Thursday, 13 April 2017

The United Nations Convention for Children's rights versus The African Charter for Children's rights



The United Nations Convention on the Rights of the Child (UNCRC) and the African charter on the rights and welfare of Child (ACRWC) are the only two   international and regional human rights treaties that cover the whole spectrum of civil, political, economic, social and cultural rights of children. They share the same vision of setting out the rights that must be realized for children to develop and realize their full potential. They reflect a new vision of children as human beings subject to their rights and responsibilities appropriate to their respective stages of development. The Convention RC, being the former and ACRWC being the latter. The Charter was not a re invention of the Convention but was made to preserve and uphold African norms and values. The United Nations Convention on the rights sets precedence on the wellbeing of all children worldwide (though it has been argued that its biased towards the white European child).Whereas African Charter has its emphasis on the welfare of the African child per se taking into cognisence that the in the African context child rights are shaped by the virtues of their cultural heritage, historical background, religion among other several factors. Thus the prime rational behind the core existence of the two prescriptive legal documents is the to the realization that just like human rights cannot be universalized so are children’s rights owing to differences in perceiving these rights thus the need to have the two legal instruments to cater for the differences and peculiarities. Hence the need for core-existence of the two documents among other reasons to be discussed in this paper.



The UNCRC is a legal document made under guidance united nations with the aim of honouring and recognizing Human rights .In particular Child rights. Also in fulfillment of the Universal Declaration Human Rights proclamation of according childhood special care and attention .The document contains a spectrum 54 articles which governments, adults and guardians are to adhere to so as ensure all children realize their rights. The UNCRC has classified children‘s into three categories which are protection, provision and participation rights which are entitlements to be accorded to by every child indiscriminately. The document was officially enforced on the 2nd of September 1989 and received overwhelming ratification from numerous countries.
Synopsis of the African Charter.
The African Charter on the Rights and Welfare of the Child (also called the ACRWC or Children's Charter) was adopted by the Organization of African Unity (OAU) in 1990 (in 2001, the OAU legally became the African Union) and was entered into force in 1999. The African Charter is a comprehensive instrument that sets out rights and defines universal principles and norms for the status of children.  The African Children's Charter Spells out and provides a basis for the promotion and protection of the rights of African children at the national and regional level and codifies the responsibilities of the state, community and individual in the protection of the civil, cultural, economic, political and social rights of the child. The ACRWC is divided into two parts. Part one deals with the rights, freedoms and duties of the child and has 31 articles. Part two deals with States’ obligations to adopt laws to enforce the provisions of the Charter, and has 18 articles.
 The African Charter (Children’s Charter) which was adopted by the OAU Assembly of Heads of States. As at February 2009, the ACRWC has been ratified by 45 of the 53 countries in the continent. The Democratic Republic of the Congo (DRC) and the islands of São Tomé and Príncipe have not signed or ratified the charter and 8 countries have not ratified it. Some of the states which are non-signatories are also gross violators of human rights. Examples include the DRC, Sahrawi Arab Democratic Republic, Somalia and the Sudan. These violations range from recruitment of child soldiers, early child marriages, and child trafficking to enslavement, drug abuse, sexual exploitation, child labour and harmful cultural practices like female genital mutilation and male child preference
Body of the Paper
The rationale of having two legal instruments running in parallel is the reason that since few African countries participated in drafting the United Nations convention on the rights of the child in the in Geneva. According to J Donnelly (1984) Afro centric scholars felt issues pertinent to African children were not likely to be articulated in a convincing and enforceable manner. There seemed to have been a consensus that although the CRC is comprehensive in its approach to children and their rights, the world community is so diverse, economically, socially and culturally that it could not understand, interpret and apply these rights in the same way.
In relation to the afore mentioned Woll 2000 argues that Afrocentric Scholars labeled the Convention as biased or focused towards the White male relatively privileged child .Hence not encompassing adequate protection for all children in different circumstances within different circumstances . Thus they found it imperative to construct the Africa Charter to highlight rights and welfare of the African child with an African approach.

The motivations for the adoption of the Children’s Charter in the presence of the Convention amongst other things are that the CRC, which was adopted a year earlier than the Children’s Charter, was a product of numerous political compromises as a result of which issues pertinent to Africa were not addressed. Such unaddressed issues included the situation of children living under apartheid, which was detrimental to the growth and development of the African child.  In countries like South Africa black African children were ill-treated and discriminated. It is also worth mentioning that despite the ACRWC having alluded earlier on to discrimination in article 3. It goes on to repeat and specify in Article 26(Protection against Apartheid and discrimination) which highlights the extent to which discrimination based apartheid was an issue of concern in Africa that required to be addressed  with greater attention  De Feyter (2005) . CRC only mentions of discrimination in article. Hence portraying the justification

 The explanation  for the existence of the charter and the Convention can be explained in respect of the charter thriving to address issues  that affect African children per se ,For instance principle of non-discrimination article 3 of  the ACRWC. The Children’s Charter prohibits, inter alia, discrimination on grounds of the sex of the child. This is particularly relevant in the context of the African society where there is a preference for male children, whereby female children are subjected to discrimination just by virtue of their being female. This provision also has a bearing on the view and position of women without male children in the African society, where they are maltreated and subjected to unfair discrimination with their children. Very closely related to this issue is inheritance in the African society, where the male child is often the one who inherits the father’s property.

   The African also emerged to counter or cater for the lukewarm approach to some issues by the Convention for example provisions relating to the girl child especially considering the emerging consensus African cultures were detrimental to the girl child particularly in developing countries being mostly African nations required action Article 21 protection from harmful  social cultural prctices . Article 24 (3)39 of the CRC right to best health care is the closest the convention goes to protect the girl child but is so broad, vague and unclear hence it has been described as a diluted genderless provision which represents a lost opportunity Hergarty (1999).
 The African girl child in Africa is exposed to gross violation/infringement of rights such as forced marriages, detrimental cultural practices such as (FGM) female genital mutilation. In Egypt, Somali, Nigeria, Sierra Leone, female genital mutilation is prevalent African practice that grossly defeats every girl child’s right to enjoy the best attainable state of physical and spiritual health as captured in the ACRCW, Article 14.1 right to enjoy the best attainable state of  physical and spiritual health care.The practice yields numerous fatal health effects such as  continuous bleeding, difficulty in passing urine and low sex drive among other side effects.
 The charter outlaws child marriages in article 21(2) Child marriages shall be prohibited. Whereas the convention allows majority to e attained earlier .Salimu Pascal (2007) In Zambia even up to present day the government has no legal law to stipulate the legal age of marriage. Early marriages are the order of the day .Teenage girls as early young a 12-13-15 are married off  to older man without their consent for the sole purpose of accruing remuneration from the bride price. The girl child not only in Zambia is reduced to an asset owned by her parents and can be disposed at owners will.  According to W.H.O this exposes the girl child STI.s and HIV AIDS .More so Zambia has the highest record of child mortality rate emanating from the abuse young children. ACRWC 21 tries to protect children from such harmful practices. Hence portraying the need for an African Charter, to protect the African girl child.
The fact that children are viewed differently in different cultures and societies depicts the manner in which childrens rights are honored and respected. The notion that children are individuals and are equal members of society clearly appears to be alien to some societies especially (African societies) yet the Convention is premised on notion that childrens rights are non negotiable and that differences between cultures and individuals can be ignored Hodkin (1998).This is in contrast to the African society and this explains differences in wording of child rights at regional levels. For instance, the African charter on the Rights and Welfare of Children is constructed and seen in the African context. It stresses that both the rights and responsibilities of the child and gives equal weight to the concurrent responsibilities of the community towards the child .Article 31 ACRWC outlines responsibilities of a child within the Africa set up which is not found within the Convention. Oslen (1997) cites that, it is in the same context that Afrocentric scholars and Historians viewed adoption of the Convention as it was as an act of cultural imperialism of Africa by the West.

The Convention’s shortcoming in failing to adequately address the involvement of children in armed conflicts in Africa led to the formulation of the Charter to adequately address the child soldier issue Article 22 of the ACRWC The charter prohibits anyone below 18 to take part in  hostilitiesThe convention allowed children btwn 15& 18 to be used in hostilities .It is worth taking into cognisence that the period 1990 extending to the present day 21st  century  most African countries were marred by armed conflicts as such half of the world's child soldiers are in Africa according to UNHCR.. Thus there was need to adequately address the situation of the African child. In 2004 estimate put the number of children involved in armed conflict including combat roles at 100,000 Children were in cooperated and participated in the conflicts which were derogative to their welfare.
 In Burundi 2004 hundreds of child soldiers served in the Forces Nationales pour la Libération (FNL), an armed rebel Hutu group. Children between the ages of 10 and 16 were also conscripted by the Burundese military. Also in Cote d'Ivoire  during the 2002 civil war, "children were recruited, often forcibly, by both sides.Children serve in armed militia groups linked to the government, including the Alliance patriotique de l’ethnie Wé (APWé) and the Union patriotique de résistance du Grand Ouest (UPRGO). The ex-rebel groups now allied into the New Forces (Forces Nouvelles de Côte d'Ivoire, FAFN) also had child soldiers.
 In Somalia a report published by Coalition to Stop the Use of Child Soldiers in 2004 estimated that since 1991 200,000 children carried arms or had been recruited in the country's militias. In Zimbabwe The ZANU-PF government of Robert Mugabe sponsors a "youth militia" the National Youth Service, members aged between 10-30 are known as the "Green Bombers".
The wordings of article 38 proved to be a short coming of the Convention to alleviate the existing standards of age recruitment.  The article (38) was vague and abstract, it lacked qualification and was contradictory to its provision on child labour Article 32(1).The protocol which raised the age of recruitment to eighteen, was seen as an achievement and an indication that shortcomings of the Convention can be remedied through protocols. Hence charter was crafted to address issues that precisely affected the livelihood of the African child
The African charter emphasizes the need to include African cultural values and experiences when dealing with the rights of the child. A typical example is of the “BEST INTEREST OF A CHILD” embodied in article 3 of the CRC and in article 4 ACRWC respectively. Both articles state that best interests of the child shall be the primary consideration. This is what ought to be, and not what is but what is many African countries expressly saying that the Children's Charter and the Convention is higher than any custom, tradition, cultural or religious practice that doesn’t fit in the African context (UN 2009). In Zimbabwe cultural and religious factors continue to underplay children’s rights. The Apostolic sect, a religious group, which refuses immunization and curative medical health care for their children and also marries off within the sect a very minor ages without their consent. Thus in most African Countries best interest of the child only exists on paper as African values are realized first before realization of child rights.

Diversity in socio-eco perceptions, realities of the western world and the African set up has presented challenges that encouraged the existence of the two documents. An assessment on the child labour has shown it as a non homogeneous phenomenon between the African societies and Western societies. Not uniform not the same. Taking into account the socio-economic reality of developing countries, a policy of completely eradicating child labour /work is all but unattainable. According to UNICEF (2007) owing to prevalence of poverty children have to work and contribute to the family’s earnings. In African countries child ‘fostering’ is commonplace Vandermesh (1999), girls are often taken on as ‘little maids’ but are not paid for their work. In the same way, children engaged in family domestic chores free up working time for the adults: this means that by doing the household chores, children enable adults to take on paid work. In this way, children are contributing indirectly to the household income definition for work as ‘activities children undertake to contribute to their own or family economy.’
The economic definition given by the ILO does not encompass all forms of child labour, but it does enable a distinction to be made between light work and hazardous work. Sociologists have argued that, it may be a beneficial experience in the transition from childhood to adulthood.  In most African countries the, customary mode of production prevails which solely depends on family labour force for production. As evidenced in Kenya child labour increases with the size of the family land holding. Thus Afrocentric scholars argue that elimination of child work is tantamount to cultural erosion. In most African countries though they ratified the charter against all forms of child labour there still is respect of African Traditional Customs.  Thus portraying   that universalization of child rights is difficult if not impossible
 Africa is the poorest continent on the face of the planet, and often considered the most effected by child labor. Over 70% of the region lives and works in extremely poor conditions. Of the 250 million children worldwide, it is estimated that 32% work in Africa. In Africa, most of the children work in agriculture. According to a recent inter-agency report by the Understanding Children’s Work project of the ILO, UNICEF, and World Bank (Understanding Children’s Work, 2009), the primary cause of child labour in Zambia is the extreme vulnerability of the (mainly rural) poor and (both rural and urban) low income households to economic shocks. Simply put, child labour is a coping strategy when adult breadwinners die, lose their jobs or fall ill, when natural disaster strikes, or when families are simply unable to make ends meet. With the economic crisis there is a real risk that the number of child labourers will be even higher than the 895,000 children estimated in the 2005 Labour Force survey.  Children are involved in all aspects of the production chain as well as in informal sector stone crushing (quarrying). Children, some as young as seven years, carry out support functions in the mining areas such as fetching water, preparing and selling food, and, in some instances, in the actual mining operation.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              
In Kenya use of children as ‘house boys or ‘house girls’ is a tradition that needs to be addressed by the human rights organizations ,reports claim that this domestic labourers who are often under ten, go through bastardization and all forms of inhuman treatments in return of shelter, food and sometimes primary education. Veerman (1992).
The Children's Charter can also be said to have emerged because the member states of the AU believed that the CRC missed important socio-cultural realities particular to Africa. It emphasizes the need to   respect African cultural values and experiences when dealing with the rights of the child in such as parental rights and obligations towards their children. Practically article 20 of the Children’s charter if read alone suggests that a parent can take his /her child for virginity testing or FGM just because he/she believes it to be culturally in the best interest of the child. As practiced in Ethiopia and SA.ioorder order to dispel this misunderstanding, the provisions of article 21 of the Children's charter which prohibits harmful social and cultural practices will have to be read together with article 20
The existence of the Charter and the Convention can be further explained by pointing to the fact that in as much as the two legal instruments share the same vision of championing child rights and child welfare. Difference between the two is premised on the fact that the Charter accommodates historical background and the values of African civilization having to inspire and characterize their reflection on concept of rights and welfare of children. Parental Responsibilities Article 20 C of the Charter can be construed as supporting physical punishment by parents as it is unclear regarding the meaning of "domestic discipline;" It  can be interpreted to suggest  that corporal punishment, among other forms of punishment are legal in the African context.  For example Child canning is regarded necessary to instill a sense of discipline in children promote children respect for elders in society Veerman (1992). Whereas article 18 CRC revolves around the parental responsibility, in upbringing of a child without the element of corporal punishment. Thus difference between the Western and African worlds is illumined.

The justification for existence of the African charter being made to advance rights of the African child in particular. As illumined by existence of a unique article (31a) of ACRWC, Responsibility of the Child”. It highlights that Children are required to respect parents, superiors and elders at all times ,If analyzed this conflicts with the child's right to participate in decisions that affect them being freedom of opinion ,thought and expression  as they always under adult chauvinism. This in turn can be viewed as counter fit to articles of the CRC 12, 13, 14 which focus on the child’s opinion, freedom of expression and freedom of thought conscience and religion.

Furthermore realization  of  child participation  ACRWC 4 and CRC 3  which is active involvement of children in making decisions that affect them and the degree of applying such a principle is challenging within the socio-cultural set up of most African States where the child is expected to” be seen and not heard”. A question is raised as to whether child participation in the African Context will be tantamount to a rape of culture or is to be seen as a welcome development, while childhood and adult-child relations are evidently important review of the concept specifically within the African context, adults, social and political structures, culture and socio-economic factors are all frequently cited as the main barriers to child participation. Thus in most African nation’s rights are outweighed by cultural norms and values.



Conclusively as illumined in the paper the rationalization of having the two legal instruments operating in parallel is to address the difficulty in universalizing child rights. The United Nations Convention on the Rights of the Child looking at child rights having to be upheld regardless of cultural and societal norms. Whereas the African Charter perceives Child rights as product of the societal, cultural, values and norms. The African Charter as the latter sought to fill in the gaps left out by the former, particularly heightening issues that affected the daily welfare of the African child per se.











No comments:

Post a Comment

International women's day

  The first International Women’s Day occurred on March 19 in 1911. The inaugural event, which included rallies and organized meetings, was ...