The Similarity of the Roles of the African Committee of Experts on the Rights of the Child and the UN Committee on the Rights of the Child: Parallel, Simultaneous and Non-Exclusive Application ()
1. Introduction
African children are facing big problems among which hunger, involvement in army forces, child marriage, lack of birth registration and so other cases of violations of human rights (Boukongou, 2006; Mezmur & Kahbila, 2018; Sindayigaya, 2023b). African countries voted for the establishment of the African Charter on the Rights and Welfare of the Child. Thus their bounded to the fulfilment of its contents (Nyabenda & Sindayigaya, 2023; Sindayigaya, 2023b, 2024). According to the last paragraph of the preamble of the African Children’s Charter, African countries must implement, not only the African Charter but also all instruments on the protection of the rights of the child (Ciza & Sindayigaya, 2023; Ndericimpaye & Sindayigaya, 2023; Nyabenda & Sindayigaya, 2023). It is provided that African states are “reaffirming adherence to the principles of the rights and welfare of the child contained in the declaration, conventions and other instruments of the Organization of African Unity and in the United Nations and in particular the United Nations Convention on the Rights of the Child; and the OAU Heads of State and Government’s Declaration on the Rights and Welfare of the African Child”.
The main idea behind this is that the UN Convention on the Rights of the Child, taken as the global child’s rights instrument which inspired the drafting of the regional instrument (Mezmur, 2007, 2020). According to the provisions of the African Charter on the rights of the child and the Convention on the rights of the child, there are simultaneous role of the Committees in charge of keeping the two instruments (Ankut, 2003; Kaime, 2010; Mezmur, 2007; Mperejimana & Sindayigaya, 2023; Nyabenda & Sindayigaya, 2023). Article 6 of the African Charter obliges the Committee to be influenced of all instruments on the rights of the child, thus, the Convention on the rights of the child. As matter of the consequences to this provision, the African Committee of Experts on the Rights and Welfare of the Child is somehow influenced by the UN Committee on the Rights of the Child.
The African Charter establish in itself the organ to protect it. Among its role, the main one is to comment the provision and keep an eye to countries’ way of implementation of children’s rights. It is the Committee of Experts on the Rights and Welfare of the Child. Anyway, it imitates other instruments and Committee in regard to children’s rights (Mezmur, 2020; Sindayigaya, 2024; Sloth-Nelson, 2017). In the same context, Article 46 of the African Charter on the rights and welfare of the Child obliges that the African children’s rights Committee shall draw inspiration from International Law on Human Rights, particularly from the provisions of the African Charter on Human and Peoples’ Rights, the Charter of the Organization of African Unity, the Universal Declaration on Human Rights, the International Convention on the Rights of the Child, and other instruments adopted by the United Nations and by African countries in the field of human rights, and from African values and traditions.
Hence, obligations are that country must produce reports to both African Committee of Experts on the Rights and Welfare of the Child and the UN Committee on the Rights of the Child. For instance, in 2017, Burundi produced the report to the African Committee on the African of Experts on the Rights of the Child (Burundi Government, 2017; Sindayigaya, 2023b) but had already produced reprts to the UN Committee on the Rights of the Child long time ago in 2010 (“Le Comité des droits de l’enfant examine le rapport du Burundi”, 2010). Countries’ reports show the way they implement children’s rights which are the provision of the Convention on the rights of the child and the African Charter on the rights and welfare of the child.
The aim of this article is to analyze the African Committee on the Rights and Welfare of the Child is working together with the UN Committee on the Rights of the Child simultaneously in a non-exclusive way.
2. Methodology
This article is the result of research using the documentary technique. This technique was used to document the treaties and conventions relating to children’s rights in the UN system. These instruments were compared with the African Charter on the Rights and Welfare of the Child. This documentary technique with a comparative approach was applied to apprehend how African countries are fulfilling their obligation to the African Committee of Experts on the Rights and Welfare of the Child and their dedication to reporting to the UN Committee on the Rights of the Child. This documentary technique has also been applied in the face of existing reports and doctrine on children’s rights, especially those critical of the African Convention on the Rights and Welfare of the Child and its protective body, the African Committee of Experts on the Rights and Welfare of the Child, to ascertain whether the Charter was really intended or necessary in practice, or whether it is just one element too many alongside the International Convention on the Rights of the Child and its body, the Committee on the Rights of the Child. With the two instruments to which the African States are, for the most part, parties, they are required to apply them simultaneously and produce reports for two bodies, which appears to be a duplication of reports with almost similar content, except for a few provisions of the Convention not taken up by the Charter, and too few innovations of the Charter which were not provided for by the Convention.
3. Results
The African Charter on the Rights and Welfare of the Child establishes the African Committee of Experts on the Rights of the Child. By virtue of the last paragraph of the preamble to this Charter, the latter does not exclude the International Convention on the Rights of the Child. This complementarity between the two instruments also opens the way for collaboration between their protective bodies. For example, the African Committee of Experts on the Rights and Welfare of the Child and the Committee on the Rights of the Child, both of which are tasked with respecting and promoting the rights of the child, are not mutually exclusive. This means that the production of a report to one of the committees does not dispense the parties to both instruments from their obligation to produce it to the other, and the production of a general comment by one of the committees does not prevent the other from doing so.
4. Discussion
4.1. The African Committee on the Rights and Welfare of the Child
After analyzing the legal source or the creation of the African Committee of Experts on the Rights and Welfare of the Child, we need to look at its role and achievements. Under article 32 of the African Charter on the Rights and Welfare of the Child, an African Committee of Experts on the Rights and Welfare of the Child shall be established within the Organization of African Unity to promote and protect the rights and welfare of the child” (African Charter on the Rights and Welfare of the Child, art. 32). Under this provision, the Committee is created by the Charter. It is an organ of the African Charter on the Rights and Welfare of the Child. More specifically, the African Committee of Experts on the Rights and Welfare of the Child, made up of 11 members elected from among the States parties to the African Charter on the Rights and Welfare of the Child, was created by the Conference of Heads of State and Government at its 37th session, held in Lusaka, Zambia, in July 2001. The role of the African Committee of Experts on the Rights and Welfare of the Child can be seen in article 32 of the Charter, which creates it and sets its objective. This is the promotion and protection of the rights and welfare of the child. To achieve this, member states are required to submit reports to the African Committee on measures taken to implement the provisions of the Charter, in accordance with article 43 of the African Charter.
4.1.1. Promotion of Children’s Rights and Well-Being by the African Committee of Experts
Africa has traditionally found it difficult to achieve coherence around a comprehensive catalog of children’s rights, and the aim of the African Charter on the Rights and Welfare of the Child is to provide additional regional protection to that afforded by the International Convention on the Rights of the Child (Boukongou, 2006: p. 98). To achieve this, the Charter provides for a body responsible for promoting the rights of the child as they were at the time of its adoption. The Charter does not limit the competence of the African Committee of Experts on the Rights and Welfare of the Child, as it contains no clause specifying the conditions of admissibility and examination of individual communications that may be submitted against States parties. It is therefore up to it (the Committee) to exploit this free field to improve and promote children’s rights.
On the other hand, the Committee must be under the impression that it is doing anything towards a better situation for children’s rights and well-being, because Agenda 2063 mentions African states asserting their need for “an Africa whose development is people-centered, that builds on the potential of its people, especially those of women and young people, that cares about the well-being of children” (Agenda 2063 The Africa We Want, Final Edition, April 2015, para. 8) in line with aspiration 6 of this Agenda. The ideal is the child at the center of African states’ concerns. This Agenda 2063 adds that “the culture of peace and tolerance will be lavished on Africa’s children and young people through peace education” (Agenda 2063 The Africa We Want, Final Edition, April 2015, para. 32) with the aim of making African children future peace activists and actors in peaceful coexistence.
In this hypothesis, Agenda 2063 has a vision that:
“African children will be empowered through the full implementation of the African Charter on the Rights and Welfare of the Child;
African children will have achieved social, economic and political autonomy through the full implementation of the African Youth Charter;
Africa will become a continent where the talents of children and young people are fully developed, rewarded and protected for the benefit of society;
All forms of systematic inequality, exploitation, marginalization and discrimination will be eliminated, and youth issues will be integrated into all development programs;
Youth unemployment will have ended, and young Africans will have guaranteed full access to education and training, skills and technology, health services, employment, economic opportunities, recreational and cultural activities, as well as financial means and all the resources necessary to enable them to realize their full potential.” (Agenda 2063 The Africa We Want, Final Edition, April 2015, n.d., paras. 53-57).
Alongside Agenda 2063, Africa has also committed to promoting children’s rights through Agenda 2040. The latter aims to ensure that “all learners should acquire knowledge and skills to promote sustainable development through education for sustainable development and sustainable lifestyles, human rights, gender equality, the promotion of a culture of peace and non-violence, belonging to the global community, and recognition of the contribution of cultural diversity and culture to sustainable development”. (Agenda 2040, Africa’s Agenda for Children: Fostering an Africa Fit for Children., 2016, p. 33; African Charter on the Rights and Welfare of the Child, art. 11). The principle of non-discrimination is de rigueur in these two instruments of African regional dimension, and Agenda 2040 under this aspiration appears as a succinct explanation of the African Committee of Experts on the Rights and Welfare of the Child with regard to the right to education carried by article 11 of the Charter cited.
On the basis of the provisions that the African Committee of Experts on the Rights and Welfare of the Child have expressed in the aspirations of Agenda 2040 for an Africa fit for children, States must have:
Submitted their initial reports
Implemented the concluding observations adopted after examination of their reports;
Fully cooperated with the Committee on the Rights of the Child in its promotion and protection mandate;
Organized and supported activities aimed at raising awareness of the Charter, including at national level, for example by supporting activities linked to the annual Day of the African Child, with the full and effective participation of children;
Appointed a respected and recognized figure as the focal point between the government and the Committee;
Provided all necessary means to strengthen the operational capacities of the African Committee on the Rights of the Child (Agenda 2040 for Africa’s Children: Fostering an Africa Fit for Children, n. d., p. 67-68).
This agenda established the work plan of the Committee of Experts on the Rights and Welfare of the Child, in pursuit of the promotion of children’s rights and welfare. Thus, since 2020, the expert committee must have:
Continued to organize training workshops for new members;
Encourage countries that are not parties to the African Charter on the Rights of the Child to sign and ratify the CRC;
Encouraged States that had entered reservations to withdraw them;
Encouraged countries to submit their reports;
Reviewed the situation of children’s rights, on the basis of available information, including reports from civil society organizations, in the absence of a report;
Developed training programs to build the capacity of civil servants involved in the protection of children’s rights and members of civil society, in collaboration with AU bodies;
Coordinated efforts to promote and share good practice between states on harmonizing national law, policy and practice with the African Charter on the Rights and Welfare of the Child, etc. (Agenda 2040 for Africa’s Children: Fostering an Africa Fit for Children, p. 68-71).
4.1.2. Protection of Children’s Rights and Welfare by the African Committee of Experts
The pursuit of the goal of protecting children’s rights can be seen in the analysis of the various General Comments issued by the African Committee of Experts on the Rights and Welfare of the Child. With the aim of protecting children whose mothers are incarcerated despite their pregnancy or are accompanied by their very young children, the African Charter on the Rights and Welfare of the Child produced the General comment on the rights of children of imprisoned or detained parents or legal guardians (Sindayigaya, 2023b, 2024; Sindayigaya & Hitimana, 2016; Sindayigaya & Nyabenda, 2022; Sindayigaya & Toyi, 2023b). Through it, it is required that “States Parties to the present Charter undertake to provide special treatment for pregnant women and mothers of infants and young children who have been charged with or found guilty of offences under criminal law and undertake in particular to:
1) Ensure that a sentence other than imprisonment is considered first in all cases when sentencing these mothers;
2) Establish and promote measures to change institutionalization for the treatment of these mothers;
3) Create special institutions to ensure the detention of these mothers;
4) Ensure that no mother is imprisoned with her child;
5) Ensure that no death sentence is passed on these mothers;
6) Ensure that the penitentiary system is essentially aimed at reform, reintegration of the mother into her family and social rehabilitation” (African Charter on the Rights and Welfare of the Child, art. 30).
In relation to this provision, the African Committee of Experts on the Rights and Welfare of the Child, in 2013, issued a general observation in consideration that “children living in prison with their mothers experience a range of rights violations, including psychosocial and health problems and difficulties in accessing education (Sindayigaya, 2020, 2022a, 2022b, 2023a). Parental incarceration can also lead to difficulties for children living apart from their parents, such as financial and material difficulties, instability in family relationships or changes of residence (African Committee of Experts on the Rights and Welfare of the Child (ACERWC), 2013, para. 4; Sindayigaya & Nyabenda, 2022).
In any case, the fact that children live next to their incarcerated mothers constitutes a condition that is both advantageous for these children but gives rise to ambiguity for this “supreme status” of being free for these children in women’s prisons and for these incarcerated mothers (Rostaing, 2019: p. 58). Motherhood in an incarcerated situation faces constraints (Lehalle & Beaulieu, 2019) which cannot deviate from the ricochets towards the relatives (parents, siblings, children, uncles and aunts, spouses…) of the incarcerated woman (Lehalle, 2019: p. 10). Furthermore, the ideal is for all this to be done with strict respect for the child’s best interests (Mperejimana & Sindayigaya, 2023; Ndayisenga & Sindayigaya, 2024b, 2024a; Nduwimana & Sindayigaya, 2023a, 2023b; Nyabenda & Sindayigaya, 2023, 2024; Sindayigaya & Nyabenda, 2022). To ensure and safeguard the rights of infants living with their incarcerated mothers, paragraph 8 of this general observation specifies its mission, which is to:
1) “Strengthen understanding of the meaning and application of Article 30 and its implications for States Parties, international organizations, civil society organizations, community structures and society in general;
2) Specify the scope of the legislation, policies and practices necessary to ensure the full application of article 30;
3) Engage in constructive dialogue with States Parties on the constitutional, political, legal and operational framework for the effective implementation of Article 30;
4) Promote and encourage the submission of regular periodic reports by States parties, specifying in particular the constitutional, political, legal and administrative measures taken by States parties to fulfil their obligations under article 30;
5) Highlight positive approaches to the application of Article 30, drawing on the African Committee’s monitoring experience and research on the subject;
6) Strengthen cooperation at continental and international levels for better protection of children of imprisoned parents or primary caregivers” (African Committee of Experts on the Rights and Welfare of the Child (CAEDBE), para. 8).
The African Committee of Experts on the Rights and Welfare of the Child considers that Article 30 may apply to children affected by the imprisonment of their sole or primary guardian, who may be another family member, such as a grandparent or adoptive parent.
This provision of the African Charter on the Rights and Welfare of the Child, as explained by the African Committee on the Rights and Welfare of the Child, responds to the concern raised by the United Nations Rules for the Treatment of Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules). According to these rules, “the total prohibition of family contact, especially with children, has very negative effects on the psychological well-being of women prisoners, as well as on the children involved, and should therefore be avoided, unless the child is in need of special protection” (United Nations Rules for the Treatment of Prisoners and Non-Custodial Measures for Women Offenders and commentary, r. 23). Beyond the separation during a period when the child needs maternal affection, the perceptions of incarcerated mothers on their relationship with their children since detention and vice versa is very critical (Couvrette & Plourde, 2019) that it should not be claimed as a first resort (Buhendwa et al., 2023; Ciza & Sindayigaya, 2023; Mpabansi, 2023; Niyongabo & Sindayigaya, 2023; Sabiraguha & al., 2023; Sindayigaya & Toyi, 2023a). This is because a large number of children in Africa are orphans or live apart from their parents and must also be able to benefit from the protections guaranteed by the Charter especially when their sole or primary guardian is deprived of his or her liberty (African Committee of Experts on the Rights and Welfare of the Child (CAEDBE), para. 10).
In line with its objective of developing and formulating principles and rules to protect the rights and welfare of the child in Africa (African Charter on the Rights and Welfare of the Child, art. 42 lit.a (ii)) the African Committee of Experts on the Rights and Welfare of the Child has taken care to interpret or give meaning to article 6 of the African Charter on the Rights and Welfare of the Child through the General comment on the right to birth registration, a name and a nationality (Amo-Adjei & Annim, 2015; Sindayigaya, 2023a, 2023b). This article 42 of the African Charter on the Tights and Welfare of the Child states that:
1) Every child has the right to a name from birth;
2) All children are registered immediately after birth;
3) Every child has the right to acquire a nationality;
4) The States Parties to the present Charter undertake to ensure that their legislation recognizes the principle that a child has the right to acquire the nationality of the State on whose territory he/she was born if, at the time of his/her birth, he/she is not entitled to the nationality of any other State in accordance with its laws. (African Charter on the Rights and Welfare of the Child, art. 6).
The African Committee of Experts on the Rights and Welfare of the Child expresses its concern that the right to be registered at birth is one of those rights that States parties appear not to be fully implementing. In its observations and recommendations to States parties that have already submitted at least one report (Burkina Faso, Cameroon, Libya, Kenya, Mali, Tanzania and Uganda), the Committee has consistently expressed its concern at the low rate of birth registration. (General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child, CAEDBE/OG/02 (2014), para. 3). The Committee’s analysis identified factors explaining this state of affairs, namely poverty, lack of education, discrimination against women, membership of certain indigenous ethnic groups or vulnerable social groups such as refugees or migrants, to which is added the lack of decentralized, efficient, well-managed and affordable civil registry systems (General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child, CAEDBE/OG/02 (2014), paras. 3 and 73). As a result, until 2007, In 2007, worldwide, more than 51 million children were not registered at birth, and almost half of these young people were from developing countries, particularly sub-Saharan Africa, which has almost 20 million children without birth certificates and where almost one child in three has no legal existence (“Right To An Identity Around The Globe”, n. d.). The same paragraph 3 notes that this has the effect of making children more vulnerable to all kinds of abuse, such as recruitment into the armed forces, sexual exploitation, child labor, human trafficking, early marriage, exile, etc. Without a birth certificate, it is difficult for a child to find a legal identity. Without a birth certificate, it is difficult to establish a child’s filiation and links with the territory in which he or she was born. This puts the child in a precarious situation when it comes to applying for nationality, and exposes him or her to the risk of becoming stateless. This alarming situation prompted the Committee to organize a thematic day on birth registration and children’s rights, during its 20th session held in November 2012.
This observation explains the negative practices (practices that endanger the child’s life, offend his or her dignity or are prejudicial to his or her health, physical or mental integrity, or growth and development, regardless of whether or not they are tolerated by society, culture, religion or tradition) linked to the deprivation of these rights cited in article 6. He is therefore convinced that “a universal and functional birth registration system increases the visibility of the most disadvantaged children and strengthens their protection against negative practices. On the other hand, a poorly functioning birth registration system makes it difficult to prosecute the perpetrators of negative practices against children, since the likelihood of the implementation of laws prohibiting such practices becomes low”. (General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child, CAEDBE/OG/02 (2014), adopted by the Committee during its twenty-third Ordinary Session (07-16 April, 2014), n. d., para. 30).
To meet these challenges, the African Committee of Experts has mapped out a path for African countries to follow. These include the introduction of legislation to facilitate universal birth registration, modern interconnection between maternity services (hospitals and health centers) and other social services such as education, health, personal identification and electoral services, and national statistics offices, as well as the obligation to issue birth certificates free of charge and immediately after birth registration. (General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child, CAEDBE/OG/02 (2014), adopted by the Committee during its twenty-third Ordinary Session (07-16 April, 2014), n.d., paras. 47, 74-77). This is likely to remedy the situation that birth certificates are only issued on request, and very often parents have to make an extra effort to obtain them, including further visits to registry offices, which entail additional transport costs. However, except in North Africa, where birth registration is free of charge (Manby, 2021) Africa has not kept pace with the gratification of birth registration and the issuing of birth certificates in other regions, such as Niger (Harbitz, 2020) Burkina Faso (Niamba, 2020) etc.
With the aim of protecting children from early marriage, the African continent has mobilized its two bodies for the protection and promotion of human rights and children to draw up the relevant instrument. This is the Joint General Comment of the African Commission on Human and Peoples’ Rights (ACHPR) and the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) on the eradication of child marriage, published from Banjul in Gambia and Addis Ababa in Ethiopia, in 2017. This Joint General Comment is the result of interventions by members of the Commission and the Committee in cooperation with experts, academics, representatives of States and Organizations engaged in the fight against child marriage in Africa recorded in the draft General Comments discussed during meetings held in April 2015 in Ethiopia and in October 2015 in Kenya.
The Maputo Protocol clearly states that “the minimum age of marriage for girls is 18 years” (Joint General Comment of the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child on the Eradication of Child Marriage, 2017, n. d., art. 6 lit.b)). This treaty provision is exactly in line with the African Charter on the Rights and Welfare of the Child, which not only sets the age of majority for marriage, but also prohibits the pledging of children in marriage and requires the effective implementation of legal and regulatory measures to specify that the minimum age for marriage is 18, with marriages materializing in an official register (African Charter on the Rights and Welfare of the Child, art. 21 al. 2).
Contrary to the provisions of the Protocol, which dealt with setting the age of marriage for girls without attaching importance to that of boys, the General Comment, in turn, takes into account boys, who until then were not covered by any conventional prohibition against early marriage or promises of marriage. The General Comment also aims to “specifically address some of the factors that make girls more vulnerable to child marriage and its impacts, including their reproductive capacities and continuing inequality between men and women and discrimination against women”. (Joint General Comment of the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child on the Eradication of Child Marriage, 2017, n. d., para. 5). Paragraph 5 also notes the disproportionate incidence of child marriage among children with disabilities, migrant children, refugee children and child-headed households.
Four general principles have been taken into account for this observation:
The best interests of the child;
The child’s right to protection against discrimination;
The right to survival, development and protection;
Children’s right to participate in matters that affect and concern them (Joint General Comment of the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child on the eradication of child marriage, 2017, n. d., paras. 7-14)
Ultimately, in circumstances where customary, religious, traditional or local laws favor early child marriage, the Observation is clear. The legislative measures to be taken in application of this General Comment are imposed by operation of law and must provide for legal measures and institutions protecting the child against early marriage. (Joint General Comment of the African Commission on Human and Peoples’ Rights and the African Committee of Experts on the Rights and Welfare of the Child on the Eradication of Child Marriage, 2017, n. d., para. 19). With Africa facing a “baby boom” and galloping demographics that are an exception to those in other parts of the world as a result of teenage pregnancy (Dieme, 2012) and the prevalence of early marriage in adolescence (Maswikwa & Richter, 2016) these laws would not only protect children who stop schooling, but would also advocate an Africa with a reassuring future, free from the precariousness of demographic control.
4.2. Achievements of the African Committee of Experts on the Rights and Welfare of the Child
The African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee) is the younger brother of the African Commission on Human and Peoples’ Rights. Having had a slow start, it has been regarded by many as the adopted son of the African human rights system. Quoting Professor Benyam MEZMUR, who was its president, CAEBE reassures us that it is fair to say that it has become an effective and active champion of children’s rights in Africa (Annuaireafricain des Droits de l’Homme 2017 Volume 1, 2020, p. XV). It has the merit of being the very first global children’s rights treaty body with jurisdiction to receive complaints against States and has material and territorial jurisdiction to preside over communications submitted to it either by States that have not ratified the ACABW against a State that has ratified it, by victims or by any other party concerned, provided that it relates to the child’s own interest (Djeugoue, 2015).
It is responsible for ensuring the promotion, protection and interpretation of the rights of the child enshrined in the African Charter on the Rights and Welfare of the Child (African Charter on the Rights and Welfare of the Child, art. 42). CAEDBE receives reports and complaints from civil society organizations whose responsibility it is to ensure that their staff, operations and programs do not expose children to the risk of harm and abuse (Sindayigaya, 2023b; Sindayigaya & Toyi, 2023a, 2023b; Toyi & Sindayigaya, 2023), and that any concerns the organization has about the safety of children in the communities in which it works are reported to the relevant authorities (Sloth-Nielsen, 2015: p. 949). It is up to CAEDBE to frame and coordinate them so that there is no overlap, especially when formal child protection measures are invoked as a result of safeguarding policies (reporting to the police, criminal justice action against perpetrators), but the child safeguarding movement is primarily aimed at the organizational development of non-state actors (Jonya et al., 2023, 2024; Nyabenda & Sindayigaya, 2023, 2024; Sindayigaya, 2020). Furthermore, this coordination is justified by the fact that safeguarding children’s rights is a journey, a process, as no organization can claim that all the children it comes into contact with are completely safe all the time; once this reality is admitted, another important point emerges: namely, that behavior change involves complex commitments on attitudes, values and beliefs (Sloth-Nielsen, 2015: p. 958). This means confronting issues such as early marriage, child labor, exploitative practices and corporal punishment deliberately, rather than denying their impact on aid and development as they do in the wider community (Nduwimana & Sindayigaya, 2023b; Sindayigaya & Hitimana, 2016; Sloth-Nelson, 2016; Toyi & Sindayigaya, 2023).
4.3. Achievements of the Committee on the Rights of the Child
The achievements of the Committee on the Rights of the Child can be seen in the general observations it issues, as well as in the reports submitted by member states. The general comments of the Committee on the Rights of the Child in the UN system also concern African countries, as long as they are parties to the International Convention on the Rights of the Child. As we shall see in the developments that follow, some of them are of particular interest.
4.3.1. General Comment No. 8 (2006) the Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment (Arts. 19, 28 (Para. 2) and 37, Inter Alia)
The United Nations Committee on the Rights of the Child held its forty-second session in Geneva from May 15 to June 2, 2006, which resulted in General Comment No. 8 (2006). This observation concerns the child’s right to protection from corporal punishment and other cruel or degrading forms of punishment (art. 19, 28 (para. 2) and 37, among others). This Committee tackled the problem of the widespread acceptance or tolerance of corporal punishment of children and its elimination, whether in the family, at school or in any other context, insisting that children are not deprived of their fundamental rights simply because they walk through the school gates, and seeking to put an end to violence against children within the family and at school (General Comment No. 8 (2006)). The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19, 28 (para. 2) and 37, inter alia), paras. 3, 7-8). These were the conclusions of the conferences debated on the rights of the child and recall the content of its first General Comment on the aims of education (General Comment no. 1 (2001) paragraph 1 of article 29 of the Convention on the Rights of the Child: the aims of education). The Committee has repeatedly made it clear that the use of corporal punishment runs counter to respect for the inherent dignity of the child and the strict limits of school discipline. Respect for the values set out in article 29, paragraph 1, calls on schools to become/remain child-friendly in the fullest sense of the word, and to respect the dignity of the child in all respects (Committee on the Rights of the Child, para. 7). According to this Committee, the meaning of this article is to call on States to ensure that schools create an environment that enables the child to participate in school life, to create school communities and student councils, to set up systems of peer education and guidance, and to involve children in school discipline measures, as part of the process of learning and experiencing the realization of rights.
The Committee expects States parties to include in their periodic reports under the Convention information on measures taken to prohibit and prevent all corporal punishment and other forms of cruel or degrading punishment within the family and in all other settings, and in particular information on awareness-raising activities to this effect and on the promotion of positive, non-violent relationships, as well as on the State’s assessment of progress towards full respect for the child’s right to protection from all forms of violence General Comment No. 8 (2006). The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19, 28 (para. 2) and 37, inter alia), para. 53). Although primarily addressed to States, the Committee is aware of the many partners involved in the implementation of children’s rights, including national human rights institutions, non-state actors, business, civil society and children themselves (Nyabenda & Sindayigaya, 2023; Sindayigaya, 2023b). This General Comment is therefore also intended to guide these bodies and officials in their work, as well as to assist non-state actors and others listed above in holding their governments to account for the realization of children’s rights.
As a measure, officials of countries party to the Convention on the Rights of the Child are called upon to prosecute the perpetrators of such punishment. Observation is vigilant. If, despite prohibition and positive education and training programs, cases of corporal punishment come to light outside the family home (at school, in other institutions or under various forms of alternative care, for example), prosecution is likely to be a reasonable response. The threat of disciplinary action or dismissal could also act as a strong deterrent. It is essential that the prohibition of all corporal punishment and other cruel or degrading punishment, as well as the sanctions that can be imposed on perpetrators of such acts, be made known to children and to all those working with or for children in all settings (General Comment No. 8 (2006) The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19, 28 (para. 2) and 37, inter alia), para. 43).
4.3.2. General Comment No. 13 (2011) the Right of the Child to Protection from All Forms of Violence
In addition to the General Comments (General Comment No. 1 (2001) paragraph 1 of article 29 of the Convention on the Rights of the Child: the aims of education and General Comment No. 8 (2006) The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19, 28 (para. 2) and 37, among others), especially in schools and families, the Committee on the Rights of the Child issued another on April 18, 2011 (General Comment CRC/C/GC/13 No. 13 (2011) on the right of the child to protection from all forms of violence.
The Committee had as a principle the slogan that “No violence against children can be justified; all violence against children can be prevented.” (General Comment No. 13 (2011) The right of the child to protection from all forms of violence, s. d., para. 3 lit.a). By emphasizing the notion of the “child victim”, the Committee foresees the implementation of a rights-based approach to the care and protection of children, implying a paradigm shift from viewing children primarily as “victims” to respecting and promoting their human dignity and physical and psychological integrity as individuals with rights. (General Comment No. 13 (2011) The right of the child to protection from all forms of violence, para. 3 lit.b)).
4.3.3. General Comment No. 14 on the Right of the Child to Have His or Her Best Interests Taken into Account as a Primary Consideration
To agree with Jean Zermatten, who has tried to explain the meaning of the best interests of the child, this is a modern notion, born in the 17th and 18th centuries, at the end of the great famines and severe infant mortality, to consider that the child is not only a risk or a burden, but also constitutes or could constitute a source of hope (L’IntérêtSupérieur de l’Enfant De l’AnalyseLittérale à la PortéePhilosophique by Jean Zermatten, Working report 3-2003, p. 2).
Article 3, paragraph 1 of the Convention on the Rights of the Child confers on the child the right to have his or her best interests assessed as a primary consideration in all actions and decisions concerning him or her, whether in the public or the private sphere (Convention on the Rights of the Child, art. 3 para. 1). Thus, the best interests of the child may require the judge to consider that there is a serious risk that the child’s return (after the divorce) to the other parent would expose him or her to physical or psychological harm, or in any other way place him or her in an intolerable situation (Cornec, 2011: p. 42).
The best interests of the child is also one of the fundamental values of the Convention. It is an essential element in the Convention on the Rights of the Child. It is expressly mentioned in article 9 for separation from parents; in article 10 for family reunification; in article 18 for parental responsibilities; in article 20 for deprivation of family environment and alternative care; in article 21 for adoption; in article 37 c) for detention of children separately from adults in places of detention and b) iii of article 40 §2 b) iii for procedural guarantees, notably the presence of parents at hearings in criminal cases concerning children in conflict with the law. The best interests of the child are also mentioned in the Optional Protocol to the Convention on the sale of children, child prostitution and child pornography (preamble and art. 8) and in the Optional Protocol to the Convention establishing a communications procedure (preamble and arts. 2 and 3).
This General Comment relates only to article 3, paragraph 1, of the Convention and does not cover article 3, paragraph 2, on the welfare of the child, or article 3, paragraph 3, on the obligation of States parties to ensure that institutions, services and facilities for children conform to established standards and that mechanisms are in place to ensure that standards are met. (Committee on the Rights of the Child (CRC), para. 8) Its aim is to ensure that the principle of the best interests of the child is applied and respected by States parties to the Convention. It defines the requirements for consideration, in particular in judicial and administrative decisions and other actions concerning the child as an individual, and at all stages of the adoption of laws, policies, strategies, programs, plans, budgets, legislative and budgetary initiatives and guidelines concerning children in general or as a specific group. (Committee on the Rights of the Child (CRC), para. 10). The Committee expects this General Comment to guide the decisions of all those who care for children, including parents and caregivers. What is certain and accepted is that the best interests of the child must be the guide for those who have responsibility for his or her upbringing and guidance; this responsibility rests primarily with his or her parents.” (Cantwell, 2011: p. 23).
4.3.4. General Comment No. 20 (2016) on the Implementation of Children’s Rights during Adolescence
Adolescence is a phase of life characterized by a multiplication of possibilities, capacities and aspirations, by abundant energy and creativity, but also by great vulnerability. Adolescents are agents of change, as well as a major asset and resource for their families, communities and countries, to which they can make a valuable contribution. Globally, adolescents are actively involved in many spheres, including health and education campaigns, family support, peer education, community development initiatives, participatory budgeting and creative arts, and contribute to peace, human rights, environmental sustainability and climate as it is provided by justice General Comment No. 20 (2016) on implementing child rights during adolescence, para. 2.
Moreover, as early as 2003, Observation No. 4 §2 stated that “adolescence is a period of rapid physical, intellectual and social development, including in the areas of sexual relations and reproductive capacity, as the progressive acquisition of the ability to assume adult roles and behaviors implies new responsibilities that require the acquisition of new knowledge and skills”. (Committee on the Rights of the Child (CRC), para. 2). Adolescence is an important period of childhood in itself, but it is also a crucial period of transition that opens up possibilities for improving future prospects. Positive interventions and experiences in early childhood contribute to an optimal transition from childhood to adolescence (as it is provided by justice General Comment No. 20 (2016) on implementing child rights during adolescence, para. 11).
Through this General Comment, the Committee emphasizes the importance of participation as a means of political and civic action that enables adolescents to negotiate and advocate for the realization of their rights and to hold States accountable. States should adopt policies aimed at increasing opportunities for political participation, which is essential to the development of active citizenship. Adolescents can connect with their peers, participate in political processes and increase their ability to make informed decisions and choices, and should therefore be supported to form organizations that enable them to participate through a variety of means, including digital media (as it is provided by justice General Comment No. 20 (2016) on implementing child rights during adolescence, para. 24).
4.4. Acquisition and Analysis of Reports from Member States of the International Convention on the Rights of the Child
The Convention on the Rights of the Child specifies the periodic reporting requirements for its States Parties. States Parties undertake to submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have adopted which give effect to the rights recognized herein and on the progress made in the enjoyment of those rights:
Within two years of the date of entry into force of the present Convention for the States Parties concerned;
Thereafter, every five years (Convention on the Rights of the Child, art. 44 para. 1).
Child’s Rights Connect confirms that “the Committee cannot receive or consider reports concerning countries other than those which have ratified the International Convention on the Rights of the Child and/or its Optional Protocols”. With regard to the content of reports, the Convention adds that “reports prepared in accordance with the present article shall indicate factors and difficulties affecting the degree of fulfilment of the obligations under the present Convention. They should also contain sufficient information to give the Committee a clear picture of the application of the Convention in the country concerned” (Convention on the Rights of the Child, art. 44 al. 2).
Article 44, paragraph states that the Committee may not receive or consider reports from countries other than those which have ratified the CRC and/or the Optional Protocols. (Convention on the Rights of the Child, art. 44 al. 5). To examine the progress made by States in implementing their obligations under these treaties, the Committee meets in Geneva (Switzerland) three times a year for four weeks: three weeks of plenary session with State representatives, followed by one week of pre-sessional Working Group meetings with UN agencies, NGOs, NHRIs and children (The reporting cycle to the Committee on the Rights of the Child Guide for NGOs and NHRIs.pdf, p. 3). Before each of its sessions, the Committee publishes a comprehensive document containing an up-to-date summary of the number of reports submitted to that date and the related Concluding Observations adopted (Mezmur, 2007; Sindayigaya, 2023b; Sunzu, 2022b, 2022a, 2022c). This document, entitled “Submission of reports by States parties”, also contains relevant information on exceptional measures taken in the event of delay or non-submission (Report of the Committee on the Rights of the Child, 2008, Supplement No. 41 (A/63/41), para. 7).
5. Conclusion
Africa is committed to the pursuit and safeguarding of the rights and welfare of the child, taken to mean any human being under the age of 18, as defined in the African Charter on the Rights and Welfare of the Child. The welfare of the child is defined by several international instruments, including the African Charter on the Rights and Welfare of the Child. They are also protected by international human rights instruments, including the African Committee of Experts on the Rights and Welfare of the Child. The last paragraph of the preamble opens the door to the implementation of any international and national instrument that is not in contradiction with this Charter. This means that States parties to the Charter are able or obliged to implement in parallel the recommendations and General Comments of the bodies protecting the African Charter on the Rights and Welfare of the Child and the International Convention on the Rights of the Child. It is also clear that the States parties to all these instruments for the protection of children’s rights are subject to monitoring by several bodies.