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The International Journal of Children’s Rights 10: 127–136, 2002.
© 2002 Kluwer Law International. Printed in the Netherlands. 127
Protecting children’s rights in Africa: A critique of the African
Charter on the Rights and Welfare of the Child
’DEJO OLOWU
Department of Public and International Law, Faculty of Law, University of Ibadan, Ibadan,
Nigeria
Introduction
The adoption, in 1989, of the Convention on the Rights of the Child (the
Convention) by the General Assembly of the United Nations (UN), signalled
the beginning of an era of concrete efforts by nations of the modern world
to give legal recognition and protection to the rights of children, although
the subject had been on the international agenda since shortly after the First
World War.
Following closely after the Convention was the African Charter on the
Rights and Welfare of the Child (the Charter) which was adopted by the
Assembly of Heads of State and Government of the Organisation of African
Unity (OAU) in July 1990, and was brought into force in November 1999.1
Although a relatively new treaty, it is important that the envisaged inter-
play of the normative framework and practical realities be subjected to early
evaluation by policy makers, human rights activists and researchers, as well
as all other stakeholders in the protection of the rights of the child in Africa.
What is the scope and purpose of the Charter? What were the expecta-
tions from this Charter over the Convention? To what extent is the Charter
capable of protecting the rights of children within the African context? Are
there inherent or latent factors which could limit the efficacy of this Charter?
What are the implications of these questions for implementation strategies in
Africa?
This paper attempts to proffer answers to this barrage of questions in
thematic terms. It examines the normative and structural framework of the
Charter, highlighting its unique strengths and weaknesses within the broader
African human rights context.
1OAU Doc.CAB/LEG/24.9/49.
128 ’DEJO OLOWU
Effort is made to assess the trajectories for galvanising the Charter towards
the realisation of its ultimate ends.
General overview of the African Charter on the Rights and Welfare of
the Child
It has been contended that the Charter was born out of the feeling by
African member-states that the Convention missed important socio-cultural
and economic realities of the African experience (Viljoen, 2000). It must
however be recognised that the Charter is not opposed to the Convention;
rather, the two pieces of legislation are complementary and both provide
the framework through which children and their welfare are increasingly
discussed in Africa.
Whereas the Convention generally makes it clear that children are inde-
pendent subjects and have rights, the Charter stresses the need to include
African cultural values and experience in considering issues pertaining to the
rights of the child in Africa.
The Charter is made up of three broad parts. The Preamble is couched
in the traditional format, providing the logic for the adoption of the Charter.
Part I deals with the substantive provisions on the rights of the child, while
Part II covers the safeguard machinery and temporal provisions.
For the enjoyment of the rights set forth in its provisions, the Charter
imposes a lot of responsibilities on states parties. Generally under its article 1,
states parties are expected to put in place the necessary machinery for the
enjoyment of these rights and to remove any limiting factors. The Charter
also establishes certain rights that are part of either customary law rules or
general principles of international law.
Like its forerunner, the Charter makes elaborate provisions for the protec-
tion and promotion of the rights and welfare of children. It will serve the ends
of this paper to examine, in some detail, the standard-setting technique and
the implementation mechanisms employed in the Charter.
The normative and procedural framework of the Charter
It must be mentioned from the onset that in many respects, the Charter uses
the language of the provisions of the Convention in great detail in framing the
content of the rights, with striking similitude. An attempt is thus made here
to identify the points of convergence in the provisions of both treaties and
thereafter, the innovative dimensions of the Charter.
PROTECTING CHILDREN’S RIGHTS IN AFRICA 129
Charter provisions in consonance with the Convention
Like the Convention, the Charter is predicated on four cardinal principles
which are meant to help with the interpretation of the Charter as a whole and
thereby guide national programmes of implementation. These principles are
non-discrimination (article 2 of the Convention, article III of the Charter);
best interests of the child (article 3 of the Convention, article IV of the
Charter); right to life, survival and development (article 6 of the Conven-
tion, article V of the Charter); and the views of the child (article 12 of the
Convention, article IV (2) of the Charter).
The essence of the first is equality of opportunity for children of both
sexes, refugees, foreign origins, indigenous or minority groups and children
with disabilities.
The best interests of the child principle connotes the yardstick for meas-
uring all the actions, laws and policies of a state affecting children. It has
been argued that the term development in the right to life, survival and devel-
opment principle should be interpreted in a broad sense, adding a qualitative
dimension, such that not only physical health is intended, but also mental,
emotional, cognitive, social and cultural development (Holmstrom and Karl-
brink, 1998). The underlying idea of the views of the child principle is that
children have the right to be heard and to have their views taken seriously in
any proceedings affecting them.
In safeguarding the welfare interests of the child, the Charter contains
provisions on the right to education (article XI. Cf article 28 of the Conven-
tion); the right to leisure, recreation and cultural activities (article XII. Cf
article 31 of the Convention); the right to health and health services (article
XIV. Cf article 24 of the Convention); the right to care and support for
handicapped children (article XII. Cf article 23 of the Convention); the right
to protection from economic exploitation (article XV. Cf article 32 of the
Convention); and the right to protection from all forms of torture, inhuman
and degrading treatment (article XVI. Cf article 37 of the Convention). It
should be noted however, that both the Charter as well as the Convention
acknowledge the right of parents to provide guidance and direction to the
child in the enjoyment of the right to freedom of religion (article IX (3). Cf
article 14(3) of the Convention).
In respect of child abuse, the Charter obliges state parties to take all
appropriate measures including legal, administrative, social and educational
measures to protect the child from all forms of physical or mental violence,
injury or abuse, neglect or negligent treatment, maltreatment or exploitation,
including sexual abuse while in the care of parents or guardians (article XVI.
Cf article 19 of the Convention).
130 ’DEJO OLOWU
On the treatment of juvenile offenders, the Charter provides for elaborate
pre-trial and trial rights for arrested, detained or accused children (article
XVII. Cf article 37 of the Convention). Under both the Convention and the
Charter, a child is defined as a human being under the age of eighteen years.
However, whereas the Convention contains a proviso to the effect that the
definition of a child may be adjusted to accommodate laws under which a
child attains majority at an earlier age, there is no such qualification in the
Charter so that under its terms, all juvenile offenders under eighteen years
of age are entitled to the special protection offered to juveniles (article II. Cf
article 1 of the Convention). This is commendable in view of the divergent
criminal justice systems in Africa.
Distinctive features of the Charter
As a regional treaty, the Charter has been described, in comparison with
others, as a pioneering treaty and “the most progressive of the treaties on
the rights of the child” (Van Bueren, 1995, p. 402).
To a large extent, this assessment is plausible in the light of the unique
provisions of the Charter. For instance, the Charter advanced the status of
socio-economic rights beyond the traditional confines of rights which are
considered only attainable by “progressive realisation”. For instance, the
guarantee of the rights to education (article XI); to leisure, recreation and
cultural activities (article XIII); health and health services (article XIV); and
freedom from economic exploitation (article XV) all amount to a bolder
expression of their equivalents in the International Covenant on Economic,
Social and Cultural Rights (ICESCR), 1966.
It is also remarkable that the Charter is devoid of inbuilt limitations other-
wise known as “claw-back clauses” which have whittled down the normative
potentials of the African Charter on Human and Peoples’ Rights (AfCHPR)
1981.
Another area of significant improvement is the outright prohibition of the
recruitment of children in armed conflicts under article XXII (2) whereas
article 38 of the Convention allows the recruitment of children who are above
15 years of age.
In reaction to the incidence of child marriages in African societies, the
Charter unequivocally prohibits marriages or betrothal involving children
under its article XXI (2). The Charter also gave recognition to the problem of
internal displacements in Africa by extending its provisions on refugee chil-
dren to cover internally displaced children (article XXIII). This is a marked
extension of the provision of article 22 of the Convention.
PROTECTING CHILDREN’S RIGHTS IN AFRICA 131
Perhaps the most remarkable landmark in the Charter is in the framework
of its implementation mechanism. The Committee of Independent Experts,
the treaty body responsible for the supervision and monitoring of the imple-
mentation of the Charter provisions (the Committee) has broad interpretative
and promotional mandates and thus, it cannot only clarify Charter provisions
but can also formulate principles and rules aimed at the promotion of the
rights of the child in Africa (articles XXXII and XLII). This has been iden-
tified as a wide-ranging power that would allow the Committee to draft a
checklist of fundamental principles on the rights of the child which could
become useful tools in legislative drafting at domestic levels (Van Bueren,
1995). It could also positively influence the formulation of national policies.
As with the Convention, states parties are obliged to submit reports to the
Committee in line with elaborate provisions in the Charter. The Committee is
empowered to consider periodic reports by states parties on their national
implementation of the Charter. Under article XLIII of the Charter, these
reports are to be submitted on a triennial basis contrary to the five-year
period under the Convention. This obviously should enhance the oppor-
tunity for more effective monitoring of state obligations at both regional and
international levels.
The conferment of jurisdiction on the Committee under article XLIV to
receive communications from “any person” relating to any matter covered by
the Charter has far-reaching potentialities. It thus becomes predictable that the
Committee can be strategic in ensuring the realisation of certain controversial
rights (such as economic, social and cultural rights), which would otherwise
be non-justiciable at domestic levels as many constitutions in Africa couch
such rights as mere directive principles of state policy. This would only imply
that non-governmental organisations (NGOs) involved in children’s rights in
Africa must adopt effective strategies to promote these ends.
Whatever advancement is noticeable in the Charter over those in the
Convention can be ascribed to its later emergence. It must nevertheless be
mentioned that, as shall be seen below, some of the provisions in the Charter
are quite ambivalent, in certain ways.
Normative and structural limitations of the Charter
While both the Convention and the Charter recognise the child’s right to life,
neither of them has any provision for the protection of the unborn child.
Considering the undisputed vulnerability of the unborn child and the hazards
which modern society increasingly poses to unborn children, this silence is
anomalous. Abortion is an age-old issue over which the two instruments
ought to have taken a position, even if they might decide to ignore the
132 ’DEJO OLOWU
more modern issues like scientific experiments with the human embryo. This
lacuna had engendered strong criticism at the drafting stages of the Charter
(Rashid and Tabi’u, 1991). While it might be possible that the controversial
nature of the subject accounts for the attitude taken by the two instruments,
yet, it cannot be expected that documents of such global and regional import-
ance can make the desired impact if they avoid controversial questions, and
confine themselves only to settled issues.
With the strong concern shown at the drafting stages of the Charter over
the problem of armed conflict, one would have expected the Charter to
contain provisions similar to those in article 39 of the Convention concerning
the psychological recovery and social integration of children affected by
armed conflict. Jesseman (2001) has expressed a similar sentiment.
The safeguard in article XXII (2) of the Charter has been criticised as
restrictive of the manifestation of a child’s right to freedom of expression and
freedom of association and that these rights are important especially for older
children to enable them participate in group activity (Jesseman, 2001).
Scholars and experts on the African human rights system have also iden-
tified other potential limitations in the operation of the Charter (Viljoen,
2000; Marzouki, 2001). Viljoen has argued that from the experience of the
African Commission on Human and Peoples’ Rights (the Commission), the
prospective monitoring committee of the Charter may suffer great financial
handicap and that in any event, the Committee might amount to unnecessary
duplication of the mandate of the Commission (pp. 227–228).
It has also been problematic getting sufficient nominations for the
membership of the Committee. The 36th ordinary session of the Assembly
of Head of States and Government of the OAU (now African Union), which
is statutorily responsible for constituting the treaty monitoring body of the
Charter, could not elect the eleven committee members as a result of insuffi-
ciency of nominees. The 37th session in Lusaka, Zambia, held in June 2001,
also ended without constituting the Committee, for the same reason.
While the debate may continue on the desirability of reviewing the frame-
work of the Charter as it stands, the major focus should be on how to
maximise the relevance and efficacy of the instrument in Africa. To this
pivotal issue we now turn.
The future of the African Charter: Implications for action and strategies
Notwithstanding whatever criticism may be levelled against the Charter, or
whatever operational problems might have been identified, there is no gain-
saying the fact that it is a potentially powerful tool in enhancing the lives of
millions of African children. The most formidable challenge that confronts
PROTECTING CHILDREN’S RIGHTS IN AFRICA 133
African child rights activists and groups is, and should be, the modalities for
bridging the gulf between law and practice – between the letters of the Charter
and the every day reality of millions of children. But if the Charter is to fulfil
its lofty aspirations, how do we overcome its inherent structural deficiencies?
While it is indeed arguable that there could be a fusion of the mandate
of the Committee into that of the Commission, the desirability of creating a
special monitoring mechanism for children’s rights in Africa should not be
undermined. Perhaps as a temporary measure, it is suggested that member
states of the OAU should adopt an additional protocol to the Charter to
empower the Commission to receive state reports as well as inter-state and
individual communications under the Charter. This proposal is informed by
the expertise which the Commission has garnered over the years in the monit-
oring the implementation of human rights in Africa. This arrangement may be
made transitional pending the availability of manpower and other resources
required for a distinct supervisory body. It however remains uncertain how
soon this proposal may be actualised.
Acknowledging that we cannot allow the Charter to be rendered redundant
as a result of legal or structural bottlenecks, it is here argued that there is
nothing stopping the application of the Charter before the Commission.
Under article 18(3) of the AfCHPR, states parties are obliged to ensure
the protection of the rights of the women and the child as stipulated in
international declarations and conventions (my emphasis). It empowers the
Commission to receive inter-state and individual communications (articles 47
and 55), and in doing so, the Commission is obliged to draw inspiration from
international human rights law, particularly from the provisions of various
African instruments on human and peoples’ rights ... other instruments
adopted ... by African countries in the field of human and peoples’ rights
... . (article 60 of the AfCHPR).
It follows that by the combined effect of articles 18(3), 47, 55 and 60
of the AfCHPR, the mandate of the Commission to promote and protect
human rights in Africa can be extended, by international law principles, to
the content of the children’s charter. It has been argued that some treaties are
mere restatements of customary rules and general principles of international
law and thus, their application needs not be specifically stated in another
international instrument since such rules are self-constituting (Johnson, 1969;
Gye-Wado, 1991).
The bottom-line of this analysis is that while the expectation of an addi-
tional protocol tarries, the provisions of the AfCHPR should be construed to
include all the protective provisions in the Charter on children’s rights. This
will be in consonance with the fact that most of the provisions in the Charter
merely amplify the narrow provisions of the AfCHPR.
134 ’DEJO OLOWU
Apart from the implementation of the Charter at the regional level, it is
a potent weapon for children’s rights activism at domestic levels. It should
be applied in public interest cases involving children. Although the pace of
ratification of the Charter by African states is remarkably slow, the Charter
remains nonetheless a veritable tool for the advancement of children’s rights
in Africa. Since every African state is a party to the AfCHPR, and inasmuch
as the later charter is amplificatory of the earlier one, its provisions can be
applied in national courts through expansive interpretation.
All the above trajectories are predicated on the willingness of the stake-
holders to advance the protection regime of children’s rights in Africa. It
becomes pertinent, therefore, to mention that the effectiveness of the Charter
depends on whether it is widely known, understood and applied. Govern-
ments that have ratified the Charter are formally obliged, under article I (1)
thereof, to inform the public and the community about its principles and
provisions. The media can, and sometimes do play an important role in the
promotion of children’s rights. NGOs are also a powerful force for creating
awareness.
Governments should adopt at least three strategies. First, positively
marking the official status of the Charter through progressive legislation;
second, ensuring awareness among government officials and staff at all levels;
and third, ensuring that school education is instrumental in raising awareness
among children themselves.
The media has an informative and educational role to play towards the
public. Media should bear the task of scrutinising government measures and
giving systematic coverage to the status of children and the fulfilment of their
rights. There must be respect for the integrity of the child in the media and
children should be given participatory media roles.
These modalities require careful planning and execution. This is where
NGOs come into greater focus. They are the primary watchdogs of children’s
rights. Apart from litigation strategy, they must mount effective awareness
campaigns and other education activities. These should include workshops
for the bar, the bench, social workers, police, teachers, employers of labour,
parents and all other strata of the civil society.
It has been pointed out that while there is a fruitful mix of methods, too
often, such activities lack a strategic and long-term approach, and connecting
with the widest possible public in a sustained manner remains a challenge
(Rajani and Petren, 2000).
The implication here is for NGOs to break new grounds as regards both
content and process, by developing the political agenda and pointing to
effective means of implementation.
PROTECTING CHILDREN’S RIGHTS IN AFRICA 135
Conclusion
The Convention and the Charter not only set out the rights of a child but also
specify safeguards which state parties should provide for his or her welfare.
It is shown that the Charter on the rights and welfare of the child is not just a
list of rights; rather, it represents a different way of viewing children and the
relations between children and the society. African children should no longer
be seen as mere beneficiaries, but as subjects with rights and social agents.
In many respects, this ethic will activate the best of comparative practice but
there are also new and unexplored sides to it.
The implications for positive action in the circumstances of the Charter
within the wider framework of the African human rights system have been
highlighted. While acknowledging that the Charter represents a great leap
forward in the international effort to give rights and protection to children, it is
reiterated that there is a cardinal principle in enriching that effort, namely, the
necessity of adopting a multi-dimensional approach in activating the letters
and spirit of the Charter. The struggle must be carried from the lofty heights
of legal activism down to the social and moral planes.
Acknowledgements
The author is grateful to Professor Julia Sloth-Nielsen of the University of
the Western Cape, Cape Town, South Africa, for her incisive comments on
the initial version of this paper.
References
Gye-Wado, O., “Human Rights, the Rights of the Child and the African Charter on Human
and Peoples’ Rights”, in L.S. Aminu and B. Olukoshi (eds.), The Nigerian Child Now and
in the Future (Lagos: UNICEF/Federal Ministry of Health and Human Services, 1991).
Holmstrom, L., and Karlbrink, L. (eds.), United Nations Human Rights Fact Sheets no 1-25
6th edition (Lund: Raoul Wallenberg Institute, 1998).
Jesseman, C., “The Protection and Participation Rights of the Child Soldier: An African and
Global Perspective”, African Human Rights Law Journal 2001 (1), 140–154.
Johnson, D.H., “The Effects of Resolutions of General Assembly of the United Nations”,
British Yearbook of International Law 1969 (32), 90–97.
Marzouki, M., “Is Prevention of Child Abuse and Neglect Possible in Africa?”
www.swipet.se/∼w∼79939/stuach03.htm [accessed 20-11-2001].
Rajani, R. and Petren, A., “Raising Awareness for Children’s Rights”, in A. Petren and J.
Himes (eds.), Turning Principles into Practice (Smedjebacken: Save the Children Sweden,
2000).
Rashid, S.K. and Tabi’u, M., “Rights of the Child in Islamic Law vis-à-vis the UN Convention
on the Rights of the Child and the Draft Charter on the Rights and Welfare of the African
136 ’DEJO OLOWU
Child”, in L.S. Aminu and B. Olukoshi (eds.), The Nigerian Child Now and in the Future
(Lagos: UNICEF/Federal Ministry of Health and Human Services, 1991).
Van Bueren, G., The International Law on the Rights of the Child (Dordrecht: Martinus Nijhoff
Publishers, 1995).
Viljoen, F., “The African Charter on the Rights and Welfare of the Child”, in C.J. Davel (ed.),
Introduction to Child Law in South Africa (Lansdowne: Juta & Co Ltd, 2000).
