34
Boshoff/Protecting the African child in a changing climate
and support an interpretation of existing obligations which include
these commitments.
3.2
Right to development and clean environment
Interestingly, the African Children’s Rights Charter nowhere provides
for environmental rights for children. The closest it comes to this is in
article 14 where it provides that every child shall have the right to enjoy
the best attainable state of physical, mental and spiritual health, which
may imply that they must have a healthy environment which is not
detrimental to their health. While there is reference to ‘development’ in
article 5, this is not development in the same sense as understood under
the African Charter. In article 5 of the African Children’s Rights Charter
development solely relates to the development of the child, which is
completely different from the peoples’ right to development provided in
article 22 of the African Charter. It is also dissimilar from article 24 of
the African Charter which provides for a general satisfactory
environment favourable to peoples’ development. It is not clear why the
drafters of the African Children’s Rights Charter did not have regard to
the environmental human rights of children, or whether perhaps they
thought that it was sufficiently covered by the African Charter.
However, they clearly did not conceive of the far-reaching
consequences of climate change, along with other environmental
degradation currently experienced which is detrimental to the
wellbeing of children,46 in drafting this instrument.
In stark contrast, the African Women’s Rights Protocol does
provide for the right of women to live in a healthy and sustainable
environment and provides extensively for their rights to participation
in management and preservation, development of renewable energy
and other technologies, the development of women’s indigenous
knowledge systems and management and disposal of domestic and
toxic waste.47 In addition, the African Women’s Rights Protocol
provides for the right of women to sustainable development, including
participation in development of policies and access to and control over
resources.48 In this regard, while the girl child is not protected from
environmental degradation under the African Children’s Rights
Charter, the African Women’s Rights Protocol, which applies to all
women, irrespective of their age (to the extent applicable), goes some
way to providing a basis for the protection of rights threatened by
climate change, for example where they relate to plans and policies to
mitigate climate change through adoption of renewable energy sources
and national development strategies.
Ironically, this thus means that under the African regional human
rights system, the rights of girls to a healthy environment and
46
Including the destruction of biodiversity, pollution of land, sea and air with plastic
particles and other waste and the extinction of species.
47
Article 18(1) of the African Women’s Rights Protocol.
48
Article 19, particularly 19(b) and (c), of the African Women’s Rights Protocol.