Children's Rights in Africa

A Legal Perspective

Julia Sloth-Nielsen, Julia Sloth-Nielsen

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317167525
• Edition: 1
• Topic: Law
• Subtopic: Family Law
• Index: Law

This collection is anchored in an African conception of children's rights and the law, and reflects contemporary discourses taking place in the region of the children's rights sphere. The majority of contributors are African and adopt an individual approach to their topic which reflects their first-hand experience. The book focuses on child rights issues which have particular resonance on the continent and the chapters span themes which are both broad and narrow, containing subject matter which is both theoretical and illuminated by practice. The book profiles recent developments and experiences in furthering children's legal rights in the African context, and distils from these future trends the specific role that the law can play in the African children's rights environment.

PART I

Chapter 1
Children’s Rights and the Law in African Context: An Introduction

Julia Sloth-Nielsen

As Murray points out, the notion of the protection of children and fulfilment of their rights is not new on the African continent, the first Declaration on the Rights and Welfare of the Child having been adopted by the Assembly of Heads of State and Government in 1979 (Murray 2004, 165). Furthermore there have been a number of Declarations and Resolutions adopted by OAU/AU (Organization of African Unity/African Union) organs concerning children, primarily related to development, health and children affected by armed conflict. The pride of place, however, is occupied by the regional treaty, the African Charter on the Rights and Welfare of the Child (ACRWC), which was adopted in 1990, and which entered into force shortly before the dawn of the new millennium in 1999 at about the same time that much of Africa and her children were emerging from the devastating impact and economic consequences of Structural Adjustment Programmes. Lloyd has previously noted:

The African children’s charter prides itself on its African perspective on rights, yet was inspired by the trends evident in the UN system. It was intended to be a complementary mechanism to that of the UN in order to enhance the enjoyment of the rights of children in Africa. (Lloyd 2002, 182)

From the outset, it must be granted that many a reader will be familiar with the tales of Africa’s misery and woe that constantly feature in popular media, in hard-hitting research reports and in global debates about the continent’s future (both from an economic and from a human rights perspective). As Viljoen, writing in 2000, pointed out:

In many respects, children are more likely to be victims of human rights violations than adults, and African children are more likely to be victims than children on other continents. Causes of human rights violations in Africa, such as poverty, HIV/Aids, warfare, famine and harmful cultural practices have a disproportionate impact on the continent’s children. (Viljoen 2000)

It cannot be gainsaid that serious underdevelopment, prevalent violations of children’s basic rights, war, famine and disaster, not to mention the devastating impact that is being wrought by HIV/Aids in sub-Saharan Africa, commonly tarnish the idea that African children may benefit positively through conferring human rights-compliant legal rights upon them. However, as the chapters in this volume spell out, considerable progress has been made towards making children’s rights visible in a variety of domains on the continent since the entry into force of the ACRWC.

This volume of essays is anchored in an African conception of children’s rights and the law, and reflects contemporary discourses taking place in the region in the children’s rights sphere. In focusing on child rights issues which have particular resonance on the continent, the chapters span themes which are both broad and narrow; they contain subject matter which is both theoretical and illuminated by practice; the pan-African focus has been fostered by the existence of a growing network of collaboration and information dissemination amongst lawyers, academe and policy makers in this region (African Child Policy Forum 2007b). The central objective of all the contributions, however, is to profile recent developments and experiences in furthering children’s legal rights in the African context, and to distil from these future trends for Africa’s child rights environment, and the specific role that the law can play in this.

The chapters in Part I of this volume are general in nature. The regional human rights architecture is characterized by an overarching treaty providing for the human rights of African peoples (the African Charter on Human and Peoples’ Rights – ACHPR). The ACHPR has recently been elaborated with the addition of an optional protocol on women’s rights (Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women – AWP), and in July 2004, the statute for the establishment of an African Court on Human Rights came into operation. Setting the scene for ensuing chapters by elaborating this architecture for the protection of human rights in the African regional system is Olowu in Chapter 2, who additionally charts the restructuring of political governance at the regional level that has taken place in recent times. He describes the demise of the OAU, and the birth of the AU, the development of the New Partnership for Africa’s Development (NEPAD), Africa’s commitment to immediate action for the creation of a climate conducive to sustainable economic development, and its internal self-review mechanism, the African Peer Review Mechanism (APRM), which has attracted international interest and support (see too, Chirwa, Chapter 6). Seen together, it is arguable that these treaties and the concrete commitments recently put in place by NEPAD and the APRM already go some way to providing the basis for a more optimistic outlook regarding the future implementation of children’s rights in Africa.

The regional body tasked with oversight of the ACRWC, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) is, at the time of writing, poised to consider the first four country reports received. The key features of the ACRWC and the achievements and challenges faced by the ACERWC form the subject matter of Chapter 3 authored by Lloyd, and the normative framework of the substantive provisions of the African Children’s Charter also underpin the analyses in subsequent thematic chapters.

Chapter 4 (Sloth-Nielsen) documents the ongoing project of domestication of children’s rights across the continent. Commencing with an overview of the elaboration of children’s rights in African constitutions, particular attention is paid to the impact of South Africa’s constitutional clause pertaining to children’s rights, adopted a decade ago and hailed as the most extensive constitutional protection for children anywhere. The fact that the constitutional rights enumerated therein are justiciable, including the socio-economic rights accorded to children, has led to an evolving jurisprudence which has attracted international repute (Innocenti Centre 2008; Sloth-Nielsen 2002; Sloth-Nielsen and Mezmur 2007b).

This chapter also reviews the domestication processes and law reform initiatives that have been taking place on the continent since the adoption of the first comprehensive children’s act, that of Uganda in 1996. These endeavours have the aim of reshaping the colonial heritage, of modernizing and synthesizing child law, and of domesticating international human and child rights standards, and of targeting especially vulnerable groups of children for enhanced legal protection. The law reform processes in each of the examples have followed different trajectories, have involved a variety of stakeholders and partners, and are currently at various stages of completion. Some are still being drafted, others have been enacted, whilst a third group await introduction to, or passage through, parliament.

It has been pointed out that considerable regional sharing of ideas and proposed provisions has occurred, and that in many ways indigenous innovation has been fostered. This cross-border fertilization has arguably been the most extensive in the field of child justice, both from the programmatic and from the legislative points of view. Since the mid-1990s, South African NGOs have provided diversion programme training in Zambia, Kenya, Malawi and Lesotho, to name a few examples (Gallinetti and Sloth-Nielsen 2004; Sloth-Nielsen 2006). There is clearly a need for an expanded focus on children and access to justice in Africa more broadly, beyond the sub-Saharan countries that have thus far benefited from regional collaboration.

It can be suggested, too, that the benefits of these legal processes are not simply confined to the realm of law, rights and forms of adjudication: there have been economic spin offs, enhanced public awareness of children’s rights through participative exercises that accompanied the law reform processes (also discussed by Ehlers and Franks in Chapter 7), and concerted examination of the structures and resources necessary for the fulfilment of children’s rights at a more practical level.

Himonga (Chapter 5) situates a changing perspective on the role of culture and customary law – and hence the place of children in African society at large – within the context of a shifting socio-political environment, brought about, amongst other reasons, by altered family and kinship structures. She highlights the intersections between customary law and children’s rights, pointing to the cultural sensitivity of recent statutory legal reforms and their dispute resolution mechanisms which attempt to harness traditional structures to the benefit of children. Concluding that African customary child law is increasingly acquiring a new face, she situates this in the intersection brought about by new children’s legislation and living customary law systems.

As Chirwa notes in Chapter 6, Africa is currently experiencing a wave of democratization, and a raft of new constitutions have shepherded in fragile, but fledgling, democracies. Further to this, though, economic indicators appear to be improving, and there is globally and on the continent a great degree of consensus concerning at least some of the goals of economic recovery via, for instance, the Millennium Development Goals. Chirwa situates his discussion about socioeconomic rights in the context of the general neglect of this group of rights in African constitutions, and their under-protection at the domestic level, even where they do enjoy constitutional protection. He argues for more targeted measures to ensure the fulfilment of children’s socio-economic rights, and that they be accorded priority status in all development endeavours.

The past decade has undeniably seen the traditional invisibility of the African child dissipate, in favour of rights-based approaches and a more prominent societal role being accorded to children who, in most African countries, constitute fully 50 per cent of the population. In customary and traditional African society, children occupied a silent space in the kinship structure, depending on adult intervention for a voice. However, African children’s voices are increasingly being heard in matters which concern them; they have achieved heightened prominence in processes ranging from the quasi-political (through children’s parliaments for example), to the fiscal and economic terrain (Barberton 2006; Innocenti Centre 2007), and extending to the legal and jurisprudential terrains (Sloth-Nielsen and Mezmur 2007b).

The more general chapters in Part I set the scene for the consideration of the individual themes dealt with in Part II. This second section of the book deals with selected individual topics, ranging from inter-country adoption, to the rights of children with disabilities, to child soldiers and refugee and migrant children. The themes forming the topics of each chapter in Part II are of critical significance to Africa as a whole and were selected for that reason. The authors use the matrix of the legal aspects of children’s rights in African context as the lens through which their analysis is presented. As a general proposition, the view is propounded that child law – international law and national law – is providing a useful tool for the advancement of children’s rights at a practical level, and that further development of a regional child rights jurisprudence is warranted (Skelton, Chapter 8 and Odongo, Chapter 9, for instance).

The first chapter in Part II, Chapter 7 (Ehlers and Franks), deals with child participation in African law reform processes, amongst others, and reflects on the extent to which authentic voices of children have been captured and integrated in the processes they have chosen to profile. Child participation in the recent Global Study on Violence in various regions on the continent has revealed the rich contribution that children’s voices can make in researching children’s rights and remedies, and above all, the child participation processes that were part of the Global Study have definitively placed the African child on the centre stage in debates that affect them (see also Chapter 10 [Kassan] for a discussion of African children’s voices in relation to the UN Violence Study).

Children in conflict with the law feature in both Chapters 8 and 9. Successful juvenile justice reforms have been introduced in a number of jurisdictions in Africa, with a growing continental emphasis on diversion and alternative programmatic responses to children in conflict with the law, approaches which at the same time overcome the resource constraints that prevail in African context. Some relevant initiatives are detailed in Skelton’s chapter on restorative justice and children’s rights in African context (Chapter 8), others appear in the study of law reform in six African countries in the child justice sphere by Odongo (Chapter 9). Skelton cites positive examples of indigenous approaches (in countries such as Uganda, Namibia and Lesotho) to harness beneficial customary structures and traditions to support children’s rights (Sloth-Nielsen 2006). Both chapters also demonstrate how regional skills transfer is occurring to develop human resource capacity and locally appropriate solutions.

Chapter 10 (The Protection of Children from All Forms of Violence – African Experiences) updates continental developments that have occurred especially in the build up to the UN Study on Violence against Children, although the point is clearly made that corporal punishment is regarded as being culturally acceptable on a pervasive basis, to the extent that only in the recent Interim Constitution of Southern Sudan has a prohibition on parental physical punishment been provided for. It is testimony to the resilience of beliefs about the practice that even in the South African law reform process that is described in detail in several chapters in this volume, a legislative ban on parental corporal punishment has not, at the time of writing, successfully passed parliamentary muster.

In Chapter 11, titled ‘The Protection of Refugee Children under the African Human Rights System: Finding Durable Solutions in International Law’, Kaime reviews the applicable legal context with the specifics of the problems facing migrant and refugee children on the African continent. In this regard, the provisions of the African Children’s Charter are particularly nuanced towards the effective promotion of the rights of displaced children. The quest for durable solutions may be described as an endeavour towards normalcy, entailing that all the rights to be afforded to refugee children are taken into account by states parties, onerous though these might be.

In Chapter 12, Mezmur reviews the applicable international legal framework addressing various aspects relevant to child soldiers, an enduring feature of regional conflicts in places such as Chad, the Democratic Republic of the Congo (DRC), Congo-Brazzaville and Sudan. He reviews recent literature illustrating the variety of roles in which children play a role in armed conflicts, and how this has affected the contemporary legal framework, with emphasis on the Optional Protocol to the Convention on the Rights of the Child (CRC) dedicated to the issue of child soldiers and the new safeguards it employs. The review also addresses novel provisions enshrined in the Optional Protocol regarding post-conflict issues, including demobilization and reintegration of child soldiers, but ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface
• List of Abbreviations
• PART I
• PART II
• Index