Children's Lives in an Era of Children's Rights

The Progress of the Convention on the Rights of the Child in Africa

Afua Twum-Danso Imoh, Nicola Ansell, Afua Twum-Danso Imoh, Nicola Ansell

• Verlag: Routledge
• Jahr: 2014
• ISBN:
  9781135071776
• Auflage: 1
• Thema: Law
• Thema: Family Law

The Convention on the Rights of the Child (CRC), which was adopted unanimously by the United Nations General Assembly in 1989, marked a turning point in the perception of children in international law and policy. Although it was hoped that the Convention would have a significant and positive impact on the lives of all children, this has not happened in many parts of the world. This edited volume, based on empirical research and Non-Governmental Organisation project data, explores the progress of the Convention on the Rights of the Child, and to a lesser extent, the African Charter on the Rights and Welfare of the Child, in nine African countries in the 25 years since it was adopted by the UN General Assembly. The book considers the implementation of the Convention both in terms of policy and practice, and its impact on the lived experiences of children in societies across the continent, focusing on specific themes such as HIV/AIDS, education and disability, child labour, witchcraft stigmatisation, street children, parent-child relationships and child participation. The book breaks new ground in blending legal and social perspectives of the experiences of children, and identifies concrete ways forward for the better implementation of the CRC treaty in the various political contexts that exist in Africa.

1 Realizing children’s rights in Africa

An introduction

Afua Twum-Danso Imoh

Rationale and background

Two key anniversaries will soon be celebrated in the international human rights system. Both the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) will be marking their 25th anniversaries on 20 November 2014 and 11 July 2015 respectively. The anniversaries of these treaties are significant as they both marked a turning point in how children were perceived within international and regional human rights frameworks.

The Convention, which was the culmination of over 100 years of international discourse on children’s rights and the successor to two international declarations (the 1924 Declaration on the Rights of the Child and the 1959 Declaration of the Rights of the Child), was a unique treaty within the history of the United Nations. Unlike its predecessors which were non-binding, aspirational, and paternalistic declarations focusing more on the welfare and protection of the child, the Convention, for the first time in international law, viewed children as rights holders instead of ‘objects of adult charity’ (Veerman, 1992: 184). As Fottrell (2000: 1) states, ‘the Convention elevated the child to the status of an independent rights-holder’ (see also Stahl, 2007). Additionally, the Convention was not only the first binding treaty on children’s rights, but it was also the first to combine and integrate social, economic, and cultural rights with civil and political rights in a single legal instrument with equal emphasis placed on all the rights provided in its preamble and 54 articles. As a result of its focus on the whole spectrum of rights, the Convention, which is based on the underlying principles of non-discrimination, participation, survival and development, and the best interests of the child, contains articles that apply to virtually every area of children’s lives regardless of their age as well as articles that relate to children in difficult circumstances. Hence, it has been called the ‘most comprehensive treaty’ ever to appear in the field of human rights (Stahl, 2007: 804–5). This is supported by Kilkelly and Lundy (2006: 335) who assert that:

The coverage and scope of the UNCRC in recognising the rights of children and young people, and setting out how they are to be both promoted and protected is unrivalled in terms of their comprehensive nature, international and national standing and relevance.

Furthermore, the role the Convention allocates to specialized agencies such as UNICEF and other civil society organizations in terms of its promotion and implementation is, again, unprecedented in the United Nations human rights framework (see also Woll, 2000). This role for civil society agencies can partly be attributed to the role they played in the drafting process. UNICEF, for example, began to play an active role in the drafting of the Convention from 1986 onwards and encouraged and facilitated the active participation of developing countries (see also Oestreich, 1998). The result of this, it is argued, is that ‘more countries were prepared to accept the principles of the Convention and this explains the extraordinary widespread support, which was to be accorded this treaty in the early 1990s’ (Alston, 1994: 7).

After its adoption by the United Nations General Assembly in 1989 the Convention continued to blaze the trail for international treaties. Almost 25 years after its adoption, it remains the most widely and most rapidly ratified Convention in the history of the United Nations. In under a year the required 20 states had ratified the Convention, thus bringing it into force by September 1990 – a record for any UN treaty (Viljoen, 1998). As of today all countries in the world except the United States, Somalia, and the new country of south Sudan have ratified it, thereby indicating their commitment to ‘respect and ensure the children’s rights provided within’ this binding treaty (Spitz, 2005: 872).

Beyond the realm of the United Nations the Convention has also had an impact. As Myers (2001: 39) claims, ‘its global reach is unparalleled and today it is now the prevailing general framework for most international action on children’s rights’. This is supported by Stahl (2007: 805) who argues that ‘the CRC has influenced the world, both in how societies regard children and in how they react to children as people’. Similar sentiments were expressed some years earlier by Veerhellen (1994) who asserted that the Convention led to the first faltering steps towards recognizing children as ‘human beings’ and it was supposed to mark the beginning of a new way of dealing with children.

Indeed, the Convention’s impact has been felt in a number of areas. Critically, it has influenced the process of legal reform in various countries to ensure that domestic laws better protect the rights of children. Hence, since its adoption, governments have revised their national constitutions to explicitly take into account the rights of children. As Tobin (2005) notes, greater attention has been accorded to the rights of children within constitutions adopted in the years after the adoption of the Convention (see also Sloth-Nielsen, 2008b). A good example is that of the government of post-apartheid South Africa, which ratified the Convention in 1995 (Spitz, 2005; Richter and Dawes, 2008). More specifically, numerous governments have introduced child-focused laws into their legislative systems such as India (Juvenile Justice Care and Protection of Children Act 2000), Mauritius (Children Act 2003), Goa (The Goa Children’s Act 2003), Nepal (Children’s Act 1992), Maldives (The Law on the Protection of the Rights of Children 1991), Indonesia (Law on Child Protection 2002), Malaysia (Child Act of 2001), Thailand (Child Protection Act 2004), Vietnam (Law on the Protection, Care, and Education of Children 2004), Venezuela (Organic Law for the Protection of the Child and Adolescent 1998), Peru (Children’s and Adolescents’ Code 2000), Paraguay (Code of Childhood and Adolescence 2001), Bolivia (Code of the Child and Adolescent 1999), Guatemala (The Law for the Fundamental Protection of Childhood and Adolescence 2002), Jamaica (The Child Care and Protection Act 2003), the Dominican Republic (Code for the Protection of Children and Adolescents 2004), and Antigua and Barbuda (Child Care and Protection Act 2003).

In Brazil, for example, the Brazilian Children’s Act (the Statute on the Child and Adolescent), which came into force in October 1990, was inspired partly by the drafting process of the Convention and facilitated by the re-democratization of politics in the country. For the first time in Brazilian society, the concept of childhood was now associated with rights. Thus it is believed that there has been a real change in societal perceptions of children in general as well as widespread recognition of children as subjects of rights and much of this has been attributed to the influence of the Convention in the country (Rizzini and Barker, 2002, cited in Twum-Danso Imoh, 2012a).

The Convention has further been used as a key advocacy and lobbying tool by non-governmental organizations (NGOs) and international agencies seeking to both ensure governments abide by their commitments and also to sensitize local communities around the world. Thus children’s rights watchdogs, commissioners/ombudsmen, and coalitions of NGOs have been established to monitor and push forward the children’s rights agenda as stipulated by the Convention. Myers (2001: 50) provides an outline of some of the key ways the Convention is used:

Workshops, media campaigns, and other activities aimed at bringing social behaviour in line with rights guaranteed by the CRC are now common, and in some places school children now receive instruction about their rights under the CRC as part of their regular curriculum.

UNICEF, which became involved in the drafting of the Convention, continued to play a key role in its implementation. As Oestreich (1998: 187) states:

By the mid-1990s, the CRC had become a sort of unofficial constitution of UNICEF, with almost every facet of its operations directed toward the convention’s implementation, at least on the rhetorical level. UNICEF operations are now routinely justified, and progress measured, with reference to the goals of the CRC.

As a result of these developments, the concept and language of children’s rights are more widespread in societies around the world today than they were 25 years ago. According to Woll (2000: 26):

The adoption of the Convention foregrounded the concept of children as people with rights, beginning a transformation of public policy from one based on needs to one based on rights. Human rights, including child rights, are generally more visible in society than they were a decade ago. (see also Fottrell, 2000)

These are among the achievements that led Alderson and Morrow (2004: 10) to argue that ‘respect for children’s rights has grown since the adoption of the Convention … [It] inspired countless new policies and projects around the world’.

With specific regards to the African continent, the Convention’s influence, at least, in terms of law and policy, is also noteworthy. African governments were among the first to ratify the Convention with Ghana being the very first to do so in February 1990.¹ Subsequently, a number of governments have sought to bring their laws in line with the standards of the Convention. While some have made amendments to their constitutions, children’s acts have been introduced into the legislative framework of countries such as Uganda (1997), Ghana (1998), Kenya (2001), Nigeria (2003),² South Africa (2005), Togo (2007), Tanzania (2009), Botswana (2009), and the Democratic Republic of Congo (2009) (see also Sloth-Nielsen, 2008b).

Despite the uptake of the Convention by African governments and the subsequent harmonization of laws with its standards, questions have remained about the relevance of the Convention to the continent as well as other non-Western regions of the world. The Convention, which was drafted mainly by the governments of Western Europe and North America, was firmly rooted in recent developments that have taken place with regards to children and their position in these societies. As a result any universality claimed by the number of governments that have ratified the Convention has been refuted by numerous commentators (Boyden, 1997; de Waal, 2002). In fact, the universality vs. relativity debate has underpinned the post-Convention years, rearing its stubborn head at key junctures in the life of this treaty.

The drafting and adoption of the African Charter on the Rights and Welfare of the Child, the first regional treaty on children’s rights, partly reflects the feeling among some sectors that the Convention did not reflect the priorities and concerns relating to children on the African continent. According to Viljoen (1998: 205), African governments were frustrated with the drafting of the Convention for the following three reasons:

• Africans were underrepresented during the drafting process of the CRC;

• Potentially divisive and emotive issues were omitted in the search for consensus between states from diverse backgrounds;

• Specific provisions on aspects peculiar to Africa fell victim to the overriding aim of reaching a compromise, and were not sufficiently addressed in the UN instrument.

Thus in light of these concerns and frustrations the Charter was drafted with the aim of specifically and explicitly foregrounding the African cultural and historical heritage as made clear in its preamble:

Taking into consideration the virtues of their cultural heritage, historical background and the values of the African civilization which should inspire and characterize their reflection on the concept of the rights and welfare of the child. (OAU, 1990: para. 6)

Beyond a desire to foreground the culture and historical traditions in the regional instrument, it also sought to address what Lee Muthoga, chair of the working group of African experts established by the then Organization of African Unity (OAU)³ to draft the Charter, called ‘certain peculiarly African problems’ (Viljoen, 1998: 205). The third paragraph of the preamble sets forth what some of these issues are:

Noting with concern that the situation of most African children, remains critical due to the unique factors of their socio-economic, cultural, traditional and developmental circumstances, natural disasters, armed conflicts, exploitation and hunger, and on account of the child’s physical and mental immaturity he/she needs special safeguards and care. (OAU, 1990: para. 3)

Viljoen (1998) adds to this by pointing 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. (cited in Sloth-Nielsen, 2008a: 3)

As result of its aim to reflect both historical and cultural traditions of Africa and the contemporary problems facing children on the continent today, the Charter outlines provisions which are both more flexible than the Convention and at the same time more stringent depending on the issue. Take these two examples for comparison. First, while Article 19 of the Convention stipulates that all appropriate legislative, administrative, social, and educational measures be taken to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, Article 20 (1) (c) of the Charter allows the administration of domestic discipline although it stipulates that this must be applied with humanity and be consistent with the inherent dignity of the child. Hence, while the Convention is against all forms of violence, it can be inferred from this article of the Charter that it allows for the administration of physical punishment within the context of the family, which is in line with traditional socialization practices in communities across the continent where physical punishment is perceived as a key component of the training children require to grow into the responsible adults their communities expect them to become (Twum-Danso Imoh, 2012b, 2013).

However, on other matters, it is the Convention which is flexible while the Charter remains rigid. For example, although the Convention and the Charter both define a child as every human being below the age of 18, the Convention (Article 1) adds a condition that ‘…unless, under the law applicable to the child, majority is attained earlier’. Thus on this issue the Convention leaves more room for manoeuvre by governments than the Charter which allows no such caveat (Article 2), possibly because of its recognition of some of the key challenges facing those under the age of 18 on the continent at a difficult point in time: the end of the Cold War had started to unleash a number of internal conflicts involving many children; IMF and World Bank structural adjustment policies which were introduced in the 1980s were continuing to impact the life chances of children across the continent; traditional practices such as child marriage remained prevalent in a number of countries at a time when many local activists were beginning to vocalize their opposition to these practices; and children in South Africa were still being discriminated against, oppressed, and killed under the apartheid regime. Such differing positions within the Charter may initially come across as a contradiction. However, any contradiction may be explained once it is taken into account that the drafters of the Charter were attempting to address the entirety of the challenges facing children on the continent. Thus it can be argued that both the flexibility and stringency inherent in the Charter can be attributed to its stated aim of foregrounding African ‘peculiarities’ – be they historical or contemporary.

This notwithstanding, it is important to note that while the Charter sought to explicitly take into account the peculiarities of the African context, it is not in opposition to the Convention. In fact, the Charter contains explicit acknowledgement that the Convention was a source of inspiration (Thompson, 1992; Lloyd, 2002). This is supported by its structure and contents. For example, the underlying principles of the Charter are the same as those of the Conventi...