Mapping Children on the Move within Africa Most importantly, as stated in Joint General Comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the Child tackling de jure discrimination does not automatically ensure de facto equality.32 Thus, states must take positive measures to ‘prevent, diminish and eliminate the conditions and attitudes’ that lead to or perpetuate de facto discrimination against children on the move.33 States should also record incidents of discrimination against children on the move including child migrants and to investigate and sanction such conduct in an appropriate and effective manner.34 As stated by the ACERWC in Minority Rights Group International and SOS-Esclaves on behalf of Said Ould Salem and Yarg Ould Salem v The Republic of Mauritania, under the duty to protect children from discrimination, states have a duty to put in place preventive measures against discrimination and where there is discrimination or occurrence of violation of children’s rights, the state has to provide an effective remedy.35 2.1.2 Best Interests of the Child Article 3 of the CRC provides that in all actions concerning children, whether carried out by public or private social welfare institutions, courts of law, legislative bodies or administrative authorities, the best interests of the child shall be ‘a primary consideration.’ The ACRWC under Article 4 provides also that in all actions concerning children the best interests of the child shall be the primary consideration. The principle of the best interests of the child is the benchmark against which all actions, policies, practices and laws that affect children should be measured. Notably, the phrasing of ACRWC with the definite article ‘the’ primary consideration, as opposed to the phrasing of CRC ‘a’ primary consideration, elevates the role of ACRWC in the promotion and protection of rights of children.36 In Africa, examples of states that have put in place measures to guarantee the principle of the best interests of the child include, Kenya which under Article 53 of the Constitution provides that, ‘a child’s best interests are of paramount importance in every matter concerning the child.’ The Children Act No. 8 of 2001 under Section 4 adopts the phrasing of the CRC by stating that in all actions concerning a child, ‘the best interests of the child shall be a primary consideration.’ The Ethiopian Constitution under Article 36(2) provides that ‘[i]n all actions concerning children undertaken by public and private welfare institutions, courts of law, administrative authorities or legislative bodies, the primary consideration shall be the best interest of the child’. Section 4(2) of the Tanzania’s Law of the Child Act No. 21 of 2009 provides that ‘the best interests of a child shall be the primary consideration in all actions concerning a child….’ In regard to Nigeria, the Child’s Rights Act No. 26 of 2003 under Section 1 provides that in every action concerning a child, ‘the best interests of the child shall be the primary consideration.’ On the enforcement of the principle of the best interests of the child in South Africa, the ACERWC made the observation in the box below: 32 33 34 35 36 Joint General Comment No. 3 (n 30 above) Para 26. As above. As above. Minority Rights Group International and SOS-Esclaves v Mauritania (n 29 above) para 61. Prof. Benyam D Mezmur, The African Children’s Charter versus the UN Convention on the Rights of the Child: A Zero-Sum Game? (2008) 23(1) SA Public Law 1-29. 19