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Rights of the child at the Human Rights Council

05 October 2015

By Commissioner Lindiwe Mokate, SAHRC Commissioner responsible for Children’s Rights and Basic Education

SAHRC, its role in SA society and mandate with reference to children

The SAHRC is an independent state institution established by the Constitution of the Republic of South Africa  (Constitution) and operating within the framework of the Principles Relating to the Status of National Institutions (Paris Principles) adopted by UN General Assembly Resolution 48/134 in 1993.

•    The South African Constitution provides a comprehensive and adequate framework for the national protection of children’s rights in the country.

•    However, South Africa currently does not have an independent, designated body to exclusively monitor the rights of children in the country.

•    Recognising this shortcoming in national institutional arrangements for children in the country, representations have been made to Parliament, in collaboration with UNICEF, for the establishment of a dedicated children’s caucus. If successful, such a mechanism will serve to heighten the prominence and attention to children-focused legislative frameworks in the country.

•    In the meantime, the SAHRC continues to take on the role of advancing children’s rights both at the domestic and international levels.

•    The SAHRC plays this role by advocating for policy and legislative reforms at the level of cabinet and parliament, accelerating children’s rights awareness in communities, undertaking monitoring and research initiatives to generate evidence-based data on the extent of advancement of children’s rights and investigating complaints where children’s rights are alleged to have been violated.

2.    Country specific profile on children in South Africa

•    In terms the Constitution children are defined as 'individuals under the age of 18 years'. They comprise more than a third (35.79%) of South Africa’s population in 2015 .

•    A number of challenges face South African children. Some of these include the following:

•    Statistics South Africa, the main body charged with collection and analysis of statistics in South Africa, indicates that just below one fifth (17,8%) of all children in South Africa, approximately 3,2 million children, were orphaned of which 3.2% were maternal orphans, 10.6% Paternal orphans and 4% double orphans .

•    The levels of orphans are also higher among Black African children (20%) compared to the 8,2% coloured, 5,3% Indian/Asian and 2,7% white children .

•    Between 2002 and 2012 the number of children that lived in child-headed households fluctuated between 82 000 and 143 000 .

•    Children are disproportionately affected by poverty. While slightly more than (52,7%) of all South Africans lived in low-income households, nearly two-thirds (64,5%) of children resided in such households . (compared with adult poverty – using the upper poverty line, which is at 45.1% ). Child poverty could have been worse if it had not been for the extraordinary expansion of social grants in the last 15 years.

•    Two provinces (Limpopo and Eastern Cape) that had homelands created in the 1970s during apartheid currently record the highest percentages of children who live in poor households.

•    The percentage of poor children is much lower in the relatively prosperous and more urbanised provinces such as Western Cape (43,2%) and Gauteng (43,3%).

•    South Africa provides child support grants for upkeep of children who come from impoverished backgrounds. Children receiving the Child Support Grant increased from 7,863,841 children in 2006/2007 to 11,703,165  (2014/15).

•    The above indicate the large numbers of “needy” children in the country as well as improvement of coverage of eligible children. The coverage is likely to increase as efforts are underway to ensure extended coverage, especially of children with low uptake (especially those under two years of age).

•    Children with severe disabilities receiving the Care Dependency Grant increased from 98,631 children in 2006/2007 to 126,777  in 2014/15 .

•    In South Africa there is both public healthcare and private health care. The latter involves medical aid programmes and children are less likely to access medical aid than the rest of the population .

•    The latest data shows that Infant mortality rate (IMR) stands at 34.4 infants per 1,000 live births  and the under 5 mortality rate (U5MR) stands at 45.1 young children per 1,000 live births .
•    It is concerning that 1 in 4 children under 5 is stunted .

•    In South Africa about 7.2% of infants are exclusively breast fed during the first 6 months of live.

•    In 2013/14 mother-to-child-transmission of HIV is at its lowest ever, i.e. 2.2.% (was 8.4% in 2008/09) .

•    In 2013 the Immunisation rate was 84% (the same as 2012 and the lowest since 2007) .

•    In 2014 159,726 children were on ART, but enrolment declined (which is stated to be linked to the decline in MTCT) .

•    The top five causes of childhood deaths in South Africa are HIV, tuberculosis (TB), pneumonia, diarrhoeal diseases and malnutrition.

•    Because of its racial history, access to health care continues to depend on racial background. Different health care facilities are used by different population groups, with 84,8% of black African and 66,1% of coloured child-inclusive households usually went to a public clinic or hospital first, 34,2% of Indian/Asian- and only 12,1% of white child-inclusive households did the same .

•    The percentage of children that lived in households that experienced hunger generally exceeded the percentage of the general population that lived with hunger. In 2002 34% of children lived in households that experience hunger compared to 15.3% of children in 2012. This is higher than the percentage for the total population, which stands at 13.1% .

•    Female-headed households that contained children were more likely to report hunger, i.e. 16% compared to 10.2% of male-headed households and 11.2% of child-headed household .

•    More than two-thirds (71,5%) of child-headed households lived in formal houses as opposed to informal structures and other less adequate housing.

•    The percentage of children that lived in traditional dwellings declined from 18.3% in 2002 to 15% in 2012. More than three-quarters (75,8%) of children resided in formal housing in 2012, up from 70% in 2002. The decline in children living in informal housing are relatively slow, being 9% in 2012 compared to 11.2% in 2002 .

•    In 2012 63.1% children birth to 17 years lived in dwellings with access to piped water in the dwelling or yard, which is lower than the population average of 69.4% .

•    In 2012 70.6% children birth to 17 years lived in dwellings with a flush toilet, which is lower than the population average of 75.2% . In terms of access to sanitation, children were affected by the challenges related to lack of access to improved sanitation.

•    There has been a commendable and steady increase (to 85.8%) in the number of children living in households that have electricity. Ideally all children should live in households that have electricity as electricity plays a vital role in children’s education.

•    The number of children who have access to the internet is still very low and studies in this access only started in 2005. In 2012 7% children birth to 17 years lived in dwellings with access to the internet, which is lower than the population average of 9.2% .

•    Good education starts with quality and accessible early childhood development. In 2014 1 in 3 children (33.8%) birth to 4 attended an ECD centre and 1 in 6 children (16%) birth to 4 receiving day care from the child minder .  Furthermore, 9 in 10 (90.8%) 5 and 6 year old children attended Grade R or above in 2013 .

•    The Gender parity index is 0.989 overall (0.945 for primary school and 1.060 for secondary school) .

•    In 2013 99.3% of 7 to 13-year-old children attended educational institutions in the country. The participation in this age group has remained stable since 2002 .

•    Participation in compulsory education (7 to 15 year olds) was 98.8%, which also remained relative stable since 2002 .

•    These figures decline within the secondary school attendance and only 90.3% of 14 to 18-year-old children attended educational institutions in 2013, with only 86.1% of 16 to 18-year-old children attending educational institutions in 2013 (non-compulsory schooling age). Of these 16 to 18 year olds 87.4% were boys and 84.9% were girls’. .

•    According to the Department of Basic Education the  number of 7 to 18-year-old children out of school decreased from over 800 000 (7%) in 2002 to approximately 540 000 (almost 5%) in 2013. It is also reported that in 2013 25 949 children with disabilities aged 7 to 15 were out of school. Boys represented 12.6% and girls 15.1% of 16 to 18-year-old children not attending educational institutions in 2013. It also has a strong racial dimension with 12.5% African/Black, 25.7% coloured, 23.7% Indian/Asian and 11.8% white 16 to 18-year-old children not attending educational institution .

•    The reasons provided for children aged 7–17 years who were not attending any educational institution in 2012 included being too old (3,4%), has completed school/education (5,1%), transport difficulties (1%), no money for fees (18,8%), working, do not have time (2,6%), family commitments (9,6%), education not useful (12,7%), poor academic performance (14,1%), illness (7,8%), disability (9,1%), pregnancy (4,9%) and other non-specified (10%) .

•    Some of the challenges that continue to manifest include children having to travel long distances to school, sometimes taking more than half an hour to get to school. In 2012 13.9% of children 7 to 13 years and  20.4% of children 14 to 17 years lives more than 30 minutes travel away from school . In 2014 learners indicated that that a lack of books (3,7%), high fees (3,6%), large classes (3,3%), bad facilities (3,0%), lack of teachers (2,2%), poor teaching (1,8%), teachers absent (1,7%), and teachers striking (0,9) are some of the main problems they experience in school .

There are also challenges such as access to sanitation facilities at school that affected children’s attendance.
•    In 2013, 83% of learners in Grades 1-9 had received their workbooks .
•    While corporal punishment is outlawed, 12.4% of children experienced corporal punishment by teachers in school .

•    The Leaner educator ratio in 2014 was 31.0

•    In 2014 532,860 children wrote matric of which 403,874 passed (75.8%)

•    Violence is widespread in South African society to the extent that the country has been described as having the highest prevalence of violence and violence-related injury in the world among countries where this is measured.  South Africa also ranks extremely high internationally for reported incidents of sexual violence.  It is therefore not surprising that violence against children is common.

•    Up to 30 per cent of child homicides in South Africa are perpetrated by the child’s mother compared to 5.8 per cent by the child’s father. The majority (73.8 per cent) of all children killed under the age of 5 were killed in the context of abuse and neglect . In 2012, of the 1,018 overall cases of child homicide, 386 involved children from 15 to 17 years,

•    In 2013/14, the South African Police Service recorded 2,630 cases of ill treatment and neglect against children.

•    There is widespread acceptance of physical abuse of children within homes and schools, and many children are subjected to corporal punishment. A national survey found that more than half (57%) of parents with children under 18 reported smacking their children at some point and 33% reported using a belt or object to beat their children.
•    In 2013 12% of learners had been threatened with violence by someone at school, over 6% of learners had been assaulted, and almost 5% had been sexually assaulted or raped.

•    Sexual violence against children is prevalent. Cases of child sexual abuse constitute almost half of all reported sexual abuse cases,  with 61% of the affected children under 15 years of age and 29 % under 11.

•    Most violence happens in the domestic sphere and is perpetrated by persons in authority over the child. Violence against children is either not reported or is under-reported. Children are often not able to report because they don’t know their rights or they fear being blamed.

3.    Work done by HRC

•    The Universal Periodic Review has helped in the promotion and protection of human rights in South Africa, through its monitoring function.  This function is useful in terms of issue identification, generation of evidence-based data, recommendations for enhancement of framework protections and high-level engagements with policy-makers.

•    By establishing a number of mandates such as:

1)    Special Rapporteur on the sale of children, child prostitution and child pornography
2)    Special Rapporteur on trafficking in persons especially women and children,

that deal with children’s rights, the Human Rights Council has recognised that even though there were institutions such as the Committee on the Rights of the Child, such committees were in themselves not sufficient to handle the myriad issues affecting children.

•    The importance that states place on the advice from the HRC can be seen in efforts of South African government to try and ensure better protection of children. For example, South Africa has taken steps to reform immigration regulation to require better identification of children while travelling (even though met with some resistance) through the borders. These measures were in response to the work of the HRC’s work on the protection of children from being trafficked.

4.    Adequacy of HRC mechanisms eg UPR and special mandates to resolve children’s rights issues

•    The HRC has, through the UPR system and the mandate of the Special Rapporteur, has served to strengthen the protection of children’s rights in South Africa.

•     An  analysis of South Africa’s country report under the UPR issues indicates that issues of child grants, education and child headed household have received some attention.

•    Further, from the work of the Special Rapporteur, human rights issues of trafficking and child pornography affecting children in South Africa have been addressed by the HRC.

•    However, some of the sub-region specific human rights issues that affect children in South Africa have not been addressed.

•    These include the issue of violence against children, orphans and child-headed households, hunger and food insecurity which are endemic human rights issue in South Africa.

•    That said, it is important to acknowledge the work of other international human rights mechanisms and international development agencies that buttresses and supplements that of the Council.  These include the work of the CRC and UNICEF in advancing the protection of the rights of children in South Africa.

5.    SAHRC position on proposal of biennial or triennial review

•    The SAHRC does not support the proposal of biennial or tri-annual review of state reports.

•    The reasons why SAHRC will not support it is:

i.    The prominence and visibility of children’s issues on HRC agenda may be diminished;
ii.    The sustainability and momentum of debate on children’s rights may be lost;
iii.    The level of detail given to children’s issues in interim reports may be reduced;
iv.    The levels of responsiveness of HRC to burning and fast evolving issues will be reduced;
v.    The ability of the HRC to monitor its resolutions due to long periods between reporting will be placed under pressure.

6.    Proposals

The South African Human Rights Commission does not recommend that the thematic area of children’s rights be discussed every two or three years for the following reasons:
•    The vulnerability of children and the dynamism of children’s rights make it critical that the Council in addition to other bodies such as the Committee on the Rights of the Child, to ensure that children’s rights remain a standing agenda item for the Council.

•    Examples presented above show that despite the adoption of Council resolutions relating to children’s rights, implementation or the realisation of such resolutions remains a challenge for many countries and on-going debate and monitoring are essential

•    The Council, as one of the main bodies promoting and monitoring human rights needs to continue to exercise its position to ensure that issues relating children’s rights remain at the forefront of the UN agenda;

•    Ongoing monitoring of the implementation and realisation of existing resolutions including those on children must continue with short reporting periods to ensure that the rights of the child are fulfilled, two to three year intervals are quite long;

•    Resolutions taken by the Council still have gaps that must be filled and such resolutions will not be swiftly addressed if not given the appropriate platform and time for debate; and

•    The Council should use all its available mechanisms, including the UPR mechanism to complement the mechanisms under the relevant treaties to ensure the effective protection of children’s rights.

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