GENERAL COMMENT No 7
on ARTICLE 27 of the ACRWC
“SEXUAL EXPLOITATION“
JULY 2021
LIST OF ABBREVIATIONS AND ACRONYMS
ACRWC African Charter on the Rights and Welfare of the Child
ACERWC African Committee of Experts on the rights and Welfare of the Child
ACHPR African Commission on Human and People’s Rights
ART Antiretroviral therapy
AU African Union
CRC Committee on the Rights of the Child
CSAM Child Sexual Abuse Materials
CSEA Child Sexual Exploitation and Abuse
DGD Day of General Discussion
EUROPOL European Police Office
HIV Human immunodeficiency virus
ICTs Information and Communication Technologies
IOT Internet of Things
ILO International Labor Orgnaization
INTERPOL International Criminal Police Organization
NGO Non-governmental Organization
OCSE Online Child Sexual Exploitation
OPSC Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography
PEP Post-exposure Prophylaxis STI Sexually transmitted infection
UNGA United Nations General Assembly
General Comment No. 7 on article 27 on Sexual Exploitation of the African Charter on the Rights and Welfare of the Child
Article 27: Sexual Exploitation
1. States Parties to the present Charter shall undertake to protect the child from all forms of sexual exploitation and sexual abuse and shall in particular take measures to prevent
a) the inducement, coercion or encouragement of a child to engage in any sexual activity;
b) the use of children in prostitution or other sexual practices
c) the use of children in pornographic activities, performances and materials.
I. INTRODUCTION
1. The African Charter on the Rights and Welfare of the Child (ACRWC) includes a provision which requires States to protect children from sexual exploitation and abuse. The contents of this article proceed further to oblige States Parties to take measure to prevent the inducement, coercion or encouragement of a child to engage in any sexual activity, the use of children in prostitution or other sexual practices and the use of children in pornographic activities, performances and materials.
2. This General Comment relates to the overall mandate of the African Committee of Experts on the rights and Welfare of the Child (ACERWC/the Committee) to guide State Parties in their obligations towards child victims of child sexual exploitation and abuse (CSEA). They can achieve this only if they clearly know and understand their obligations under the Charter, which entail the obligation to respect, protect and fulfil the rights. The Committee feels the need to clarify and interpret what constitutes CSEA for these purposes, and what States responses should at best be undertaken. There is a strong need to demystify CSEA, taking into account the cultural context of various African Communities. It is widely known that the reality in the region is that the major threat for children is abuse by people that they encounter in person on a daily basis (e.g. family members, teachers and school administrators).
3. The African Union has longed expressed concern, in different forms, about the prevalence of sexual exploitation of women and children on the continent. This has manifested, amongst others, in plans of action to reduce Gender Based violence,(1) end child marriage,(2) and to address impunity for violations committed during peace keeping operations in Africa.(3)
4. In an international context, the Sustainable Development Goals adopted by the UNGA in September 2015 include sexual exploitation as a form of violence. The implementation of the 2030 Agenda for Sustainable Development entails monitoring progress on both the elimination of all forms of violence against women and girls (Target 5.2) and the elimination of all forms of violence against children (Target 16.2). This also forms one of the priority goals for the Agenda 2040 adopted by this Committee in 2015 at the 25th anniversary of the Charter.
5. This General Comment is furthermore grounded in the AU Executive Council Decision which mandates “the ACERWC to scale up its work in safeguarding and promoting the rights and welfare of children in the cyberspace, namely the protection of children’s information, rights to safety, informed choices and digital literacy.” Formerly, the AU had information, rights to safety, informed choices and digital literacy.” Formerly, the AU had adopted the African Union Cyber Security and Data Protection Convention (Malabo Convention) in 2014. The Malabo Convention spells out the options for an African wide cyber security policy. It has four chapters, where chapter 3 deals with promoting cyber security and combating cybercrime. Chapter 3 Section 2 article 29 (3) is an important provision for the topic at hand. It deals with content related offences committed in cyber space concerning children and calls upon State parties to criminalize them.(4) The Malabo Convention can also be used to tackle the challenge of extraterritorial jurisdiction – chapter 3 article 28 deals with this issue (international cooperation and extra-territorial jurisdiction). The African Union also hosted a Global Summit on Online child sexual exploitation in December 2019, in collaboration with We Protect Global Alliance. Similarly, the African Commission on Human and People’s Rights developed
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(1) Maputo Plan of Action 2015-2030 (available at https://au.int/sites/default/files/documents/24099-poa_5-_ revised_clean.pdf).
(2) African common position on the AU campaign to end child marriage in Africa (available at https://au.int/ sites/default/files/documents/31010-doc-cap_on_ending_child_marriage_-english_0.pdf).
(3) African Union Policy on Prevention and Response to Sexual Exploitation and Abuse for Peace Support Operations https://reliefweb.int/report/world/african-union-policy-prevention-and-response-sexualexploitation-and-abuse-peace (December 2018).
(4) The Malabo Convention requires State Parties to criminalise the following (amongst others): (a) produce, register, offer, manufacture, make available, disseminate and transmit an image of or a representation of child pornography through a computer system; (b) procure for oneself or for another person, import or have imported, and export or have exported an image or representation of child pornography through a computer system; (c) possess an image or representation of child pornography in a computer system or on a computer data storage system.
nd issued Guidelines on combatting sexual violence and its consequences in Africa in 2017.(5)
6. At the global level, the CRC Committee adopted a General Comment no 13 on the right of the child to be free from all forms of violence in 2011, and endorsed the “Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse”, adopted by the Interagency Working Group on the Protection of Children from Sexual Exploitation and Abuse (Terminology Guidelines)in Luxembourg, 28 January 2016.
7. The ACERWC hosted a Day of General Discussion (DGD) on ’Online Child Sexual Exploitation’ (OCSE) during its 33rd ordinary session. An increase in internet usage was noted, which comes with a bigger risk of children being susceptible and sexually exploited online.(6) In the region’s context, Covid-19 has exacerbated sexual exploitation due to school lockdowns. Globalization too has resulted in increased connectivity among different groups, across different countries and regions, which contributes to children’s increased access to information but exposes them at the same time to predatory sexual exploiters and abusers.
II. CONTEXTUAL BASIS
8. CSEA is believed to be the lived reality of millions of children in Africa. However, the nature of CSEA and the lack of considered focus on the issue makes updated and comprehensive data regarding its prevalence in Africa difficult to obtain. Frequently it remains unreported due to the high level of stigmatization in society, among other things. It is often rooted in harmful gender stereotypical beliefs and practices, patriarchy and the subordinate position of women and girls. Harmful masculinities caused by negative socialisation, such as the restriction of emotional expression and the pressure to conform to expectations of dominance and aggression, may heighten the potential for boys and men to engage in general acts of violence.
9. CSEA is exacerbated by the culture of silence common in African communities,
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(5) “The Niamey Guidelines(available at https://www.achpr.org/public/Document/file/English/achpr_eng_ guidelines_on_combating_sexual_violence_and_its_consequences.pdf).
(6) Report of the thirty-third ordinary session of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) par 53-54.
and the unwillingness or inability of children to speak out, due to their vulnerability or inadequate reporting and response mechanisms. The actual extent of CSEA remains unknown, as neither a global nor African estimation of its prevalence exists. Although girls are mainly victims, the sexual exploitation of boys appear to be increasing.
10. In addition to physical (contact) and non-physical (non-contact) CSEA, the growth of information and communication technology has introduced the challenge of online CSEA. This is a constantly evolving phenomenon that is shaped by developments in digital technologies. UNICEF’s 2017 State of the World’s Children Report specifically targeted children in a digital world. Noting that the lives of children are mediated by the digital environment in ways that impact how they can enjoy their rights and how their rights may be improved or transgressed, it is clear that the effect of the digital environment for children needs to be considered in the context of rights set forth under the African Charter on the Rights and Welfare of the Child. The relevant rights include not only children’s rights to protection from all forms of violence, but also their rights to participation and provision. In the absence of proper mechanisms of protections, thus, children will be susceptible to greater online risks of harm. OCSE reflects the dangers that children have been facing in their homes, schools, communities and the society at large. This General Comment offers the possibility to extend the understanding of the implications of article 27 of the ACRWC to the online world of CSEA.
11. However, as the ACHPR has recorded, sexual violence remains widespread both in time of conflict and crisis, and in times of peace. It takes place in public, in the street and on public transportation, but also in private, in schools, in the workplace or in intimate relationships. ‘Sex for grades’ scandals in educational systems continue to surface at an alarming rate.
12. The statistics reflected are alarming: in Sub-Saharan Africa almost 39 per cent of girls are married before the age of 18. In certain African countries, up to 95 per cent of girls are the victims of genital mutilation; more than 70 per cent of women report having been the victims of domestic violence, including sexual violence; and more than 90 per cent report having been the victims of sexual harassment and not feeling safe in public places. In addition, in several countries where conflict prevails, in several countries where conflict prevails, rape and other forms of sexual violence are used on a wide scale. Globally, 120 million girls are estimated to have suffered some form of
exual violence.(7) A 2018 report indicates that in Africa, a third of girls suffer sexual violence, and that this is often repeatedly experienced. It crosses all social classes.(8) A six country study showed that sexual violence takes place across the age range. Of the girls who suffered sexual violence, a median of 19% across the six countries experienced this for the first time at the age of 13 or younger, 36% at ages 14‐15 and 43% at ages 16‐17.
13. The growth of travel and tourism in Africa have increased the prevalence of CSEA, which implies that higher levels of vigilance and improved safeguarding practice need to be put in place. The levels of conflicts and crises in various countries in Africa has also been a fertile ground for CSEA, such as where girls are kept as “sex slaves” and wives of fighters. CSEA is also a challenge for children living in refugee camps as well as children in street situations. Girl children are expectedly at higher risk than boys. In the online space, one recent international study(9) relating to online sexual exploitation found that among the 72.5% of cases where victims of gender exploitation were documented, 64.8 per cent of unidentified victims were girls, and 31.1% depicted male children. It has been highlighted that while most victims of sexual abuse and exploitation are girls, the substantial proportion of boys depicted in unidentified images and videos in the International Child Sexual Exploitation Database (ICSE, hosted by Interpol) calls closer attention to this group. When boys were depicted in the abuse, it was more likely to be severe. Even though current evidence suggests that girls are disproportionately at risk of online sexual abuse and exploitation, there is a need to better understand the vulnerabilities of boys in the online context. The age profile of victims in the ICSE database (in case where the unidentified victim’s age could be determined) shows that 56.2% of cases depicted prepubescent children, 25.4 % were pubescent children, and 4.3% were very young children. There is an evident link between the age of the victim and the severity of abuse; the abuse was more likely to be severe when victims were younger. Very young children were more likely to be subjected to abuse and exploitation than pubescent victims.
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(7) UNICEF Global Status Report on preventing violence against children 2020.
(8) Big Win (2018) Violence against children: A review of evidence relevant to Africa on prevalence, impacts and prevention. Reporting on six country studies, the report notes that one in seven girls have recently experienced sexual violence. The median prevalence of sexual violence experienced recently among 13‐17 year‐olds is 15% for girls and 6% for boys. The percentages for girls range from 11% in Kenya to 23% in Malawi. The figures for boys are much lower, from 2% in Zimbabwe to 12% in Malawi.
(9) By ECPAT and Interpol, the findings of which were presented at the ACERWC Day of General Discussions. See Report of the thirty-third ordinary session of the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) par 61.
14. Another important challenge in Africa is the lack of a consistent, comprehensive and agreed legal framework that specifically addresses all of the issues concerning CSEA; usually the issue is subsumed under sexual violence, but it is often scattered in different laws, leading to a piecemeal approach. Unless the different issues/crimes are specifically named and defined, their perpetrators cannot be held accountable. Legal frameworks are often infused with gender stereotypical understandings of sexual violence, which hampers the comprehensive protection of girls and boys. A dedicated section of this General Comment is devoted to legal responses to CSEA.
15. There is also a challenge of the limited focus on prevention on the continent. Furthermore professionals may not always identify or register concerns around CSEA. Professionals seldom have adequate training, including on child development, trauma, memory, interviewing of children, disclosure, how to solicit children’s evidence and the nuances of children’s behaviour during criminal justice interventions. Lack of social support services such shelters and psychological treatment to mitigate the impact of sexual exploitation and abuse is another challenge. Many countries do not have child and adolescent friendly health services (including trained healthcare professionals) that provide services to victims. This includes the provision of emergency contraceptives and safe abortion services which are important to address resulting pregnancies. Restrictive laws that do not allow victims of violence to access safe abortions; put age-based restrictions for accessing reproductive health services; require parental consent to access to these services; and place reporting the sexual violence to law enforcement authorities as a requirement to accessing the health services and viceversa all contribute to the problem.
16. There is a severe risk of secondary trauma being suffered by child victims and witnesses, in part due to the absence of adequate protective mechanisms under procedural law to prevent this.
17. For much of the continent, entry into the digital world has been relatively fast without the time for countries to develop and evolve their educational and support services, law enforcement and regulatory responses. There has been a rapid increase in mobile device ownership and internet access, which amongst other is facilitating greater use of online gaming, cashless payments, e-commerce and Internet of Things (IOT) devices such as baby monitors, internet-connected toys, and webcam-enabled devices. These developments have occurred rapidly, leaving legislators and regulators little time to develop responses. A practical impediment, further, is the fragmented nature of each nation’s online safety response, typically spanning policing, social services, regulation and education. WeProtect notes that technological development continues to outpace the ability of governments to support, educate and regulate the technology sphere, and that is most profound in, but not exclusive to, the Global South, where large numbers of users are achieving device ownership and internet access in a context where such factors as poverty and inequality heighten children’s exposure to sexual exploitation.(10) There is a gap in holding internet service providers accountable, as some countries have no specific obligation to report child sexual abuse material (CSAM) to authorities for investigation and there is no consistent definition of what constitutes CSAM. There is a very poor culture of cyber security. There are few African States who have enacted laws to protect themselves from cyber insecurity and often they do not implement them unless they face cyber-attacks; they are reactive rather than proactive. There are also 30 States in Africa who have no law or policy on cyber security, not even a draft. Furthermore not all countries in Africa have set up cybercrime law enforcement units. Some countries remain to ratify the UN CRC Optional Protocol on the sale of children, child prostitution and child pornography.
III. PURPOSE
18. The main purpose of this General Comment is to expound upon the nature of the State’s obligations under section 27 of the Charter to prevent, combat, and protect children from sexual abuse and exploitation, including both offline sexual exploitation and OCSE. The ACERWC recognises that NGOs and civil society are often at the forefront of efforts to combat and provide redress for victims of CSEA; some recommendations that follow implicate these organs of society, however, the primary obligations incurred under article 27 rest on State Parties to the Charter.
I V. DEFINITIONS AND CONCEPTUAL CLARIFICATIONS
19. CSEA, as contemplated in the heading to article 27, includes any actual or attempted abuse of a position of authority, differential power or trust, for sexual purposes,
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(10) We Protect “Global Threat Assessment” (2019), p 34 available at https://www.weprotect.org/
including but not limited to profiting monetarily, socially or politically from the sexual exploitation of another. Sexual exploitation of children can be commercial or non- commercial. It may include exploitation of children in prostitution, the use of children in pornography, child trafficking for sexual exploitation and child marriage.11 Exploitation of children in prostitution has been deemed to be one of the worst forms of child labour for the purposes of ILO Convention 182 of the worst forms of child labour.(12) According to CRC Committee General Comment no 13 on Freedom from all forms of Violence, the use of children in commercial sexual exploitation; the use of children in audio or visual images of child sexual abuse; the use of children in prostitution, sexual slavery, sexual exploitation in travel and tourism, trafficking (within and between countries) and sale of children for sexual purposes as well as forced marriage are subsumed in this definition, but this is not a finite list. CSEA can amount to a form of torture or cruel, inhuman, or degrading treatment.(13) CSEA committed during armed conflict has been held to constitute a war crime,(14) a crime against humanity, or a constitutive act with respect to genocide.(15)
20. Sexual abuse is a subcategory of CSEA. Sexual abuse is traditionally defined as ‘actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions’. “Child sexual abuse has been defined as the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or for which the child is not developmentally prepared and cannot give consent, or that violates the laws or social taboos of society. Many children experience sexual abuse which is not accompanied by physical force or restraint but which is nonetheless psychologically intrusive, exploitive and traumatic. It incorporates both contact and non-contact sexual activity, and may take place in person or virtually. The sexual abuse of children requires no element of exchange and can occur for the mere purpose of the sexual gratification of the person committing the act, whereas the sexual exploitation of children can be distinguished by an underlying notion of
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(11) These are terms used in the text of article 26, although it is recognised that they are increasingly criticised as stigmatising, and are being replaced with alternatives: See the Terminology Guidelines (2016) referred to earlier.
(12) Terminology Guidelines p 18.
(13) Terminology Guidelines p 16.
(14) See Prosecutor v. Ntaganda, Case No. ICC-01/04-02/06 OA5, Judgment, 1-2 (June 15, 2017), https:// www.icc-cpi.int/CourtRecords/CR2017_03920.PDF.
(15) The Statute of the Special Court of Sierra Leone lists rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence as a crime against humanity (article 2(g)), and Article 3(e) lists outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault as serious violations of article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977.
xchange.(16) Both contact and non-contact forms of sexual abuse are harmful and can result in long term negative impacts on the child.
21. “Sexual abuse/activity” includes both explicit and non-explicit sexual activities that cause harm, such as penetration, or acts that harm the sexual integrity of the child, such as lascivious exhibition of children’s genitals.(17) Sexual touching of a child is a form of sexual abuse. While the term “sexual touching” can of course have positive connotations when referring to adult consensual sexual relationships, it refers to abusive acts when committed on children, except where both parties are children over the age of sexual consent and the touching is consensual.(18)
22. “Grooming” means befriending and establishing an emotional connection with a child, and sometimes the family, to lower the child’s inhibitions with the objective of sexual abuse. Enticement of children is sometimes used as a synonym of the “solicitation of children for sexual purposes” or “grooming”.(19)
23. “Sexual harassment” is any form of unwanted verbal, non-verbal, or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating, or offensive environment.(20)
24. “ICT” for the purposes of this General Comment, encompasses any communication device or application, including radio, television, cellular telephones and computer and computer networks, including both hardware and software.
25. “Safeguarding” refers to the actions taken and measures and procedures put in place to protect children from harm and prevent any abuse.
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(16) Terminology Guidelines p 18.
(17) Terminology Guidelines p 15.
(18) Terminology Guidelines p 21.
(19) Terminology Guidelines p 51. 20 Terminology Guidelines p 21.
