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Does the African Children’s Rights Charter ‘add value’?
The Convention on the Rights of the Child (CRC) has more ratifications than the African Charter on the Rights and Welfare of the Child (ACRWC), and it was undoubtedly revolutionary, but this does not necessarily mean that it is any more successful at improving children’s rights in Africa. The two treaties are similar, and they both have problems, but the ACRWC is arguably more suited to the African context and so adds value this way (Memzur).
The CRC 'brought about a paradigm shift as regards how we think of and treat children' (Memzur). Instead of seeing children’s rights as merely a matter of 'charity' (J. Sloth-Nielsen), children are now recognised as having real and effective rights. The main focus of the CRC is the 'four pillars' (El-Gabalawi): 'non-discrimination'; the right of the child to have its 'best interests' as the 'primary consideration'; 'the inherent right to life', and; the right of a child 'who is capable of forming his or her own views … to express those views freely in all matters affecting the child.' The CRC has been extremely successful; in fact, '[n]o other human rights treaty comes that close to universal ratification' (Doek). However, there have been criticisms against the CRC. For example, it creates problems for 'countries where the values of all or part of the society are based on group rights, not those of the individual' (Burman). There are also problems with the judicial use of the CRC (Todres).
The two treaties are similar in many areas - for example, the ACRWC also covers the ‘four pillars’ (in its own way) (Memzur) - but different in others. They are 'complimentary' (Memzur). The CRC only has the upper hand in a few areas, including juvenile justice. On the other hand, the ACRWC offers ‘added value’ through many more provisions that are 'reflective of African realities' (Memzur) than the CRC does; in particular, Article 21 protects against “harmful social and cultural practices affecting … the child”, including child marriage.
In addition, the work of the African Committee of Experts on the Rights and Welfare of the Child (the Committee) has had a major impact in Africa. There have been some problems, including; a lack of attendance, due to 'national organisations possibly not knowing that the … Committee exists', and lack of funds (L. Wakefield & U. Assim). There has also been a 'persistent low level of state reporting' (L. Wakefield & U. Assim). Nevertheless, the Committee has been of great benefit to the development of the protection of children’s rights in Africa. The case of the so-called ‘Nubian children’ is a good example of this. Despite the Kenyan government not complying with its reporting obligations, progress was made concerning this case during the Committee’s 17th session (L. Wakefield & U. Assim). The Committee found that the Kenyan government had committed numerous violations, including a violation of the right to nationality, in regards to this group of children (E. Durojaye and E. Foley). It then made a number of recommendations. This was groundbreaking because this was the first time the Committee dealt with a communication. It made 'a strong first impression with innovative approaches to the rule on the exhaustion of domestic remedies' (Durojaye & Foley) and 'it is commendable in terms of speed and realising the goal of the best interests of the child' (Wakefield & Assim).
Clearly, the ACRWC and the Committee responsible for ensuring its implementation have been beneficial for children’s rights in Africa. Despite the ACRWC not managing 'to garner … quick support from African countries' (Memzur), unlike the CRC, the ACRWC is 'even more appealing for promoting and protecting children’s rights in Africa' (Memzur). It just needs to be implemented more effectively. In conclusion, the ACRWC does indeed add value and there is even 'an opportunity for improvement in the future' (Durojaye & Foley).