1 See, for example: Sen, ADevelopment as Freedom (1999, Oxford University Press) at 40–43 and 292–95Google Scholar; and Verspoor, A and Bregman, JAt the Crossroads: Challenges for Secondary Education in Africa (2008, World Bank Africa Human Development Department) at 65–80Google Scholar.

2 UN Committee on Economic, Social and Cultural Rights “General comment 13 on the right to education” (2003) para 1, available at: <http://unesdoc.unesco.org/images/0013/001331/133113e.pdf> (last accessed 1 April 2008).

3 It is important to point out that, under the current administration of President Umaru Yar'Adua, the Federal Ministry of Education has decided to halt the proposed hand-over of the management of unity schools to private hands. The reason given for the reversal is that “the manner the [public-private partnership] arrangement was hastily put in place did not give room for wider consultations on how best the schools could be effectively and efficiently managed”. See D Apeh “FG suspends sale of unity schools” (22 September 2007) Leadership (Abuja), available at: <http://allafrica.com/stories/200709240330.html> (last accessed 1 April 2008). See also C Nwankwo et al “Presidency stops sale of unity schools” (21 November 2007) Punch Newspaper, available at: <http://www.punchng.com/Articl.aspx?theartic=Art2007112113273010> (last accessed 1 April 2008). The government has therefore re-opened the issue for debate and this article is the author's contribution to that debate.

4 The Education (National Minimum Standards and Establishment of Institutions) Act, no 16 of 1985, sec 6. See also Woolman, DC “Educational reconstruction and post-colonial curriculum development: A comparative study of four African countries” (2001) 2/5 International Education Journal 27 at 34 and 37Google Scholar.

5 The Compulsory, Free Universal Basic Education Act, no 8 of 2004 of the Federal Republic of Nigeria.

6 The Constitution of the Federal Republic of Nigeria, 1999, second schedule, part II, item L, paras 27–30. See also the Constitution of the Federal Republic of Nigeria, 1979, second schedule, part II, item L, paras 27–29.

7 The Federal Ministry of Education “Nigeria education sector diagnosis: A framework for re-engineering the education sector (A condensed version)” (May 2005) at 23, available at: <http://portal.unesco.org/education/en/file_download.php/68a36e98413678fbc077ef3ac480a9a3ESA+Nigeria.pdf> (last accessed 1 April 2008). See also The World Bank “Nigeria science and technology education at post-basic level (STEPB)” (October 2006) at 9 (table 2), available at: <http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2007/01/10/000020953_20070110112647/Rendered/PDF/379730NG.pdf> (last accessed 1 April 2008).

8 The World Bank, id at 9 (para 24, tables 2 and 3).

9 Statistics from the Federal Ministry of Education of Nigeria; on file with the author.

10 O Ezekwesili “Briefing on the outcome of the selection exercise for school management organizations” at 3, available at: <http://www.fme.gov.ng/fmecms/File/MINISTER_PRESENTATION_SMOs.pdf> (last accessed 15 June 2009). On the general purpose of secondary education in Nigeria, see sec 5 of the Education (National Minimum Standards and Establishment of Institutions) Act, chap 104, Laws of the Federation of Nigeria 1990.

11 Nwana, OCThe Future of Federal Government Colleges (1994, NERDC Press) at 3–4Google Scholar. See also the Federal Ministry of Education “Nigeria education sector diagnosis”, above at note 7 at 99–100.

12 This is a popularly held view. See IRIN “Nigeria: Privatizing schools and national unity” (13 July 2007), available at: <http://www.irinnews.org/report.aspx?reportid=73242> (last accessed 1 April 2008).

13 This outline of the management structure is based on an interview held in Lagos on 8 October 2007 with Yetunde Holloway, a former FME director.

14 Akinkugbe, OFinancial Management and Quality of Education in a Decentralized Setting – The Nigerian Case (2003, Council for the Development of Social Science Research in Africa – CODESRIA) at 15Google Scholar, available at: <http://www.codesria.org/Links/Training_and_Grants/adea/Nigeria2003_final_report.pdf> (last accessed 1 April 2008).

15 See the definition of “civil service of the Federation” under sec 318(1) of the Constitution.

16 Adeogun, AAEducational Agencies in Nigeria (2002, Olatunji & Publishing Press) at 139–40Google Scholar.

17 The Education (National Minimum Standards and Establishment of Institutions) Act, secs 4(1) and 15.

18 Giwa, FO “The concept of supervision and the supervisor's role in the Nigerian educational system” (1993) 13 Ilorin Journal of Education 1 at 7–8Google Scholar, available at: <http://www.ijeunilorin.net/dec1993/index.php> (last accessed 1 April 2008).

19 The National Commission for Colleges of Education Act, no 3 of 1989 and the National Commission for Colleges of Education (Amendment) Act, no 12 of 1993.

20 The Constitution, second schedule, part I, item 60(e).

21 See, for example: E Edukugho “2006: Reinventing education by Ezekwesili” (4 January 2007) Vanguard, available at: <http://allafrica.com/stories/200701040602.html> (last accessed 1 April 2008); I Ahmed “Controversy trails unity schools public/private partnership” (25 February 2007) Weekly Trust, available at: <http://allafrica.com/stories/200702260558.html> (last accessed 1 April 2008); O Nzeshi “Why we're involved in unity schools – Pro Unitate” (24 July 2007) ThisDay Newspaper, available at: <http://allafrica.com/stories/200707250042.html> (last accessed 1 April 2008); and Ezekwesili, OCrisis: The State of the Nigerian Educational System and the Agenda for Reform (2006, FME) at 47–50Google Scholar, available at: <http://www.fme.gov.ng/Downloads/Crisis.pdf> (last accessed 1 April 2008).

22 Tooley, J and Dixon, P “‘De facto’ privatization of education and the poor: Implications of a study from sub-Saharan Africa and India” (2006) 36/4 Compare 443CrossRefGoogle Scholar at 445.

23 Nwabueze, BOCrises and Problems in Education in Nigeria (1995, Spectrum Books Limited) at 32–33Google Scholar. In summarizing the contents of a 1993 report submitted after the conduct of a special inspection exercise covering 200 carefully selected secondary schools in Nigeria, a former minister of education said: “The other shortcomings highlighted in the Report include: the over-centralization of power and control in the various Ministries of Education which robs the schools of individuality, since the principals are left with little or no initiative in the management of their schools, little or no power to enforce discipline, little or no power over the selection of teachers to be posted to their schools, and are forced to spend a disproportionate amount of time shuttling between the school and the Ministry; inadequacy in the qualification and experience of principals and teachers; poor welfare facilities for teachers resulting in poor motivation. What emerges from the exercise is generally low and deteriorating standards in our secondary schools.”

24 In an interview with The Guardian, C Obaji, a former minister of education, said that many teachers often resisted being posted to some unity schools in remote parts of the country, thereby leading to a situation whereby the “elite” unity schools had multiple teachers for certain subjects whereas other unity schools did not have any teachers for them. See Oyekanmi, RL “Education reform agenda for fine-tuning” (20 December 2007) The Guardian at 38Google Scholar. Recently, the West African Examinations Council (WAEC) rated 11 of the 102 unity schools as “outstanding” based on their performance in the 2006 senior school certificate examination (SSCE). See Belo-Osagie, K “By their ranking, you shall know good schools” (3 June 2007) The Nation on Sunday at 13–17Google Scholar. Although it is possible to challenge the utility of the rankings on the ground that the entire exercise was limited to the results of the best 50 candidates from each school, the author's reliance on it is simply aimed at showing that some of the unity schools perform significantly better than others.

25 Nwabueze Crises and Problems, above at note 23 at 33.

26 Ibid (quoting from the report of the special inspection team submitted on 2 August 1993 by Mr Dennis Okoro, the director of the inspectorate department of the FME).

27 The term “privatization” is used in a broad sense in this article to cover any transfer to the private sector of public money or services originally provided by the public sector. It therefore includes contractual arrangements between the government and the private sector for the private management and running of public schools. In this sense, “privatization” is also used interchangeably with “public-private partnership”. See J Fitz and B Beers “Education management organizations and the privatization of public education: A cross-national comparison of the USA and the UK” (occasional paper no 22 published by the National Center for the Study of Privatization in Education, Teachers College, Columbia University, June 2001) at 3, available at: <http://www.ncspe.org/publications_files/495_op22.pdf> (last accessed 1 April 2008).

28 The Nigerian Child Rights Act, no 26 of 2003, sec 1.

29 The FME's draft education sector reform bill, available at: <http://www.fme.gov.ng/Downloads/Education_Sector_Reform_Bill_Draft.pdf> (last accessed 10 June 2009). It is important to note that, where there were conflicting views between the Bill and other sources on the modalities of the proposed public-private partnership, the author deemed the provisions of the Bill to be more authoritative.

30 Ezekwesili “Briefing on the outcome of the selection exercise”, above at note 10 at 5.

31 See Fafunwa, ABHistory of Education in Nigeria (1974, George Allen & Unwin)Google Scholar and Taiwo, COThe Nigerian Education System: Past, Present and Future (1980, Nelson Pitman Limited)Google Scholar.

32 Act no 7 of 1993 of the Federal Republic of Nigeria (as amended by the Education Tax Fund (Amendment) Act no 40 of 1998 of the Federal Republic of Nigeria).

33 Act no 8 of 2004 of the Federal Republic of Nigeria.

34 The Bill, sec 130(2).

35 See the “purpose clause” of the ETF under sec 117 of the Bill.

36 Id, sec 133. The list of functions is said to be non-exhaustive because the opening paragraph provides that “The functions of the School Management Organization shall include the following”. (Emphasis added)

37 Ibid.

38 Id, sec 132(4).

39 The Companies and Allied Matters Act, no 1 of 1990, cap 59, Laws of the Federation of Nigeria, 1990.

40 Bill, sec 131(2).

41 CAMA, sec 26(3) and (4). Sec 26(5) provides that it is an offence for any company limited by guarantee to carry on business for the purpose of distributing profits.

42 Id, sec 22(2).

43 Id, sec 283(1).

44 According to sec 244(1) of the CAMA, a director is a person “duly appointed by the company to direct and manage the business of the company”.

45 The Bill, sec 132(1).

46 CAMA, sec 7(1)(c).

47 Id, secs 370 and 373 and schedule 10.

48 Id, secs 331 and 334.

49 The Bill, sec 132(3).

50 Id, sec 4.

51 Id, sec 13(c) and (l).

52 Id, sec 38(d).

53 Id, sec 60(a).

54 Id, sec 99(a).

55 FME “Nigeria education sector diagnosis”, above at note 7 at 164. See also Tooley and Dixon “‘De facto’ privatization”, above at note 22 at 458. Also see Belo-Osagie “By their ranking”, above at note 24 at 14–15 (according to the WAEC rankings based on the 2006 SSCE results, over 70% of the best 55 schools across the country were private schools).

56 McDonald, NJ “Ohio charter schools and educational privatization: Undermining the legacy of the state constitution's common school approach” (2005–06) 53 Cleveland State Law Review 467 at 484–85Google Scholar.

57 Colonna, K “The privatization of public schools – A statutory and constitutional analysis in the context of The Wilkinsburg Education Association v Wilkinsburg School District” (1995–96) 100/4 Dickinson Law Review 1027 at 1029Google Scholar.

58 Metzger, GE “Privatization as delegation” (2003) 103 Columbia Law Review 1367 at 1399–400CrossRefGoogle Scholar.

59 20 USC, 6301 (2003).

60 Solomon, LD “Edison schools and the privatization of K–12 public education: A legal and policy analysis” (2002–03) 30 Fordham Urban Law Journal 1281 at 1283–84Google Scholar. See also Fitz and Beers “Education management organizations”, above at note 27 at 17–18.

61 Forman, J Jr “Do charter schools threaten public education? Emerging evidence from fifteen years of a quasi-market for schooling” 2007 University of Illinois Law Review 839 at 843Google Scholar.

62 The Comptroller and Auditor General “The academies programme” (report published by the National Audit Office, 23 February 2007) at 12, available at: <http://www.nao.org.uk/publications/nao_reports/06-07/0607254.pdf> (last accessed 1 April 2008).

63 Ibid.

64 Braun, H, Jenkins, F and Grigg, WA Closer Look at Charter Schools Using Hierarchical Linear Modeling (2006, US Department of Education, National Center for Education Statistics, Institute of Education Sciences) at v–vi and 5–6Google Scholar, available at: <http://nces.ed.gov/nationsreportcard/pdf/studies/2006460.pdf> (last accessed 1 April 2008).

65 The Comptroller and Auditor General “The academies programme”, above at note 62 at 8–9.

66 Oyekanmi “Education reform agenda”, above at note 24 at 38. See also Nwabueze Crises and Problems, above at note 23 at 32–33. On other general problems faced by the FME, see Adeogun Educational Agencies in Nigeria, above at note 16 at 143–44.

67 Ainley, J and McKenzie, P “School governance: Research on educational and management issues” (2000) 1/3 International Education Journal 139 at 149Google Scholar.

68 Tooley and Dixon “‘De facto’ privatization”, above at note 22 at 445.

69 Hansmann, HB “Reforming nonprofit corporation law” (1981) 129 University of Pennsylvania Law Review 497 at 506–07CrossRefGoogle Scholar.

70 Morley, J “For-profit and nonprofit charter schools: An agency costs approach” (2006) 115 Yale Law Journal 1782 at 1815CrossRefGoogle Scholar.

71 The Bill, sec 133(b). The wording of this paragraph is rather clumsy and it is not altogether clear if the taking over of employment contracts is intended to be an obligatory or a discretionary function.

72 According to the former minister, “[t]he transferring staff will be entitled to receive at least the same amount of remuneration and benefits as existed under their prior contracts. Accrued pension obligation of staff will be transferred to pension fund administrators of the employees' choice according to the pensions law and non-transferring staff will remain in the civil service and may be redeployed or transferred based on need.” See J Taiwo “FG assumes education facilitation role” (6 February 2007) ThisDay, available at: <http://allafrica.com/stories/200702070139.html> (last accessed 1 April 2008).

73 In suspending the programme, I Aja-Nwachukwu, the minister of education, is reported to have stated that the public-private partnership arrangement “threatened public interests”. See E Edukugho “Why FG halted sale of unity schools” (18 October 2007) Vanguard, available at: <http://www.vanguardngr.com/articles/2002/features/education/edu527092007.html> (last accessed 1 April 2008).

74 Udombana, NJ “Between promise and performance: Revisiting states' obligation under the African Human Rights Charter” (2004) 40 Stanford Journal of International Law 105 at 115Google Scholar.

75 Adopted by the Assembly of Heads of State and Government of the Organization of African Unity, OAU doc CAB/LEG/67/3/CAB/LEG/67/3, rev 5, 21 ILM 59 (1982). The domestication of the Banjul Charter under the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act of 1983, chap 10, Laws of the Federation of Nigeria, 1990, has transformed it into an enforceable statute in Nigeria. See sec 12(1) of the Constitution: “No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.”

76 Adopted by General Assembly res 217A (III), 10 December 1948, UN doc A/810 (1948).

77 Adopted by General Assembly res 2200A (XXI), 16 December 1966, UN GAOR, 21st supp no 16, at 49, UN doc A/6316 (1966). Nigeria acceded to this instrument on 29 July 1993, but has not yet enacted it into law in accordance with sec 12(1) of the Constitution. The status of ratifications is available at: <http://www2.ohchr.org/english/bodies/ratification/3.htm> (last accessed 1 April 2008).

78 Adopted without vote by General Assembly res 44/25, 20 November 1989, UN GAOR 3d comm, 44th sess, pt III, agenda item 108 at 3: UN doc A/44/736 (1989). Nigeria ratified this instrument on 19 April 1991, but has not yet enacted it into law in accordance with sec 12(1) of the Constitution. The status of ratifications is available at: <http://www2.ohchr.org/english/bodies/ratification/11.htm> (last accessed 1 April 2008).

79 The ICESCR and CRC, above at notes 77 and 78, arts 13(2)(b) and 28(1)(b) respectively.

80 Grover, S “Secondary education as a universal human right” (2004) 16 Education and the Law 21 at 21CrossRefGoogle Scholar.

81 UN Committee on Economic, Social and Cultural Rights “General comment 13”, above at note 2 at paras 6 and 11–14.

82 Free Legal Assistance Group and Others v Zaire, African Commission on Human and Peoples' Rights, comm no 25/89, 47/90, 56/91, 100/93 (1995).

83 Sec 42 of the Constitution guarantees the right to freedom from discrimination. In Adamu v The Attorney-General of Borno State (1994) 8 NWLR 203, it was held that, if the government embarks on the provision of educational facilities, it is obliged to do so in a non-discriminatory manner.

84 In a 2005 survey carried out by the FME, it was found that 50.3% of parents consider lack of finance as the major reason that may prevent their child from progressing to secondary school. See FME “Nigeria education sector diagnosis”, above at note 7 at 256.

85 In Archbishop Anthony O Okogie and Others v The Attorney-General of Lagos State (1981) 2 NCLR 337, the Nigerian Court of Appeal recognized the right of parents and guardians to educate their children and wards in the best possible institutions and in the best traditions and manners.

86 The CRC, art 3(1). This position is strengthened further by the Nigerian Child Rights Act, sec 1.

87 The Constitution, sec 6(6)(c).

88 Id, sec 18(3)(b).

89 The Child Rights Act, no 26 of 2003, sec 15.

90 K Tomasevski “Annual report of the special rapporteur on the right to education” (report pursuant to Commission on Human Rights resolution 2001/297, January 2002) at para 62, available at: <http://www.unhchr.ch/huridocda/huridoca.nsf/(Symbol)/E.CN.4.2002.60.En?Opendocument)> (last accessed 1 April 2008).

91 1155 UNTS 331; 8 ILM 679 (1969); 63 AJIL 875 (1969).

92 General Sani Abacha and Others v Chief Gani Fawehinmi (2000) 6 NWLR (pt 660) 228.

93 Idise v Williams Int Ltd (1995) 1 SCNLR 120.

94 The Constitution, 2nd schedule, pt I.

95 See Amao, OO “Corporate social responsibility, multinational corporations and the law in Nigeria: Controlling multinationals in host states” (2008) 52/1Journal of African Law 89 at 104–05Google Scholar. See also Akande, JIntroduction to the Constitution of the Federal Republic of Nigeria 1999 (2000, MIJ Professional Publishers) at 53Google Scholar.

96 (2002) 9 NWLR pt (772) 222.

97 For example, the African Charter, art 25.

98 McBeth, A “Privatizing human rights: What happens to the state's human rights duties when services are privatized?” (2004) 5 Melbourne Journal of International Law 133 at 152–54Google Scholar.

99 No doubt there will be difficulties enforcing this in a transparent and effective manner.

100 The CRC, art 3(1) and the Child Rights Act, sec 1.

101 See Woolf, M “Coming of age – The principle of ‘The best interests of the child’” (2003) 2 European Human Rights Law Review 205 at 208–09Google Scholar.

102 The author is unaware of any judicial interpretation of sec 1 of the Child Rights Act.

103 Discussed in the first paragraph of the section on “Potential advantages and disadvantages of the reform package” above.

104 O Bojuwoye “A case study of school-related factors affecting Nigerian secondary school pupils' academic performance” (1992) 12 Ilorin Journal of Education, available at: <http://www.ijeunilorin.net/dec1992/index.php> (last accessed 1 April 2008).

105 Okebukola, PA and Jegede, OJ “Determinants of occupational stress among teachers in Nigeria” (1989) 15/1Educational Studies 23CrossRefGoogle Scholar.

106 Verspoor and Bregman At the Crossroads, above at note 1 at 198.

107 R Reinikka and J Svensson “Power of information: Evidence from a newspaper campaign to reduce capture of public funds” (Policy Research Working Paper Series no WPS 3239, 2004), available at: <http://econ.worldbank.org/view.php?type=5&id=34028> (last accessed 1 April 2008).