CIVIL SOCIETY’S ROLE IN THE ENFORCEMENT OF CHILDREN’S RIGHTS
The issues of children’s rights and the enforcement of children’s rights more specifically, is an adult issue which is by and large influenced by the prevailing political agenda of the day. There is no doubt that children’s rights on the international plane have come a long way since the recognition of the United Nations Convention on the Rights of the Child (hereinafter referred to as the Convention) as international law in September 1990. Prior to the adoption of the Convention, and albeit that numerous attempts were made since the early 1920’s to place children’s issues on the political agenda, the conferment of specific rights on children was by and large a non-issue. Early attempts by the United Nations to codify children’s rights in the form of Declarations on the Rights of the Child also failed, this resulting primarily from the reality of Declarations being mere statements of intent and principle regarding children, and accordingly, lacked international clout.
Since the adoption of the Convention on the Rights of the Child by the General Assembly, the majority of the world states have ratified the Convention. The Convention was ratified by South Africa on the 16th June 1995. The United Nations Convention is however not the only international treaty on children nor is it the only international treaty on children which the South African government has ratified. On the 28th November 1999, the South African government ratified the African Charter on the Rights and Welfare of the Child (herreinafter referred to as the Charter)
The process for ratification of any treaty may be time consuming but it is relatively straightforward. What is however considerably more difficult is the implementation of that treaty at grass roots level. A review of the daily news, shows that notwithstanding the existence of conventions, charters, principles, policies and commitments by governments
to place children’s rights on both the national and international agenda, the general lot of the children of the world, particularly children in third world countries, remains a sad one.
The present situation of children cannot be said to be too far removed from that documented at the 1990 World Summit for Children, namely that
“Each day countless children around the world are exposed to dangers that hamper their growth and development. They suffer immensely as casualties of war and violence; as victims of racial discrimination, apartheid, aggression, foreign occupation, forced to abandon their homes and their roots; as disabled; or as victims of neglect, cruelty and exploitation. Each day millions of children suffer from the scourges of poverty and economic crisis-from hunger and homelessness, from epidemics and illiteracy, from the degradation of the environment. They suffer from the grave effects of the problems of external indebtedness and also from lack of sustained and sustainable growth in many developing countries, particularly the least developed ones.”
The difficulties associated with effective implementation of the the Convention and other children’s rights treatise at grass root level include among other things, the financial well-being of the state in question as well as the prevailing adult perception of children and their rights. It is submitted that of these two, adult apathy and fear of recognizing children’s rights remains the greatest impediment to the amelioration of the lot of the child and the consequent advancement of children’s rights. Without government and societal intervention in the children’s rights arena, and without government and societal commitment to the core principles underpinning both the Convention and the Charter, childhood will however largely remain a “state” to be endured rather than enjoyed.
No doubt the adoption of the Convention on the Rights of the Child by the United Nations General Assembly heralded the start of a break through for the children’s rights movement with the Convention setting out internationally agreed upon minimum standards for the handling of children’s issues. The core principles hereof being essentially that of the best interests of the child; child participation in all decision-making affecting it; the non-discriminatory application of the Convention; and a State’s commitment towards ensuring the child’s right to survival and development.
A States’ obligation regarding implementation of the Convention is set out in Article 4 of the Convention and requires that
“State Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention. With regard to economic, social and cultural rights, State Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.
It is clear that this Article is not only vague, viz what is meant by appropriate legislative, administrative and other measures but it is also loosely couched in that no reference is made as to which body or organ will determine whether a State’s attempt at implementation of the social, cultural and economic rights in the Convention is to the maximum extent of its available resources.
From a policing perspective, the Convention requires State Parties to submit to the Children’s Rights Committee a report after the expiry of a period of two years from date of entry into the Convention documenting the “measures they have adopted to give effect to the rights contained in the Convention and on the progress made viz the enjoyment of those rights”. Thereafter a State must submit a report to this Committee every five years. States are required to ensure that the Report contains sufficient information to assist the Committee in ascertaining the level of implementation of the Convention. Unfortunately, the Convention does not contain formal penalty provisions for use against States for their failure to implement the provisions of the Convention. The African Charter on the Rights and Welfare of the Child was adopted by the Organisation of African Unity in 1990. The Charter contains similar reporting mechanisms as those contained in the Children’s Rights Convention, namely that State parties are required to submit reports to a central committee within 5 years of ratification.
Notwithstanding the report-back provisions in both the Convention and the Charter, the absence of proper international sanction for failure to ensure proper implementation of the instruments dilutes the watch-dog roles which both the Convention and Charter should assume vis a vis children’s rights. Given this failure the responsibility for monitoring the implementation of these instruments in a country largely becomes the function of the non-governmental organisations operating within this area. If civil society does not however hold children’s issues in high esteem, but ascribes rather to the precept that a child must be seen and not heard the State is essentially “let off the hook” and children’s issues are relegated to the bottom of the pile. On the other hand, a society that is not afraid to voice its discontent with State action, alternatively inaction has greater potential for ensuring the realisation of the laudatory aims of the instruments.
Since the adoption of the Convention, major advances have been made by the South African government to give effect to children’s claims and to bring its legislation, policy and practice in line with the Convention. Primary amongst the State’s attempt for legal harmonisation is the inclusion of section 28 in the Final Constitution of the Republic of South Africa. Section 28 which incorporates the key concepts contained in the Convention holds as follows:
1. Every child has the right –
a) to a name and a nationality from birth ;
b) To family care or parental care, or to appropriate alternative care when removed from the family environment ;
c) To basic nutrition, shelter, basic health care services and social services ;
d) To be protected from maltreatment, neglect, abuse or degradation ;
e) To be protected from exploitative labour practices ;
f) Not to be required or permitted to perform work or provide services that –
i. are inappropriate for a person of that child’s age; or
ii. place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development ;
g) not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under section 12 and 35, the child may be detained only for the shortest appropriated period of time, and has the right to be –
i. kept separately from detained persons over the age of 18 years ; and
ii. treated in a manner, and kept in conditions, that takes account of the child’s age ;
h) to have a legal practitioner assigned to the child by the state and at state expense, in civil proceedings affecting the child , if substantial injustice would otherwise result ; and
i) not to be used directly in armed conflict, and to be protected in times of armed conflict.
2. A child’s best interest are of paramount importance in every matter concerning the child.
3. In this section “child” means a person under the age of 18 years.
Other key changes to the statutory books since adoption of the Convention include:
- The Enactment of the Children’s Act 38 of 2005;
- The enactment of The Domestic Violence Act 1126 of 1996
- The enactment of The Maintenance Act 99 of 1998
- The enactment of The Adoption of the Hague Convention on the Civil Aspects of Child Abduction Act 72 of 1996
Insofar as Policy is concerned, laudatory changes include inter alia :
- The adoption of a National Programme of Action
- The introduction of the Schools Nutrition Programme ;
- The introduction of free medical assistance to children below six years of age and to pregnant women at state medical institutions;
- The formulating of a National Protocol on the Handling and Management of Child Abuse and Neglect ;
- The policy on Child Labour
- The introduction of Divorce Courts at regional court level.
Despite the attempts at relieving the lot of the child vis a vis his or her interaction with the system, there is still a great deal that must be done for children. It would appear that children’s opinions on laws, policies and decisions affecting them are not always sought.
Essentially, the embodiment of the principles contained in the Convention as well as the Charter into any system will remain a noble ideal without value unless such principles are translated into action. In order to ensure that children’s matters are taken seriously at all levels, civil society needs to assume a more active watch dog role in ensuring the on-going protection of children’s interests. Non-Governmental Organisations and State departments alike need to undertake regular audits on their policies and practices as well as on the prevailing relevant legislation and policy.The education and sensitization of people on the ground on children’s rights issues must also become a central focus. There needs to be greater utilization of the mass media; a more extensive incorporation of children’s rights issues into the schools’ life skills curriculum, mass distribution of simplified translated copies of the Convention, Charter and Constitution, and presentations on children’s rights to school-parent bodies and students alike. Further, both government and non-governmental organizations need to follow a programme for the establishment and maintenance of better working relationships with each other and there is urgent need for the creation of the Office of the Children’s Ombudsman. The function of this office being to ensuring co-ordination of efforts at heightening societal awareness on the State’s international obligation; co-ordinating government and societal response to children’s matters; acting as the central reservoir for the reporting of violations by the State, recording national statistics on issues relevant to children, and recording government and organizational audit results.