COMMENT Tinyade Kachika 11 June 2021
Eliminating all forms of violence against all women and girls in the public and private spheres is a target under Sustainable Development Goal (SDG) 5. In Africa, it is widely accepted that such violence may take the form of harmful practices such as child marriage, female genital mutilation, child debt bondage, forced child labour, child abduction and child trafficking – amongst others.
A Global Pandemic Followed by Social Disasters
Despite decades of efforts to promote and protect the rights of children in Africa, the COVID-19 blaze that has scorched the socio-economic wellbeing of many – especially in Africa – has yet exposed that many of these efforts are far from being fireproof. Online sources are rife with evidence that travel bans and lockdowns to curb COVID-19 have not deterred the domestic and international trafficking of children for labour and prostitution. Even the UN Special Rapporteur on Trafficking in Persons, especially Women and Children, has noted that COVID-19 related closures of learning institutions exacerbated the vulnerabilities of children to (online) sexual exploitation, child labour and child marriage.[1] Similarly, a recent study conducted by UN Women anecdotally alludes to an increase in harmful practices against girls, as well as in the number of child marriages and teen pregnancies in the East and Southern African region.[2] The Director for Amnesty International in East and Southern Africa has further decried that COVID-19 has escalated incidences of violence against women and girls in Southern Africa, with the home being “the most dangerous place to be a woman or a girl during the pandemic.”[3]
The Controversy of Legal Pluralism
In many African countries, this relentless assault on the rights of children, particularly girls, is happening amidst a myriad of state driven legislative and administrative measures aimed at realising the rights of the child guaranteed under both the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. While Africa has plural legal systems (e.g. customary, traditional, religious, or statutory laws), these systems usually excite discomfort and suspicion, including international jurisprudence on harmful practices. Legal pluralism is oftentimes viewed as fertile ground for institutionalizing and emboldening perpetrators of socio-cultural practices that harm girls and boys alike.
Development within the Local Context
Put simply, it is widely assumed that international norms protecting the rights of the child are best internalised through formal institutional changes and not informal community-level changes. However, this is a costly assumption because evidence suggests that in many resource-constrained rural communities in Africa, formal mechanisms (e.g. legislation) aimed at protecting children from harmful practices are remote to the rural masses due to non-existent or poor enforcement mechanisms. Elsewhere, Professor Thoko Kaime has called for attention towards informal practical and localised interventions across cultures. Such interventions, he argues, have a higher potential of promoting children’s rights successfully in Africa.[4] I am compelled to agree. Southern African countries such as Malawi and Zambia are witnessing the rise of informal, chief-led cultural mechanisms that seem to be more relatable to the rural masses, and hence have potential to work better in rural communities than legislation.
This is by no means dissing the weight of legislative and other formal measures for tackling harms against children. Rather, the reality is that there is an emerging breed of development-conscious chiefs or traditional leaders who are deliberately pursuing the protection and empowerment of both girls and boys as a critical piece of their community development. These chiefs are leading their communities to intuitively respond to socio-economic and legal changes by adopting community level laws that are uprooting harmful customary laws and practices and establishing more protective cultural values. These community laws are therefore a rupture of patriarchal customary law, and ‘remote’ formal law, and communities accept them as binding localised laws. By integrating them into customary systems, these informal laws are customizing approaches to the promotion and protection of rights of children, especially girls, in ways that are culturally resonant.
COVID 19 and its associated lockdowns as well as the stress it has imposed on national budgets (with resources being mainly diverted to or invested in public health care and economic recovery) validate the urgent need to closely explore and engage these community grown, cheaper solutions, for protecting the rights of African children in general and girls in particular.
Tinyade Kachika is a social development lawyer who specialized in gender and social inclusion studies.
[1] COVID-19 Position paper ‘The impact and consequences of the COVID-19 pandemic on trafficked and exploited persons,’ Maria Grazia Giammarinaro Special Rapporteur on trafficking in persons, especially women and children (June 2020).
[2] UN Women and UNFPA East and Southern Africa Regional Offices ‘The Impact of COVID-19 on women and men (March 2021).
[3] Reliefweb ‘Treated like Furniture: Gender Based Violence and COVID-19 response in Souther African (February 2021) https://reliefweb.int/report/madagascar/treated-furniture-gender-based-violence-and-covid-19-response-southern-africa Deprose Muchena, Amnesty International’s Director for East and Southern Africa.
[4] Thoko Kaime, ‘The Convention on the Rights of the Child and the Cultural Legitimacy of Children’s Rights in Africa: Some Reflections,’ African Human Rights Law Journal (5)2 (2005), 221-238.
