Last week, the government was given clear direction by the United Nations: South Africa needs a dedicated children’s commissioner to ensure their rights are protected and promoted. It should also adopt an interministerial approach to child rights governance.
The commissioner, the UN Committee on the Rights of the Child said, should be appointed by the Human Rights Commission, in line with its legal obligations.
Services for children are delivered by different government departments, so it is important to have a strong co-ordinating mechanism, which can also serve as a government monitoring body. Previously, the monitoring of children’s rights was held in the presidency. Later, it was moved to the ministry of women, children and persons with disabilities. Following that ministry’s demise, government oversight of children’s rights was relegated to the department of social development.
The UN Convention on the Rights of the Child (the CRC) is the most widely ratified convention in the world. All countries except the United States have ratified it. South Africa did so soon after the democratic government came to power. The convention sets out the rights of children – and the obligations of states towards their fulfilment. The UN committee oversees states’ progress. Once a state has ratified the convention, it must report within two years, and every five years thereafter.
The reporting process is detailed and intense. The government must compile a written report. Civil society representatives, human rights institutions and international nongovernmental organisations then have an opportunity to provide “alternative reports” and to make brief oral presentations to the UN committee. Thereafter, the UN committee comes up with a “list of issues” to which government responds, and civil society again has an opportunity to comment on those. Finally government makes its oral presentation to the UN committee.
After a woeful delay of more than a decade, the South African government finally filed its second report in 2015. South Africa’s robust children’s rights sector co-operated well and produced an alternative report through the Alternative Reporting Coalition on Children’s Rights (ARC-CRSA). The South African Human Rights Commission and the UN Children’s Fund also provided alternative reports. Government presented its oral submissions on September 16 this year. This gave the UN committee a comprehensive view of the state of children’s rights in South Africa today.
The “concluding observations” of the UN committee, issued on Friday October 7, which include an array of recommendations, are important directives to government on what it can do to bring its laws, policies and practices into line with the CRC. One of the most important overarching recommendations is that it must improve its governance on children’s rights by elevating it above any one department. Although the UN committee recognised the effort the department had made to establish an inter-sectoral committee to do the co-ordination and monitoring, it expressed doubts about the ability of one department to co-ordinate the activity of all relevant sectors in government. This reflected a position that the ARC-CRSA had motivated – they called for the co-ordination and monitoring function to be returned to the presidency, and they will continue to make this call.
Co-ordination and monitoring of children’s rights by government is only one half of the task. As government cannot be entirely objective about its own performance, it is expected of all states that they also ensure an independent monitor of children’s rights is established. South Africa did not mention plans for this in its written reports to the UN committee.
ARC-CRSA reported that there is an ongoing debate in South Africa about whether a children’s ombud should be established, or whether a children’s commissioner should be consolidated in the ranks of the Human Rights Commission. The commission has a commissioner who has children’s rights included in her mandate, together with other responsibilities. A dedicated children’s commissioner would require allocated resources and support. In its oral submissions to the UN committee the government mentioned the possibility of an ombud being established in the future, but did not provide any detail.
The UN committee strongly recommended that the government provide sufficient resources to ensure the Human Rights Commission can promote and protect children’s rights effectively. The public, including children, must be made aware of the commissioner and must also be told that they can make individual complaints when their rights are infringed.
So the UN committee has given some clear pointers to the government on how it can improve its governance and oversight arrangements, to ensure better protection of children. Children’s rights groupings such as the ARC-CRSA will be keeping a keen watch on developments to see that the recommendations come to fruition.
Professor Ann Skelton is the director of the Centre for Child Law at the University of Pretoria and a member of ARC-CRSA. She has been elected to the Committee on the Rights of the Child with effect from March 2017