With some 44 percent of its population under the age of 15, the adage that ‘children are the future’ rings more true in Africa than anywhere else. The protection of children’s rights is not only an investment in the future, but also an imperative of the present, which is characterized by children’s exploitation as solder’s, laborers, and sex-workers, and in human trafficking; the neglect of orphans, especially due to AIDS deaths; the prevalence of street children; early marriages and other harmful cultural practices; and the disproportionate impact of conflict on children (UNICEF, ‘State of the world’s Children 2006: Excluded and Invisible’) what these challenges show us- the level of vulnerability and special difficulties facing children. To fight these, the UN has adopted various resolutions (the 1959 Declaration on the Rights of the Child) and an important binding instrument-Convention on the Rights of the Child of 1989. These are the instruments globally addressing the rights of Children. So what is the need of having regional (OAU/AU) child rights instruments?
The OAU/AU Child Rights Protection System
Children’s rights first featured on the OAU’s agenda in 1979, the UN-declared International Year of the Child, when the Assembly adopted the Declaration on the Rights and Welfare of the African Child. Although not legally binding, this Declaration provided a moral compass for later legal reforms. Among other measures, the Declaration urged states to adopt, ‘legal and educational measures’ to abolish cultural practices that are harmful to children, such as early marriage and female circumcision. In 1987 nearly a decade after the adoption of the Declaration, the works and initiatives for creating binding child rights instruments in the African context were began. Conferences involving African NGOs, UNICEF and African lawyers were conducted in 1988.
A working group of African experts set up by OAU, prepared a draft Charter which formed the basis of eventual African Children’s Charter. This was ultimately adopted as African Charter on the Rights and welfare of Children on 11 July 1990 and entered into force on 29 November 1999, almost a decade later. F. Viljoen identifies two reasons for the adoption of this document: Political and legal reasons. On a political level, the OAU reacted against a perception of exclusion or marginalization of African States in the drafting process of the CRC. Their involvement was initially limited. From political point of view, there was a need to adopt a regional human rights instrument dealing with the issue of particular interest and importance to children in Africa. It was contended that in the CRC as a global instrument and the product of numerous compromises, regional specificities were victimized in the process of universal consensus-seeking.
Thus, some of the omissions’ from the CRC and those not sufficiently addressed, identified by those involved in the drafting process of ACRWC, are the following: the situation of children living under apartheid, factors disadvantaging the female child, practices prevalent in African society such as FGM and circumcision, socio-economic conditions such as illiteracy and low level of sanitary conditions, the African conception of the Community’s responsibilities and duties, child soldiers and minimum age for military services, and the role of family in the upbringing of the child and in matters of adoption and fostering.
All these concerns were at least partly addressed by the ACRWC. Compared to the CRC, the African Children’s Charter (ACC) raises the level of children’s protections in three important respects. First, while the CRC allows child soldiers to be recruited and to be used in direct hostilities (CRC- Art. 38(2) (3)), the ACC completely outlaws the use of child solders (Art. 22(2)). Secondly, in terms of CRC, child marriage is allowed, because Article 1 stipulates that child means every human being below the age of 18 years unless majority is acquired at an earlier age. The ACC is explicit in its prohibition of child marriages (Art. 21(2)); in fact, it adds that the legislation must be adopted to specify the age of marriage to be 18 years. Thirdly, in its protection of child refugees, the ACC extends its ambit to internally displace children (IDC) (Art. 23(4)), something CRC does not do (Art. 22). The causes for internal displacement are also all-inclusive.
Therefore, it can be concluded that the ACC has fulfilled the objective of supplementing the CRC with regional specificities.
Another feature of ACC is that it deviates from CRC by placing duties or responsibilities on children (Article 31). This aspect may be identified as one of the African feature of ACC like that of the main Charter (ACHPR). This approach was taken by some as giving legal effect to the subordinate role of children within the strict age-based hierarchy of traditional African societies. However, it is expected that these duties will be interpreted in light of the whole charter’s provisions and that of international human rights laws (Art 46). Such other counterbalancing provisions of the ACC are the right to free expression and protection of privacy as well as parental duty to ensure the best interest of the child. Moreover, the inclusion of duties into ACRWC also emphasizes the relational character of children’s rights which is, to some extent, enjoyed in reliance on adult support and guidance. Thus, it remains for the monitoring Committee to clarity further the scope of the children’s duty-provision.
One of the prominent features of the main African Charter, peoples rights such as self-determination (Art. 20), is not reflected in the ACRWC. This could be possible because it is not appropriate to specifically entitle children to most collective rights or if the need arises children can invoke/claim rights under the main Charter as part of the phrase ‘every individual’ & ‘Peoples’ (whatever its meaning).
The ACRW enumerates a number of civil, political, economic, social and cultural rights in a holistic way. While most rights are recognized and guaranteed as in the general human rights instruments and that of CRC, there are some provisions uniquely designed to African reality. These include provisions on enjoyment of parental care and protection (Art. 19), protection against harmful social and cultural practices (Art. 21), rights during times of armed conflict which provide greater protection than the UNCRC (Art. 22); and rights of refugees (Art. 23). There are specific provisions in the Charter for ‘handicapped children’ (Art. 13) and those of imprisoned mothers (Art. 30).
Recently on 2 July, 2006, African Union has adopted another instrument partly dealing with children. This is known as African Youth Charter (AYC). With 15 minimum requirements, but so far with 11 ratifications, AYC has not yet entered into force. The content of the Charter addresses many matters of African youth in the political, economic, social and cultural scenarios. Do you think having such separate human rights instruments is necessary?