GENERAL COMMENT NO 5 ON “STATE PARTY OBLIGATIONS UNDER THE AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD (ARTICLE 1) AND SYSTEMS STRENGTHENING FOR CHILD PROTECTION
2018
I. Introduction
The African Charter on the Rights and Welfare of the Child (1990) (African Children’s Charter) is the principle regional document governing the implementation of children’s rights in Africa. It has been widely ratified by member states of the African Union. The mandate of the African Committee of Experts on the Rights and Welfare of the Child (the Committee) is derived from the African Children’s Charter. In particular, the Committee, under article 42 (a)(ii) is expected to formulate and lay down principles and rules aimed at protecting the rights and welfare of children. Further, through the reporting procedure provided for under Article 43 of the Charter, the Committee interacts with States parties by reviewing their reports and issuing observations and recommendations aimed at improving the implementation of the rights of the child where the desired standard of implementation is deemed not to have been achieved. It is in accordance with these mandates that the present General Comment has been formulated. At the global level, all member States of the African Children’s Charter have also ratified the UN Convention on the Rights of the Child (1989) (CRC). The State Party obligation to implement children’s rights is enshrined in Article 4 of the CRC, which has been explained by the UN CRC Committee’s General Comment no 5 (General Measures of Implementation of the CRC) (1) and General Comment no 19 (Public Budgeting for the Realization
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(1) CRC/C/GC/5.
of Children’s Rights (Article 4 CRC). (2) However, the text of Article 4 CRC differs from the text of article 1 of the African Children’s Charter, which led to the conclusion that the interpretation of Article 1 from a regional perspective, and in the context of its express wording and placement within the Charter as a whole, would be beneficial. It is necessary to elucidate the differences, where appropriate, between the implementation requirements of the CRC and African Children’s Charter. This is the rationale for the present General Comment.
Article 1 of the African Children’s Charter is titled “Obligations of States Parties” and provides the overarching implementation obligation, with cross-cutting implications for the Charter as a whole. It reads as follows:
1. Member States of the Organization of African Unity Parties to the present Charter shall recognize the rights, freedoms and duties enshrined in this Charter and shall undertake to the necessary steps, in accordance with their Constitutional processes and with the provisions of the present Charter, to adopt such legislative or other measures as may be necessary to give effect to the provisions of this Charter.
2. Nothing in this Charter shall affect any provisions that are more conductive to the realization of the rights and welfare of the child contained in the law of a State Party or in any other international Convention or agreement in force in that State.
3. Any custom, tradition, cultural or religious practice that is inconsistent with the rights duties and obligations contained in the present Charter shall to the extent of such inconsistency be discouraged.
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(2) CRC/C/GC/19.
Through its engagement in the State Party reporting process, the Committee has noted the challenges that State parties experience in understanding the nature and scope of the obligations they have undertaken to implement Charter rights upon ratification of the instrument. Hence, this General Comment has been developed to provide more detailed guidance on the general measures required to improve implementation of the Charter, and to describe the true interpretative meaning of the sub-clauses of Article 1.
The interpretation of Article 1 of the Charter is undertaken against the backdrop of other policy frameworks. Principal amongst these are the Committee’s “Africa’s Agenda for Children 2040”, which recognises the need for effective implementation of the Children’s Charter in order for its aspirations to be realised; the African Union Agenda 2063; and the UN General Assembly’s Sustainable Development Goals (SDGs), consisting of 17 targets and 169 indicators. Many of these have a direct bearing on African Children’s Charter rights, including empowerment, access to equal opportunities, and non-discrimination.
In addition, the Committee is aware of the need to explain to State Parties the constituent elements of a systems strengthening approach to child protection,(3) which this Committee has adopted as the lens through which the implementation
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(3) Child protection systems are defined by UNICEF as “the set of laws, policies, regulations and services needed across all social sectors – especially social welfare, education, health, security and justice – to support prevention and response to protection-related risks. These systems are part of social protection, and extend beyond it. At the level of prevention, their aim includes supporting and strengthening families to reduce social exclusion, and to lower the risk of separation, violence and exploitation. Responsibilities are often spread across government agencies, with services delivered by local authorities, non-State providers, and community groups, making coordination between sectors and levels, including routine referral systems, a necessary component of effective child protection systems (United Nations Economic and Social Council (2008), UNICEF Child Protection Strategy, E/ICEF/2008/5/Rev.1, par. 12-13).
of Charter rights should be pursued. The systems strengthening approach is explained more fully in 6.1 below, and its addition as a focus of implementation distinguishes this General Comment from those issued by the CRC Committee to date.
Although primarily aimed at State Parties to the Charter, the Committee is cognisant of the many duty-bearers involved in children’s rights implementation, including national human rights institutions, non-state actors, businesses, civil society and children themselves. This General Comment is therefore also intended to guide these bodies and duty bearers in their work, as well as to assist non-state actors and others listed above to hold their governments to account for the fulfilment of children’s rights.
II. Rationale for this General Comment
The concept of “implementation” is embedded in all human rights laws, declarations and resolutions. It refers to a crucial matter: giving effect to the provisions and principles of these instruments. In turn, this involves taking a wide range of measures to combat deprivation, provide protection, enhance access to quality basic services, and improve the overall safety and wellbeing of every individual child. Implementation covers the process whereby governments take the necessary legal, policy, budgetary, administrative and other appropriate measures to ensure the full realisation of all children’s rights stipulated in the CRC, the African Children’s Charter and other relevant national, regional and international human rights laws and instruments pertaining to children to ensure the wellbeing of all children. Implementation and enforcement can be seen as synergistic concepts. In relation to the International Covenant on Civil and Political Rights, the Human Rights Committee has defined the meaning
of “obligation” saying that “[a] general obligation is imposed on States Parties to respect the Covenant rights and to ensure them to all individuals in their territory.”(4) In relation to the African Children’s Charter, the overarching state party “obligation” is to respect Charter rights and to ensure fulfilment of all Charter rights to all children in their territory.
In its engagement with State Parties to the African Children’s Charter, the Committee has noted that State parties frequently do not understand the full reach and scope of the obligations that have undertaken regarding implementation by ratifying the treaty. In addressing this identified gap, thus, the present General Comment lays out fully the meaning, scope and import of Article 1, which contains the essence of the implementation obligation for member states, taking account of regional specificities, good practice, and matters of particular concern to the Committee as regards the fulfilment of children’s rights in Africa.
The development of this discrete General Comment also provides the Committee with an opportunity to fully explain its approach to child protection systems strengthening. This explanation and clarification also lays the basis for States Parties to include information about progress made in their domestic system strengthening in their interactions with the Committee.
III. Scope of the overall implementation obligation derived from Article 1
The African Children’s Charter text makes no distinction between different rights
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(4) CCPR General Comment No 31 “The nature of the general legal obligation imposed on States Parties to the Covenant, adopted on 29 March 2004, CCPR/C/21/Rev.1/Add.13, 26 May 2004, para 3.
(civil, political, social, economic, or cultural rights) as regards the implementation obligation. Article 1(1) simply refers generally to the “provisions of this Charter” without any distinction. Moreover, the Committee endorses the interdependence, indivisibility and mutually reinforcing nature of all rights,(5) and stresses that the enjoyment of economic, social and cultural rights is inextricably intertwined with the enjoyment of civil and political rights. As the emerging jurisprudence of this Committee shows, the Committee believes that economic, social and cultural rights should be justiciable in the same way as are civil and political rights.(6) Moreover, whatever their economic circumstances, States Parties are required to undertake all possible positive measures towards the realization of the rights of the child contained in the African Children’s Charter, paying special attention to the most disadvantaged and marginalised groups. This necessarily implies progressive realization in the implementation of some Charter Rights, including economic social and cultural rights but also some civil, political and protection rights, as many African states are still improving the human rights fulfilment of their citizens.
The Committee underlines that there is no reference in Article 1 to “progressive realisation of rights”, or to the degree of realisation within the “maximum extent” of available resources. These phrases have often been adduced with respect to the fulfilment of social and economic rights which appear, at first glance, to
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(5) See ACERWC/GC/02 (2014) (Article 6 of the African Charter on the Rights and Welfare of the Child) par 25.
(6) See for example The Centre for Human Rights (University of Pretoria) and Recontre Africaine pour la defense des droits de l’homme (Senegal) v Government of Senegal Communication 003/2012 in which findings were made (amongst others) concerning violations of the right to education, to health and health services, and to adequate sanitation and nutrition.
entail more intensive dedication of resources, and which also require investment in the systems needed for their administration or delivery (e.g. health systems, educational systems, and systems for the disbursement of poverty alleviation measures such as social cash transfers). The Committee is, of course, fully aware that social spending in State parties in African context oftentimes proceeds off a low base, with reference to the situation that prevailed during the structural adjustment era of the 1980s and 1990s when the African Children’s Charter was being adopted. Nevertheless, whilst being aware of fiscal realities, the Charter standards were set intentionally - they do not allow states parties to claim that they do not have any resources for the implementation of social and economic goods for the fulfilment of children’s rights. This General Comment urges State Parties, whatever their economic resource base, to comply at least with previously agreed targets relating to social spending (e.g. 15% of GDP on health according to the Abuja Declaration; 9% of GDP on education according to the Dakar Declaration; and 20% of Overseas Development Assistance must go on basic social services), and to include such information in their State Party reports.
3.5 The core and universally accepted obligation to respect, protect, promote and fulfil children’s rights applies equally in respect of the implementation of the African Children’s Charter as a whole.
3.6 The Committee emphasizes that, as part and parcel of a rights based approach, States Parties must see their duty as fulfilling applicable legal obligations to each and every child. Implementation of the human rights of children must not be seen as a charitable process, bestowing favours on children. The clear meaning of “shall recognize” as contained in Article (1) is peremptory, underling the rights - based approach. Furthermore, there is no hierarchy of rights within the African Children’s Charter– all rights are equally important and must be implemented immediately. Progressive realisation should not mean postponement of implementation. Progressive realization must be understood in the context of the urgency required to fulfil children’s rights.
3.7 Moreover, the Committee wishes to remind that the fulfilment of children’s civil and political rights contained in the African Children’s Charter can also require extensive resource allocation, such as maintaining voter’s rolls, convening democratic elections and national population surveys, and improving birth registration systems. This, too, explains why no priority is accorded the development of either civil and political, or social, economic and cultural rights, in the text of Article 1: they all attract the same State obligation.
3.8 The Committee is mindful that resources for the fulfilment of children’s rights are frequently diluted or even diverted. The Committee has commented, in relation to State Party reports received, on large sums accorded the military spending; on the prevalence of corruption which dissipates resources that could be available for the fulfilment of children’s rights; and on inefficient and wasteful expenditure which suffers from a lack of proper monitoring and accountability.
3.9 The Committee is aware of the potential of considerable economic progress that can be achieved in some States Parties which have discovered oil or gas deposits, or newly found mineral resources, or are investing in other forms of development enhancing technologies or suchlike. The Committee is eager to see how such new developments can catapult the progressive realisation of children’s rights provided for in the African Children’s Charter in those territories, and requests State parties to provide information on how such developments and their economic fruits are planned to positively impact upon children in their reports.
3.10 For all of the above reasons, the Committee will scrutinise diligently claims that non- fulfilment of rights is linked to non- availability of resources, and will expect that States parties will show rapid forward progress in extending the reach and impact of rights deliverables to children, with a special focus on the most marginalised and excluded groups. State Parties are further reminded that any retrogressive measures, which dilute or cut back on rights already enjoyed, are regarded as being contrary to international law, unless, during times of significant recession or emergency, sound justification can be provided and the status quo ante re-established as soon as circumstances permit.
3.11 The legal meaning of Article 1(2) is self-evident, and the Committee reminds that in the twenty five years since the coming into effect of the African Children’s Charter, human rights standards applicable to children have undergone significant development in a number of areas. Where higher standards have been agreed at the international or regional level, or new treaties adopted and ratified, States Parties will be held accountable to these higher standards. This includes the standards elaborated in General Comments developed by this Committee.
IV. Key Principles
Effective implementation of the whole Charter must take place in the light of the following articles in the Charter identified by the Committee as general principles:
4.1. Non-discrimination in the implementation of the Charter rights (Article 3)
This non-discrimination obligation requires States Parties to actively identify individual children and groups of children in respect of whom the recognition and realization of their rights may demand special measures. The application of the non-discrimination principle of equal access to all rights does not mean identical treatment. It may require taking special measures in order to diminish or eliminate conditions that cause discrimination, whether it is discrimination in the context of civil or political rights, in relation to the fulfilment of social, economic and cultural rights, or in relation to specific measures of protection.
The Committee has highlighted the importance of non-discrimination the Nubian Children decision:(7)
“Children of Nubian descent who have been born in Kenya are subject to the requirement of their serving their national community by placing their physical and intellectual abilities at the service of the nation, as well as preserving and strengthening social and national solidarity and the independence and integrity of his country…. The Committee wishes to emphasise that national solidarity and African unity are best achieved in an environment which eschews discrimination and denial of rights.”(8)
A particular focus must prioritize implementation of the rights and needs of the poorest and most marginalized of Africa’s children (rural children, children of imprisoned mothers, children on the move, to name but three vulnerable groups). Further, the particular needs of
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(7) Decision on the communication submitted by the Institute for Human Rights and Development in Africa and the Open Society Justice Initiative (on behalf of children of Nubian descent in Kenya) against the Government of Kenya, No. Com/002/2009 available at http://www.acerwc.org/download/decision-on-the-communication-againstthe-republic-of-kenya/?wpdmdl=9747.
(8) Par 66. Italics added for emphasis.
the girl-child must be addressed in light of all Charter rights in order to achieve gender equality for sustainable development.(9) States Parties should recognise that implementation of the African Children’s Charter rights will require dedicated additional resources, and should strive consciously to identify such resources, to the maximum extent feasible, that can be devoted to implementation.
4.2 The best interests of the child (Article 4(1))
Article 4(1) requires that in all actions undertaken by any person or authority, the best interests of the child shall be the primary consideration. There are no conditions attached to this principle which could dilute its scope, reach or standard of application. Moreover, it applies to both private and public institutions, and it is therefore the responsibility of the State Party to ensure to the maximum extent possible that private actors, including parents, institutions, business entities and various non-state actors engaged with children’s rights and services, are aware of and apply the best interests of the child and services, are aware of and apply the best interests of the child in all of their endeavours. Further, the best interests standard applies across cultural, political and geographical settings, to members of all ethnic groups, and, as “the primary consideration”, must be an extremely important consideration, when ranked against any other competing considerations.(10) There are also no limitations to the domains or sectors within which the best interests of the child must
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(9) Concept note, Day of the African Child, 2017.
(10) In the words of the South African Constitutional Court in Centre for Child Law v Minister for Justice and Constitutional Development [2009] ZACC 18; 2009 (6) SA 632 (CC); 2009 (11) BCLR 1105 (CC) at para 29 : “The constitutional injunction that ‘[a] child’s best interests are of paramount importance in every matter concerning the child’ . . . means that the child’s interests are ‘more important than anything else’, but not that everything else is unimportant”.
apply, so that its application can extend to every conceivable domain of public and private life, including - to cite three examples - spatial planning and development, environmental husbandry, and fiscal policy. At minimum, the best interest of the child must be considered in the following matters: public budgeting policies and processes; family and home settings; education and health settings; alternative care settings; work places settings and in community settings.
The child’s best interests include short term, medium term and long term best interests. For this reason, State actions which imperil the enjoyment of the rights of future generations of children (eg allowing environmental degradation to take place, or inappropriate exploitation of natural resources) are regarded as violating the best interests of the child standard.
4.3 The right to survival and development and protection (Article 5)
Implementation measures should be aimed at achieving the optimal development for all children, including the child’s physical, mental, spiritual, moral, psychological and social development. The Committee has affirmed that all African Children’s Charter rights are relevant for children, as they aim to progressively facilitate the proper development of children from childhood to adulthood. States are therefore enjoined to adopt a holistic approach, which is facilitated by adopting a system’s strengthening approach, discussed fully in 6.1 below. The Committee has noted that complimenting the African Children’s Charter, the SDGs serve as a tool to address implementation of children’s rights to survival, development and protection in Africa, particularly the realisation of
socio-economic rights, through good governance, targeted policies and adequate provision of the required services.(11)
4.4 Participation (Article 4(2) and Article 7)
This principle, which highlights the role of the child as an active participant in the promotion, protection and monitoring of his or her rights, applies equally to all measures adopted by States Parties in their overall efforts to implement the Charter. Respect for the views of the child should be enshrined in all national legislation. Furthermore, Government processes which are aimed at securing children’s rights (as highlighted in the remainder of this General Comment) should be transparent and accessible to children so as to enable their participation, consistent with their evolving capacities. Consulting with children and taking their views into account is still a very recent trend amongst State parties, and efforts to include children are still mostly new and uncoordinated. A key challenge is how to conceptualise child participation and translate the concept into practice in different contexts. In order for child participation to be more effective, there is an urgent need to integrate the principle systematically into many more official and government processes, as well as to integrate monitoring mechanisms into these governance processes to ensure the accountability of duty-bearers such as policymakers, parents and educators, and public officials. There is also a need for ongoing investment (of personnel, skills, shared experience and financial resources) in working with children to ensure the sustainability of
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(11) Day of the African Child concept note 2017 p 8.
child participation initiatives. The Committee has commended States Parties which have supported Children’s Parliaments, at national and subnational levels, sometimes underpinned by legal provisions.
Child participation efforts should comply with the nine basic principles of child participation: processes should be transparent and informative; voluntary; respectful; relevant; child friendly; inclusive; be supported by training for adults; be safe and sensitive to risk; and be accountable.
Moreover, when children do exercise their right to participate, their views should be given due weight and not formalistically considered without affecting real change. To further children’s participation, Government documents should be broadly and easily accessible to the public. Information should be readily available in child and disability-friendly formats that are appropriate for children of different ages. Government departments must be mandated to produce key documents in child and disability-friendly formats so that all boys and girls have access to a wide range of information from various sources: radio, television, libraries, books, press, Internet, helplines. Child participation should be institutionalised at all levels, including the local government and community level. Further guidance on implementing children’s participation is provided in 6.8 below.
V. Content of Article 1(1) and member states obligations
5.1 “Recognizing the rights, freedoms and duties” enshrined in the African Children’s Charter
“Recognising” implies a level of formal recognition of the rights, by law or in Constitutions. The Charter rights, freedoms and duties referred to in this part of Article 1 are those which follow throughout the remainder of the Charter. The Preamble to the Charter affirms the paramountcy of the African Charter on Human and Peoples’ Rights, regarded as the source of many rights, freedoms and duties contained in the African Children’s Charter. The African Charter on Human and Peoples’ Rights agrees that everyone is entitled to all of the rights and freedoms contained therein “without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national or social origin, fortune or other status.”(12) The rights and freedoms accorded the child are comprehensive, and include all rights accorded other bearers of human rights, as well as rights specifically necessary for children, such as protection rights.
The Committee has previously articulated the requirement of “due diligence” applicable to human rights obligations under the African Children’s Charter. “States’ due diligence is translated into the form of prevention of human rights violations, investigation of violations, prosecution of perpetrators and ensuring punishment of perpetrators.”(13) Furthermore, the Committee has emphasised that “due diligence” creates an obligation of result, meaning that the compliance of a State party is assessed against the backdrop of the efficacy and adequacy of the implementation measures it has undertaken to enforce laws and administrative and other measures.(14) The burden of proving that measures were pursued with due diligence lies with the State Party concerned.
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(12) Preamble par 1.
(13) Decision on the communication submitted by Minority Rights Group International and SOS-Esclaves on behalf of Said Ould Salem and Yarg Ould Salem Against the Government of the Republic of Mauritania (Decision 003/2017 par 52.
(14) Above, Par 53 and 54.
The Preamble to the African Children’s Charter stresses that the promotion and protection of the rights of the child implies the performance of duties on the part of everyone.(15) This Committee has laid down clear guidelines for States Parties to consider in their approach to Article 31 (Responsibility of the Child) in General Comment no 4.
5.2 “Undertake necessary steps in accordance with Constitutional processes”
Enshrining a detailed array of rights for children in national constitutions has become a continental best practice, which has drawn the Committee’s attention in a positive vein. States Parties are encouraged to harmonise their Constitutional rights and protections with the African Children’s Charter, wherever possible.
State Parties to the African Children’s Charter are characterised by a wide variety of centralized (national) and decentralized (eg federal) governance systems, encapsulated in their national Constitutions. Some State parties have mixed systems of multi-level (or devolved) governance. The Charter does not privilege any one constitutional system over another, but, in accordance with the national system prevailing, the relevant authority, at the relevant level, must take the appropriate steps set out in this General Comment to ensure the implementation of Charter rights. It is not in line with an integrated approach to implementation for a State Party to defer responsibility for one or another aspect of implementation to another organ or sphere
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(15) Preamble par 7.
of government. The principle of a unitary state with responsibility for implementation must be stressed. The Committee has in the past criticised States Parties for failing to institute overarching coordination mechanisms in federal systems which can ensure equal implementation of the rights contained in the Charter across all parts of a territory, without discrimination. Similarly, it is the responsibility of the State Party to ensure that children in one region are not awarded less protection of their rights than in another, for example, due to different religious systems operating in different parts of a country. Equity and non-discrimination in implementing Charter rights are required.
The State Party which ratified or acceded to the Convention remains responsible for ensuring the full implementation of the Charter throughout the territories under its jurisdiction. In any process of devolution, States Parties have to make sure that the devolved authorities do have the necessary financial, human and other resources effectively to discharge responsibilities for the implementation of the Charter. The National Governments of States Parties must retain powers to require full compliance with the Charter by devolved administrations, regions or local authorities. Since the State is the organ of government which has ratified or acceded to the Charter, it matters not what government is in power, has submitted a report to the Committee, or must defend policies and implementation. The obligations incurred under the Charter are continuous and ongoing.
Further, the Committee wishes to emphasise that enabling the private sector to provide services, run institutions, provide education and so on, does not in any way lessen the State’s obligation to ensure for all children within its jurisdiction the full recognition and realization of all rights in the Charter.
A key aspect of implementation concerns the constitutional lawmaking process adopted by State Parties, as this is the apex source of legislative progress required for the implementation of Charter rights. It is therefore crucial that law makers (drafters, state law advisers and Parliamentarians) at national and, where relevant, other levels, be made aware of their duties and obligations regarding children’s rights in accordance with the Charter. This awareness should extend not only to the substantive content of children’s rights norms and principles, but also to efficient and expeditious processes of law-making, as long delays in passing laws, regulations and decrees beneficial to children’s rights and welfare are not in the best interests of children.
Including rights for children at the constitutional level is of limited value, however, if these and other legal rights are not justiciable before the courts, and children do not have access to effective
legal remedies (of whatever kind available) for rights violations or to secure fulfilment of their rights. There are now numerous examples of constitutional litigation to secure children’s rights, such as by declaring unconstitutional corporal punishment, child marriage, and denial of access to education. The Committee does not, however, demand constitutional expression of children’s rights as an absolute requirement, although it is recommended
Providing for judicially enforceable constitutional children’s rights carries with it the imperative to ensure that children have access to the judicial system, if needs be without parental assistance, to enable them to enforce their rights. State funded systems for legal aid should
