Regional protection of child rights in Africa

The African Union has established institutions and laws for safeguarding the rights of children in Africa, but African governments have yet to prove their commitment to doing more than multiplying these legal mechanisms, writes Mireille Affa’a Mindzie.

Children have the right, without discrimination, to special care and protection from their family, society and the state.[1] While practices such as child labour have a long history in Africa, and particular cultural or traditional practices have a negative impact on the health and development of thousands of children, it is nonetheless true that African children have traditionally received care and protection from their parents and care-givers.

Modernisation has brought with it a wide range of abuses endured by African children, such as economic and sexual exploitation, gender discrimination in education and access to health, and their involvement in armed conflict. It is estimated that sub-Saharan Africa has the highest child labour rate in the world, with approximately 80 million children, or 41 per cent of those under the age of 14, working.[2] These figures are influenced by factors such as migration, early marriage, differences between urban and rural areas, child-headed households, street children and poverty. Furthermore, while child mortality on the continent declined between the 1970s and early 1990s, this trend has since reversed. Endemic diseases such as malaria and tuberculosis have undermined efforts to mitigate and stall the spread of HIV/AIDS.[3] It is estimated that 19,000 African children die daily from easily curable diseases, and that 80 per cent of the world’s HIV-positive children under the age of 15 live in Africa.[4] With regard to violent conflict, up to 100,000 children, some as young as nine, were thought to be involved in armed conflict in mid-2004.[5]

To address the issue of child abuse and ensure better protection of children, member states of the Organisation of African Unity (OAU) have developed laws and institutions to monitor and advocate for child rights. In July 1990 African governments adopted the African Charter on the Rights and Welfare of the Child.[6] The African Committee of Experts on the Rights and Welfare of the Child (ACERWC), the supervising organ of the charter, is the main mechanism for promoting and protecting the rights of children in Africa. With the transformation of the OAU into the African Union (AU) and the new emphasis placed on human rights and popular participation, the continental protection of children has moved from political rhetoric to legal and judicial safeguards. This paper will look at how ACERWC can be strengthened so as to implement its mandate effectively. It will analyse the mechanisms that have been put in place to ensure better protection of children’s rights in Africa, and consider what remains to be done for this protection to be seen on the ground.
Towards effective protection of children’s rights in Africa
The African Charter on the Rights and Welfare of the Child is the first regional and comprehensive binding instrument proclaiming the human rights of children. The adoption of the charter closely followed that of the United Nations Convention on the Rights of the Child (UNCRC). The charter was justified on several grounds, including the multiple compromises that were necessary to achieve adoption of the UN convention, the limited participation of African countries in its drafting, and the consequent lack of consideration given to situations particular to Africa. The charter proclaims a series of rights encompassing civil rights and fundamental freedoms, economic, social and cultural rights, and specific rights for the protection of children in the African context.

Some of the specific features of the charter include a stronger definition of the child than in the UN convention, strict prohibition of the participation of children in armed conflicts, protection of internally displaced and refugee children, protection of imprisoned expectant mothers and mothers of infants and young children, and protection of girls who become pregnant before the end of their education. The charter reiterates the call to eliminate social and cultural practices affecting the welfare, dignity and development of children, including the use of child beggars, child marriage and the betrothal of boys and girls. Like the UNCRC, fundamental principles guiding implementation of these rights include non-discrimination, the best interests of the child, the life, survival and development of the child and child participation. Besides the rights of the child, the charter provides for the responsibilities that every child has, subject to their age and ability, towards family and society, the state and the international community.

The African Committee of Experts on the Rights and Welfare of the Child, established under the charter, is mandated to ensure the promotion and protection of the rights enshrined in the charter, to monitor their implementation, to interpret the provisions of the charter when requested to do so by AU member states, by an institution of the AU, or by any other person or institution recognised by the AU or any state party, and to undertake any other task as may be entrusted to it by the assembly of heads of state and government, the chairperson of the commission or any other organ of the AU or the UN. The ACERWC has 11 members elected by the AU Executive Council for a five-year non-renewable term; the first were elected in July 2001. The committee held its first meeting in 2002 in Addis Ababa, and has so far held nine meetings. Its current members represent Botswana, Burkina Faso, Côte d’Ivoire, Egypt, Ethiopia, Kenya, Lesotho, Mali, Nigeria, Senegal and Togo.

The committee is competent to examine periodic reports from states parties on the measures they would have adopted to give effect to the provisions of the charter, to consider individual communications or complaints on any matter covered by the charter, and to investigate any matter falling within the ambit of the charter. The committee has so far received five state reports, from Egypt, Kenya, Mauritius, Nigeria and Rwanda.[7] It is to consider two individual communications alleging the violation of child rights in Uganda and Kenya. Promotional visits and missions have been undertaken in countries such as Madagascar, Namibia, Sudan and Northern Uganda, and future missions are planned to the DRC, Liberia, São Tomé and Príncipe, Tunisia and Zambia.

Criticisms have surrounded the creation of the committee as a specific institution charged with the promotion and protection of children’s rights, alongside the existing African Commission on Human and Peoples’ Rights.[8] Inadequate funding and resources for the committee since it was established have raised further questions about the need for a separate child rights mechanism in Africa. For instance, no permanent secretary for the committee has so far been appointed according to Article 40 of the charter.[9] Since its first members were elected it has been deprived of the staff needed to implement and co-ordinate its activities. The body relies for the most part on an overloaded AU Department for Social Affairs. During its ninth meeting, the AU commissioner for social affairs suggested that the committee reduce its meetings from two to one a year until it is provided with a fully functional secretariat.[10] It also lacks sufficient funding to support its programmes and activities. For the past five years the committee has survived thanks to the generosity of international agencies such as UNICEF and international NGOs including Save the Children Sweden and Plan International. Other civil society partners, such as the Banjul-based Institute for Human Rights and Development in Africa, have been instrumental in developing legal documents necessary for the committee to implement its mandate.

For the committee to grow as an independent and effective mechanism for advocating and monitoring children’s rights in Africa, it should be taken more seriously by the AU. In other words, the committee should be provided with all the resources needed to discharge its mandate. It should also be linked to other AU human rights organs, namely the African Commission and the African Court on Human and Peoples’ Rights, as well as to the overall continental political framework.

The ACERWC within the African Union architecture

Effective protection of child rights in Africa requires harmonised interaction between different elements of the continent’s overall human rights framework. More specifically, for the committee to succeed in the short to medium-term, closer links should be forged with existing mechanisms for promoting and protecting human and child rights. The committee has started collaborating over state reporting procedure with similar organs, such as the UN Committee on the Rights of the Child, and at the regional level with the African commission and the African Court on Human and Peoples’ Rights.[11] Given the similarity of most of their functions and procedures, this collaboration should be taken further.

For instance, the committee could benefit from the court’s years of experience. The commission could inspire the committee with regard to implementing its promotional and protective mandate. The committee could further benefit from the long-standing relationship developed between the commission and civil society organisations, namely human rights NGOs. In this regard it is important to note that at its 9th meeting, the committee decided that from its 11th meeting the participation of NGOs would be linked to their preliminary application for, and granting of, observer status.[12] The committee has adopted criteria for granting observer status to civil society organisations and is encouraging the formalisation of its partnership with NGOs. However, since it relies significantly on the engagement of civil society to disseminate the charter and publicise its mandate and work, thus supporting and strengthening its overall structure, restricting participation of NGOs to those granted observer status has the potential to weaken its meetings, both in terms of their frequency and content.

Beyond the collaboration initiated and encouraged between the committee and the commission, it is proposed that the two should work towards establishing an integrated human rights body, mandated to promote and protect both general and specific human rights in Africa, including children’s rights.[13] Membership of such a combined body could be increased from 11 to 18 people. Besides rationalising the promotion and protection of human rights within the African Union, the proposed merger would help to centralise funding. It would also clarify the collaboration of both the Child Rights Committee and the commission with the court and, in future, the African Court of Justice.

The African Court on Human and Peoples’ Rights was created under the 1998 Protocol to the African Charter on Human and Peoples’ Rights, with the aim of strengthening the protective mandate of the African Commission on Human and People’s Rights. Although the protocol establishing the court was adopted before the children’s charter entered into force, the document set out the competence of the court over relevant international and regional human rights instruments ratified by African governments,[14] including the African Charter on the Rights and Welfare of the Child. However, the protocol did not specify the modalities of collaboration between the court and the committee. In July 2004, the decision of AU member states to merge the court with the proposed African Court of Justice provided an opportunity expressly to envisage the relationship of the committee (and the commission) with the court. In that sense, the draft Merger Protocol on the African Court of Justice and Human Rights expressly recognises the African Committee of Experts on the Rights and Welfare of the Child.

As with the commission, the committee will play a key role in the court’s seizing.[15] This is confirmed by Article 29 of the draft merger protocol, which specifies that the court shall have jurisdiction over all cases and legal disputes submitted with regard to the interpretation of the African Charter on Human and Peoples’ Rights, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, and any other legal instrument relating to human rights that is ratified by AU member states.[16] As well as states parties to the merger protocol, African inter-governmental organisations, national human rights institutions, and individuals or relevant NGOs accredited to the AU or to its organs, the African commission and the African Committee of Experts shall be entitled to submit cases to the court on any violation of a right guaranteed by the African Charter, by the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, or any other legal instrument relevant to human rights ratified by the states parties concerned. The statute also indicates that the court shall bear in mind complementarity with the African Commission on Human and Peoples’ Rights and the committee when drafting its rules of procedure.[17] The first session of the African Court of Justice, held in Banjul in July 2006, started with briefing sessions on the commission and the committee.[18] The court has since started drafting and has adopted part of its rules of procedure. Collaboration between the main regional human rights mechanisms should thus be further encouraged.

As the central judicial organ of the AU, the court will help reinforce the legal value of the recommendations adopted by the committee in relation to cases of violations of children’s rights in Africa. The court’s decisions shall be final and have a binding effect. Unlike the commission and the committee, the court may, after establishing that violations of rights have occurred, order appropriate measures to be taken to remedy the situation; this can include the granting of fair compensation.[19] Moreover, although the committee was established as part of the AU framework, the constitutive act of the AU makes no direct reference to it. By expressly stating that the AU executive council shall be notified of the court’s judgments and monitor their execution on behalf of the assembly, Article 44 of the merger protocol will help to reinforce the legal protection of human and child rights on the continent.
Political support for child protection
Beyond the collaboration of the committee with other AU human rights mechanisms, effective protection of children in Africa calls for stronger interaction of the committee with the continent’s administrative and political institutions. For instance, the AU Commission, through specific departments and commissioners’ offices, namely the Office of the Commissioner for Social Affairs, Political Affairs and Peace and Security, has a crucial role in publicising the AU’s concern for children in Africa, as well as putting the issue on the agenda of the AU’s political institutions. Moreover, the permanent representatives’ committee, the executive council, and the AU Assembly should strengthen their involvement in issues affecting children in Africa. Unambiguous support should be given to the committee when adopting its budget, electing its members, and adopting and following up its activity report. As the supreme organ of the AU,[20] and the primary enforcer of reports and recommendations from its other organs,[21] the AU Assembly of Heads of State and Government further has the power to monitor the implementation of the AU’s policies and decisions concerning children,[22] as well as ensuring compliance of all member states through peer pressure.[23]

The new AU peace and security architecture provides another opportunity to strengthen the protection of African children, specifically those affected by war. The objectives of the Peace and Security Council include the anticipation and pre-empting of armed conflicts, as well as the prevention of massive violations of human rights.[24] The council also aims to promote and encourage democratic practices, good governance, the rule of law, human rights, respect for the sanctity of human life, and international humanitarian law.[25] These objectives could support advocacy for children’s rights within the overall prevention of conflict, monitoring of the rights of children caught up in armed conflict, and supervision of child reintegration processes and promotion of child rights within regional peace-building and post-conflict reconstruction processes.[26]

Finally, monitoring institutions and mechanisms such as the Pan-African Parliament,[27] the Conference on Security, Stability, Development and Cooperation in Africa (CSSDCA),[28] and the New Partnership for Africa’s Development (NEPAD) and its related African Peer Review Mechanism (APRM),[29] can play a key role in harmonised protection of human and child rights in Africa. The CSSDCA process aims to consolidate the work of the AU in the areas of peace, security, stability, development and cooperation. It provides a forum for the elaboration and advancement of common values within the AU’s main policy organs. Through the CSSDCA’s ‘stability calabash’, which focuses on the need for democratisation, good governance and popular participation within member states, and mainly through its ‘development calabash’ that addresses the improvement of general standards of living,[30] the committee could inform the CSSDCA process and contribute to monitoring and facilitating implementation of the AU strategy in terms of these themes. Under the NEPAD initiative and its Peer Review Mechanism, the promotion and protection of the rights of the child and young people is one of the nine key objectives of the ‘Democracy and Good Political Governance’ thematic area. This aims to ensure that African constitutions reflect democratic principles and provide for demonstrably accountable governance and political participation. The African Charter on the Rights and Welfare of the Child, the UN Convention on the Rights of the Child and, in principle, the new African Youth Charter, provide standards to monitor these objectives. At the end of the APRM process, reports on countries reviewed should be tabled and publicly considered by the committee, as is intended for the African Commission on Human and Peoples’ Rights and other key regional and sub-regional structures.

In conclusion, there are clear efforts under way to protect child rights in Africa. However, much more needs to be done for children to participate effectively in the continent’s efforts to achieve sustainable peace and development. African governments are yet to prove their commitment to child rights beyond the mere multiplication of instruments and mechanisms.

* Mireille Affa'a Mindzie is a Senior Project Officer in CCR Conflict Intervention and Peacebuilding Support (CIPS) Project.

* Please send comments to or comment online at www.pambazuka.org

For references and notes, see link below.