Open Society Initiative of Southern Africa (OSISA)

'A child means every human being below the age of 18 years’ – according to Article 2 of the African Charter on the Rights and Welfare of the Child (ACRWC), which has been rightly lauded for offering higher standards of protection for children than its universal counterpart, the United Nations Convention on the Rights of the Child (CRC).

With regards to the age of a child, article 1 of the CRC defines a child as ‘every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier’. The lack of this qualification or limitation in the ACRWC is considered important for offering a higher level of protection to a greater number of children.

Many developing countries, particularly from sub-Saharan Africa, did not participate in the drafting process of the CRC. In fact, the few African countries that were involved in the process – and only towards the end – were Islamic states from North Africa.

The ACRWC was drafted partly in response to this under-representation of African states in the drafting of the CRC and the need to address particular issues that are peculiar to children’s rights based on Africa’s economic and socio-cultural context.

Examples include armed conflicts, poverty and the impact of the HIV and AIDS pandemic. As a result, the ACRWC pays particular attention to the rights of the girl child, the protection of refugee and internally displaced children and protection from harmful traditional practices, among others.

However, there is no doubt that the ACRWC draws inspiration from the UN Charter. Both are premised on the same fundamental principles: non-discrimination; the best interests of the child; life, survival and development; and child participation.

The African Charter, which was adopted in 1990 and entered into force in 1999, is considered to be the most comprehensive and important regional instrument on children’s rights and - like the CRC – it encompasses all rights whether socio-economic or civil and political.

It signifies an African acceptance of the global paradigm shift towards the recognition of children as full and visible members of society, entitled to human rights in the here and now.

The complementary nature of the ACRWC to the CRC reveals the distinct contributions that the ACRWC makes to children’s rights generally and the CRC particularly. The ACRWC adds positive values that resonate with the realities of children in Africa, and buttresses the fact that regional treaties are important for the resolution of regional human rights situations, while upholding cultural traditions and history that are unique to the region.

All SADC countries have ratified the CRC and – with the exception of Zambia – they have also ratified the ACRWC. However, it is unfortunate that, with regards to the definition of a child, a few countries in the region have not adopted the standard of the ACRWC.

New children’s legislation in countries like South Africa and Lesotho clearly define the child as any person below the age of 18. But in Malawi, the new Child Care, Protection and Justice Act of 2010 defines the child as a person below the age of 16 – despite the fact that the Malawi Law Commission had recommended that the age of 18 be adopted.

Part of the problem is that Malawi’s constitution currently defines a child as a person below the age of 16 so any attempt to adopt 18 in the Act would have triggered a conflict with the constitution and even a constitutional amendment process.

In ratifying the ACRWC, Botswana entered a reservation on the provision defining the child. But section 2 of the current Children’s Act of Botswana (2009) does define a child as any person below the age of 18, so it is time for the government to withdraw its earlier reservation in order not to be considered as acting contrary to the objects and intents of the ACRWC.

The universal definition of a child is important because it determines the scope of the application of the provisions contained in instruments dealing with matters affecting children. Certainty in this regard not only helps to extend the protection of rights to a larger group of people, but it also leads to greater harmonisation across the region.

Consequently, when there is uniformity as to the definition of the age of a child, efforts can be concentrated on doing all that is necessary to secure the protection of the rights of children in the region more uniformly.