RECENT DEVELOPMENTS

An ice-breaker: State party reports and the 11th session of the African Committee of Experts on the Rights and Welfare of the Child

Benyam D Mezmur^I; Julia Sloth-Nielsen^II

^IResearcher and PhD Candidate, Community Law Centre, University of the Western Cape, South Africa
^IIProfessor of Law, University of the Western Cape, South Africa

SUMMARY

During its 11th session, the African Committee of Experts on the Rights and Welfare of the Child held its first Pre-Session for the consideration of state party reports. This update highlights the work of the Committee during this session. While little attention is paid to the proceedings of the 11th session, partly as a result of the fact that the session was short-lived (only three days, composed of open and closed sessions), the procedures for the Pre-Session, as well as the substance of the four reports that were discussed during the Pre-Session, occupy centre stage. In conclusion, it is argued that the whole exercise of the Pre-Session was an ice-breaker, and represents progress in its own right. In looking forward, the importance for the African Children's Committee to draw the necessary lessons from the four state party reports and to chart ways of strengthening the reporting regime is underscored. A number of tentative recommendations are made in this regard.

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* LLB (Addis Ababa), LLM (Human Rights and Démocratisation in Africa) (Pretoria); benyamdawit@yahoo.com. It is hereby acknowledged that this work is based upon research supported by the National Research Foundation.
** BA, LLB (Stellenbosch), LLM (Cape Town), LLD (Western Cape); juliasn@telkomsa.net
1 Art 38(3) of the African Children's Charter provides that '[s]even committee members shall form the quorum'. Committee member Mrs Pholo Mamosebi has failed to attend two consecutive sessions of the Committee and it was agreed that, in accordance with art 14 of the Rules of Procedure, a reminder would be sent to her.
2 J Sloth-Nielsen & B Mezmur 'Win some, lose some: The 10th ordinary session of the African Committee of Experts on the Rights and Welfare of the Child' (2008) 8 African Human Rights Law Journal 219.
3 Cmttee/ACRWC/2 II. Rev2.
4 See, eg, Sloth-Nielsen & Mezmur (n 2 above) 211-212.
5 Under Decision EX/CL/233(VII) of 2005, para 8, the Executive Council of the AU has requested the AU Commission to study measures to renew the terms of office of committee members for another term.
6 Sloth-Nielsen & Mezmur (n 2 above) 219.
7 For further details on these Guidelines, see B Mezmur 'Still an infant or now a toddler? The work of the African Committee of Experts on the Rights and Welfare of the Child and its 8th ordinary session' (2007) 7 African Human Rights Law Journal 267-270.
8 This has already been suggested in B Mezmur 'Looking back to look ahead: The 9th meeting of the African Committee of Experts on the Rights and Welfare of the Child' (2007) 7 African Human Rights Law Journal 552-553.
9 NGOs and individual experts should also provide 20 copies of each document submitted to the CRC Secretariat. See CRC Guidelines for the participation of partners (NGOs and individual experts) in the Pre-sessional Working Group of the Committee on the Rights of the Child (CRC Pre-Sessional Guidelines) (UN Doc CRC/C/90, 1999) para 2.
10 CRC Pre-Sessional Guidelines (n 9 above) paras 2 & 3.
11 CRC Pre-Sessional Guidelines (n 9 above) para 4.
12 As above.
13 M Evans et al 'The reporting mechanism of the African Charter on Human and Peoples' Rights' in M Evans & R Murray (eds) The African Charter on Human and Peoples' Rights: The system in practice, 1986-2000 (2002) 37.
14 The other seven core UN human rights treaties are the International Covenant on Civil and Political Rights (CCPR); the International Covenant on Economic, Social and Cultural Rights (CESCR); the Convention on the Elimination of All Forms of Racial Discrimination (CERD); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CRMW); the International Convention for the Protection of All Persons from Enforced Disappearance; and the Convention on the Rights of Persons with Disabilities (CRPD).
15 As above.
16 M Verheyde & G Goedertier 'Article 43-45: The UN Committee on the Rights of the Child' in A Alen et al (eds) A commentary on the United Nations Convention on the Rights of the Child (2006) 16.
17 Art 43 of the African Children's Charter on Reporting Procedure provides in part that: '1 Every state party to the present Charter shall undertake to submit to the Committee through the Secretary-General of the Organization of African Unity, reports on the measures they have adopted which give effect to the provisions of this Charter and on the progress made in the enjoyment of these rights: ... 2 Every report made under this article shall: (a) contain sufficient information on the implementation of the present Charter to provide the Committee with comprehensive understanding of the implementation of the Charter in the relevant country; and (b) shall indicate factors and difficulties, if any, affecting the fulfillment of the obligations contained in the Charter. 3. A state party which has submitted a comprehensive first report to the Committee need not, in its subsequent reports submitted in accordance with paragraph I (a) of this article, repeat the basic information previously provided.'
18 It leaves out the express requirement to supply sufficient information to provide the Committee with a comprehensive understanding of the implementation of the treaty. See Verheyde & Goedertier (n 16 above) 17.
19 State parties 'may indicate' difficulties (art 18(2) of CEDAW) (our emphasis) as opposed to 'shall indicate' under art 43(2)(b) of the African Children's Charter.
20 Only requires state parties to submit a report on the legislative, judicial, administrative or other measures which they have adopted. See art 9(1) of CERD.
21 Para 3 of the Guidelines.
22 Para 4 of the Guidelines.
23 Unfortunately, while the other three reports follow these Guidelines, Egypt's report does not. Egypt's report follows an article by article reporting system, which would make it less accessible for the African Children's Committee in its consideration of the state party report.
24 Paras 8-9 of the Guidelines.
25 Para 10 of the Guidelines.
26 Paras 11-12 of the Guidelines.
27 Para 13 of the Guidelines.
28 Paras 14-16 of the Guidelines.
29 Paras 17-18 of the Guidelines.
30 Paras 19-20 of the Guidelines.
31 Paras 21-22 of the Guidelines.
32 Para 23 of the Guidelines.
33 This is despite the fact that Rwanda's report to the CRC Committee in 2002 contains a section entitled 'Preparation of the present report'. Under this section, issues such as the seminars and workshops that have been held for the preparation of the report, the organisations that were involved in the preparation of the report, the designation by the Prime Minister of the lead institution, establishment of the Co-ordination and Monitoring Committee as well as the establishment by the Co-ordination Committee of the programme of consultation and information gathering, and the actual consultations and steps followed in the preparation of the report are highlighted.
34 Rwanda's state party report, 33.
35 Which briefly mentions that '[i]n preparing the present report, consultations were made with all stakeholders and their views/suggestions have, as far as possible, been taken on board'. See Mauritius's state party report, 8.
36 Nigeria's state party report, 19.
37 See 'Recommendations' http://www2.ohchr.org/english/bodies/crc/docs/discussion/recommendations 2007.doc (accessed 22 September 2008).
38 See Annexure 1 to the state party report.
39 While Nigeria's and Egypt's state party reports provide some detail, those of Rwanda and Mauritius are very much lacking. See Nigeria's state party report, 31-34. See too Egypt's state party report, 9-12.
40 Mauritius's state party report, 102.
41 B Abramson 'First state reports: Sunny and ... cloudy' (1993) 10 International Children's Rights Monitor 23.
42 Art 1 of CRC states that a child is any human being under 18, unless majority is attained earlier under the law applicable to the child. This provision is ambiguous and weak, lacking specific protection within the African context in order to take into account child betrothals, child participation in armed conflict and child labour.
43 Our emphasis.
44 Egypt's state party report, 13-14.
45 The report provides information under this cluster on capacity to marry, employment, participation in labour unions, and testimony before criminal court. See Rwanda's state party report, 19-24.
46 Mauritius's state party report, 23-24.
47 CRC Guidelines, art 12, general guidelines regarding the form and content of initial reports to be submitted by state parties under art 44, para(a) of the Convention (30/10/91 CRC/C/5) (basic reference document).
48 For a discussion of how these provisions of the African Children's Charter offer better standards than the African Children's Charter, see generally B Mezmur 'The African Children's Charter versus the UN Convention on the Rights of the Child: A zero-sum game?' (2008) 23 SA Public Law 1-28.
49 Our emphasis.
50 Egypt's state party report, 88. It is to be noted that Egypt reports on the issue of the involvement of children in armed conflict in a very brief three-liner paragraph.
51 Coalition to Stop the Use of Child Soldiers Child soldiers: Global report (2008) 288.
52 Acceded to 6 February 2007
53 Art 3(1) of the Optional Protocol. In its declaration on accession, the Egyptian government has stated that 'in accordance with current laws ... the minimum age for voluntary recruitment into the armed forces is 16 years. The Arab Republic of Egypt is committed to ensuring that voluntary recruitment is genuine and entirely willing, with the informed consent of the parents or legal guardians after the volunteers have been fully informed of the duties included in such voluntary military service and based on reliable evidence of the age of the volunteers.' See Egypt's Declaration on accession to the Optional Protocol http://www2.ohchr.org as cited in Coalition (n 51 above) 134.
54 See ML Hackenberg 'Can the Optional Protocol for the Convention on the Rights of the Child protect the Ugandan child soldier?' (2000) 10 Indiana International and Comparative Law Review 417. See also A Leibig 'Girl child soldiers in Northern Uganda: Do current legal frameworks offer sufficient protection?' (2005) 3 Northwestern University Journal of International Human Rights 6.
55 Art 1 African Children's Charter.
56 Mauritius's state party report, 106 (our emphasis).
57 Rwanda's state party report, 59.
58 See Coalition (n 51 above) 288-289; Human Rights Watch 'Army should stop use of child soldiers' (April 2007).
59 Though the African Children's Committee might still raise it.
60 D Olowu 'Protecting children's rights in Africa: A critique of the African Charter on the Rights and Welfare of the Child' (2002) 10 International Journal of Children's Rights 130.
61 Nigeria's state party report, 133-135.
62 Egypt's state party report, 88-89.
63 Rwanda's state party report, 58-59.
64 Mauritius's state party report, 106
65 As above.
66 As neither the list of issues nor the concluding observations allude to the issue of refugee children.
67 See UNDP Mauritius http://un.intnet.mu/UNDP/html/mauritius/crisis_prevention_recovery.htm (accessed 23 September 2008).
68 Besides, irrespective of the fact whether states have, eg, the problem of refugee children, child soldiers or children in exploitative circumstances, they should have legislative, administrative and other appropriate measures set in place in order to comply with their obligations under the African Children's Charter.
69 Art 29 African Children's Charter.
70 Nigeria's state party report, 84.
71 Rwanda's state party report, 66.
72 Egypt's state party report, 96-97.
73 Para 24 of the Guidelines.
74 M Gose The African Charter on the Rights and Welfare of the Child (2002) 12 13. See also DM Chirwa 'The merits and demerits of the African Charter on the Rights and Welfare of the Child' (2002) 10 International journal of Children's Rights 168.
75 Gose (n 74 above) 105-106.
76 Egypt's state party report, 97-98. This is despite the fact that Egypt has entered a reservation to this provision. For further details on reservations, see sec 3.5.3 below.
77 Nigeria's state party report, 145.
78 Rwanda's state party report, 62.
79 Mauritius's state party report, 114.
80 Mauritius's state party report, 126.
81 The report also quoted art 12 of the Constitution about society's commitment to caring and protecting morality as well as empowering the authentic Egyptian tradition.
82 Egypt's state party report, 99.
83 Nigeria's state party report, 154.
84 As above.
85 Nigeria's state party report, 70-72.
86 J Sloth-Nielsen & BD Mezmur 'A dutiful child: The implications of article 31 of the African Children's Charter' (2008) 52 Journal of African Law 159.
87 Sloth-Nielsen & Mezmur (n 86 above) 170.
88 Sloth-Nielsen & Mezmur (n 86 above) 171.
89 Sloth-Nielsen & Mezmur (n 86 above) 172.
90 Verheyde & Goedertier (n 16 above) 22. See also the decision of the CRC Committee at its 30th session (2002, CRC/C/118).
91 Sometimes, a report such as that of Egypt might be submitted in an Arabic version. This means that it needs to be translated both into English and French for the African Children's Committee members and could end up being a very lengthy exercise, especially if the report is too long.
92 This is reflected in the cover page as well as the preface of the report at page 11. Furthermore, the heading of sec 3 of the report reads 'Preparatory Process for the Initial and First Periodic Report' (p 19 of the report)
93 This is reflected in the cover page as well as the preface of the report at p vii.
94 See CRC Committee (CRC/C/90, 22nd session, September 1999).
95 See eg art 40 of The Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption (1993).
96 See Egypt's state party report, 6.
97 As above.
98 Verheyde & Goedertier (n 16 above) 43.
99 A Lloyd 'Report of the 2nd ordinary session of the African Committee of Experts on the Rights and Welfare of the Child' (2003) 3 African Human Rights Law Journal 342.
100 . .As above.
101 Rwanda's state party report, 73.