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 children’s 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 children’s 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.
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