1. Introduction
The African Charter on the Rights and Welfare of the Child (African Children’s Charter)[1] has an inbuilt communications procedure with which states recognise the competence of the African Committee of Experts on the Rights and Welfare of the Child (African Children’s Committee) to consider and hand down recommendations. It is interesting to note that Article 44 of the African Children’s Charter allows individuals, organisations, and states to submit communications. At its core, the article qualifies states to include both ‘member states’ and ‘states parties’ to submit communications as well. This contribution unpacks the unused context of bringing communications by states against states to the Committee.
2. The place of the communications’ procedure
While this contribution does not intend to give a detailed analysis of the communication’s procedure, it at a bare minimum offers an understanding of the normative context of article 44. To date, the African Children’s Committee has received twenty-three communications and seven have been finalised to their logical conclusion.[2] Five communications have been declared inadmissible, seven communications are pending and another seven have been concluded.[3] The completed communications are against seven countries; thus, Tanzania,[4] Mauritania,[5] Cameroon,[6] Sudan,[7] Senegal,[8] Kenya,[9] and Uganda.[10] The common denominator in all these communications is the fact that they have all been brought by individual persons and organisations. It is argued that the drafters perceived that the communications would be received from a wide spectrum beyond the individual and organisations to states. The critical question is whether this is either inclusive or exclusive to any of these three options: states that are members of the African Union, members of the United Nations, or party to the African Children’s Charter.
From a normative perspective, the African Children’s Charter provides for the communication’s procedure.[11] It is argued that from a simplistic perspective, the African Children’s Charter permits the African Children’s Committee to receive a communication from any person, group or non-governmental organization recognized by the Organization of African Unity (now Constitutive Act of the African Union).[12] Subsequent reading of the article provides that the communication may also be received from ‘… a Member State, or the United Nations relating to any matter covered by this Charter’. [13] Some interpretative challenges are evident in this portion of the provision.
2.1 Member states
The overarching question is whether the term ‘member state’ is synonymous with ‘state party’. The African Children’s Charter makes provision for both terms. A contextual evaluation of the use of these terms is important in understanding the interpretative challenges. The term member state is used 6 times in the African Children’s Charter. The first time it appears, it contextually refers to the member states of the African Union and not states parties to the African Children’s Charter. As indicated above, the first preambular paragraph of the African Children’s Charter recognises this position in the text ‘[t]he African Member States of the Organization of African Unity, [and] parties to the present Charter entitled African Charter on the Rights and Welfare of the Child’.[14] It is also used to refer to the nature of obligations under the African Children’s Charter,[15] the liberty to submit reports,[16] sign and ratify the charter.[17] It is discernible that the term ‘member state’ refers to the states in the African Union that have not necessarily ratified the Charter. Consequently, these states may in their positioning as members of the African Union bring communications against other states under article 44.
2.2 State Party
The term ‘state party’, refers to states that have ratified the African Children’s Charter and is used 13 times in the African Children’s Charter. From a contextual perspective, it relates to state party obligations,[18] and obligations concerning parental care and protection.[19] Other perspectives include obligations to nominate candidates to the African Children’s Committee,[20] requests to the African Children’s Committee to interpret the African Children’s Charter,[21] the obligation to submit state reports,[22] and the recognition of the authority of the African Children’s Committee to investigate activities of the state party,[23] and to request amendments of the African Children’s Charter.[24] As a consequence, the term ‘state party’ refers to the states in the African Union that have ratified the African Children’s Charter. These states may also in their positioning as member states to the African union as an indirect consequence bring communications against other states under article 44. The common denominator in the use of these two sets of terms is the mandatory nature of obligations on both the member states of the African Union and the states parties to the African Children’s Charter.
2.3 United Nations or Member States of the United Nations
As indicated earlier, the African Children’s Committee may receive a communication from ‘…the United Nations relating to any matter covered by this Charter’. [25] Thequestion is whether the communication may be brought by the United Nations as an entity distinct from the member states or agencies that comprise it, or one of the states as a member of the United Nations. The latter interpretation is preferred for various reasons. First, if one is to use the ejusdem generis rule, the receipt of a communication from a member state [of the African Union] by implication extends to member states of the United Nations. Secondly, the absurdity arises when the United Nations as an entity attempts to bring a communication before the African Children’s Committee especially where it has similar monitoring mechanisms like the United Nations Committee on the Rights of the Child. If anything, most of the members states of the United Nations have also ratified the African Children’s Charter.
3. Conclusion
Article 44 of the African Children’s Charter’s inbuilt communications procedure deserves testing regarding communications by states against states. The caveat remains the fact that states have to build the resilience to do this. The lack of such communications cannot be posited on the African Children’s Committee. In the interim, it is argued that despite the expanse of who may bring communications, the African Children’s Committee has not received any communications from member states, states parties or the United Nations. In light of this limited engagement of the communications’ procedure, it is important like-minded individuals and entities disseminate the ability of states to bring communications against states to the African Children’s Committee.
[1] African Charter on the Rights and Welfare of the Child (African Children’s Charter), adopted July 1990 (entered into force 29 November 1999) OAU Doc.CAB/LEG/24.9/49 (1990), (African Children’s Charter), art 44(1).
[2] See results at https://www.acerwc.africa/en/communications/table?title=&field_member_state_target_id=All&field_decision_target_id=479 (accessed 19 December 2023).
[3] See https://www.acerwc.africa/en/communications/table (accessed 19 July 2024).
[4] Legal And Human Rights Centre And Centre For Reproductive Rights (On Behalf Of Tanzanian Girls) v The United Republic Of Tanzania, 0012/Com/001/2019 (Tanzania Communication).
[5] Minority Rights Group International And SOS-Esclaves On Behalf Of Said Ould Salem And Yarg Ould Salem v The Republic Of Mauritania, 007/Com/003/2015 (Mauritania Communication).
[6] The Institute For Human Right And Development In Africa And Finders Group Initiative On Behalf Of TFA (A Minor) v The Government Of Republic Of Cameroon No. 006/Com/002/2015 (Cameroon Communication).
[7] African Centre Of Justice And Peace Studies (ACJPS) And People’s Legal Aid Centre (PLACE) v The Government Of Republic Of Sudan No. 005/Com/001/2015 (Sudan Communication).
[8] The Centre For Human Rights (University Of Pretoria) And La Rencontre Africaine Pour La Defense Des Droits De L’homme (Senegal) v The Government Of Senegal No 003/Com/001/2012 (Senegal Communication).
[9] Institute For Human Rights And Development In Africa (IHRDA) And Open Society Justice Initiative On Behalf Of Children Of Nubian Descent In Kenya v The Government Of Kenya No 002/Com/002/2009 (The Nubian communication).
[10] Michelo Hunsungule And Others (On Behalf Of Children In Northern Uganda) v The Government Of Uganda No. 001/Com/001/2005 (Uganda Communication)
[11] African Children’s Charter (n 1 above), art 44(1).
[12] African Children’s Charter (n 1 above), art 44(1).
[13] African Children’s Charter (n 1 above), line 1 of the first preambular paragraph.
[14] African Children’s Charter (n 1 above), as above.
[15] African Children’s Charter (n 1 above), art 1(1).
[16] African Children’s Charter (n 1 above), art 44(1).
[17] African Children’s Charter (n 1 above), art 47(1) & (2).
[18] African Children’s Charter (n 1 above), art 1(2).
[19] African Children’s Charter (n 1 above), art 19(3)&(4).
[20] African Children’s Charter (n 1 above), art 35.
[21] African Children’s Charter (n 1 above), art 42(iii)(c).
[22] African Children’s Charter (n 1 above), art 43(1)&(3).
[23] African Children’s Charter (n 1 above), art 45(1).
[24] African Children’s Charter (n 1 above), art 48.
[25] African Children’s Charter (n 1 above), line 1 of the first preambular paragraph.
