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© koninklijke brill nv, leiden, 2014 | doi 10.1163/15718182-02201003
African Children’s Right to Participate in their Own
Protection
Perspectives from South Sudan
Marisa O. Ensor
Center for the Study of Youth and Political Conict,
University of Tennessee, USA
Email: mensor@utk.edu
Department of Anthropology – Program on Disasters, Displacement and
Human Rights, University of Tennessee, USA
Email: areinke@utk.edu
Abstract
The protection of children confronting adversity has become one of the central priori-
ties of humanitarian interventions worldwide. The array of child-focused rights and
protections established by international, regional and national frameworks provides a
normative foundation guiding eforts to facilitate the (re)establishment of more secure
conditions. Despite a rhetorical acknowledgement of participation as enhancing chil-
dren’s provision and protection rights, much of children’s rights activism in Africa con-
tinues to emphasise a protectionist approach over an empowering one. Furthermore,
actualising children’s rights constitutes a formidable challenge in fragile countries like
South Sudan where dicult post-war conditions are compounded by signicant dis-
crepancies regarding the treatment of children in the various applicable legal systems.
Advancing the view of children’s rights as a living practice moulded by children’s
everyday realities, this paper discusses the situation of South Sudan as illustrative of
the dilemmas of upholding the right of conict-afected children in Africa to partici-
pate in their own protection.
Keywords
protection rights - participation rights - legal pluralism - South Sudan Child Act -
- child soldiers - violence against children - child labour
Amanda J. Reinke
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1 Introduction
The protection of children growing up in the midst of political violence and
displacement has become one of the central priorities of humanitarian inter-
ventions worldwide. In conict situations like those that afect parts of the
African continent, protection is generally understood as referring to those
strategies that aim at reducing the risk and extent of harm to civilians – both
adults and children – and facilitating the (re)establishment of more secure
conditions. Child-centred agencies such as and Save the Children have
tended to dene protection more broadly as ‘freedom from violence, injury or
abuse, neglect, maltreatment or exploitation’ (O’Callaghan & Pantuliano, 2007,
2). Protection strategies seeking to reduce vulnerability, mitigate threats, and
safeguard civilians from human rights violations have become a common
objective of many humanitarian agencies operating in Africa and elsewhere,
including those with a child-rights focus.
Children’s right to participation, on the other hand, remains a complex and
contentious topic, especially in relation to controversial practices such as child
labour and the involvement of minors in armed conict – both of which
remain widespread and persistent socio-economic realities for many young
people around the world. In South Sudan, where child protection concerns
encompass both the imperative to protect the young from a wide array of
threats, and the need to protect civilians from violent and militarised youth,
the failure to recognise the simultaneous agentive capacity and potential vul-
nerability of children is particularly problematic. During most of the pro-
tracted conict, sharp distinctions between ‘civilian’ – the traditional focus of
humanitarian protection – and ‘combatant’ were often unreective of on-the-
ground conditions. Instead, the complex patterns of violence committed by
youth or against youth in South Sudan were inter-related and mutually consti-
tutive (Ensor, 2012a), underscoring the need to move beyond simplistic dichot-
omies of ‘victim’ and ‘perpetrator’ (Hart, 2008, 12) and avoid a reductionist
rhetoric which fails adequately to reect the complex lived realities of children
in South Sudan. Fieldwork data reveal, for instance, that many young students
were attracted to the rebel movements in the region in response to the govern-
ment’s repressive stance towards them (Leonardi, 2007, 394), while others
joined the Sudan People’s Liberation Army () ‘out of a combination of
honour and moral duty’ (Ensor, 2012a, 278). The militarisation of youngsters
resulted in the abandonment of former restraints on intra- and inter-ethnic
violence and contributed to civilians young and old being frequently targeted.
During the war, development objectives were subordinated to military goals
to the detriment of social services and local infrastructure. Both government
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forces and armed opposition groups committed massive violations against
Sudanese children in all areas identied by the Security Council’s
Resolution 1612 on Children and Armed Conict (, 2007, 7). War-time
child protection concerns in South Sudan included high rates of abduction,
the prevalence of child soldiers, the practice of forced early marriage, and the
situation of orphans and children with disabilities (/, 2004, 64).
Slave raiding, perpetrated by government-backed militia as a tool of war, fur-
ther contributed to debilitate and traumatise the population. Some s esti-
mate that up to 200,000 people, including women and children, were abducted
as forced labour or as a commodity to be traded in the north (, 2005,
40–41). The war seriously disrupted the provision of basic services on which
children’s wellbeing depends – i.e. education, healthcare, access to food and
clean water. The situation remains particularly dire for the approximately
50,000 children who were orphaned during the last 20 years of the war alone,
as well and for the 170,000 who became separated from their biological parents
(, 2011).
The Comprehensive Peace Agreement () was signed by the Government
of Sudan and the Sudan People’s Liberation Movement/Army (/) on
9 January 2005. It brought an end to the Second Sudanese Civil War, which
lasted more than two decades and reportedly resulted in over two million
casualties, including women and children (, 2009, 8). The Republic of
South Sudan (o) became an independent nation on 9 July 2011, following a
largely peaceful referendum that took place on 9 January of the same year in
which the people of South Sudan voted overwhelmingly – by 98.3 per cent – to
separate from the North (Southern Sudan Referendum Commission, 2011;
o, 2011). Peace and independence, however, have been marked by further
protection concerns resulting from the region’s fragile post-war political situa-
tion and impoverished socio-economic environment.
The new Government of South Sudan (o) is likely to continue confront-
ing enormous challenges for years to come, including some of the worst human
development indicators in the world and the chronic violence and insecurity
that still afect large areas of the country. The inadequate provision of essential
services such as education, health and safe water is compounded by a lack of
basic infrastructure. Restricted access to services and markets continues to
hamper economic development and fosters conict over limited resources
(, 2011). A number of additional issues – unabated conict in several
areas of the country; incomplete implementation of Disarmament,
Demobilisation and Reintegration () initiatives for child soldiers; violence
against children; child labour; child marriage – further undermine the protec-
tive environment for children and young people in this beleaguered young
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1 Marisa O. Ensor conducted ethnographic research in four South Sudanese towns (Juba, Yei,
Magwi and Nimule) during three eld seasons (the summers of 2011 and 2012, and December/
January of 2012/2013).
country. Some of the legislation enacted in the post-, post-independence
period is explicitly child-centred and quite progressive, eliciting the praise of
the international child-rights community. A number of recent legal provisions,
however, reect a yet unresolved tension between international standards and
local understandings of the role of children in society.
In spite of the multiple diculties they face, South Sudanese children have
traditionally exercised signicant independent – and interdependent – agency
in developing strategies for their own survival and that of their families.
Approaches seeking to promote the human rights of the children of South
Sudan must recognise the pivotal role that young people have always played as
actors in their society, avoiding unwarranted constructions of children as the
vulnerable passive recipients of adult protection and care. Indeed, the future
of this young African country depends in large part on the opportunities made
available to its children to full their right to participate in their own protec-
tion. The new government’s substantial dependence on international assis-
tance further underscores the need for the large number of international aid
workers operating in the country also to recognise and promote children’s par-
ticipation and protection rights.
Inspired by the theory of legal pluralism, this article presents some of the
ndings of a larger study of the interconnections between transitional justice,
displacement and sustainable peace, as experienced by war-afected children
and youth in South Sudan. We combine insights derived from an examination
of local norms and universal legal standards with eld research conducted in
South Sudan by one of the co-authors. While the larger study draws on ethno-
graphic and participatory research methods carried out with a range of local
actors, the present article is more specically framed as a contextual analysis
which aims at elucidating the legal, cultural, moral and practical dilemmas of
upholding conict-afected children’s right to participate in their own protec-
tion. Our overall project responds to the realisation that, although there has
been ample research on international and humanitarian responses to the
plight of children facing adversity and human rights violations, especially in
Africa (Holmes & Braunholtz-Speight, 2009; Save the Children, 2011; ,
2008), far less work has been done to document children’s own eforts to over-
come challenging circumstances, or examine their agency in attempting to
ameliorate their situation. By exploring the relationship between these two
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concepts, the realities and complexities of children’s rights in fragile and war-
afected societies like South Sudan are brought to the fore.
Frameworks of Child Protection and Participation
Once largely circumscribed to the international law arena, the concept of pro-
tection has entered the mainstream of humanitarian action. Two main con-
ceptualisations of protection can be identied. The rst highlights physical
security and safety. People are kept safe when they are not attacked or threat-
ened with physical violence, and have adequate access to basic needs such as
food and water. Going beyond physical security, a second view of protection
emphasises the full range of human rights of afected individuals. In a process
initiated by the International Committee of the Red Cross and eventually
adopted by the Inter-Agency Standing Committee, protection was dened as:
‘All activities aimed at obtaining full respect for the rights of the individual in
accordance with the letter and spirit of the relevant bodies of law, namely
human rights law, international humanitarian law and refugee law’ (Giossi
Caverzasio, 2001). Thus dened, protection entails ensuring the full respect for
the human rights of the individual. In turn, incorporating a human rights
dimension into humanitarian work requires seeing people, both children and
adults, not as vulnerable beneciaries in need of assistance, but as empowered
individuals with a range of legally-established rights and entitlements. This
more recent view is based on the premise that protecting people at risk requires
not only keeping them alive, but also helping them full their rights to food,
education, health, shelter and all other aspects that provide the foundation of
a dignied and adequate standard of living.
Although right-based approaches to protection have become increasingly
dominant in modern socio-political and humanitarian discourses, their imple-
mentation is not without challenges. In efect, indiscriminate child protection
eforts risk restricting children’s constructions of their own future, especially in
a context of limited real-life options for securing livelihoods. The tension
inherent in the juxtaposition of children’s protection and empowerment (or
participation) rights has been a topic of debate at least since the emergence of
the modern human rights regime. The opening charter of the Universal
Declaration of Human Rights proclaims that childhood is entitled to special
care and assistance. Since then, the debate regarding children’s rights has
examined whether the role of the relevant human rights instruments is to
empower children or simply to protect them. This question goes back to the
roots of the children’s rights movement which juxtaposed the views of the
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‘child savers’, who emphasised children’s need for protection and care, and
those of the ‘kiddy libbers’, who advocated empowering children to develop
their own agentive capacities. Arguably, in war-torn societies and those emerg-
ing from violent armed conict such as South Sudan, a general focus on ‘child
saving’, in the positive sense of facilitating the entitlement of children to pro-
tection from life-threatening situations of violence and deprivation, seems jus-
tied. This should not, however, preclude eforts to empower children in terms
of, for instance, encouraging them to participate in decisions afecting their
own well-being (Kuper, 2000).
The United Nations Convention on the Rights of the Child () and the
African Charter on the Rights and Welfare of the Child (), two of the
main legal instruments establishing the principles of protection and participa-
tion, will both soon be celebrating their 25th anniversaries – in November 2014
and July 2015, respectively. The was hailed as a signicant milestone in the
promotion of children’s rights at the global level, while the was simi-
larly lauded for its ambition to ofer correctives and ll any gaps left by the
with respect to the rights of African children. The in particular has made
noteworthy advances in informing amendments to national constitutions as
well as leading to the introduction of children’s rights acts into the legislative
framework of a signicant number of countries in Africa and elsewhere. The
progress of these two international treaties has, however, been constrained by
a number of factors which have prevented their positive impact on the lives of
African children from being as signicant as had been hoped. Most notably,
the stands accused of attempting to impose Western ideals on African
societies, while the has paradoxically witnessed poor ratication by
African countries, including some which were involved in its formulation.
Overall, the international legislative framework regulating action on behalf of
children in contexts of armed conict and deprivation has been largely
informed by a protectionist approach which has tended to marginalise the
more emancipatory stances often favoured by afected children themselves.
Current perspectives on the role of these and related legal instruments rec-
ognise that children’s rights result from an imperfect compromise negotiated
at a certain point in time and in specic contexts by stakeholders with difer-
ing and often evolving interests. Thus, they cannot be limited to codications
of global standards into international or state legislation (Hanson &
Nieuwenhuys, 2013, 10), or even traditional practices and customary law which
may privilege local elites at the expense of marginalised groups. Instead, the
meaningful implementation of children’s rights must include attention to
the ways in which children actively practise those rights and protections in the
context of their lived experiences.
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The Convention on the Rights of the Child
The adoption of the in 1989 marked the beginning of a period of advocacy
to promote and legitimise children’s participation, in addition to their more
traditional protection and provision rights. Culminating years of international
eforts on behalf of children’s rights, the represents the international stan-
dard for the establishment of both a legal and a moral code concerning chil-
dren worldwide. Together with the various other international and regional
documents focusing on the rights of children, the constitutes a valuable
instrument for individuals and child-focused organisations working to pro-
mote a view of children as ‘independent, thinking subjects capable and deserv-
ing of a greater degree of participation’ (Hart, 1997, 11). Furthermore, this
approach allows for a view of children as separate, right-baring entities, not
mere extensions of their families (Ensor and Gożdziak, 2010, 25). As Special
Representative on Violence against Children, Marta Santos Pais reminds us,
the provides ‘a new vision of children’. It brings together the traditional
view of the child ‘as a vulnerable human being that requires protection and
assistance from the family, the society and the State’ (2000, 4), with the more
modern perception that she or he ‘is a subject of rights who is able to form and
express opinions, to participate in decision making processes and inuence
solutions, to intervene as a partner in the process of social change and in the
building up of democracy’ (ibid.). The participation of children ‘in all matters
afecting the child’ (, Art. 12) has thereby been enshrined in international
law. Furthermore, children’s participation is not only acknowledged as a right
in itself, as specically expressed in Article 12 of the , but also as a means
by which all other children’s rights may be realised (Lansdown, 2003).
Children’s participation has been one of the most debated and examined
aspects of the Convention on the Rights of the Child since it was adopted
by the in 1989. Despite its widespread usage, there remains consider-
able lack of clarity about what is actually meant by participation in the
context of children’s rights.
, ,
Consequently, the right to participation is often regarded as largely aspira-
tional and not yet fully realised (Alderson, 2008). An important dimension of
the challenges involved in actualising children’s participation rights pertains
to the tension inherent in two of the general principles that constitute the cor-
nerstones of the – the principle of ‘the best interests of the child’, estab-
lished by Article 3, and ‘the right to be heard and taken seriously’, primarily
associated with Article 12 (, 2008). Eforts to establish measures and poli-
cies to protect children from harm and ensure their safety and welfare must be
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balanced against children’s right to have their views and priorities given due
weight. Specically, the General Comment No. 12 states that –
the concept of participation emphasises that including children should
not be a momentary act, but the starting point for an intense exchange
between children and adults on the development of policies, programmes
and measures.
, ,
This extends beyond the mere right to be heard, and also ensures that chil-
dren’s participation will be given due weight and that their views will be taken
into account during decision-making processes.
Clearly, the uneasy and yet unresolved tension between the concept of par-
ticipation and the protectionist commitments of the best interest principle
can only be resolved in a contextualised manner. Diculties arise when, in
exercising their right to have a voice and be listened to, children choose to
engage in activities that would appear to be in conict with the best interests
principle (Ensor, 2012a). Views of children’s best interests guided by represen-
tations of young people as immature and dependent, which Gerison Lansdown
calls ‘the presumption of children’s incapacities’ (2010, 15), contribute to the
lack of clarity regarding what participation actually means in the context of
children’s rights (ibid., 12).
Recent scholarship on children, especially those living in Africa and other
regions of the Global South, reects a distancing from global top-down poli-
cies to grant children abstract rights, including a critical questioning of preva-
lent hegemonic interpretations of what children are entitled to. Pamela
Reynolds, Olga Nieuwenhuys and Karl Hanson, for instance, point out that
‘taking the child’s best interest as the leading principle of the … clashes
with priorities that children themselves may set’ (2006, 291–2). Kristen Cheney,
on the other hand, argues that –
the problem of implementation … does not lie in the children’s lack of
morality and agency supposed by transnational children’s rights dis-
courses that emphasize a protectionist, “best interest” approach to the
fullment of the over an empowering one. Rather, the problem lies
in adults’ use of children’s rights for their own self-interest’ (2013, 163).
Other authors emphasise the importance of considering children’s rights to
participation and protection as contextually and culturally situated. Writing
about the situation of Ethiopian children, in particular, Tatek Abebe (2013)
proposes the notion of ‘interdependent agency’ which highlights the
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interrelatedness of rights, duties and obligations. The role of children in the
collective livelihood strategies common to many parts of Africa, Abebe
argues, contributes to a construction of children’s agency as interdependent
on the family and wider networks of long-term support. Agency, a fundamen-
tal component of participation, is therefore to be understood as a ‘socio-
culturally mediated capacity to act’ (Ahearn, 2001, 112); that is, an abstract
capacity whose actualisation is enabled and/or constrained in practice by
socio-cultural structures and discourses.
The African Charter on the Rights and Welfare of the Child
The was followed by the African Charter on the Rights and Welfare of the
Child (). The was adopted in 1990 by the Organisation of African
Unity (), currently known as the African Union (), and entered into
force in November 1999, becoming the rst regional treaty to address
children’s rights. Like the , the establishes a wide range of civil,
political, economic, social and cultural rights, and acknowledges that child
participation is often an efective strategy for children to achieve their provi-
sion and protection rights. Both the and the also require that chil-
dren be protected during armed conict in accordance with international
humanitarian law. The further adds, ‘Such rules shall also apply to chil-
dren in situations of internal armed conict, tension and strife’ (Article 22(3))
(Galperin, 2002, 116–17).
The African Charter was established is response to the perception that
African countries had been under-represented in the drafting process of the
, leading to the belief that a regional treaty would help to better address
the particular realities of children in Africa (Viljoen, 2000). Article 11of the
, for example, encourages the provision of an education model which
strives for the ‘preservation and strengthening of positive African morals, tra-
ditional values and cultures’ (para. 2(c)) as well as the ‘promotion and achieve-
ments of African Unity and Solidarity’ (para. 2(f)). The also species
the responsibilities that children have to their families and society as a whole.
The resulting document enumerates, in Article 31, the responsibilities of chil-
dren, including preserving and strengthening cultural values, respecting par-
ents, elders, and superiors, and working for a cohesive family, among others.
The is therefore not only shaped by views of the rights of children uni-
versally, but also seeks to detail the rights and responsibilities of African chil-
dren more specically.
Other scholars have contended that ‘the two pieces of legislation are com-
plementary and both provide the framework through which children and their
welfare are increasingly discussed in Africa’ (Olowu, 2002, 128). Indeed, both
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instruments are predicated on the same four cardinal principles: (1) non-
discrimination (Article 2 of the and Article 3 of the Charter; (2) the best
interest of the child (Article 3 of the and Article 4 of the ); (3) the
right to life, survival and development (Article 6 of the and Article 5 of the
); and (4) the principle of participation (Article 12 of the and Article
4(2) of the ). Overall, the African Charter ‘uses the language of the provi-
sions of the Convention in great detail in framing the content of the rights,
with striking similitude’ (ibid., 128), although some notable diferences are also
evident.
While both the and the dene children as human beings under
the age of 18 years, the contains a proviso allowing for the age limit to be
adjusted in order to accommodate local circumstances under which a child
may attain her legal majority at an earlier age. No such qualication exists in
the . In other words, the denition provided by an international instru-
ment like the can be seen, in this respect, as more exible than that con-
tained in its regional African counterpart, countering a frequently voiced
criticism of universal denitions of the child as too rigid and unresponsive of
local realities. Some authors, on the other hand, see the unyielding cut-of age
of the as a positive feature, as it theoretically ensures special protection
to all juvenile ofenders under the age of 18 (Oluwu, 2002, 130). Similarly, while
the outright prohibits both the military recruitment, and the betrothal
or marriage of all children (Articles (22(2) and 21(2), respectively), the
allows the military recruitment of children above 15 years of age (Article 38),
and does not explicitly refer to child marriage. Unlike the , which con-
structs children as independent subjects, the African Charter’s stronger
emphasis on protection and provision has been interpreted as highlighting
children’s interdependence. Children’s rights and obligations are considered
simultaneously, which ‘has important obligations for placing children within
the context of their families and communities as well as for exploring rights
from the perspective of duties and responsibilities’ (Abebe, 2013, 88).
The has been described as ‘the most progressive of the treaties on
the rights of the child’ (Van Bueren, 1995, 402). Nevertheless, contemporary
realities in much of Africa, including South Sudan – i.e. Africa is the region
further behind on most of the child-related Millennium Development Goals
(Ensor 2012b, 2), and both child soldiering and child marriage remain wide-
spread practices – constitute a sobering reminder of the urgent need to move
from standards setting to actual implementation. Interpretation of the various
provisions contained in these frameworks demands both normative and
empirical analysis not only to elucidate the spirit of the legal standards, but
also to identify the socio-cultural and economic circumstances that frame the
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multiple domains of African children’s lives and determine whether and how
legal provisions can be translated into local action.
The South Sudanese Normative Context
Translating the legal provisions established by treaties such as the and the
into practice remains a formidable challenge in countries like South
Sudan where the protection and well-being of children is threatened by di-
cult post-conict realities. An encouraging – if not unproblematic – develop-
ment for those seeking to promote the rights of African children, the Southern
Sudan Child Act was signed into law in October 2008 by President Salva Kiir
(Southern Sudan Gazette, 2009) in recognition of the pivotal role that children
have always played as actors in South Sudanese society. Drafted with the sup-
port of , this Act enshrines the rights of children in South Sudan, and
establishes mechanisms for realising them, including child-friendly justice sys-
tems. Overall, the Child Act seeks to protect and extend the rights of children
in South Sudan, in accordance with the provisions of Article 21 of the Interim
Constitution of South Sudan and international and regional instruments such
as and the . The Interim Constitution prescribed that the o and
State governments should ‘adopt policies and provide facilities for the welfare
of children and youth and ensure that they develop morally and physically,
and are protected from moral and physical abuse and abandonment … [They
should] empower the youth to develop their potentials’ (Ministry of Education,
Science and Technology, 2009). This sentiment is echoed in the Transitional
Constitution which came into force in 2011 when South Sudan became an inde-
pendent nation. The new nation also counts with a legislative assembly, a
nascent police force, and a rapidly growing educational sector with four times
more children enrolled in primary school in 2011 than in 2005 (, 2011).
The applicable law in South Sudan currently incorporates an uneasy amal-
gam of normative frameworks, including the legislation decreed by the Chair
of Sudan People’s Liberation Movement (the political branch of the )
before the ; the legislation enacted by the Southern Sudan Legislative
Assembly, which gives considerable prominence to customary law and tradi-
tional authority (Articles 5, 173); and the international human rights treaties
ratied by Sudan before South Sudan’s secession. These comprise a number of
binding agreements, including the Covenant on Civil and Political Rights
Article 26(3) of the Interim National Constitution and Article 20(4) (b) of the Interim
Constitution of Southern Sudan provide that the rights set forth in international human
rights treaties ratied by Sudan constitute an ‘integral part’ of the constitutional Bill of
Rights.
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Vienna Convention on the Law of Treaties, Article 18(a), 1155 U.N.T.S. 331 (concluded 23 May
1969; entered into force 27 January 1980).
and that on Economic, Social and Cultural Rights, as well as the Convention on
the Rights of the Child (Garms, 2009). Additionally, South Sudan signed the
on 1 March 2013. Although at the time of writing it had yet to ratify this
Charter, state parties agree, upon signing an international instrument, to bind
themselves in good faith to ensure that nothing is done which would defeat the
purpose of the treaty, pending the decision on ratication. Thus, although the
is not formally binding upon South Sudan, its provisions still carry sig-
nicant weight.
It is worth noting that, while South Sudan has in principle agreed to be
bound by the international human rights instruments to which it is a party,
their provisions do not form part of its domestic law unless they have been
specically incorporated into South Sudanese legislation. Reecting its English
common law heritage, the Interim Constitution of South Sudan has a ‘dualist’
approach to international law whereby treaty obligations are not part of the
domestic law unless they are ‘domesticated’ – that is, enacted into domestic
law. Nevertheless, some provisions established by international human rights
treaty articles already exist in the national legislation. These include many of
the provisions contained in the which, as already discussed, are embed-
dedin the Transitional Constitution and in the Child Act (, 2013).
Signicantly, South Sudan has neither ratied nor signed the Convention on
the Elimination of all Form of Discrimination Against Women (). This is
a matter of concern in a country where gender-based inequalities confer
females lower status at all levels of society, and where the pervasive perception
of female youth primarily as property in dowry transactions is both linked to
under-valued schooling for girls and to high incidences of rape and domestic
violence which remain pervasive in the post-conict period. Another problem-
atic aspect of the South Sudanese normative context are the signicant dis-
crepancies manifest in the way children are treated in the various legal systems
(customary, domestic, international/human rights) currently in existence. The
conicting views towards issues of vital importance for children’s wellbeing –
such as violence against children; child labour; the military use of children –
evident in both legal frameworks and societal attitudes merit focused attention.
Both the (Article 19) and the (Article 16) oblige state parties to take
all appropriate measures to protect the children from all forms of violence,
maltreatment and abuse. Article 20 of the , however, has been inter-
preted as allowing parents to discipline their children as long as ‘domestic dis-
cipline is administered with humanity and in a matter consistent with the
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inherent dignity of the child.’ South Sudan became the 30th country to pro-
hibit all forms of violence against children, including by parents, and has been
commended for its –
‘strong political commitment’ to violence prevention and the protection
of children’s dignity and physical integrity through the adoption of legis-
lation that encourages positive discipline and promotes the education of
children through non-violent means.
Together with Tunisia and Kenya, South Sudan is the third African state to
establish full prohibition (Santos Pais, 2011).
Prohibiting legislation was originally enacted in 2005 by the Interim
Government of Southern Sudan, in article 21 of the Interim Constitution of
Southern Sudan. Prohibition was subsequently conrmed in article 21 of the
2008 Child Act, as well as in the Transitional Constitution. Article 17 of
this Transitional Constitution prohibits all corporal punishment and estab-
lishes that ‘Every child has the right … to be free from corporal punishment and
cruel and inhuman treatment by any person including parents, school admin-
istrations and other institutions….’. Both the Government and the Sudan
People’s Liberation Army (), however, have long been favourable to
the role of customary law and traditional justice mechanisms, whose princi-
ples and practices view the young as competent and capable but also condone
the harsh treatment of children perceived as in need of chastising. South
Sudanese customary law in fact prescribes lashings as a suitable punishment
for certain ofences committed by children, and some local Chiefs’ Courts
reportedly follow the principle that ‘anyone under eighteen can be ogged, but
not imprisoned’ (Leonardi et al., 2010, 59). The conicting views towards vio-
lence against children evident in both legal frameworks and societal attitudes
constitute one issue that has attracted considerable attention, but remains
unresolved.
Similarly noteworthy is section 25 of the Child Act, which places the
minimum age for paid employment at 14 years. This provision meets the
requirements of the International Programme for the Elimination of Child
Labour (), which was established in 1992 as part of the International
Labour Organisation’s () global eforts against child labour. ‘The primary
policy instruments related to these eforts include the Convention 138,
the Convention on the Rights of the Child, the Convention 182’
(Ensor, 2011, 412–5). Additionally, South Sudan ratied both C138 – also known
as the Minimum Age Convention – and C182, the Worst Forms of Labour
Convention – on 29 April, 2012. The o has been widely praised in human
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rights and child-advocacy circles for accepting these international legal com-
mitments. Local realities in this impoverished country, however, warrant the
cautionary remark that ‘age thresholds, because of the efect of their legal
validity, lend themselves to the universal, prescriptive application of children’s
rights in ways than can undermine the ability of the young to act in their own
best interests’ (O’Neill, 2013, 94), as we discuss in the following section.
Considered a ‘worst form of child labour’ as well as an international crime,
child soldiering became a widespread occurrence in South Sudan owing to a
combination of traditional practices and war-time imperatives. At the height
of the conict, inter-agency assessments identied at least 17,000 children
associated with armed groups, many of whom were directly involved in ght-
ing (Save the Children et al., 2002). The Peace Agreement included explicit pro-
vision for Disarmament, Demobilisation and Reintegration () eforts,
which also constitute one of the key priorities of the South Sudan Development
Plan (2011–2013). The Child Act prohibits the recruitment and use of children
in armed conict, seeking to ‘extend, promote, and protect the rights of chil-
dren in South Sudan’ (Southern Sudan Gazette, 2009, 11). Child-focused
programmes are being promoted by the Government, various agencies,
and other aid organisations operating in the country. Indeed, child soldiers –
formally referred to as Children Associated with Armed Forces and Groups –
are identied as one of the main sub-groups targeted for specic attention in
the overall process (Republic of South Sudan, 2011). Hampered by limited
funding, and reecting an emphasis on victimhood contrary to local percep-
tions of the young as capable actors, ‘child ’ as these eforts are commonly
known in South Sudan, is facing signicant diculties.
As Karl Hanson and Olga Nieuwenhuys remind us, ‘law always represents an
unstable translation of ideas of right and wrong that exist in the real world and
are based on lived experiences’ (2013, 3). In the specic context of armed con-
ict and post-conict recovery, international law –
is but one of the many possible understandings of the rights of the child
along with … local conceptions, such as those embodied in the social
practices of young people that express diferent forms of agency during
armed conict (ibid., 10).
Prevalent conditions in post-war South Sudan underscore that children’s
rights, including their right to participation and protection, cannot be limited
to codications in international or state legislation, nor to interpretations
ofered by humanitarian and child-advocacy organisations.
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South Sudanese Children’s Rights as a Living Practice
The situation of children and youth in South Sudan remains at a critical junc-
ture in the post-independence period. After years of sufering – and, in some
instances, committing – a wide range of human rights violations and severe
deprivation during the war, their access to protection and opportunities for
meaningful participation in social life requires sustained attention. As is the
case in most societies in Africa and other regions of the developing world,
South Sudanese children are assigned gender- and age-based responsibilities
and social roles which are valued and necessary for survival. They also support
the maintenance of reciprocal relationships – if typically highly unequal, espe-
cially in the case of females – within their families and extended clan networks.
For older adolescents, successful participation in the economic arena may lead
to their empowerment, and constitute a necessary condition for proper entry
into moral adulthood. In this context, ‘[t]he conceptualization of working chil-
dren as the powerless victims of exploitative labour forces as is assumed in chil-
dren’s rights discourse is dicult to sustain when research takes into account
children’s own perspectives on what they do’ (White, 1999; Woodhead, 1999, as
cited in O’Neill, 2013: 93). Consequently, the enforcement of minimum-age reg-
ulations proscribing children’s participation in activities that could be charac-
terised as ‘labour’, such as those established by the various Conventions as
well as South Sudanese domestic legislation, is highly problematic.
Children’s work contribution often constitutes an essential part of a house-
hold survival strategy. For children in especially dicult circumstances …
the prospect of gaining some control over their own lives and having access
to an independent source of income can be both household-sustaining
and self-arming. On the other hand, these kinds of situations also show
an increased potential for children to be compelled to engage in forms of
hazardous labour in an efort to ensure their own survival and that of their
families.
, –
Signicantly, one of the activities specically prohibited by the Child Act is
any ‘herding which jeopardizes the interest of the child’ (ibid., 22). Cattle
rearing, however, constitutes an important livelihood strategy throughout
South Sudan, and forms the basis of economic exchanges and social interac-
tions such as paying the bride price necessary for marriage. Children’s partici-
pation in cattle keeping is also an important signier of their daily lifeworlds,
and constitutes a vital and welcome contribution to South Sudanese social
83 ’
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and economic life. It is, nevertheless, imperative to recognise that the positive
socialisation and contribution to survival that participation in livelihood
activities confers to children may occur simultaneously with abuse and
exploitation. Clearly, child labour is a complex and multifaceted phenomenon
requiring systematic attention to the socio-economic, cultural, and physical
environment in which children live and work. Moreover, war-time imperatives
have led in many cases to a disruption, if not a complete obliteration, of tradi-
tional social and economic roles.
War-afected youth in South Sudan epitomise the social struggles that are
powerfully shaping this new African country. Rather than humbly embracing
subordinate, dependent social positions, South Sudanese youngsters are
increasingly resisting co-optation by those who seek to re-establish an unwel-
come gerontocratic social order. Demobilised child soldiers, returning refugee
children, and other groups exposed to foreign values and the possibilities
ofered by international assistance, represent the vanguard of hybrid youth
cultures which embody the multiple contradictions of daily life in post-
independence South Sudan. Many are ocking to urban areas in search of
better opportunities, and choose urban unemployment over life under the rule
of their elders in the impoverished countryside (Ensor, 2013a). The majority
lack the academic credentials and skills required to compete for the scarce
available jobs. Indeed, in spite of noteworthy post- improvements, educa-
tional opportunities in South Sudan remain among the lowest in the world;
this country also has some of the lowest primary school enrolment rates,
highest dropout rates and widest gender disparities worldwide. Less than half
of the primary school-aged children are in school, and only 27 per cent of the
population is literate (, 2012, 6–8).
Responding to these conditions, the o has often proclaimed that the pro-
vision of basic education would constitute one of its main priorities in the post-
conict period, and a multitude of s operating in South Sudan has stepped
in to ll the void in skills training. Those espousing a child rights perspective
emphasise that education fulls both protection and participation objectives
for war-afected children. Among other benets, education is assumed to
reduce inequality, poverty and disease; mitigate conict and crisis; and pro-
mote human capability and achieve social justice. Others have contended that,
education should not be about producing a labour force to serve the
requirements of global capital. Instead, it ought to be about providing
skills and knowledge to members of a community so that they are able to
understand each other and their connections with wider communities.
., ,
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Implementation of viable educational, vocational and related employment
opportunities is, however, facing signicant challenges. The many educational
and training programmes that are being established throughout the country
operate without any overall framework, using diferent curricula, varying dura-
tions and diverse methods of certication. Furthermore, few discernible
attempts have been made to link graduates with employment opportunities.
While the informal sector is growing rapidly throughout the country, especially
in larger urban centres, a study by the Women’s Refugee Commission found
that private businesses report a preference for foreign, more skilled employees,
and are bringing in young workers from neighbouring countries (, 2010, 11).
The challenge is thus not limited to providing schooling for pupils, but cre-
ating adequate incentives to justify the efort. Pushing families to make consid-
erable investments as they struggle to send their children to school when
suitable employment is unlikely to become available after graduation would
only cause further strain on parents, and increase the frustration and disafec-
tion of the young. In light of these challenges, the hope that providing young
people with the necessary skills will turn them into responsible citizens and
productive members of the labour force has been paired with parallel fears of
renewed tensions and conict is case of a failure to do so (World Bank, 2007).
As discussed elsewhere, ‘the tension inherent in the juxtaposition of chil-
dren’s right to protection and to participation is most starkly manifested in the
context of armed conict’ (Ensor, 2013, 153). In South Sudan, many child sol-
diers report having made a conscious choice to ‘ght for causes they believe,
often justiably, to be in their political and socio-economic best interests’
(ibid., 157), countering the prevalent discoursive production of war-afected
youngsters as passive vulnerable victims. It is also worth noting that, prior to
demobilisation, young soldiers’ army salaries constituted a vital source of
income on which many households relied for survival. Local constructions of
childhood and youth have thus been placed at odds with a new, inconsistently-
framed social order where acceptable practices for young people are narrowly
circumscribed, compounding the challenges of reintegrating thousands of
child soldiers into civilian society.
Unsurprisingly, demobilisation eforts, especially when not supported by an
efective reintegration component, are perceived as an unwelcome and unjus-
tiable intrusion of international norms on local realities. Discouraged by the
lack of viable options ofered by civilian life, many ex-combatants are report-
edly joining irregular militia groups after compulsory demobilisation.
Indeed, one ’s greatest challenges is ofering opportunities
that deter the delisted children from re-joining another armed group
85 ’
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as a way to secure some nancial security for themselves and their
families.
, , –
The lack of progress bringing the process to completion remains an
underlying cause of insecurity and protection concerns in a country where the
possession of weapons continues to be perceived as essential for safety and
survival.
Overall, the actions taken to promote the welfare of children categorised
as vulnerable in South Sudan appears to be favouring a protectionist reading
of children’s rights which risks reinforcing the denial of their agency.
Paradoxically, normative protectionist eforts are restricting children’s par-
ticipation in activities such as cattle herding which have traditionally consti-
tuted an important component of their habitual lifescapes, while current
realities fail to provide viable employment opportunities for the older adoles-
cents and youth legally authorised to work. Youth’s marginalisation from
‘mainstream economic life, political acknowledgment, and civic responsibil-
ity’ (Comarof & Comarof, 2005, 29) represents a potential threat to peace
and stability in South Sudan. On the other hand, children and youth in this
country have often demonstrated a remarkable ability for constructive
engagement with a variety of societal conditions, adverse or otherwise. Given
the important and active role societally ascribed to the young, often accus-
tomed to navigating the profound challenges associated with growing up in
an environment of uncertainty and deprivation, eforts at promoting chil-
dren’s rights must move beyond traditionally limited approaches to child pro-
tection. Meaningful opportunities for children and youth to full their right
to participate in the decisions that afect their lives should be also provided.
Concluding Thoughts
The shared normative beliefs that legitimise human rights in Africa – including
children’s rights to participation and protection – reect a uctuating relation-
ship between the rigidity of codication and the exibility of lived experi-
ences. The contrast between legal principles and daily practices is starkly
revealed in fragile transitional nations like South Sudan, a country which has
been experiencing a rapid and rather chaotic process of state-building since its
9th July 2011 independence. The glaring discrepancies manifest in the various
legal frameworks currently applicable to children in South Sudan are a reec-
tion of the new Government’s struggles to solidify its nascent legitimacy, both
86
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domestically and as a new member of the global community of sovereign
nations. These momentous changes and state of ux are also characteristic of
many other parts of the African continent.
Africa … grapples with issues of national sovereignty and localized cul-
tures in relation to universal human and child rights protocols and instru-
ments … Africa is pregnant with possibilities waiting to be born as some
of [its] countries re-shape their destinies and re-write their histories.
,
In an unequal global order, post-conflict and other fragile nations in the
developing world may succumb to efforts by more powerful actors to
impose hegemonic universalising interpretation of human rights which
may or may not reflect local realities. A rigid and manipulative instruman-
talisation of rights which fails to respond to the social practices of children
would serve to constraint rather than expand children’s options (White &
Choudhury, 2007). As the previous discussion has illustrated, the , the
, and the Child Act contain dissonant views regarding participation
and protection, contributing to the o’s dilemmas regarding the adop-
tion of the legal standards establishing the rights of children in their fledg-
ling country.
At the implementation level, the provision of conict-afected children in
South Sudan has tended to fall within the sphere of non-governmental action.
‘We can measure the performance of policies and programs in Africa, whether
by governments, international organizations or s, against the standard of
what they provide for Africa’s children and youth’ (Jonsson, 2002, vii). While
the development of services for children has increasingly acknowledged the
importance of children’s voices and perspectives, much current humanitarian
programming continues to ignore the child’s voice, stemming from a common
failure to represent children as simultaneously vulnerable and competent.
There are no internationally accepted criteria for the qualications of aid
workers or for the supervision of interventions, and few cases in which projects
targeting children are subjected to comprehensive inspection. Most profes-
sionals who work with children (i.e. social workers, educators, lawyers, health
care providers) are ‘accustomed to making assumptions about the needs of
children and what is best for them’ (Smith, 2007, 3). Finding that the pro-
grammes established for their benet do not always satisfy their needs, chil-
dren often ‘shop around’ among projects in search of the best ofering of the
services they seek.
87 ’
’ () -
4 Article 3(3). States Parties shall ensure that the institutions, services and facilities responsible
for the care or protection of children shall conform to the standards established by compe-
tent authorities, particularly in the areas of safety, health, in the number and suitability of
their staf, as well as competent supervision.
Article . States Parties recognize the right of a child who has been placed by the com-
petent authorities for the purposes of care, protection or treatment of his or her physical or
mental health, to a periodic review of the treatment provided to the child and all other cir-
cumstances relevant to his or her placement.
Attention to the provisions of Articles 3(3) and 25 [of the ] should
raise questions about the way projects are managed and supervised and
the responsibility for checking references and qualications ….
, ,
While this requirement would be essential in any situation, it is particularly
critical in contexts like South Sudan, where children’s realities are so challeng-
ing and the reliance on international assistance so vast.
Children in South Sudan continue to face multiple protection risks stem-
ming from the impact of the prolonged armed conict. Displacement, poverty,
and limited social and economic opportunities coupled with pervasive insecu-
rity, all have undermined the protective environment for children and young
people in this country (, 2011). There is an increasing gap between the
needs and aspirations of young people and their capacity to achieve them. As
the case of South Sudan illustrates, promoting the best interests of children in
post-conict situations must include a balanced attention to both their par-
ticipatory and their protection rights. Protective approaches that make the
young dependent on adult support may increase children’s vulnerability when
adult protection is no longer available. Responsibly promoting opportunities
for child participation, on the other hand, requires appropriate recognition of
the potential risks involved. In highly ethnically and culturally heterogeneous
African countries like South Sudan, child-inclusive participatory approaches
also require addressing power diferentials among children that result from
variables such as ethnicity, gender, age, religion and geography. Attention to
these issues is crucial not only in terms of child protection, but also in the
interest of peace and the security of the society at large. History shows that
young people sufering from political and socio-economic disenfranchisement
can be more easily subjected to political manipulation and induced to resort to
violence. It is thus vital that the evidence of good practices safeguarding
children’s participation and protection rights in this and other post-conict
88
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situations be collected and disseminated as part of the global eforts to pro-
mote children’s resilience to humanitarian crises.
As our study has highlighted, African children are not the passive recipients
of the ideas, policies or interventions generated by others. Thus, ‘if [African]
children’s rights are to be entrenched, children should be party to the shaping
and implementation of these rights’ (Hanson & Nieuwenhuys, 2013, 5).
Fostering South Sudanese children’s demonstrated potential for practical self-
determination must thus be a core aspect of post-independence programming
if South Sudan is to become a peaceful and prosperous society where children’s
rights to both protection and participation are upheld, and young people can
continue to embody the hope for a better future.
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