Strategic Focus Area: Children’s Rights

The South African Constitution defines ‘children’ as persons below the age of 18.  An estimated one fifth of children are orphaned and at least 64.5% of children live in low-income households and are impacted by poverty. A large majority of South Africa’s children experience food insecurity and struggle to access basic education and basic services such as sanitation and water.  South African children are also exposed to high levels of violence.

The Human Rights Commission’s work on Children’s Rights
The SAHRC is mandated to monitor and influence progress by all organs of State in the realisation of the constitutional rights of children.

The work of the Children’s Rights portfolio is informed by the Constitutional mandate of the Commission, relevant national legislation, and applicable international and regional instruments.

In the exercise of its mandate, the Commission collaborates with a range of stakeholders in the child rights sector as well as with government departments, supra national bodies; civil society, and the private sector.

Complaints to the Commission most often, highlight systemic challenges relating to access to basic services, race, disability, sexual orientation, education, culture, language, citizenship, social support and birth.  Many of these complaints are about, or impact on, children.

The Commission also initiates hearings and investigations into social and political issues affecting children’s rights, such as the impact of protest related action on the right to access a basic education.  Other initiatives include a collaboration with the mining sector on children as stakeholders in sustainable development, monitoring the delivery of learning materials to schools. In addition, the Commission is in the process of accelerating its operational accessibility to children through the implementation of child-friendly complaints procedures, trained staff; and child friendly materials and infrastructure.  

Reports
In fulfilling its constitutional and statutory mandate, the Commission produces statutory reports such as the Annual Equality and the State of Human Rights Reports, which address concerns around the rights of children, provided for in section 28 of the Constitution as they inter-relate with other basic human rights.

Section 11 Committees
Section 11 Committees are advisory structures comprised of experts from different disciplines and institutions, who advise the Commission on matters and interventions relating to children’s rights.  

The committee name derives from the section of the South African Human Rights Commission Act, No. 40 of 2013, and provide for the Commission to establish advisory committees that bring together experts on specific focus areas.

A Section 11 Committee meeting with a focus on the rights of children was convened on the 11 August 2016, to consider children’s rights and the right to access a basic education.

Own-initiative Investigations
In addition to investigating complaints lodged with provincial offices, the Commission also initiates its own investigations into systemic and maters of public interest which impact the rights of children.  

The Commission convened a national investigative hearing during 13-15th June 2016 after a number of schools in Vuwani, Limpopo were closed due to protest related action. Stakeholders including government departments at national and provincial levels, trade unions, non-governmental organisations, school principals and community leaders appeared before the Commission to make submissions to the hearing.  

The Commission’s probe found that the right to a basic education is adversely affected by protest-related action, and that inadequate measures were in place to effectively protect the right to access a basic education. A number of remedial actions were recommended to government departments, calling for the promotion of a shift in understanding, so that schools are seen to belong to communities, and; that education be given the priority and attention it deserves. The Commission also emphasised the need for early warning systems, adequate resourcing, effective information and communication, coordination and planning.

Reports
In addition to the statutory reports above, the Commission has also released the following reports and publications:
•    Human Rights and Business Country Guide: South Africa (March 2015),
•    Poverty Traps and Social Exclusion Among Children in South Africa (2014),
•    SAHRC Charter on Children’s Basic Education Rights (2012)
•    South Africa’s Children: A Review of Equity and Child Rights (2011).
•    The Report Hearing on the Impact of Protest-Related Actions on the Right to Basic Education (2016).

International & Regional Conferences
The Commission attends regional and international conferences and other domestic platforms and engages with a range of stakeholders to ensure that it keeps up with national and international developments around children’s rights.  The Commission’s attendance is also intended to foster information sharing and collaboration with other institutions and the development of regional legislation and guidelines on children’s rights.

The Commission attended a session of the UN Committee on the Rights of the Child (UNCRC), in Geneva, in January 2016, and, the follow-up session in September 2016. Participation at the international level provides an additional platform through which the Commission exerts influence toward domestic reforms in the interests of children.

Advocacy and public education
The Commission regularly conducts advocacy initiatives and public education on issues pertaining to children.  These include, awareness raising through education, training, public information campaigns and outreach clinics, seminars, conferences, dialogues, roundtables, web publishing, and through the use of print and social media platforms.

Priority reform initiatives have included advocating for the establishment of an inter-party parliamentary caucus focussing on children’s rights and, for the development of a Protocol on the Elimination of Corporal Punishment in South African schools. Included in the calls for reform, have been recommendations from its Roundtable on Corporal Punishment, which supports the prohibition of corporal punishment in the home.  The Commission convened a business and child rights roundtable to discuss the role of business in advancing rights of children at the Mining Indaba.  The roundtable at which the rights of children in relation to the mining sector were discussed, was a side event at the Mining Indaba, however, in future the event will form part of the formal programme of the Mining Indaba.

At the Global Child Forum, the Commission again raised awareness of the impact of mining child rights in South Africa.

Provincial Visits
The Commission conducts provincial visits to monitor compliance with children’s rights, to raise awareness, create partnerships with relevant stakeholders, and promote protection of the rights of children. In 2016 the Commission undertook a visit to the KwaZulu-Natal Province, where the Commission met with the MEC for Basic Education, MEC for Health and the Office of the Premier and visited three schools in the province.

Domestic Legislation, International And Regional Frameworks on Children’s Rights
In the exercise of its mandate with respect to Children’s Rights and Basic Education, the Commission monitors compliance with:

• Section 28 of the South African Constitution, which identifies the needs of, and mechanisms to cater for, the interests of children. This section mirrors the provision of the Convention on the Rights of the Child around the guiding best interests of the child principle. The provision guarantees specific children’s rights, including the right to nationality from birth, parental care, basic nutrition, shelter, basic health care services, social services, protection from abuse, exploitative labour practices and from detention, among others.
• Section 29(1)(a) of the Constitution, which makes provision for the right to basic education.
• The Children’s Act as primary domestic law aimed at giving effect to children’s rights.
• The Sexual Offences Act – includes protection from a wide range of sexual offences that commonly occur against children.
• Child Justice Act – establishes a separate justice system for children in conflict with the law and;
• The Births and Death Registration Act – deals with the registration of births of children.

South Africa ratified the UN Convention on the Rights of the Child (UNCRC) on 16 June 1995. (It was the first international treaty that the new democratic government ratified.) The UNCRC became the first legally binding international convention to affirm human rights for all children. Article 3 of the UNCRC deals specifically with the principle of non-discrimination by stating that:
“1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.”
Regional Human Rights Instruments
African Charter on Human and People’s Rights (ACHPR)
Article two of the ACHPR states as follows:
“Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.”
 
African Charter on the Rights and Welfare of the Child (ACRWC)
South Africa is in addition, a signatory to the ACRWC, a regional commitment advancing the rights of children in Africa. Article 3 states the following:
“Every child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.”