1. (Almost) 50 ratifications and 15 Committee meetings under the African Children’s Charter: ‘Stumbling’ forward? Benyam Dawit Mezmur Community Law Centre (UWC)

2. 03/11/10 1.Background Traditional Africa recognised the needs and “rights” of children 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  Preamble  An African finger print  Article 18(3) of ACHPR  Convention on the Rights of the Child (1989) Delays in ratification?

3. 03/11/10 1.Background…cont’d Currently 45 ratifications (disparity?) 48 articles compared to 54 of the CRC:- 31 substantive provisions compared to 41 of the CRC Marries both civil and political as well as socio- economic rights in one document Rights contained fall into the so called “3Ps”:- Protection, promotion, and participation

4. 03/11/10 2. Substantive provisions Nature of state party obligations (Art 1) -Harmonization -Charter doesn’t affect more conducive provisions -Any custom, tradition, cultural or religious practice inconsistent Definition of a child (Art 2)- determines scope of application  Who is a child?  Definition is critical b/c it determines which rights apply to childhood and which remedies are available to children as a class. Among others, it also relates to data collection. A child defined as a comparative negative  Childhood is a social construct-

5. 03/11/10 2. Substantive …cont’d  Arbitrary?  Only provides end of childhood and not beginning  Birth? Conception? Somewhere b/n?  Consider 6(4) of ICCPR  CROC has commented at the issue at different occasions:- On high rates of abortion; Abortion as a method of family planning; “clandestine” abortions…  The age 18- particularly for protection rights- is reinforced by ICCPR (imposing no death penalty) and ILO Convention 132 of 1973, the Supplementary Convention on the Abolition of Slavery 1956 prohibits the delivery for exploitation of persons under the age of 18  As far as minimum ages are concerned, what is the rule?

6. 03/11/10 2. Substantive …cont’d  Legal counselling - Vital for enforcement of other rights  Lodging complaints and seeking redress  Medical counselling  Medical treatment or surgery- some provide minimum age and others use “sufficient understanding” standard-  Court intervention allowed- best interest  Sexual consent and marriage?  Minimum age of criminal responsibility?  Military recruitment  Participating in administrative and judicial procedures (art 12(2))- No specific age limit  Giving testimony in court- 3 situations  Consent to change of identity (art. 8)- CRC doesn’t suggest a minimum age

7. 03/11/10 2. Substantive …cont’d -4 Cardinal Principles - Best interests of the child (Art 4(1)) - Best interests principle much criticized: indeterminate, context specific, - tendency towards individualization, regarded as lacking in substantive content, - orientation as regards time (now: current interests? or the future?) not clarified (eg of circumcision?) - vessel into which personal inclinations, idiosyncrasies and ideologies of the decision-maker can be poured: who determines? By what criteria? ‘standardless standard?’ - What counts more- biology? Cultural roots? Money and access to resources?... But tension too: what if child’s views conflict with his/her own ‘best interests’: anorexia cases; virginity testing.. But tension too: what if child’s views conflict with his/her own ‘best interests’: anorexia cases; virginity testing.. - Yet principle has come to be seen as ‘neutral’!

8. 03/11/10 2. Substantive …cont’d Article 4(1) in entirety provides “[I]n all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration”. Article 4(1) in entirety provides “[I]n all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration”. Clear understanding requires unpacking of this article Clear understanding requires unpacking of this article “In all actions concerning the child” “In all actions concerning the child”  makes it an umbrella provision that is prescribed to be followed in almost all matters that pertain to children  it would cover virtually all laws and all forms of public action, since very few measures would not have a direct or indirect impact on children, and thereby concern them  CRC “children” and ACRWC “child”? Relevant?  Article1(2) reads that “[n]othing in this Charter shall affect any provisions that are more conducive to the realization of the rights and welfare of the child …”.

9. 03/11/10 2. Substantive …cont’d  “any person or authority”  question as to whether states parties must ensure that all private actors (parents, businesses, other children or adolescents) make all decisions ‘in the best interests of the child’? (see for example arts. 29(a) and 42(c) “…shall be the primary consideration” “…shall be the primary consideration”  Uses definite article “the” - At face value implies higher standard  Eg. of child on child crime or a mother who is also a child?  Should not be taken to necessarily mean “no exception” or “no other considerations”. The best interests of the child principle is also referred to in six other places in the Charter. The best interests of the child principle is also referred to in six other places in the Charter.

10. 03/11/10 2.Substantive … cont’d Non-discrimination (Art 3, 26(2) and (3)) Non-discrimination (Art 3, 26(2) and (3))  Unlike CRC, no mention of “state”, and “within their jurisdiction”  “Fortune” as a listed prohibited ground – adds value? Right to life, survival and development (Art 5) Right to life, survival and development (Art 5) Child participation (Art 4 and 7) Child participation (Art 4 and 7) Right to a name and nationality (Art 6) Right to a name and nationality (Art 6) Freedom of expression (Art 7), Freedom of Association (Art 8), and Freedom of thought, conscience and religion (Art 9) 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” Protection of privacy (Art 10)- “reasonable supervision” Children with disability (Art 13) Children with disability (Art 13) Child labor (Art 15) Child labor (Art 15) Protection Against Child Abuse and Neglect Protection Against Child Abuse and Neglect

11. 03/11/10 2.Substantive … cont’d Child soldiers Child soldiers  Article 22(2) is a blanket prohibition of the recruitment of all children- No “buts” and No “ifs”  Because a child is anyone below 18 (2)  Inclusion of internal armed conflicts reflects African realities  Although article 22 is entitled “armed conflicts”, it applies both in peace and war  Protection Vs Participation debate? Refugee children Refugee children  Art 23(4):- this provision applies mutatis mutandis

12. 03/11/10 2.Substantive … cont’d Adoption (Art 24) Adoption (Art 24)  Art 24(f)- Establish machinery to monitor the well-being of adopted child  Art 24 specifically mentions “trafficking”  Principle of subsidiarity  Adoptability?  Eligibility?  How last is “last resort”?  Provision resembles standards of Hague Convention (1993)  Value of culture?

13. 03/11/10 2. Substantive … cont’d - Sexual exploitation, drug abuse, sale, trafficking and abduction (Arts 27, 28, 29) - Children of imprisoned mothers (Art 30) Socio-economic rights Socio-economic rights - the right to education (Art 11) -Free and compulsory basic education -Take measure to encourage regular attendance (Art 11(3)(d)) -Special measures for female, gifted and disadvantaged children (Art 11(3)(e)) -Children who become pregnant (Art 11(6)) - the right to leisure, recreation and culture (Art. 12) - the right to health (Art. 14)

14. 03/11/10 2. Substantive … cont’d Responsibilities of the child- Art 31 (Duties)  Position under ACHPR  Preambular para which introduces duties contains 2 internal limitations:  1.Children do not just mature overnight at 18! Recognizes “evolving capacity”  2. 2nd limitation subjects children’s duties to specific protections contained elsewhere in the ACRWC  Important to child’s development – children must be conscious of need to be devoted to service of others – see para’s 5 and 6 of ACRWC  Purposive interpretation consistent with the spirit of the drafters and a good grasp of African culture  Nigerian case on the Child Rights Act of 2003 exemplary

15. 03/11/10 3. African Committee of Experts Establishment and organization Art 32 establishes the Committee Composition: Art 33 - 11 The members shall be “of high moral standing, integrity, impartiality and competence in matters of the rights and welfare of the child”. The Committee can have no more than one member from any given state. From Art 33 on impartiality springs Rule 11.2 on incompatibility Art 37 Term of office- 5 years but 4 of first members’ term expires after 2 years and term of 6 others after 4 years (need for amendment?) Art 39: bureau- Chairperson and 3 vice-chairpersons

16. 03/11/10 3.African Committee… cont’d Art 39: Vacancy of seats Gender and geographical representation Sessions- Rule 2-3:- 2 ordinary sessions and extra- ordinary sessions as necessary per year Art 40: Secretariat- 2nd session of the Child Committee 17-21 February 2003, “establish[ment of] an effective secretariat for the Committee to ease communication and co-ordination of activities” was among the priorities identified for 2003-4.

17. 03/11/10 3.African Committee… cont’d Mandate of the African Committee Mandate of the African Committee Protection and Promotion:- Protection and Promotion:- the Committee is established to “promote and protect the rights and welfare of the child” (Art 32) Art. 42(b) of the Charter 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)

18. 03/11/10 3.African Committee… cont’d Interpretation:- 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)) STATE REPORTING:- STATE REPORTING:-  First after 2 years and then every 3 years  Guidelines in state reporting available  In order to minimize reporting duty, reporting guidelines provide for a “solution”  Reluctance in reporting  9 reports to date (more?)  Example of Ethiopia

19. 3.African Committee… cont’d A greater role for CSOs in State Reporting? A greater role for CSOs in State Reporting? Submitting alternative reports in the absence/default of a state report to the ACERWC? Submitting alternative reports in the absence/default of a state report to the ACERWC? When a state is willing to submit a report, NGOs have four entry points: When a state is willing to submit a report, NGOs have four entry points:  Before submission (reminding the state of its obligations, provision of technical and financial resource to needy states, comments on draft reports)  After submission and prior to its consideration by a treaty body (submission of shadow or complementary reports/checking contents, etc...)  In the context of its consideration and  Following the conclusion of the examination. 03/11/10

20. 03/11/10 3.African Committee… cont’d COMMUNICATIONS: 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) the Committee will admit a communication “from a State non-signatory to the Charter in the overall best interest of the child. 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) Six conditions of “admissibility test” apply (Art. 1.III of Chapter 2 of the Guidelines which is similar to ACHPR)

21. 3.African Committee… cont’d Admissibility (Art 56 of ACHPR) Admissibility (Art 56 of ACHPR)  Indicate their authors even if anonymity is requested  Compatible with the Charter of OAU and ACHPR  Communication may not be “written in disparaging or insulting language against the state concerned and its institutions” (Commn 65/92 against Cameroon)  Communication must not be based exclusively on information from the mass media  “Exhaustion of local remedies, if any, unless it is obvious that this procedure is unduly prolonged”  A domestic remedy must be available, effective and sufficient 03/11/10

22. 03/11/10 3. African Committee…cont’d According to Art. 3 of Chapter 3 of the Guidelines, the Committee shall take measures to ensure the “effective and meaningful participation” of the child concerned by a communication the Committee “shall decide by simple majority of members” Committee member recusal Contents of a decision? Appointment of a Committee member to monitor decisions (Art. 4 of Chapter 3 of the Guidelines)

23. 03/11/10 3. African Committee…cont’d Provisional measures:- “ Provisional measures:- “ to prevent any other harm to the child” – and not “irreparable damage” (Art. 2.IV of Chapter 2 of the Guidelines) Forum shopping Forum shopping  State Reporting?  “Grave” violations?  Article 18(2) and 30 of ACRWC?  Arts. 60 and 61 of the Charter, the Commission shall draw inspiration from international law on human and peoples’ rights…

24. 03/11/10 3. African Committee…cont’d INVESTIGATIONS- Sudan and Uganda (2004) INVESTIGATIONS- Sudan and Uganda (2004) Granting of observer status Granting of observer status The Day of the African Child (DAC) The Day of the African Child (DAC)  Birth registration; Orphans: Our collective responsibility; Violence against children; child trafficking; accelerating Cairo+5; child participation; etc… Cooperation with African Commission and other partners Cooperation with African Commission and other partners  African Commission  African Union Commission  UN CRC Committee  NGOs  African Court (PTO)

25. 03/11/10 3.African Committee … cont’d The African Court:- is meant to “complement and reinforce the functions of the African Commission” so that the “objectives of the African Charter on Human and Peoples’ Rights” can be achieved. Decide on matters concerning the “interpretation and application of the Charter, this Protocol and any other relevant human rights instrument ratified by the States concerned”, Art. 3.1 Can Committee be considered as an “African intergovernmental” organization?

26. 03/11/10 3.African Committee … cont’d When considering whether the various organs of AU can be considered “African Intergovernmental Organisations”, such as the Committee, PAP…the argument could be made that since Art. 4.2 on advisory opinions specifically gives organs of AU a right to request advisory opinions, the drafters of the Court Protocol would have mentioned organs of AU specifically in Art. 5 as well, had they desired to give such organs the right to bring cases under Art. 5. Committee is included in the present Protocol for the merger of the African Court and the African Court of Justice.

27. 03/11/10 4.Take-away points Recommendations for improving effectiveness Recommendations for improving effectiveness Challenge of implementing and monitoring children’s rights in Africa is vast Challenge of implementing and monitoring children’s rights in Africa is vast Normative and procedural standards not in short supply Normative and procedural standards not in short supply Improved coordination and integration of human rights required Improved coordination and integration of human rights required Need for co-ordination and reflection is all the more urgent because of future co-existence of the African Commission, African Committee and African Court Need for co-ordination and reflection is all the more urgent because of future co-existence of the African Commission, African Committee and African Court Progress is slow but there is progress Progress is slow but there is progress Is it more “hope” than “expectation”? Is it more “hope” than “expectation”?