Feb 1, 2020

The Cultural Yet Universalist Outlook Of The African Charter On The Rights and Welfare of The Child |Oludayo Olufowobi


Introduction
The African Charter on the Rights and Welfare of the Child (ACRWC) entered into force in 1999 under the auspices of the African Union (AU). The ACRWC was promulgated upon the consideration of the consideration of the Declaration on the Rights and Welfare of the African Child, adopted by the Assembly of Heads of State and Government of the Organization of African Unity, at its 16th Ordinary Session in Monrovia, Liberia from 17 to 20 July 1979, that recognized the exigency of taking appropriate measures to promote the rights and welfare of the African Child.  

It is worthy of note that the ACRWC further consolidated the central theme of the Charter of the Organization of African Unity centered around the promotion of human rights and that of the African Charter on Human and People's Rights which proclaims the egalitarian nature of humans and the dire need to protect their rights as enshrined in the African Charter on Human Rights, without any distinction as to race, ethnic group, color, sex, religion or other status.

Inherent Problems with the Convention on the Rights of the Child (CRC)
At this juncture it is important however that we avert our mind to the fact that, prior to the promulgation of the ACRWC, the CRC was already in existence supposedly covering the field on issues bordering on children's rights. However, as encapsulated by Lee Muthoga, the idea to promulgate a separate ACRWC "originated from a desire to address certain peculiarly African problems". 

This was coupled with the fact that the CRC was rife with certain inadequacies regarded as threefold; the underrepresentation of Africans during the drafting process of the CRC, omission of potentially divisive and emotive issues in the search of consensus between states from diverse backgrounds, insufficiency of specific provisions addressing certain aspects peculiar to Africa in a bid to reach a compromise among United Nations Member States. This was further bolstered by the school of thought which advocates for regional arrangements such as an African equivalent of the CRC; because each region, with its unique culture, traditions and history is best placed to handle and resolve its own human rights situations; as opposed to meddling in certain Eurocentric and more sophisticated rights in Europe (such as the right of children conceived through artificial insemination to know their origin) .  Some of the peculiarities of the African situation omitted from the Convention were; the situation of children living under apartheid, harmful traditional African practices such as female genital mutilation and circumcision, socioeconomic conditions such as illiteracy and low-levels of sanitary conditions with all their threats to survival, issue of child-soldiers and minimum age for conscription, position of children in prison and that of expectant mothers amongst many other issues. 

The ACRWC was thus promulgated with an aim of substantially addressing this issue. Hence, Frans Viljoen's statement regarding the ACRWC being apace with African traditions and values and well-suited to its unique socioeconomic, political and cultural environments, yet still retaining its Universalist outlook is apt.

Afrocentric Innovations of the ACRWC
The provisions of the ACRWC clearly put primacy over African cultural practices.  In article 2(1) of the Charter, states are required to abolish customs and practices harmful to the welfare, normal growth and development of children. In article 21, reference is made to pertinent cultural practices that are prejudicial to the health or life of a child and those customs and practices that are discriminatory to the child on the grounds of sex or other status.  There is specific proscription of harmful practices such as child marriage and the betrothal of boys and girls through legislation specifying the minimum age of marriage to be 18 years and the compulsory registration of all marriages in an official registry.  It is of crucial importance to bear in mind the fact that this despite not making specific references, this provision also serves as a blanket provision for a host of other harmful traditional practices such as killing of twins, female genital mutilation and dietary taboos. It is imperative to note that this provision ought to be read with the guideline that the best interests of the child "shall be the primary consideration" , and not merely "a primary consideration as required by the CRC".
Bearing in mind the fact that Africa has a number of conflict-torn zones, owing to incendiary interests, revolutions, overthrow of governments and children being at the center of these direct hostilities, a case in sight is Rwanda, there is a broader protection of children in armed-conflict under the ACRWC. There is an effective effort at stemming the phenomenon of child-soldiers, as no person under the age of 18 is allowed to be conscripted.  There are equally direct measures obliging states towards the protection of children in armed conflicts, taking cognizance of the African context rife with internal armed conflict, tension or strife . Flowing from this, the ACRWC explicitly recognizes internally displaced children as refugees.  

The kind of displacement is not restrictive as it could be political, from breakdown of socioeconomic order or however it is caused. In sync with the socioeconomic affairs at the time of promulgation, specific reference is made to special needs of children living under apartheid and areas subject to military destabilization by the apartheid system. 

The ACRWC in cognizance of current world realities realizes the need for partnerships for the realization of the protection of this right. Hence, duties are set out for not only states, but parents and children. Hence, it is no surprise that implementation for this Charter is stronger under the auspices of the African Committee. Further, in order to keep a pulse on the yearnings of right-holders, these efforts are strengthened by the explicit provision for dissemination of information on the rights of the African child. 

Conclusion
Without any gainsaying, the ACRWC covers the inherent lacunae in the global instrument; through specific provisions on socioeconomic crisis plaguing the region which gives it its unique African undertone; making it a more Afrocentric equivalent of CRC. It certainly succeeds in achieving a higher benchmark for child rights in Africa. There are even better efforts at implementation through the mechanism which makes room for individual complaints about violations of these rights to be filed. Certainly, it heralds an era of higher threshold for the protection of the rights of children in Africa, as Member States even have the volition to make written requests for the amendment or revision of the present Charter subject to an approval by a simple majority of the committee.

 - African Charter on the Rights and Welfare of the Child, 1999 preamble.
 - SA Wako, "Towards an African Charter on the Rights of the Child (paper delivered at a workshop on the Draft Convention on the Rights of the Child, Nairobi,9-11 May 1968).
  - African Charter on the Rights and Welfare of the Children, article 21(1)
 - African Charter on the Rights and Welfare of the Children, article 21(2)
  - African Charter on the Rights and Welfare of the Children, article 4(1)
 - Convention on the Rights of the Child, article 3(1)
  - Convention on the Rights of the Child, article 38(2)
 - African Charter on the Rights and Welfare of the Children, article 22(3)
 -  African Charter on the Rights and Welfare of the Children, article 23(4)
 -  African Charter on the Rights and Welfare of the Children, article 26
  - African Charter on the Rights and Welfare of the Children, article 42(a)


The author is a fourth year law student at the University of Lagos. He is an avid researcher with  interests in crossroads between law, finance and technology.  In his spare time, he is the deputy editor-in-chief of the Unilag Law Review.
Reactions: