Abstract
This chapter describes and assesses the experiences to date of litigating children’s rights under the African Charter on the Rights and Welfare of the Child (1990). The communications procedure under the African Children’s Charter is explained with reference to the Charter itself as well as the rules of procedure developed in 2006 by the African Committee of Experts on the Rights and Welfare of the Child. The finding of the Committee in the first communication in which a finding was made, namely the so-called Nubian Children case, is discussed; so too is the decision in the second matter, which involved the government of Uganda. The chapter highlights a number of challenges and procedural issues; at the same time, it identifies good practice that can be used to inform children’s rights litigation at the international and domestic level before national courts and other treaty bodies.
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Notes
- 1.
Amongst other Charter provisions. Notable amongst these is the article providing for the duties of the child (article 31), which takes its cue from the wording of a similar article in the mother treaty: see Sloth-Nielsen and Mezmur (2008): 159–189.
- 2.
This chapter refers variously to the ‘decision’ and the ‘finding’ of the Committee.
- 3.
Democratic Republic of Congo v. Burundi, Rwanda and Uganda, Communication 227/99. In relation to inter-state communications, the Commission found that the issue of exhaustion of local remedies does not arise where the alleged violations have been committed in the applicant state. Udombana explains in the following terms the reason why African States do not bring communications against each other: ‘Diplomatic and economic ties between member states, plus the fact that African leaders tend to maintain intensive social relations among themselves, discourage the initiation of “hostile” actions.’ See Udombana (2003): footnote 106.
- 4.
See Malawi African Association, Amnesty international, Ms Sarr Diop, Union Interafricaine des Droits de l’Hommes, RADDHO, Collectif des veuves et Ayants–droits v. Mauritania and Association Mauritinienne des droits de l’homme v. Mauritania Communications Nos. 54/91, 61/91, 98/93, 164/97 196/97, para. 78, 13th Annual Activity Report. 1999–2000, Annex V Addendum.
- 5.
Communications shall be considered if they: indicate their authors even if the latter request anonymity; are compatible with the Charter of the Organization of African Unity or with the present Charter; are not written in disparaging or insulting language directed against the state concerned and its institutions or to the Organization of African Unity; are not based exclusively on news disseminated through the mass media; are sent after exhausting local remedies, if any, unless it is obvious that this procedure is unduly prolonged; are submitted within a reasonable period from the time local remedies are exhausted or from the date the Commission is seized of the matter; and do not deal with cases which have been settled by the states involved in accordance with the principles of the Charter of the United Nations, or the Charter of the Organization of African Unity or the provisions of the present Charter.
- 6.
See, in general, Viljoen (2012).
- 7.
For further detail, see www.achpr.org/communications (accessed 30 June 2013).
- 8.
Personal communication from a delegate who attended the meeting.
- 9.
Only Algeria, Morocco, Senegal and Egypt had participated in the drafting process of the CRC: see Chirwa (2002): 157.
- 10.
This article of the Charter forms the basis of the first General Comment of the African Committee of Experts on the Rights and Welfare of the Child, adopted at its session in November 2013. See www.acerwc.org for the text of this General Comment.
- 11.
For a full catalogue of the similarities and differences between the text of the African Children’s Charter and the CRC, see Mezmur (2008); see too Chirwa (2002) and Olowu (2002). Note, however, that the Charter lacks the principle that deprivation of liberty be used as a last resort and then only for the shortest period of time (article 37(b) of the CRC).
- 12.
Chapter 2 of the Charter, chiefly set out in articles 32–37.
- 13.
The reasons have been lack of financial capacity as well as the crowded African Union meeting agenda.
- 14.
- 15.
Committee practice permits that NGOs and International Non-Governmental Organisations (INGOs) concerned with children’s rights in Africa may apply to the Committee for Observer Status. Rules for the consideration of applications for observer status have been developed (see www.acerwc.org). To date, approximately seven such applications have been granted. Similarly, such organisations as are concerned with human rights on the continent may also acquire Observer Status before the African Commission on Human and Peoples’ Rights which monitors the implementation of the African Charter on Human and Peoples’ Rights.
- 16.
The Guidelines were adopted at the 8th Ordinary meeting of the African Committee of Experts on November/December 2006. For an overview of the proceedings of this meeting, see Mezmur (2007): 276–270.
- 17.
Own observation: the author was in attendance at the respective sessions.
- 18.
Article 1 of the Guidelines.
- 19.
This is likely the ‘best interests’ standard, derived from a literal translation of the French ‘superior’.
- 20.
Chapter 2 article 1(1)–1(3) of the Guidelines.
- 21.
Bekker (2012).
- 22.
Chapter 2 II 1 of the Guidelines. There is an unusual savings clause that a Communication may be received in respect of a non- state signatory if this is in the best interests of the child; however, with near universal ratification of the Charter, it is only a remote possibility that this may arise.
- 23.
Chapter 2 III 1(a)–(f).
- 24.
See, however, the discussion of the Nubian Children case below.
- 25.
The jurisdiction of the African Court on Human Rights (which was established after both the Charter and the formulation of the Guidelines on Communications) does pose some new territorial dilemmas. Whilst the Rules of Procedure of the African Court on Human and Peoples’ Rights do detail the respective relationship between the African Commission on Human and Peoples’ Rights and the Court, they are silent on the position vis-à-vis the African Committee of Experts on the Rights and Welfare of the Child. See further www.african-court.org for the various statutes and protocols of the Court.
- 26.
See Guidelines Chap. 2 V 4, which uses this terminology.
- 27.
See Chap. 2 VI 1.
- 28.
Article 4(4) provides that ‘(t)he decisions of the Committee shall be submitted to the Assembly of Heads of State and Government of the African Union. The decisions shall be published after consideration by the Assembly and the State Parties concerned which shall ensure their dissemination in their countries, in conformity with Article 45, paragraphs 3 and 4 of the Charter’.
- 29.
Article 4(1).
- 30.
For a general discussion of the finding, see Durojaye and Foley (2012): 564–578.
- 31.
Originally the Nubians served in the British armed forces, and had stayed behind after independence in 1960. However, they were not granted land, and since descent is linked to ancestral land tenure, they were excluded from the civil registration system. This background is set out in the finding on the communication Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative on behalf of Children of Nubian descent in Kenya v. The Government of Kenya Decision: No 002/Com/002/2009, available at www.acerwc.org/wp-content/uploads2011/09/002-09-IHRDA-OSJI-Nubain-children-v-Kenya-Eng.pdf (accessed 10 June 2013) and in Durojaye and Foley (2012).
- 32.
See paras. 9, 10 and 11 of the communication. The finding indicates that a Note Verbale was sent in June 2010 and again in February 2011.
- 33.
Para. 12 of the communication.
- 34.
See too Assefa (2012).
- 35.
Article 46 of the African Children’s Charter.
- 36.
At para. 25.
- 37.
Referring to Dawda Jawara v. The Gambia, Communication Nos. 147/95 and 149/96, para. 32. See also paras. 31 and 32 of the ACERWC finding.
- 38.
Para. 28 of the Communication.
- 39.
Referring to Legal Resources Foundation v. Zambia, Communication No. 211/98, para. 67.
- 40.
Purohit and Moore v. The Gambia, Communication 241/2001, para. 80.
- 41.
Para. 59 of the finding.
- 42.
Free Legal Assistance Group and Others v. Zaire, Communications No. 25/89, 47/90, 56/91, 100/93.
- 43.
At Para. 59 of the Communication.
- 44.
The Human Rights Committee and its General Comment No. 24 are also referred to in support of the discussion of the normative content of the right to acquire a nationality.
- 45.
Para. 40 of the finding.
- 46.
See footnote 26 of the finding.
- 47.
This being said, the Committee does accept that a state does not have an unqualified obligation to accord its nationality to every child born on its territory regardless the circumstances, and that states have the sovereign power to determine the conditions and rules for the award of nationality. Nevertheless, states are limited in their discretion to grant nationality by their obligations to guarantee equal protection and to prevent, avoid, and reduce statelessness (paras. 46–48 of the finding).
- 48.
Paras. 45–46.
- 49.
At Para. 58.
- 50.
Para. 68.
- 51.
Para. 58. Emphasis added.
- 52.
It is estimated that only 30 % of children’s births in Africa are registered: information derived from the Civil Registration and Vital statistics conference, Gaborone, Botswana May 2013.
- 53.
Para. 52.
- 54.
Para. 66.
- 55.
Assefa (2012) notes that the interpretation of article 31 went beyond what the applicants requested.
- 56.
The visit was undertaken in 2013, to the personal knowledge of the author.
- 57.
The author of this chapter was a member of the working group and participated in the site visit.
- 58.
The Guidelines do make provision for the issuing of provisional measures: ‘When the Committee decides to consider a Communication, it may forward to the State party concerned, a request to take provisional measures that the Committee shall consider necessary in order to prevent any other harm to the child or children who would be victims of violations.’ However, the lapse of time rendered this provision futile.
- 59.
The Nubian Children case was brought by a large INGO in concert with a supranational NGO operating on continental level. The other two communications were brought by the Centre for Human Rights at the University of Pretoria.
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Sloth-Nielsen, J. (2015). Children’s Rights Litigation in the African Region: Lessons from the Communications Procedure Under the ACRWC. In: Liefaard, T., Doek, J. (eds) Litigating the Rights of the Child. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-9445-9_15
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