134
Mezmur/18th birthday of the African Children’s Rights Charter
age. In addition, unlike the CRC provision,45 there are no limitations
or attached considerations, so that it may be applied to as wide-ranging
a number of children as possible. It contains no loopholes relating to
exemptions for national law that undercut the guarantee of universal
rights for all children without distinction.46
It is promising to witness that some of the law reform efforts on the
African continent reflect the impact of the African Children’s Rights
Charter on standard-setting exercises at the national level. In this
respect, the definition of a child is one example.47 Apart from ordinary
law, a number of constitutions too have emulated article 2 of the
Charter.48 These include the South African Constitution of 1996,49 the
1995 Constitution of Uganda,50 the 2011 Transitional Constitution of
the Republic of South Sudan,51 the 2010 Constitution of Angola,52 the
2010 Constitution of Kenya,53 and despite non-ratification of the
Charter, the 2012 Provisional Constitution of the Republic of
Somalia.54 The choice of age 18 in the African Children’s Rights Charter
can be perceived to have contributed to the construction of a uniform
identity of the child55 without exposing persons below the age of 18 to
different, and sometimes low level, protections under traditional,
religious, or customary laws.
45
This provision is ambiguous and weak, lacking specific protection within the African
context in order to take into account child betrothals, child participation in armed
conflict and child labour.
46 See S Grover ‘On recognizing children’s universal rights: what needs to change in the
Convention on the Rights of the Child’ (2004) 12 International Journal of Children’s
Rights 260.
47 The constitutions of South Africa and the Democratic Republic of Congo, for
example, follow the ACRWC’s definition of a child without exception – that is, as persons
under the age of 18 years. Furthermore, in Nigeria, where the 1943 Children and Young
People’s Act classified only those people under 17 years as juvenile offenders, the Child’s
Rights Act of 2003 rectifies this and puts the age at 18. A similar problem transpires
under Chapter 44 of the Children and Young Persons Act of 1945 of Sierra Leone and will
most likely be addressed when the Child Rights Bill becomes an Act. Egypt adopted a
Children’s Code in 1996 that regulates the duties and functions of institutions providing
juvenile justice services to children and applies to all persons under the age of 18. In
addition, it is interesting to note that although Morocco is not a party to the African
Children’s Rights Charter, under Law no 11 of 1999, which amends and supersedes
section 446 of the Penal Code, a child is defined as a person under the age of 18. In
section 2, the Kenyan Children’s Act specifically defines a ‘child’ as any person under the
age of 18 years. The adoption of the definition of a child with no exception (in
consonance with the African Children’s Rights Charter) is not without practical
advantage in the lives of African children, as it helps to extend the protection of the
rights under the Charter and the CRC to a larger group of persons and to the maximum
extent possible.
48 Violations of article 2, albeit very limited, are also present. In Namibia, the 1998
Constitution reads in article 15(2) that ‘[f]or the purposes of this paragraph child shall be
under the age of sixteen (16) years’.
49
Section 28(3).
50
Article 257(c).
51
Article 17(4).
52
Article 24 of the Constitution states that ‘the age of majority shall be 18’.
53
Article 260.
54
Article 29(8).
55 There are a number of places in the world where children are governed by customary
law that does not define childhood by reference to numerical age.