The point of departure when considering advocacy for children’s rights is the understanding and acceptance of the fact that children are rights-bearers themselves. The State and other actors have a duty towards children as subjects of human rights protection systems. For too long, children have been viewed as extensions of their parents or guardians. The assumption that has been falsely made is that they experience rights only by virtue of their relationship with a legal adult. It is true that because of their youth and incapacity – physical or otherwise – they are often unable to claim and enforce their rights themselves. This does not however, mean that the choices made by the concerned adult will unquestionably be in the best interest of the child. Rather, the fact that they cannot claim these rights themselves, makes the responsibility of the State and others so much greater.
The ´best interests´ principle is the golden thread that runs through all legislation concerning the rights and treatment of children. Section 28(2) of the Constitution says that the “…best interests are of paramount importance in every matter concerning the child.” This principle is established in both domestic legislation and in its international counterparts. The CRC echoes these sentiments in Article 3 where it states that “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” South Africa is party to both the CRC and the ACRWC and as such, is obligated to ensure that both its legislation and conduct realise the protections and provisions of the international agreements. Unfortunately, far too many children remain vulnerable to various threats to their wellbeing and in some instances, their lives.
According to the Children’s Institute’s South African Child Gauge 2018, in mid-2017, South Africa’s total population was estimated at 56.5 million people, of whom 19.6 million were children (under 18 years). Children therefore account for 35% of the total population. This is a relatively large contingent of vulnerable individuals who often have to rely on others for access to basic and fundamental human rights. Within this section of society, there are multiple sub-sections of children who experience different threats to their human rights, often more than one at the same time. The most common of these threats is, arguably, poverty.
South Africa has been frequently touted as the world’s most unequal society. This directly contributes to the occurrence of poor children living in conditions that are not conducive for access to rights such as basic healthcare or an acceptable standard of education. Even where the government steps in and provides social security, the amount given is rarely enough to sustain those that must share it. Poverty also means the safety and security of children cannot be guaranteed, particularly if one considers the state of housing in high density townships or the ever-mushrooming informal settlements.
Another concern is that children, next to women, are the main target for human traffickers across the world and this state of affairs is mirrored in South Africa. Poverty and the absence of security in the form of safe homes, as well as poor policing, make the poorest children the likeliest targets for traffickers. Further, gang violence is ubiquitous in poor areas and every day, younger children are being recruited. This translates to an increase of children in conflict with the law. The list of threats is endless, from refugee children and the particular challenges they face, to the advent of technology and online safety, as well as the exclusion of children with disabilities; the areas of need continue to grow.
A commendable step in the direction of addressing the particular plight of children is the passing of the Western Cape Children’s Commissioner Act by the Western Cape Provincial Government in early 2019. The Children’s Commissioner, once appointed, will be responsible for the creation of a safer environment for children through liaison with the provincial government on matters such as children’s rights and social development. The Western Cape has the highest rate of child murders in South Africa. This Act and its aims are exactly what responsive governance should look like. It must be noted, however, that the passing of the Act has been over 10 years in the making, due to bureaucracy and failure of stakeholders to come to agreement.
Although South Africa is rated among the best in terms of legislation, the implementation, as is often the case, is lacking. Children have the right to dignity, a right that can only be achieved through the access to other rights. The intersectional nature of the human experience demands full access to the Bill of Rights and not just bits and pieces here and there. A society can only measure its success by the way it treats its most vulnerable citizens. A continued failure to protect the rights of the most vulnerable of the South African society should not be left to a week-long annual campaign. It is imperative to endeavourto daily, actively, fulfil the Constitution’s provisions.
By Ms Rebecca Sibanda: Legal Assistant, Centre for Constitutional Rights
6 June 2019