Africa is set on a course towards a different and better Africa. The vision that inspires this course is captured in the African Union (AU)’s Agenda 2063. Because the ideals in Agenda 2063 will not be achieved overnight, young people – and children, in particular – have to be the drivers of Africa’s renaissance. Securing future progress, peaceful co-existence and welfare lies in their hands. In order to allow them to take charge of Africa’s future, their full potential has to be unlocked by fully protecting and realising their rights.
Agenda 2063 lists the following ‘aspirations’ for the Africa ‘we want’:
- a prosperous Africa based on inclusive growth and sustainable development;
- an integrated continent, politically united, based on the ideals of Pan-Africanism and the vision of Africa’s Renaissance;
- an Africa of good governance, democracy, respect for human rights, justice and the rule of law;
- a peaceful and secure Africa;
- an Africa with a strong cultural identity, common heritage, values and ethics an Africa whose development is people-driven, relying on the potential of African people, especially its women and youth, and caring for children;
- Africa as a strong, united, resilient and influential global player and partner.
By 2015, 25 years have lapsed since the African Union Assembly of Heads of State and Government (AU Assembly), adopted the African Charter on the Rights and Welfare of the Child (African Children’s Charter) on 1 June 1990. This landmark moment provided an opportunity to reflect on the accomplishments over a quarter of a century, to identify the remaining challenges and to plan ahead. Much was achieved between 1990 and 2015, but much remains to be done.
Over the 25 years between 1990 and 2015, the African Children’s Charter has come to be recognised as the principal treaty dealing with children on the African continent. By December 2015, it had been ratified or acceded to by 47 AU member States.
The Children’s Charter’s almost universal acceptance as the foremost treaty framework was a gradual process. The milestone of its entry into force, which required ratification by 15 States, was reached after about a decade, on 29 November 1999. By the end of the first decade (1990-1999), 16 States had become party to the treaty; by the end of the second decade (2000-2009), another 29 States had been added; in the last five years (2010-2015), only two States joined. The advent of the new millennium, in 2000, saw the largest number – six States – ratifying in a single year. The accelerated acceptance by States at the time coincided with the transition of the Organisation of African Unity (OAU) into the African Union (AU). The seven States that are not yet State parties have at least signed the Children’s Charter. By signing the Charter, they have shown that they are prepared to align themselves with its object and purpose.
The adoption of the African Children’s Charter’s and its subsequent level of acceptance irrevocably changed the basis on and the way in which continental organs and member States deal with children. Under the Children’s Charter, children are no longer viewed as objects of concern and sympathy, but are accepted as autonomous rights holders. This understanding of the child, particularly the girl child, has been resisted by forces of patriarchy and those holding deep-seated traditional views about the child’s subservient position in society.While some conceptual contestation continues, the Charter has set the continent on a constant course of growing acceptance of the independent personhood of children.
Together with the shift in the discourse towards accepting children as rights holders came the recognition that States bear the duty to uphold these rights. Accountability of the State – in the form of the current government – is based on the synergy between rights holders and duty bearers.The Children’s Charter has given us a continental basis for State accountability to uphold the independent personhood of our children.
By 2015, four States had entered reservations in respect of the African Children’s Charter. Botswana does not consider itself bound by article 2, which defines the child with an inflexible upper age limit of 18, differing from the more flexible approach of the United Nations (UN) Convention on the Rights of the Child (CRC). Sudan does not consider itself bound by article 21(2), which calls for the abolition of child marriage, and further made reservations in respect of the right to education of pregnant girls (article 11(6)) and to privacy (article 10). Egypt entered reservations in respect of adoption and the rights of the children of imprisoned mothers (articles 24 and 30 respectively). Mauritania entered a reservation in respect of freedom of religion (article 9). On matters related to procedure, Egypt entered a reservation concerning the competence of the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee) under article 44 to receive communications, and to conduct investigations under article 45(1). Of these four States, all of whom State parties to both the African Children’s Charter and the CRC, three (Botswana, Egypt and Mauritania) made reservations under both treaties, reiterating their reservations under the CRC when becoming party to the African Children’s Charter. Egypt has subsequently withdrawn its reservation under the CRC. While a greater number of African States initially entered reservations under the CRC, by 2015, Djibouti, Egypt, Mauritius and Tunisia (to a large extent) had withdrawn these, leaving only the following States with reservations under the CRC: Botswana, Mali, Mauritania, Somalia and Tunisia (albeit only in limited form).
In terms of the African Children’s Charter, the African Children’s Committee, consisting of 11 members, has been created as supervisory body to monitor States’ implementation of its provisions. Reflecting the mandate of the African Commission on Human and Peoples’ Rights (African Commission), the Children’s Committee performs its supervisory function by examining State reports, by considering individual communications and by undertaking investigations. In this respect, the African pendant provides for more intrusive monitoring, compared to the UN Committee on the Rights of the Child, which is only mandated to examine State reports, submitted under the CRC. The African Children’s Committee held its first meeting in 2002. Initially severely under-resourced and largely unknown, the Committee made a slow start. The initial years of the Committee were without a fully functional Secretariat, until its first substantive Secretary was appointed in 2007. Since then, the African Children’s Committee has worked hard within the OAU/AU structures to assert its legal authority as the continent’s leading children’s rights body.
All African UN member States have ratified the CRC and 47 of them are party to the African Children’s Charter. Of these 47 States, 11 (Benin, Botswana, Burundi, Cape Verde,Djibouti, Equatorial Guinea,The Gambia, Guinea-Bissau, the Seychelles, Swaziland and Zambia) have never submitted a State report to the African Children’s Committee. By contrast, all of these States have submitted at least their initial reports to the UN CRC Committee. This data set strongly suggests a predilection for the UN system.
In addition to the African Children’s Charter (and the CRC), a number of other AU and other international treaties are of great relevance to children, and serve to complement the African Children’s Charter. The most obvious is the ‘mother treaty’, the African Charter on Human and Peoples’ Rights (African Charter), which provides extensively for the rights of ‘every individual’, including children.
The African Youth Charter, which entered into force in 2009, is also of particular significance.Agenda 2063 (paragraph 54) stipulates that the ‘youth of Africa shall be socially, economically and politically empowered through the full implementation of the African Youth Charter’. ‘Youth’ is defined as persons between the ages of 15 and 35 years. The youngest of the ‘youth’ and the oldest of the ‘children’ (those between 15 and 18 years of age) are, therefore, clearly covered by both treaties. Speaking to the needs of ‘youths’ on the continent, the Youth Charter addresses issues such as skills development and youth employment, which are not touched upon in the African Children’s Charter. As far as it is relevant to children, the African Children’s Committee should draw inspiration from the Youth Charter. A treaty body has not been established under the Youth Charter. By implication, its provisions may form the basis of complaints to the African Commission and African Human Rights Court and, where applicable, the African Children’s Committee.
The Protocol to the African Charter on the Rights of Women in Africa (Maputo Protocol or African Women’s Protocol) complements the African Charter, by expounding on the rights of women and girls. In article 1(k), ‘women’ are defined as ‘persons of female gender, including girls’. The Women’s Protocol is, therefore, devoted not only to the rights of women over the age of 18, but also to younger women and girls. Although the Women’s Protocol never uses the term ‘girl’ or ‘girl-child’, some rights are clearly of particular relevance to this category of ‘women’. Examples are the stipulation that the minimum age of marriage for women is 18 years (article 6(b) of the Women’s Protocol); and the prohibition of harmful cultural practices, in particular female genital mutilation (article 5 of the Protocol).
In addition to ratifying the African Youth Charter and the African Women’s Protocol, African States should ratify, domesticate and give meaningful effect to the following treaties:
- the AU Convention for the Protection and Assistance of Internally-Displaced Persons;
- the ILO Convention on the Worst Forms of Child Labour (Convention 182);
- the ILO Convention on Minimum Age for Admission to Employment (Convention 138);
- the International Convention on the Rights of Persons with Disabilities;
- the Optional Protocol to the CRC on the Sale of Children, Child Prostitution and Child Pornography;
- the Optional Protocol to the CRC on the Involvement of Children in Armed Conflicts;
- the Optional Protocol to the CRC on a Communications Procedure (the CRC Committee may only receive communications in respect of States that have accepted this Optional Protocol to the CRC; by 2015, 20 States have done so, among them one from Africa (Gabon));
- the Hague Convention on Protection of Children and Co-operation in Respect of Inter-Country Adoption;
- the 1954 UN Convention on the Status of Stateless Persons; and
- the 1961 UN Convention on the Prevention of Statelessness.