ARTICLES

The development of a fledgling child rights jurisprudence in Eastern and Southern Africa based on international and regional instruments

Ann Skelton

Advocate of the High Court of South Africa; Director of the Centre for Child Law, University of Pretoria, South Africa

SUMMARY

This article charts the development of a child law jurisprudence that is emerging in Eastern and Southern Africa. The article records how judgments are beginning to make reference to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, and even to less prominent instruments such as the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption (1993) and the Hague Convention on Civil Aspects of International Child Abduction. Attention is paid to certain textual differences between the UN Convention and the African Children's Charter, and the extent to which these discrepancies have played a role in the development of a child law jurisprudence that might be described as uniquely African. The article considers judgments in the region that have expressly dealt with the 'best interests' principle. Examples from Botswana, South Africa and Kenya are described. The second area discussed is the imprisonment of children's primary care givers, in relation to which article 30 of the African Children's Charter, dealing with the children of imprisoned mothers, is highlighted. Other examples arise in relation to differences in the wording of the UN Convention and the African Children's Charter regarding inter-country adoption, which is the third area of case law discussed. High-profile cases relating to adoption applications brought by Madonna before the Malawian courts are amongst those examined.
The article concludes that there is evidence of the beginnings of a specifically African jurisprudence in child law. It is noted, however, that more can be done to promote children's legal rights in the region through the ratification by more African countries of the Hague Conventions, and also through courts in the Eastern and Southern African region taking note of each other's jurisprudence.

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* BA LLB (KwaZulu-Natal), LLD (Pretoria); ann.skelton@up.ac.za
1 F Viljoen 'The African Charter on the Rights and Welfare of the Child' in CJ Davel (ed) Introduction to child law in South Africa (2000) 214.         [ Links ]
2 A Lloyd 'The African regional system for the protection of children's rights' in J Sloth-Nielsen (ed) Children's rights in Africa: A legal perspective (2008) 33.         [ Links ]
3 The full list of countries that have ratified (updated 12 February 2009) is available at the African Union website http://www.africa-union.org/root/au/Documents/Treaties/List (accessed 15 September 2009). The eight countries that have not ratified are Central African Republic, Djibouti, Democratic Republic of Congo, Sahrawi Arab Democratic Republic, Somalia, Sâo Tomé and Principe, Sudan, Swaziland and Tunisia. Of these, the DRC and Sâo Tomé and Principe have neither signed nor ratified, whilst the majority of the other countries signed more than ten years ago. For further information regarding the progress being made by the African Committee, see J Sloth-Nielsen & B Mezmur 'Out of the starting blocks: The 12th and 13th sessions of the African Committee of Experts on the Rights and Welfare of the Child' (2009) 9 African Human Rights Law Journal 336;         [ Links ] Lloyd (n 2 above).
4 The Convention was unanimously approved at the 17th session of the Hague Conference of Private International Law.
5 Burkina Faso, Burundi, Guinea, Kenya, Madagascar, Mali, Mauritius, Seychelles and South Africa (whilst there are 79 contracting states worldwide); http://www.hcch.net/index_en.php?act=conventions.status (accessed 16 September 2009).
6 V Root 'Angelina and Madonna, why all the fuss? An exploration of the rights of the child and inter-country adoptions within African nations' (2007) 8 Chicago Journal of International Law 323.         [ Links ]
7 For some of the debates about this issues, see generally J Esq 'The good, the bad and the ugly? A new way of looking at the intercountry adoption debate' (2007) 13 UC Davis journal of international Law and Policy 17;         [ Links ] M Liu 'International adoptions: An overview' (1994) 8 Temple International and Comparative Law journal 187;         [ Links ] Root (n 6 above).
8 This Convention was adopted at the 14th session of the Hague Conference of Private International Law on 24 October 1980.         [ Links ]
9 Burkina Faso, Mauritius, Seychelles, South Africa and Zimbabwe; http://www.hcch.net/index_en.php?act=conventions.status (accessed 16 September 2009).
10 W Duncan 'Regional developments and the Hague Children's Conventions' in J Sloth-Nielsen & Z du Toit (eds) Trials and tribulations, trends and triumphs (2008) 58-59 points out that the challenges facing the conventions in the developing world relate to the need for an easy-to-contact central authority,         [ Links ] rapid procedures (including appeal procedures), specialised family courts, etc. Countries in the developing world may thus be wary of becoming contracting states because of the financial and administrative burdens that this occasions, which are difficult to manage without fully-fledged systems.
11 See, eg, the Kenyan cases of Brouwen v Attorney-General [2007] 1 EA 37 (HCK) and B v Attorney General [2004] 1 KLR 431. These cases involve civil abduction of children, but as Kenya has not ratified the Hague Convention on the Civil Aspects of International Child Abduction, it did not apply, and the court had to use principles of common law to reach its finding. The court's judgments would not, however, carry any weight in Belgium (to which two of the children were abducted), whereas the Hague Convention allows for the recognition of orders from the other Hague Convention country.
12 J Sloth-Nielsen 'Strengthening the promotion, protection and fulfilment of children's rights in the African context' in A Alen et al (eds) The UN Children's Rights Convention: Theory meets practice (2007);         [ Links ] J Sloth-Nielsen 'Domestication of children's rights in national legal systems in African context: Progress and prospects' in Sloth-Nielsen (n 2 above) 53.
13 African Child Policy Forum Realising their rights: Harmonisation of law for children in Eastern and Southern Africa (2007).         [ Links ]
14 Minister of Welfare and Population Development v Fitzpatrick & Others 2000 3 SA 422 (CC) para 20; Sonderup v Tondelli & Another 2001 1 SA 1171 (CC) paras 33 & 35; De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, & Others 2004 1 SA 406 (CC) paras 54-55; S v M (Centre for Child Law as Amicus Curiae) 2008 3 SA 232 (CC) paras 12-27.
15 2006 2 BLR147 HC.
16 At 150. The South African High Court has made a similar decision in the case of Hlope v Mahlalela 1998 1 SA 449 (T) in which it was decided that the best interests of the child was the main criterion to be utilised in disputes relating to the custody of children, and that this would override any rule of customary law. The Court referred to the best interests principle in the South African Constitution, but did not make direct reference to international law. On the issue of best interests and its application in customary law, see I Maithufi 'The best interests of the child and African customary law' in Davel (n 1 above) 146.
17 2005 1 SA 580 (CC).
18 n 17 above, para 55.
19 Sec 39(1) of the Constitution in relevant part provides: 'When interpreting the Bill of Rights, a court, tribunal or forum - ... (b) must consider international law.'
20 South Africa became a party to CRC on 16 July 1995; ICCPR on 10 March 1999; the African [Banjul] Charter on 9 July 1996; and the African Children's Charter on 7 January 2000.
21 See Preamble to the Convention which cites the Declaration of the Rights of the Child which was adopted by the General Assembly in 1959.
22 Art 2 of CRC. Also see art 24 of ICCPR; art 18(3) of the African Charter; arts 3 & 26(3) of the African Children's Charter.
23 Bhe (n 17 above) para 55.
24 The judgment has come in for some criticism, most of which aligns itself with the dissenting judgment by Justice Ngcobo. He was of the view that the Court should not have declared the law unconstitutional and found that the answer to resolving the conflict between customary law and the Bill of Rights lies in 'flexibility and willingness to examine the applicability of indigenous law in the concrete setting of social conditions presented by each particular case' (para 236). A full discussion of these issues is beyond the scope of this article.
25 The full name of the judgment is RM (Suing thro' next friend) jK Cradle (The Children Fund) Millie and Gao v the Attorney-General Nairobi (Nairobi Law Courts) High Court Civil Case 1351 of 2002 (unreported). It is available in Centre for Child Law and Policy Research and Children's Legal Action Network The law on children: A case digest (2007).
26 See eg sec 172(1)(b)(ii) of the Constitution of South Africa Act 108 of 1996.
27 For a full discussion of the differences between the two instruments and on the way in which the African Children's Charter provides improved normative standards, see B Mezmur 'The African Children's Charter v the UN Convention on the Rights of the Child: A zero-sum game?' (2008) 23 SA Public Law 1.
28 2008 3 SA 232 (CC) (S v M).
29 The Constitutional Court issued an order on the day of hearing that the citation of the case name should include only the initial of the applicant's surname in order to protect the identity of her children.
30 S v M (n 28 above) para 3.
31 S v M (n 28 above) para 33.
32 As above.
33 2008 3 SA 183 (CC).
34 2000 3 SA 422 (CC).
35 Sec 18(4)(f) of the Child Care Act 74 of 1983.
36 AS Louw 'Intercountry adoption in South Africa: Have the fears become fact?' (2006) 3 De Jure 503.
37 Inter-country adoptions became lawful in South Africa in 2000 when the Constitutional Court struck down a section of the Child Care Act 74 of 1983 which prevented foreigners from adopting South African children (Minister of Welfare and Population Development v Fitzpatrick 2000 3 SA 422 (CC)). The Court found that this law was too restrictive to allow for children's best interests to be realised, and the impugned section was declared invalid with immediate effect. The Court indicated at that time that the Children's Court would deal with such adoptions.
38 De Gree & Another v Webb & Others (Centre for Child Law as Amicus Curiae) 2007 5 SA 184 (SCA).
39AD case (n 33 above) para 55.
40 Adoption Cause 2 of 2006 (2008) MWCH 3 28 May 2008.
41 In the Matter of the Adoption of EC (Infant) Nairobi (Nairobi Law Courts), High Court Adoption Cause 46 of 2006; In the Matter of Adoption of BAO (Infant) Nairobi (Nairobi Law Courts), High Court Adoption Cause 141 of 2003, In the Matter of AC (A Child), Nairobi (Nairobi Law Courts) High Court Adoption Cause 25 of 2006. The case is unreported. It is available in Centre for Child Law and Policy Research and Children's Legal Action Network (n 25 above).
42 The court cited Mwakanwanga v Rep 1968-1970 5 MLR 14 and Gondwe v Attorney-General 1996 MLR 492 in support of this statement.
43 See n 33 above para 59. On the issue of comity between states, see further J Sloth-Nielsen & B Mezmur '(Illicit) transfer by De Gree' (2007) 2 Law, Democracy and Development 81 100.
44 South Africa has ratified the Hague Convention on Intercountry Aoption but it has not been brought into operation as yet. This is expected to happen during 2009, when the long-awaited Children's Act 38 of 2005 is expected to come into operation.
45 Sec 261(6) of the Children's Act 38 of 2005, not in operation at the time of writing.
46 In Re: Adoption of Children Act CAP. 26:01; In Re: CJ (A Female Infant) of c/o Mr Peter Baneti, Moba (Adoption case 1 of 2009) [2009] MWHC 3 (3 April 2009) http://www.saflii.org/mw/cases/MWHC/2009/3.html (accessed 14 September 2009).
47 See W Duncan 'The Hague Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption 1993: Some issues of special relevance to sending countries' in ED Jaffe (ed) Intercountry adoptions: Laws and perspectives of 'sending' countries (1995) 222-223.
48 In Re: The Adoption of Children Act CAP 26:01; In RE CJ A Female Infant of C/o PO Box 30871, Chichiri, Blantyre 3 (Msca Adoption Appeal 28 of 2009) [2009] MWSC 1 (12 June 2009) http:www.saflli.org/mw/cases/MWSC/2009/Lhtml (accessed 14 September 2009).
49 AF v HA and HI Meru High Court Civil Appeal 72 of 2004; Diana Ndele Wambua v Dr Paul Wambua 2004 eKLR; http://www.kenyalaw.org (accessed 15 September 2009).
50Republic v Matano Katana 2004 e KLR; Mkunzo & Another v Republic (2008) 1 KLR (G&F); Republic v SAO, Nairobi Criminal Case 236 of 2003; S v Williams & Others 1995 7 BCLR 861 (CC); S v B 2006 1 SACR 311 SCA; Director of Public Prosecutions, KwaZulu-Natal v P 2006 3 SA 515 (SCA); S v N 2008 3 SA (SCA).
51 See n 3 above.