Moving Beyond Baby Steps? An Examination of the Domestic Implementation of Concluding Observations from State Parties' Reports on the African Children's Charter

 

 

A Adeola^*

University of Pretoria, South Africa. Email: aderomola.ade@gmail.com

 

 

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ABSTRACT

Article 43 of the African Charter on the Rights and Welfare of the Child mandates state parties to report on their efforts made towards implementing treaty provisions to the African Committee on the Rights and Welfare of the Child (ACERWC). The aim of this process is to afford states an opportunity to internally assess their progress and to grant the ACERWC an opportunity to guide states in the implementation of the treaty provisions through constructive dialogue during the state reporting process and through concluding observations which states are required to implement. While much has been written about the value of the state reporting process, not much has been said about the measures taken by states to implement the concluding observations from the state reporting process. The concluding observations offer a premise on which to advance a discourse on state implementation of the regional norms, given that they emanate from an incisive reflection of state parties' reports by the ACERWC. This paper finds that while the ratification of the African Children's Charter by the countries under consideration has led to normative and institutional changes in these countries, there are pertinent challenges that need to be addressed in the realisation of children's rights in Africa. Through the concluding observations, this paper examines the domestic implementation of children's rights in four African countries, namely: Kenya, Nigeria, South Africa and Egypt.

Keywords: African Children's Charter; state report; children's rights; concluding observations; Africa; Kenya; Egypt; Nigeria; South Africa.

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1 Introduction

The process of state reporting on the implementation of human rights treaties serves two key purposes. First, it affords states an opportunity to internally engage in introspection on their level of compliance with the treaty obligations imposed by the human rights instrument. Second, this process serves to provide to institutions beyond the state an opportunity to engage in constructive dialogue with a state party on the implementation of its treaty obligations.¹ Article 43 of the African Charter on the Rights and Welfare of the Child (the African Children's Charter) places an obligation on state parties to the Charter requiring these states to provide "sufficient information on the implementation" and furnish the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) "with comprehensive understanding" on its implementation efforts.² State parties are required to provide an initial report within the first two years of implementation; thereafter, a periodic report is required tri-annually.

Though the timelines are seldom followed in practice, about 34 state parties to the African Children's Charter have endeavoured to submit reports as required under article 43. Over the years the state reporting process under the African Children's Charter has evolved as a viable means of fostering the implementation of children's rights. However, key to measuring the success of this process is a consideration of the domestic implementation of the concluding observations issued by the ACERWC. This paper analyses such implementation in Kenya, South Africa, Nigeria and Egypt. All four countries have ratified the African Children's Charter and submitted state reports which have been reviewed by the ACERWC. These particular four states have also been selected to represent different geographical regions in Africa.³

In examining the domestic implementation of the ACERWC's concluding observations, this paper is divided into two parts. The first part examines the state reports of these state parties to the African Children's Charter, focussing on the measures adopted by the states in the implementation of children's rights. The second part considers the concluding observations from the state reporting process, examining the measures taken by states to implement the recommendations of the ACERWC.

 

2 State reports

All four states have ratified the African Children's Charter and submitted state reports to the ACERWC. At the global level, all four states have also ratified the Convention on the Rights of the Child (CRC), the Optional Protocol to the Convention on the Rights of the Child on Children in Armed Conflict and the 1999 International Labour Organisation Worst Forms of Child Labour Convention. Apart from Kenya, all four states have also ratified the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography.

At the national level, all four states have developed national legislation on children's rights. In the national constitution of Egypt, Kenya and South Africa a child is anyone under the age of 18 (South Africa, 1996; Kenya, 2010; Egypt 2014). While the Nigerian Constitution is silent on the topic of the definition, it provides that a female child will be deemed to be of full age (18) upon marriage.⁴ Although the Child's Rights Act recognises a child as anyone under the age of 18, the supremacy of the Constitution makes it subordinate to the constitutional clause. A rectification of this clause can come only from a constitutional review, which has failed in the past. Unlike the situation in Nigeria, there are no such exceptions in the constitutions of Kenya, Egypt and South Africa. It is worth mentioning that the Kenyan 2014 Marriage Act, which sets the age of marriage at 18, applies to all forms of marriage including Islamic and customary marriages. In South Africa the 2005 Children's Act sets the age of marriage at 18. However, the Marriage Act permits the marriage of children subject to their consent, parental consent and the consent of the Minister of Home Affairs.

Institutionally, all the states have national human rights institutions addressing the protection of human rights. In addition, there are also specific institutions with mandates pertaining to child rights issues. In South Africa there are two pertinent departments on children's rights.

There is a Department of Women in the Office of the Presidency headed by a Cabinet Minister. There is also a Department of Social Development (DSD) which coordinates and monitors the mainstreaming of the rights of women, children and people with disabilities into all national, provincial and local government policies and programmes.⁵ There is also a Commission on Gender Equality which broadly seeks to promote gender equality and addresses issues relating to the girl-child. In Nigeria a National Child Rights Implementation Committee (NCRIC) was created comprising relevant stakeholders at the level of government, nongovernmental organisations, academia and international agencies. While the Federal Ministry of Women Affairs and Social Development (FMWASD) is a member of the NCRIC, in terms of current practices, the FMWASD is the apex institution dealing with child protection in Nigeria. In Kenya the National Council for Children's Services established under section 30 of the Children's Act and the Department of Children's Services coordinate efforts on children's rights. Both departments are under the Ministry of Labour, Social Security and Services. In Egypt the National Council for Childhood and Motherhood (NCCM) established in 1988 is "the highest national authority entrusted with policymaking, planning, coordination, monitoring and evaluation of activities in the areas of protection and development of children".⁶

These institutions were involved in the preparation of the state reports of the various countries to the ACERWC. In South Africa the creation of the Department of Women, Children and Persons with Disabilities in 2009⁷was instrumental in the development of its initial to fourth country report submitted in 2014. The 2006 and 2014 reports of Nigeria to the ACERWC were also prepared by the FMWASD. Similarly, in Kenya the National Council for Children Services prepared the 2007 and 2014 state reports to the ACERWC. However, Egypt's report was prepared by the Public Department of Human Rights Affairs of the Ministry of Justice and not the NCCM, although the reporting process was inter-ministerial.

Although none of the reports were prepared within the specific time-frame stipulated in article 43 of the African Children's Charter, the reports were elaborate on the state of children's rights in all four countries. They

substantially followed the reporting guidelines of the ACERWC. In 2007 Kenya submitted its initial report and in 2014 submitted its periodic report to the ACERWC. As with the 2007 report, the 2014 report highlights general measures taken to conform with the African Children's Charter and further elaborates on issues of healthcare, education, child abuse and the protection of specific groups including refugee children, children of imprisoned mothers and children in armed conflict. A shadow report was prepared by civil society coordinated by the Kenyan Chapter of the African Network for the Prevention and Protection against Child Abuse and Neglect (ANPPCAN). The consultation brought together 23 civil society organisations to discuss and identify some of the challenges affecting the realisation of welfare for children in Kenya.

In 2005 Egypt submitted an initial report to the ACERWC two years later than the designated time-frame for initial reports mentioned under the African Children's Charter. The report was substantially in line with the reporting guidelines of the Committee highlighting the definition of the child, the legal and institutional framework for the implementation of the African Children's Charter and general implementation measures in relation to the various rights under the African Children's Charter. However, the report does not provide a comprehensive discourse on how rights are enjoyed in practice and on challenges encountered in the realisation of rights. There were no complementary reports from civil society organisations. Since the submission of the initial report, no further periodic reports have been submitted. Three periodic reports are currently outstanding. The non-submission of the reports may be attributable to the political challenges being experienced by the country since 2011 and the general lack of capacity in the government and the NCCM occasioned by the political governance crisis.

While outlining the measures taken to implement the African Children's Charter, South Africa's 2013 report highlights pertinent child rights issues in South Africa, including access to HIV/AIDS treatment, access to education and social welfare, the elimination of harmful traditional practices such as ukuthwala and child marriage. Against the backdrop of the 2013 report a shadow report was prepared by 27 civil society organisations and endorsed by a further 18 organisations. The report emphasised three priority areas in relation to children's socio-economic rights in South Africa: the poor quality of education, the high rates of malnutrition and weak service delivery specially to marginalised children.⁸

As with South Africa's report, the 2006 and 2014 Nigerian reports outline general measures taken in the implementation of the African Children's Charter, including legal and institutional measures. Both reports highlight the steps taken to implement specific provisions of the African Children's Charter. However, in some cases these measures are reproduced almost verbatim in both reports. Some of the key children's rights issues highlighted in both reports include child marriage, child participation, health care and the protection of specific groups, including children with disabilities, children in conflict with the law, orphans and vulnerable children. In 2008 a shadow report was prepared in respect of the 2006 report by the Nigerian Chapter of the ANPPCAN.⁹ The report raises six priority issues relating to the children's parliament; the slow implementation of the Child Rights Act; the need for technical support of the FMWSD; the need for quality education in public schools; the need for infrastructure for child justice; and the absence of the comprehensive monitoring and evaluation of progress made in the realisation of children's rights.

At the 12th session of the ACERWC, in November 2008, Nigeria's 2006 report was considered. Egypt's initial report was considered at this session as well. At the 14th session of the ACERWC in November 2009, Kenya's initial report was considered. During the first extraordinary session of the ACERWC in October 2014, Kenya's periodic report was examined. At this session South Africa's state report was also examined. Apart from Nigeria's 2014 report, which is yet to be considered, the ACERWC has issued concluding observations on all the reports, highlighting priority areas for states to consider in the furtherance of children's rights in the states. These concluding observations and the measures employed by states to implement them are considered in the next section.

 

3 Domestic implementation of concluding observations

3.1 Egypt

The ACERWC highlighted fifteen issues in the concluding observations.¹⁰The first area of concern highlighted by the ACERWC relates to the reservations made by Egypt on ratification of the African Children's Charter. Egypt made five reservations: to article 21(2) on child marriage; to article 24 on adoption; to article 30(a)-(e) on the special treatment of imprisoned mothers; to article 44 on communications to the ACERWC; and to article 45(1) on the power of the ACERWC to conduct missions. In its concluding observations the ACERWC requested Egypt to waive the reservations. In February 2015 Egypt withdrew its reservation on article 21(2) of the African Children's Charter relating to marriage; however, it is yet to withdraw the other reservations.

The second area of concern mentioned by the ACERWC relates to the popularisation of the African Children's Charter. The ACERWC urged Egypt to extensively popularise the African Children's Charter. While most of the dissemination efforts have been centred on the Convention on the Rights of the Child, the government has recently made efforts to popularise the African Children's Charter. In collaboration with Plan International and Save the Children, the ACERWC plans to disseminate the African Children's Charter through the production of Arabic translations of the first 31 articles. Further, plans to develop and disseminate a child-friendly version of the African Children's Charter in Arabic are underway.

The third area of concern raised by the ACERWC is the need to mainstream the rights of the child into development policies undertaken by the state. Due to the political concentration on economic recovery and national security, the inclusion of children's rights in development policies has not been pronounced. A significant attempt was made by civil society between 2013 and 2014 to ensure that the government and the World Bank mainstreamed children's rights into the implementation of funded development projects. However, there is more to be seen on the aspect of implementation.

Fourth, the ACERWC called for the strengthening of the capacity of the NCCM. There is a significant work to be done in this regard. Following the concluding observations of the ACERWC, there has been a deterioration of the capacity of the NCCM in terms of personnel and function. The movement of the NCCM from the office of the prime minster to the Ministry of Health has also played a role in weakening the NCCM. While plans are underway to ensure the technical and financial independence of the NCCM, it is important that these plans are hastened and closely monitored.

Fifth, the ACERWC recommended that Egypt should take steps to ensure the registration of births. While the government has taken notable strides in this regard by ensuring that facilities for registration are provided, there are discrepancies in the rate of birth registration across the country. There is also a need for the implementation of the law on birth registration to be free of charge; this is because while birth registration is free of charge in law, in practice it is not entirely free.¹¹

The sixth area of concern raised by the ACERWC relates to the age of marriage and employment. The ACERWC urged the state to take "legislative reforms" to bring the age of marriage and employment in line with the African Children's Charter. While the Child Law raises the age of marriage for girls to 18 and prohibits the registration of marriage to anyone below the age of 18, it falls short on the actual criminalisation of child marriage. It may be argued that it is possible to marry a child and that such a marriage will only not be registered. With respect to employment, the provisions of the Child Law have largely conformed to the African Children's Charter.

The seventh concern of the ACERWC relates to the sexual exploitation of children. The ACERWC urged Egypt to set in place measures for victims in addition to severe criminal penalties. While the Child Law provides criminal sanctions, rehabilitation centres for victims are still lacking. It is notable that measures are underway to provide rehabilitation and support centres including hotlines in situations of child abuse; however, there are concerns with respect to the adequacy of these measures as the follow-up measures to assist victims of commercial sexual exploitation are not sufficient. Most of the rehabilitation and support mechanisms are provided by civil society organisations, which at some point lack specialised training and resources.

The eighth area of concern relates to children with disabilities. The ACERWC urged Egypt to make adequate and financially sufficient rehabilitation centres available. However, there is still significant concern in this regard. Only 4 per cent of children with disabilities have access to government rehabilitation services.¹²

The ninth area of concern relates to drug trafficking. The ACERWC urged Egypt to take effective detoxification measures. Following the revolution, a significant increase in the intake of drugs has been reported to surpass the international average.¹³ One significant challenge that has been experienced in efforts to address the problem is the "normalisation of drugs in society".¹⁴ The government of Egypt adopted an action plan to tackle drug addiction in 2013. ¹⁵

The tenth area of concern relates to corporal punishment. Noting the persistence of resistance against abolition, the ACERWC urged Egypt to take steps towards abolishing corporal punishment. While corporal punishment is still lawful in homes, day-care centres and alternative homes, a ministerial decree as far back as 1971¹⁶ sought to ban corporal punishment in schools. However, in practice there are still traces of corporal punishment in schools. At present there is no law abolishing corporal punishment in all settings.

The eleventh area of concern relates to children born out of wedlock. The ACERWC urged Egypt to take steps to address discrimination against this category of children. While progress has been made and these children have the right to birth registration and are issued birth certificates, societal stigmatisation still needs to be addressed.

Twelfth, the ACERWC recommended that Egypt should harmonise the age of majority in conformity with the African Children's Charter. Egypt has made significant progress in addressing this observation through setting the age of majority in the Constitution and the Child Law at 18 years.

The thirteenth area of concern relates to juvenile justice. The ACERWC recommended that Egypt should put in place measures other than prisons to address the issue of children in conflict with the law. In addressing this concern, Egypt has improved its normative framework for juvenile justice through the Child Law of 2008 and the Constitution of Egypt. However, a significant challenge relates to implementation, such as with the establishment of Child Courts and Specialised Child Prosecution Offices.

The fourteenth area of concern relates to harmful cultural practices. The ACERWC urged Egypt to strengthen measures to combat female circumcision and other harmful practices. The Child Law of 2008 outlaws such practices. However, traces of female circumcision are to be found in rural areas and medical practitioners are implicated in the practice. The fifteenth area of concern relates to child labour. The ACERWC recommended that Egypt should take legislative measures to curb this practice. With the 2008 Child Law and new Egyptian Constitution of 2014, significant progress has been made on the normative aspect with respect to child labour. However, there are still deficiencies that need to be addressed. One of such deficiency is the fact that the Child Law permits children between 12 and 14 to engage in seasonal work.

While Egypt's normative stride with the development of the Child Law is important, its reservations to the African Children's Charter need to be addressed. Overall, it is important that the rights of specific groups including children with disabilities and the girl-child are prioritised in national strategies on children's rights.

3.2 Nigeria

There were eleven pertinent concluding observations raised by the ACERWC on Nigeria's 2006 report.¹⁷ The implementation of each concluding observation is considered in turn.

The first concluding observation relates to the incorporation of the African Children's Charter into domestic legislation. In 2003 Nigeria adopted the Child's Rights Act, which mirrors the African Children's Charter and the Convention on the Rights of the Child. As at 2019 the Child's Rights Act is applicable in 25 states of the country including the Federal Capital Territory. However, 11 states are yet to domesticate the Child's Rights Act.

The government has undertaken advocacy efforts in collaboration with civil society organisations on the conflict in standards precipitated by policies and customary practices. In the concluding observations the ACERWC cites the issue of child marriage. On this issue, the government inaugurated a Technical Working Group on Ending Child Marriage composed of relevant stakeholders working to develop a national strategy on ending child marriage and to launch a national campaign.

Nigeria is yet to make progress on the harmonisation of the minimum age for marriage in line with the African Children's Charter. On the issue of harmful practices such as female circumcision Nigeria enacted a Violence against Persons (Prohibition) Act in 2015, which criminalise female circumcision. On primary education and high levels of illiteracy among women and girls, Nigeria needs to amplify efforts at addressing this concern. It was reported in 2018 that around 13.2 million children were out of school.¹⁸

Nigeria commissioned a national survey on violence against children in 2014 and developed a multi-sectorial priority action for ending such violence. This initiative is in addition to the Violence against Persons (Prohibition) Act of 2015.¹⁹

Policy initiatives were developed from 2013 to 2020 on child labour, the protection of child domestic workers, street children and Almajiri-child begging, including the National Priority Agenda for vulnerable children and the Strategic Plan of Action on Operational Guidelines for the Implementation of the Almajiri Child Education Programme. Moreover, a National Template on the Implementation of the National Action Plan on the Elimination of Child Labour has been developed.

Nigeria is yet to make significant progress in relation to the issue of street children. The 2014 periodic report to the ACERWC highlights measures taken to address this challenge including the National Plan of Action on the Convention on the Rights of the Child/Child's Rights Act. Aside from the fact that the implementation of this policy was hampered by a lack of funds, the policy was for the period of 2009 to 2015. There is no national policy for the rehabilitation of street children in Nigeria at present.

Nigeria has made significant progress in relation to infant mortality rates. It has decreased from 100 per 1000 births in 2004 to 58 per 1000 births in 2014. In infants under 5, the mortality rate has declined from 201 per 1000 births in 2004 to 89 per 1000 births in 2014.

On the issue of children in conflict with the law, the ACERWC urged Nigeria to fully implement the justice standard in the Child's Rights Act in all states of the country, to establish legal aid for children in conflict with the law and to ensure a uniform age of criminal responsibility. A significant number of states have ratified the Child's Rights Act and begun implementation; however, progress is yet to be made in other states of the country.

Nigeria has a National Agency for the Prohibition of Traffic in Persons and Other Related Matters involved in addressing issues of human trafficking.

While the enactment of a Child's Rights Act is laudable, it is important for the states in the northern region to foster its acceptance. Further, implementation at all levels of government is essential. It is imperative for the state to take concrete measures to protect specific categories such as Almajiri children, street children and children in conflict with the law.

3.3 Kenya

Following the consideration of Kenya's 2014 report, the ACERWC issued concluding observations on general measures of implementation; general principles; civil rights and freedoms; the family environment and alternative care; basic health and welfare; education, leisure and cultural activities; special measures of protection; and the responsibility of the child.²⁰ Some of the notable steps taken by Kenya in the implementation of aspects of the concluding observations are highlighted.

The ACERWC urged Kenya to set in place certain measures on the general measures of implementation of the African Children's Charter. Significantly, the ACERWC urged Kenya to create an independent organ on children's rights; eliminate the practice of female circumcision; revise the National Plan of Action for Children; and implement the decision of the ACERWC on the Nubian children.

Kenya is yet to make progress with respect to the creation of an independent organ. There is no independent organ on children's rights, nor has a special office been created in the Kenya National Commission on Human Rights. The National Council for Children Services, which is a semi-autonomous governmental institution,²¹ remains in charge of issues of children's rights.

In relation to the elimination of the practice of female circumcision, the Prohibition of Female Genital Mutilation Act of 2011 criminalise female circumcision. However, the law still needs to be put into practice. On the revision of the National Plan of Action for Children, which expired in 2012, Kenya has complied with the recommendation of the ACERWC and has a National Plan of Action for the implementation of children's rights for the period of 2015-2022.

Kenya is yet to fully implement the decision of the ACERWC on the implementation of the Nubian children's case.²² In the Nubian case, the ACERWC requested Kenya to implement its birth registration system in a non-discriminatory way and to take measures to ensure that Nubian children who are stateless acquire Kenyan nationality. While the Kenyan Constitution guarantees the right of all children to a name and nationality upon birth,²³ Nubians have faced discrimination due in part to the contestation of their nationality from historical facts.²⁴ The ACERWC urged Kenya to adopt measures to ensure that Nubian children acquire nationality. However, structural challenges relating to the registration of Nubians and their children in Kenya still exist. Nubians are still made to undergo a process of vetting, which is discriminatory.²⁵

With respect to general principles, the ACERWC made recommendations on the issues of non-discrimination; the best interest of the child; survival and development and child participation. Kenya is yet to take significant steps with respect to these recommendations, particularly on nondiscrimination. On this issue, the ACERWC urged Kenya to ensure the full implementation of the Citizenship and Immigration Act of 2011 and to address the position of Nubian children; to accommodate children with disabilities in the educational system; and to conduct training to alter societal perceptions of children with disabilities. Kenya is yet to make significant progress on the aspects of accommodating children with disabilities and on addressing the position of the Nubian children.

Notably, on freedom of expression Kenya has a Children's Assembly comprised of children, of whom 10% are children with disabilities. In its concluding observations the ACERWC emphasised the need for Kenya to train members of the Children's Assembly. Along with Save the Children, Kenya has taken significant strides to realise this recommendation; however, there is a need for sustained efforts aimed at continuing the process.

On the issue of protection against torture, the ACERWC urged Kenya to adopt the Prohibition of Torture Bill; prosecute violators in schools, families and religious places; raise awareness to combat the issue; and conduct training on alternative disciplinary measures. Kenya is yet to adopt the Prohibition of Torture Bill.

The ACERWC made four recommendations to Kenya with regard to the family environment and alternative care. These recommendations relate to the protection of the family, adoption, parental responsibility and separation from children. Importantly, on the protection of the family the ACERWC urged Kenya to adopt the Family Protection Bill; raise awareness on the importance of the family; raise the budget allocated to family protection; and prevent the breakdown of families. In 2015 Kenya adopted the Protection against Domestic Violence Act.²⁶ On the topic of adoption the ACERWC requested Kenya to accelerate the registration of Charitable Children Institutions (CCIs) and further urged Kenya to improve the regulation of these institutions. In April 2013 the Kenyan government developed a report on National Standards for Best Practices in Charitable Children's Institutions aimed at improving the capacities of these institutions.²⁷ While it has also developed Guidelines for the Alternative Family Care of Children in Kenya,²⁸ it is yet to fully implement the recommendations of the ACERWC significantly with respect to the registration and improvement of these institutions. A centrally located up-to-date database on the number of CCIs and the number of children in these institutions is yet to be maintained.²⁹ The last known survey conducted by Kenya was in 2012. At the time, only 591 of more than 700 CCIs were registered in the state.³⁰ Beyond norms, the monitoring mechanisms for these institutions are also weak and there are no complaint mechanisms to report violence even where there is evidence of violence against children in these institutions.³¹ On the issue of basic health and welfare, the ACERWC urged Kenya to take certain measures such as free health care for children and mothers including in the situation of child birth, and to promote exclusive breast feeding. While Kenya has introduced a policy on free maternal health care in all public facilities,³²progress is yet to be made in relation to the practical implementation. Kenya has made significant progress with respect to breastfeeding. The periodic report indicates that annually from 2008 to 2010 32 per cent of children were exclusively breastfed.³³ As at 2015 the percentage was 61 per cent.³⁴

On the issue of education, leisure and cultural activities, the ACERWC urged Kenya to take pertinent measures inclusive among which are ensuring access to education for children with disabilities, promoting inclusive education, and ensuring that the education system accommodates pregnant girls. Progress is yet to be made with regard to ensuring that the education system accommodates pregnant girls. Reports indicate that 13 000 girls leave school each year in Kenya due to pregnancy.³⁵ Although Kenya has adopted a policy for the educational reentry of girls into school following pregnancy, the country still needs to develop a system that accommodates pregnant girls to prevent drop-outs.

The ACERWC made recommendations on certain issues with regard to special protection measures, inclusive among which are sexual exploitation and harmful traditional practices. On the issue of sexual exploitation, the ACERWC urged Kenya to strengthen efforts to combat sexual tourism, improve law enforcement and regulate the accountability of hotels, develop a system through which those involved are held accountable, adopt measures to combat forced marriage and ensure that perpetrators of sexual abuse are identified, investigated, prosecuted and convicted. Significant progress still needs to be made in respect of sexual tourism. In 2015 an estimated 40 000 child sex workers were believed to be in Mombasa, despite governmental efforts to combat the issue.³⁶ While significant legislative attention has been paid to forced marriage in Kenya,³⁷ it remains a problem with statistics indicating that 23 per cent of girls are married off before they reach 18.³⁸

The ACERWC significantly urged Kenya to educate children on their responsibilities towards the family and the nation and to empower children to contribute to national solidarity. Kenya accomplishes these goals through the Kenya Children Assembly. As with Nigeria and Egypt, the existence of normative frameworks on children's rights in Kenya is crucial. However, it is important for the state to take concrete measures to address specific child rights' issues that are protracted, including the registration of births for Nubian children and the eradication of female genital mutilation.

3.4. South Africa

The ACERWC issued concluding observations on South Africa's report in 2014.³⁹ In its observations the ACERWC urged South Africa to ensure that adequate powers are granted to the coordinating mechanism (the DSD) in the implementation of children's rights.⁴⁰

While urging South Africa to ensure that the limited participation of civil society in the implementation of the African Children's Charter is addressed, the ACERWC further requested South Africa to ratify the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Optional Protocol to the United Nations Convention on the Rights of Persons with Disabilities (Optional Protocol).⁴¹ South Africa ratified the Optional Protocol in 2007 and the ICESCR in 2015.

The ACERWC further requested South Africa to harmonise its laws in such a manner as to give effect to the United Nations Convention against Torture (CAT). In 2013 South Africa passed a law on Prevention and Combatting Torture of Persons Act to domesticate the CAT.

The ACERWC further requested South Africa to harmonise the different ages of marriage under the customary, civil and common law. There is yet to be significant progress in this regard. Although the Children's Act sets the age of marriage at 18 years, the Marriage Act of 1961 and the Recognition of Customary Marriages Act of 1998 recognise the marriage of persons under 18 years subject to consent. It is important for South Africa to amend these laws in harmonising the different minimum ages of marriage.

The ACERWC also urged South Africa to address discrimination against certain categories of children, including refugee and migrant children. However, South Africa is yet to make significant progress administratively on this issue in relation to ensuring access to education for refugee children. It is pertinent to note, however, that the court has emphasised that "children, regardless of documentation or immigration status, have the right to free basic education".⁴²

Further, the ACERWC raised the concern of xenophobia, requesting South Africa to take legislative measures against its perpetrators. While there have been discussions at various levels of government on the need to combat this problem and ensure social cohesion, a concerted legislative response has not been initiated. While it is relevant to highlight that both the 1996 South African Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act of 2000 entrench equality, implementation is still a significant concern, particularly with respect to the issue of xenophobia.

The ACERWC further urged South Africa to address the issue of the registration off birth for children of undocumented migrant women and foreign children born without asylum claims. Under South African legislation these children may not be issued birth certificates. The ACERWC implored South Africa to consider giving refugee and migrant children nationality and further requested South Africa to monitor the Births and Deaths Registration Act and the Regulations thereunder which became effective on 1 March 2014. With respect to granting nationality to refugee children, South Africa has not taken steps towards realising this recommendation. Rather, its Refugees Act seeks to limit the rights of asylum seekers through refusing protection to certain categories of asylum seekers.⁴³ South Africa has made significant progress in addressing late birth registration.⁴⁴ The proportion of births registered within 30 days of the occurrence of birth increased from 68.5 per cent in 2013 to 76.8 per cent in 2015.⁴⁵ Another area of concern raised by the ACERWC relates to access to education. Noting the inadequacy of its schools and educational infrastructure, the shortage of learning materials and the high cost of education, among other things, the ACERWC urged South Africa to allocate funds for the development of its infrastructure, the training of teachers and the subsidisation of education. There is still a need for the government to amplify efforts in these regards. In 2016 the Public Service Commission noted that "[t]he systematic challenges in the provisioning of LTSM [Learning and Teaching Support Material] remain a cause for concern, with the majority of schools still experiencing a shortage of textbooks".⁴⁶ While there exists a plethora of norms for the protection of children's rights, it is pertinent for states to strengthen existing institutions with mandates relating to education, migration and refugee protection to effectively respond to issues of children's rights.

 

4. Reflections

Concluding observations are evident imperatives in advancing discussions on the implementation of the norms of human rights norms. As they serve to provide information to states on their furtherance of human rights norms, they are key to the realisation of human rights and can serve to indicate areas that need to be addressed by states in the realisation of their obligations. Through its concluding observations the ACERWC has identified significant aeras where countries need to take enhanced action in the realisation of children's rights. And while some strides have been taken by states in the realisation of children's rights, it is difficult to conclude that many of the actions are linked to the concluding observations made, as there is a wide panoply of actors and activities across various human rights contexts at various governance levels that significantly precipitate state actions. However, these observations are pertinent to promoting conversations between the ACERWC and states in the realisation of the African Children's Charter.

Evidently, the ratification of the African Children's Charter has made a notable impact on children's rights in the various countries. The Child's Rights Act in Nigeria was developed to give effect both to the Convention on the Rights of the Child and the African Children's Charter. Flowing from the domestic effort to implement the African Children's Charter, several policies have been developed on matters relating to various categories of children including orphans and vulnerable children. The NCRIC was established for the protection and promotion of children's rights on an institutional level.

As with Nigeria, Kenya has also taken significant strides. The Children's Act of 2001 has thrice been revised - in 2002, 2010 and 2012 - to give effect to the principles of the African Children's Charter, among other purposes. Kenya has also developed National Plans of Action for Children for 2015-2022. Notably, in South Africa the African Children's Charter is being used in national courts. In Egypt the NCCM is developing a National Action Plan to give effect to children's rights treaties, including the African Children's Charter.

However, a fundamental challenge overall relates to implementation and compliance. Evidently, this is an issue that has gained significant traction in the human rights discourse over the last decades and it reinforces the value of the concluding observations as implementation enhancers. One of the evident wins of such observations remains that they afford the ACERWC an opportunity to provide guidance to the state in the realisation of children's rights.

This is a pertinent area around which significant advocacy needs to be advanced. In this regard, it is crucial that the concluding observations of the ACERWC are used by other stakeholders in fostering the compliance of states with their obligations under the African Children's Charter, and ultimately to realise children's rights in Africa.

 

5. Conclusion

While the states have taken steps that reflect their commitment to the realisation of the concluding observations of the ACERWC through their normative and institutional measures, there are still pertinent concerns that need to be addressed. With respect to Egypt, this article recommends that reservations to the African Children's Charter significantly in relation to the power of the ACERWC to conduct investigative missions should be withdrawn. Further, Egypt needs to strengthen the capacity of the NCCM and increase its institutional mandate to enable it to function effectively in the protection of children's rights. Third, the registration of births needs to be free not just in the black letter law but also in practice. In addition, it is pertinent for Egypt to sufficiently fund adequate rehabilitation and support centres to ensure the protection of victims of sexual exploitation and children with disabilities.

This paper recommends that Kenya should fully implement the decision of the ACERWC with respect to the Nubian children and set in place measures to ensure that Nubians acquire Kenyan nationality at birth. Further, Kenya should adopt legislative measures that have been commenced to enhance human rights and child rights protection including the Child Justice Bill and the Prohibition of Torture Bill. It is equally important that Kenya ensures that free maternal healthcare is fully implemented in practice in all public facilities in the country. Aside from this, Kenya should ensure that adequate provisions are made in terms of facilities to ensure that pregnant girls are accommodated in the education system of the country. Kenya should adopt adequate law enforcement mechanisms to combat sexual tourism and ensure that sustained efforts are geared at combatting poverty, which is one of the root causes of child sexual exploitation in Kenya. This paper further recommends that advocacy campaign strategies should be strengthened to combat harmful traditional practices against children including forced marriage in communities where this practice thrives.

In relation to Nigeria, this paper recommends that advocacy efforts should be strengthened in states that have not ratified the Child's Rights Act that seeks to implement the African Children's Charter. Second, this report recommends that a national policy should be developed for the rehabilitation of street children in Nigeria. A national policy will not only highlight the magnitude of the problem, but it will also provide direction for states in providing rehabilitation for these children. Third, this report recommends that an adequate monitoring and evaluation mechanism should be set in place in regard to progress made in the realisation of the national policies geared towards the realisation of children's rights in Nigeria. Fourth, this report recommends that institutional efforts should be taken to combat the high levels of illiteracy among women and girls.

This report recommends that South Africa should combat child marriage through harmonising the different ages of marriage in its various laws. South Africa should further strengthen advocacy efforts in areas where the practice thrives. Second, this report recommends that South Africa should protect refugees and migrant children by adopting a legal policy addressing discriminatory practices against them. Third, this report recommends that South Africa should allocate adequate resources to the provision of learning and training support materials to children in schools to promote access to education.

Aside from the challenges, there are significant best practices in the four countries on the implementation of the African Children's Charter. In Egypt the establishment of a Child's Rights Unit in the National Council for Human Rights is commendable. However, it is imperative that the National Council for Human Rights (which does not currently use the African Children's Charter in its programmes on children's rights) should make use of the instrument. In Kenya, the requirement that 10% of the Kenya Children's Assembly must be represented by children with disabilities is a significant initiative that could foster participation for children with disabilities. In Nigeria, the development of a 7-year National Priority Agenda for the protection of vulnerable children is a notable initiative that might be replicated in the implementation of the African Children's Charter to address the concerns of children on the move, children in conflict with the law, children with disabilities and children in armed conflicts.

 

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List of Abbreviations

CERWC African Committee of Experts on the Rights and Welfare of the Child

NPPCAN African Network for the Prevention and Protection against Child Abuse and Neglect

AT Convention against Torture

CIs Charitable Children Institutions

RC Convention on the Rights of the Child

SD Department of Social Development (South Africa)

MWASD Federal Ministry of Women Affairs and Social Development (Nigeria)

CESCR International Covenant on Economic, Social and Cultural Rights

NCB International Narcotics Control Board

CCM National Council for Childhood and Motherhood (Egypt)

CRIC National Child Rights Implementation Committee (Nigeria)

 

 

Date Submitted: 13 May 2020
Date Revised: 9 March 2023
Date Accepted: 9 March 2023
Date Published: 16 October 2023

 

 

Editor: Prof W Erlank
* Aderomola Adeola. LLM HRDA (UP) LLD (UP). This article was based on a report prepared under the supervision of the Centre for Human Rights, Faculty of Law, University of Pretoria. This and five more other reports were developed as part of the Pan African State Accountability (PASAP) Project coordinated by Plan International and having the Centre for Human Rights, Faculty of Law, University of Pretoria, South Africa as a collaborative partner. Email: aderomola.ade@gmail.com. ORCiD: https://orcid.org/0000-0001-9442-3773.
1 Viljoen International Human Rights Law in Africa 37.
2 African Charter on the Rights and Welfare of the Child (1990) art 43.
3 West Africa (Nigeria); East Africa (Kenya); Southern Africa (South Africa); North Africa (Egypt).
4 The consequence of this constitutional clause is twofold. First, it has the effect of legitimising child marriage. Second, it has the effect of eroding the rights of a female child under the Child's Rights Act, 2003. Constitution of the Federal Republic of Nigeria, 1999 art 29(4)(a).
5 Republic of South Africa 2014 https://acerwc.africa/wp-content/uploads/2018/04/South-Africa_Initial_Report_under_the_ACRWC.pdf.
6 National Council for Motherhood and Childhood 2000 https://www.unicef.org/specialsession/how_country/edr_netherlands_en.doc2.
7 The Department of Women, Children and Persons with Disabilities has now been disbanded and its responsibilities divided between the Department of Social Development and the Office in the Presidency responsible for women.
8 Assim 2015 ESR Review 4.
9 ANPPCAN 2008 https://archive.crin.org/en/library/un-regional-documentation/shadow-report-implementation-african-union-charter-rights-and.html.
10 ACERWC 2008 https://acerwc.africa/wp-content/uploads/2018/14/CO_Egypt_Eng.pdf.
11 11 Committee on the Rights of the Child: Consideration of Reports Submitted by States Parties under Article 44 of the Convention: Concluding Observations: Egypt UN Doc CRC/C/EGY/CO/3-4 (2011) para 44.
12 Committee on the Rights of the Child: Consideration of Reports Submitted by States Parties under Article 44 of the Convention: Concluding Observations: Egypt UN Doc CRC/C/EGY/CO/3-4 (2011) para 62.
13 Sharaf 2013 https://gulfnews.com/world/mena/drug-abuse-on-the-rise-in-egypt-1.1165232.
14 El-Kouny 2015 http://english.ahram.org.eg/NewsContent/1/151/133715/Egypt/Features/Outcast-Egypts-growing-addiction-problem-.aspx.
15 INCB 2014 https://www.incb.org/incb/en/publications/annual-reports/annual-report-2013.html 39.
16 The Office of the Minister for Education issued a decree in 1971. See Youssef, Atti and Kamel 1998 Child Abuse and Neglect 975, 976; Abdul-Hamid 2008 https://resourcecentre.savethechildren.net/pdf/1949.pdf/ 36.
17 ACERWC 2008 https://acerwc.africa/wp-content/uploads/2018/14/CO_Nigeria_Eng.pdf.
18 Adedigba 2018 https://www.premiumtimesng.com/news/top-news/288344-nigeria-now-has-13-2-million-out-of-school-children-ubec.html.
19 Violence against Persons (Prohibition) Act, 2015.
20 ACERWC date unknown https://acerwc.africa/wp-content/uploads/2018/14/kenya%20Concluding%20Observation%20final.pdf.
21 National Council for Children's Services date unknown http://www.childrenscouncil.go.ke/.
22 Decision on the Communication Submitted by the Institute for Human Rights and
Development in Africa and the Open Society Justice Initiative (obo Children of Nubian Descent in Kenya) v Government of Kenya Communication No Com/002/2009 (22 March 2011).
23 Constitution of Kenya, 2010 art 53(1)(a); Kabata Impact of International Human Rights Monitoring Mechanisms.
24 Historically, Nubians were brought to Kenya by the British from the Nubian mountains and following independence they were neither returned nor given British citizenship. Rather, they were settled in Kenya, and in post-colonial Kenya they have struggled for recognition. Art 15(1) of the Citizenship and Immigration Act 12 of 2011 recognises that stateless persons may be registered following the fulfilment of certain conditions.
25 Bingham 2017 https://www.justiceinitiative.org/voices/kenyas-nubian-minority-road-citizenship-remains-difficult.
26 Protection against Domestic Violence Act 2 of 2015.
27 Republic of Kenya 2013 http://bettercarenetwork.org/sites/default/files/National%20Standards%20for%20Best%20Practices%20in%20Charitable%20Children%27s%20Institutions.pdf.
28 Republic of Kenya 2014 http://bettercarenetwork.org/sites/default/files/Guidelines%20for%20the%20Alternative%20Family%20Care%20of%20Children%20in%20Kenya.pdf.
29 Republic of Kenya 2014 http://bettercarenetwork.org/sites/default/files/Guidelines%20for%20the%20Alternative%20Family%20Care%20of%20Children%20in%20Kenya.pdf 106.
30 Republic of Kenya 2014 http://bettercarenetwork.org/sites/default/files/Guidelines%20for%20the%20Alternative%20Family%20Care%20of%20Children%20in%20Kenya.pdf 103.
31 Committee on the Rights of the Child: Concluding Observations on the Combined Third to Fifth Periodic Reports of Kenya UN Doc CRC/C/KEN/CO/3-5 (2016) para 41.
32 Bourbonnais 2013 http://www.knchr.org/Portals/0/EcosocReports/Implementing%20Free%20Maternal%20Health%20Care%20in%20Kenya.pdf.
33 Republic of Kenya 2013 https://acerwc.africa/wp-content/uploads/2018/04/Kenya-periodic-Report.pdf 107.
34 Wanjoji et al 2017 International Breastfeeding Journal.
35 Kamau 2016 https://www.nation.co.ke/oped/opinion/-Pregnant-girls-need-help-to-stay-in-school/440808-3135844-j7ivhl/index.html.
36 Cuddihy 2015 https://www.abc.net.au/news/2015-03-19/child-sex-tourism-thriving-in-kenyas-port-city-of-mombasa/6333440.
37 Marriage Act 4 of 2014.
38 Sim 2014 https://www.ibtimes.co.uk/human-rights-day-frightened-girls-forced-into-marriage-without-their-consent-kenya-photo-report-1478964; Mortensen and Kavanagh 2015 https://edition.cnn.com/2015/10/11/africa/kenya-girls-fgm-child-marriage/index.html; Girls not Brides date unknown http://www.girlsnotbrides.org/child-marriage/kenya/.
39 ACERWC 2014 https://www.acerwc.africa/wp-content/uploads/2020/11/South-Africa-concluding-Observations.pdf.
40 ACERWC 2014 https://www.acerwc.africa/wp-content/uploads/2020/11/South-Africa-concluding-Observations.pdf para 11.
41 International Covenant on Economic, Social and Cultural Rights (1966); Optional Protocol to the United Nations Convention on the Rights of Persons with Disabilities (2006).
42 Cleary 2019 https://www.dailymaverick.co.za/article/2019-12-16-a-victory-for-vulnerable-children-as-court-grants-undocumented-learners-access-to-schooling/.
43 Refugees Act 130 of 1998 (as amended).
44 Statistics South Africa 2016 http://www.statssa.gov.za/publications/P0305/P03052015.pdf 22.
45 Statistics South Africa 2016 http://www.statssa.gov.za/publications/P0305/P03052015.pdf 8.
46 Hartley 2016 https://www.businesslive.co.za/bd/national/education/2016-06-23-shortage-of-school-textbooks-still-a-cause-for-concern-commission-says/.