TECL II
African Charter on the Rights and Welfare of the Child, 1999
The Organisation of African Unity adopted the African Charter on the Rights and Welfare of the Child in 1990 and the Charter came into effect in November 1999.
The Charter, which strongly recalls the United Nations Convention on
the Rights of the Child, interprets universal rights in the light of
the socio-economic realities of Africa and the traditions of its
peoples. The Charter recognises that traditions and cultural practices
sometimes promote and sometimes inhibit the realisation of children's
rights. It counterbalances the notion of children's rights with
responsibilities, notably children's responsibilities to assist their
families and communities.
The Charter obliges OAU member states (now African Union member states)
that have ratified the Charter not only to recognise a wide range of
rights but also to give effect to them by means of legislation and
other measures. The Charter regards anyone under the age of 18 years as
a child.
The Charter provides:
- Where any country has established practices more conducive to the welfare of children than the provisions of the Charter, the Charter may not be used to reduce the advantages already enjoyed.
- Where "any custom, tradition, cultural or religious practice . . . is inconsistent with the rights, duties and obligations contained in the present Charter (the inconsistence aspects of these practices) . . . shall be discouraged".
An 11-member African Committee of Experts, elected every five years by secret ballot by the AU's Heads of State and Government, promotes and protects the rights of children by undertaking the following functions: Collecting and documenting information; formulating and laying down principles; co-operating with other relevant regional and international institutions; monitoring implementation of the Charter; and interpreting provisions of the Charter.
All ratifying states are required to report to the Committee every
three years on measures that they have taken to give effect to the
Charter.
Status of SACU nations
| Country | Ratified or not | Date of ratification |
| Botswana | Ratified | 10 July 2001 |
| Lesotho | Ratified | 27 September 1999 |
| Namibia | Signed | - |
| South Africa | Ratified | 7 January 2000 |
| Swaziland | Signed | - |
Provisions relating to child labour
The Charter provides directly for the protection of children from
economic exploitation and hazardous work. It also contains other
important provisions on compulsory education, sexual abuse, trafficking
and treatment of children in courts of law. It deals specifically with
child refugees.
Article 15: Economic exploitation and harmful work
The text of this article reads as follows:
"1. Every child shall be protected from all forms of economic
exploitation and from performing any work that is likely to be
hazardous or to interfere with the child's physical, mental, spiritual,
moral, or social development.
"2. States Parties to the present Charter shall take all appropriate
legislative and administrative measures to ensure the full
implementation of this Article which cover both the formal and informal
sector of employment, and, having regard to the relevant provisions of
the International Labour Organisation¿s instruments relating to
children, States Parties shall in particular.
(a) provide through legislation minimum wages for admission to
every
employment;
(b) provide for appropriate regulation of hours and conditions of
employment;
(c) provide for appropriate penalties and other sanctions to ensure
effective
enforcement of this article;
(d) promote the dissemination of information on the hazards of child
labour to
all sectors of the community."
The provisions that have a bearing on worst forms of child labour are
the following:
Article 27: Sexual exploitation and abuse
This article binds member states to protect child from all forms of
sexual exploitation and abuse and to take measures to prevent the use
of children in prostitution and pornographic activities and the
inducement, coercion or encouragement of a child to engage in any
sexual activity.
This is reinforced by Article 16 which calls for legislative,
administrative, social and educational measures to protect children
from all forms of inhuman or degrading treatment, especially physical
or mental injury and neglect or maltreatment, including sexual
abuse.
Article 29
This section of the Charter calls on states to take measures to
prevent the "abduction, sale of, or traffick in children" for any
purpose and by any person "including parents or legal guardians of the
child". It also urges action against the use of children in all forms
of begging.
This provision is given additional meaning by Article 23 which enjoins
signatories to provide children who are refugees or seeking refugee
status with appropriate protection and humanitarian assistance. Refugee
children whose parents, legal guardians or close family cannot be
located are to be given the same protection that any other child in
these circumstances would enjoy.
Article 22: Children in armed conflict
This directs states to respect and ensure respect for international
humanitarian law in respect of children in armed conflict and "take all
necessary measures to ensure that no child shall take a direct part in
hostilities and refrain, in particular, from recruiting any
child".
Article 17: Children in conflict with the law
This article deals with children in conflict with the law. It
specifies that children accused or convicted of infringing penal law
have a right to "special treatment", including ensuring that a child
who is deprived of his or her liberty is not subjected to inhuman or
degrading treatment, is detained separately from adults, receives a
speedy court hearing, has legal representation and is protected from
publicity.
"The essential aim of treatment of every child during the trial and
also if found guilty of infringing the penal law shall be his or her
reformation, reintegration into his or her family, and social
rehabilitation."
Article 11: Right to education
This deals with education. It asserts that every child has a right
to an education and charges member states to act to achieve "full
realisation of this right" by providing free and compulsory education,
by encouraging the development of secondary education, by making higher
education accessible "on the basis of capacity", and by taking measures
to encourage regular school attendance. It states that all appropriate
measures shall be taken to ensure that girls who become pregnant before
completing their education shall have an opportunity to continue
education.
Article 12: Right to leisure and recreation
This is an acknowledgement of rest and leisure, play and recreation
as a right of every child.
Article 14: Right to health
This article affirms the right of every child to "enjoy the best
attainable state of physical, mental and spiritual health". It urges
states to take measures to ensure children are provided with adequate
nutrition and safe drinking water. The lack of access to these
necessities of life not only undermines health but gives rise to
various forms of child labour in Southern Africa.
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See also