The Child Care and Protection Bill: Translating the African Charter on the Rights and Welfare of the Child into a Namibian Law for children in Namibia
The concept of children’s rights is not new to Africa. Traditional cultures have always respected a number of children’s rights and children are central to our family-orientated communities. It can safely be said that the face of Africa is a child.
The importance of children’s rights in Africa has been clearly recognised by the development of the African Charter on the Rights and Welfare of the Child (“the Charter”). One of the reasons the African Union took this step was to “Africanise” the rights of children outlined in the Convention on the Rights of the Child, the principle international children’s rights agreement. The Charter recognises, amongst other things, the heritage and culture of an African child, the role of the extended family and the importance of the responsibilities as well as the rights of a child. An African Charter for an African child.
Namibia ratified the Charter in 2004 and by doing so is required to take steps to adopt legislation and other measures that will give effect to its provisions. It is in line with this obligation that Namibia has prepared the Child Care and Protection Bill. Looking at the steps that have been taken, it is evident that the Government has allocated considerable financial resources and time to the preparation of this Bill. The scale of the national consultation is impressive and Namibia has made commendable efforts in harmonising national laws with its international and regional obligations - a Namibian law for children in Namibia.
The rights of the African Charter can be summarised by the three Ps – protection, provision and participation; all of which are also reflected in the Child Care and Protection Bill. The Bill contains many provisions for child protection. For instance, Africa is becoming the new frontier for intercountry adoption. The Child Care and Protection Bill recognises this new development by dealing with intercountry adoption in a way that will help make the country’s legal system more prepared than it was before. The provisions recognise that whilst intercountry adoption is an option for a child in need of care, all domestic options should be exhausted before this step is taken. The provisions to address the issue of child trafficking are another example of the attention to detail the Bill gives to the movement of Namibia’s children across its borders. The Bill also provides protective measures in the context of problems such harmful social, cultural and religious practices, child labour, and children without identification documents. These issues are at the heart of the African Children’s Charter and they are rightly contextualised to the Namibian reality in the Child Care and Protection Bill in order to maintain their relevance.
The Bill recognises that children have a right to an adequate standard of living through the provision of services and means. The chapter on grants in the Bill is a step towards helping families most in need to provide for their children. To use the words of Duncan Green, “[e]nding inequality’s ‘lottery of birth’ is perhaps the greatest global challenge of the 21st century”. The provisions on grants help to address this lottery. Other examples that recognise the need to provide for the rights of children include ensuring all children have access to education – including refugee and migrant children, the provision of early childhood development services and setting standards for facilities that care for children.
The role of child participation is integrated throughout the Bill. This is commendable as both the Committee for the Convention on the Rights of the Child and the African Committee for the Rights and Welfare of the Child have stressed the importance of this principle. In much of the contemporary children’s rights literature, participation is narrowly construed as according children the right to express views, and thereafter giving those views due weight in accordance with the children’s age and maturity. However, true participation cannot merely mean having a voice, or a forum for expression of opinions, or an opportunity to have a say independently or through a representative. The very word “participate” - to join in, be part of - indicates physical activity beyond the mere verbal or cerebral.
The concept of participation involves both rights and responsibilities. As children mature towards adulthood, their participation in decisions that affect them, via the fulfillment of rights and duties, helps them to become capable citizens. Children do not suddenly, upon attainment of the age of 18 years, acquire the capacity and ability to assume adult duties without having had any prior experience. Indeed, it must surely be in the children’s best interests not to enter the wider world completely unprepared for what may be expected of them. It is a reflection of the realities of African life that children are given the opportunity to participate in the tasks, chores and traditions of adulthood before reaching the age of 18. Through this they learn and develop the skills necessary for later family life.
The provisions on participation in the Child Care and Protection Bill are in line with the African Charter and reflect the African way of life. The Bill and the Charter recognise the ideal of the dutiful child: a girl or boy who is conscious of his or her place in the community in which he or she is being raised, who is socially concerned, with a strong sense of morality and justice, and who strives to use to the best of her abilities the opportunities that arise. Our child is proud of his or her culture, but at the same time is respectful of the culture of others. He or she has a natural respect for those who gave him or her life, and is keen to make a contribution not only to his or her own growth and development, but also to the family and the community at large. Finally, in the bigger scheme, our African child is committed to observing civic responsibilities, and to participating in the unity and development of his or her nation and continent. Namibia is to be congratulated in how she has addressed the issue of child participation in terms of both rights and responsibilities in the Bill.
The Child Care and Protection Bill is commendable. But no bill is 100% perfect - and there are areas in the Child Care and Protection Bill that could still be perfected. But it is important to remember that one thing that children do not have in abundance is time. One year in the life of a child is 6% of his or her childhood. But words in a draft Bill do not deliver children in peril - passing legislation is a critical step to the realisation of rights.
The passage of the Bill is also relevant in the context of regional and global developments. Namibia’s next report to the African Committee on its obligations under the Charter is due in July 2012. The African Union is also scheduled to review the programme Africa Fit for Children: A call for Accelerated Action (Cairo + 5 review) in 2012. The United Nations will review the Millennium Development Goals, six of which are mainly about children’s rights, in 2015. The Bill will inform and complement Namibia’s views on these regional and global developments.
Namibia has achieved a number of firsts in the context of children’s rights. Namibia was one of the first countries from Africa to ratify the Convention on the Rights of the Child on September 1990. Namibia was one of the first three African countries to report to the Committee on this Convention. Namibia was one of the first few countries that signed the Optional Protocol on the Involvement of Children in Armed Conflict in September 2000. The Namibian Child Care and Protection Bill also has a number of “firsts”. The national consultation was the largest to date in Africa. The provisions that differentiate between foster care and kinship care at the time of drafting were unique. The passage into law and implementation is bound to continue this trajectory of “firsts” in the area of children’s rights. As 2011 comes to a close and we review our progress for the year we must remember that the protection of children’s rights is not only an investment in the future, but an imperative of the present. Passing the Child Care and Protection Bill, which is comprehensive, balanced, participatory, and in line with international children’s rights law, is undoubtedly a move in the right direction.
Edited from the speech given by Benyam Dawit Mezmur at meeting with Members of Parliament to discuss the role of children’s rights and responsibilities on 29 September. The event was organised by the Ombetja Yehinga Organisation (OYO) and the Legal Assistance Centre (LAC) and supported by Save the Children, Sweden. Benyam Dawit Mezmur is Vice-Chairperson (2nd) of the African Committee of Experts on the Rights and Welfare of the Child of the African Union. He is also a Mellon-Research Fellow based at the Community Law Centre, University of the Western Cape and lecturer of the LLM module on Children’s Rights and the Law at the Faculty of Law.
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