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«The Role of The African Court on Human And Peoples’ Rights in the Protection and Promotion of Human Rights in Africa: The Case Against Harmful ...»

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“In all actions concerning the child undertaken by any person or authority, the best interests of the child shall be the primary consideration.” Article 20 vests parents; not the state; with the primary responsibility for the upbringing

and development of the child and goes further to lay down the criterion that:

“... [Parents] shall have the duty to ensure that the best interests of the child are their basic concern at all times.” This, in my opinion creates avenue for a disparity between the formal rights of children as per the Constitutions and statutory laws of their countries and the customary laws that apply to children living in rural communities. The African Charter in its entirety calls upon State Parties to bring their laws in line with the provisions of the Charter, however, it places the responsibility to act in the best interest of the child, primarily in the hands of parents.

Thoko Kaime writes in this regard: “... it is not the child’s views but rather the child’s best interest that is of paramount consideration. In most cases, what is in the child’s best interest will not be decided by the child herself, but rather by others who are ‘better placed’ to make that decision45.

If a human being is granted rights by the very fact that they are a human being; shouldn’t the rights of the child befall to them by virtue of the fact that they are a child? But alas, if this is the case, what then of the child’s capacity to exercise their rights? If a child does not enjoy locus standi in iudicio, who then should act on behalf of the child, where what parents consider being the best interest of the child is not what that child sees as being in their best interest?

The concepts of minor and major relate to the legal capacity of a person. Therefore, a person who is a major is legally an adult and has full legal capacity i.e. the people who have reached the age of majority can enter into contracts, bring court cases, and perform other Kaime, T. 2009. The African Charter on the Rights and Welfare of the Child: A Socio-legal Perspective.

Pretoria: University Law Press. P.63.

legal acts independently, whereas a minor can only do this with assistance from his or her parent or legal guardian.

In Namibia, the age of majority is currently governed by the Age of Majority Act No. 57 of 1972 in terms of which both males and females attain the age of majority when they turn 21 years of age. Whilst South Africa’s Children’s Act 46 repealed the Age of Majority Act 47 in South Africa with effect from 1 July 2007, and provided that “[a] child, whether male or female, becomes a major upon reaching the age of 18 years” Article 2 in the African Children’s Charter also defines a child as a person below age 18. As with the UN Convention on the Rights of the Child, this definition of child is only for the purposes of the Charter. It has been noted, however, that the African Charter’s definition of child is “stronger” than that in the UN Convention, because it does not allow for any exceptions where national law sets a lower age of majority However, a classicalist interpretation of the age of majority would lead one to the conclusion that the possession of rights is predicated upon the individual’s capacity for selfdetermination, that is, the ability to choose to exercise or waive the right or rights in question.

Jeremy Bentham, a proponent of this notion famously stated:

“Natural rights- of which human rights forms a part- is simple nonsense: natural and imprescriptible rights, rhetorical nonsense-nonsense upon stilts48” According to this philosophy on the nature of rights, the extension of rights to different groups in society, such as women and minorities, was effectively de jure recognition of their de facto capacity to exercise rights.

However, Jeremy Bentham was a staunch positivist, who at times ridiculed the notion of natural rights within the sphere of law, often saying that to talk of nature, natural rights and natural justice and injustice proves only two things; the heat of passion and the darkness of understanding49. Bentham advocated that law is based on utility which constituted the greatest happiness of the greatest number and that this was the measure of right and wrong.

No. 38 of 2005.

66 No. 57 of 1972.

Bentham, J. ‘Anarchical fallacies.’ In Bowring, J. (Ed) The works of Jeremy Bentham (1838-1843). See also Schofield, P. Et al. (Eds). 2002. Rights, representation and reform- Nonsense upon stilts and other writings on the French Revolution. P. 330.

Roeder, C. & Moelendorf, D. 2007. Jurisprudence. Cape Town: Juta & Co. p. 66 Ibid.

If one were to conform to the positivist fondness of Jeremy Bentham, the discussion could be diverted to the impression that the inability to use or exercise one’s rights, means that you do not have them at all, or even further that the concept of what is right or wrong in law is centred around what is right or wrong for the majority within a population. Needless to say, this an incorrect view to have. Women and children are the majority, demographically, however, they still suffers the most discrimination and oppression, hence the need to bring their rights in line with that of their male counter parts, and in certain instances grant them more rights and protection. Therefore it is advisable to reject Bentham’s view that natural rights; as the origin of human rights; is nonsense.





Kaime51 points out that making capacity a prerequisite for the exercise of human rights only results in effectively excluding the very groups whom human rights were supposed to protect such as women and children. Elaborating this perspective in relation to children Federle writes:52 “Having a right means having power to command respect, to make claims and to have them heard. But if having a right is contingent upon some characteristic, like capacity, then holding that rights becomes exclusive and exclusionary; thus only claims made by a particular group of (competent) beings will be recognised...Children, however, have been unable to redefine themselves as competent beings; thus powerful elites decide which, if any, of the claims made by children they will recognise.” This is the essence of the argument on whether children can protect themselves from harmful cultural practices. The answer quite evidently is: No.

Parents are vested with the primary responsibility to act in the best interest of the child.

According to the General Comment No. 17 on the Rights of the Child by the Human Rights

Committee on article 24 of the International Covenant on Civil and Political Rights:

“The responsibility for guaranteeing children the necessary protection lies with the family, society and state. Hence it is primarily incumbent on the family, and particularly the parent of a minor to create conditions to promote the harmonious development of the child’s

personality. It is only where the family:

Seriously fails in their duties; -

Kaime, T. 2009. The African Charter on the Rights and Welfare of the Child: A Socio-legal Perspective.

Pretoria: University Law Press. P.61.

Federle, K. 1994. Rights Flow Downhill. International Journal of Children’s Rights. 343-344. In Kaime, T. 2009.

The African Charter on the Rights and Welfare of the Child: A Socio-legal Perspective. Pretoria: University Law Press. P.61 Ill treats or neglects the child that the state should intervene, restricting parental authority.” The State as the upper guardian can only intervene in instances where the above-mentioned elements have occurred. The question of whether the state has enough resources to probe and investigate whether cultural practices provide avenue for a derelict of the parental duties by parents or whether it creates an opportunity for child neglect remains in question. It is in this vein that States are more prone to instead of usurping parental authority over children;

to engage in and implement awareness raining campaigns, education programmes and legislation aimed at changing attitudes and addressing gender roles and stereotypes that contribute to harmful practices53.

Furthermore, States have incorporated the rights of children within their constitutional frameworks. For example, Article 24 of the Constitution of Burkina Faso provides for the equal protection of children. The Constitution of Burundi in article 44 guarantees the health, well-being and security of the child. Article 36 of the Ethiopian Constitution protects the rights of the child that have been enshrined in the Convention on the Rights of the Child, including the right to life, name, and nationality; and protection from exploitation and abuse54.

The Namibian Constitution is silent on the position of children in terms of cultural practices, however, the right to culture is maintained under article 15 and in terms of article 66, and customary law shall only be valid to the extent that it does not conflict with the Constitution or any other legislation. This article read together with articles 655, 756, 857 and 10(2)58 leads one to construe that any cultural practice that infringes on the right to life, liberty, human dignity or which discriminates against any citizen shall be null and void.

Given that Namibia recognises customary law as being on the same legal traction as common law, it would have been well advised to protect the interests of children in terms of cultural practices in its founding Constitution, as is the case in Burkina Faso, Burundi and Ethiopia. The need to recognise that children constitute the majority, yet the most vulnerable group within the Namibian society should have been an issue addressed by the Constitution.

General Comment No. 11 (2009) Para 22. Cited in International Labour Organisation and African Commission on Human and Peoples’ Rights. 2009. Overview Report of the Research Project by the International Labour Organisation and the African Commission on Human and Peoples’ Rights on the constitutional and legislative protection of the Rights of Indigenous Peoples in 24 African Countries. South Africa.

Committee on the Rights of the Child, Ethiopia UN Doc CRC/C/129/Add.8.paras 21, 31. 28 October 2005.

Protection of Life Protection of Liberty Protection of Human Dignity Non-discrimination I presume this is why there was such haste on the part of the Namibian executive to ratify the Convention on the Right of the Child59.

However, more African States have adopted child specific legislation in order to further protect the right of African children; states such as Kenya have adopted the Children Act 60 which domesticates the United Nations Convention on the rights of the child and the African Charter on the Rights and Welfare of the Child.

Hence, one can deduce that the relationship between the rights of children to culture and their rights to be protected against harmful cultural practices is largely dependent on the role of the parent in ensuring that the best interest of the child is maintained. However, the demarcation of rights-holders should not be restricted to those who can lay claim to or waive them, but rather one needs to consider that a person has rights where his or her interests are protected in certain ways by the imposition of normative constraints on the acts and activities of other people with respect to the subject matter constituting the interest61.

Thus, children, just like adults, have interests that require protecting, so denying them the moral and legal rights until they have acquired the capacity to reach reasoned decisions is philosophically and legally wrong62.

3.2. Polygamous Marriages versus the Rights of Women Gender equality, the promotion of women’s rights and non-discrimination Historically, polygamy has been practised as polygyny, which is the practice of one man having more than one wife; in other cultures it is practised as polyandry, i.e. one woman having more than one husband; less commonly, polygamy can be practised as group marriage by one person who has many wives as well as many husbands at the same time 63.

Polygyny is practised in a traditional sense in many Middle Eastern and African cultures and countries today, including Namibia. It appears more often in highly patriarchal societies. As cultures differ, so do their customs and practices all over the world64.

The African Women’s Protocol is the legal framework for women in African to use in the exercise of their rights. However, the Women’s Protocol is complementary to the African Namibia signed the Convention on 29th September 1990, six months after attaining independence.

No. 8 of 2001 MacCormick, N. ‘Children’s Rights: A test for theories of rights.’ In MacCormick, D. (Ed).1982. Legal Rights and Social Democracy: Essays in legal and political philosophy. 152 154.

Campbell, T. The Rights of the Minor. In Alston, P. Et al. (Eds) 1992. Children, rights and the law.p.5 Ambunda, L. & De Klerk, S. Women and Custom: A research perspective. In Ruppel, O. 2008. Women and Custom in Namibia: Cultural Practice versus Gender Equality. Windhoek: Macmillan Publishers. 69 Ibid.

Charter. Article 17 of the African Charter provides that it is the duty of the State to protect and promote the moral and traditional values recognized by the community. Hence, not only is the right to engage in cultural or traditional practices granted to the African citizen, an obligation is placed on the state to protect and promote traditional values within communities. This places a responsibility on the state to preserve culture as oppose to obliterating it.

At an international level, article 16 of the Universal Declaration of Human Rights and Article 23 of the International Covenant on Civil and Political Rights state that women should have consented to the marriage and not suffer any prejudice. If this is the case, such a family unit shall receive full protection from the State 65. It suffices then to observe that where a woman that has reached the age of majority, consents to marriage, that marriage is binding, and should enjoy the full protection of this state. Marriages of this nature are not what are in dispute in this dissertation.



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