It further seeks to ensure that these rights remain inalienable, integral and indivisible. State parties to the Convention are required to publicise the contents of the Convention to its citizens. The Convention is hailed as unique in that it fully encompasses civil, economic, political, social and cultural rights.
South Africa ratified the Convention in 1995. While the Convention is yet to be translated into national legislation, there are however, numerous examples of the Convention’s standards in South African constitutional law. For example, section 28’s provisions on children’s rights are understood to be based on the provisions of the Convention. In any event, according to section 39 and section 239 of the Constitution, courts and tribunals must consider international law when interpreting rights contained in the Bill of Rights. When national legislation is interpreted, courts and tribunals should prefer an interpretation that finds resonance with international law, rather than an interpretation that is inconsistent with international law. Viewed in this context, South Africa has a solid legal framework from which to both protect and promote the rights of children.
Nonetheless, this raises questions, such as whether the impact of this impressive regulatory framework has had real impact or is largely rhetorical. Questions can also be asked as to what the effect of the Convention has been on the daily lives of South African children, and whether the Convention has advanced their human rights. The United Nations Committee on the Rights of the Child has established general guidelines to assist with measuring the implementation of the Convention’s provisions. Such guidelines include law reform measures such as a comprehensive review of legislation, the inclusion of children’s rights in constitutions, as well as the passing of specific laws to promote children’s rights. These guidelines further serve as a framework, through which the latter questions can be answered.
The Children’s Act which was 10 years in the making, provides a comprehensive legislative framework in all matters concerning children. Its salient provisions are that every child has the right to family care, parental care, or appropriate alternative care, the right to be protected from abuse, neglect, maltreatment and degradation and the right to social services. These rights are contained in section 28 of the Constitution and are said to be interlinked and are interdependent. In this way, the Children’s Act mirrors the Convention, whose provisions incorporate civil, economic, political, social and cultural rights.
The Children’s Act requires all spheres of government and their departments to work together in an integrated and coordinated way to deliver services to children. Importantly, it highlights that the rights of children with disability or chronic illness should be given special recognition. It also elaborates on the principle of the best interests of the child in any situation involving a child. Parental rights and responsibilities are included, such as a duty to care for the child; and the obligation to maintain contact with the child.
The Constitutional Court has also made important pronouncements which give greater clarity to children’s rights. For example, S v Williams in which corporal punishment was said to violate the dignity of children. In Minister for Welfare and Population Development v Fitzpatrick and others the best interests of the child dictated that a law forbidding the adoption of South African children by foreigners be declared inconsistent with children’s human rights.
Despite these gains, research suggests that the nation is failing its children. According to the United Nations Population Fund (UNFPA) State of the World Population Report 2014, South Africa’s population is largely made up of young people. This means that ideally, the nation’s laws and policies should be geared towards a youthful population. This is not the case. The same report further states that there is a very high number of children who are victims of crime despite other progressive policies in place, such as social grants to alleviate child poverty. The lack of security for many of South Africa’s children means that the full benefits of social programmes are not being fully realised.
In terms of treaty obligations under the Convention, South Africa is obliged to report on the country’s implementation. This is a crucial monitoring function for the nation to measure its progress or lack thereof in realising children’s rights. Since ratification in 1995, South Africa has submitted two reports to the United Nations Committee on the Rights of the Child, one being a combined ‘2nd, 3rd, and 4th’ Periodic Report making up for the previous years in which the state had failed to submit a report.
It appears as if in principle, as evidenced by its policies and legislation, South Africa has met its obligations in terms of the Convention. However, the reality is that its children are largely at risk and the state is failing in some of its obligations. The South African Human Rights Commission’s review onProgress, Equity and Child Rights concludes that there are large disparities in children’s access to basic services and that children with disabilities are most vulnerable. The State is primarily responsible in terms of the Convention’s provisions, as well as national legislation, to ensure that the rights of children are both protected and promoted. As such, this Universal Children’s Day, the South African government should place children’s rights as a key priority and firmly commit to its obligations under the Convention.
By Phephelaphi Dube, Legal Officer: Centre for Constitutional Rights
