RESPONSE TO PARLIAMENTARY QUESTIONS ON THE AFRICAN YOUTH CHARTER

Status on Signature and Ratification of the African Youth Charter African Youth Charter was adopted by the AU Assembly on July South Africa has neither signed nor ratified the Charter; On 24 July 2008, Branch Africa Multilateral received a legal opinion from the Office of the Chief State Law Adviser [IL] and the Department of Justice; Concerns were raised on the following Articles:

Article 13 [4] Article 13 [4]: provides that “states parties, with a view to achieving the right to education of good quality, shall provide “free and compulsory basic education and take steps to minimise the indirect costs of education.” -Provision implies immediate and not progressive implementation -Dept of Education indicated: ♦Age 7–15 = Free and compulsory education to all learners [poorest] ♦Secondary level and further= Progressively; ♦Provision burdensome to state resources

Article 13(4) (p) Article 13(4) (p) provides that “states shall adopt “preferential recruitment policies for African youth with specialised skills amongst states Parties.” This provision, especially when read with Article 2(1) on non-discrimination on, inter alia, national origin, seems to suggest that youths from other African countries should be beneficiaries of preferential recruitment policies, thus competing with South Africans on equal footing. DHA indicated that this should be done in line with Paragraph [d] &[e] of the Preamble to the Immigration Act;

Article 15 Article 15 provides that every “young person shall have the right to gainful employment”. Article 15(4) (d),provides that the state shall “ensure that curricula are aligned to the needs of the employment labour market”. -This may be problematic to the extent that it includes tertiary education. -Furthermore it is not clear whether the state has the powers to implement some of the obligations contained in the article.

Article 16(2)(j), Article 16(2)(j), provides that states shall take “legislative steps such as banning advertising and increasing price (sic) …to control the consumption of tobacco, exposure to environmental tobacco and alcohol abuse.” - While containing laudable objectives, this provisions may have implications for other rights such as the right to freedom of expression.

Article 21 Article 21, which provides that parties “shall recognise the right of young people to live anywhere in the world”, are not clear to us. It is not clear, for example, whether the provision is intended to function as a “free movement of persons” clause. - This provision pre-empt what the AU is still working on regarding the right to free movement of people in Africa as contained in the Draft Strategic Framework for Migration Policy in Africa

Process for signature and accession/ratification In our view the Charter is an Agreement within the meaning of Section 231(2) of the Constitution of the Republic of South Africa, Parliament must approve the Charter before South Africa can signify its consent to be bound thereto. In terms of Article 30, the Charter needs to be acceded to by Parties that have not signed it. South Africa did not sign the Charter and it is therefore subject to accession. The line function department has to submit the Convention to Cabinet for consent by way of a Cabinet memorandum. This legal opinions [DFA & DoJ & CD] must accompany the Cabinet Memorandum. The Convention can only be submitted to Parliament for approval once Cabinet has consented to such submission. Once Parliament has approved the accession of the Convention, an Instrument of Accession will need to be prepared in order for the Minister of Foreign Affairs to sign the Instrument.

End Thank you…