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WELFARE PORTFOLIO COMMITTEE; SOCIAL SERVICES SELECT COMMITTEE
17 November 1999
RATIFICATION OF THE AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE AFRICAN CHILD.
1) Explanatory memo: Ratification of the African Charter on the Rights and Welfare of the Child (appended to minutes)
2) Letter from Minister for Welfare & Population Development (appended to minutes)
3) African Charter on the Rights and Welfare of the African Child
4) List of countries which have ratified African Charter
Present: Chair : Mr E Saloojee: 17 members of the Portfolio Committee + 2 apologies; Members of the Select Committee; 3 departmental officials, including Dr E Parker and Mr A Theron; 3 officials from the Presidency's National Plan of Action for Children.
The Portfolio Committee unanimously recommended the ratification of the African Charter on the Rights and Welfare of the African Child by Parliament.
Mr A Theron, Chief Director: Developmental Social Welfare Services, explained that there was close correlation between the Charter, the South African Constitution and the UN Convention on the Rights of the Child. The major variations are where the African Charter emphasises protection against harmful social and cultural practices in Article 21 and deals with children of imprisoned mothers in Article 30. It also highlights the responsibility of the child in Article 31. The state law advisors have confirmed there is no conflict with the Constitution.
It was accepted that no changes could be made to the document which had been worked on since 1979, without it going back to all 53 OAU members. It had to be ratified as it stands, although comments would be recorded by the department and forwarded to the OAU for later amendment when the opportunity arises.
The Charter was discussed, article by article.
Comments from the discussion:
- The briefing was very much last minute
- Article 26 : the mention of Apartheid is obsolete
- The Charter would not necessitate new or amended legislation as the Child Care Act is still in the process of being amended and would comply with the Charter
- E Gandhi noted that the points of variance were not serious
- The New National Party stated that they found only Article 26 to be problematic, which would not prevent them supporting ratification.
- In answer to a query related to Article 1 (have the other ratifying countries got a democratic Bill of Rights?), the department supplied the list of countries which had ratified the Charter.
- In answer to a query as to why other countries have not ratified the Charter, the department surmised that it was possibly because they could not comply with the Charter.
- With regard to Article 13 : "Children with disabilities" was preferred to "Handicapped children"
- With regard to Article 15, legislation on child labour is needed all over Africa
- Article 25 includes abandoned children
- "Family" needs to be defined broadly
- South africa's ratification will make the Charter operational and allow the OAU to bring pressure to bear on all its members on issues such as ending child labour
- Once the Charter is ratified by the OAU on 29 November, a committee will be established which can reconsider the Charter in detail in terms of Article 48 and take all comments into account
- The obligations of ratifiers of the Charter are similar to those of signatories to the UN Convention on the Rights of the Child
- The NPA (National Plan of Action), under the aegis of the Presidency, will report biennially to the UN and OAU on our increasing compliance with the documents
- The Portfolio Committee requested regular briefings in this regard
- The Charter was initiated by UNICEF and other NGOs and they should continue to be involved.
The Portfolio Committee on Welfare, Population and Development unanimously recommended the ratification of the African Charter on the Rights and Welfare of the African Child by Parliament.
Explanatory Memorandum on Ratification of the African Charter on the Rights and Welfare of the Child
On 29 September 1999 Cabinet approved that the submission of the Organisation of African Unity: African Charter on the Rights and WelFare of the Child (the Charter), be submitted to Parliament for ratification.
To date 27 countries of the 53 Organisation of African Unity (OAU) Member States, have signed the Charter while 14 have ratified it. For the Charter to come into effect, it must be ratified by at least I5 Member States. Cabinet has instructed the core departments to prepare documentation for the ratification of the Charter. The core departments are Welfare, Health, Justice, Education and Foreign Affairs.
In terms of the Charter, Member States shall recognise the rights, freedoms and duties contained therein and take the necessary steps to give effect to the provisions
The Charter comprises amongst others, the following: the definition of a child, articles regarding nondiscrimination, survival and development, freedom of expression and association religion, protection of privacy, education, leisure, disability, health, sexual exploitation, drug abuse, together with the sale, trafficking and abduction of children.
In terms of the Constitution of the Republic of South Africa every child shall have the right to security, basic nutrition, basic health and social services and to be protected against abuse and exploitation.
The Government has ratified the United Nations Convention on the Rights of the Child (the Convention). The main goals of the Convention make provision for the survival development and protection of children. The Convention has been operationalised in the National Plan of Action for Children (the NPA), in South Africa. The NPA Steering Committee (the Committee) has been constituted to oversee the implementation of the plan. The Committee comprises representation from both government and NGO sector and is chaired by the Office of the President. The following departments are represented Health, Welfare, Education, Justice, Foreign Affairs, Correctional Services, Water Affairs and Forestry and Labour.
The National Children's Rights Committee, Human Rights Committee and UNICEF are also members. Provincial plans of action have been established for ensuring the implementation of the NPA.
The OAU Heads of State adopted the African Charter due to factors which affects children, such as socio-economic, cultural, traditional and developmental circumstances, natural disasters, armed conflicts, exploitation and hunger.
The following is a summary of key articles contained in the Charter.
The rights and freedom of children are recognised. Provision is made for survival, protection and development of the child. Freedom of thought, conscience and religion is recognised. The child has the right to education, health services and recreation. The disabled child has the right of protection.
The child should be protected from economic exploitation, child abuse and from substance abuse. The family is considered as the natural unit and basis of society. State Parties must take measures to ensure that no child shall take part in hostilities. Every child shall have responsibilities towards his or her family and society.
The Chief State Law Adviser has scrutinised the Charter and is of the opinion that the provisions thereof appear not be in conflict with the domestic law of South Africa. The Office of the Chief State Law Adviser, International Law, is of the opinion that there are no international legal constraints for South Africa to ratify the Charter.
All the core departments agree that South Africa comply with most of the articles or are in the position to fulfil its obligations over time.
The NPA Steering Committee, which is responsible for managing the Convention greed to be assigned the charge of monitoring the implementation of the Charter.
5. CONSTITUTIONAL IMPLICATIONS
As ratification is required, the Charter will be binding on the Republic in terms of the Constitution only after it has been approved in both the National Assembly and the National Council of Provinces.
It is recommended that:
5.1South Africa ratify the African Charter on the Rights and Welfare of the Child. And
5.2An Instrument of Accession signed by the Minister of Foreign Affairs, be delivered to the Organisation of African Unity.
Letter from Minister
RATIFICATION OF THE AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD
It will be appreciated if you could consider the explanatory memorandum before the adjournment of the current session of Parliament. For the Charter to come into effect it must be ratified by at least 15 member States. South Africa will be the fifteenth Member State. Cabinet has instructed that the Charter be ratified as a matter of urgency.
The submission seeks approval for the distribution of the Explanatory Memorandum on Ratification of the African Charter on the Rights and Welfare of the Child for tabling in Parliament.
Cabinet has approved the submission of the Charter to Parliament for ratification and letters are attached to the Leader of Government Business, and the Chairs of the Portfolio and Select Committees.
Recommendation: That the submission is approved and the letters signed
Dr ZST SKWEYIYA (MP)
MINISTER FOR WELFARE, POPULATION AND DEVELOPMENT