The African Children’s Charter

Prof Julia Sloth-Nielsen

ACRWC

• Declaration on the Rights and Welfare of the Child (1979)

• African Charter on the Rights and Welfare of the Child (11 July 1990/ 29 November 1999)

• Reasons for adoption• Delays in ratification?

ACRWC

• 10 years since 1st Committee established

• Ratification status

• Reporting status

• Challenges: including concluding observations, NGO reporting

• Normative framework and higher standards (eg child soldiers, children affected by imprisonment, duties)

Substantive provisions

• Nature of State Party obligations (Art 1)• Definition of a child (Art 2)• Four cardinal principles

– Non-discrimination (Art 3, 26(2) and (3))– Best interests (Art 4)– Right to life, survival and development (Art 5)– Child participation (Art 4(2) and Art 7)

• Right to registration, to a name, and to acquire a nationality (Art 6)

Substantive provisions

• Freedom of expression (Art 7), Freedom of Association (Art 8), and Freedom of thought, conscience and religion (Art 9)

• Protection of privacy (Art 10)- “reasonable supervision”• Children with a disability (Art 13)• Child labor (Art 15)• Protection Against Child Abuse and Neglect

- Sexual exploitation, drug abuse, sale, trafficking and abduction (Arts 27, 28, 29)

• Socio-economic rights- the right to education (Art 11) - the right to leisure, recreation and culture (Art. 12) - the right to health (Art. 14)

Substantive provisions

• Child soldiers– Article 22(2) is a blanket prohibition of the recruitment of all children-

No “buts” and No “ifs”

• Refugee children– Art 23(4):- this provision applies mutatis mutandis to internally

displaced children• Adoption (Art 24)

– Art 24(f)- Establish machinery to monitor the well-being of adopted child

• Harmful traditional practices• Juvenile justice• Use of children in begging• Children of imprisoned mothers (Art 30)• Responsibilities of the child (Art 31)

Comparisons with CRC?

• Visibility bias?

• Not versus, but complementary

• Fine distinctions worth note

• Harmonisation of reporting to CRC committee and ACERWC?

Mandate of ACERWC

• Establishment and organization (Arts 32, 33, … 39)• Mandate of the African Committee• 1) Protection and Promotion:- the Committee is

established to “promote and protect the rights and welfare of the child” (Art 32)

• Art. 42(b) states that the Committee shall “monitor the implementation and ensure protection of the rights enshrined in this Charter”.

• With respect to promotion, the tasks specified in Art. 42(a) of the Charter are similar to the tasks specified with respect to the Commission in Art. 45(1)

Mandate of the ACERWC

• 2. Interpretation:- “interpret the provisions of the present Charter at the request of a state party, an institution of the AU or any other person or institution recognised by the AU” (Art 42(c))

• 3. State Reporting:• South Africa yet to submit the initial report

due 2002; • Periodic reports were due 2005, 2008,

2011......!

ACRWC

• 4. Communications (1st judgment)

• If the author can prove to be acting in the supreme interest of the child victim, the victim’s agreement is not necessary (Art. 1.I.3 of Chapter 2 of the Guidelines)

• will admit a communication “from a State non-signatory to the Charter in the overall best interest of the child.

ACRWC

• In so doing the Committee shall collaborate with other related Agencies implementing Conventions and Charters to which the non-signatory country is State Party”. (Art. 1.II.2 of Chapter 2 of the Guidelines)

• Conditions for “admissibility test” apply (Art. 1.III of Chapter 2 of the Guidelines)

ACRWC

• Written• Not anonymous• Not concerning a non state signatory (best

interests override)• Compatible with the Constitutive Act of the AU/

Charter itself• Not exclusively based on media reports• Not considered by another investigation

procedure or international regulation

ACRWC

• All available appeals at national level exhausted/not satisfied with result

• Presented within a reasonable period after exhausting domestic remedies

• Language of communication not offensive• Rules provide for children’s participation in

the consideration of the communication (effective and meaningful), including the child’s right to be heard

ACRWC

• Provisional measures:- “to prevent any other harm to the child” – and not “irreparable damage” (Art. 2.IV of Chapter 2 of the Guidelines)

• 5) Investigations• 6) The Day of the African Child• 7) Cooperation with African Commission,

African Union Commission and other partners (AU Human Rights Strategy)

ACRWC

– the CSO Forum– Work methods of the committee (public

sessions)– High level delegations to present country

reports– Location/placement of the Committee in the AU

• DAC• Cairo +5: An Africa Fit for Children (review due

in 2012)

Legislative reform

• Charter provisions domesticated in the Children’s Act 2005

• Child law reform sets 30 year framework? The implementation of legal frameworks is a key developmental outcome

• Work of the UN Special Rapporteur on violence against children and need for national processes

References

• Staying abreast:

• African Human Rights Law Journal (committee meeting reports)

• www.acerwc.org (not AU website)

• www.aclr.info

Optional protocol to the CRC

• Under development since 2007

• Adopted by HRC

• Now at UN for adoption

• Will open for signature and ratification by January

• RSA first African country to ratify?