On-line version ISSN 1609-073X
Afr. hum. rights law j. vol.11 n.2 Pretoria 2011
Lorenzo WakefieldI; Usang M AssimII
IResearcher, Community Law Centre, University of the Western Cape, South Africa
IIDoctoral Intern, Community Law Centre, University of the Western Cape, South Africa
The 16th and 17th sessions of the African Committee of Experts on the Rights and Welfare of the Child took place at the African Union Commission Headquarters in Addis Ababa, Ethiopia, in November 2010 and March 2011, respectively. This article provides an overview of these sessions, together with the Civil Society Organisations Fora that preceded these sessions. These sessions featured significant developments in the work of the Committee. The first relates to a new collaboration between a network of five non-governmental organisations and the Committee to promote the work of this treaty body. Secondly, the Committee delivered its first communication, finding against the government of Kenya in regard to the right to nationality (amongst other rights) of Nubian children in Kenya. These two activities are major highlights for the Committee in the execution of its mandate. It is argued that, despite the challenges faced by the Committee, it is at the threshold of a new era through which it may be established as a significant regional human rights treaty body.
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* LLB, LLM (Western Cape); firstname.lastname@example.org
** LLB (Ife), LLM (Pretoria); email@example.com. This article was made possible due to the generous funding from the European Union and the Open Society Initiative of Southern Africa. The views in the article are those of the authors and do not reflect the official views of these institutions.
1 Art 32(1) African Children's Charter.
2 In terms of art 37(1) of the African Children's Charter, members of the African Children's Committee 'may not be re-elected' upon the expiration of their specified five-year term of office. This remains a disadvantage to the fulfilment of the Committee's mandate. See J Sloth-Nielsen & BD Mezmur (1) '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 lournal 211-212; [ Links ] BD Mezmur & J Sloth-Nielsen (2) 'An ice-breaker: State party reports and the 11th session of the African Committee of Experts on the Rights and Welfare of the Child' (2008) 8 African Human Rights Law Journal 599; [ Links ] J Sloth-Nielsen & BD 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 339. [ Links ]
3 See Sloth-Nielsen & Mezmur (1) (n 2 above) 213.
4 While the African Children's Charter entered into force in 1999, the African Children's Committee was formally established in July 2001 and had its inaugural meeting in May 2002.
5 Art 38(3) of the African Children's Charter provides that '[s]even Committee members shall form the quorum'.
6 See L Wakefield 'Setting the trend? Civil society participation with selected structures of the African human rights system' (2011) 16 (unpublished and forthcoming) (copy of paper on file with the authors).
7 As above.
8 Up to May 2010, the Chairperson was Seynabou Diakhate and her term of office lapsed at the end of May 2010. In the interim, until the election of the next bureau, the Vice-Chairperson, Agnes Kabore, was designated the acting Chairperson.
9 Art 32(2) of the African Children's Charter provides for the election of officers from the Committee for a two-year period.
10 Four of the new Committee members have a legal background while the other three have backgrounds in social work, child psychology and education.
11 The older members of the Committee in attendance were the acting Chairperson, Ms Kabore, Mr Yanclo and Mr Rasamoely. The Secretary to the Committee, Ms Cisse, was also in attendance.
12 While the African Children's Committee is yet to issue a General Comment, the CRC Committee has issued 13 General Comments dealing with diverse children's rights issues. These General Comments have assumed the role of binding (albeit soft) law by which state parties are expected to be guided in fulfilling their mandates to promote and protect the rights of children at a domestic level.
13 Part II of the African Children's Charter comprises arts 32-48 of the Charter with arts 32-46 focused on the establishment, organisation, mandate and procedure of the African Children's Committee.
14 See B Mezmur 'The African Children's Charter versus the UN Convention on the Rights of the Child: A zero-sum game?' (2008) 23 South African Public Law 1.
15 See the table prepared by F Shehan Advancing children's rights: A guide for civil society organisations on how to engage with the African Committee of Experts on the Rights and Welfare of the Child (2010) 109-110.
16 Art 43(1) provides: 'Every state party to the present Charter shall undertake to submit to the Committee ... reports on the measures they have adopted which give effect to the provisions of this Charter and of the progress made in the enjoyment of these rights: (a) within two years of the entry into force of the Charter for the state party concerned; and (b) thereafter, every three years.' Art 43(2) provides further: '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 fulfilment of the obligations contained in the Charter.'
17 J Sloth-Nielsen & B Mezmur 'Like running on a treadmill? The 14th and 15th sessions of the African Committee of Experts on the Rights and Welfare of the Child' (2010) 10 African Human Rights Law journal 541.
18 J Sloth-Nielsen & B Mezmur (n 17 above) 542.
19 As above.
20 Eg, art 31 of the African Children's Charter that deals with the 'responsibility of the child' is not covered in CRC.
21 In terms of art 43(1)(a) of the African Children's Charter, every state party is to present its initial report on the implementation of the Children's Charter two years after the entry into force of the treaty. Togo is eight years late, as the country report stipulates that the African Children's Charter only entered into force during 1999.
22 Rwanda signed the Children's Charter on 2 October 1991 and deposited its instrument of accession on 11 November 1999.
23 Some of these aspects include juvenile justice, child legislation, education, child labour, traditional practices affecting children, the health system, research in relation to the causes of the problems facing children's rights, and preparations for the Day of the African Child.
24 See generally G Quinn & T Degener 'The moral authority for change: Human rights values and the worldwide process of disability reform' in G Quinn et al Human rights and disability: The current use and future potential of United Nations human rights instruments in the context of disability (2002) 9.
25 In French, children with disabilities are referred to as enfants handicaps.
26 The 4th CSO Forum to the Committee recommended to the Committee in a Communique, giving an advisory opinion on art 13 giving consideration to the language used to promote the dignity of children with disabilities. Please refer to sec 8.3 for more information on the CSO Forum.
27 See Sloth-Nielsen & Mezmur (2009) (n 2 above) 345; Sloth-Nielsen & Mezmur (n 17 above) 543.
28 The Nubian people living in Kenya have been brought there by the British (from Sudan) to be used as soldiers on the border. For years Nubian communities have lived in Kenya without being granted Kenyan nationality; see http://allafrica.com/stories/201104020089.html (accessed 4 July 2011).
29 For details on the history of these communications before the Children's Committee, see Sloth-Nielsen & Mezmur (n 17 above) 547; Sloth-Nielsen & Mezmur (2009) (n 2 above) 346.
30 The author of the communication, Centre for Human Rights, University of Pretoria, had requested the Committee to determine the admissibility of the communication. At the 14th session of the Committee, the author of the communication was requested to produce French versions of the communication so as to enable all members of the Committee to look into the application and decide on it. As at the 16th session, the French versions of the documents had been forwarded and so the Committee could proceed with looking into the communication.
31 For further information on this, see:http://www.ihrda.org/2011/06/kenya-nubian-children-should-be-given-nationality-at-birth/ (accessed 17 June 2011).
32 Institute for Human Rights and Development in Africa (IHRDA) and Open Society justice on behalf of Nubian Children in Kenya v The Government of Kenya Communication 002/2009 para 69.
33 As above.
34 Sloth-Nielsen & Mezmur (n 17 above) 549.
35 As above.
36 Statement by the Honourable Minister of Women and Children's Affairs on 16 June 2011 - Africa Union Day of the Child http://www.obuobafm.com/local-news/africa-child-celebration-2011 (accessed 22 June 2011).
37 African Children's Charter Concept Note on the commemoration of the 21st edition of the Day of the African Child on 16 June 2011 under the theme 'All together for urgent actions in favour of street children' 5 (copy of note on file with authors). See also Message of the Chairperson of the African Committee of Experts on the Rights and Welfare of the Child on the occasion of the 21st edition of the Day of the African Child (2011) http://www.streetchildren.org.uk/_uploads/publications/message_english_african_day_of_the_child.pdf (accessed 22 June 2011).
38 African Children's Charter Concept Note (n 37 above) 5.
39 African Children's Charter Concept Note (n 37 above) 6.
40 H Combrinck 'The hidden ones: Children with disabilities in Africa and the right to education' in J Sloth-Nielsen (ed) Children's rights in Africa: A legal perspective (2008) 302.
41 Sloth-Nielsen & Mezmur (n 17 above) 551.
42 This Convention is also known as the Kampala Convention and has not yet come into force as 15 African states have to ratify it and thus far this number has not been reached.
43 Art 24 of the African Children's Charter is entitled 'Adoption'.
44 See generally Quinn & Degener (n 24 above).
45 Sloth-Nielsen & Mezmur (n 17 above) 555.
46 As above.
47 The former members of the working group whose terms of office expired in mid-2010 are Seynabou Diakhate, Moussa Sissoko and Mamosebi Pholo, while the new Committee member appointed to join the working group is Benyam Mezmur. See Sloth-Nielsen & Mezmur (n 17 above). With the appointment of Mr Mezmur, the number of the Committee's members appointed to be in the joint working group has been reduced from six to four, the fourth person being the Secretary to the Committee.
48 See the Committee's report on its 17th session, http://www.acerwc.org/wp-content/uploads/2011/03/acerwc17-report-2011-eng.pdf (accessed 18 October 2011) 11.
49 As above.
50 IHRDA (n 32 above) para 24.
51 IHRDA (n 32 above) para 28.
52 IHRDA (n 32 above) para 29.
53 http://www.acerwc.org (accessed 31 October 2011).
54 Discussed in section 8.2.