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Background
Laws are the foundation of social policy and central to the promotion and defence of child rights and welfare. They articulate a society’s vision and define individual rights and obligations on the one hand and the nature and limits of state action on the other. This is not to say that problems such as child labour, sexual exploitation of children, and violence against children can be solved by laws alone. But they are a sine qua non for state action, for the advocacy of nationally and universally-held values and for recourse to legal protection when rights are violated and abuse is perpetrated. They are undoubtedly the single most powerful instruments for the protection of human rights, especially child rights. Therefore, the absence or otherwise of national legal instruments consistent with international conventions on children’s rights impacts directly on child rights promotion and protection.
Every country in Africa, with the exception of Somalia, has ratified the United Nations Convention on the Rights of the Child (CRC) thus committing themselves to the principle that the provisions of these treaties are respected and observed in law and practice. More recently, the African Common Position providing for an ‘Africa Fit for Children’ adopted in Cairo in 2001 urged that the provisions of these two treaties be “treated as State obligations, in the framework of a rights-based approach to child survival and development. There is urgent need to provide a peaceful enabling environment for the achievement of these rights through the establishment of appropriate structures for implementation and monitoring”
Yet the gap between international obligations and national action and between laws and practice remains wide. There are many and different reasons for this but one explanation is the lack of harmonised legislation, for example in the form of a single Children’s Act, in the majority of African countries. The absence of such a legal edifice makes implementation and advocacy complicated.
Knowledge or assessment of the extent to which national law corresponds to international and continental standards is further made difficult by the fact that one often has to consult many sources of law to obtain a coherent picture of the legal entitlements and rights of children1. The multiplicity of enactments can be explained by the fact that national legislation has often followed a piece meal approach thereby resulting in a contradictory legal stance where, for example, both the definition of a child and their rights may be muddled and even contradictory. Thus a child may be defined as a person under 15 or under 14, even 13, in legislation dealing with child labour, and a lower one in the context of marriage or at the higher threshold of 18 in those provisions anchored to CRC and African Charter on the Rights and Welfare of the Child.
Further, advocates of child rights have to deal with yet another problem – the complexities and challenges posed by the plurality of African legal systems arising from the power and prevalence of customary laws. African customary law reflects and defines attitudes toward the status of children, their rights and entitlements2. Thus any effort at enhancing the rights and welfare of children cannot ignore and indeed must reckon with the parallel operation of customary law.
It is for this reason that The African Child Policy Forum considered a project to examine the harmonisation of national legislation on laws on children, with the CRC and ACRWC. This idea followed concerns raised at the International Policy Conference on the African Child and the Family organized by the African Child Policy Forum in May 2004, which brought together participants from governments, international agencies and over 130 NGOs around Africa. A recommendation from that Conference was the need to harmonise national laws including the appropriate incorporation of customary laws. Thus, for example, Professor Jaap Doek, Chairman of the UN Committee on the Rights of the Child, urged the African Child Policy Forum to “encourage the sharing of experiences of success and failure stories”3. And there are experiences that can be shared.
A project examining the harmonisation of laws in Eastern and Southern Africa was then conceptualised and undertaken in partnership with the UNICEF Eastern and Southern Africa Office (ESARO) based in Nairobi.
A regional report examining the status of harmonisation of laws on children in 18 Eastern and Southern African countries shall be the culmination of the project. The countries covered in the review include Botswana, Burundi, Comoros, Eritrea, Ethiopia, Kenya, Lesotho, Madagascar, Malawi, Mozambique, Namibia, Rwanda, South Africa, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe.
The Executive Summary and Recommendations from the review are summarized below while the Report shall be released in September 2007, to coincide with the Second Pan-African Forum on the Declaration and Plan of Action on Children – Mid-Term Review Meeting.
Footnotes:
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South African Law Commission: The Harmonization of the Common Law and the Indigenous Law. Discussion Paper 74: Customary Marriages 1997; South African Law Commission: Issue 3 Project 90: Harmonization of the Common Law and Indigenous Law (Customary Marriages): 1999; South African Law Commission: Customary Law. The Report on Traditional Courts and the Judicial Function of Traditional Leaders: Project 90: 2003; Erlank, N., Bonthuys, E., 'The Best Interests of African Children in the Allocation of Custody: Gendering the Current Models' 2002 RAU Sociology; Philippe Lavigne Delville, 'Harmonising Formal Law and Customary Land Rights in French-Speaking West Africa' CNASEA/AFDI/FNSAFER, 1998;
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Bennett, T.W., A Sourcebook of African Customary Law for Southern Africa (JUTA, 1991a); Bennett, T.W., Human Rights and African Customary Law (JUTA 1995); Elias, T.O., The nature of African Customary Law (Manchester Press, 1996); Letuka, Puleng and Armstrong, Alice., “Which Law? Which Family? Which Women? Problems enforcing CEDAW in Southern Africa” 207 in Lowe and Gillian (Eds) Families Across Frontiers, 1996; McClendon, Thomas, V., “Tradition and Domestic Struggle in the Courtroom: Customary Law and the Control of Women in Segregation-era Natal” 1995 The International Journal of Historical Studies vol. 28(3); Nhlapo, Ronald Thandabantu “Biological and Social Parenthood in African Perspective: The Movement of Children in Swazi Family Law” 35 in Eekelaar and Љarиeviж (Eds) Parenthood in Modern Society, 1993; Costa, Anthony “The Myth of Customary Law” 1998 South African Journal on Human Rights 525; Chancock, Martin “Neither Customary nor Legal: African Customary Law in an Era of Family Law Reform” 1989 International Journal of Law & the Family 72.
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Footnote 3 of the Proceedings of the International Policy Conference on the African Child and the Family, p.41
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