This essay will argue against the position expressed by Simon Lutalo. While the UN Convention on the Rights of the Child (CRC) is a foundational and comprehensive document, it was necessary for African leaders to adopt the African Charter on the Rights and Welfare of the Child (ACRWC). The ACRWC is not a redundant duplication of the CRC; rather, it is a complementary instrument that addresses the specific socio-cultural contexts, challenges, and values of the African continent. Therefore, the resources spent in its creation were a justifiable investment in creating a more effective and relevant framework for protecting children in Africa.
The statement correctly identifies the CRC as a 'comprehensive' instrument for the protection of children’s rights (United Nations, 1989). As the most widely ratified human rights treaty in history, its importance cannot be understated. It establishes a global standard for children's rights, covering civil, political, economic, social, and cultural rights. Any discussion of children's rights must acknowledge the CRC's role as the primary international legal framework. However, its universal nature means that it is framed in general terms, which can limit its direct applicability to specific regional contexts without further interpretation and adaptation.
The primary justification for the ACRWC is its ability to address issues that are particularly relevant to the African continent. The Charter explicitly confronts harmful social and cultural practices that affect children. Article 21 of the ACRWC obliges states to take measures to eliminate practices prejudicial to the health and well-being of the child, including those based on sex. This provision directly targets issues like female genital mutilation and child marriage, which are significant problems in many parts of Africa (Viljoen, 2012). By contrast, the CRC’s equivalent provision (Article 24(3)) is less direct, calling on states to abolish 'traditional practices prejudicial to the health of children'. The ACRWC's specificity provides a stronger legal basis for domestic action against these particular harms.
Furthermore, the ACRWC reflects a different philosophical approach by uniquely including a section on the responsibilities of the child. Article 31 outlines duties for the child towards their family, society, and the State. These include the duty to work for the cohesion of the family, to respect their parents, and to preserve and strengthen African cultural values. This reflects the communitarian ethos prevalent in many African societies, where individual rights are often viewed in the context of community obligations (Sloth-Nielsen, 2008). The CRC, rooted in a more Western, individualistic rights tradition, contains no such list of duties. This inclusion makes the ACRWC a more culturally resonant document for many African states, potentially aiding its domestic acceptance and implementation.
In several key areas, the ACRWC also provides higher or more explicit standards of protection than the CRC. For example, Article 2 of the ACRWC defines a child as any person below the age of 18, without exception. The CRC, in Article 1, allows for the age of majority to be attained earlier if it is recognised under national law. Similarly, the ACRWC provides a stronger prohibition on the use of child soldiers. Article 22 expressly forbids both the recruitment and direct participation in hostilities of any person under 18. The original text of the CRC (Article 38) set the age for participation at 15, a standard that was widely criticised and only later raised through an Optional Protocol. The ACRWC was therefore progressive and set a higher regional standard from its inception.
Finally, the argument that resources were wasted overlooks the value of a regional enforcement mechanism. The ACRWC established the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) to monitor its implementation. This regional body is arguably more accessible and attuned to the continent’s specific challenges than the UN Committee on the Rights of the Child based in Geneva. The ACERWC can investigate communications on systemic violations, as seen in the case concerning talibé children in Senegal, where the Committee addressed a form of child exploitation and begging rooted in a specific regional context (Centre for Human Rights, University of Pretoria and La Rencontre Africaine pour la Defense des Droits de l’Homme v Senegal, 2014). This demonstrates the practical benefit of a regional body equipped with the mandate and contextual understanding to tackle African-specific problems, something the UN system is less able to do with the same focus.
In conclusion, the assertion that the ACRWC was an unnecessary use of resources is incorrect. The Charter is not a simple copy of the CRC but a vital supplementary instrument. It tailors children's rights to the African context by addressing harmful cultural practices, incorporating community values, setting higher standards of protection in critical areas, and establishing an accessible regional monitoring system. These features enhance, rather than merely repeat, the protections offered by the CRC, making the ACRWC a necessary and valuable tool for advancing the rights and welfare of children in Africa.
References
Centre for Human Rights, University of Pretoria and La Rencontre Africaine pour la Defense des Droits de l’Homme v The Republic of Senegal (2014) Communication No. 002/Com/001/2014.
Organisation of African Unity (1990) African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49.
Sloth-Nielsen, J. (2008) 'The Contribution of the African Charter on the Rights and Welfare of the Child to the Development of International Juvenile Justice Standards', The International Journal of Children's Rights, 16(2), pp. 235-256.
United Nations (1989) Convention on the Rights of the Child, UN General Assembly Resolution 44/25.
Viljoen, F. (2012) International Human Rights Law in Africa. 2nd edn. Oxford: Oxford University Press.
