Mapping Children on the Move within Africa 2.1.1 Non-discrimination The principle of non-discrimination is fundamental, and in all its aspects, is applicable with regard to children in the context of population movements.23 Every child affected by movements, such as migration, has the right to enjoy their freedoms and fundamental rights regardless of the child’s or his or her parents’, age, gender, ethnic or national origin, disability, religion migration/ documentation status, stateliness, health status, race, colour or economic status.24 The principle of non-discrimination is at the core of all migration policies and procedures, including border control mechanisms, irrespective of the migration status of a child or his or her parents.25 Article 2 of the CRC provides that states have an obligation to ensure that children within their jurisdictions enjoy their rights without discrimination of any kind. The Article requires that states take all appropriate measures to guarantee that children are protected against all forms of discrimination or punishment. The ACRWC in respect to the right to non-discrimination in Article 3 provides that every child is entitled to the enjoyment of the rights and freedoms recognized and guaranteed under the ACRWC irrespective of the child’s or his/her parents’ or legal guardians’ race, colour, sex, ethnic group, language, religion or other opinion, social and national origin, birth, fortune or other status. As pointed out by the Committee on the Rights of the Child in General Comment No. 14, the right to non-discrimination is not a ‘passive obligation’ prohibiting all forms of discrimination in the enjoyment of rights but also calls for appropriate ‘proactive measures’ to be taken by states to ensure effective equal opportunities for all children to enjoy their rights.26 African states have taken steps to protect children from non-discrimination ensuring that children within their borders enjoy the rights provided for under the CRC and the ACRWC. For instance, Tanzania under Section 5 of the Law of the Child Act No.21 of 2009 guarantees that children have a ‘right to live free from discrimination. The Section further states that a person shall not discriminate against a child on the grounds of gender, religion, race, disability, age, health status, ethnic origin, being a refugee or other status. In Kenya, the Children Act No. 8 of 2001 under section 5 provides that ‘No child shall be subjected to discrimination on the ground of origin, sex, religion, creed, custom, language, opinion, conscience, colour, birth, social, political, economic or other status, race, disability, tribe, residence or local connection.’ In addition, the Constitution of Kenya 2010 under Article 27(4) &5 prohibits the state or a person to discriminate against any person on any grounds including race, age, ethnic or social origin, language, birth, belief, sex, disability etc. South Africa has also made notable steps in protection of children against discrimination in terms of putting in place national laws and policies that provide for the right to non-discrimination against children. The ACERWC stated the following on South Africa’s laws, policies and practices in protection of children against non-discrimination: 23 24 25 26 Committee on the Rights of the Child, General Comment No. 6, para. 18. 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 on the general principles regarding the human rights of children in the context of international migration CMW/C/GC/3- CRC/C/GC/22 para 21. As above para 22. General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)* CRC/C/GC/14 para 41. 17