The Phyto-Sanitary Convention for Africa is another important framework that contributes to the conservation of biodiversity and natural resources. It was adopted in 1967, making it one of the earliest legislations on environmental and agricultural protection.<fnref n="103" /> Plant pests have become increasingly adept at migrating across borders, a phenomenon that is accelerated by climate change, heightened international travel and expanding trade networks.<fnref n="104" /> These pests quickly adapt to new environments, posing significant challenges to agricultural systems.<fnref n="105" /> As a result, millions of people are pushed into food insecurity when these pests damage vital crops and disrupt wild vegetation.<fnref n="106" /> This not only threatens food supplies but also negatively impacts biodiversity and the livelihoods of both commercial and small-holder farmers, many of whom rely on healthy crops for their income and sustenance.<fnref n="107" />

Plant pests can be controlled once they become established, but doing so is difficult and costly. Proactive alertness and mitigation are essential. Making certain improvements to the African agricultural sector, such as strong pest early warning and surveillance systems, increasing the technical proficiency of phytosanitary staff, and improving the efficiency of phytosanitary infrastructure, will increase crop yields, foster socio-economic growth, and facilitate the sustainable trade of agricultural products both inside and outside Africa. The Phyto-Sanitary Convention for Africa provides a timely opportunity to support the attainment of these goals. While it is possible to manage and control plant pests once they establish themselves, the process can be exceptionally complicated and costly. Therefore, a proactive approach to pest management is critical. The Convention aims to prevent the spread of diseases, insect pests and other threats to plants throughout all of Africa; to get rid of or manage these; and to stop them from spreading to other nearby territories.<fnref n="108" /> Article III of the Convention makes provision for protective measures.

While this measure is important, the regional partnership to combat harmful pests is challenged by the lack of sophisticated technological know-how and skills for the development of robust early warning systems that can detect and anticipate pest threats before they become widespread, and phytosanitary infrastructure necessary for pest control and management. Implementing effective control

<footnote n="103">103 African Union ‘Treaties’, https://au.int/en/treaties/1160 (accessed 30 October 2024).</footnote>

<footnote n="104">104 S Skendžić and others ‘The impact of climate change on agricultural insect pests’ (2021) 12 *Insects* 440; FAO ‘Climate-related transboundary pests and diseases’, http://www.fao.org/3/a-ai785e.pdf (accessed 30 October 2024).</footnote>

<footnote n="105">105 BB Lin ‘Resilience in agriculture through crop diversification: adaptive management for environmental change’ (2011) 61 *BioScience* 183-193.</footnote>

<footnote n="106">106 As above; DM Rizzo and others ‘Plant health and its effects on food safety and security in a One Health framework: four case studies’ (2021) 3 *One Health Outlook* 1.</footnote>

<footnote n="107">107 As above.</footnote>

<footnote n="108">108 OAU ‘Phyto-Sanitary Convention for Africa’, CAB/LEG/24.4/11, https://au.int/sites/default/files/treaties/7762-treaty-0002_-_phyto-sanitary_convention_for_africa_e.pdf (accessed 30 October 2024).</footnote>
measures is often hindered by a lack of resources, knowledge and infrastructure.

Therefore, there is a need to enhance the technical skills and expertise of phytosanitary staff across the continent. Training and education in pest management practices can empower these individuals to better identify and respond to pest outbreaks. Additionally, investing in the efficiency of phytosanitary infrastructure is essential for effective monitoring and control efforts.

The sub-regional Abidjan Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region and the Protocol concerning Co-operation in Combating Pollution in Cases of Emergency aims to address the challenges faced by countries in protecting and developing their marine (biodiversity) and coastal environment.<fnref n="109" /> The Convention recognises the importance of safeguarding this environment for sustainable development, economic growth and the well-being of the region's population.<fnref n="110" /> It seeks to promote regional cooperation and coordination among member states to effectively address marine pollution and other environmental threats. According to article 3 of the Convention,<fnref n="111" /> the West and Central African maritime and coastal environments may be protected by bilateral or multilateral agreements, including regional or sub-regional agreements between the contracting parties in the region, provided that these agreements are compliant with international law and the Convention. To prevent, reduce, combat and control pollution of the Convention area and to ensure sound environmental management of natural resources, the contracting parties shall, individually or jointly, as the case may be, take all appropriate measures in accordance with the provisions of the Convention and its protocols in force to which they are parties.<fnref n="112" /> They shall comply with its provisions using the best practical means at their disposal and in accordance with their capacities.

The Protocol concerning Co-operation in Combating Pollution in Cases of Emergency, which is part of the Convention, specifically aims at providing a framework for coordinated action and response to pollution incidents in emergencies, and contingency planning. By establishing clear roles and responsibilities, the Convention and Protocol strive to prevent and reduce pollution, improve emergency

<footnote n="109">109 United Nations Environment Programme Nairobi Convention for Cooperation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region, Protocol Concerning Cooperation in Combating Pollution in Cases of Emergency (1981).</footnote>

<footnote n="110">110 IJ Adewumi, JL Suárez de Vivero & A Iglesias-Campos 'The salient dynamics of cross-border ocean governance in a regional setting: an evaluation of ocean governance systems and institutional frameworks in the Guinea current large marine ecosystem' (2022) 8 *Frontiers in Marine Science* 1777.</footnote>

<footnote n="111">111 Full text at https://wedocs.unep.org/bitstream/handle/20.500.11822/36241/AC.pdf?sequence=3&isAllowed=v#:~:text=The%20Abidjan%20Convention%20is%20a,the%20marine%20and%20coastal%20areas.&text=ships%2C%20dumping%2C%20land%2Dbased,from%20or%20through%20the%20atmosphere (accessed 30 October 2024).</footnote>

<footnote n="112">112 Art 4.</footnote>
response capabilities, and promote the rehabilitation and restoration of affected areas. Significantly, the Convention and Protocol also provide a platform for member states to share experiences, achievements and challenges in the implementation of these measures, as well as to explore future prospects for collaboration in protecting and developing the marine and coastal environment of the region. It is also worth noting that many African countries are parties to the UN's Convention on Biological Diversity (CBD) which provide complementary measures for biodiversity conservation, protection and control.

Other regional initiatives, such as the AU Agenda 2063 and The Great Green Wall, have made significant strides in raising awareness and fostering collaborative efforts for the protection of Africa's rich biodiversity.

In spite of these legal and policy measures, monitoring, enforcement and governance challenges in implementing biodiversity conventions and initiatives in Africa undermine their effectiveness. Many of these challenges are complex and multifaceted, including weak institutional capacity and coordination; fragmented governance structures across African countries and national implementation authorities; limited capacity; insufficient technical expertise; human resources; and financial support to effectively implement biodiversity conservation; and inadequate political will to pursue long-term environmental sustainability measures.

Addressing the myriad challenges facing biodiversity in Africa necessitates a comprehensive and multifaceted strategy. This strategy should encompass several critical elements, including the fortification of institutions dedicated to environmental protection; the enhancement of law enforcement capabilities to combat poaching and illegal resource exploitation; and the establishment of adequate financing mechanisms to support conservation initiatives.

Furthermore, fostering meaningful stakeholder engagement is paramount, ensuring that local communities, indigenous populations and various interest groups are actively involved in decision-making processes. This participatory approach not only promotes transparency but also enhances the effectiveness of conservation efforts through shared responsibility and local knowledge.

Building robust political will is also essential in the successful outcome of the available frameworks, as it lays the foundation for sustained commitment to biodiversity conservation. African countries must prioritise the integration of biodiversity conservation into broader sustainable development agendas, recognising its intrinsic value and vital role in supporting livelihoods, ecosystems and resilience to climate change. Moreover, the adoption of inclusive governance models is crucial, as these frameworks encourage collaboration across different sectors and levels of government, allowing for the pooling of resources and expertise. Finally, fostering greater regional and international cooperation is imperative for tackling transboundary challenges, sharing best practices, and mobilising collective action towards the preservation of Africa's rich biodiversity. By embracing
these comprehensive strategies, African nations can advance towards a
more sustainable and equitable future.

4 ENFORCING COMPLIANCE TO EXISTING FRAMEWORKS AND GUARANTEEING ENVIRONMENTAL JUSTICE

Can states be held liable for their environmental obligations under
binding treaties? The jurisprudence of the African Court appears to
suggest that states have an enforceable obligation to respect, promote
and fulfil their duties in environmental frameworks and to remedy
environmental rights violations in the context of human rights.

A case in reference is the Côte d'Ivoire disaster concerning a load of highly toxic waste that was offloaded in Abidjan in 2006, leading to the death of over 17 people and affecting the health of many. In the ensuing case of *Ligue Ivoirienne des Droits de l'Homme (Lidho) & Others v Côte d'Ivoire*,<fnref n="113" /> the applicants asserted that the human rights of numerous victims were infringed due to the dumping of toxic waste in Abidjan, which also resulted in significant environmental damage, particularly to the ground water. In response, the African Court carefully examined the claim and determined that the government bore responsibility for failing to safeguard the health, lives and environment of its citizens when it permitted a third party company to engage in the hazardous act of waste disposal. The Court issued several directives against the state, including an order for the government to undertake legislative reforms aimed at enforcing a comprehensive ban on the importation and disposal of hazardous waste. This was to be done in alignment with various international conventions previously ratified by the state.

The African Court was invited to examine the binding obligations to MEAs when the government argued that the 2003 Algiers Convention on the Conservation of Nature and Natural Resources did not constitute a binding 'human rights instrument'.<fnref n="114" /> Had the Court accepted this argument, it would have significantly diminished the practical application of the Convention in similar cases in the future or even affected the legal status of other MEAs. However, the judges in their 2013 decision took a progressive stance by articulating that the Algiers Convention clearly demonstrated a commitment by participating states to act in ways that prevent detrimental impacts on the environment, particularly those arising from toxic and hazardous waste.<fnref n="115" /> When examined in conjunction with the African Charter, the Court concluded that state parties had willingly accepted responsibilities that ensured the protection and fulfilment of rights outlined in the African Charter.

<footnote n="113">113 Application 41/2016 Judgment 5 September 2023.</footnote>

<footnote n="114">114 *Ligue Ivoirienne* (n 113) paras 29-31.</footnote>

<footnote n="115">115 *Ligue Ivoirienne* (n 113) paras 32-40.</footnote>
Accordingly,

[a] combined reading of these various provisions shows that, through the Algiers Convention, State Parties have signed up to obligations that guarantee the enjoyment of the rights provided for in Articles 16 and 24 of 14 the Charter, namely, the right to the enjoyment of the best attainable state of physical and mental health and the right to a general satisfactory environment conducive to development.<fnref n="116" />

This conclusion is important for several reasons. First, it enabled the Court to incorporate the provisions of the Algiers Convention into its deliberations and ultimately influenced its decisions regarding the case at hand. Second, it cemented the position of MEAs as a crucial tool in establishing liabilities and guaranteeing the right to a satisfactory environment. Third, the decision in this case reminds states and relevant authorities to be ‘mindful of the growing threat to human health’ and take proactive actions.<fnref n="117" /> On this point, the Court supported its position by further articulating the obligation of states in the Bamako Convention.<fnref n="118" /> The judges stressed that ‘the Bamako Convention that it behoves state parties, prevent the importation into their territory of toxic wastes whose impact on human life they should be aware of’.<fnref n="119" /> Furthermore, if such harmful waste is placed in its territory, it ‘has the obligation to act and limit and repair the harmful consequences on human life’.<fnref n="120" /> Beyond finding that rights to life, health and environment were violated,<fnref n="121" /> the Court also took the time to establish that states must implement the rights guaranteed by the ‘Convention to which they subscribe’.<fnref n="122" />

The *Ogiek* case against the Kenyan government,<fnref n="123" /> presented before the African Court, represents another significant milestone in the recognition and protection of indigenous peoples’ rights, as well as environmental rights across the continent.<fnref n="124" /> This landmark ruling highlighted the struggles of the Ogiek community, an indigenous group with a deep historical connection to the Mau forest in Kenya, who have faced ongoing eviction and land dispossession. The African Court’s decision not only affirmed their right to land and resources in the African Charter, but also emphasised the importance of preserving

<footnote n="116">116 Ligue Ivoirienne (n 113) para 39.</footnote>

<footnote n="117">117 Ligue Ivoirienne (n 113) para 130.</footnote>

<footnote n="118">118 As above.</footnote>

<footnote n="119">119 Ligue Ivoirienne (n 113) para 137.</footnote>

<footnote n="120">120 As above.</footnote>

<footnote n="121">121 Ligue Ivoirienne (n 113) paras 133-135.</footnote>

<footnote n="122">122 Ligue Ivoirienne (n 113) para 131.</footnote>

<footnote n="123">123 African Court of Human and Peoples' Rights (2017) *ACHPR v Kenya* Application 6/2012 Judgment dated 26 May 2017, ACtHPR, Arusha, Tanzania; African Court of Human and Peoples' Rights (2021) *African Commission on Human and Peoples' Rights v Kenya* Application 6/2012 Order (Procedure) 25 June 2021, ACtHPR, Arusha; African Court of Human and Peoples' Rights 2022 *African Commission on Human and Peoples' Rights v Kenya* Application 6/2012 Judgment (Reparations) 23 June 2022, ACtHPR, Arusha, Tanzania.</footnote>

<footnote n="124">124 L. Claridge & D. Kobai 'Protected areas, indigenous rights and land restitution: the *Ogiek* judgment of the African Court on Human and Peoples' Rights and community land protection in Kenya' (2023) 57 *Oryx* 313-324.</footnote>
indigenous cultural practices and livelihoods that are intrinsically
linked to their environment. This case has broader implications for
environmental justice, as it underscores the necessity of integrating
indigenous rights into national and international legal frameworks
aimed at protecting natural resources and ecosystems.

In the comparative landmark case of *Kaliña and Lokono Peoples v Suriname*,<fnref n="125" /> the Inter-American Court of Human Rights underscored the significance of upholding the rights of indigenous peoples and how this respect can positively influence environmental conservation efforts.<fnref n="126" /> The Court articulated that recognising and protecting the rights of indigenous communities not only is a moral and legal obligation, but also essential for fostering sustainable environmental practices. Consequently, it emphasised that the rights of indigenous peoples should be viewed in conjunction with international environmental laws, positioning these frameworks as complementary rather than mutually exclusive. This perspective highlights the interconnectedness of human rights and environmental stewardship, underlining a holistic approach to both indigenous rights and conservation.<fnref n="127" />

Environmental litigation has also gained positive ground in regional institutions.<fnref n="128" /> In 2014 a significant ruling was made by the East African Court of Justice, which intervened to halt the Tanzanian government's plans to construct a road winding through the iconic Serengeti National Park.<fnref n="129" /> This decision was based on extensive concerns regarding the potentially detrimental effects such development could have on the environment, including threats to wildlife migration patterns and natural ecosystems.<fnref n="130" /> The Court's intervention was not an isolated incident but rather part of a broader trend toward strengthening environmental judicial protection across the African continent.<fnref n="131" /> Such rulings signify a pivotal shift in prioritising

<footnote n="125">125 Inter-American Court of Human Rights (IACTHR) (2013) *Case of the Kaliña and Lokono Peoples v Suriname* Judgment of 18 July 2013, IACtHR, San José, Costa Rica, corteidh.or.cr/docs/casos/articulos/seriec_309_ing.pdf (accessed 30 October 2024).</footnote>

<footnote n="126">126 As above.</footnote>

<footnote n="127">127 *Kaliña* (n 125) para 173.</footnote>

<footnote n="128">128 Network for Greening the Financial System, 'Climate-related litigation: recent trends and developments' (2023), https://www.ngfs.net/sites/default/files/medias/documents/ngfs_report-on-climate-related-litigation-recent-trends-and-developments.pdf (accessed 7 December 2024).</footnote>

<footnote n="129">129 *African Network for Animal Welfare (ANAW) v The Attorney General of the United Republic of Tanzania* Ref 9 of 2010, Judgment, East African Court of Justice at Arusha First Instance Div 64 Gun 20, 2014, http://eac.org/wp-content/uploads/2014/06/Judgement-Ref.-No.9-of-2010-Final.pdf (accessed 30 October 2024).</footnote>

<footnote n="130">130 The decision was affirmed by the Appellate Division of the EACJ which largely upheld that decision in July 2015, *Attorney General of the United Republic of Tanzania v African Network for Animal Welfare (ANAW) Appeal* 3 of 2014, Judgment, East African Court of Justice at Arusha App Div (29 July 2015), http://eacj.org/?cases=the-attorney-general-of-the-united-republic-of-tanzania-vs-afri can-net-work-for-animal-welfare (accessed 30 October 2024).</footnote>

<footnote n="131">131 JT Gathii 'Saving the Serengeti: Africa's new international judicial environmentalism' (2016) 16 *Chicago Journal of International Law* 386.</footnote>
environmental conservation and underscore the growing recognition of
the legal rights of nature and the importance of safeguarding critical
habitats from unsustainable development practices.

Similarly, the ECOWAS Court found the Nigerian government responsible for abuses by oil companies operating within its territory, in the case of *Social-Economic Rights and Accountability Project (SERAP) v Federal Republic of Nigeria.*132 According to the Court, article 24 of the African Charter articulates a fundamental principle of environmental right that underscores the intrinsic link between a healthy environment and the overall well-being and progress of communities. In its ruling, the Court reinforced the importance of this principle by affirming that the environment is crucial for the survival and flourishing of every individual. The Court unequivocally stated that ‘the quality of human life depends on the quality of the environment’, highlighting the interconnectedness of environmental health and human development. Furthermore, the Court emphasised the responsibility of the state to ensure that those who inflict environmental harm, particularly through activities such as oil pollution, are held accountable. It specifically pointed out the necessity for the state to implement effective mechanisms to provide adequate reparation to those affected by environmental degradation. The Court also outlined Nigeria’s obligations in this context, mandating the country to take ‘additional and concrete measures aimed at preventing the occurrence of damage or ensuring accountability’. This includes not only addressing past harms, but also instituting proactive strategies to prevent future environmental damage.

It is important to highlight the Court's articulation regarding the responsibilities outlined in article 24 of the African Charter. The Court specifies that the duty imposed by this article encompasses both an 'obligation of attitude' and an 'obligation of result'. This means that not only must the state adopt a proactive and positive approach towards environmental protection, but it is also required to achieve tangible results through its actions. In this manner, article 24 requires that the state implement a range of legislative or other measures specifically designed to give effect to the right to a healthy environment. These measures must be effectively carried out to foster accountability among various stakeholders and to ensure that victims of environmental harm receive adequate reparations. This comprehensive understanding underscores the necessity for the state to be active in its role, ensuring that laws and actions translate into meaningful protection and restoration of the environment.

The African Commission has also lent its voice to environmental issues by providing important jurisprudence and leading the pace in guaranteeing the right to a healthy environment in other cases. The Commission determined in *SERAC*133 that the Ogoni people had

<footnote n="132">132 Registered Trustees of the Socio-Economic Rights and Accountability Project (SERAP) v Federal Republic of Nigeria Preliminary ruling ECW/CCJ/APP/07/10, 10 December 2010.</footnote>

<footnote n="133">133 SERAC (n 26).</footnote>
experienced serious violations of their fundamental rights, specifically
their right to health as outlined in article 16, and their right to a
satisfactory environment conducive to development as specified in
article 24 of the African Charter.

Although at the time of writing the regional and sub-regional
judicial bodies are yet to specifically entertain issues of climate
change,¹³⁴ it is only a matter of time before they would touch on these
significant issues, especially in holding states, corporations and private
individuals accountable for contributing to climate change crises or
tackling rising global warming.

5 CONCLUSION: PROSPECTS FOR AFRICA’S ENVIRONMENTAL CONTROL SYSTEM

With a growing recognition of the importance of environmental
protection in Africa, there are promising prospects for the future of
African regional environmental law. Efforts must be made to
strengthen existing legal frameworks and enhance regional cooperation
to address emerging environmental challenges. This includes exploring
innovative solutions to mitigate climate change, promote sustainable
development and protect biodiversity. Other pertinent areas for
attention include addressing pollution, ensuring effective waste
management, preventing or restoring land degradation, and so forth. In
addition, there is a need to focus on enhancing enforcement and
compliance mechanisms to ensure the effective implementation of
environmental laws. Furthermore, increasing awareness and education
about environmental issues and promoting public participation in
decision-making processes are crucial for the success of regional
environmental initiatives. If adequate measures are put in place, the
future prospects of African regional environmental law to foster
sustainable development and preserve the continent's natural
resources for generations to come will be clearer and better.

Implementing robust environmental regulations and adhering to
sustainable trade standards are also pivotal in this transition. Many of
the environmental issues confronting the continent transcend national
boundaries and, thus, enhanced regional cooperation and support, and
technical and financial knowledge is required to effectively address
these. By taking these critical actions collectively, African countries can
pave the way for a sustainable future that not only addresses current
ecological challenges but also safeguards the well-being of future
generations.
From Kenya to Tanzania through
Mauritania, Cameroon and Sudan: the
approach of the African Children's
Committee to the principle of non-
discrimination in selected communications

Robert Nanima*

https://orcid.org/0000-0001-8825-3376

**ABSTRACT:** The effectiveness of a human rights monitoring body lies in the seamless fusion of its normative and institutional framework that leads to the development of jurisprudence. Out of seven concluded communications, five concern the violation of the principle of non-discrimination. Using a conceptual desktop research approach, this article argues that the African Committee of Experts on the Rights and Welfare of the Child (African Children's Committee) can do more in realigning the normative underpinnings to the jurisprudential developments regarding the principle of non-discrimination. This article looks at the normative understanding of the principle of non-discrimination under the African Charter on the Rights and Welfare of the Child and evaluates five selected communications that deal with discrimination. Finally, a reflection on the Committee's approach paves the way for proposals in the application of the principle of non-discrimination.

TITRE ET RÉSUMÉ EN FRANÇAIS

Du Kenya à la Tanzanie, en passant par la Mauritanie, le Cameroun et le Soudan : l'approche du Comité Africain d'Experts sur les Droits et le Bien-être de l'Enfant face au principe de non-discrimination dans certaines communications

RÉSUMÉ: L'efficacité d'un mécanisme de surveillance des droits de l'homme repose sur une interaction fluide entre son cadre normatif et institutionnel, conduisant au développement d'une jurisprudence cohérente et adaptée. Parmi les sept communications finalisées par le Comité Africain d'Experts, cinq concernent des violations liées au principe de non-discrimination. Cet article examine la compréhension normative du principe de non-discrimination tel qu'il est inscrit dans la Charte Africaine des Droits et du Bien-être de l'Enfant et analyse en profondeur cinq communications pertinentes à ce sujet. En adoptant une méthode de recherche documentaire conceptuelle, cette contribution soutient que le Comité Africain d'Experts pourrait renforcer son approche en alignant davantage ses fondements normatifs sur les évolutions jurisprudentielles concernant la non-discrimination. Une réflexion critique sur l'approche actuelle du Comité ouvre des perspectives pour une application plus efficace et cohérente du principe de non-discrimination.

<footnote>* Associate Professor, Faculty of Law, University of the Western Cape, South Africa, LLB (Makerere) Dip LP (Law Development Centre) LLM LLD (Western Cape), rnanima@uwc.ac.za</footnote>
**KEY WORDS:** African Children's Charter; child; African Children's Committee; communication; due diligence; non-discrimination; obligation; persuasive jurisprudence

**CONTENT:**

1 Introduction..................................................................................................................308

2 Setting the scene: why non-discrimination?................................................................. 310

3 The principle of non-discrimination........................................................................ 312

3.1 Agency on the child........................................................................................................ 313

3.2 Obligation on the state as an active (rather than a passive) player......................... 313

3.3 The status of the child is irrelevant........................................................................ 314

3.4 The use of differential treatment........................................................................ 315

4 Evaluation of communications ..................................................................................316

4.1 Children of Nubian Descent .................................................................................. 316

4.2 Mauritanian Enslaved Brothers ........................................................................ 319

4.3 Cameroonian Child Rape.......................................................................................... 322

4.4 Sudanese Nationality.............................................................................................. 323

4.5 Tanzanian Girls........................................................................................................ 328

5 Way forward ..................................................................................................................330

5.1 Agency on the child........................................................................................................ 331

5.2 Obligation on the state as an active (rather than a passive) player......................... 332

5.3 Differential treatment as positive discrimination.......................................................... 333

5.4 Use of inspiration from other sources under article 46........................................ 333

5.5 Non-discrimination: principle, right or both? .......................................................... 334

5.7 Reciprocity and retaliation as non-qualifiers to the application of the principle of non-discrimination .................................................................................. 334

5.8 Use of due diligence .................................................................................................... 335

6 Conclusion and recommendations............................................................................335

Annex............................................................................................................................................337

# 1 INTRODUCTION

The African Charter on the Rights and Welfare of the Child (African Children's Charter) provides for the African Committee on the Rights and Welfare of the Child (African Children's Committee) as the body that monitors the implementation of the Children's Charter provisions.<fnref n="1" /> The working methods of the African Children's Committee include the consideration of communications on alleged violations of the provisions of the African Children's Charter.<fnref n="2" /> The Children's Committee uses communication guidelines to direct its engagement with applicants and respondent states to communications.<fnref n="3" /> The Guidelines to the Communications Procedure deal with various aspects such as access to the African Children's Committee; form and content of the communications and their preliminary review and processing by the Secretariat; the appointment of Rapporteurs and Working Groups to work on specific communications; and the joinder and disjoinder of communications.<fnref n="4" />

<footnote n="1">1 African Charter on the Rights and Welfare of the Child CAB/LEG/24.9/49 (1990) art 32.</footnote>

<footnote n="2">2 Art 42 African Children's Charter.</footnote>

<footnote n="3">3 Revised Guidelines for the Consideration of Communications and Monitoring the Implementation of decisions, https://www.acerwc.africa/en/page/guidelines-consideration-communications-and-monitoring-implementation-decisions (accessed 19 December 2023).</footnote>

<footnote n="4">4 Art 42 African Children's Charter.</footnote>
Compared to other human rights monitoring bodies, the African Children's Committee has concluded a relatively small number of communications, but that does not tarnish the fact that its jurisprudence is developing.<fnref n="5" /> It remains imperative to identify trends in communications on specific aspects. This contribution latches onto the African Children's Committee's development of jurisprudence in the context of the principle of non-discrimination. As such, the article looks at specific cases where the African Children's Committee has found a violation of the principle of non-discrimination. It argues that the African Children's Committee can do more to ensure that the jurisprudential developments are realigned to the normative underpinnings regarding the principle of non-discrimination. First, the article elaborates on the reason for the focus on non-discrimination as an evolving principle in the jurisprudence of the Children's Committee. Second, it revisits five selected communications that hinge on non-discrimination and establishes its evaluation of its normative framework to the communications. A reflection on the African Children's Committee's approach paves the way for proposals in the application of the principle of non-discrimination.

Furthermore, the author takes on a doctrinal approach to evaluate the reasoning behind the African Children's Committee's findings concerning the principle of non-discrimination. This is concretised by the fact that the principle of non-discrimination is one of the four that inform the child rights-based approach under the African Children's Charter. The insights are drawn from the jurisprudential developments on two fronts. First, the contribution takes on a chronological approach and looks at the following communications: *Children of Nubian Descent*;<fnref n="6" /> *Mauritanian Enslaved Brothers*;<fnref n="7" /> *Sudanese Nationality*;<fnref n="8" /> *Cameroonian Child Rape*;<fnref n="9" /> and *Tanzanian Girls*.<fnref n="10" /> These decisions were made over 11 years and this raises an expectation to look out for development and changes over time.

<footnote n="5">5 Eg, as of 5 December 2023, the African Commission had received 832 complaints, with 184 pending. A total of 648 communications have been concluded. The African Children's Committee has only received 24 communications and concluded 7, as of 5 December 2023. See https://www.acerwc.africa/en/communications/table (accessed 19 December 2023).</footnote>

<footnote n="6">6 *Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative (OSJI) (on behalf of children of Nubian descent in Kenya)* v Kenya, No 2/Com/002/2009, (2011) AHRLR 181 (ACERWC 2011), decided 22 March 2011 (*Children of Nubian Descent*).</footnote>

<footnote n="7">7 *Minority Group International and SOS-Eslaves on behalf of Said Ould Salem and Yarg Ould Salem v Mauritania*, No 7/Com/003/2015, decided December 2017 AHRLR (ACERWC 2017) (*Mauritanian Enslaved Brothers*).</footnote>

<footnote n="8">8 *African Centre of Justice and Peace Studies and People's Legal Aid Centre v Sudan*, No 5/Com/001/2015, decided May 2018 (*Sudanese Nationality*).</footnote>

<footnote n="9">9 *The Institute for Human Right and Development in Africa and Finders Group Initiative on behalf of TFA (a minor) v Cameroon*, No 6/Com/002/2015, decided May 2018 (*Cameroonian Child Rape*).</footnote>

<footnote n="10">10 *Legal and Human Rights Centre and Centre for Reproductive Rights (on behalf of Tanzanian girls) v Tanzania*, No 12/Com/001/2019, decided March/April 2022 (*Tanzanian Girls*).</footnote>
## 2 SETTING THE SCENE: WHY NON-DISCRIMINATION?

The African Children's Committee has to date received 23 communications of which seven have been decided on merit.<fnref n="11" /> Five communications have been finalised and declared inadmissible and ten communications are pending.<fnref n="12" /> This contribution by design looks at the communications decided on the merits. This is because it concerned the Children's Committee's jurisprudence on substantive elements of the African Children's Charter.

Out of the seven concluded communications, five deal with the violation of the principle of non-discrimination. In light of the low number of communications by the African Children's Committee, it makes sense to have an evaluation of the principle of non-discrimination from a normative, institutional or jurisprudential approach as a critical starting point. This is largely because of the gap in literature on this subject. The author is not aware of existing literature that solely evaluates the principle of non-discrimination under the African Children's Charter.<fnref n="13" /> The available literature largely points to general overviews of the child rights-based approach by the African Children's Committee and the substantive rights.<fnref n="14" />

In addition, available literature rather points to the engagement of the principle of non-discrimination by the United Nations (UN) Committee on the Rights of the Child.<fnref n="15" /> Abrahamson looks at the principle of non-discrimination from the perspective of the Convention on the Rights of the Child (CRC).<fnref n="16" /> In his comparison of the provisions of CRC on non-discrimination concerning other human rights treaties, he does not add the African Children's Charter on the basis that it is not strictly an international human rights treaty.<fnref n="17" /> He looks at the United

<footnote n="11">11 See results, https://www.acerwc.africa/en/communications/table?title=&field_member_state_target_id=All&fieldDecision_target_id=479 (accessed 19 December 2023).</footnote>

<footnote n="12">12 See https://www.acerwc.africa/en/communications/table (accessed 19 December 2023).</footnote>

<footnote n="13">13 The author can attest to recent academic engagements to develop a commentary on the African Children's Charter poised to be launched in late 2024.</footnote>

<footnote n="14">14 See results of a search, https://scholar.google.com/scholar?hl=en&as_sdt=0%2C5&q=Julia+sloth+nielsen+non-discrimination&btnG=here; https://scholar.google.com/scholar?hl=en&as_sdt=0%2C5&q=benyam+dawit+mezmur+non-discrimination&btnG=; and https://scholar.google.com/scholar?hl=en&as_sdt=0%2C5&q=African+charter+on+human+and+peoples+rights+non-discrimination&btnG= (accessed 10 November 2024).</footnote>

<footnote n="15">15 Eg, see B Samantha 'The principle of non-discrimination in the UNCRC' (2005) 13 *International Journal of Children's Rights* 433-461; JG Vaghri and others *Monitoring state compliance with the UN Convention on the Rights of the Child* (2002).</footnote>

<footnote n="16">16 B Abramson 'Article 2. The right of non-discrimination' in A Alen and others (eds) *A commentary on the United Nations Convention on the Rights of the Child* (2008).</footnote>

<footnote n="17">17 Abramson (n 16) 5-9.</footnote>
Nations Charter;<fnref n="18" /> the Universal Declaration of Human Rights (Universal Declaration);<fnref n="19" /> the International Covenant on Civil and Political Rights (ICCPR);<fnref n="20" /> and the International Covenant on the Economic, Social and Cultural Rights (ICESCR).<fnref n="21" /> It is argued that the relegated importance accorded to the African Children's Charter presents an incomplete picture concerning its normative and institutional underpinning that has led to the development of the principle of non-discrimination in Africa.<fnref n="22" />

In her edited volume, Olga correctly analyses the evolving nature of the rights of the child.<fnref n="23" /> While it may not be by design, there is limited engagement of the child rights-based principles with a rather expansive evaluation of how various states, such as Greece, France, Canada, Denmark, Germany and India, have implemented the rights of the child.<fnref n="24" /> While this approach offers an insightful narrative by states that are party to CRC, a deliberate and in-depth engagement of the principle of non-discrimination is lost.<fnref n="25" /> It goes without saying that the research is squarely on CRC, which presents a gap and an opportunity to carry out this study.

Lansdown looks at the principle of non-discrimination under CRC,<fnref n="26" /> and takes time to analyse each attribute of the principle in line with article 3. He looks at three attributes: first, non-discrimination in the realisation of all rights for all children within the jurisdiction;<fnref n="27" /> second, based on status, actions, or beliefs, of parents, guardians, or family members;<fnref n="28" /> and, third, special measures to address discrimination.<fnref n="29" /> This approach lends credence to this research to review the various principles that underscore the understanding of the principle of non-discrimination under article 3 of the African Children's Charter. This also presents a gap with regard to the non-engagement of peculiar aspects on the principle of non-discrimination such as 'fortune' under the African Children's Charter.

<footnote n="18">18 As above; arts 1(3), 13(1)(b), 55(c) & 76(c) of the Charter of the United Nations, 892 UNTS 119.</footnote>

<footnote n="19">19 Abramson (n 16) 5-9. See Universal Declaration (1948) GA Res 217A (III) (UN Doc A/810, 1948).</footnote>

<footnote n="20">20 Abramson (n 16) 5-9. See art 2(1) of ICCPR 999 UNTS 171 (1966; in force 1976).</footnote>

<footnote n="21">21 Abramson (n 16) 5-9. See art 2(2) of ICESCR 993 UNTS 3 (1966; in force 1976).</footnote>

<footnote n="22">22 It is argued that in the era of decolonisation and decoloniality, regional instruments ought to be recognised as part of international law and looked at from how they may be a platform for the global instruments and monitoring bodies to learn from.</footnote>

<footnote n="23">23 CJ Olga *The rights of the child in a changing world 25 years after the UN Convention on the Rights of the Child* (2015).</footnote>

<footnote n="24">24 Olga (n 23) 1, 61, 97, 123, 151 & 167.</footnote>

<footnote n="25">25 Olga (n 23) generally.</footnote>

<footnote n="26">26 G Lansdown 'Article 2 the right to non-discrimination' in Z Vaghrietal and others (eds) *Monitoring state compliance with the UN Convention on the Rights of the Child: an analysis of attributes* (2022) 11.</footnote>

<footnote n="27">27 Lansdown (n 26) 15.</footnote>

<footnote n="28">28 Lansdown (n 26) 16.</footnote>

<footnote n="29">29 Lansdown (n 26) 17.</footnote>
This contribution scrutinises the communications against Tanzania,<fnref n="30" /> Mauritania,<fnref n="31" /> Sudan<fnref n="32" /> and Kenya.<fnref n="33" />

### 3 THE PRINCIPLE OF NON-DISCRIMINATION

CRC emphasises the role of the state in ensuring the application of the principle of non-discrimination.<fnref n="34" /> A quick look at the provision is important in appreciating the context of the African Children's Charter because the African Children's Charter is complementary to CRC. The relevant provision of the CRC states:<fnref n="35" />

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 guardians' race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

Four critical points emanate from this provision. It (i) places a mandate on the state. This means that the obligation on the state party is mandatory and the state cannot deviate from it. The state's mandate is to (ii) refrain from acts that may lead to discrimination. Furthermore, it requires that the state (iii) takes active steps to monitor the extent of discrimination; and (iv) take steps to mitigate this.<fnref n="36" /> In contrast, the principle of non-discrimination as provided for in the African Children's Charter states that '[e]very child shall be entitled to the enjoyment of the rights and freedoms recognised 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'.<fnref n="37" />

The foregoing article emphasises the position taken by the African Children's Charter and highlights the obligation on the state. It is from this approach that some pointers are harnessed from this provision and discussed below.

<footnote n="30">30 *Tanzanian Girls* (n 10).</footnote>

<footnote n="31">31 *Mauritanian Enslaved Brothers* (n 7).</footnote>

<footnote n="32">32 *Sudanese Nationality* (n 8).</footnote>

<footnote n="33">33 *Children of Nubian Descent* (n 6)</footnote>

<footnote n="34">34 Since the African Children's Charter complements CRC, a comparison of the two instruments is instructive in assessing the interpretation of CRC as a platform on which the African Children's Charter finds its footing through the application of art 46 in the use of persuasive jurisprudence. The issue of complementarity is not novel to the African Children's Committee. See Report on the 8th session of the CRC Committee January 1995 CRC/C/38. At 8 the CRC Committee recognises that CRC and the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) have a complementary and mutually-reinforcing nature.</footnote>

<footnote n="35">35 Art 2(1) CRC.</footnote>

<footnote n="36">36 For a detailed normative discussion of art 2, see *Implementation handbook for the Convention on the Rights of the Child* 19-37, https://www.unicef.org/lac/media/22071/file/Implementation%20Handbook%20for%20the%20CRC.pdf (accessed 1 February 2024).</footnote>

<footnote n="37">37 Art 3 African Children's Charter.</footnote>
**3.1 Agency on the child**

First, article 3 requires an agency on the child to have entitlements to rights and freedoms under the African Children's Charter.38 The Children's Charter has handed down principles to guide the normative understanding of the principle of non-discrimination. As will be shown, the African Children's Charter has used article 46 (which allows the use of inspiration from other sources of the law) to draw on inspiration from other sources to interpret article 3. This has included the use of guidance from other human rights bodies such as CRC and the CEDAW Committee, the African Commission on Human and Peoples' Rights (African Commission), the African Charter on Human and Peoples' Rights (African Charter) and the African Court on Human and Peoples' Rights (African Court).

In addition, the child is mandated to enjoy all the rights and freedoms in an environment that is provided by all stakeholders, starting with the state. It is interesting to note that the mandate is not specifically visited in the state. This potentially dangerous predicament is solved by the African Children's Charter which offers insights into the state party's obligations. The African Children's Charter mandates the state to recognise the rights, freedoms and duties enshrined in the African Children's Charter.39 Based on the mandatory requirement, consequently, the state is mandated to undertake necessary steps within the bounds of their constitutional processes and all kinds of measures (including legislative measures) to give effect to the provisions of the African Children's Charter.40 Furthermore, the wording may also be interpreted to mean that all stakeholders, persons or entities in the environments where a child is have an obligation to urge the state as the main duty holder to ensure that the child enjoys their rights.41

**3.2 Obligation on the state as an active (rather than a passive) player**

Second, it is argued that the active identification of the child affected by discrimination includes the engagement of proactive steps, such as the increased delivery of accessible basic services such as education, healthcare and birth registration, coupled with an increase in the

<footnote n="38">38 General Comment 5 on 'State party obligations under the African Charter on the Rights and Welfare of the Child (art 1) and systems strengthening for child protection' para 9.</footnote>

<footnote n="39">39 Art 1 African Children's Charter.</footnote>

<footnote n="40">40 As above.</footnote>

<footnote n="41">41 As such, while the state is accountable under the African Children's Charter; the various stakeholders also remain accountable in using their working methods to push for conditions that ensure that the child enjoys all the rights under the African Children's Charter without any discrimination.</footnote>
allocation of funds, human resources and the required facilities.⁴² As such, the state is actively involved in identifying children affected by discrimination and is expected to take deliberate steps to remedy the situation.⁴³ The active identification may start with the commitment by a state party to non-discrimination against women and girls, which requires it to recognise child marriage as a form of sex and gender-based discrimination, and to take appropriate measures towards its elimination.⁴⁴ To this end, critical information on children who may be suffering the brunt of discrimination has to be actively and continually identified and subsequent steps taken to ensure that children are not discriminated against. In addition, the African Children's Committee reiterates, by implication, the need for the use of equitable rather than equal treatment in the use of special measures to mitigate the effects of discrimination.⁴⁵ The African Children's Committee has in the recent past made recommendations to state parties to ensure non-discrimination as a constitutional guarantee.⁴⁶

### 3.3 The status of the child is irrelevant

Third, the status of the child is irrelevant and has no bearing on the enjoyment of the rights under the African Children's Charter.⁴⁷ This gives the application of the principle of non-discrimination a broad-based contextual application. The first point of call is to have a non-exhaustive list of vulnerable children.⁴⁸ The wording of the article by

42 Concluding Observation of the African Committee of Experts on the Rights and Welfare of the Child on the Initial Report of the Republic of Angola para 11, https://www.acerwc.africa/sites/default/files/2022-06/Angola_CO_Initial_Report_7.pdf (accessed 5 February 2024).

43 The Committee reiterates that this calls for dedicated additional resources that should be consciously identified and devoted to implementation of the principle of non-discrimination. See General Comment 5 (n 38) 11.

44 Joint General Comment of the African Commission on Human and Peoples' Rights and the African Committee of Experts on the Rights and Welfare of the Child on ending child marriage para 11, https://www.acerwc.africa/es/key-documents/general-comments (accessed 2 February 2024).

45 General Comment 5 (n 38) para 9 states that dealing with discrimination may not require 'identical treatment' but rather 'taking special measures in order to diminish or eliminate conditions that cause discrimination'. The state retains the margin of appreciation to ensure that it uses both objective and subjective approaches to ensure that non-discrimination is applied.

46 See Concluding Observation of the African Committee of Experts on the Rights and Welfare of the Child on the initial Report of the Democratic Republic of Algeria para 14, https://www.acerwc.africa/sites/default/files/2022-06/Concluding_Observations_A Algeria.pdf (accessed 5 February 2024). The Committee welcomed the constitutional guarantee for equality of everyone and non-discrimination.

47 The Committee takes on practical steps and *ejusdem generis*, identifies a non-conclusive list of children who are poor and most marginalised such as rural children, children of imprisoned mothers, children on the move and the gendered dimension. General Comment 5 (n 38) 10.

48 This list is continually extended as the context demands. Eg, the General Comment on sexual exploitation adds to this non-conclusive list other vulnerable children such as victims of sexual violations, including children with disabilities,
design is to the end that specific contextual imperatives regarding the child are irrelevant.<fnref n="49" /> For instance, the existence of parents or guardians, and their ethnic group, colour, sex, language, religion, political or other status are irrelevant, especially if they may stifle the child's enjoyment of the rights under the African Children's Charter.<fnref n="50" /> The African Children's Committee gives a clarion call to state parties to ensure that birth registration is enforced regardless of the whereabouts of the child's parents or guardians, their ethnicity, group, colour, sex, language, religion, political or other opinion from a national, social origin or other status.<fnref n="51" /> This shows how non-discrimination, while it is explicitly mentioned in article 3, is a principle that permeates through the entire African Children's Charter. This is supported by literature that looks at non-discrimination as both a substantive right and a principle.<fnref n="52" /> In addition, there is emphasis on the fact that the principle of non-discrimination applies in all environments where a child is, whether there is armed conflict, tension, strife, refugee settings or in places of peace.<fnref n="53" />

## 3.4 The use of differential treatment

Fourth, a question that comes to the fore is the use of differential treatment or positive discrimination as an approach to non-discrimination.<fnref n="54" /> The African Children's Committee uses the spellings 'deferential' in the *Children of Nubian Descent* and *Sudanese Nationality*, and 'differential' in *Mauritanian Enslaved Brothers* and *Tanzanian Girls*. For accuracy, the author refers to the term 'differential' – and it is acknowledged that they refer to the same thing. The cardinal rule is that a child can be justifiably treated differently from others based on their age, as long as the differentiation is proven to have a legitimate aim, that is, a necessary solution to achieve that

children in care institutions, children in conflict situations, children in street situations, and displaced and migrant children. General Comment 7 on art 27 of the African Children's Charter 'Sexual exploitation' para 40.

<footnote n="49">49 Art 3 African Children's Charter.</footnote>

<footnote n="50">50 As above.</footnote>

<footnote n="51">51 Art 6 African Children's Charter. See also General Comment on art 6 of the African Children's Charter 'Right to birth registration, name and nationality' para 16.</footnote>

<footnote n="52">52 All the articles point to this fact. See other instructive literature such as S Fredman 'Substantive equality revisited' (2016) 14 *International Journal of Constitutional Law* 712-738. See also S Karvatska & I Toronchuk 'The right to non-discrimination: interpretive practice of the ECtHR' (2020) 7 *European Journal of Law and Public Administration* 24-46.</footnote>

<footnote n="53">53 General Comment 6 on art 22 of the African Charter on the Rights and Welfare of the Child on Children in Situations of Conflict paras 38-40.</footnote>

<footnote n="54">54 CRC guides state parties to use legitimate forms of discrimination that have a positive dent on the rights of the child. Eg, discrimination on account of evolving capacities of the child seeks views of a child who has information on the subject at hand and with regard to their capacities, use of affirmative action or programmes that seek to special consideration to children with vulnerabilities. See CRC handbook (n 36) 31.</footnote>
aim, and to be proportional to the achievement of the result.<fnref n="55" /> While the African Children's Charter does not provide for differential treatment, it allows the African Children's Committee to draw inspiration from international law on human rights, and other instruments adopted by the United Nations (UN) and by African countries in the field of human rights, and from African values and traditions.<fnref n="56" /> For instance, the African Children's Committee recognises that the African Charter on Human and Peoples Rights on the Rights of Women in Africa (African Women's Protocol) reiterates the principles of non-discrimination and provides for the right to freedom from discrimination based on sex or gender.<fnref n="57" /> It is argued that if the application of differential treatment is based on the child rights-based approach and the added value that the African Children's Charter provides, it may be used to increase the application of differential treatment. Although the African Children's Committee has come through strongly to reiterate other sources of law,<fnref n="58" /> it is yet to be seen when it will apply the principle of possible differential treatment as a point of departure from a finding of a violation of the principle of non-discrimination.

# 4 EVALUATION OF COMMUNICATIONS

This part evaluates five communications by the African Children's Committee with regard to the way in which the principle of non-discrimination was dealt with. The five communications are engaged on account of the brief facts, the recommendations by the African Children's Committee in light of the principle of non-discrimination and a discussion. The conversation extends to the communications against Kenya, Sudan, Mauritania, Cameroon and Tanzania.

## 4.1 *Children of Nubian Descent*

This was the first communication which was filed in 2009, and the African Children's Committee handled its decision in 2011 with a

<footnote n="55">55 N Brando & L Lundy 'Discrimination and children's right to freedom of association and assembly' (2024) 37 *Harvard Human Rights Journal*, https://journals.law.harvard.edu/hrj/2022/12/dis discrimination-and-childrens-right-to-freedom-of-association-and-assembly/ (accessed 20 January 2024).</footnote>

<footnote n="56">56 Art 46 African Children's Charter. A detailed discussion of this article is beyond the scope of this contribution, but a very critical provision that gives the Committee leeway to use other instruments in the promotion and protection of the rights of the child.</footnote>

<footnote n="57">57 Joint General Comment (n 44) para 11.</footnote>

<footnote n="58">58 See General Comment 1 (art 30 of the African Charter on the Rights and Welfare of the Child) on 'Children of incarcerated and imprisoned parents and primary caregivers' 2013 para 18. The African Children's Committee recognises the inspiration from art 2 of the United Nations Convention on the Rights of the Child (CRC) 1577 UNTS 3 (1989); the International Covenant on Civil and Political Rights (ICCPR) 999 UNTS (1976) 171; and the International Covenant on Economic, Social and Cultural Rights (ICESCR) 993 UNTS (1976) 3.</footnote>
finding on the violation of the principle of non-discrimination by Kenya against children of Nubian descent. It was reported that, historically, the Nubians were forcibly conscripted into the colonial British army and upon demobilisation, they were never returned to Sudan.<fnref n="59" /> Although the British colonial authorities allocated land to Nubians, the post-colonial government of Kenya regarded them as aliens.<fnref n="60" /> Consequently, the lack of ancestral land in the state party, and the failure to recognise their claim to land was linked to the denial of Kenyan citizenship.<fnref n="61" /> Consequently, the children of the Nubian community did not have citizenship, and the lack of valid documentation on the part of their parents meant that they could not easily receive the benefits that children with citizenship or legal status in Kenya had.<fnref n="62" /> This was further complicated by the fact that the children of Nubian descent had no legitimate expectation from the state and would most probably remain stateless.<fnref n="63" /> The respondent state filed no response to the communication.

In dealing with the issue of non-discrimination, the African Children's Committee reiterated five critical principles. These principles are discussed below in light of the normative principles and the subsequent three communications on non-discrimination.

First, the African Children's Committee introduced racial and ethnic discrimination as prohibited and binding as *jus cogens* under international law.<fnref n="64" /> While this was a point of departure from the normative underpinnings, it reiterated various principles. The Children's Committee, by implication, uses international law as the yardstick to place agency on the child as the recipient of the rights and freedoms under the African Children's Charter, and that discrimination should not be an exception.<fnref n="65" /> In addition, the African Children's Committee by implication reiterated that the state is actively involved in identifying children affected by discrimination and is expected to take deliberate steps to remedy the situation.<fnref n="66" /> Furthermore, the Children's Committee reiterates the principle that the state is taken to play an active rather than a passive role in how it responds other than failing to act. As such, the failure of the state to address the discrimination against the Nubian children was evidence of the state playing a passive role.<fnref n="67" /> It was to this end that the African Children's Committee was not convinced that the state practice that has led

<footnote n="59">59 *Children of Nubian Descent* (n 6) para 2.</footnote>

<footnote n="60">60 *Children of Nubian Descent* (n 6) para 3.</footnote>

<footnote n="61">61 As above.</footnote>

<footnote n="62">62 *Children of Nubian Descent* (n 6) para 5.</footnote>

<footnote n="63">63 *Children of Nubian Descent* (n 6) para 56.</footnote>

<footnote n="64">64 *Children of Nubian Descent* (n 6) para 5.</footnote>

<footnote n="65">65 General Comment 5 (n 38).</footnote>

<footnote n="66">66 The Committee reiterates that this calls for dedicated additional resources that should be consciously identified and devoted to the implementation of the principle of non-discrimination. General Comment 5 (n 38) para 11.</footnote>

<footnote n="67">67 Joint General Comment (n 44) para 11.</footnote>
children being stateless for long, coupled with the discriminatory treatment, was proportional or necessary.<fnref n="68" />

Second, the African Children's Committee introduced the concept of a burden to justify fair or positive discrimination. It stated that where the facts indicate a *prima facie* case of discrimination, the burden shifts to the state to justify the difference in treatment and how this may amount to fair discrimination.<fnref n="69" /> This is amplified in the findings where the Children's Committee confirms that this burden cannot be extinguished when a state (in this case, Kenya) elects not to respond to the allegations levied against it by the complainant.<fnref n="70" />

Third, the African Children's Committee pronounced itself on the application of fair discrimination. It used jurisprudence from the African Commission and underscored three grounds that have to be proved by the state for discriminatory treatment to be justified, namely, 'the reasons for possible limitations must be founded in a legitimate state interest and ... limitations of rights must be strictly proportionate [sic] with and absolutely necessary for the advantages which are to be obtained'.

From the above, the valid reasons for discrimination are legitimacy, proportionality and absolute necessity. Interestingly, this is the first communication where the African Children's Committee refers to fair discrimination and alludes to a ground that could be used to justify it. It is argued that although the Children's Committee does not refer to the concept as 'positive discrimination' or 'differential treatment', it ought to be noted that various reasons may justify different outcomes.<fnref n="71" /> Although positive discrimination occurs where a disadvantaged group gets preferential treatment, the state may legitimately negatively discriminate against groups as well, for instance, through the denial of voting rights to non-citizens.<fnref n="72" /> While is it not a form of preferential treatment to the vulnerable group as non-citizens, it is a form of legitimate discrimination on the basis of citizenship. From an introspection, it would have been expected that the African Children's Committee would refer to article 46 (to draw inspiration from other sources of international human rights law and international humanitarian law) but it did not.

Fourth, the African Children's Committee reiterated the need for the state to take measures to facilitate procedures for the acquisition of nationality for children who would be stateless and not otherwise. This position upheld the principle that measures such as birth registration need to be enforced regardless of the whereabouts of the child's parents or guardians, their ethnicity, group, colour, sex, language, religion, political or other opinion from a national, social origin or other status

<footnote n="68">68 *Children of Nubian Descent* (n 6) para 56.</footnote>

<footnote n="69">69 *Children of Nubian Descent* (n 6) para 57.</footnote>

<footnote n="70">70 *Children of Nubian Descent* (n 6) para 5.</footnote>

<footnote n="71">71 See Brando & Lundy (n 55).</footnote>

<footnote n="72">72 See interesting conversation on this by JA Goldston 'Holes in the rights framework: racial discrimination, citizenship, and the rights of noncitizens' (2006) 20 *Ethics and International Affairs* 321-347.</footnote>
is a given.<fnref n="73" /> Most importantly, the Committee reiterated its broad-based contextual application of the principle that the status of the child is irrelevant and has no bearing on the enjoyment of the rights under the African Children's Charter.<fnref n="74" />

Fifth, the African Children's Committee enunciated a principle to the end that the violation of the principle of non-discrimination may lead to consequential violations of other provisions. It noted that the indivisibility of rights in the African Children's Charter was underscored by the consequential impact of the denial of nationality to children of Nubian descent by the state. This was evident in the finding that the state had as a consequence violated its obligations under articles 1 (to respect, protect, promote and fulfil its obligations under the African Children's Charter) and 14 (health).

It is also worth noting that the communication informed the subjective development of the jurisprudence on non-discrimination in the wording of General Comment 5 on state party obligations.<fnref n="75" /> Some specific aspects of the normative underpinnings did not come through in this communication. Others include the application of the principle of non-discrimination in all environments such as peace, conflict and host communities,<fnref n="76" /> and the mandate to ensure that all stakeholders (starting with the state) have an obligation to a child in the enjoyment of their rights.<fnref n="77" /> The author hastens to add that since the facts of the communication did not involve children in spaces of conflict, humanitarian settings, as refugees or internally displaced, it is expected that a communication with such facts will build on this jurisprudence.

Regarding the violation of state obligations under article 1, the applicants never alleged a violation of the said article. The African Children's Committee only refers to the specific articles that have allegedly been violated by the Kenyan government. These include articles 6(2), (3) and (4); 3; 14(2)(b), (c) and (g); and 11(3) of the African Children's Charter.

## 4.2 Mauritanian Enslaved Brothers

This communication was received in 2011 and the decision was handed down in 2017. The brief facts are that two children were born to the Haratine sect, which automatically recognised them as slaves.<fnref n="78" /> They served in this context to the El Hassine family and their chores involved

<footnote n="73">73 Art 6 African Children's Charter. See also General Comment on art 6 of the African Charter on the Rights and Welfare of the Child: 'Right to birth registration, name and nationality' para 16.</footnote>

<footnote n="74">74 The Committee takes on practical steps and *ejusdem generis*, identifies a non-conclusive list of children who are poor and most marginalised like rural children, children of imprisoned mothers, children on the move and the gendered dimension. See General Comment 5 (n 38) 10.</footnote>

<footnote n="75">75 General Comment 5 (n 38).</footnote>

<footnote n="76">76 General Comment 6 (n 53) paras 38-40.</footnote>

<footnote n="77">77 As above.</footnote>

<footnote n="78">78 *Mauritanian Enslaved Brothers* (n 7) para 5.</footnote>
looking after the family's heads of camels, and working for the whole
week without remuneration.<fnref n="79" /> The El Hassine family subjected the two
boys to corporal punishment and denied them the right to education.<fnref n="80" />
When the matter was brought before the lower courts, judgment and a
fine of $1 500 were handed down by the lower courts. Having been
aggrieved by the decision, attempts to appeal were not supported by the
state prosecutor.<fnref n="81" /> After a failure to solve the case at the domestic level,
the African Children's Committee found a violation of the principle of
non-discrimination under article 3. Other violations that were found by
the Children's Committee included the best interests of the child; the
right to life, survival and development;<fnref n="82" /> the right to education, leisure,
recreation and cultural activities; and protection from economic
exploitation.<fnref n="83" /> In addition, the African Children's Committee found a
violation of protection against harmful cultural and social practices and
the prevention of trafficking in and abduction of children.<fnref n="84" />

Concerning discrimination, the complainants argued that since
they were treated differently from children who were not slaves, this
was a violation of the principle and right to non-discrimination. As
such, the respondent's failure to prevent and investigate acts of
discrimination, and ensuring the punishment of perpetrators with a
view of ensuring redress to the victims, amounted to discrimination.<fnref n="85" />
The complainants further argued that the treatment of the two children
and the failure of the government to prevent such treatment and to
provide an effective remedy violated their rights to education, survival
and development, leisure, recreation, and cultural activities as a result
of the discriminatory engagements by the state.<fnref n="86" /> The respondent state
did not specifically address its mind to the issues of discrimination.<fnref n="87" />
Interestingly, it gave a general approach by the government in ensuring
that the rights of the child were not violated, such as a legislative
framework that protected children against abuse;<fnref n="88" /> the development of
a plan of action against child labour;<fnref n="89" /> the enrolment of the children in
school;<fnref n="90" /> and the prosecution of the perpetrators.<fnref n="91" />

In the evaluation of the violation of the principle of non-
discrimination, the African Children's Committee showcased three
points in its approach in this communication. First, it reiterated that for

<footnote n="79">79 *Mauritanian Enslaved Brothers* (n 7) paras 6-7.</footnote>

<footnote n="80">80 As above.</footnote>

<footnote n="81">81 As above.</footnote>

<footnote n="82">82 *Mauritanian Enslaved Brothers* (n 7) para 12.</footnote>

<footnote n="83">83 As above.</footnote>

<footnote n="84">84 As above.</footnote>

<footnote n="85">85 *Mauritanian Enslaved Brothers* (n 7) para 35.</footnote>

<footnote n="86">86 As above.</footnote>

<footnote n="87">87 *Mauritanian Enslaved Brothers* (n 7); see the silence in the respondent's submissions on the arguments on the merits of the communication in paras 36-41.</footnote>

<footnote n="88">88 *Mauritanian Enslaved Brothers* (n 7) para 36.</footnote>

<footnote n="89">89 *Mauritanian Enslaved Brothers* (n 7) para 37.</footnote>

<footnote n="90">90 *Mauritanian Enslaved Brothers* (n 7) para 38.</footnote>

<footnote n="91">91 *Mauritanian Enslaved Brothers* (n 7) para 39.</footnote>
a state to justify the use of differential treatment, three aspects should exist, namely, ‘a legitimate state interest, limitations that are proportionate with, and necessary for the advantages for which they are obtained’.<fnref n="92" /> It should be stated that this approach maintained consistency by the African Children’s Committee in referring to its earlier jurisprudence on differential treatment.<fnref n="93" /> Second, the Children’s Committee relied on persuasive jurisprudence as referred to in article 46, such as communications from the African Commission and the Inter-American Commission.<fnref n="94" />

Third, and closely linked to the foregoing position, the African Children's Committee used the extent to which a state upholds its legal responsibilities. With an emphasis on the acts of discrimination by private individuals, the Children's Committee recalled that the state has the duty to protect children from discrimination by taking preventive measures against violations by private individuals and providing remedial actions to correct the violations.<fnref n="95" /> The cumulative effect of the second and third pointers was the application of the due diligence principle that requires the state to take steps to prevent and investigate human rights violations, impose the appropriate punishment and ensure adequate compensation.<fnref n="96" /> The introduction of the due diligence principle is a reiteration of the agency on the child to have entitlements to rights and freedoms under the African Children's Charter.<fnref n="97" /> In addition, the use of the due diligence principle is a clarion call that the state has to actively identify individual children and groups of children (slaves in this communication) whose recognition and subsequent realisation of their rights require special measures.<fnref n="98" /> By implication, it is correct to assert that the state fails to be actively involved in the engagement of the non-discrimination discourse.<fnref n="99" /> To this end, the state is not committed to ensuring non-discrimination against the children who are slaves.<fnref n="100" /> Closely related to the above, the failure by

<footnote n="92">92 *Mauritanian Enslaved Brothers* (n 7) para 61, notes 29 & 62, note 31.</footnote>

<footnote n="93">93 See General Comment 1 (n 58) para 18; *Children of Nubian Descent* (n 6); *Sudanese Nationality* (n 8) as discussed above.</footnote>

<footnote n="94">94 *Mauritanian Enslaved Brothers* (n 7) para 62; *Children of Nubian Descent* (n 6) and *Sudanese Nationality* (n 8) as discussed above. In addition, the point of departure was the application of persuasive jurisprudence that was not covered by art 46 such as textbooks and legal literature. It is reiterated that the application of art 46 is still not unpacked and qualified as to the bounds of its use. It is argued that the application of persuasive jurisprudence without reference to the interpretation of art 46 is a missed opportunity to establish the bounds of its application.</footnote>

<footnote n="95">95 *Mauritanian Enslaved Brothers* (n 7) para 62, note 30.</footnote>

<footnote n="96">96 As above. The due diligence principle is amplified in paras 47-58. For more on the due diligence principle, see RD Nanima 'Evaluating the role of the African Committee of Experts on the Rights and Welfare of the Child in the COVID-19 era: visualising the African child in 2050' (2021) 21 *African Human Rights Law Journal* 52-73. See also RD Nanima 'Evaluating the jurisprudence of the African Commission on evidence obtained through human rights violations' (2020) 53 *De Jure Law Journal* 307-331.</footnote>

<footnote n="97">97 General Comment 5 (n 38).</footnote>

<footnote n="98">98 Art 1 African Children's Charter.</footnote>

<footnote n="99">99 See General Comment 5 (n 38) para 11.</footnote>

<footnote n="100">100 See discussion on this principle in part 3.</footnote>
the state to support the two minors by integrating them into their society is a failure to show commitment and a lack of the use of equitable treatment measures to mitigate the effects of discrimination by the state (as a duty bearer) and different stakeholders.<fnref n="101" />

Regarding the violation of state obligations under article 1, the applicants expressly alleged a violation of the said article in relation to other articles such as articles 3, 4, 5, 11, 12, 16 and 29. The African Children's Committee finds a violation of article 1 and other provisions of the African Children's Charter. This indicates that the African Children's Committee will find a violation of an article when it is expressly pleaded by the applicant.

### 4.3 Cameroonian Child Rape

This was the third communication to be decided concerning non-discrimination. It was received in 2015 and decided in 2018. The complainants claimed violations of articles 1, 2, 5, 7 and 17 of the African Children's Charter by the respondent state. These articles related to state party obligations; the definition of a child; the right to life, survival and development; freedom of expression; and protection against child abuse and torture.<fnref n="102" /> The facts alleged showed that the victim had been raped by an important individual in the community on three occasions.<fnref n="103" /> Attempts to have justice were delayed by the police and, as a result, the Court dismissed the case.<fnref n="104" /> When the complainant's mother went to a local radio station to express her dissatisfaction with the outcome of the case, she was charged with judicial defamation.<fnref n="105" />

The African Children's Committee reiterated the agency on the child even in instances where the applicant's assertions in the complaint do not point to the violation. In this regard, it stated:<fnref n="106" />

> Article 3 of the Charter stipulates that all children are entitled to the enjoyment of the rights provided therein irrespective of all grounds including sex. This provision is clear that any form of gender based discrimination against girls is prohibited, however, it does not vividly portray that sexual violence is a form of gender based discrimination as argued by the applicants.

This position reiterates that non-discrimination should be looked at in a wider perspective which inculcates all grounds that would show discriminatory acts, and that their status is irrelevant in qualifying the existence of discrimination. In addition, any form of discrimination should not be encouraged but rather prohibited. Finally, despite the failure to articulate the form of discrimination, the African Children's

<footnote n="101">101 General Comment 5 (n 38) 9.</footnote>

<footnote n="102">102 *Cameroonian Child Rape* (n 9) para 6.</footnote>

<footnote n="103">103 *Cameroonian Child Rape* (n 9) para 18.</footnote>

<footnote n="104">104 *Cameroonian Child Rape* (n 9) para 14.</footnote>

<footnote n="105">105 As above.</footnote>

<footnote n="106">106 *Cameroonian Child Rape* (n 9) para 59.</footnote>
Committee would go ahead to read in the violation in light of its
evaluation of the facts before it.

The African Children's Committee reiterated the active role of the
state in identifying vulnerable children and taking steps to remedy their
situations. To this end, it used a two-step approach by, first, applying
article 46 of the African Children's Charter to draw inspiration from
other sources of human rights law. This was informed by the
jurisprudence of the Inter-American Commission of Human Rights,<fnref n="107" />
the African Commission<fnref n="108" /> and the European Court of Human Rights
and Fundamental Freedoms.<fnref n="109" /> Second, the African Children's
Committee relied on the jurisprudence of the CEDAW Committee and
applied the principle of due diligence,<fnref n="110" /> with the aid of X and Y v
Georgia from the CEDAW Committee, where it was held that there is a
violation of the principle of non-discrimination where the respondent
state fails to take legislative measures to protect the victim from
domestic violence. The CEDAW Committee reiterated that even where
the state was not directly responsible for the violation of the principle
of non-discrimination, it was important that the failure to exercise due
diligence to investigate and prosecute the perpetrators of the crime
made it accountable under international law.<fnref n="111" /> As such, the African
Children's Committee found that the sexual abuse committed against
the child disabled her from enjoying the protection under the African
Children's Charter.<fnref n="112" /> It also added that although the discriminatory act
had not been perpetrated by state actors, the state has failed to deliver
its obligation to protect the child as far as it failed to investigate the
alleged violation.<fnref n="113" />

Regarding the violation of state obligations under article 1, the
applicants expressly alleged a violation of the said article in addition to
violations of articles 3 and 16. The African Children's Committee found
the respondent state in violation of its obligations under article 1
(obligation of state parties); article 3 (non-discrimination); and article
16 (protection against child abuse and torture) of the African Children's
Charter. This still points to the finding of violations with respect to
provisions that have been pleaded by the applicant.

4.4 Sudanese Nationality

In *Sudanese Nationality*, parents who were from areas that were now
gazetted to South Sudan wanted to maintain their nationality with
Sudan. They were not considered nationals of Sudan and, as a
consequence, the children were also denied nationality. The main issue

<footnote n="107">107 *Cameroonian Child Rape* (n 9) para 54.</footnote>

<footnote n="108">108 *Cameroonian Child Rape* (n 9) para 53.</footnote>

<footnote n="109">109 *Cameroonian Child Rape* (n 9) paras 49 & 50.</footnote>

<footnote n="110">110 *Cameroonian Child Rape* (n 9) para 63.</footnote>

<footnote n="111">111 *Cameroonian Child Rape* (n 9) para 63.</footnote>

<footnote n="112">112 *Cameroonian Child Rape* (n 9) para 64.</footnote>

<footnote n="113">113 *Cameroonian Child Rape* (n 9) paras 65 & 66.</footnote>
was whether the violation of the principle of non-discrimination led to
the violation of the right to acquire nationality.<fnref n="114" /> The African
Children's Committee held the view that the enjoyment of the right to
non-discrimination was not a condition after a balancing act before it
was applied.<fnref n="115" /> Consequently, the Committee correctly stated that the
right cannot be denied in disregard of the principles that govern non-
discrimination as provided for in article 3 of the African Children's
Charter.<fnref n="116" />

The African Children's Committee adopted a conceptual approach requiring that the state party should not use discriminatory regulations on different groups of a population in the grant of nationality.<fnref n="117" /> It found that, as such, the law of the Sudan on the acquisition of nationality was discriminatory since it allowed fathers (excluding the mothers) of Sudanese children to automatically confer nationality on their children.<fnref n="118" /> In addition, the African Children's Committee expounded on the use of reciprocity and retaliation. This was based on the fact that a similar law was applied by South Sudan to deny nationality to children from Sudan.<fnref n="119" /> The African Children's Committee stated that the respondents' attempt to use reciprocity and retaliation was not applicable in areas of human rights, but in other areas such as trade, intellectual property and technology transfer.<fnref n="120" /> This was an important assertion in terms of qualifying retaliation and reciprocity regarding the application of the principle of non-discrimination.<fnref n="121" /> This meant that the status of the child was irrelevant and had no bearing on the enjoyment of the rights under the African Children's Charter.<fnref n="122" />

The African Children's Committee departed from the literal approach that looked at non-discrimination as a principle and not a right in *Children of Nubian Descent* and took on a conceptual approach that establishes a link between the principle of non-discrimination and the right to acquire nationality.<fnref n="123" /> This approach creates an interesting pattern upon which the African Children's Committee builds to develop its jurisprudence. First, it refers to non-discrimination as both a principle and as a right – an inherent entity of which the state cannot deprive a child.<fnref n="124" /> This approach adds value to the placement of a

<footnote n="114">114 *Sudanese Nationality* (n 8) para 31.</footnote>

<footnote n="115">115 *Sudanese Nationality* (n 8) para 32, lines 1, 2 & 3.</footnote>

<footnote n="116">116 *Sudanese Nationality* (n 8) para 32, lines 11-13.</footnote>

<footnote n="117">117 *Sudanese Nationality* (n 8) paras 37-38.</footnote>

<footnote n="118">118 *Sudanese Nationality* (n 8) paras 39-41.</footnote>

<footnote n="119">119 *Sudanese Nationality* (n 8) para 48.</footnote>

<footnote n="120">120 *Sudanese Nationality* (n 8) para 51.</footnote>

<footnote n="121">121 As above.</footnote>

<footnote n="122">122 The Committee takes on practical steps and *ejusdem generis*, identifies a non-conclusive list of children who are poor and most marginalised like rural children, children of imprisoned mothers, children on the move and the gendered dimension.</footnote>

<footnote n="123">123 *Sudanese Nationality* (n 8) para 31.</footnote>

<footnote n="124">124 *Sudanese Nationality* (n 8) para 32, line 1.</footnote>
contextual agency on the child to have entitlements to rights and
freedoms under the African Children's Charter.<fnref n="125" />

Second, it states that the enjoyment of the right to non-discrimination is not subject to a balancing act for the principle to be applied.<fnref n="126" /> Consequently, the African Children's Committee correctly stated that the right cannot be denied in disregard of the principles that govern non-discrimination as provided for in article 3 of the African Children's Charter.<fnref n="127" /> This means that the state cannot use the principle of non-discrimination to violate the rights of a child.

Third, the African Children's Committee shared the view that in the context of nationality and non-discrimination, the 'link between the prohibition of discrimination and the right to nationality emanates from the very meaning and benefit of nationality'.<fnref n="128" /> As such, it advises that the benefits that an individual has with a nation as a result of a social and legal bond ought to flow to the children without the application of arbitrary and discriminatory laws.<fnref n="129" /> It is argued that this is in line with the principle that the status of the child is irrelevant and does not have any bearing on the enjoyment of the rights under the African Children's Charter.<fnref n="130" /> The point of departure is that the African Children's Committee uses a conceptual approach to apply its broad-based contextual application.

Fourth, using the conceptual approach, the African Children's Committee then decided the allegation of the violation of article 3 by answering two questions: (i) whether Sudan's nationality laws have discriminatory provisions on the acquisition of nationality; and (ii) whether Sudan's nationality laws have discriminatory provisions on the deprivation of nationality. In answering question 1, the African Children's Committee uses a dual approach where it first relies on its jurisprudence in General Comment 2 and *Children of Nubian Descent* to explain the link between the principle of non-discrimination and the acquisition of nationality.<fnref n="131" /> Second, it refers to persuasive jurisprudence from other human rights monitoring bodies on the international and national scene. For instance, there is a reference to the *Expelled Dominicans and Haitians v the Dominican Republic* of the Inter-American Commission, the Convention on the Elimination of all Forms of Discrimination Against Women, and the Namibian High Court case of *Unity Dow*. The common denominator granulated from all these decisions is the need for mechanisms at the state level to avoid the use of discriminatory regulatory regulations or processes on

<footnote n="125">125 General Comment 5 (n 38) as discussed in part 3.</footnote>

<footnote n="126">126 *Sudanese Nationality* (n 8) para 32, lines 1, 2 & 3.</footnote>

<footnote n="127">127 *Sudanese Nationality* (n 8) para 32, lines 11-13.</footnote>

<footnote n="128">128 *Sudanese Nationality* (n 8) para 33.</footnote>

<footnote n="129">129 As above.</footnote>

<footnote n="130">130 The Committee takes on practical steps and *ejusdem generis*, identifies a non-conclusive list of children who are poor and most marginalised such as rural children, children of imprisoned mothers, children on the move and the gendered dimension. General Comment 5 (n 38) para 10.</footnote>

<footnote n="131">131 *Sudanese Nationality* (n 8) para 36 refers to the African Children's Committee General Comment 2 on art 6 of the African Children's Charter.</footnote>
different groups of a population in granting nationality.<fnref n="132" /> This dual approach leads to the recommendation that the Sudanese law on the acquisition of nationality is discriminatory as far as it allows fathers of Sudanese children to automatically confer nationality on their children other than mothers.<fnref n="133" />

Regarding question 2, the African Children's Committee conceptualises the arbitrary deprivation of nationality as a possible violation of the principle of non-discrimination.<fnref n="134" /> It does this in four ways: first, it qualifies the extent to which a state may use sovereignty to decide to confer, withdraw or regulate the nationality of an individual.<fnref n="135" /> It argues that the arbitrary deprivation of nationality is a limit to the sovereignty of states. As such, state sovereignty is not a magic wand at the beckon of states to arbitrarily deny an individual of their nationality.<fnref n="136" /> This pronouncement by the African Children's Committee creates a basis to place an agency on the child in light of the enjoyment of the various rights and freedoms under the African Children's Charter.<fnref n="137" />

Second, the African Children's Committee still reiterates the use of persuasive jurisprudence from other human rights monitoring mechanisms to adopt a definition of 'arbitrariness'. To this, a General Comment of the Human Rights Committee<fnref n="138" /> and the case of *Girls Yean and Bosico v Dominican Republic*<fnref n="139" /> are used to state that if a state uses discrimination to deprive one of his nationality, arbitrariness is rendered present.<fnref n="140" /> This position by the African Children's Committee adds value to the positioning of the state as an active player in the engagement of the non-discrimination discourse by relating to good practices when it visits countries on field missions.<fnref n="141" /> The pronouncement calls for the state to go beyond a commitment to actual deliberate steps in ensuring that there is no arbitrariness in handling matters of nationality.<fnref n="142" /> It is desirable that where the African Children's Committee uses persuasive jurisprudence, article 46 is unpacked and qualified to the bounds of its use (just as it did in this communication).

Third, the African Children's Committee undertakes a value analysis of the provisions of the state's laws in comparison with the

<footnote n="132">132 *Sudanese Nationality* (n 8) paras 37-38.</footnote>

<footnote n="133">133 *Sudanese Nationality* (n 8) paras 39-41.</footnote>

<footnote n="134">134 *Sudanese Nationality* (n 8) paras 42-53.</footnote>

<footnote n="135">135 *Sudanese Nationality* (n 8) para 42.</footnote>

<footnote n="136">136 *Sudanese Nationality* (n 8) para 42.</footnote>

<footnote n="137">137 This is the import of General Comment 5 as discussed in part 3.</footnote>

<footnote n="138">138 General Comment on the right to respect privacy, family, home and correspondence and protection of honour and reputation art 17 para 4; in *Sudanese Nationality* (n 8) para 43.</footnote>

<footnote n="139">139 Judgment of 8 September 2005 para 140; in *Sudanese Nationality* (n 8) para 45.</footnote>

<footnote n="140">140 As above.</footnote>

<footnote n="141">141 The Committee reiterates that this calls for dedicated additional resources that should be consciously identified and devoted to the implementation of the principle of non-discrimination. See General Comment 5 (n 38) para 11.</footnote>

<footnote n="142">142 Joint General Comment (n 44) para 11.</footnote>
position of the African Children's Charter. This is evident in the analysis of the laws that govern the conferment, withdrawal and regulation of nationality in Sudan. 143 This analysis fell within the bounds of violation of the principle of non-discrimination as the African Children's Committee related the non-willingness of the respondent state to confer nationality on the complainants. 144 By implication, the African Children's Committee reiterated the position that the state retains the obligation to actively identify individual children (born of South Sudanese parents) and groups of children whose recognition and subsequent realisation of their rights require special measures (such as of children of South Sudanese mothers whose fathers' nationality was revoked). 145

Fourth, and as a consequence, the African Children's Committee addressed the question of the place of the use of reciprocity and retaliation. It noted that the respondent state reiterated its position because of a similar law that was being applied by South Sudan. 146 Using a hypothetical, the African Children's Committee stated that where state Y is violating its child rights obligations concerning children who are nationals of state X, the latter should reciprocate to the former. It correctly stated that while the principles of reciprocity and retaliation may operate in areas of the law such as trade, intellectual property and technology transfer, they do not extend to human rights obligations. 147 This was an important assertion in terms of qualifying retaliation and reciprocity regarding the application of the principle of non-discrimination. 148 It may be argued that this communication calls for legislative and administrative measures to address the challenges that children of South Sudanese parents (especially South Sudanese mothers, where the fathers do not have Sudanese nationality). This requires the need for the use of equitable rather than equal treatment in the use of special measures to mitigate the effects of discrimination. 149 The African Children's Committee takes a stance on deferential treatment as a result of the application of the Sudan Nationality Act as a position that is against the object and purpose of the principle of non-discrimination in the African Children's Charter. There is a clear reiteration that the status of the child is irrelevant and has no bearing on the enjoyment of the rights under the African Children's Charter. 150

Regarding the violation of state obligations under article 1, the
applicants never alleged a violation of the said article. It is interesting

<footnote n="143">143 *Sudanese Nationality* (n 8) paras 46-49.</footnote>

<footnote n="144">144 *Sudanese Nationality* (n 8) para 49.</footnote>

<footnote n="145">145 Art 1 African Children's Charter.</footnote>

<footnote n="146">146 *Sudanese Nationality* (n 8) para 48.</footnote>

<footnote n="147">147 *Sudanese Nationality* (n 8) para 51.</footnote>

<footnote n="148">148 As above.</footnote>

<footnote n="149">149 General Comment 5 (n 38) as discussed in part 2.</footnote>

<footnote n="150">150 The Committee takes on practical steps and *ejusdem generis*, identifies a non-conclusive list of children who are poor and most marginalised such as rural children, children of imprisoned mothers, children on the move and the gendered dimension. See General Comment 5 (n 38) 10.</footnote>
to note that the African Children's Committee does not expressly state so as well. It rather states that it finds the respondent state in violation of its obligations under article 3 on non-discrimination, articles 6(3) and (4) on the right to nationality and prevention of statelessness, and article 11 on education. From the tenor of the African Children's Committee, it reads a violation of article 1 of the African Children's Charter.

## 4.5 Tanzanian Girls

The uncontested facts by the complainants that show discrimination indicate that, first, the primary and secondary schoolgoing girls were subjected to forced pregnancy testing and expulsion from schools.151 Second, the statistics showed a disturbing trend in the numbers of girls that dropped out of school due to pregnancy, with over 55 000 female students between 2003 and 2011, and 2 433 girls in primary and 4 705 in secondary schools in 2012.152 Third, the practice of forced pregnancy testing was done on girls as young as 11 years and it was not done according to the standard procedures.153 In addition, the results of the testing were not communicated to the students but shared with the school staff – a position that led to an alleged violation of their privacy, and exacerbated the stigma.154

It suffices to note that the practice was neither prescribed by the Education Regulations nor included as a ground for expulsion in the Education (Expulsion and Exclusion from School) Regulation of 2002.155 It was further contended that since the expulsion of the girls was a universal practice in public schools in Tanzania, the girls who discovered that they were pregnant dropped out of school to escape the humiliation and stigma.156 There was no exception in the application of the expulsion and exclusion even in instances where the pregnancy was due to sexual abuse or incest.157 Married girls are not allowed to register or to remain in school under the Education (Imposition of Penalties to Persons Who Marry or Impregnate a School Girl) Rules of 2003.158 It was also noted that expulsion and exclusion is a permanent measure that disallows girls from readmission into public schools, not to mention the subjection of girls to unlawful detention and/or harassment by the investigating officers.159 The respondent state did not contest the facts but argued that it retained the margin of appreciation regarding the circumstances in the provision of the right

<footnote n="151">151 *Tanzanian Girls* (n 10) para 2.</footnote>

<footnote n="152">152 *Tanzanian Girls* (n 10) para 2.</footnote>

<footnote n="153">153 *Tanzanian Girls* (n 10) para 3.</footnote>

<footnote n="154">154 As above.</footnote>

<footnote n="155">155 *Tanzanian Girls* (n 10) para 4.</footnote>

<footnote n="156">156 As above.</footnote>

<footnote n="157">157 As above.</footnote>

<footnote n="158">158 *Tanzanian Girls* (n 10) para 5.</footnote>

<footnote n="159">159 *Tanzanian Girls* (n 10) para 6.</footnote>
to education and, as such, had the prerogative to limit the rights of the girls to education if it aimed to achieve a given result.<fnref n="160" />

The African Children's Committee laboured to contextualise differential treatment as one of the complementary elements of the right (not the principle) to non-discrimination.<fnref n="161" /> It is necessary to differentiate because the African Children's Committee clarifies that non-discrimination may pass as a principle, as a right or as both. It identified three complementary elements to non-discrimination as differential treatment, interference and rights and freedoms in the African Children's Charter.<fnref n="162" /> With the aid of textbooks, the African Children's Committee upheld the persuasion that these three elements inform the application of the rights under the African Children's Charter and CRC.<fnref n="163" /> It also reiterated the grounds for differential treatment to be (i) reasonability; (ii) objectivity; and (iii) to achieve a legitimate purpose.<fnref n="164" /> This position embraces the earlier stance in *Children of Nubian Descent* where the state bears the burden to justify the difference in treatment and how this may amount to fair discrimination.<fnref n="165" /> Another important aspect that the African Children's Committee noted was that the right to non-discrimination was absolute and not bound by a balancing test.<fnref n="166" /> This is a reiteration of its position in *Sudanese Nationality*.<fnref n="167" /> Interestingly, the African Children's Committee qualified the use of necessity as a defence for the state in the application of differential treatment. It stated that a restriction on a right is necessary if there is no other alternative to achieve the intended objective.<fnref n="168" />

Regarding the expulsion of pregnant girls from school, the African Children's Committee stated that the act of the respondent state in the expulsion of pregnant girls from school perpetuated negative and discriminatory attitudes which, in turn, led to child marriage and teenage pregnancy.<fnref n="169" /> It is argued that by implication the African Children's Committee states that an act of a state party that perpetuates negative and discriminatory attitudes and tendencies is a violation of its obligations under the African Children's Charter. It is to this end that the African Children's Committee found that the state's perpetuation of the expulsion of pregnant girls with no re-entry, forced pregnancy testing, detention of pregnant girls, and the affected girls' socio-economic status not only amounted to a violation of the provisions of the African Children's Charter, such as the rights to health and education, other than article 3.

<footnote n="160">160 *Tanzanian Girls* (n 10) para 27.</footnote>

<footnote n="161">161 *Tanzanian Girls* (n 10) para 53.</footnote>

<footnote n="162">162 *Tanzanian Girls* (n 10) para 53.</footnote>

<footnote n="163">163 As above.</footnote>

<footnote n="164">164 As above.</footnote>

<footnote n="165">165 *Children of Nubian Descent* (n 6) para 57.</footnote>

<footnote n="166">166 *Tanzanian Girls* (n 10) para 53.</footnote>

<footnote n="167">167 *Sudanese Nationality* (n 8) para 32, lines 7-10.</footnote>

<footnote n="168">168 *Tanzanian Girls* (n 10) para 54.</footnote>

<footnote n="169">169 *Tanzanian Girls* (n 10) para 55.</footnote>
Some pointers are discernible when one compares and contrasts the principles in part 3 above and this communication. First, the African Children's Committee reiterates the agency on the child to have entitlements to rights and freedoms under the African Children's Charter.<fnref n="170" /> It calls upon the state to actively identify the individual children and groups of children, not for purposes of punishment but for their recognition and subsequent realisation that their rights require special measures.<fnref n="171" /> It may be argued that the act of the state in perpetuating the vice of forced pregnancy testing eludes its role as an active player in the engagement of the non-discrimination discourse.<fnref n="172" /> Other than generalising these to more general principles, it is argued that the communications offer interpretation from a jurisprudential perspective to understanding normative elements of non-discrimination. These jurisprudential developments should then be incorporated into the broader understanding of the principle of non-discrimination.

Regarding the violation of state obligations under article 1, the articles that the applicants expressly alleged violations of were the only ones that formed the finding by the Committee. The African Children's Committee found a violation of its obligations under article 1 (obligation of state parties); article 3 (non-discrimination); article 4 (best interests of the child); article 10 (protection of privacy); article 11 (education); article 14 (health and healthcare services); article 16 (protection against child abuse and torture); and article 21 (protection against harmful social and cultural practices).

## 5 WAY FORWARD

This article has evaluated the argument that the African Children's Committee could do more in realigning the normative underpinnings to the jurisprudential developments on the principle of non-discrimination. An evaluation of the normative framework spoke largely to 12 principles as discussed in part 3 above.<fnref n="173" /> An evaluation of the selected five communications indicated that not all the 12 principles have been engaged by the African Children's Committee to the latter. Some specific principles that stand out include the agency of the child, the state party as an active player and the question of differential treatment. It should be noted that the African Children's Committee has had divergent approaches in the interpretation of the principles in the five selected communications. First, it has used literal engagement of the principles, on the one hand, and adopted implicit approaches on the other. This was evident in *Children of Nubian Descent*. The African Children's Committee has adopted principles that are not necessarily in

<footnote n="170">170 General Comment 5 (n 38).</footnote>

<footnote n="171">171 Art 1 African Children's Charter.</footnote>

<footnote n="172">172 The Committee reiterates that this calls for dedicated additional resources that should be consciously identified and devoted to implementation of the principle of non-discrimination. See General Comment 5 (n 38) 11.</footnote>

<footnote n="173">173 See part 3 on the 12 principles.</footnote>
tandem with the normative approach but rather act as a vehicle to ensure that non-discrimination (as a principle and a right) is upheld by state parties, as shown in *Sudanese Nationality, Mauritanian Enslaved Brothers* and *Tanzanian Girls*. Some of the divergent conceptual approaches by the African Children's Committee still embrace some of the 12 principles.¹⁷⁴ A review of the Children's Committee's approach in its Concluding Observations to state parties should be done to establish the trend concerning both its normative and jurisprudential framework.

In relation to the above, there are specific principles that, by implication, by the fact that the matters are considered by the African Children's Committee on their merits, have been applied. These include (i) that the status of the child is irrelevant and does not have any bearing on the enjoyment of the rights; (ii) the African Children's Committee is not suggestive of an exclusive list of vulnerable children; (iii) that non-discrimination applies in all environments; (iv) that the child is mandated to enjoy all the rights and freedoms in all environment, starting with the state; (v) that a finding of a violation of this principle is interlinked with a failure by the state to uphold obligations under article 1; and, finally, (vi) that all stakeholders, persons or entities should ensure that the child enjoys his or her rights.

It has been established that there is minimal literature on the principle of non-discrimination on article 3 of the African Children's Charter. Most of the wealth of the literature is on CRC. An evaluation of the normative aspects of the principle points to four major guiding principles, as discussed in part 3. A closer look at the communications has revealed with clarity that they add value to the overall conception of non-discrimination and there is intent to apply the principle in three narratives: first, as a principle in its standing as part of the child rights-based approach; second, as a right; and third, as both a principle and a right.

Without prejudice to the foregoing, the five communications reveal various points of intersection and departure concerning the rest of the principles. An appreciation of these principles is critical to informing the way forward. This part summarises the approach of the African Children's Committee and hints on a way forward.

## 5.1 Agency on the child

As a matter of principle, all five communications reiterate the normative foundations of attaching an agency to the child as the recipient of the rights and freedoms under the African Children's Charter, and that discrimination should not be an exception. The difference is in the departure from a literal approach in *Children of Nubian Descent* and *Cameroonian Child Rape* to a conceptual stance in *Sudanese Nationality* and *Mauritanian Enslaved Brothers*, and a contextual approach in *Tanzanian Girls*. The literal approach in
*Children of Nubian Descent* is in reference to the interpretation of article 3 in light of the facts in the communication without labouring to develop jurisprudence at this stage. This is understandable as this was the first decision of the African Children's Committee. For instance, the findings on ethnic and racial discrimination as prohibitions under international law reflect this position. The conceptual stance was applied in *Sudanese Nationality* as regards the qualification of non-discrimination as both a principle and as a right. The due diligence principle was also applied in *Mauritanian Enslaved Brothers*. As a right, the qualification would be in the use of the obligation of result as the litmus test to establish the extent to which the state had upheld its obligations under the African Children's Charter. The contextual approach *Tanzanian Girls* shows the steps taken by the African Children's Committee to contextualise known elements of the principle of non-discrimination in international law. While the conceptual was greatly tilted to the factual elements of the communications, the contextual approach finds its positioning in the use of legal principles that would be used to align the understanding of the principles of non-discrimination for a legislative setting; the unpacking of the principles of the right to non-discrimination, the use of differential treatment, and the centrality of the child in answering the African child question.

## 5.2 Obligation on the state as an active (rather than a passive) player

In addition, the African Children's Committee reminds state parties to remain active rather than passive players in the engagement of the non-discrimination discourse. It should be noted that in all five communications, the African Children's Committee does not expressly state that states should be active players. Rather, the call is implied across the five communications. It is discernible that the African Children's Committee's wording in all five communications is suggestive of the fact that (i) the failure to take steps to correct the violations;175 (ii) the application of a discriminatory law;176 (iii) the failure to exercise due diligence;177 and (iv) the perpetuation of discriminatory practices (that may lead to unfortunate lived realities for children),178 makes the state a passive other than an active player. The African Children's Committee should impress this obligation on states and also call on other stakeholders to be accountable in their activities. For instance, civil society and national human rights institutions are critical stakeholders in ensuring that states are accountable for steps taken to ensure the implementation of the African Children's Charter.

<footnote n="175">175 *Children of Nubian Descent* (n 6) para 74.</footnote>

<footnote n="176">176 *Sudanese Nationality* (n 8) para 49.</footnote>

<footnote n="177">177 *Mauritanian Enslaved Brothers* (n 7) paras 47-58, 62.</footnote>

<footnote n="178">178 *Tanzanian Girls* (n 10) para 55.</footnote>
5.3 Differential treatment as positive discrimination

The African Children’s Committee has taken strides to develop its jurisprudence on the use of differential treatment. This concept is considered in all five communications. In *Children of Nubian Descent* the African Children’s Committee acknowledged that for differential treatment to be justified, the state ought to explain the use of grounds of legitimacy, proportionality and absolute necessity. In *Sudanese Nationality* it evaluates the three grounds with the state’s application of the Nationality Act. In *Mauritanian Enslaved Brothers* the African Children’s Committee reiterates the three grounds enunciated in *Children of Nubian Descent*.179 In *Tanzanian Girls* the African Children’s Committee contextualises three elements of differential treatment, interference, and rights as the complementary elements of the right to non-discrimination.180

Second, the African Children’s Committee introduced the concept of a burden to justify fair or differential treatment as a preserve of the state – if differential treatment is to be used. It stated that where the facts before the African Children’s Committee indicate a prima facie case of discrimination, the burden shifts to the state to justify the difference in treatment and how this may amount to fair discrimination.181 This position is reiterated in *Tanzanian Girls*.182 The placement of the burden on the state is important in ensuring that the duty bearers do not abuse the principles governing non-discrimination. Without prejudice to the foregoing, an actual engagement of the grounds for differential treatment should be deliberately subjected to facts to ensure that an informed application of the principle is used.

5.4 Use of inspiration from other sources under article 46

What is interesting to note, in all the communications, is that the African Children’s Committee refers to persuasive jurisprudence. The point of departure is the reference to textbooks and commentaries as persuasive jurisprudence. A reading of article 46 of the African Children’s Charter does not expressly point to the use of textbooks as persuasive jurisprudence. Rather, it refers to the use of inspiration from international human rights law as provided for specifically in (i) the African Charter; (ii) the then Charter of the OAU (now the Constitutive Act of the African Union); (iii) the Universal Declaration; and (iv) CRC. On a general front, persuasive jurisprudence may be obtained from other instruments adopted by the UN and by African countries in the

<footnote n="179">179 *Mauritanian Enslaved Brothers* (n 7) paras 61, notes 29 & 62, note 31; *Children of Nubian Descent* (n 6); *Sudanese Nationality* (n 8).</footnote>

<footnote n="180">180 *Tanzanian Girls* (n 10) para 53.</footnote>

<footnote n="181">181 *Children of Nubian Descent* (n 6) para 57.</footnote>

<footnote n="182">182 As above.</footnote>
field of human rights, and African values and traditions.<fnref n="183" /> The author argues that any materials other than the specific and general sources in article 46 should include international human rights law or African values and customs. The African Children's Committee should prepare a guiding note or a document on the application of article 46. As of now, it is rarely placed in context, let alone mentioned in the communications. A conceptual or contextual appreciation of the application of article 46 is instructive in its application.

**5.6 Non-discrimination: principle, right or both?**

The African Children's Committee envisages an important approach to non-discrimination. While it refers to the same as one of the cardinal four principles that inform the child rights-based approach, it also refers to the same as a right. For instance, it should be recalled that in *Children of Nubian Descent*, non-discrimination is approached as a principle. In *Sudanese Nationality*, the African Children's Committee interchangeably refers to non-discrimination as a right and a principle. This approach introduces a triple obligation on the state to, first, ensure that the child is not deprived of their inherent entity, on the one hand,<fnref n="184" /> and second, to use the right to non-discrimination as a basis for the enjoyment of the right to nationality; third, to uphold the place of the principle of non-discrimination as one that is not subject to a balancing act.<fnref n="185" /> It is acknowledged that the reference to the principle as a right is not fatal in implementing the rights of the child. In domestic circles, the right to non-discrimination is often tagged with the right to equality.<fnref n="186" /> However, there is a lack of clarity on whether the reference to non-discrimination as a right or a principle, by design, is default or chance. For the sake of jurisprudential development, this kind of application requires thinking through the approach used.

**5.7 Reciprocity and retaliation as non-qualifiers to the application of the principle of non-discrimination**

The African Children's Committee pronounced itself on specific principles that may apply in international law, in bilateral treaties, but not in instances where human rights are at stake. To this end, as such, while the principles of reciprocity and retaliation may operate in areas of the law such as trade, intellectual property and technology transfer, they do not extend to human rights obligations.<fnref n="187" /> As noted earlier, this

<footnote n="183">183 Art 46 African Children's Charter.</footnote>

<footnote n="184">184 *Sudanese Nationality* (n 8) para 32, line 1.</footnote>

<footnote n="185">185 *Sudanese Nationality* (n 8) para 32, lines 1, 2 & 3.</footnote>

<footnote n="186">186 See the Constitution of the Republic of South Africa, 1996 sec 9; Constitution of the Republic of Kenya 2010, art 27; Constitution of the Republic of Uganda 1995, art 21.</footnote>

<footnote n="187">187 *Sudanese Nationality* (n 8) para 51.</footnote>
stance by the African Children's Committee lays to rest the use of the foregoing principles in qualifying the application of the principle of non-discrimination.<fnref n="188" /> There is a need for the Children's Committee to deliberately call on state parties to use its other mechanisms, such as the communications procedure and state party reporting, to ensure that there is a move for universal harmonisation of domestic laws with the provisions of the African Children's Charter.<fnref n="189" />

## 5.8 Use of due diligence

The African Children's Committee introduces the principles of due diligence in the *Mauritanian Enslaved Brothers* and *Tanzanian Girls* communications. Although the principle helps in the need for states to interpret and implement their obligations from the perspective of result, the principle points to the need for the former to use the principle to actively identify individual children and groups of children whose recognition and subsequent realisation of their rights require special measures.<fnref n="190" /> It is also clear that the active identification of individuals and groups of children should not be for punishment but for recognition and realisation of their rights and the required special measures.<fnref n="191" /> The African Children's Committee should not waiver in its commitment to advise state parties in the use of due diligence as far as they should evaluate their obligation based on the result of measures used to address the violations of the rights of the child.<fnref n="192" /> In addition, the development of jurisprudence on the grant of compensation for both pecuniary and non-pecuniary loss should be developed. A tabulated annex is hereby attached at the end of the contribution.

# 6 CONCLUSION AND RECOMMENDATIONS

The topic of non-discrimination from a broader context is extremely relevant to human rights, largely because, while it can be a stand-alone principle, it also doubles as a right. The relevance of its application lies in the ability of the state as a duty bearer and stakeholder to benefit from its application and as both a principle, and a right, depending on the context.

Regarding the proposals on improving the application of the principle of non-discrimination, the African Children's Committee may engage in various aspects as hinted. First, the agency on the child should be informed by the deliberate centrality of the child by the Children's Committee to inform all interventions on the prevention of

<footnote n="188">188 J Doek *Harmonisation of laws on children: some practical guidance* (2007), https://app.box.com/s/ca19481c7d5dc225abff (accessed 30 January 2024).</footnote>

<footnote n="189">189 As above.</footnote>

<footnote n="190">190 Art 1 African Children's Charter.</footnote>

<footnote n="191">191 As above.</footnote>

<footnote n="192">192 *Mauritanian Enslaved Brothers* (n 7) paras 47-58; *Children of Nubian Descent* (n 6) paras 46-57.</footnote>
discrimination. Second, the obligation on the state party should be a
collective responsibility that is engaged by all stakeholders, such as civil
society and national human rights institutions, to ensure accountability
in the prevention of discrimination. Third, while differential treatment
remains a critical defence by the state, the African Children's
Committee can do more to deliberately evaluate the existence or lack of
grounds in each communication where the matter is raised. Fourth, this
is intrinsically linked to the use of persuasive jurisprudence in article
46. The preparation of a guidance note or resource document on the
application of article 46 is instructive in giving clarity on the use of
sources that are not used by the African Children's Committee. Fifth,
the reference to non-discrimination as a principle and a right is good
practice in light of the spirit of interpretation that ensures that the child
benefits in all contexts that require a literal, contextual or conceptual
approach. Sixth, obtaining increased harmonisation of the domestic
laws is imperative in achieving a universal consensus in the application
of the principle. Finally, the due of due diligence offers an introspective
platform for state parties to review their approaches to the engagement
of their obligations. An evaluation of the state parties' extent of the
engagement of their obligations is recommended.
# ANNEX

<table><caption>Tabulated engagement of the principle of non-discrimination</caption><thead><tr><th>No</th><th>Principle</th><th>Nubian</th><th>Mauritania</th><th>Cameroon</th><th>Sudan</th><th>Tanzania</th></tr></thead><tbody><tr><td>1</td><td>Agency on the child to have entitlements to rights and freedoms under the African Children's Charter</td><td>X</td><td>X</td><td></td><td>X</td><td>X</td></tr><tr><td>2(a)</td><td>Obligation on the state to actively identify individual children and groups of children whose recognition and subsequent realisation of their rights require special measures</td><td>X</td><td>X</td><td></td><td>X</td><td>X</td></tr><tr><td>2(b)</td><td>State as an active (committed) rather than a passive player in the engagement of the non-discrimination discourse</td><td>X</td><td>X</td><td>X</td><td>X</td><td>X</td></tr><tr><td>3</td><td>Use of equitable rather than equal treatment in the use of special measures to mitigate the effects of discrimination</td><td></td><td></td><td>X</td><td></td><td></td></tr><tr><td>4</td><td>Use of deferential treatment or positive discrimination</td><td>X</td><td>X</td><td>X</td><td>X</td><td>X</td></tr><tr><td>5</td><td>Use of persuasive jurisprudence</td><td>X</td><td>X</td><td></td><td>X</td><td>X</td></tr><tr><td>6</td><td>The status of the child is irrelevant and does not have any bearing on the enjoyment of the rights. Broad-based contextual application</td><td>X</td><td>X</td><td></td><td>X</td><td>X</td></tr><tr><td>7</td><td>The African Children's Committee proffers a non-exhaustive list of vulnerable children</td><td>X</td><td>X</td><td>X</td><td>X</td><td>X</td></tr></tbody></table>
<table><tr><td>8</td><td>Ensuring that birth registration is enforced regardless of the whereabouts of the child's parents or guardians, or other status</td><td>X</td><td>X</td><td>X</td><td>X</td><td>X</td></tr><tr><td>9</td><td>Non-discrimination applies in all environments</td><td></td><td>X</td><td>X</td><td>X</td><td>X</td></tr><tr><td>10</td><td>The child is mandated to enjoy all the rights and freedoms in an environment; starting with the state.</td><td></td><td>X</td><td>X</td><td>X</td><td>X</td></tr><tr><td>11</td><td>The finding of a violation of this principle is interlinked with a failure by the state to uphold obligations under article 1.</td><td>X</td><td>X</td><td></td><td>X</td><td>X</td></tr><tr><td>12</td><td>All stakeholders, persons or entities have an obligation to ensure that the child enjoys his or her rights.</td><td></td><td>X</td><td>X</td><td>X</td><td>X</td></tr></table>

Key

<table><tr><td>X</td><td>Principle referred to by the Committee (directly and by implication)</td></tr><tr><td></td><td>Principle not referred to by the Committee at all</td></tr><tr><td>X</td><td>Principle referred to, but not the article</td></tr><tr><td></td><td>Desirable that the principle is referred to</td></tr></table>
A promise fulfilled? African human rights
system and West African state mechanisms
in the protection of domestic child workers

Olalekan Moyosore Lalude*

https://orcid.org/0000-0003-1603-163X

Oladimeji Ifedayo Idowu**

https://orcid.org/0009-0001-0579-6226

Rufus Adeoluwa Olodude***

https://orcid.org/0009-0003-0106-6650

**ABSTRACT:** Child domestic workers in West Africa often get a hard bargain in the labour market. From violations of their rights, to almost slavish conditions of child domestic workers in some West African states, they often find themselves in deplorable and unsafe spaces. Many child domestic workers in West Africa are abused in work environments where they hardly get protection, and cases of such human rights violations fail to get prosecuted. This study examines the influence of the African Charter on the Rights and Welfare of the Child 1999 (Children's Charter) on state mechanisms, in the protection of child domestic workers in West Africa, focusing on Nigeria, Ghana and Sierra Leone. Despite the Charter's promise to protect children's rights, many of these young workers still face the risk of human rights abuse. By examining laws, legislative efforts, policy initiatives, and real-world practices, through content analysis, this case study research uncovers the extent to which the Children's Charter has been implemented to safeguard these vulnerable children. Through case studies, and content analysis, a complex picture is revealed: while there have been significant steps forward in law and policy, enforcement remains weak, and socio-economic challenges persist. This article highlights the gap between the Charter's ideals and the everyday reality for child workers. It was concluded that state mechanisms could leverage on local laws and the Children's Charter to enhance protection of child domestic workers through capacity-building, while West African judiciaries could tackle the problem of executive inefficiency by supporting regional courts, like the ECOWAS Community Court and the African Court on Human and Peoples' Rights by ensuring that the judgments of the ECOWAS Community Court are fully implemented and respected.

<footnote>* LLM (Obafemi Awolowo University), PhD (Babcock University), Lecturer in Law, Faculty of Law, Wisconsin International University College, Ghana.; olalude@wiuc-ghana.edu.gh</footnote>

<footnote>** LLM (Obafemi Awolowo University), PhD (Obafemi Awolowo University), Lecturer in Law, Faculty of Law, Redeemer's University, Nigeria; oladimejiidowu24@gmail.com</footnote>

<footnote>*** LLM (Obafemi Awolowo University), PhD Candidate, Faculty of Law, University of Abuja, Nigeria; adeoluwaolodude@gmail.com</footnote>
# TITRE ET RÉSUMÉ EN FRANÇAIS

Une promesse tenue ? Le système africain des droits de l'homme et les mécanismes des États d'Afrique de l'Ouest dans la protection des enfants travailleurs domestiques

**RÉSUMÉ:** Les enfants domestiques en Afrique de l'Ouest vivent souvent dans des conditions de travail extrêmement précaires. En raison des violations systématiques de leurs droits, ils sont fréquemment soumis à des conditions proches de l'esclavage, dans des environnements de travail dangereux et peu sécurisés. Nombre d'entre eux subissent des mauvais traitements dans des contextes où leur protection reste largement insuffisante, et les violations des droits humains ne donnent que rarement lieu à des poursuites judiciaires. Cette étude analyse l'impact de la Charte africaine des droits et du bien-être de l'enfant de 1999 (Charte des droits des enfants) sur les mécanismes de protection des enfants domestiques en Afrique de l'Ouest, en se concentrant sur le Nigéria, le Ghana et la Sierra Leone. Malgré la promesse de la Charte de garantir la protection des droits des enfants, de nombreux enfants travailleurs continuent de courir un risque élevé de violations des droits humains. À travers une analyse documentaire et une étude de cas, cette recherche évalue la mise en œuvre de la Charte dans ces pays en vue de protéger ces enfants vulnérables. L'analyse révèle une situation complexe: bien que des progrès notables aient été réalisés en matière de législation et de politiques publiques, l'application de la Charte reste insuffisante, et les défis socio-économiques demeurent prégnants. Cette étude met en lumière l'écart entre les objectifs de la Charte et la réalité vécue par les enfants travailleurs domestiques. Il est conclu que les mécanismes étatiques pourraient renforcer la protection de ces enfants en s'appuyant davantage sur les législations nationales et la Charte des droits des enfants, notamment par le renforcement des capacités des autorités locales. Par ailleurs, les systèmes judiciaires ouest-africains pourraient mieux répondre à l'inefficacité de l'exécution des lois en soutenant les juridictions régionales, telles que la Cour de justice de la CEDEAO et la Cour africaine des droits de l'homme et des peuples, en veillant à ce que les décisions de la Cour de justice de la CEDEAO soient pleinement mises en œuvre et respectées.

**KEY WORDS:** child rights; child domestic workers; policy; labour; Africa; West Africa; ECOWAS

## CONTENT:

1. Introduction..................................................................................................................340

2. Legal and theoretical frameworks for the protection of child domestic worker rights..................................................................................................................343

2.1 The nature of the human rights regime on child domestic workers......................344

2.2 The scope of the human rights regime of child domestic workers in context......345

3. The impact of the human rights regime on child domestic workers..............349

3.1 Challenges of child domestic workers in West Africa................................................349

3.2 Combating child labour in West Africa....................................................................352

3.3 State mechanisms and the Children's Charter............................................................355

3.4 Enhancing safeguards via state mechanisms............................................................359

3.5 Regional mechanisms and the Children's Charter....................................................359

4. Conclusion ....................................................................................................................360

# 1 INTRODUCTION

Child endangerment is an intractable problem in West Africa. Despite its highly deleterious effect on the physical and mental health of children, it is the fate of some children in states like Nigeria, Ghana and Sierra Leone. The most prone children are those employed in domestic work. This is because they work in the privacy of people's homes where their treatment is not monitored. These child domestic workers are formally and informally recruited, sometimes with the involvement of their parents or relatives. However, this process is typically
characterised by trickery, lack of information and empty promises. Article 1 of the United Nations Convention on the Rights of the Child provides that a child refers to any human being under the age of eighteen, unless the applicable law recognises an earlier age of majority.

Because child domestic workers are often very young, they suffer even more from vulnerability and powerlessness. Examples include being locked up at home for long periods of time without socialising with anyone else; food deprivation etc has more serious consequences on one's health because malnutrition rises exponentially while people grow older; these effects can be graver than even death itself especially when a person fails to survive due to hunger-related complications after a certain point.<fnref n="1" /> The fact that brokers get a share from the salary of the child domestic worker and would be motivated to extend their working hours, is due to their conflicting interests, which will lead to hiding child abuse. This points out wider themes of power relationships as well as economic incentives within the child labour markets.

This article will examine the influence of the African Charter on the Rights and Welfare of the Child (Children's Charter) on domestic mechanisms in the protection of child domestic workers in West Africa, focusing on Nigeria, Ghana and Sierra Leone. Child domestic workers are a very vulnerable group of blue-collared workers. Not only are they usually female children, they also do not have the economic means to resist oppression. The people who are the legal custodians of these children also are often unable to assist these children, because it was the asymmetric power imbalance created by socio-economic incapacity that made them allow their children to be employed as domestic workers in the first place. Furthermore, domestic work in states with institutional problems can expose children to a range of human rights violations, and this is because corruption, which is often the main driver of institutional incapacity, impedes the protection of vulnerable people in West Africa. Child domestic workers are easily alienated from their families and abused in as many ways as their employers may want.

The incorporation of a legal instrument such as the Children's Charter in the African human rights system was an acknowledgment of the need to further extend the scope of human rights coverage in Africa, and the improvement of the conditions of vulnerable people, who have been suffering from oppression in societies where there are little to no protection for them. The Children's Charter provides that children should be granted protection from all types of economic exploitation, and that they should not be made to do work that will negatively impact their physical, mental, spiritual, moral, or social development.<fnref n="2" /> Because domestic labour can be very indulging for verbal and physical abuse, it can be very damaging for their physical, mental, spiritual, moral, or social development. The African Charter on the Rights and Welfare of the Child (Children's Charter) is a human rights instrument

<footnote n="1">1 Human Rights Watch 'Child domestic workers' July 2006, https://www.hrw.org/reports/2006/wrd0706/4.htm (accessed 23 June 2024).</footnote>

<footnote n="2">2 African Charter on the Rights and Welfare of the Child, art 15.</footnote>
which carries as much significance as the other legal instruments that
provide safeguards for human rights. In many cases, for families where
there are many children and little means to cater for them, settling
them into domestic work, lessens the financial burdens on their
families, and allows for a complementary means to the household
income. However, because they are children, and with how people of
low socio-economic status often lack access to justice in West African
societies, they are often very prone to exploitation and abuse, and still,
the creation of mechanisms to protect child domestic workers are not
meeting up with the challenges faced by these workers.

The benefit from the labour of child domestic workers prevents the
support system of these children from acting totally in their best
interests. This is because the adult actors, which are their employers,
intermediaries and parents, are acting only in their own interests to the
detriment of the children. Therefore, little attention is paid to how these
children are engaged, and the conditions in which they have to work.<fnref n="3" />
The exploitation of these children in West Africa for financial benefit is
a representation of lacking concerted governmental efforts in the
protection of children and systems incapable of providing functional
safeguards against their exploitation. It is a largely held consensus that
child domestic workers are a very vulnerable group of workers, because
they are often the subjects of immense exploitation.<fnref n="4" /> And the anti-
trafficking policies that are often directed towards their welfare aspire
towards ‘global standards’ in states like Nigeria, rather than address the
local realities in which these exploitation takes place.<fnref n="5" /> The problem
with protecting child domestic workers in West Africa is tied to larger
issues with social protection mechanisms and the capacity of systems to
realise social justice.

In order to understand why it has been difficult to track the
problems with protecting the rights of child domestic workers, and in
implementing the standards in the Children's Charter, it is necessary to
consider what opinions there are on child domestic labour. Maconachie
and Hilson have argued that while children's work in rural Sierra Leone
contributes vital income for families, it can also be their only way to
afford schooling. Simply applying a prohibition of child labour without
considering local contexts could have negative consequences for these
children and their communities. This is because there must be viable
social programs for poor households that would replace child labour,
since for some households, the consolidatory income from working
children is a strategy for staying above the poverty line.<fnref n="6" /> Mere
prohibiting child labour without considering specific contexts such as
the existence of social security or the economic status of states

<footnote n="3">3 P Olayiwola ‘On exploitation, agency and child domestic work: evidence from South-West Nigeria’ (2023) 21 *Children’s Geographies* 1058-1070.</footnote>

<footnote n="4">4 P Olayiwola ‘They just have to adopt these conventions’: anti-child trafficking policies and politics in Nigeria’ (2022) *Journal of Human Trafficking* 1-11.</footnote>

<footnote n="5">5 Olayiwola (n 3).</footnote>

<footnote n="6">6 BC Okpukpara & N Odurukwe ‘Incidence and determinants of child labour in Nigeria: implications for poverty alleviation’ 2006 *African Economic Research Consortium*.</footnote>
concerned could result in some complications like an increase in child labour, since studies have shown that an outright prohibition of child labour, could inadvertently proliferate it as a result of a decrease in child wages.<fnref n="7" /> As it would mean more hours on jobs for child workers. Furthermore, if the enforcement is weak, as it could be in states like Nigeria, Ghana and Sierra Leone where institutions are weak, it could result in more child labour and reduced school enrolment.<fnref n="8" />

This article will explore the issue of child domestic work and the response of state and regional mechanisms in three parts. The first part will navigate the legal and theoretical frameworks on child domestic workers in Nigeria, Ghana and Sierra Leone for the placement of the discussion in the right theoretical and legal contexts. In the third part, there is a discussion on the impact of the human rights regime on child domestic workers and it was argued that the laws protecting children in Nigeria, Ghana, and Sierra Leone align with the African Charter on the Rights and Welfare of the Child and other international legal instruments on the protection of the child, with dualism facilitating the incorporation of international norms into local contexts; however, despite these legal frameworks, child domestic workers remain highly vulnerable to exploitation due to weak enforcement, socio-economic factors, and inadequate state mechanisms. It was concluded that in states such as Nigeria, Ghana and Sierra Leone, child domestic work in private households had been a contributing factor to the conclusion that there is no line between safe and unsafe environments. The importance of equally enforcing labour laws in the selected states cannot be stressed enough and specific provisions should be enacted for such units to ensure that their labour laws are indeed enforced effectively.

## 2 LEGAL AND THEORETICAL FRAMEWORKS FOR THE PROTECTION OF CHILD DOMESTIC WORKER RIGHTS

The laws made for the protection of children in Nigeria, Ghana and Sierra Leone reflect the spirit and purpose of the African Charter on The Rights and Welfare of the Child 1999 (Children's Charter) and the UN Convention on the Rights of the Child. Dualism as a theory of international law, offers a critical insight into the interaction between Nigerian, Ghanaian and Sierra Leonean state laws and the African human rights legal regime in the protection of child domestic workers. Now dualism has been explained as induction of international law norms into a local context, where they become more potent and relevant as a result of their induction. This is basically in adherence to

<footnote n="7">7 P Bharadwaj, LK Lakdawala & N Li 'Perverse consequences of well-intentioned regulation: evidence from India's child labour ban'.</footnote>

<footnote n="8">8 C Piza & AP Souza 'The consequences of banning child labour' https://blogs.worldbank.org/consequences-banning-child-labour (accessed 9 October 2024).</footnote>
the common law tradition of incorporation.⁹ As dualist states, the laws
on the protection of children in Nigeria, Ghana and Sierra Leone were
legislated to convey the intent of the Children's Charter, alongside
policy directives, for the development, protection and promotion of
children's rights. The United Nations Convention on the Rights of the
Child (CRC) was adopted in 1989. The rights enunciated in the
Children's Charter, which was adopted by the organisation of African
Unity (OAU), now African Union (AU) in 1990, complemented or
reinforced the CRC. It is important to note that the Children's Charter
significantly influenced the enactment of the Child Rights Act in
Nigeria.

## 2.1 The nature of the human rights regime on child domestic workers

In Africa, the pre-eminent legal framework on the rights and welfare of child domestic workers is the African Charter on the Rights and Welfare of the Child (Children's Charter) and at the global level are the UN Convention on the Rights of the Child, International Labour Organisation Minimum Age Convention, Worst Forms of Child Labour Convention and the Convention on Domestic Workers. The UN Convention on the Rights of the Child codifies wide-ranging rights for all people under 18. It is rooted in principles that include non-discrimination, the best interests of the child and the right to be heard on matters concerning them. States are responsible under UNCRC to enact legislation and implement policy that will protect children from all forms of violence and exploitation, which is a substantial step in pursuing the goals of the Children's Charter.

While article 1 of the Minimum Age Convention, 1973 places a legal
obligation on member states to abolish child labour and that the
minimum age for employment, not less than the age of completion of
compulsory schooling, which is below 15 years. The Worst Forms of
Child Labour Convention provides in article 3(a) to (d) the types of
child labour and abuse that should be banned. These include:
(a) slavery-like practices like child trafficking, debt bondage, forced
labour and child recruitment for armed conflict; (b) working primarily
in prostitution or involved in pornography; (c) using children for illegal
activities specifically drug production and trafficking, d) any work
which by its nature or the circumstances in which it is carried out
harmful to the health, safety or morals of children. Article 3(a) of the
Worst Forms of Child Labour Convention, specifically in the context of
trafficking, debt bondage and forced labour could be related to
circumstances in which some child domestic workers find themselves.

The Children's Charter defines a child in article 2 as a natural
person who is under the age of 18 years. It further sets out a
comprehensive set of rights for children in Africa, including the rights
of child domestic workers. While article 1 of the Domestic Workers Convention, 2011, defines domestic work as the work that is done in or for a household or households. Article 15 of the Children's Charter poignantly recognises the rights of all children to be protected from economic exploitation and harmful work practices. It specifically prohibits the employment of children in work that is likely to be dangerous or interfere with their education or physical, mental, spiritual, moral, or social development.<fnref n="10" /> Furthermore, the Charter emphasises the importance of providing child domestic workers with access to education, healthcare, and other essential services. It also calls for measures to be taken to prevent child labour and protect children from all forms of abuse. The Charter has tremendous influence on the protection and promotion of children's rights across the African continent by setting out clear guidelines and principles for governments to follow. In Nigeria, for example, the constitution protects children from all forms of exploitation.

## 2.2 The scope of the human rights regime of child domestic workers in context

The Child Rights Act of 2003 (Nigeria) also prohibits child labour and outlines protections for children, including those working as domestic workers. Section 28(d) specifically provides that '[n]o child should be employed as a house-help outside his or her home or family environment'. On the other hand, the Nigerian Labour Act 2004, in section 59(1)(a) prohibits children working in any capacity, except where a family member engages them in light agricultural, horticultural or domestic work. Unfortunately, many times when family members in Nigeria have had to engage children from their kin in domestic work, abuse and outright contravention of this provision has been known to occur.

These laws are in place to protect the rights and well-being of children in Nigeria and to ensure that they are not subjected to exploitative or harmful working conditions. However, enforcement of these laws is often weak, leading to widespread violations of child labour rights. There are also cultural norms and practices that condone child labour, and these further complicate efforts to protect domestic child workers in Nigeria. Furthermore, the Child's Right Act 2003 provides that every child should be protected from economic exploitation and performing work that is dangerous in nature, and that is likely to affect the child's physical, mental, spiritual, moral or social development.<fnref n="11" /> In the light of the above, it encourages state parties to take appropriate legislative and administrative measures towards enforcement in both formal and informal employment as relates to

<footnote n="10">10 Art 15(1), African Charter on the Rights and Welfare of the Child.</footnote>

<footnote n="11">11 As above.</footnote>
children. Specifically on minimum wage for admission for such tasks,
regulation of hours of employment and penalties for non-compliance.<fnref n="12" />

In Ghana, the Children's Act of 1998 prohibits child labour and provides protections for children working in various sectors, including domestic work.<fnref n="13" /> This is reinforced by article 28 of Ghana's Constitution.<fnref n="14" /> The Ghanaian Labour Act 2003 uses the term 'young persons' as a reference for children. Even though section 58(3) prohibits the employment of young persons from hazardous work, it does not say whether domestic work is hazardous. Ultimately, the Labour Act 2003, avoided the complexity of adequately representing the prohibition of child labour. The Children's Act establishes that the minimum age for employment is 15 years of age,<fnref n="15" /> and goes on to prohibit children from working at night.<fnref n="16" /> The Act criminalises exploitative labour and prescribed conditions for light work,<fnref n="17" /> and safeguards children from torture and other forms of cruel, inhuman, or degrading treatment, including cultural practices that dehumanise or harm the physical and mental well-being of a child.<fnref n="18" /> Moreover, the Domestic Violence Act of 2007 identifies domestic workers as part of the group of individuals in a domestic relationship, as outlined in section 2(1)(h).<fnref n="19" /> The Domestic Violence Act prohibits all forms of violence occurring in the household environment. This includes acts of physical assault and sexual harassment.<fnref n="20" /> It has been noted that Ghana's laws on the protection of children are in line with the Children's Charter.<fnref n="21" /> Similarly, as stated above, the Ghanaian Child Rights Act, also prohibits the engagement of a child in exploitative labour.<fnref n="22" /> It further clarifies that labour becomes exploitative when it deprives the child of its health, education and development.<fnref n="23" /> Furthermore, it unequivocally prohibits any person to engage a child in nocturnal work, particularly between the hours of 8pm and 6am in the morning.<fnref n="24" /> It further sets the minimum age for a child to be in employment to be 15 years of age.<fnref n="25" /> While dangerous work to the age of 18 years old.<fnref n="26" /> This is in substantial compliance with the Children's Charter.

<footnote n="12">12 African Charter on Rights and Welfare of Child art 15(2)(a), (b) & (c).</footnote>

<footnote n="13">13 The Children's Act of 1998 (Act No. 560), sec 87.</footnote>

<footnote n="14">14 The Constitution of the Republic of Ghana, 1992 (as amended to 1996).</footnote>

<footnote n="15">15 Sec 89 Children's Act of 1998.</footnote>

<footnote n="16">16 Sec 88 Children's Act of 1998.</footnote>

<footnote n="17">17 Secs 87 & 90 Children's Act of 1998.</footnote>

<footnote n="18">18 Sec 13 Children's Act of 1998.</footnote>

<footnote n="19">19 The Domestic Violence Act (Act No. 732 of 2007).</footnote>

<footnote n="20">20 The Domestic Violence Act (Act No. 732 of 2007) (n 41).</footnote>

<footnote n="21">21 P Issahaku 'Raising the future leaders: an analysis of child and family welfare policy in Ghana' (2018) 13(2) *Journal of Public Child Welfare* 148-169.</footnote>

<footnote n="22">22 Sec 87(1) Child Rights Act 1998.</footnote>

<footnote n="23">23 Sec 87(2) Child Rights Act 1998.</footnote>

<footnote n="24">24 Sec 88(1) & (2) Child Rights Act 1998.</footnote>

<footnote n="25">25 Sec 89 Child Rights Act 1998.</footnote>

<footnote n="26">26 Sec 91 Child Rights Act 1998.</footnote>
Article 25 of the 1992 Constitution provides for educational rights and stipulates, among other things, that basic education shall be free, compulsory, and accessible to all school-going children. Section 6(2) of Children's Act 1998 outlines children's right to education. Section 8 ensures that no child is denied access to education for their development. Section 10 specifies that even a disabled child has the right to education. Also, section 47 emphasises that a child is entitled to basic education during maintenance. The Act further/ guarantees that a mother is entitled to education if she is still a minor from the family,<fnref n="27" /> and this right extends even after she reaches 18 years old.<fnref n="28" /> These provisions are in accordance with the Children's Charter. The law further prohibits any person from subjecting a child to torture or other cruel, inhuman or degrading treatment or punishment of any kind which dehumanises or its injurious to the physical and mental well-being of a child.<fnref n="29" /> It makes provision for a district assembly to cater for the welfare and promotes the rights of children, and it mandates that the district and governmental agencies liaise with each other in matters concerning children. It further mandates the Social Welfare Department to investigate issues relating to Children.<fnref n="30" />

In Sierra Leone, the key piece of legislation is the Child Rights Act of 2007, which prohibits the employment of children under the age of 18 in hazardous or exploitative work, including domestic work. Apart from the Child Rights Act, is the Employment Act 2023, provides in section 95, that children under the age of 15 years should not work. The minimum age for light work as provided in section 96(1) of the Employment Act is 13 years. In section 96(2), light work is defined as work that is not harmful to a child's development and physical health. This makes it problematic to properly regulate child domestic work, as it could easily be termed light work, whereas determining working conditions of domestic work is difficult. Sierra Leone is a signatory to international conventions such as the UN Convention on the Rights of the Child and the International Labour Organisation's Convention on Domestic Workers, which set out specific rights and protections for child domestic workers. By way of comparison, we shall examine the provisions under the Child Rights Act 2007 in Sierra Leone and juxtapose them with the Children's Charter.

The Child's Rights Act in Sierra Leone, unequivocally states that the age of fifteen is the minimum age to take up full-time work as a child.<fnref n="31" /> It expressly prohibits nocturnal work for children.<fnref n="32" /> In addition, the Act clarifies that the minimum age for dangerous work to be 18 years.<fnref n="33" /> The Child Rights Act 2007 (Sierra Leone), in compliance with article 16 of the Children's Charter, provides for the establishment of a National

<footnote n="27">27 Sec 51 Child Rights Act 1998.</footnote>

<footnote n="28">28 Sec 54 Child Rights Act 1998.</footnote>

<footnote n="29">29 Sec 13 Child Rights Act 1998.</footnote>

<footnote n="30">30 Sec 16 Child Rights Act 1998.</footnote>

<footnote n="31">31 Sec 65(1)(a) Child Rights Act 2007 (Sierra Leone).</footnote>

<footnote n="32">32 Sec 65(1)(b) Child Rights Act 2007 (Sierra Leone).</footnote>

<footnote n="33">33 Sec 3(1) Child Rights Act 2007 (Sierra Leone).</footnote>
Commission for Children. It states that children shall have access to basic education, including the provision of good school resources, materials, and trained teachers, especially in areas that are yet to be developed.<fnref n="34" /> The Act provides for the protection of children from exploitation.<fnref n="35" /> It unequivocally prohibits subjecting children to torture or other cruel, inhuman, or degrading treatment. The Act also prohibits unreasonable forms of correction and states that no correction is justifiable if the child does not understand its purpose. Despite these legal protections, challenges remain in ensuring that domestic child workers are able to access their rights. Many children working in domestic settings are vulnerable to exploitation, abuse, and neglect due to their isolated working conditions and lack of oversight. Furthermore, enforcement of labour laws can be weak, particularly in rural areas where child labour is more prevalent.

The African Children’s Charter offers an essential foundation for the protection of child domestic workers’ rights. Yet, there are still wide gaps between the laws and the realities based on a myriad of reasons from conflicts in national legislation, socio-economic causes and cultural beliefs. The road to eliminating child domestic work in Africa lies along the path of aligning national laws with international standards, building accountability and protection enforcement mechanisms and ensuring educational opportunities for all children. This comprehensive approach is fundamental to effectively guaranteeing children’s rights and dignity, allowing them to thrive without fear of exploitation.

Although social security legislation could have helped in keeping many children out of the domestic work, and securing their future, legislation such as the National Pensions Act of 2008 in Ghana provides a framework for pension benefits that indirectly impacts the children of deceased parents. One area that is very critical in the National Pensions Act has to do with the provision for survivor benefits which is found in section 101, and how those benefits impact on children when their parents are deceased. The Act specifies that when a contributor dies, children who are named as dependants, have the right to receive benefits. For this, it is important to look at how money is used to support children when their parents die. In section 101(2), the Act sees children as dependants, and therefore children become entitled to a share of the deceased parent’s pension. This is an important protection for the financial interests of children at an especially vulnerable time. The law explains the distribution of benefits among dependants (which can mean children, spouses or other family members). The allocation is set up so that children receive enough support for their basic needs (such as education and healthcare). On the other hand in Nigeria, the main social security programme that covers children is the National Social Security Trust (NSST), a mandatory contributory pension scheme, which pays retirement benefits to workers in both the public and private sectors. Although NSST is essentially a retirement scheme,

<footnote n="34">34 Sec 4(1)(c) Child Rights Act 2007 (Sierra Leone).</footnote>

<footnote n="35">35 Sec 4(2)(e) Child Rights Act 2007 (Sierra Leone).</footnote>
it also has some provisions for children in the event of death or
disability of the contributing member. In Sierra Leone, there are no
specific social security programmes solely dedicated to protecting
children from domestic work.

3 THE IMPACT OF THE HUMAN RIGHTS REGIME ON CHILD DOMESTIC WORKERS

It is even so deplorable that employers exploit the utter powerlessness and vulnerability of these children to their advantage. Meanwhile, social welfare institutions in Nigeria, Ghana and Sierra Leone are almost incapable of tracking a child's progress from one custodian's home to the other. Sossou and Yogtiba have found that children in some West African states, including Nigeria and Ghana, face a disturbing rise in abuse and neglect. They stated that while data may be imprecise, readily available information paints a concerning picture. This widespread violation of children's human rights, social justice, and safety demands immediate action. Sossou and Yogtiba have argued, just like many other authors, that poverty and certain cultural practices are identified as major factors of this problem.36 There is a lack of coordination for social welfare programs for these children because of the non-existent social security that has led to a widening gap between social classes in West Africa. Furthermore, it is difficult to track the exploitation of child domestic workers because many solutions around it are built on ideals rather than acknowledgment of the realities of the context in which child domestic workers become vulnerable. Firstly, because child domestic workers are engaged within spaces that are not within the range of public scrutiny. The power dynamic between these child domestic workers and their employers does not allow them to speak about their mistreatment. They are often made to feel that due to their situation, they do not have rights, and this complicates their vulnerability.

3.1 Challenges of child domestic workers in West Africa

Stories of abuse of child domestic workers are rife in Nigeria. However, the media does not report enough of these stories to raise the awareness of an urgent intervention in the protection of child domestic workers, just as Ekeanyanwu has expressed the view in *The Cable* that cases of child abuse are largely unreported in Nigeria. He reported the case of a man who physically abuses his young cousin, as told to him by a certain Raputa, adding that, 'He beats this boy, applies pepper on his body and even his private parts. He beats him over every little mistake the boy or the abuser's children make.' Ekeanyanwu admitted that weak

<footnote n="36">36 M Sossou & JA Yogtiba 'Abuse of children in West Africa: implications for social work education and practice' (2009) 39 *The British Journal of Social Work* 1218-1234.</footnote>
protection mechanisms for children in Nigeria is responsible for the high incidence of child abuse in Nigeria.37 In Anambra, Nigeria, a lawyer, Adachukwu Okafor, was reported to have used a broken bottle, knife, and electric iron on an 11-year-old child domestic worker with her, causing severe injuries to the child.38 Also in Abia, Nigeria, a 13-year-old child domestic worker had reportedly jumped down from a building in an attempt to escape further punishment, after being beaten severely.39 *Premium Times*, in appraising the situation of child domestic workers in Nigeria, reports that child domestic workers can easily be distinguished from their peers through their appearance, as they often wear their abuse like a garment. They are reported to appear dishevelled, clad in poor clothing, malnourished, and sometimes with scars from physical abuse.40 These stories highlight the untold hardship that characterise domestic work, especially for children in Nigeria. There are many reasons why children are specifically employed as domestic workers in Nigeria, one of the chief reasons being that their employers often demand for younger workers due to their manageability and the perception that they can do more work. There is no doubt that child domestic workers in Nigeria are a highly vulnerable group of children, because, as noted, the regulatory environment is weak and does not provide for robust and coordinated interventions for vulnerable children.

Child domestic workers in Ghana face terrible ordeals with their employers. Adu-Gyamfi has opined that corpses are treated better than domestic workers in Ghana.41 Ocran has also opined on the treatment of child domestic workers in Ghana, claiming that their dehumanisation is as complete as the one meted out to African domestic workers in the Middle East. The deficiencies in policy implementation can also be seen from the fact that there is no vocational education or training that is provided to such children, like they were promised before they were engaged. This shows that there must be legislation and other mechanisms that will protect the rights of child domestic labourers, and their employers should be held liable for any wrongdoings committed.

From Ocran’s contemplation about the treatment of domestic female child labourers in Ghana, one sees the glaring issues of exploitation, gender gap and insufficient recompense in domestic jobs. It is therefore required to develop an all-encompassing approach which includes aforementioned points for issues of legal changes, safety nets and moral reasons to ensure protection of these vulnerable children at

<footnote n="37">37 O Ekeanyanwu ‘Child abuse “largely unreported” in Nigeria’ *The Cable* (Lagos) 11 January 2018.</footnote>

<footnote n="38">38 I Obianeri ‘Anambra lawyer accused of brutalising maid surrenders to police’ *Punch* (Lagos) 16 February 2024</footnote>

<footnote n="39">39 Guardian Nigeria ‘13-yr-old house help jumps down from two-storey building in Aba to evade punishment — NSCDC boss’ *The Guardian* (Lagos) 20 January 2021</footnote>

<footnote n="40">40 Premium Times ‘Despite laws, underage home helps go through horrifying experiences in Nigeria’ *Premium Times* (Lagos) 17 September 2023.</footnote>

<footnote n="41">41 K Adu-Gyamfi ‘Corpses have more respect than house maids’ *Modern Ghana* (Accra) 25 December 2012.</footnote>
risk. The challenges of child domestic workers in Ghana presents a severe human rights concern that is often not taken into consideration. This is because there is the tendency to not regard minors, especially when they come from low socio-economic backgrounds. Despite that Ghana has been rated high on democratic ideals, yet it struggles with the protection of the rights of vulnerable children. This might be due to the same institutional problems, which has also prevented Nigeria from the protection of vulnerable people, such as children working as domestic labourers.

As it is in many African states, life in Sierra Leone is difficult. Poverty levels are rising and people are desperate for jobs, while inflation has crippled the purchasing power of so many people and plunged people deeper into poverty.<fnref n="42" /> On the other hand, institutional failure is manifested in many administrative incapacities, which includes the protection of vulnerable children. In Sierra Leone, child domestic workers are known as *men pikin*, a term used for the description of the foster care of children with relatives where they do domestic work in exchange for better opportunities. In essence, the system is mostly sustained by the trust in the relatives, with whom the children go to stay with. The phenomenon of ‘men pikin’ is just one part of a bigger socio-economic problem in Sierra Leone, which binds together poverty and limited access to education that forces families to hand over their children to individuals or institutions that make false promises about better lives. Most unfortunately, these kids often find themselves trapped into forced labour or sexual slavery, and are thus stripped of their rights and subjected to unbearable conditions. Inadequate legal framework, low level of awareness about the matter among officials and lack of social services have enabled trafficking to continue unabated, thus making it hard for poor children not to be exploited. A holistic approach is needed including community education, legal reforms and support.

Sierra Leone is known as a source country, transit country and destination country for trafficking in children who fall victim to both commercial sexual exploitation and forced labour. The national specific internal child trafficking practice called ‘men pikin,’ which translates directly as foster care in Krio language, dominates the nation state. What transpires here involves taking children from their homes by their own family members under the pretence of seeking for good educational opportunities in towns or cities within the country rather than regions where there are established schools. These assurances most times however hide behind them a brutal reality where instead of having an ideal place to study with all necessary materials provided, they suffer from exploitation and abuse.<fnref n="43" /> There is a dearth of literature on child rights in Sierra Leone which has led to low levels of general

<footnote n="42">42 HB Momoh, FB Kamara & CB Koroma ‘The 2023 elections in Sierra Leone: identifying potential conflict flashpoints and spoilers’ (2022) 11 *GSC Advanced Research and Reviews* 81-93.</footnote>

<footnote n="43">43 VC Cordeiro ‘Children of Sierra Leone: realizing Children’s Rights in Sierra Leone’ 18 March 2021, https://www.humanium.org/en/sierra-leone/ (accessed 23 June 2024).</footnote>
public, policy makers and stakeholders' awareness about the particular issues faced by children and what they should be protected.

A US Department of State report shows that there is evidence that child domestic work is a wide-spread phenomenon in West Africa, however, there is little known of the conditions in which these vulnerable children work. Child domestic work can vary from kinship arrangements, where children live and work in the household of their relatives to being trafficked. Despite the widespread engagement of child domestic work, it was further reported that there is a lack of comprehensive data on the conditions that these vulnerable children live in.<fnref n="44" /> However, a new report shows that in Nigeria, there are many child domestic workers who work in slavish conditions with little time for education and social activities with 37.1 per cent working more than 30 hours weekly and 21.4 per cent who work above 42 hours weekly.<fnref n="45" /> However, reports do not distinguish between the conditions of child domestic workers who live with kin and those who are not.

## 3.2 Combating child labour in West Africa

The International Labour Organisation defined child labour as work performed by a minor that is inappropriate for their age or developmental level, and hinders their physical, psychological, or social development.<fnref n="46" /> While Minimum Age Convention, 1973 provides for the minimum age for employment being above 15 years and not less than the age of compulsory schooling in article 1 and 2(3).

Attempts have been made to stop child labour in West Africa, but they have been done without much political will. In Nigeria, poverty drives child labour, and since the rate of poverty is not reducing, many households have had to augment their livelihoods through child labour. These children either are often made to work alongside adults or made to work as domestic staff in homes of people with a higher socio-economic status. Because poverty is the leading factor for the incidence of child labour, higher levels of inequality have resulted in an exacerbation of the problem of child labour. In 2021, Aljazeera found that there were many underage girls in Nigeria who are into child domestic labour. Girls as young as 12 years old, on the cusp of adolescence, and who are usually employed through agents, leave home with promises that are often not fulfilled. These children do not often have an idea about how much they earn because their earnings are either paid to their agents or their parents. The primary factor that makes the families of these children to give up their children for

<footnote n="44">44 US Department of State 'Tackling exploitative child domestic work in West Africa' 2022, https://www.norc.org/research/projects/tackling-exploitative-child-domestic-work-in-west-africa.html (accessed 9 October 2024).</footnote>

<footnote n="45">45 The Freedom Fund 'Children working in Nigerian and Liberian households are at significant risk of abusive and exploitation' 27 February 2024, https://www.freedomfund.org/behind-closed-doors-west-africa (accessed 9 October 2024).</footnote>

<footnote n="46">46 International Labour Organisation 'Child labour in Nigeria - at a glance: results from the Nigeria child labour and forced labour survey 2022'.</footnote>
domestic labour is poverty. Many of the families where these children
come from can barely feed themselves.<fnref n="47" /> This is resonant with other
findings that poverty is the major reason of child labour.

There are two edges to the problem of child labour in Nigeria. In 2022, the government made some advance to stop the worst kinds of child labour. They passed new laws that mandated children to go to school and stay out of dangerous work environments. The government also employed more inspectors to check on working conditions and set up local groups to watch out for children. Unfortunately, many Nigerian children are still finding themselves where they have to do dangerous and strenuous work.<fnref n="48" /> There have been attempts to resolve child labour by the Nigerian government, and one of such attempts was the formulation of the National Policy on Child Labour (Phase II) in 2022. The policy was to serve as an additional tool alongside laws, regulations and other issues that concern children at work.<fnref n="49" /> The national policy framework in Nigeria to resolve the problem of child labour was targeted at the worst forms of child labour and was to ensure that child labour is eliminated in Nigeria. The policy relies on state mechanisms like the police, civil defence corps, immigration officials and other institutions. The problem with this, is that state mechanisms in Nigeria are lacking in capacity to engage the policy satisfactorily.

The exploitative work conditions that are associated with child domestic work include being made to work beyond reasonable hours and harsh disciplinary methods. In Ghana, child labour interferes with children's education especially in the urban areas.<fnref n="50" /> Almost one-third of Ghanaian children between 5 and 17 are working, and for many, they work in dangerous conditions. This is especially true in farming, fishing, and forestry jobs. The same causes that have allowed the perpetuation of child labour in Nigeria continue to drive child labour in Ghana with more children being made to work in terrible conditions as a result of poverty, parental absence, and the weak response of state mechanisms in the implementation of state laws on education and child labour.<fnref n="51" /> Poverty is a significant factor that makes children work, as many families cannot afford school or simply need the extra help to survive. Even before COVID, inequality was high, with millions of children out of school and a large number of young people struggling to find work or training.<fnref n="52" /> And in Sierra Leone, child labour is an intractable issue with quite a large number of children under the age of

<footnote n="47">47 D Odey ‘A long way from home: The child ‘house helpers’ of Nigeria’ *Aljazeera* (Doha) 15 July 2021.</footnote>

<footnote n="48">48 Bureau of International Labour Affairs ‘Child labour and forced labour reports 2022’.</footnote>

<footnote n="49">49 Federal Ministry of Labour and Employment, ‘National policy on child labour (phase ii) 2022’.</footnote>

<footnote n="50">50 O Adonteng-Kissi ‘Interactions between child labour and schooling: parental perceptions in rural and urban Ghana’ (2023) *Social Policy and Society* 1-15.</footnote>

<footnote n="51">51 ES Hamenoo, EA Dwomoh & M Dako-Gyeke, ‘Child labour in Ghana: implications for children’s education and health’ (2018) 93 *Children and Youth Services Review* 248-254.</footnote>

<footnote n="52">52 UNICEF ‘The new Ghana accelerated action plan against child labour 2023-2027 is launched’.</footnote>
18 years engaged in labour. Children are even trafficked for domestic work. In Sierra Leone's Eastern Province. While there has been some progress, state mechanisms are not moving at the pace of the problem. The government of Sierra Leone have incorporated the Children's Charter and other conventions into law such as the Anti-Human Trafficking Act (2005) and the Child Rights Act (2007), the allowance of children at the age of 13 to do 'light work', undermines the efforts to check the trend of child labour in Sierra Leone.⁵³

Even though the Sierra Leonean government has attempted some interventions, there are still challenges that persist. A major challenge to the government's efforts in Sierra Leone is access to education in the rural areas, particularly for young girls.⁵⁴ This problem in some other related context will be about the affordability of education for children who are forced into domestic work, or who are made to support their households through domestic work. What many studies who advocate for the prohibition of child labour do not often address, is what would take the place of child labour, where child labour is the only source of funding a child's education. There are no doubts that child labour is injurious to a child's development and can hinder a child's development. However, child domestic work does not thrive because the people who are involved in the business of child labour are mostly individuals who are after negligible profit, but poverty, poor awareness and weak state mechanisms without proper mobilisation all contribute to the problem of child domestic work in West Africa. Despite the progress made by the governments in Nigeria, Ghana and Sierra Leone, it is obvious that the efforts and interventions do not match up to the pace of the problem. The lack of political will which is often thought to encumber state mechanisms is a result of a lack of executive coordination, and the prioritisation of government interventions. This is because enforcement of state laws on child labour require dedicated commitment of governments and collaboration with NGOs, without which there would be an impediment of effective policy implementation and enforcement of state laws. Despite frameworks like the ECOWAS Regional Action Plan and state efforts, Ghana and other West African states have found it difficult to coordinate their agencies, resource mobilisation and local-level prioritisation of child welfare initiatives.⁵⁵

53

A Balch, AM Cody, D Okech, T Callands, U Fofanah & HR Wurie 'Unveiling child trafficking: local perspectives and context in addressing sustainable development goals in Sierra Leone' (2024) 15 *Global Policy* 78-90.

54

As above.

55

Republic of Ghana 'Ghana accelerated action plan against child labour (national plan of action for elimination of child labour)'; ECOWAS Regional Action Plan for the Elimination of Child Labour Especially the Worst Forms; Ministry of Employment and Social Welfare 'Ghana child labour monitoring system (GCLMS)'.
3.3 State mechanisms and the Children's Charter

The Federal Ministry of Women Affairs and Social Development in Nigeria is the institution that has the responsibility to protect the rights of children in Nigeria as part of their mandate, which is to also promote and protect women rights. This institution is expected to balance its work on women and children, such that the rights of women and children are protected. However, its work on women outweighs its interventions on the rights of children. The Child Rights Act, 2003 (Nigeria), provides that all children that are in need of special protection measures are entitled to the level of protection which are necessary for their physical, social, economic, emotional and mental needs and in circumstances that safeguard their dignity and the promotion of stability and their active engagement in the community affairs.<fnref n="56" />

Child domestic workers are a group of children with a need for special protection, because of their vulnerability as individuals from low-socio-economic backgrounds and their state of being forced into labour, but they are often neglected. The Children's Charter provides that for child labour, including domestic work, there shall be no economic exploitation of children and from jobs that further endanger their lives and their physical, mental, spiritual, moral, or social development.<fnref n="57" /> The Federal Ministry of Women Affairs and Social Development claims in its policy document, 2021 National Gender Policy, that it will reinforce the institutional procedures that will make certain that the needs of men and women, boys and girls, and vulnerable groups are met equitably.<fnref n="58" /> Despite this policy commitment, the organisation is far from the protection of the most vulnerable group of children which are child domestic workers. Furthermore, the organisation has no short-term nor long-term plan for the protection of this group of children. The abuse of child domestic workers has been quite egregious in Nigeria and Ghana. Previous studies around governance and institutions have unraveled the problems of institutional capacity, attributing the incapacity of state institutions to many factors, such as a lack of political will, weak horizontal accountability structures and poor funding.<fnref n="59" /> The concept of state mechanisms goes beyond mere institutions to include elements of institutional processes, like laws, regulations and policies. The situation in Nigeria, Ghana and Sierra Leone, are similar with slight variances. While Ghana is only slightly more politically stable than Nigeria and Sierra Leone, it struggles with the same problems of corruption and horizontal unaccountability.

<footnote n="56">56 Child Rights Act of 2003 (Nigeria) sec 16(1).</footnote>

<footnote n="57">57 Art 15(1) African Charter on the Rights and Welfare of the Child.</footnote>

<footnote n="58">58 The Federal Ministry of Women Affairs and Social Development in Nigeria '2021-2016 Federal Republic National Gender Policy-Strategic Implementation Framework/Plan'.</footnote>

<footnote n="59">59 C Fombad 'The state of governance in Africa' in C Fombad, A Fiseha & N Steytler (eds) *Contemporary governance challenges in the Horn of Africa* (2023) 302.</footnote>
With the same levels of incapacity of state mechanisms. While laws, regulations and policies abound, there is a very low incentive for institutions to be as effective as possible in the execution of these processes. For instance, while Nigeria has the National Agency for the Prohibition of Trafficking in Persons (NAPTIP), children still get trafficked as domestic labourers and still get physically and mentally abused in such work environments. The implementation of laws on the rights of the child is still far from desirable, with the state allowing the condition of children to be determined by whomever is in custody of these vulnerable group of children. The nonchalance of the Nigerian government in the protection of these child domestic workers is a reflection of the indifference of the Nigerian state to vulnerable groups. The International Labour Organisation Survey Report for 2022 shows that 31,756,302 children are engaged in economic activity across sectors, which means that 50.5 per cent of children are engaged in economic activity in Nigeria. It further reported that 24,673,485 children are child labourers, which is 39.2 per cent of children that are child labourers in Nigeria.<fnref n="60" /> The ILO survey shows that children workers in the rural areas have a higher tendency to get injuries at their employment.<fnref n="61" /> The implication of this survey, especially as regards Nigerian child workers in rural areas, is that they are vulnerable, especially because state mechanisms rarely extend to those places. In another context, child domestic workers from the rural areas who find themselves working in the cities, discover that they are without support, since they are in a strange environment, where the closest family member is some hundreds of kilometres away. An AljAZEERA report on child domestic workers in Nigeria captures this aptly:

> Agents often woo the young girls with promises of education and good earnings. When their families sign up, the girls are transported from their villages to economic centres like Lagos, Abuja, Port Harcourt and surrounding cities. Often, these families are in dire financial circumstances and see their children as a vehicle for financial support. Many parents can barely afford daily meals and basic healthcare for their children, which makes the prospect of someone else taking responsibility for the child, while offering a stipend, too tempting to resist.<fnref n="62" />

Beyond the recruitment process is the actual abuse faced by child domestic workers in Nigeria, some get so physically abused that their lives are endangered, and yet such incidences of abuse are treated just like other crimes of aggression. Closely tied to the physical and mental abuse of child domestic workers is the likelihood of trafficking. The physical and mental abuse of these children is often hinged on their lack of support and protection by the state, and their perceived helplessness. It is this lack of protection by the Nigerian state, that inspired a group of Non-Governmental Organisations, such as the Street Project Foundation, Child Protection Network, United States Department of State the Freedom Fund, Devatop Centre for Africa Development and

<footnote n="60">60 International Labour Organisation 'Child labour in Nigeria - at a glance: Results from the Nigeria child labour and forced labour survey 2022'.</footnote>

<footnote n="61">61 International Labour Organisation (n 21).</footnote>

<footnote n="62">62 D Odey 'A long way from home: The child 'house helpers' of Nigeria' *Aljazeera* (Doha) 15 July 2021.</footnote>
Centre for the Advancement and Protection of the Rights of Vulnerable People to advocate for the protection of child domestic workers in Nigeria with the proliferating cases of abuse against child domestic workers.<fnref n="63" />

In Ghana, the Ministry of Gender, Children and Social Protection is the government organisation that is empowered by law to protect children. This government organisation in Ghana has the Department of Children under it, which oversees all matters that relate to the condition of the Ghanaian child. The Children's Act, 1998 (Ghana) prohibits the subjection of a child to exploitative labour.<fnref n="64" /> Under the Children's Act, 1998, it defines exploitative labour as labour that deprives the child of its 'health, education or development'.<fnref n="65" /> This would mean that the use of children for domestic work is illegal, especially because of its likely negative impact on the education, health and development of the child. The Department of Children in its policy mandate works to protect children from exploitative labour, including domestic work.<fnref n="66" /> The social welfare system in Ghana is family and relative based, and relies much on African communitarian values. This means that where an individual is in need of resources, such an individual could get assistance from family and relations. Where children have lost their parents or are in dire need of adult protection in Ghana, they are committed to extended relations and community members.<fnref n="67" /> With the evolution of society, this system has become unsustainable with the rising economic pressure. However, many children in Ghana today without their biological parents are staying with their relatives or grandparents.<fnref n="68" /> This has led to the prevalence of child domestic workers whose employers are actually relatives. The violence that these group of children face from their employers, results in mental health issues, impaired development, injury, negative coping mechanisms and compromised health, and this is the reality of many Ghanaian children. Ghana has been able to apprehend some of the violence against children from the time the Convention on the Rights of the Child, was ratified.<fnref n="69" /> However it has not been able to adequately protect child domestic workers because of the nature of their employment, and a lack of political will towards the policy and legal efforts needed for their protection.

The Ministry of Gender and Children's Affairs is the government organisation that is mandated to protect child rights, amongst other things in Sierra Leone. They are also to promote child rights for social awareness. The work of this organisation has been very important especially since the civil war saw the engagement of child soldiers. Just

<footnote n="63">63 Guardian Nigeria 'NGOs advocate protection for child domestic workers' *The Guardian* (Nigeria) 2024.</footnote>

<footnote n="64">64 Sec 12 Children's Act, 1998 (Ghana).</footnote>

<footnote n="65">65 Sec 87(2) Children's Act, 1998 (Ghana).</footnote>

<footnote n="66">66 Ministry of Gender, Children and Social Protection '2014 Child and Family Welfare Policy' November 2014.</footnote>

<footnote n="67">67 UNICEF '2021 Fulfilling the commitment to child protection in Ghana'.</footnote>

<footnote n="68">68 UNICEF (n 38).</footnote>

<footnote n="69">69 UNICEF (n 38).</footnote>
like its Nigerian equivalent, this Sierra Leonean government
organisation has had to accelerate action more on gender matters than
the children's right, despite the fact that child labour is still a problem
and that child domestic workers are still suffering from abuse. Afro-
barometer showed in its report for 2023 that 40 per cent of Sierra
Leonean children were out of school, and that Sierra Leone, just like
Nigeria, was one of the states with the least support systems for
vulnerable children.<fnref n="70" /> It further reported that in Sierra Leone, children
are very much often abused, mistreated, or neglected 23 per cent of the
time.

Sierra Leone was amongst the states that were at the bottom-run of the index for the provision of support services for children that were abused or neglected, with mental health issues and disabilities.<fnref n="71" /> This falls short of the provision of the Child Rights Act 2022 (Sierra Leone) which demands that the Sierra Leonean Ministry of Gender and Children's Affairs in partnership with other government ministries and relevant stakeholders, shall work to promote the enjoyment of children's welfare and rights throughout the whole of Sierra Leone.<fnref n="72" /> These statistics for vulnerable children, portend negatively for the rights of child domestic workers in Sierra Leone, who are living and suffering in the shadows.

Although laws such as the Child Rights Act have been formulated to protect children in Sierra Leone, enforcement is weak. The government has taken steps to address these and similar challenges, through the lifting of bans on pregnant girls attending school.<fnref n="73" /> In some communities, on the other hand, societal issues are still a problem. While women likely would benefit from economic empowerment policies, the focus of those policy interventions may fail to address that child protection is indeed paramount. The dynamics in Sierra Leone are part of a larger pattern, where women's proximate gains, such as initiatives against child marriage, and the advocacy for their economic participation, come at the expense of children's rights and childhood. Empowering women is important for societal advancement, but not at the cost of children's education and well-being. To achieve sustainable development, Sierra Leone needs a two-pronged approach that accounts for child rights alongside those of women. Making sure policies take these long-term considerations into account will create a more just society for all.

<footnote n="70">70 A Chingwete & R Houessou 'Africans see room to improve well-being of vulnerable children' 11 November 2023 Afrobarometer Dispatch No 731.</footnote>

<footnote n="71">71 A Chingwete & R Houessou (n 70).</footnote>

<footnote n="72">72 Child Rights Act 2022 (Sierra Leone) sec 43(1).</footnote>

<footnote n="73">73 E Calimoutou 'Sierra Leone took a major first step towards keeping girls in school and inclusive education' 17 September 2020 https://blogs.worldbank.org/en/nasikiliza/sierra-leone-took-major-first-step-towards-keeping-girls-school-and-inclusive-education (accessed 10 October 2024).</footnote>
## 3.4 Enhancing safeguards via state mechanisms

There are many ways state mechanisms can address the gap between their capacities and the promise of protection that is replete in the Children's Charter. Between the potentials that the Children's Charter represents, and the failed promises of state mechanisms in Nigeria, Ghana and Sierra Leone, in meeting up to the protection needs of child domestic workers there are opportunities for redemption. These opportunities of redemption are strategies that can be executed for the effectiveness of state mechanisms in these West African states. One way to examine the failure of these state mechanisms, is to consider what is missing in their agenda-setting. It appears that in Nigeria and Sierra Leone, the government ministries concerned with the protection of children, are more concerned with programs driven towards women emancipation. With the laws on the protection of children in these three states, child domestic workers have continued to suffer human rights violations, this is because resources are not enough to go after violators, and corruption in government circles impedes justice for these child domestic workers. Furthermore, since child domestic work is accepted culturally, changing perceptions would be driven by both sensitisation on child protection laws and a stronger commitment by these states to disrupt child trafficking.

## 3.5 Regional mechanisms and the Children's Charter

Since the use of children for domestic work is driven by poverty, it is essential that governments in West Africa begin to work towards social security programs for their citizens through wealth tax. West African governments taxing held assets in their states might help bridge the gap on widening inequality. Furthermore, the attribution of credible commitment to horizontal accountability mechanisms like the ECOWAS Community Court of Justice and the African Court on Human and Peoples' Rights, through a consolidated approach of judicial support from local judiciaries within the West African region, will not only help check executive excesses that frustrate human rights protection, but also enhance means through which civil society aspire for social change. One of the most limiting factors for legislative and policy efforts on child protection is the lack of credible data. In Nigeria, Ghana and Sierra Leone, governments struggle with effective data systems, and this can frustrate legislative and policy efforts on the protection of children. Therefore, governments can collaborate with the private sector to achieve competent data collection and utility of these data. Since human rights abuses of child domestic workers are particularly notorious in states like Nigeria and Ghana, the African Commission can give technical assistance to build capacity members of the civil society in these states, to be able to track violations of the rights of child domestic workers, who are often very difficult to help because of the discreet nature of their work environment, and learn new strategies to engage the changing nature of child labour.
4 CONCLUSION

In West Africa, child domestic workers suffer inhumane treatment
from their employers, especially in Nigeria and Ghana. These
categories of child workers are often overlooked, because their work
environment is in private homes, where violations of their rights are
well-concealed. Protecting child domestic workers is challenging
because of the hidden nature of domestic work inside private homes,
because children often work for relatives, and because domestic work
may be socially and culturally accepted as appropriate work for
children. It is often difficult to gather evidence of when domestic work
is benign and when it is harmful. However, given the informal and
largely undocumented nature of domestic work relations, and the fact
that the domestic workplace is not public, labour law provisions cannot
be enforced unless special provisions are put in place to enforce them.
State mechanisms have not also been able to meet up with their
mandate of protecting vulnerable children, because of corruption and
lack of capacity. Poverty, which is the main factor for the proliferation
of child domestic workers still persists. However, state mechanisms
could leverage on local laws and the Children's Charter to enhance
protection of child domestic workers through capacity-building, while
West African judiciaries could tackle the problem of executive
inefficiency by supporting regional courts, like the ECOWAS
Community Court and the African Court on Human and Peoples' Rights
by ensuring that the judgments of the ECOWAS Community Court are
fully implemented and respected. These West African judiciaries could
also demonstrate their commitment to the rule of law and regional
integration by upholding the independence of the regional court and
refrain from interfering with its proceedings or decisions.