Mapping Children on the Move within Africa form of torture or cruel, inhuman or degrading treatment or punishment. In Togo the Constitution under Article 21 provides that no person should be ‘submitted to torture or to other forms of cruel, inhuman or degrading treatments.’ In Niger, the Constitution under Article 12 provides that no person should be subjected to torture, slavery, or cruel, inhuman or degrading treatment. The Constitution of South Africa under Article 12 provides that no person should be tortured in any way or subjected to treatment or punishment that is cruel, inhuman or degrading. Notably, the African Commission on Human and Peoples’ Rights in Article 19 v Eritrea, pointed out that ‘the right to freedom from torture and cruel, inhuman or degrading treatment cannot be derogated from for any reason, in whatever the circumstances.’113 Under International law, the prohibition against torture is a jus cogens or a peremptory norm. In other words, it is a norm that cannot be derogated from. In respect to peremptory nature of the prohibition against torture and cruel, inhuman or degrading treatment the International Criminal Tribunal for the former Yugoslavia (ICTY) in Prosecutor v Furundzija, stated:114 __________________________________________________________________________________________________ ‘Because of the importance of the values it protects, this principle has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even “ordinary” customary rules. The most conspicuous consequence of this higher rank is that the principle at issue cannot be derogated from international treaties or local or special customs or even general customary rules not endowed with the same normative force.’ 114 Therefore, both private actors and state agencies are prohibited from subjecting children on the move to torture, cruel, inhuman or degrading treatment or punishment. 2.8 Specific rights of migrant children, internally displaced children and refugee Chidren Within the context of children on the move accompanying their parents as migrants, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICMW) in Article 4 identifies children as members of migrant families who are entitled to the protection of the State. The following rights are also guaranteed to children of migrant families: Article 12 on the right of migrant parents to ensure the religious and moral education of their children, Article 17 on the protection of the children of migrant parents who have been deprived of their liberty, the rights of migrant children to a name, registration at birth and nationality in Article 29, the right to education for migrant children in Article 30, and the right to education and instruction, where necessary, in the mother tongue of the migrant child in Article 45. The ACERWC, in its seminal and pioneering decision in the Nubian Children’s Communication115 noted that child refugees, migrants and asylum seekers are among the category of children not being registered at birth in violation of article 6 and who are rendered stateless. More importantly, the Committee held that the right to a nationality, purposively interpreted, meant the 113 114 115 Article 19 v Eritrea (2007) AHRLR 73 (ACHPR 2007) para 98. Case Number. IT-95-17/I-T), Judgment, 10 December 1998, para 153. IHRDA and OSJI v Kenya (n 80 above). 35