On-line version ISSN 1609-073X
Afr. hum. rights law j. vol.12 n.2 Pretoria 2012
Ebenezer DurojayeI; Edmund Amarkwei FoleyII
ISenior Researcher and Co-ordinator, Socio-Economic Rights Project, Community Law Centre, University of the Western Cape, South Africa
IISenior Researcher and Co-ordinator, Children's Rights Project, Community Law Centre, University of the Western Cape, South Africa
The article analyses the Nubian Children communication, the very first case to be finalised by the African Committee of Experts on the Rights and Welfare of the Child. It critically reviews the progressive approach of the Committee of Experts with regard to its interpretation of the exhaustion of local remedies. The Committee ruled that the best interests principle should serve as an exception to the exhaustion of local remedies rule. While the approach of the Committee is commended, it is argued that this progressive approach should be lauded with caution. Further, the article argues that the African Committee of Experts' approach to the indivisibility of human rights guaranteed under the African Children's Charter in the Nubian children communication is progressive and capable of advancing human rights, particularly socio-economic rights, of children in the region. While this decision serves as an important precedent for advancing children's rights in the region, it misses an opportunity of adopting a gender-sensitive approach in the interests of the girl child.
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1 OAU Doc CAB/LEG/24.9/49 (1990).
2 African Charter on Human and Peoples' Rights OAU Doc CAB/LEG/67/3/Rev 5, adopted by the Organisation of African Unity 27 June 1981, entered into force 21 October 1986.
3 See Open Society Foundation 'Nubians in Kenya appeal for their "right to existence"' 17 July 2005, http://www.soros.org/initiatives/osiea/news/nubians_20050630 (accessed 1 June 2012).
4 See MO Makoloo Kenya minorities, indigenous peoples and ethnic diversity (2005) 16, http://www.minorityrights.org/1050/reports/kenya-minorities-indigenous-peoples-and-ethnic-diversity.html (accessed 1 June 2012).
5 The African Charter does not have a specific provision on the right to nationality. However, the effect of the denial of nationality results in the violation of the freedom from discrimination and other related rights, forming the basis of the communication submitted to the African Commission.
6 'Building a case for Nubian children' (2007) IHRDA case memorandum. Edmund Amarkwei Foley, co-author of this article, obtained a copy in the course of his duties as a legal officer at IHRDA.
7 IHRDA & OSJI 'Institute for Human Rights and Development in Africa and Open Society justice Initiative on behalf of Kenyan Nubian Minors v Kenya - Submissions on admissibility' (2009) para 7 (copy of submissions on file with authors).
8 The evidence included sworn affidavits from Nubian children and/or their guardians, reports of United Nations agencies and the Kenyan Commission for National Human Rights as well as independent studies conducted on the lives of Nubians in Kenya in general and Kibera in particular.
9 Art 3 African Children's Charter.
10 Art 6(3) African Children's Charter.
11 Art 11(3) African Children's Charter.
12 Arts 14(2)(b) & (c) African Children's Charter.
13 Art 20(2)(a) African Children's Charter.
14 'Institute for Human Rights and Development in Africa (IHRDA) and Open Society justice Initiative (OSjI) on behalf of the Nubian Children in Kenya v Republic of Kenya - Arguments on the merits of the communication' (2010) 15-28 (copy on file with the authors).
15 African Committee of Experts on the Rights and Welfare of the Child 'Guidelines for the consideration of communications provided for in article 44 of the African Charter on the Rights and Welfare of the Child' ACERWC/8/4.
16 African Committee of Experts on the Rights and Welfare of the Child '15th session of the African Committee of Experts on the Rights and Welfare of the Child, 15-19 March 2010, Addis Ababa, Ethiopia - Report ACERWC/Rpt. (XV)' (2010) para 48, http://www.acerwc.org/wp-content/uploads/2011/03/ACERWC-Session-15-report-English.pdf (accessed 1 June 2012).
17 IHRDA and OSJI (n 14 above).
18 15th session of the African Committee of Experts on the Rights and Welfare of the Child, 22-25 March 2011, Addis Ababa, Ethiopia - Report ACERWC/Rpt (XVII) (2010) para 35 http://www.acerwc.org/wp-content/uploads/2011/03/Report-17th-session-ACERWC_Eng.pdf (accessed 1 June 2012).
19 African Committee of Experts on the Rights and Welfare of the Child (n 18 above) para 36.
20 African Committee of Experts on the Rights and Welfare of the Child, Decision on the communication submitted by the Institute for Human Rights and Development in Africa and the Open Society Justice Initiative (on behalf of children of Nubian descent in Kenya) v Government of Kenya (2011) para 69 http://www.acerwc.org/wp-content/uploads/2011/09/002-09-IHRDA-OSJI-Nubian-children-v-Kenya-Eng.pdf (accessed 1 June 2012).
21 See eg art 56(6) African Charter.
22 See para 26 of the decision (n 20 above).
23 See eg jawara v The Cambia (2000) AHRLR 107 (ACHPR 2000); Civil Liberties Organization v Nigeria (2000) AHRLR 186 (ACHPR 1995); Social and Economic Rights Action Centre (SERAC) & Another v Nigeria (2001) AHRLR 60 (ACHPR 2001).
24 See para 20 of the decision (n 20 above).
25 Jawara v The Gambia (n 23 above).
26 As above.
27 See para 28 of decision (n 20 above).
28 (2000) AHRLR 186 (ACHPR 1995).
29 See para 29 of the decision (n 20 above).
30 See para 32 of the decision (n 20 above).
31 A report has shown that in many parts of Africa a delay in the administration of justice is one of the major barriers to access to justice for vulnerable and marginalised groups.
32 See NJ Udombana 'So far, so fair: The local remedies in the jurisprudence of the African Commission on Human and Peoples' Rights' (2003) 97 American journal of International Law 8.
33 Vienna Programme of Action UN Doc A/CONF 157/24 Part 1 ch III.
34 See eg L Fuller 'The forms and limits of adjudication' (1978) 92 Harvard Law Review 353; DP Fidler International law and infectious diseases (1999).
35 'The right to life' UN GAOR Human Rights Committee 37th session Supp 40.
36 'The right to the highest attainable standard of health', UN ESCR Committee General Comment 14, UN Doc E/C/12/2000/4 para 12.
37 n 23 above.
38 (2000) AHLR 212 (ACHPR 1998).
39  AIR (SC) 2426.
40 General Comment 14 (n 36 above).
41 Limburg Principles E1991/23 annex III.
42 F Coomans 'In search of the core content of the right to education' in D Brand & S Russell (eds) Exploring the core content of socio-economic rights: South Africa and international perspectives (2002) 159-182.
43 International Women's Health Coalition Young adolescents' sexual and reproductive health and rights: Sub-Saharan Africa (2007) 3.
44 MN Kisekka The culture of silence. Reproductive tract infections among women in the Third World http://www.iwhc.org/docUploads/CULTUREOFSILENCE.PDF (accessed 11 April 2012). [ Links ]
45 S Singh et al 'Evaluating the need for sex education in developing countries: Sexual behaviour, knowledge of preventing sexually-transmitted infections/HIV and unplanned pregnancy' (2005) 5 Sex Education: Sexuality, Society and Learning 307-331.
46 PLAN International Because I am a girl: The state of the world's girls 2012 (2012) 14.
47 Singh et al (n 45 above).
48 UN CRC Committee on the Rights of the Child General Comment 1: The aims of education, 17 April 2001, CRC/GC/2001/1.
49 General Comment 3 paras 7 & 8.
50 General Recommendation 24 on Women and Health.
51 See eg Concluding Observations to Burkina Faso 31 January 2000, UN Doc A/55/38 (2000); Equatorial Guinea, para 205, UN Doc A/59/38 (2004); Ethiopia, para 160, UN Doc A/51/38 (1996); Georgia, para 111, UN Doc A/54/38 (1999); Ghana, para 31, UN Doc CEDAW/C/GHA/CO/5 (2006).
52 CRC Committee General Comment 3: HIV/AIDS and the right of the child.
53 CRC Committee General Comment 4: Adolescent health and development in the context of the Convention on the Rights of the Child.
54 The African Commission has been criticised by different authors for its false start at its earlier stage. See eg M Mutua 'The African human rights system: A critical evaluation' http://hdr.undp.org/en/reports/global/hdr2000/papers/mutua.pdf (accessed 2 May 2012); R Murray 'The African Charter on Human and Peoples' Rights 1987-2000: An overview of its progress and problems' (2001) 1 African Human Rights Law journal 1; GM Wachira & A Ayinla 'Twenty years of elusive enforcement of the recommendations of the African Commission on Human and Peoples' Rights: A possible remedy' (2006) 6 African Human Rights Law journal 465.