Africa's Legal Renaissance

Africa leads the world in guaranteeing children special rights and protections. But on the ground, it’s more complicated.

JOHANNESBURG — Death was once a regular visitor to Cotlands children’s hospice. The first of its kind in South Africa, the hospice — a splash of orange stucco in a neighborhood of sagging porches and dusty yards — sheltered hundreds of babies during the worst of the AIDS epidemic, back when the disease was unmanageable and the country’s leaders downplayed the crisis. Newborns as fragile as baby birds slipped away almost as quickly as they were admitted, their soiled diapers stuffed into an incinerator that Cotlands bought to keep up with the load. As treatment methods advanced, the hospice admitted older children who were born healthy and got sick, who tacked photographs of themselves above their beds to remind them of what they looked like before their glands swelled and their hair fell out and they relied on oxygen tanks to breathe.

Sixteen years after its historic opening, the hospice’s bright yellow walls and cheerful flowered curtains remain, as do the rows of cribs. But the beds today are filled with healthy children waiting to be adopted. It has been four years since a child at Cotlands died of AIDS, and last November the hospice announced it was shifting its focus to child development — largely due to the dramatic reduction in AIDS-infected newborns. Children’s rights lawyers share the credit for that achievement, since it was their lawsuit that forced the South African government to begin administering anti-retroviral drugs to pregnant women with HIV. The lawsuit said that by denying women those drugs, the government was violating childrens’ right to health care as outlined in South Africa’s constitution.

“It shows the power attorneys and judges have literally to save children’s lives,” says professor Warren Binford, who researched and lectured on children’s rights last semester as a Fulbright Scholar at the University of the Western Cape. “This is what makes South Africa a leader. Its politicians, attorneys and judges are showing other nations how to develop a legal system from scratch that recognizes children as rights holders.”

Africa’s grim history of oppression, poverty and civil war appears to have deeply affected its thinking about the continent’s half a billion children. At least on paper, countries across the continent are showing an unparalleled commitment to their children by placing children’s rights directly in their post-colonial constitutions, giving children’s rights lawyers a legal framework to advocate for better schools, access to justice and other issues that affect children’s ability to thrive. The constitution of Nigeria, for instance, requires that government provide free and universal public education. Uganda’s constitution says children are entitled to protection against social and economic exploitation. South Sudan’s constitution prohibits corporal punishment, the first such prohibition in Africa. South Africa’s constitution goes the furthest by expressly outlining socio-economic rights for children: the right to basic nutrition, shelter, health care and social services. Children’s lawyers have used those provisions to advocate on behalf of children whose rights aren’t being realized and to persuade the government to eliminate programs incompatible with constitutional provisions.

“The South African constitution is one of the most beautiful documents I’ve ever read,” Binford says. “It embodies the values any society needs to flourish; care well for your children, or your society will suffer.”

While overseas, Binford visited Ethiopia, Namibia, Zimbabwe, Zambia, Botswana, Swaziland and South Africa. She lectured, researched, facilitated and attended workshops on children’s rights. Binford is writing a book on the topic and a law review article on the leadership of Africa in advancing children’s rights. She also developed relationships with child advocates and members of non-governmental organizations who could offer opportunities for Willamette students to provide research, drafting and analytical support for law reform projects.

“When you look at the effects of colonialism in Africa and the tremendous disadvantages that slavery, exclusion and apartheid have had on the African people, the rapidity with which they’re recovering from this exploitation is highly impressive,” she says. “Looking at the amount of legislation being drafted, being adopted, the judicial decisions being’s virtually impossible to stay on top of everything.”

The idea that children, as the most vulnerable members of society, have special and unique rights developed in Britain and the United States in the late 1800s around the issues of abuse and horrific work conditions for children. In 1920, Eglantyne Jebb, who had been deeply moved by the suffering of child victims of the Balkan Wars and then World War I, founded Save the Children as a way of funneling aid to German and Austrian children. Four years later, believing that children needed some kind of legal scaffolding to ensure their protection in times of war and peace, Jebb drafted the Geneva Declaration on the Rights of the Child, which the League of Nations adopted in 1924. Children’s rights advanced further with the formation of UNICEF in 1948, the United Nations Declaration on the Rights of the Child in 1959 and the U.N. Convention on the Rights and Welfare of the Child in 1989. The 1989 treaty is the most widely and rapidly ratified human rights treaty in the world. African nations were underrepresented in the drafting process, which lasted 10 years. But those nations ratified the U.N. Convention and simultaneously began drafting the African Charter on the Rights and Welfare of the Child (ACRWC), which the Organization of African Unity adopted in 1990. Unlike the U.N. treaty, the ACRWC reflects Africa’s unique cultural heritage, history and family values and asserts that children have rights as well as responsibilities.

Nelson Mandela was released from prison the same year as the adoption of the African Charter. Multiracial elections put the African National Congress into power in 1994, and Mandela — who had tremendous respect for the role children played in the Soweto student uprising, a turning point in the movement to end apartheid — led the effort to spell out rights for children in the country’s new constitution. As a major player on the continent, South Africa set the standard for adopting the idea of ubuntu outlined in the ACRWC: children should view the family and community as significant parts of their lives but also should expect that those groups will respect their rights.

“Today’s children are the economically active adults, the urban dwellers, the manufacturers of the future,” says Julia Sloth-Nielsen, dean of law at the University of the Western Cape and an internationally recognized expert on children’s rights. “It makes sense to have the best educated, fittest population in Africa.”

The key to open the closed doors
The remote control of your future
Right now can be your responsibility
But at the end it gives you ability, opportunity, dignity and quality
It makes you independent
From being a depender

Palesa LaguPalesa Lagu, 17, delivers her poem in staccato bursts, her expression tightening with each in-your-face retort to the adults who failed her. The verses bounce off the walls of Welwitschia Primary School and into Delft South, a township outside the center of Cape Town. Visitors to the school pass the Glory Hair Salon, the CheapCheap Store and rows of outdoor barbecue grills with sheep’s heads jumbled together for sale — 40 rand, considered a delicacy. Big-bellied grandfathers butcher cows on the street, blood streaking their knives like paint on canvas.

Lagu, verbally abused by her mother, beaten by her stepfather and nearly raped by her uncle, says she thought about going to the police for help but her stepfather told her she’d never be able to come home again. She says people in her neighborhood tried to help her, but they didn’t want to fight with her mother.

Then she got involved with Molo Songololo, a child advocacy organization that informs children about their rights through workshops, camps and activities. Now Lagu stays in her bedroom after school, writing poetry instead of roaming the streets with her schoolmates. They’ve attempted to force her into a gang but she refuses to join because “I don’t like fighting. I don’t like arguing. Even when I was in my home, they shouted at me and called me a coward.”

Molo Songololo’s belief in her “helped me to be strong,” Lagu says. “ When I’m in pain, I have my pen and write it down, and I just read to other people and tell them how I feel. Even if my mother is shouting at me, I think of the words I write and I don’t lose hope.”

Molo Songololo dedicates itself to teaching children about their rights. The organization hosted a summit where youths drafted the Children’s Charter of South Africa in 1992 and was instrumental in getting them included in the crafting of the country’s constitution. Director Patric Solomon says South Africa has made great strides in carrying out the principles embedded in those documents: 90 percent of children in South Africa finish primary school; child and infant mortality rates are falling; immunizations have increased; sanitation and access to safe drinking water have improved; and birth registrations have swelled.

Now Molo Songololo and other organizations are focusing on how to conquer the more intractable challenges: economic inequality; racism that lingers nearly two decades after apartheid’s end; inadequate budgets to ensure that children thrive; and the feeling by many that the mere existence of laws is enough to guarantee children a healthy future.

“We have a very good children’s rights framework. On paper, it’s great,” Solomon says. “The problem is implementation.” Statistics back him up. Although poverty rates have declined for children overall, disparities still exist among white, black and “coloured” children of mixed race or other non-white background. More black children live below the poverty line than their white and coloured counterparts. Although most children finish primary school, fewer than 50 percent graduate secondary school. South Africa falls short of the African Union’s commitment to allocate 15 percent of the national budget to health (South Africa allocated 10.2 percent in 2008, the most recent year for which figures are available) and 7 percent to education (South Africa spent 5.4 percent).

“Very few children have access to support services,” Solomon says, “and there are very few support services for children when they want to defend their rights as teenagers.”

Palesa Lagu says she wants to attend the University of the Western Cape and become a social worker. Her mother tells her there’s no future in poetry, but Lagu refuses to listen.

“I wish I could do something about all these kids being abused; I wish I could help all of them,” she says. Her voice, hard to understand as the words tumble out, picks up the cadence of one of her poems: “They must cope even if there’s no hope. Every opportunity they get, they must grab with both their hands. If they want success, they must stand on their own and fight for their future.”

Swaziland, South Africa’s tiny neighbor and Africa’s last absolute monarchy, has a similarly uneven record on children’s rights. The challenges facing the country and its children are daunting. Swaziland’s life expectancy is just 49 years; nearly 70 percent of its people live below the poverty line. AIDS has devastated the country: the number of people with the disease — 26 percent of the population — is the highest in the world.

The constitution, adopted in 2005, requires the government to enact laws that guarantee children a free education through the end of primary school, protects them against “moral and spiritual hazards inside and outside the family” and requires children to respect their parents and care for them when needed. Last September King Mswati III signed into law the Children’s Protection and Welfare Act, which makes illegal all practices that would adversely affect a child’s health and intellectual development.

“We now have it in black and white that children are protected,” says Mandla Luphondvo, communications manager for World Vision Swaziland, a Christian humanitarian organization that fights poverty and injustice. “There is a recognition that children have the right to be children. I’m happy to say that we have turned a corner.”

But the immense challenges facing this lush country of beehiveshaped houses and sorghum fields arranged like tiers of wedding cake along the mountainside show how difficult it is to prioritize children’s rights when the foundations of society are buckling. Children in Swaziland have a right to education and health care, but what happens when a 5-year-old boy like Sithembiso Lukhele, who has HIV and can’t hear or speak, lacks medication because his grandmother — who also has HIV — doesn’t have the money to pay for it? Children have a right to proper care, but what happens when a 10-year-old girl is raped by a relative, contracts gonorrhea and her family refuses to help her? And why should Swaziland’s citizens believe child marriage is wrong if the polygamous king repeatedly selects teenagers as brides?

Zodwa Baartjies, development practitioner at the Bantwana Initiative, which helps communities in sub-Saharan Africa support vulnerable children and their caregivers, says laws protecting children are little more than words on paper. She has grown so exasperated by the Swazi government’s inability or unwillingness to prosecute offenses against children that she relies on the media to publicize the cases she leaks to them.

“Laws are passed just to please the international community,” she says. “They have no meaning for the typical Swazi. The rural people, and the authorities, are unaware.”

S. Dlamini, 13, was sexually abused by an uncle over several years. She went to her grandmother and aunt for help, but they didn’t believe her. She told the head of her primary school, who appealed to the police. They refused to act. Eventually the story came out at a workshop that the Bantwana Initiative sponsored for kids at Dlamini’s school. Baartjies asked if anyone wanted to share a story about abuse they’d suffered. In a soft voice, Dlamini told what had happened to her. “Everyone in the workshop started crying,” Baartjies said. “I had to break early and bring in a counselor to talk to the children.”

Dlamini’s school uniform of a navy blue sweater, yellow skirt, white blouse and black shoes stands out amidst the scrubby trees and bare concrete walls at her school in rural Swaziland. Asked through a translator what can be done to improve the lives of children in her country, Dlamini — who likes science and math and wants to be a nurse or a teacher when she grows up — answers without hesitation in perfect English, “I think the government should help the children that are abused to make a hotel and provide them with everything they need.”

The next set of battles around children’s rights likely will involve the quality of education and the elimination of traditional practices such as female genital mutilation, child marriage and corporal punishment, says Sloth-Nielsen of the University of the Western Cape.

“It’s a battle of winning hearts and minds at a very grassroots level,” she says. “You can’t write a law and expect it will be fulfilled. You have to get to the villages, you have to talk to people differently about chastity, sexuality, bride price — all those things.”

Lawsuits like the one that led to the distribution of anti-retroviral drugs to pregnant women are among the tools children’s advocates use to prod African governments to do right by their children. In 2010, the Centre for Child Law at the University of Pretoria in South Africa sued the government of the Eastern Cape for educating children in mud-walled schools that lacked desks, chairs, running water, toilets and school supplies. A settlement resulted in the government pledging to repair and rebuild seven schools, as well as other mud schools throughout the country.

“This government doesn’t have a large fiscal system to draw on; there’s a small tax base to garner the funds needed to serve the entire population,” says Ann Skelton, the center’s director. “The government has a huge challenge to meet all expectations.” Binford, whose childhood image of Africa was one of hungry children needing to be saved, says she has come to realize that the continent doesn’t need saving. Giving children a set of rights won’t eliminate the poverty they’re born into, or the pressure on them to give up their education to help support their families. Nevertheless, she says, “rights at least are a recognition of human dignity. If the world around you realizes you have a right to education, to health, to be cared for by your parents, to not be abused, you are far better off than you would be without public recognition of those rights.”


“We have a very good children’s rights framework. On paper, it’s great. The problem is implementation.” - Patric Solomon“We have a very good children’s rights framework. On paper, it’s great. The problem is implementation.” - Patric Solomon

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Willamette Lawyer
Spring 2013 Vol. XIII,No. 1

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