 10 of the Convention. The acts complained of were of particular gravity (see paragraph 116 above) and the authorities failed to comply with their positive obligations to take effective investigative and protective measures, instead disclosing further personal information in breach of the applicant’s privacy. The Court considers that she must have suffered significant distress and damage to her personal and professional life as a result. In such circumstances, ruling on an equitable basis, the Court awards the applicant EUR 15,000 in respect of non‑pecuniary damage.

…”¹⁴

Conclusion

The sex tape epidemic has shown that there is urgent need for special protection measures for the African woman and the African child.

The parties should be allowed to live. The children of the parties should be allowed to live and to attain their highest potentials. The women should be allowed to live. Of events such as this, my mentor Esther Uzoma would say – “these are the exigencies of life”.

Definitions

Child

“ “child” means a person under the age of eighteen years;”¹⁵

Sex tape

I could not find a dictionary meaning for sex tape in Black’s Law Dictionary (Ninth Edition 2009), Oxford English Dictionary (Ninth Edition 2015), Oxford English Dictionary (online)¹⁶, The Law Dictionary (online)¹⁷. So it might be an urban term.

The English dictionary app¹⁸ defines sex tape (plural sex tapes) as –

“1. A video recording of a sex act, especially one starring a celebrity.”

Epidemic

“1 a large number of cases of a particular disease happening at the same time in a particular community: … 2 a sudden rapid increase in how often sth bad happens: …”¹⁹

Thank you.

Stephanie Orji lawyers at Heptagon & Associates, a full service law firm in Abuja, Nigeria. She recently crafted a book for children and all rhyme lovers – Happy Children’s Read and Recite.

23-November-2024.

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1. It was a public fact. I would have added a reference, but the web article I saw, named an alleged social media account as belonging to the child. Protection of the identity of children in circumstances as this is integral. ↩︎
2. https://punchng.com/400-sex-tapes-equatorial-guineas-baltasar-remanded-in-prison/ accessed on 18^th November, 2024. ↩︎
3. https://www.investopedia.com/terms/s/social-media.asp accessed on 18^th November, 2024. ↩︎
4. https://www.vaticannews.va/en/africa/news/2023-08/rise-in-social-media-usage-among-africa-s-young-people-raises-co.html , https://www.unicef.org/wca/node/2191 accessed on 18^th November, 2024. ↩︎
5. 2024 is themed – “The Year of Education
   Educate an African fit for the 21^st Century: …” https://au.int accessed on 20^th November, 2024. ↩︎
6. Their right to education is also impeded in this wise. ↩︎
7. https://punchng.com/400-sex-tapes-equatorial-guineas-baltasar-remanded-in-prison/ accessed on 18^th November, 2024. ↩︎
8. https://www.investopedia.com/terms/s/social-media.asp accessed on 18^th November, 2024. ↩︎
9. Terms of Service (whatsapp.com) accessed on 18^th November, 2024. ↩︎
10. WhatsApp Messaging Guidelines accessed on 18^th November, 2024. ↩︎
11. Privacy Policy (whatsapp.com) ↩︎
12. Cited in Ese, M., Law of Tort, Ikeja, Princeton Publishing Co., 2008, 379. ↩︎
13. Investigation, research, data will further reveal to what extent ↩︎
14. https://hudoc.echr.coe.int/eng?i=001-188993 accessed 21^st November, 2024. ↩︎
15. Section 277 Child Rights Act, Article 2 ACRWC ↩︎
16. https://www.oed.com/search/dictionary/?scope=Entries&q=Sex+tape accessed 21^st November, 2024. ↩︎
17. https://thelawdictionary.org/?s=Sex+tape+ accessed 21^st November, 2024. ↩︎
18. The app states that the text is extracted from the Wiktionary and it is available under the CC BY-SA 3.0 license – accessed 21^st November, 2024. ↩︎
19. A S Hornby, Oxford Advanced Learner’s Dictionary of Current English, Oxford, Oxford University Press, Ninth Edition, 2015, 516 ↩︎