Education

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admin
Judgment date
Case number
Communication 1 of 2019
Court name
African Committee of Experts on the Rights and Welfare of the Child
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Communication
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Children
Harmful practices affecting the rights of children
Admissibility
Education

The African Committee of Experts on the Rights and Welfare of the Child
(ACERWC)

Admissibility Ruling

Communication No: 0012/Com/001/2019

Decision on Admissibility No: 001/2020

Legal and Human Rights Center and Center for Reproductive Rights (on behalf of
Tanzanian girls)

v

United Republic of Tanzania

Original- English

I.        Submission of Communication

1.   The Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (the Committee/ACERWC) received a Communication dated 17 June 2019 pursuant to article 44 of the African Charter on the Rights and Welfare of the Child (the Charter/ACRWC). The Communication is submitted by Legal and Human Rights Center and Center for Reproductive Rights (on behalf of Tanzanian girls) (the Complainants) against the United Republic of Tanzania (the Respondent State). Receiving the Communication, pursuant to Section III of the Committee’s Revised Guidelines for Consideration of Communication (the Revised Communications Guidelines), the Secretariat of the Committee conducted a preliminary review and registered the submission as Communication No: 0012/Com/001/2019. To facilitate the determination on the admissibility, the Communication was duly transmitted to the Respondent State through a Note Verbal, Ref DSA/ACE/64.2604.19 dated 25 June 2019, pursuant to Section IX (2) of the Revised Communications Guidelines. The Committee received a Note Verbal from the Respondent State, Ref. CHAD/239/738/01/10, dated 01 October 2019, which contains the Respondent State’s submission on the admissibility of the Communication. The response submitted by the Respondent State was not accepted by the Committee as it was signed by one of the Members of the Committee, thus raising conflict of interest contrary to what is prescribed under Rule 4 of the Rules of Procedures of the ACERWC. Hence, the Committee, through a Note Verbal, Ref. DSA/ACE/64/5333.19, dated 09 December 2019, requested the Respondent State to revise and re-submit its response. Accordingly, the Respondent State submitted its revised response on the admissibility of the Communication with a Note Verbal, Ref. No. CHAD 239/780/01/35, dated 27 August 2020 which was also sent to the Complainants on 31 August 2020. Following the Respondent State’s submission, on 01 September 2020, the Complainants, pursuant to Section IX (2) (Vi) of the Revised Communications Guidelines, further submitted their observations on the response of the Respondent State.

II.       Summary of alleged facts

2.   The Complainants allege that primary and secondary school girls are subjected to forced pregnancy testing and expulsion from schools in events where they are found pregnant or married. While acknowledging that the exact number of children expelled from schools for reasons of pregnancy or marriage is unknown, the Complainants submit that Tanzania’s 2013 Basic Education Statistics provides that 2433 primary schoolgirls and 4705 secondary schoolgirls dropped out of school due to pregnancy in 2012. Moreover, the Complainants allude to reports from Human Rights Watch that over 15,000 girls drop out of school every year due to pregnancy. It is also submitted that the study conducted by one of the Complainants, Center for Reproductive Rights, provides that over 55,000 female students dropped out of school due to pregnancy between 2003 and 2011.

3.   The Complainants allege that mandatory pregnancy testing is practiced in almost all public schools subjecting girls as young as 11 years of age to pregnancy testing. It is submitted that the testing does not follow any standard and sometimes painful methods such as poking are applied to check for pregnancy by school personnel. The Complainants allege that pregnancy testing is undertaken without the consent of the girls and most often the results are not communicated to the girls but rather shared with school staff without the consent of the girls. Girls are also required to take pregnancy test when they enroll in schools.

4.   The allegation of the Complainants provides that girls who are found to be pregnant before being enrolled will not be accepted to schools and those girls who are found to be pregnant in the school year are expelled from schools. The Applicants allude to the fact that neither pregnancy testing nor expulsion of students due to pregnancy is prescribed by the Education Regulations. The Applicants provide that pregnancy is not included as a ground of expulsion in the Education (Expulsion and Exclusion of Pupils from School) Regulation 2002 G.N. No. 295 of 2002, however, school administrators interpret pregnancy to be an offence against morality which is one of the grounds of expulsion under the Regulation. The Complainants also indicate that some school administrators expel pregnant girls from school claiming that it is government policy. As expulsion is a universal practice in public schools, girls who find out about their pregnancy by themselves dropout of school to escape the humiliation and stigma they will be subjected to if school administers find out about their pregnancy during mandatory testing. Moreover, the Complainants submit that the expulsion and exclusion of pregnant school girls has no exception such as in cases where girls fall pregnant due to sexual abuse or incest even in cases where police report can be produced to that effect.

5.   The Communication further alleges that married girls are not allowed to register or remain in school once married and this is vividly provided by the Respondent State’s Regulation on Expulsion and Exclusion of Pupils. The Complainants submit that the Education (Imposition of Penalties to Persons who marry or Impregnate a School Girl) Rules 2003, G.N. No. 265 of 2003 penalizes anyone who marries or impregnates a schoolgirl. The Communication highlights that this is in contradiction with the laws of the Respondent State as the Marriage Act allows girls as young as 14 to get married. The Communication also indicates that there is a court decision which rules that the age of marriage for girls set below 18 has been declared unconstitutional but has not entered into force due to an ongoing appeal on the decision of the High Court.

6.   Moreover, the Complainants allege that the expulsion and exclusion policy of the Government is a permanent one as school girls are not readmitted to the public school after delivery. School girls who have been expelled due to pregnancy or marriage can only be readmitted to private schools or vocational training schools. The Complainants further allege that these options are not always accessible or limit the education path girls wish to pursue. While noting that since 2014 the Education and Training Policy has incorporated a provision which provides that students who left school for any reason should be readmitted, the Complainants submit that this has never been implemented. The Communication also submits that recent statements by high level officials of the Respondent State including the President have alluded to the fact that the Government of the Respondent State will intensify its effort to expel students who fall pregnant and also to ensure their non-readmission to schools. The Complainants also submit affidavits of girls who have been denied to re-enter school after giving birth due to the statements of the officials, mainly the President.

7.   The Communication includes facts that school personnel usually report pregnancies as the Child Act and the Ministry of Education Rules prescribe penalty against those who impregnate girls. The Complainants submit that such reports are subjecting girls to unlawful detention or harassment as they are often detained or harassed until they expose the identity of the person who impregnated them. Furthermore, the Communication alleges that girls who fall pregnant due to sexual abuse are exposed to the same risk of detention and harassment subjecting them to secondary victimization. The Complainants refer to the assessment undertaken by the Tanzanian Commission on Human Rights and Good Governance to allege that children are detained in harsh conditions, denied of visits by caregivers, and subjected to delayed case hearings. The Communication therefore alleges that girls are being detained when they refuse or are unable to testify against who impregnated them although being pregnant by itself is not provided as a crime. The Communication cites the statement of the Regional Commissioner who ordered regional and district commissioners of education to arrest pregnant girls who refused to identify the person who impregnated them. Following the order, the Communication alleges that 55 pregnant school girls were arrested in Tandahimba District. Such practices and policies discourage pregnant girls or parents from seeking information or assistance including reporting cases of sexual abuse especially in cases where the perpetrators are unknown. Even when the perpetrators are known, the Complainants allege that proper investigation is not carried out to prosecute them.

8.   The Communication finally alleges that girls in the Respondent State are deprived of access to sexual reproductive health information and services to prevent unplanned pregnancies. Girls who are pregnant are not also provided with pregnancy related services such as information on family planning, and transmittable diseases. The Complainants allege that lack of information and services on sexual reproductive health issues has resulted in a high rate of teenage pregnancy and unsafe abortion as well as disproportionate risk of teenage pregnant girls’ death in the Respondent State. The number of teenage girls who fall pregnant is higher among those with lower education, lower income and girls in rural areas. The Complainants claim that there is lack of comprehensive sexual education in schools as sexuality education mainly focuses on abstinence and is provided in secondary education level where girls are already sexually active. In addition, girls are not provided with any kind of sexual reproductive health services or information during mandatory pregnancy testing such as contraception options or prevention of sexually transmitted diseases. The sexual reproductive health services available in the Respondent State are not youth friendly and hence girls are not encouraged to access such services even when they are available. The Communication submits that lack of information and services on sexual reproductive health result in unwanted and unplanned pregnancy of girls who are then forced to leave their education as a result of pregnancy. It is also increasing the number of unsafe abortions among adolescent girls which is also exacerbated by restrictive abortion law of the Respondent State.

III.      Applicants’ submission on admissibility

9.   The Complainants argue that the Communication fulfills the requirement of admissibility under Section XI (1) of the Revised Communications Guidelines.

10. The Complainants particularly focus on the requirement of exhaustion of local remedies, where they submit that the communication fulfills the requirement of exhaustion of local remedies. The Communication provides that one of the

Complainants, Legal and Human Rights Center (LHRC), along with the National Organization for Legal Assistance filed a case at the High Court of the Respondent State on behalf of school girls against the Minister of Education and Vocational Training and the Attorney General alleging that forced pregnancy testing and the practice of expelling pregnant girls from school violates the Constitution of the Respondent State. The case was filed on 13 September 2012 and after receiving the reply of the Respondents in that case, the High Court rescheduled the case three times the final of which was scheduled for 02 May 2013. The Complainants submit that hearing could not be held on the scheduled day as the assigned judge decided to recuse himself from the case. The High Court announced that the case has been reassigned to another judge on 26 November 2013 and rescheduled the preliminary hearing twice after which it decided to get the preliminary objection in writing. The Communication alleges that after numerous appointments, the Court dismissed the preliminary objection on 13 November 2015, more than three years after the filing of the case. The Communication also provides that the hearing of the merits was withheld by the Court for various reasons until 04 May 2017 when the Court decided to receive arguments on the merit in writing. The Court rendered decision on 04 August 2017 dismissing the case of the petitioners entirely on the basis of lack of evidence of discrimination and further decided that pregnancy is a matter of discipline that should be left for schools. Following the decision, the Complainants indicate that a notice of appeal was submitted to the Court of Appeal on 14 August 2017, however, the certified judgment and proceedings of the High Court were provided only on 11 April 2018. The Complainants allege that despite all procedures fulfilled, the Court of Appeal has not given a hearing date on their appeal until the day they submitted the current Communication to the Committee.

11. Based on these facts, the Complainants argue that local remedies have been unduly prolonged, hence they should not be required to wait any further for remedy at local level. The Complainants refer to Section IX (1)(d) of the Guidelines for Consideration of Communications which provides that local remedy may not be exhausted if it is unduly prolonged or ineffective. The Communication also makes reference to the Minority Rights Group International v. Mauritania case and IHRDA et.al on behalf of Children of Nubian descent v. Kenya case (Children of Nubian Descent case) Where the Committee ruled that seven and four years of delay respectively fulfill the requirement of unduly prolonged local remedies. Moreover, the Communication alleges that the best interest of the child should be the primary consideration in determining whether a local remedy is unduly prolonged given the irreparable harm the children will suffer. The Communication also reiterates the decision of the Committee in the Children of Nubian Descents Case where the Committee stated that one year delay constitutes 6 percent of childhood and hence it found that over 6 years delay in local court proceeding is not in the best interest of the children.

12. The Complainants further argue that the local remedies are not effective as local authorities are informed about the situation but have failed to act on it. The Complainants cite the Committee from its decision on the Michelo Hunsungule and others (on behalf of children in Northern Uganda) v. The Government of Uganda case (Children of Northern Uganda case) whereby the Committee stated that the purpose of having the requirement of exhaustion local remedies is to prevent international tribunals from serving as appellate courts and also to give States the opportunity to be able to address violations that occur in their territory. The Complainants also support their arguments with the jurisprudence of the African Commission on Human and Peoples’ Rights (African Commission) citing various cases including Article 19 v Eritrea and FIDH and OMCT v Sudan where the African Commission held that local remedies are ineffective and need not be exhausted in cases where the State has been provided with ample notice of the alleged violations and yet the State fails to take measures. The Communication further makes reference to Amnesty International and Others v. Sudan where the African Commission held that in cases of clear human rights violations, domestic and international attention alone may suffice to confirm that the State has received notice. In the current case, the Complainants argue that the practice of expelling pregnant girls from school is a widespread practice which the Respondent State is aware of and tries to defend and further that international reports as well as appeals including by the Committee, the Commission and the UN Committee on the Rights of the Child have been provided for the Respondent State. Therefore, the Complainants submit that local remedies are ineffective as the Respondent State has failed to act on the violations that have been brought to its attention.

13. Finally, the Complainants argue that local remedies are not available as the violations are massive and serious. The Communication makes reference to the decision of the Committee in the Children of Northern Uganda case in which the Committee granted exemption from exhausting local remedies on the basis that the violation affected thousands of children and the violation occurred on a large scale. The Complainants further support their argument by the jurisprudence of the African Commission where the Commission decided that local remedies need not be exhausted in massive and serious human rights violation cases. The Complainants rely on the definition of massive and serious human rights violation by the Commission in the Open Society Justice Initiative v. Cote d’Ivoire case where the Commission held that ‘a massive violation is one that affects a large number of persons, either in a specific region or all over the territory of a State Party. Concerning the nature, the violation must be the consequence of continual and pre-determined actions having an impact on a right or a group of rights under the African Charter’. The Communication argues that there are a large number of girls who are being affected by the expulsion which makes it massive and it would be impractical to require all these girls to exhaust local remedies.

IV.      Respondent’s submission on admissibility

14. In its response to the arguments of the Complainants on the admissibility of the Communication, the Respondent State submits that the Communication is not admissible as it does not fulfill the conditions listed down under the Revised Communication Guidelines.

15. The Respondent State submits that the Communication raises matters pending before another international human rights body, hence does not fulfill the requirement of admissibility under Section IX (1(c) of the Revised Communication Guidelines. The Respondent State submits that a similar joint communication has been submitted to the Special Mechanisms of the Human Rights namely the Working Group on Discrimination of Women in Law and Practice under Reference No. AL TZA 3/2017 dated 14 August 2014 and Special Rapporteur on the Right to Education under Reference No JAL TZA 1/2018 dated 22 February 2018. The Respondent State supports its submission using various decisions of other treaty bodies among others the decision of the African Commission in the Amnesty International v Tunisia, Mpaka- Nsusu V Zaire, and Interights v Eritrea and Ethiopia cases where it declared the Communications inadmissible as they were pending before the UN Human Rights Commission. The Respondent State argues that the Special Mechanisms are part of the Human Rights Council mechanism and hence fits in the UN Charter Procedure in accordance with Section IX 1(c) of the Guidelines of the ACERWC.

16. Furthermore, the Respondent State argues that the Communication is inadmissible as the Complainants have not exhausted local remedies available in the Respondent State. In its submission, the Respondent State argues that the Complainants should not be granted an exemption from exhausting local remedies as local remedies are available, effective, and sufficient in the domestic system. The Respondent State argues that the fact that one of the Complainants filed a case against the Ministry of Education before the High Court and later filed an appeal at the Court of Appeal reveals that there is a judicial remedy available at domestic level. The Respondent State, making reference to the Decision of the African Commission in the Amnesty International and Other V Sudan, submits that the existence of the right to appeal satisfies the condition of effectiveness of local remedies. The Respondent State further submits that its judiciary is independent and the effectiveness of a local remedy is assessed on the basis of prospect of success, not the awareness of authorities about the violation, hence the judicial and administrative role of the State should not be confused. The Respondent State also relies on the decision of the Committee on Ahmed Bassiouny v Arab Republic of Egypt and Sohaib Emad v Arab Republic of Egypt in submitting that evidence should be produced to show ineffectiveness of local remedies and a mere doubt does not make a remedy ineffective. In providing evidence that a local remedy is effective, the Respondent State cites Rebeca Z. Gyumi v The Attorney General where both the High Court and the Court of Appeal Tanzania declared Section 13 and 17 of the Law of Marriage Act unconstitutional for providing lower age of marriage for girls. The Respondent State submits that the Complainants should follow their appeal up to the end and their decision to abandon the local remedy they started to exhaust is against the principle of subsidiarity and complementarity of international tribunals. In supporting these arguments, the Respondent State among others refers to the decision of the Committee in the Sohaib Emad v Arab Republic of Egypt case that international and regional bodies do not serve as a first instance courts, rather as a last resort after exhausting local remedies.

17. In addition, the Respondent State submits that the Communication does not fulfill the requirement under Section IX 1(e) of the Guidelines on Consideration of Communications as it is premature and not submitted within reasonable time. The Respondent State alludes to the fact that the Court of Appeal is yet to rule on the case and the delay is normal like in other cases. Only cases that require urgency are given priority and the Respondent submits that this case is not urgent, hence the Complainants should wait for the decision of the Court of Appeal.

Highlighting the fact that conditions of admissibility are cumulative, the Respondent State seeks that the Communication is dismissed for lack of fulfilling admissibility requirements.

V. The Committee’s analysis on admissibility of the Communication

18. The Committee’s analysis of the admissibility of a Communication is guided by article 44 of the Charter and the Revised Communication Guidelines. According to article 44 of the Charter and Section I (1) of the Revised Communication Guidelines, non­governmental organizations legally recognized by one or more of the Member States of the African Union or State Party to the Charter or the United Nations, among others can submit a Communication before the Committee. The Committee notes that LHRC is a non-governmental organization registered in Tanzania and holds an observer status before the Committee since March 2019; similarly, the Center for Reproductive Rights is an international non-governmental organization which has a regional office in Nairobi and also has an observer status before the Committee since November 2018. Considering that the Complainants fulfill the requirement to access the Committee as they are registered in Member States of the African Union, and noting that their application is filed on behalf of pregnant and married school girls, the Committee accepts the standing of the Complainants to submit the case.

19. The Committee in analyzing the admissibility of the Communication assesses whether or not the conditions of admissibility provided under Section IX (1) of the Communications Guidelines are fulfilled. After considering the argument of the Complainants and the Respondent State, the Committee has identified three contentious issues that need to be analyzed in line with the requirement listed in the Revised Communication Guidelines; these are:

i.   Whether or not the Communication raises matters pending settlement by another international body;

ii.   Whether the Complainants have exhausted local remedies, and whether they should be exempted from exhausting local remedies;

iii.  Whether the Communication is presented within a reasonable time after exhaustion of local remedies.

i.        Whether or not the Communication raises matters pending settlement by

another international body;

20. Section IX (1) (c) of Revised Communication Guidelines states that a Communication is admissible if it ‘does not raise matters pending settlement or previously settled by another international body or procedure in accordance with any legal instruments of the Africa Union and principles of the United Nations Charter’. The Respondent State submits that the same issue is raised before the Special Mechanisms of the Human Rights Council, hence it falls within the exclusionary requirement of ‘matter pending before another international procedure’. On the basis of the requirement in Section IX (1) (c) the Revised Communications Guidelines and the submission of the

Respondent State, the Committee notes that the key issue of investigation is the nature of the adjudicating body where the current Communication is pending to be settled, which is the procedure within the Special Mechanisms of the Human Rights Council.

21. While examining the matter, the Committee notes that understanding the background importance of having the above-mentioned requirement as a condition for considering admissibility of a case is crucial. The Committee recognizes that States should not be subjected to similar international and regional judicial or quasi-judicial procedures on similar alleged violations. The Committee further recognizes that having various international judicial or quasi-judicial organs should not be used in a way that creates hierarchy among such organs where one can appeal against the other. As stated in the admissibility ruling of the case Project Expedite Justice and others v The Sudan, the Committee notes that such requirement under its Guidelines are provided to prevent conflicting decisions and ensure efficiency of transnational tribunals.[1] Such criterion of admissibility has a role to play in ensuring ‘certainty and finality of international adjudications’.[2] The same has been upheld by the African Commission, from whose jurisprudence the Committee draws inspiration in line with article 46 of the Charter, where the Commission held that the rationale behind having such requirement of admissibility is ‘to desist from faulting Member States twice for the same alleged violations of human rights and ensures that no State may be sued or condemned for the same alleged violation of human rights’.[3] The Committee further reiterates the Commission’s elucidation that the requirement is a principle that guarantees the res judicata status of decisions issued by international and regional bodies mandated to adjudicate human rights cases.

22. In line with the above, regarding the current Communication, the Committee notes that the requirement of ‘pending settlement or has been settled by another body’ shall be understood in the sense that the case in question should be pending or already settled by a body that has a mandate to reach at a decision that binds that State concerned. The spirit and wording of Section IX (1)(C) of the Revised Communication Guidelines is clear that it is not referring to all kinds of mechanisms available at international or regional levels, rather it is referring to procedures that are capable of redressing a violation as it uses the term ‘settlement’. In its admissibility ruling on the case of Project Expedite Justice and others v The Sudan, where the Respondent State argued that the same matter is pending before another procedure as the issue was being considered by the United Nations Security Council, the Committee held that ‘[f]or the Committee to consider any other procedure as considering or having settled a matter, the body or procedure must be able to address in substance the rights given to the child by the African Children’s Charter. Hence, the organ or body in question must have a mandate comparable to the Committee.’[4] Since, the UN Security Council does not have a mandate comparable to the Committee, the Committee decided that the matter cannot be regarded as pending before another international procedure and therefore dismissed the argument of the Respondent State in the stated case. Drawing inspiration from other jurisdictions, the Committee refers to the decision of the Human Rights Committee (HRC) on the Celis Laureano v Peru case, where the HRC held that international settlement for the purpose of admissibility does not include extra- conventional procedures that are tasked with assessing or reporting on certain human rights violations in specific territories.[5] More similar to the case at hand, in the Madoui V Algeria case, the HRC declared the case admissible despite the fact that the same issue has been submitted before the UN Working Group on Enforced or Involuntary Disappearances as such mechanisms are not what are meant by international settlement under its Optional Protocol.[6] Likewise the African Commission spelled out that a case is deemed to be settled if it is considered by an international treaty body or adjudication mechanism.[7] The Commission further mentions that consideration by another international procedure entails a procedure that ‘is capable of granting declaratory or compensatory relief to victims, not mere political resolutions and declarations’, hence matters considered by the UN Security Council or Human Rights Council are not precluded from being entertained by the Commission.

23. The Committee also notes that the mandate of the Special Rapporteurs or Working Groups of the Human Rights Council is limited to sending communications to the concerned State in a form of letters or reports and requesting the State to respond on the same.[8] The Special Mechanisms then report their communications and the replies of States to the Human Rights Council. As such, they do not have the mandate to issue any form of relief or decision on the complaints they receive. If the Committee considers the current communication, it cannot be said that the Respondent State is being subjected to an international procedure more than once on the same matter as no decision or relief was or can be issued to the victims by the above-mentioned special mechanisms.

24. The Respondent State relied on various cases in substantiating its argument that the case is pending before another procedure including the Mpaka-Nsusu V Zaire case and Interights v Eritrea and Ethiopia case of the African Commission among others. However, the Committee notes that the jurisprudences in which the Respondent State relied on are not similar to the case at hand. The Mpaka-Nsusu V Zaire case was declared inadmissible by the African Commission because it was already considered by the Human Rights Committee which is a treaty body with a quasi-judicial human rights mandate similar to the Commission.[9] The Commission in the Interights v Eritrea and Ethiopia case did not declare the case inadmissible; rather admitted the case and suspended the consideration until the Claims Commission make a decision.[10]

25. On the basis of the above, the Committee decides that the complaints that have been submitted to the Special Rapporteur on Education and the Working Groups on Discrimination against Women in Law and Practice do not qualify as matters ‘pending settlement or previously settled’ under Section IX (1) (c) of the Guidelines, hence the Committee is not prevented from considering the Communication.

11.     Whether the Complainants have exhausted local remedies, and whether they

should be exempted from exhausting local remedies

26. The second issue in relation to admissibility in the current Communication is the requirement of exhaustion of local remedies. The Committee notes, Section IX (1) (d) of the Revised Communication Guidelines provides that a Communication is admissible, among others, if submitted ‘after having exhausted available and accessible local remedies, unless it is obvious that this procedure is unduly prolonged or ineffective’. While the Complainants argue that local remedy has been unduly prolonged and is not available and effective, the Respondent State, referring to the previous cases, argues that local remedies are indeed available and effective. Examining the matter in contestation, the Committee refers to the long established principle that only judicial remedies that are ‘available, effective, and sufficient’ should be exhausted.[11] The availability of a local remedy is assessed in terms of the ability of the Complainants to make use of the remedy in their case.[12] The rationale behind the requirement of exhaustion of local remedies is not to create impediment on access to redress at supranational level, but rather to make sure that States are given the information about the alleged violations and an opportunity to redress such violations within their available means. States should be given ample notice about the violation that is occurring before being called at international or regional level to account for those violations.[13] Moreover, Complainants are required to exhaust local remedies because local remedies are ‘cheaper, quicker, and more effective’.[14] However, treaty bodies, like this Committee, may entertain a case without a local remedy being exhausted to the end when such remedy is unduly prolonged[15] despite the fact that a remedy is available or could be effective if pursued.

27. In the current Communication, it is submitted that one of the Complainants has attempted to exhaust local remedies since 13 September 2012 when the case was initially filed at the High Court of Tanzania and the High Court gave its decision on 04 August 2017, 5 years after the submission of the case. It was further submitted that even though the Complainants filed a notice of Appeal at the domestic level on 14 August 2017, the Court of Appeal has not given them a hearing date until this case was filed before the Committee in 2019. The Committee believes that time is of a crucial essence of local remedy particularly for children as their best interests demands it and also they have a limited period to enjoy the rights accorded to them as such rights are prescribed by time. As the Committee, in the children of Nubian Descents Case pronounced, a court proceeding that is pending for over 6 years is not in line with the obligation of States to take proactive action and give immediate attention for the realization of children’s rights.[16] Likewise in the case Minority Rights Group International and other v Mauritania, the Committee found that four years of pending case at an appeal stage without any decision amounts to an unduly prolonged domestic remedy, hence the Committee concluded such instance forms a sufficient ground for exemption from exhaustion of local remedies requirement.[17] Referring to the practice with other jurisdictions, the Committee notes that a similar approach is followed by various international and regional bodies. The Human Rights Committee has declared that a proceeding that lasted 6 years at domestic level is an unduly prolonged local remedy which makes a case admissible at the Committee without having the need to wait for the final result of the court proceeding.[18] The Inter American Human Rights Court has also held that a case that has taken 5 years or more since the initial process can result in exemption of the requirement of local remedies.[19] The Committee is cognizant of the fact that there is no fixed amount of years to say that a local remedy is unduly prolonged, rather it is decided on a case by case basis giving due regard to the rights of children at stake. The Committee, while drawing inspiration from the above-mentioned cases, is in no way attempting to prescribe a definitive amount of time for what needs to be considered as ‘unduly prolonged local remedy’. It is the view of the Committee that the amount of time and the nature of the right invoked along with the best interests of the child should determine whether a local remedy is unduly prolonged or not.

28. In the current Communication, the Committee notes that the domestic remedy has taken over 7 years in total and the appeal has taken 2 years without the Court fixing a date for a hearing of the case. Given the time that has lapsed during the consideration of the case by the High Court and the rights of children at stake, the Complainants should no more be subjected to wait for the decision of the Court of Appeal whose proceeding so far has not demonstrated to be any faster. The right to education that is being alleged to have been violated is an essential right for children, which has a long-lasting effect on the wellbeing of children. Education determines the future of children and a domestic proceeding that is prolonged on such fundamental right should not be regarded as a remedy that should be sought till the end process. The Committee, therefore, holds the view that the domestic remedy is unduly prolonged.

29. The Committee does not find the argument of the Respondent State acceptable where it relies on previous cases of the Committee namely Ahmed Bassiouny v Arab Republic of Egypt and Sohaib Emad v Arab Republic of Egypt in arguing that local remedies are effective. The Committee would like to differentiate between the case at hand and the abovementioned two cases invoked by the Respondent State. Both in Ahmed Bassiouny v Arab Republic of Egypt and Sohaib Emad v Arab Republic of Egypt cases the Committee declined the communication as the Applicants were anticipating the ineffectiveness of the local remedy by relying on previous cases or merely casting doubts without trying to exhaust any remedy at local level.[20] However, in the present case, the Committee notes that the Complainants have attempted to engage the domestic courts and waited for 5 years to get a decision from the High Court, and appealed to the Court of Appeal which took long time to fix the hearing date. Such practices entail that the domestic remedy is proved to be unduly prolonged while the State has been given ample time to address the violation. Hence, it is the view of the Committee that the Complainants argument is not based on a mere anticipation, rather proven records of unduly prolonged domestic proceedings. The Committee reiterates, one of the reasons for exhaustion of local remedies is to give notice to the concerned State about the alleged violations so that it gets the opportunity to address the allegation. In this regard, the Committee, in addition to the local remedies sought by one of the Complainants, refers to the attempts by various international and regional interventions that have drawn the attention of the Respondent State on the same matter covered in the current Communication. In this regard, the Committee particularly refers to the Committee’s and African Commission’s joint letter of urgent appeal sent to the Respondent State regarding the right to education of pregnant girls on 21 July 2017 with        Ref:

ACHPR/LPROT/SM/652/17 regarding the school attendance by pregnant girls and young mothers in the Respondent State. In such circumstance, the Committee takes a strong view that it is against the best interests of the girls in the Respondent State to subject them to prolonged domestic proceedings on a matter that the Government of the Respondent State is well aware of. Moreover, the Committee declines the argument of the Respondent State that resorting to international human rights mechanism without finalizing cases at domestic level is against the subsidiarity principle of transnational systems. The Committee is duly cognizant that reginal and international mechanisms are subsidiary to domestic systems and such principle is reflected under its Revised Communications Guidelines as it prescribes exhaustion of local remedies as one criterion for admissibility of any communication. However, as explained earlier this criterion is not without exception and the exceptions in no way compromise the principle of subsidiarity.

30. With regard to the submission of both parties on the availability of domestic remedy, the Committee makes reference to some of the instances where the remedies have been rendered to be unavailable including when the power or competence of the local courts have been ousted by decrees or any form of decisions; when there is fear for life if the case is brought before local courts,[21] and when the remedies available are non-judicial or are discretionary.[22] The Respondent State argues that the attempt of the Complainants to seek remedy is a proof that remedy is available and cited cases where courts ruled favorably in cases that involved systematic issues like child marriage. The Committee takes the view that exemptions to exhaustion of local remedies are assessed on a case by case basis. The African Commission as well as the Inter American Court of Human Rights have both indicated the same, that the availability and effectiveness of a local remedy is assessed on a case by case basis.[23]A remedy may be available according to the general principle or practice of the Respondent State, however, if the Complainants are not able to use it in their circumstances, it may be regarded as unsuitable for the case.[24] While the Committee is convinced that a remedy may be available in the Respondent State for cases like the current one, it, however, notes that the remedy is unjustifiably and unduly prolonged which makes it not suitable for the Complainants to pursue.

111.   Whether the Communication is presented within a reasonable time after

exhaustion of local remedies.

31. The third issue on admissibility relates to time. The Respondent State submits that the Communication does not satisfy the requirement under Section IX (1) (e) of the Revised Communication Guidelines which requires complaints to be submitted within reasonable time after exhausting local remedies. The notion of this requirement is to ensure that Complainants who allege violations act in due diligence in pursing their cases. The requirement aims at preventing delays in reaching out to international bodies after exhausting local remedies the main goal being to prevent what is known as ‘abuse of right to submission’ in other jurisdictions.[25] Even though there is no provided time under the Revised Communication Guidelines on the number of years within which cases should be submitted before the Committee after the period of exhaustion of local remedies, the Committee draws inspiration from the approach of the Human Rights Committee where it says no delay is acceptable without reasonable justification.[26] Hence, given this rationale of the provision under the Guidelines, the argument of the Respondent State that the case is premature and hence not submitted within reasonable time is misguided and out of the context of the requirement under Section IX (1) (e).

32. As to the other conditions of admissibility, the Committee does not observe any irregularity and no contention has been raised by any of the parties to the Communication.

33. For the forgoing reasons, the Committee finds that the present Communication is admissible as per its requirements under article 44 of the Charter and Section IX (1) of the Revised Guidelines for Consideration of Communications.

Adopted in September 2020 during the 35th Ordinary Session of the ACERWC

Honorable Joseph Ndayisenga

Chairperson

The African Committee of Experts on the Rights and Welfare of the Child

 

[1] ACERWC, Communication No 0011/Com/001/2018, Decision on Admissibility No 01/2019, Project Expedite Justice and others v The Sudan, para 33.

[2] Frans Viljoen, International Human Rights Law in Africa, 2012, 2nd ed, Oxford University Press, p321.

[3] ACHPR, Communication 260/2002, Bakweri Land Claims Committee v Cameroon, (2004), para 52.

[4] ACERWC, Communication No 0011/Com/001/2018, Decision on Admissibility No 01/2019, Project Expedite Justice and others v The Sudan, para 37.

[5] Human Rights Committee (HRC), Communication 540/1993, Celis Laureano v Peru, (25 March 1996), para 7.1

[6] HRC, Communication 1495/2006, Zohra Madoui (represented by counsel, Nassera Dutour) v Algeria Decided at 94th session, 28 October 2008, CCPR/C/94/D/1495/ 2006 para 6.2.

[7] ACHPR, Communication 279/03, Sudan Human Rights v The Sudan; ACHPR, Communication No 296/05 Centre on Human Rights and Evictions v The Sudan, May 2009, para 104.

[9] ACHPR, Communication No. 15/88 Mpaka - Nsusu Andre Alphonse v. Zaire, para. 2; HRC, Communication No. 157/1983, Andre Alphonse Mpaka-Nsusu v Zaire, Twenty Seventh Session.

[10] ACHPR, Communications 233/99- 234/99: Interights (on behalf of Pan African Movement and Citizens for Peace in Eritrea) v Ethiopia and Interights (on behalf of Pan African Movement and Inter African Group) / Eritrea para 55.

[11] ACERWC, Communication 002/2009 Institute for Human Rights and Development in Africa (IHRDA) and other v Kenya, para 28; ACHPR, Communications 147/95 and 149/96, Sir Dawda K Jawara v The Gambia, (May 2000), para 31.

[12] ACHPR, Communications 147/95 and 149/96, Sir Dawda K Jawara v The Gambia, (May 2000), para 33.

[13] ACHPR, Communication 155/96, Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria (Oct 2001) para 38; ACHPR,Communications 25/89, 47/90, 56/91, 100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de I’Homme, Les Te'moins de Jehovah v Zaire (Oct 1995) para 37;

[14] ACHPR, Communication 299/05, Anuak Justice Council v Ethiopia (May 2006), para 48

[15] ACERWC, Communication No 002/2009, Institute for Human Rights and Development in Africa (IHRDA) and other v Kenya (March 2011) para 32; Guidelines for Communications, section IX (1)(d).

[16] ACERWC, Communication No 002/2009, Institute for Human Rights and Development in Africa (IHRDA) and other v Kenya (March 2011) para 33-34.

[17] ACERWC, Communication no 007/Com/003/2015, Minority Rights Group International and SOS- Esclaves on behalf of Said Ould Salem and Yarg Ould Salem v Mauritania, (2017), Para 28

[18] HRC, Communication 1085/2002, Louisa Bousroual (on behalf of Salah Saker) v Algeria (15 March 2006), para 8.3.

[19] Inter-American Court of Human Rights (IACtHR), Genie-Lacayo v. Nicaragua, Merits, para 81; IACtHR, Las Palmeras v. Colom-bia, preliminary objections, para 38

[20] ACERWC, Communication No 008/Com/002/2016, Sohaib Emad v Arab Republic of Egypt, (2017) para 18; ACERWC, Communication No 009/Com/001/2016, Ahmed Bassiouny v Arab Republic of Egypt, (2017) para 24 and 30.

[21] ACHPR, Communications 147/95 and 149/96, Sir Dawda K Jawara v The Gambia, (May 2000), para 34­35.

[22] H Onoria ‘The African Commission on Human and Peoples’ Rights and the exhaustion of local remedies under the African Charter’ (2003) 3 African Human Rights Law Journal 5; ACERWC, Communication No 002/2009, Institute for Human Rights and Development in Africa (IHRDA) and other v Kenya (March 2011) para 30.

[23] ACHPR, Communication 299/05, Anuak Justice Council v Ethiopia (May 2006), para 49; Inter American Court of Human Rights, Fairen-Garbi and Sol^s-Corrales v. Honduras, Preliminary Objection, para 89.

[24] Inter-American Court of Human Rights, Durand and Ugarte v. Peru, Preliminary Objection, 1999.

[25] Article 3, Optional Protocol of the HRC

[26] HRC, Communication 767/1997, Mr Vishwadeo Gobin v Mauritius (16 July 2001), para 6.3.

Author
admin
Judgment date
Case number
Communication 1 of 2012
Court name
African Committee of Experts on the Rights and Welfare of the Child
Flynote local
Communication
Flynote
Children
Education
Harmful practices affecting the rights of children
Leisure, recreation and cultural activities

THE CENTRE FOR HUMAN RIGHTS (UNIVERSITY OF PRETORIA) AND LA
RENCONTRE AFRICAINE POUR LA DEFENSE DES DROITS DE L’HOMME
(SENEGAL)

Versus

GOVERNMENT OF SENEGAL

DECISION: No 003/Com/001/2012

Summary of Alleged Facts

1.   On 27 July 2012 the Secretariat of the African Committee of Experts on the Rights and Welfare of the Child (henceforth, “the Committee”) received a communication, pursuant to Article 44(1) of the African Charter on the Rights and Welfare of the Child (herein after, “the Charter"), submitted by the Centre for Human Rights, University of Pretoria (South Africa) and La Rencontre Africaine pour la Defense des Droits de I’Homme (RADDHO) of Senegal (all of which shall be referred later as “the Complainants").

2.   The Complainants are alleging that children as many as 100,000 (known as talibes), aged between 4 and 12 years, are sent away by their parents to live in Qur’anic schools known as daaras in the urban centres of the Republic of Senegal (henceforth, referred to as “the Respondent State”) allegedly to receive religious education. The Complainants allege that the situation depicts the difficulties that such children are facing in attaining government schooling.

3.   The Complainants, moreover, allege that the talibes are forced by their instructors (known as marabouts^) to work on the streets as beggars. According to the Complainants, such forced child begging has been an on-going practice in the Respondent State since the 1980s, despite the existence of provisions in the Penal Code[2] outlawing the practice of forcing a child to beg.[3] These penal provisions have been reinforced by the Law to Combat Trafficking in Persons and Related Practices and to Protect Victims adopted by the Respondent State in 2005[4], which prescribes 5-10 years’ imprisonment and a fine of five to twenty million CFA francs for a person found guilty of forcing a child to beg.

4.   According to the Complaints, despite the existence of these legislations, the Respondent State has made little efforts to enforce these provisions with a view to penalizing the marabouts who force talibes to beg, consequent to which as of 2011

' According to the Complainants, the marabouts are not generally trained as school teachers.

only 10 cases were brought to court resulting in nine convictions of marabouts. The Complaints submit that the highest actual duration of imprisonment for all convictions under the foregoing laws was one month imprisonment; which, according to them, represents a decrease in the severity of penalties imposed on the marabouts as compared to past years.

5.   The Complainants also allege that the Respondent State’s Constitution (2001 )[5]allows only specific individuals under specific mandates to bring cases and only to challenge the constitutionality of certain provisions of any law. And, as such, there is no actio popularis in the Respondent State’s legal system. Cases for vindication of human rights violations may only be brought to court by individuals who have been directly affected by a violation and any decision will provide remedy only for those litigants, or for those who are directly connected to the case or have 'un interest et qualite pour agir’.

6.   According to the Complainants, where a non-state agency wants to represent victims of violations of human rights, like the talibes in this matter, the consent of parents must first be obtained. The only other avenue to bring such a claim to court is to petition the Chief Prosecutor, whose decision is made discretionary and in consultation with the Minister responsible for justice.

7.   In addition, the Complainants allege that the Respondent State has not provided minimum standards to regulate non-state schools and that it does not conduct inspections of the daaras to check if there are violations of the rights of the talibes attending schooling and living therein.

8.   The Complainant allege further that the conditions in many daaras are deplorable; usually housed in unsafe and unhygienic structures where children sleep in over­crowded rooms or outside, with little or no access to clean water or sanitation. Talibes living in daaras rarely obtain enough food resulting in chronic malnourishment and frequently contract diseases where the marabouts do not provide the talibes with medical care or assistance. In some instances, according to the Complainants, the talibes are injured by speeding motor vehicles in the course of begging on the streets

9.   The Complainants also allege that the talibes are required to bring a daily quota (in the form of rice, sugar or money) that they collected from begging in the streets to the daaras, failure to attain which results in beatings and punishments to defaulting talibes. On average, talibes spend between six and eight hours begging, which leaves them with less than five hours to spend on Qur’anic education per day. As result of their concentration on attaining their daily quotas, many talibes do not learn the Qur’an as it is contemplated.

10. Furthermore, the Complainants allege that the talibes are normally separated from living with their parents and are deprived of any contact with their families. The talibes are also physically assaulted and harshly punished when they attempt to leave the daaras.

The Complaints

11. The Complainants allege that, as a result of the foregoing situation and due to the failure by the Respondent State to protect the talibes, there are continuous violations of numerous rights and freedoms of such children, to which they are entitled under the Charter. It is the Complainants’ allegation that the Respondent State has violated, and continues to violate, the provisions of Article 4 (best interests of the child); Article 5 (the right to survival and development); Article 11 (the right to education); Article 12 (the right to leisure, recreation and cultural activities); Article 14 (the right to health and health services); Article 15 (prohibition of child labour); Article 16 (protection against child abuse and torture); Article 21 (protection against harmful social and cultural practices); and Article 29 (prohibition of sale, trafficking and abduction of children) of the Charter.

Admissibility

Complainants’ submission on admissibility

12. The Complainants have indicated that they have submitted the present Communication on behalf of the talibes in the Respondent State, whose rights under the Charter have been violated by the Respondent State. And, as such, they have the competence to do so under Chapter 2 Article 1(l)(2) of the Committee’s Communication Guidelines. The Complainants are of the view that they can submit the Communication even if the consent of the victims was not obtained since they are acting in the 'overall best interest of the child’. The Complainants further argue that the consent of the victims is not a requirement when there is evidence of serious, massive and systematic violations of the rights of talibes as it was indicated in Commission’s decision in Amnesty International v Sudan[6].

13. Concerning the form of the Communication, the Complainant submit that the present communication satisfies the requirement as to form as set out in Chapter 2 Article 1(H)(1) of the Communication Guidelines, which requires that a communication should not be anonymous; should be written; and should concern a State signatory to the Charter.

14. In relation to the content of the Communication, the Complainants submit that the communication has satisfied the requirements as to content as per Chapter 2 Article 1 (111)(1 )(a)(b)&(c) of the Communication Guidelines since the communication concerns violations of the provisions of the African Children’s Charter; it is not solely based on information circulated by the media; it has not been considered according to another investigation, procedure or international regulation.

15. The Complainants submit that exhaustion of local remedy in this matter is ‘unnecessary considering the best interests of the number of children whose rights are being violated’ relying on a decision of the African Commission on Human and Peoples’ Rights (ACHPR/the Commission) in African Institute for Human Rights and Development v Guinea.[7] In the cited Decision, the Commission held that a local remedy could not be exhausted given the number of potential victims who were in the region since it would be impractical for them to approach the courts. The Complainants are of the view that international law requires that the exhaustion of domestic remedies should only be in respect of those that are available, effective and adequate. And the Complainants argue that there is no effective judicial remedy for the talibes insofar as actio popularis in the Respondent State’s courts is not in favour of the talibes as they do not have standing to do so. In addition, the Complainants have invoked the jurisprudence of the Commission which reveals that in cases of “serious and massive violations”, local remedies need not be exhausted.[8]In this case, it is the Complainants’ submission that the failure by the Respondent State to protect “so many” children on the streets in the State's major cities where they suffer “egregious violations” of their rights enshrined in the Charter for so many years amount to “serious and massive violations”.

ACERWC’s analysis and decision on admissibility

16. The Committee notes that the Complainants are non-governmental organizations recognized by the African Union through the Commission; and are doing so on behalf of victim talibes in the Respondent State and therefore can be the authors of the Communication.

17. The Committee also notes that the Complainants have satisfied the conditions and requirement as to form as laid down in Chapter 2 Article 1(1) of the Committee’s Communication Guidelines, i.e. the communication explicitly states the name of the authors, is well written and concerns a State Party to the Charter.

18. In the matter of content of the Communication, the Committee agrees that the communication is compatible with the Constitutive Act of the AU and the Charter as it concerns violations of the provisions of the Charter. The Committee notes the Commission’s Decision in Zimbabwe Human Rights NGO Forum v Zimbabwe[9] to the effect that to be compatible with the Charter, the communication has only got to invoke provisions of the law which are presumed to have been violated.[10] The Committee in this matter also agrees with the Complainant that the Communication is not solely based on information circulated by media; rather it is based on information provided, inter alia, by the alleged victims primarily through personal interviews of the talibes made by the complaining NGOs and information obtained from reports made by credible organisations. In addition, the Committee has undertaken investigation and confirmed that the issue at hand has not been considered in another international procedure.

19. In considering whether or not the Complainants have exhausted local remedies available in the Respondent State, the Committee would like to reiterate its position that is stated in Children of Nubian Descents Case.[11] In that communication, the Committee held that Article 46 of the Charter mandates it to draw inspiration from International Law on Human Rights. Basing this explicit legislative mandate, the Committee made ‘reference to laws, and jurisprudence from other countries or treaty bodies in Africa and elsewhere.’[12]

20. The Committee would also like to draw inspiration from the ACHPR in considering the requirement to exhaust local remedy. In Sir Dawda Jawara v The Gambia™ the Commission held that a remedy is considered “available” if the complainant can pursue it without impediment™', it is deemed “effective” if it offers a prospect of success; and it is found “sufficient” if it is capable of redressing the complaint.[13]Therefore, it is a well-established jurisprudence of the Commission that ‘only domestic remedies that are available, effective, and adequate (sufficient) that need to be exhausted’.[14] As such, the Commission has recognized that the exhaustion of prior domestic remedies implies and assumes the availability, effectiveness and sufficiency of domestic adjudication procedures. If local remedies are unduly prolonged, unavailable, ineffective or insufficient, the exhaustion rule will not bar consideration of the case by the Commission.[15]

21. From this analysis of the jurisprudence of the Commission, the following exceptions to the rule of prior exhaustion of local remedy are remarkable. First, domestic remedies must be of “judicial nature"; second, domestic remedies must not be “unduly prolonged"; third, where there are “ouster” clauses domestic remedies are rendered unavailable; and, fourth, local remedies cannot be exhausted where there are a large number of potential victims of violations of human rights.

22. The Complainants have amply demonstrated that the Respondent State’s penal laws (Penal Code[16] and Law to Combat Trafficking in Persons and Related Practices and to Protect Victims adopted by the Respondent State in 2005[17]) proscribe forcing a child to beg.[18] However, the Respondent State has made little efforts to enforce these provisions with a view to penalizing the marabouts who force talibes to beg. It is in record that, as of 2011 only 10 cases were brought to court resulting in nine convictions on marabouts. The Complaints have submitted that the highest actual duration of imprisonment for all conventions under the foregoing laws was one month imprisonment and the Committee is of the view that this avenue inefficient.

23. The Committee also finds the avenue to petition the Chief Prosecutor to bring a claim to court on behalf of the talibes victims of violations of their rights by marabouts in the daaras to be ineffective because the Chief Prosecutor’s decision is made discretionary and in consultation with the Minister responsible for justice, which does not amount to a remedy that is judicial in nature. Another avenue that the Complainants also have indicated to be in place in the Respondent State is the requirement that only the victim talibes or someone directly affected by the alleged violations can bring cases in domestic courts. In practice, this would entail each of the estimated 100,000 talibes would bring their own claim in courts. The Committee concurs with Complainants’ submission that this avenue is “so impractical as to be virtually impossible”. Therefore, the Committee is of the view that the Complainants should avail from the exceptions of the requirement of exhaustion of local remedies as there is no effective and sufficient remedy for the talibes.

24. In view of the forgoing reasons, during its 21st Ordinary Session, which was held 15 to 19 April 2013, the Committee found the Communication to have fulfilled all the admissibility conditions as laid down in the Committee’s Guidelines on the Consideration of Communications and as such, the Committee declared the Complaint admissible.

Procedure

25. After the decision on admissibility, the Committee transmitted the complaint to the Respondent State, which duly filed its written reply, after which the matter was scheduled for a public hearing. During its 23rd Ordinary Session, from 9-16 April 2014 in Addis Ababa, Ethiopia, a public hearing was held where representatives of the Complainants and the Respondent State made their oral submissions.

The Respondent State’s Arguments

26. Both in its written reply to the Complaints and oral submissions, the Respondent State has not specifically rejected the allegations. It has actually admitted that the alleged violations of the various Charter provisions exist, and continue to take place.

27. In recognition of the existence of the alleged violations, the Respondent State submitted that it has adopted various constitutional, policy, legislative and administrative measures aimed at, inter alia, protecting all children, particularly those forced to beg. In particular, the Respondent State contended that as a result of a workshop that was held early 2013 to formulate strategic plans of action for the eradication of child begging, an inter-ministerial council on the managing of child begging was convened on Friday, 8 February 2013, under the auspices of the Honourable Prime Minister. Consequent to this event, an ad-hoc Committee was set up and it has adopted a number of recommendations which revolve around three strategic options:

(a) The withdrawal of all child beggars from the street and their temporary placement in public institutions, community centres and voluntary families, as well their integration with their family or country of origin. This would also involve the implementation of measures relative to the educational aspects and to economic support for the family;

(b) Social Policy Communication for a positive and lasting behavioural change that occurs through effective application of the law and with the strong will of political, religious, social, and cultural actors aimed at eradicating child begging; and

(c)  The prevention aspect; that is, while particularly emphasising policy and law enforcement, there is a need for utilising existing initiatives by the communities to assist children in their villages of origin and the strengthening of public and community social services.

28. In respect of eliminating worst forms of child labour, the Respondent State submitted that it has undertaken various measures; including establishing the Project for the Fight against the Worst Forms of Child Labour within the Ministry of Labour. Regarding the improvement of the quality of education in the daaras, the Respondent State contended that it has set up the Trilingual Project of the Direction of Alphabetisation and of National Languages within the Ministry of National Education (i.e. Le Projet Trilinguisme de la Direction de l’Alphabetisation et des Langues Nationales'). This project strives to intervene in the daaras in order to offer the opportunity to the talibes of learning and mastering three (3) languages (i.e. French, Arabic and a national language translated in Arabic characters), in addition to vocational skills training.

29. With reference to the protection of talibes and other children on the street from physical abuses, the Respondent State submitted that its Ministry of Interior has a specialised police force, the Minors Brigade, whose mission is to protect morally threatened children, to identify them and to ensure their reintegration, in collaboration with the other structures. In addition, the Ministry of Health is developing numerous initiatives for the development of the welfare of children, including I’Ecole Nationale des Travailleurs Sociaux Specialises (ENTSS), which has, since 2005, introduced a training module on the rights of the child. There is also the Support Cell to the Protection of the Child, which is located at the Presidency to support different initiatives from state and civil society structures.

30. The Respondent State also submitted that it has been striving to involve non-state actors, particularly local and international NGOs (including Community-based organisations) to provide assistance, advocacy and prevention interventions. Moreover, communities and families play a primary role in the protection of children, in order to develop a common understanding of the existing structures, to create a public consensus and to guide the taking of decisions at the national level.

31. Furthermore, the Respondent State pointed out that it has ratified various international human rights treaties, particularly the African Charter on the Rights and Welfare of the Child, and ILO Conventions on the Elimination of the Worst Forms of Child Labour and the Minimum Age Convention, namely the Conventions 138 and 182. These international treaties have been domesticated in the State Party’s legislation in the context of the 2001 Constitution, particularly through the enactment of the Code of Criminal Procedures, which entrenches the best interests of the child. Other pieces of legislations include the Penal Code[19]; the 79-1165 Decree of 20 December 1975, which prohibit punishment and physical abuse in schools and education centres which are not conventional; the 2004-38 law of 28 December 2004, which has abolished death penalty and applies to all children without exception, even to foreign and migrant children; and the 2005-06 law of 10 May 2005, which criminalizes trafficking in persons, including children, and similar practices, as well as prohibiting forced begging.

32. The Respondent concluded its submission by indicating that the eradication of child begging has always been a source of constant problem for the Senegalese authorities, despite the enactment of several provisions of the law, decrees, policies, and various administrative measures.

Consideration on Merits

A.  Alleged Violation of Article 4 (best interest of the child)

33. The Complainants allege that the Respondent State has violated Article 4 of the African Children’s Charter, which provides for the best interest of the child, as the State has failed to protect talibes from violations in the daaras. They also allege that the Respondent State is duty bound to assert the best interest of children by regulating the conduct of non-state actors and ensuring that they do not violate children’s rights.

34. The Committee notes that Article 4 of the African Children Charter requires the best interest of the child, one of the four general principles, to be the primary consideration in all actions to be taken by any person or authority., The principle of the best interest of the child aims at safeguarding the realization of children’s rights effectively and contributing to their holistic development.[20]

35. In guaranteeing the best interest of the child, a State Party has the obligation to ensure the consideration of the best interest of the child in all actions taken by “any person” or authority affecting the life of the child. In this context, “any person” is broadly interpreted and entails that entails that the principle of the best interest of the child must be applied in all actions concerning children, regardless whether those actions are undertaken by private or public entities. . The Committee also notes that ’action’ includes omissions and commissions that are manifested in decisions, proposals, services, procedures and other measures.[21]

36. Applying the principle of the best interest of the child to the vase at hand, the Committee notes that apart from the interest of parents to send their children to receive religious education, Talibes children in the Respondent State go to the daaras mainly because of the difficulties of attaining government schooling in their precincts. In the daaras, the children are forced to beg by their teachers (marabouts), where on average, they spend six to eight hours begging with five hours or less left to spend on Qur’anic studies per day.

37. The Respondent State, being a State Party to the Charter, accepts the explicit prohibition of child begging under Article 29 (b) and it has complied with this obligation through its prohibition of child begging as provided for under Article 245 to 247(b) of its Penal Code. However, the Respondent State has failed to discharge its obligation to enforce these provisions by not taking the necessary administrative measures, including supervision of the daaras and bringing to justice the marabouts who force talibes into begging. The State Party has the obligation to protect the rights enshrined in the Charter, which requires measures by the State to ensure that third parties (individuals, institutions, etc.) do not deprive of children’s rights. In this regard the Committee refers to the jurisprudence as established by the African commission on Humans and Peoples’ Rights. In Mouvement Burkinabe des Droits de I'Homme et des Peuples v Burkina Faso, the African Commission on Human and Peoples Rights (henceforth, “the Commission”) has set the jurisprudence to the effect that a State Party is responsible for violation of human rights committed by non-state actors as its obligation to ensure the respect for human rights demands it to take all the necessary measures to ensure that non-state actors also respect the rights of children.[22] The Commission has also stipulated that failure to prevent violation against children’s rights by non-state actors makes the State internationally responsible.[23] An obligation of this type is called an obligation to protect the human rights standard, or, in short, the ‘obligation to protect’. Building on the Commission’s jurisprudence, the Committee states that the individual responsibility of non-State actors to respect the rights of children does not relieve the concerned State of its obligations under human rights law to respect, protect and fulfill human rights.

38. In the case at hand, despite the obligation set under the principle of the best Interests of the child, the Committee notes that the Government of Senegal has failed to enforce current national, regional, and international laws and agreements already in place by taking measures, including prosecuting, against perpetrators and abusive religious leaders; and hence the Respondent State has failed its responsibility to protect.

39. Therefore, the Respondent State is responsible under Article 4 of the Charter for not taking necessary administrative and other measures against the daaras, marabouts as well as parents who send their children to the daaras.

B.  Alleged violation of Article 5 (survival and development)

40. The Complainants in this communication allege that the Respondent State has violated the right to survival and development of the talibes as enshrined in the Charter by not taking any action against the forced begging. The Complainants further state that the forced begging of the talibes causes the disregard of their rights to health care, education, clean and safe environment, and clean water, which in effect are fundamental components of the right to survival and development. Furthermore, the fixed quota imposed on talibes for begging subjects them to an extensive, institutionalized child labour.

41. Considering the allegation made by the Complainants, the Committee carefully analysed the situation of the children in light of the elements of the right to survival and development. Article 5 (1) of the African Children’s Charter provides that every child has an inherent right to life and this right must be protected by law. Article 5(2) complements the recognition of this right by obliging states to ensure to the maximum extent possible the survival, protection and development of the child. The Committee notes the complementary nature of the right to survival and development as essential preconditions to the enjoyment of the rights protected in the African Children’s Charter. In other words, the Committee supports the conceptualization of the right to life survival and development as a general principle that serves to reinforce the raison d'etre of each of the rights enshrined in the Charter.[24]

42. Survival and development encapsulates the right to life and imposes an obligation on states to ensure an adequate standard of living for children including the right to life and their physical, mental, spiritual, moral, psychological and social development. The obligations of the State Party under this principle also encompass protection of children’s rights to access healthcare and education services, access to clean water, the right to live in safe and clean environment, and protection from any form of abuse and degrading treatment, including child labour.

43. In the case at hand, the Committee notes that most talibes are suffering from extreme hunger on a daily basis, often eating at best one or two small meals a day, usually consisting of bread and rice. Reports and studies reveal that the majority of begging children in Dakar, including talibes, were observed to be malnourished, often severely. The Committee also note that deprived of food by their guardians, many talibes are forced to beg in markets or door-to-door in neighborhoods to try to fulfill their daily nutritional needs. As a result of the long hours talibes spend on the street, the malnutrition they suffer from inadequate food, and the deplorable conditions in many daaras, resulted in suffering of the children from frequent illnesses.

44. The Committee also notes that there is a reported case where nine Talibes in the dense Medina neighborhood died after a daara burned down on 03 March 2013. Cases of talibes being crushed in traffic while begging are also frequently reported.

45. Despite the gravity of the problem, the Respondent State has not taken adequate measures to curb the situation. The Committee strongly believe that in the face of this tragedy, the Senegalese Government must finally tackle the country’s widespread abuse and exploitation of young boys through forced begging. Tens of thousands of boys continue to live and beg in extremely precarious conditions, enriching teachers who have twisted the country’s tradition of religious education. The Committee, therefore, found the situation unacceptable and it contradicts the principles enshrined in the African Children’s Charter and other international child rights instruments. Hence, the Government of Senegal has failed to ensure to the maximum extent possible, the survival, protection, and development of the talibes children, As such, the Respondent State is in violation of Article 5 of the African Children’s Charter.

C.  Alleged violation of Article 11 (education)

46  . Article 11 of the Charter posits that States Parties have the obligation to provide free and compulsory basic education without any discrimination.[25] In realizing the right to education, the State must ensure, inter alia, the availability, accessibility and acceptability of the education provided to children. Availability is assessed in terms of quality; accessibility is determined in terms of equal opportunity, economic and physical accessibility and acceptability is inferred from the quality of education provided.[26] A State Party is not only obliged to provide education but also to ensure that the education so provided is of acceptable quality. In the context of Article 11(2)(a) of the Charter, education should be directed towards the development of child’s personality, talents and mental and physical abilities to their fullest potential. The Committee has noted the importance of education in relation to the responsibility of the child in its decision of the Children of Nubian Descents Case.[27]Children have responsibility to their family, society and country under Article 31 of the Charter; and, as such, they can discharge these obligations only when they get the necessary education. Furthermore, education is a tool to enhance the protection of children from dangerous and hazardous labour.[28] As the Commission has accentuated that the failure to provide access to institutions of learning would amount to a violation of the right to education under the African Charter on Human and Peoples’ Rights.[29]

47  .The responsibility of a State in realizing the right to education includes the obligation to protect, fulfill, respect and promote. The protection mandate entails a responsibility up on the State to protect children’s right to education from being violated by third parties. To this end the State Party should set minimum standards for all educational institutions[30] including the daaras. Article 11(5) of the Charter moreover states that:

States Parties to the present Charter shall take all appropriate measures to ensure that a child who is subjected to schools or parental discipline shall be treated with humanity and with respect for the inherent dignity of the child and in conformity with the present Charter.

48  .The Respondent State, however, has failed to provide free and compulsory education to all children in accordance with the Charter. Consequently, the talibes are forced to attend in the daaras where they are not subjected to school fees except for the daily quota they should bring by begging. Nevertheless, the children do not get the necessary education they are entitled to in the daaras. The talibes do not get education in daaras as they spend more time in begging to fulfill their daily quota. In addition, the government failed to provide the necessary curriculum and facilities in which the daaras function in delivering education.

49  .The Committee refers to the General Comment of the UN Committee on the Rights of the Child on the aims of education, which states that education should be designed to empower the child by developing his or her skills, learning and other capacities, human dignity, self-esteem and self-confidence.[31] Moreover, the Committee also refers to Article 9(b) of the Cairo Declaration on Human Rights in Islam which states that ‘every human being has a right to receive both religious and worldly education’. Therefore, the Committee holds a view that while many marabouts in Senegal continue the traditional practice of teaching their students the Quran, others have twisted the practice into a form of economic exploitation, as a result a significant number of talibes in Senegal are failing to receive either a religious education or an education in other basic skills. It is in consideration of this fact that the International Labour Organization (ILO)'s Committee of Experts criticized Senegal on March 2, 2012, for its failure to protect talibes from abusive conditions and dema nded that Senegal do more to prosecute those responsible for forced begging and to carry out ‘daara modernization’ - ensuring that the schools meet basic international standards of education and child protection.

50  .The government must enforce its own laws to protect talibes from this abuse and ensure that the education received in daaras equips these children with a rounded education, and does not allow forced begging. The Senegalese government enacted legislation in 2005 that criminalized forcing others into begging for personal financial gain. But the authorities have largely failed to take concrete steps to enforce the law and end the exploitation and abuse of the talibes. Therefore, the Government of Senegal has violated the right to education of the talibes by failing to ensure the availability, accessibility and acceptability of the education and supervising the daaras.

D.  Alleged violation of Article 14 (health and health services)

51  . The Charter under Article 14 provides that State Parties should take measures to ensure ‘the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care; and to ensure the provision of adequate nutrition and safe drinking water’. In Purohit & Moore V The Gambia the Commission stated that:

Enjoyment of human right to health as it is widely known is vital to all aspects of a person’s life and wellbeing and is crucial to the realization of all the other fundamental human rights and freedoms. This right includes the right to health facilities, access to goods and services to be guaranteed to all without discrimination of any kind.[32]

52  .The efforts undertaken by the State Party in realizing this right should be directed towards the prevention of diseases and health problems, and the provision of the necessary health care services. In ensuring adequate nutrition and safe drinking water to all children, the CRC committee emphasized that school feeding programmes, and the provision of safe and clean drinking water are essential to combat disease and malnutrition.[33]Failure to provide safe drinking water amounts to a violation of the right to the best attainable health under the Charter?[34]

53  . Looking at the case under consideration, the poor conditions in the daara, combined with a lack of clothes and shoes for the long days on the street, increase the vulnerability of the talibes to different forms of health challenges. Forced to beg for food, many are also extremely malnourished. The Committee notes that when the talibes get sick their marabout rarely provides medicines, in some instances requiring them to beg even greater hours in order to pay for their own treatment. More often, despite their ill health the talibes continue begging to satisfy the quota.

54  .The Respondent State has the obligation to assure that children are not deprived of access to health care services. It should further take all the necessary steps to avert any kind of institutional, cultural and financial obstacle to accessing health care services.[35]The State should not tolerate any practice which violates the right to health of children.[36] It must assert that third parties do not deprive children of their right to access medical service.

55  .As submitted by the complainants, the talibes are not practically entitled to adequate sanitation and nutrition which in effect endangers their health. The Committee notes that the marabouts as caregivers have failed to ensure that the talibes get medical service.

56  . Hence the Committee concluded that the Respondent State has failed to provide the necessary sanitation and nutrition to the talibes and it has also failed to take measures against the marabouts, who accommodate talibes in squalid health conditions. The Respondent State has not taken appropriate steps within its available resource to prevent disease and malnutrition, as well as to avoid barriers to access the health services of those children in need of medical care. Therefore, the Committee finds the Respondent State in violation of Article 14 of the Charter.

E.  Alleged violation of Article 15 (child labour)

57  .The Complainants allege that the urban talibes are an identifiable group of children vulnerable to be exploited for the worst forms of child labour. Accordingly they submit that the number of hours the children spent per day begging, the beatings for not bringing a sufficient quota of goods per day and the health and safety risks caused by standing in busy streets is contrary to international laws which categorize child begging as a practice of exploitive labour.3®

58  .Art 15 of the African Children’s Charter obliges State Parties to take legislative and administrative measures for the formal and informal employment sector to protect children from all types of economic exploitation and from performing any work that is likely to be hazardous or to interfere with their physical, mental, spiritual, moral or social development. Further the International Labour Organization’s (ILO) Convention 182 under Art 1 and 9 requires States to ensure the effective abolition of child labour and implementation of the Convention.

59  . In the case at hand, contrary what is prescribed under the regional and international instruments, the Committee notes that many marabous force the talibes to beg on the streets for long hours—a practice that meets the ILO definition of a worst form of child labor. The Committee is of the view that the forced begging, physical abuse, and dangerous daily living conditions endured by these talibes violate domestic and international law. Despite being party to the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child, and all major international and regional treaties on child labor and trafficking, which provide clear prohibitions against the worst forms of child labor, physical violence, and trafficking, Senegal has scantily enforced the laws.

60  . The Committee notes that in the last decade, the government has notably defined forced begging as a worst form of child labor and criminalized forcing another into begging for economic gain, but this adequate legislation has so far led to little concrete action. No marabout was held accountable for forced begging, gross neglect, and severe physical abuse against the talibes.

61  . In view of this, the Committee believes that forced begging places children in a harmful situation on the street and therefore meets the ILO’s definition of a worst form of child labor. Moreover, the Committee notes that the forced begging and gross neglect is done with a view toward exploitation, with the marabout receiving the child from his/her parents and profiting from the child’s labor, which resulted in continuous suffering of

39     UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, adopted September 7, 1956, 226 U.N.T.S. 3, entered into force April 30, 1957, acceded to by Senegal July 19, 1979, art 1(d)

tens of thousands of talibes in Senegal. Though the Respondent State has ratified international laws and prohibits the act of child begging under its national law, it has failed to take any effective administrative measures against the marabouts and to protect the talibes from exploitation. Therefore, the Government of Senegal has violated Article 15 (2) of the African Children’s Charter which requires the State Party to take appropriate administrative measures to ensure the full protection of children from child labor having regard to the relevant provisions of the ILO’s instruments.

F.  Alleged violation of Article 16 (protection against child abuse and torture)

62. In this communication the Complainants submit that the fact that the talibes are regularly subjected to beatings and fear in cases where they do not reach the minimum daily begging quota, leads to high levels of stress and anxiety which amounts to violation of their right to be protected from abuse and torture under Art 16 of the African Children's Charter.

63. Considering the complaint, the Committee notes that as prescribed under the African Children's Charter, protecting children from abuse and torture requires States to adopt legislative, administrative, social and educational measures through effective establishment of special monitoring units to provide necessary support for the child and for those who have the care of the child, as well as other forms of prevention and identification, reporting referral investigation, treatment, and follow-up of instances of child abuse and neglect.

64. Taking into consideration the elements of the provision of the law and the acts as alleged by the Complainants, the Committee discusses whether the beatings committed by marabouts amounts to child abuse and torture. In this regard the Committee refers to the jurisprudences of the ACHPR. In Curtis Francis Doebbler v Sudan the African Commission found the act of lashing as it constitutes a cruel treatment.[37] Moreover, in International Pen and Others v Nigeria, the ACHPR defines inhumane and degrading treatment to include ‘not only actions which cause serious physical or psychological suffering, but which humiliate the individual or force him or her to act against his will or conscience’.[38]

65. In the case at hand, the Committee notes that the beating of the talibes qualifies as a physical punishment since physical force is used and intended to cause some degree of pain or discomfort for not bringing the required quota. There are also reported cases where talibes typically described being taken to a room, stripped of their shirt, and beaten with an electric cable or a club.[39] In some instances the beatings and physical abuse may rise to the level of torture under the Convention against Torture. According to the Convention 'torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity'[40].

66. With regard to the accountability of State actors for acts committed by non-state actors, the Committee refers to the explanation given by the Committee on the Convention against Torture. The Committee on the Convention against Torture states that 'where state authorities or others acting in official capacity or under colour of law, know or have reasonable grounds to believe that acts of torture or ill- treatment are being committed by non-State officials or private actors and they fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private actors consistently with the Convention, the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in such impermissible act’.[41]

67. Legislative, administrative, social and educational measures are the means through which States can fulfill their obligation to protect children from any form of violence.[42]Although there are legislative and social initiatives in Senegal to protect the rights of children in general, the government failed to take specific administrative and judicial measures against the marabouts. The Respondent State did not deny the fact that since 2010 only 10 cases have been brought against marabouts who exploits children resulting in only nine convictions. Apart from the social term orientation for children in the street and destitute families and 24 Department Committees for the Protection of the Child (CDPE),[43] the Committee notes that there are no educational and sufficient social measures that aim at changing the situation of the talibes.

68. As the UN Committee on the Rights of the Child has stated that the prohibition against physical and mental violence also applies to corporal punishment in schools.[44] The physical abuse likewise places the marabout in conflict with Senegal’s penal code, which provides particular care to children.[45] The severe physical abuse that many marabouts inflict on the talibes, as well as the looming threat of violence, therefore violates the children’s right to freedom from physical and mental violence and abuse and torture. The Government of Senegal therefore is in clear violation of Article 16 of the African Children’s Charter which requires the State Party to protect children from physical, mental, injury, abuse, neglect, maltreatment and torture.

G.  Alleged violation of Article 21 (protection against harmful social and cultural practices)

69. According to Article 21(1)(a) of the African Children’s Charter, States Parties are under obligation to take measures towards the elimination of harmful social and cultural practices which endanger the health or life of the child. Furthermore, Article 1(3) of the Charter provides that:

Any custom, tradition, culture or religious practice that is inconsistent with the rights, duties and obligations contained in the present Charter shall to the extent of such inconsistency be discouraged.

70. A harmful practice, according to the UN Committee on the Rights of the Child and the Committee on the Convention on Elimination of all forms of Discrimination against Women (CEDAW), should meet the following criteria;

(a) They constitute a denial of the dignity and/or integrity of the individual and a violation of human rights and fundamental freedoms enshrined in the two Conventions;

(b) They constitute discrimination against women or children and are harmful insofar as they result in negative consequences for them as individuals or groups, including physical, psychological, economic and social harm and/or violence and limitations on their capacity to participate fully in society or develop and reach their full potential;

(c) They are traditional, re-emerging or emerging practices that are prescribed and/or kept in place by social norms that perpetuate male dominance and inequality of women and children, based on sex, gender, age and other intersecting factors;

They are imposed on women and children by family, community members, or society at large, regardless of whether the victim provides, or is able to provide, full, free and informed consent.[46]

71 .Therefore, States Parties must take legislative, administrative and other appropriate measures to abolish any practice inconsistent with the Charter. Using children in any form of begging is one form of harmful practice which is clearly prohibited under Article 29 of the African Children’s Charter; and the State must take all the necessary steps to restrict such practice.

72  . Even though the Respondent State has outlawed the practice of forced begging under Article 3 of Law No. 2005-06, the talibes are still being forced to beg and bring back to the daaras a daily quota the failure of which incurs punishment. The State has not taken any measures against these schools. The talibes are required to bring a daily quota, in order to fulfill their quota they have to beg on the street where they will be exposed to exploitation. The forced begging has compromised their right to life and development as they are often injured from traffic accidents. Moreover, this cultural practice by the marabouts causes the violation of other provisions of the Charter. The talibes are not enjoying their legal right to play, leisure and cultural activities which can advance their mental and psychological developments. This activity of begging is deep rooted in the Qur’anic schools and the Committee is of the view that it is a harmful practice.

73  .The government of Senegal has failed to take measures against the marabouts, to monitor the situation of children in the Qur’anic schools, and to ensure that the talibes are getting the necessary education to which they are entitled. Even though the marabouts are non-state actors, the State of Senegal is responsible for the violation caused by such actors due to its obligation to protect the rights of children. The Committee thus finds a violation of Article 21(1) of the African Children’s Charter by the Respondent State.

74  Alleged violation of Article 29 (sale, trafficking and abduction, and using children in the form of begging)

74. Citing Article 29 of the African Children’s Charter, the complainants argued that the State Party has violated the Charter which expressly forbids forced begging and States Parties to take appropriate measures to prevent the abduction, the sale of, or traffic of children for any purpose or in any form, by any person including parents or legal guardians of the child; and the use of children in all forms of begging. The complainants also made reference to the ILO Conventions which make it clear that states are responsible for the prevention of child labour through effective enforcement. Further, they expressly state that work akin to slavery (which includes trafficking of children and compulsory labour) and work that harms the health, safety or morals of children comprises the worst forms of child labour.[47]

75. Considering the alleged fact, the Committee finds it important to expound on what amounts to child sale, trafficking and abduction. The Committee notes that children are one of the most vulnerable groups targeted for the trafficking in human beings. Children are trafficked as they can be easily recruited and quickly replaced. The exploitation of children violates the human rights of children to have a safe child- ood in their family setting, to receive education, to have time to play and to be protec ted from exploitation. Child trafficking involves the recruitment of victims, their transportation, transfer and harbouring of children for the purpose of exploitation. Coercion, violence or threats are not necessary elements in cases of child trafficking as children cannot consent.[48] Children are trafficked for the same purposes as adults: for sexual exploitation, for labour exploitation but also for exploitation in a range of criminal activities, including begging.

76. The use of children in all forms of begging is strictly forbidden under Article 29(b) of the Africa Children’s Charter. Article 29(a) in addition prohibits trafficking of children for any purpose in any form. In this regard, the Committee refers to the definition provided by the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (CTOC). Under Article 3 the Protocol defines trafficking as;

‘[T]he recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs’

77. The Ouagadougou Action Plan to Combat Trafficking in Human Beings, Especially Women and Children as adopted by the African Union Ministerial Conference on Migration and Development, Tripoli, 22-23 November 2006, also conceptualizes trafficking in persons as it happens within and between states, urges States to take measures to eliminate harmful customs and traditional practices, including forced child begging, which can lead to trafficking in human beings, including children.

78. Looking at the case at hand, the Committee realized that the talibes are forcibly subjected to economic exploitation through forced labour; and they are used for begging by the marabouts. Given the ILO’s views on forced begging, the Committee concludes that marabouts, when transporting talibes with the primary intention of obtaining labour from them, are engaging in child trafficking. Article 3(c) of the Trafficking in Persons Protocol includes in the definition of 'trafficking in persons’ the “recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation.”

79. Moreover, the Committee learns from reports that only about half the talibes in Senegal are Senegalese. The rest are trafficked from neighboring countries, including Guinea Bissau and Mali, where poor families are promised their sons will be remunerated as they will receive ‘a proper’ Islamic education under the care of a marabout at the daaras. The boys often have no contact with their families once they leave home, and because most do not know anyone in Senegal, they become entirely reliant on marabout for food, health care and shelter.

80. These acts, according to the Committee violate the children’s rights to be protected from sale, trafficking and abduction. The Respondent State has not contested this allegation of the Complainants. The Committee has observed that the Respondent State has taken legislative measures against begging and trafficking. However, the Committee is of the view that legislative measures alone cannot sufficiently protect the rights of children; and the State Party should also take administrative and other appropriate measures to ensure that children are not subjected to begging or trafficking as stipulated under Article 1 of the Charter. Reaffirming this position in Zimbabwe Human Rights NGO Forum v Zimbabwe,[49] the ACHPR states that ‘an act by a private individual or (non-state actor) and therefore not directly imputable to a state, can generate responsibility of the State, not because of the act itself, but because of the lack of due diligence on the part of the state to prevent the violation or for not taking the necessary steps to provide the victims with reparation.’[50]

81. The Committee, therefore, has found the Respondent State in violation of Article 29 of the African Children’s’ Charter which with no exception prohibits forced begging and requires States Parties to take appropriate measures to prevent the abduction, the sale of, or trafficking of children.

Decision of the African Committee

82. Because of the foregoing reasons, the Committee finds multiple violations of the African Children’s Charter as follows: Article 4 (best interest of the child); Article 5 (survival and development); Article 11 (the right to education); Article 14 (health and health services); Article 15 (child labour); Article 29 (sale, trafficking and abduction); Article 16 (protection against child abuse and torture); and Article 21 (protection against harmful social and cultural practices). Therefore, the Committee recommends that the Respondent State should, in accordance with its obligations under the African Children’s Charter, undertake the necessary measures:

(a) To ensure that all talibes are immediately taken back from the streets to their families;

(b) Through cooperation with the neighboring countries (from where some of the children are coming), international and national organisations, facilitate the reunion of the talibes with their families;

(c)  To establish functioning and effective institutions and mechanisms to provide the talibes with short- and long-term, appropriate psychological, medical and social assistance in order to promote their full recovery;

(d) To establish minimum norms and standards for all daaras relating to health, safety, hygiene, education content and quality, and accommodation;

(e)  To integrate the daaras into the formal education system;

(f)  To inspect the daaras regularly to ensure that standards set out in the Charter and local legislation are complied with and close all the daaras which are not in compliance with the required standards;

(g) With a view of fighting impunity and preventing forced begging, sale, abduction and trafficking of children, ensure that all the perpetrators are brought to justice and held accountable for their actions with penalties commensurate with the severity of their crimes;

(h)  On the talibes right to education:

(1) Make sure that education contributes in promoting and developing their personality, talents and their physical and mental abilities to their fullest potential,

(ii)The Government's education policy should be reviewed in light of fostering respect for human rights and fundamental freedoms, and

(111)        Ensure the provision of free and compulsory basic education.

(i)  To train law enforcement and judicial personnel, social workers, traditional and religious leaders, parents and the community at large on children’s rights in general and prohibitions of child begging in particular;

(j)  To conduct joint studies with the concerned neighboring State Parties on the situation of talibes' children in Senegal and countries of origin;

(k)  To fully recognize and implement the rights included in the African Children’s Charter and in other international instruments;

(l)  While complying with its reporting obligation in accordance with article 43 of the African Children’s Charter, the State Party should provide the Committee with sufficient information on the progress of implementation of the current decision

(m)To cooperate with the African Union, International and National Organisations, the UN Agencies, particularly UNICEF, ILO, World Health organisation (WHO), with a view to fully implement these recommendations and alleviate the challenges of talibes in Senegal; and

(n) As per Section XXI (1) of the Revised Communication Guidelines of the Committee, the Government shall report to the Committee on all measures taken to implement the decision of the Committee within 180 days from the date of receipt of the Committee’s decision.

Done at the 23rd Ordinary Session held in Addis Ababa, Ethiopia, on 15 April 2014

Prof Benyam Chairperson of the African on the Rights and We

 

13 Dawda Jawara v. The Gambia, African Commission on Human and Peoples' Rights, Comm. Nos. 147/95 and 149/96 (2000).

14 Similarly, the decision of the Commission in Anuak Justice Council v Ethiopia [op. cit, para. 51] requires that ‘three major criteria could be deduced in determining the rule on the exhaustion of local remedies, namely: that the remedy must be available, effective and sufficient.' [Ceesay v The Gambia Communication 86/93]. According to the Commission, a remedy is considered to be available ‘if the petitioner can pursue it without impediments or if he can make use of it in the circumstances of his case.' [Sir Dawda K. Jawara v The Gambia, op. cit, para. 31].

 

[2] Law 65-60 of 21 July 1965.

[3] lfiaUcfe§-5£l5>ft31’40|y>)106the Penal Code prescribe a 3-6 month term of imprisonment for any person who allows a

3 Articles 245 to 247(b) of the Penal Code prescribe a 3-6 month term of imprisonment for any person who allows a child to beg on his or her behalf.

[4] Law No. 2005-06 of Senegal.

[5] Articles 77 and 92 of the Constitution of Senegal (2001).

[6] Amnesty International, Comite Loosli Bachelard, Lawyers' Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa v Sudan ACHPR 1999.

[7] (2004) ACHRLR 57 (ACHPR 2004) para 34.

[8] See for instance Organisation Mondiale contre la Torture, Association Internationale des Juristes Democrates, Commission Internationale de Juristes, Union Interafricaine des droits de I’Homme v Rwanda (1996) (No’s. 27/89-46/91-99/93) para 18.

[9] Communication No. 245/2002 ACHPR.

[10] See also FIDH, Organisation nationale de droits de /’’Homme (ONDH) and Rencontre africaine pour la defense des droits de I’Homme (RADDHO) v Senegal Communication No. 304/2005 ACHPR.

[11] The decision on communication 002/2009 IHRDA and OSJI (on behalf of children of Nubian descent in Kenya) v Kenya, adopted by the ACERWC on 22 March 2011, during its 17th Ordinary Session held in Addis Ababa. Ethiopia from 22-29 March 2011.

[12] Nubian case, para 25.

[13] Sir Dawda K. Jawara v The Gambia, ibid, paras 31 and 32.

[14] Constitutional Rights Project [CRP] v Nigeria Communication No. 60/91. See too citations therein pertaining to the jurisprudence of the African Commission in this regard and Dawda Jawara v The Gambia Communication Nos. 147/95 and 149/96, para.32.

[15] Sir Dawda K. Jawara, op. cit, paras. 31-32.

[16] Law 65-60 of 21 July 1965.

[17] Law No. 2005-06 of Senegal.

[18] Articles 245 to 247(b) of the Penal Code prescribe a 3-6 month term of imprisonment for any person who allows a child to beg on his or her behalf. The Law to Combat Trafficking in Persons and Related Practices and to Protect Victims prescribes 5-10 years’ imprisonment and a fine of five to twenty million CFA francs for a person found guilty of forcing a child to beg.

[19] In particular, Articles 245-247 criminalize child begging; Articles 298 and 299, criminalize wounds and blows/assault on a child who is below 15 years; Article 339 criminalizes the non-declaration to the civil status office; and Article 350 criminalizes neglect. In addition, Decree No 64-088 of 6 February 1964 (JO No3664, page 283) prohibits child begging in all its forms; the law of July 1975, inserted in the Penal Code in articles 245 and et seq. prohibits begging; and the 2005-06 law of 29 April 2005 criminalises trafficking of vulnerable people and prohibits forced begging .

[20] Committee on the Rights of the Child (CRC), General Comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration, para. 4

[21] Ibid, para 17.

[22] Mouvement Burkinabe des Droits de I'Homme et des Peuples v Burkina Faso para 42. See also Commission Nationale des Droits de I'Homme et des Libertes v Chad (2000) AHRLR 66 (ACHPR 1995).

[23] Zimbabwe Human Rights NGO Forum v Zimbabwe Communication 245/2002.

[24] T Kaime 'the African Charter on the Rights and Welfare of the Child: A socio-legal perspective’ 2009, 119.

[25] See also Article 28 of the United Nations Convention on the Rights of the Child (CRC).

[26] Committee on Economic, Social and Cultural Rights, General Comment No. 13, Article 13: The Right to Education, 1999, para 6.

[27] The Institute for Human Rights and Development in Africa and the Open Society Justice Initiative (on behalf of children of Nubian Descent in Kenya) v the Government of Kenya, ACERWC, Com/002/2009, 22 March 2011, para.

66.

[28] Committee on Economic, Social and Cultural Rights, General Comment No. 13, Article 13: The Right to Education, 1999, para 1

[29] Free Legal Assistance Group and Others v Zaire, Communications No 25/89, 47/90, 56/91, 100/93, para 11.

[30] Committee on Economic, Social and Cultural Rights, General Comment No. 13, Article 13 The Right to Education,

1999, Para 54

[31] UN Committee on the Rights of the Child, General Comment No. 1, The Aims of Education, 2, U.N. Doc. CRC/GC/2001/1 (2001).

[32] Communication 241/2001, Purohit& Moore v The Gambia, Decision at the 33rd Ordinary Session of the African Commission, May 2003, 16th Annual Activity Report, Para 80

[33] Committee on the Rights of the Child, General Comment No. 15, Article 24 on the right of the child to the enjoyment of the highest attainable standard of health, 2013, Para 2(c)

[34] Communications 25/89, 47/90, 56/91, 100/93, Free Legal Assistance Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de I'Homme, Les Te moins de Jehovah v Zaire, October 1995, para 47

[35]Committee on the Rights of the Child, General Comment No. 15, Article 24 on the right of the child to the enjoyment of the highest attainable standard of health, 2013, Para. 1

[36]SERAC v Nigeria, Communication No. 155/96, para 52

[37] African Commission on Human and Peoples’ Rights, Curtis Francis Doebbler v. Sudan, Comm. No. 236/2000 (2003); see para. 42.

International Pen and Others (on behalf of Saro-Wiwa) v Nigeria (2000) AHRLR 212 (ACHPR 1998)

[39] Off the backs of children: forced begging and other abuses against talibes in snegal, Human Rights Watch report 2010.

[40]Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[41] General Comment No2 on Article 2 of the Convention on

[42] General Comment No.8 (2006), The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment (arts. 19; 28, para. 2; and 37, inter alia), para 30

[43] Response from Senegal, pp. 12-13

[44] UN Committee on the Rights of the Child, General Comment No. 8, The Right of the Child to Protection from Corporal Punishment and Other Cruel or Degrading Forms of Punishment (arts. 19; 28, para. 2; and 37, inter alia), UN Doc. CRC/C/GC/8 (2006).

[45] Penal Code of Senegal, art. 298.

[46] Committee on the Rights of the Child and Committee on the Elimination of Discrimination against Women, Joint general recommendation/general comment No. 31 on the Rights of the Child on harmful practices, November 2014, para 15

[47] Para 58 & 59 of the Compliants' Communication.

[48] Article 3 (b) of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime.

[49] Communication 245/2002 [(2006) AHRLR 128 (ACHPR 2006)].

[50] Communication 279/03, Sudan Human Rights v The Sudan and 296/05 Centre on Human Rights and Evictions v The Sudan, May 2009, para 148.

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Communication 2 of 2009
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22 MARCH 2011

Communication: No. Com/002/2009

AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF THE CHILD

INSTITUTE FOR HUMAN RIGHTS AND DEVELOPMENT IN AFRICA (IHRDA) AND OPEN SOCIETY JUSTICE INITIATIVE ON BEHALF OF CHILDREN OF NUBIAN

DESCENTIN KENYA

v.

THE GOVERNMENT OF KENYA

DECISION: No 002/Com/002/2009

Summary of Alleged Facts

  1. On 20 April 2009, the Secretariat of the African Committee of Experts on the Rights

and Welfare of the Child (African Committee) received a Communication brought by the Institute for Human Rights and Development in Africa based in the Gambia (and organization with an observer status before the African Committee) and the Open Society Initiative based in New York (the Complainants) on behalf of children of Nubian descent in Kenya.

  1. The Complainants allege that the Nubians in Kenya descended from the Nuba

mountains found in what is current day central Sudan and were forcibly conscripted into the colonial British army in the early 1900s when Sudan was under British rule. Upon demobilisation, allegedly, although they requested to be returned to Sudan, the colonial government at the time refused and forced them to remain in Kenya.

  1. The Complainants allege that the British colonial authorities allocated land for the

Nubians, including in the settlement known as Kibera, but did not grant them British citizenship. At Kenyan independence (1963), the Complainants argue, the citizenship[1]status of the Nubians was not directly addressed, and for a long period of time they were consistently treated by the government of Kenya as “aliens” since they, according to the Government, did not have any ancestral homeland within Kenya, and as a result could not be granted Kenyan nationality. The Complainants allege that the refusal by the Kenyan Government to recognise the Nubians’ claim to land is closely linked with the Government’s denial of Nubians to Kenyan citizenship.

  1. A major difficulty in making the right to nationality effective for Nubian children is

the fact that many Nubian descents in Kenya who are parents have difficulty in registering the birth of their children. For instance, the fact that many of these parents lack valid identity documents further complicates their efforts to register their children’s births. It is further alleged birth registration certificate in Kenya explicitly indicates that it is not proof of citizenship, thereby leaving registered children in an ambiguous situation contrary to Article 6 of the African Children’s Charter.

  1. In connection to this, the Communication further alleges that while children in

Kenya have no proof of their nationality, they have legitimate expectation that they will be recognised as nationals when they reach the age of 18. However, for children of Nubian descent in Kenya, since many persons of Nubian descent are not granted the ID cards that are essential to prove nationality, or only get them after a long delay, this uncertainty means that the future prospects of children of Nubian descent are severely limited and often leaves them stateless. The Complainants further allege that a vetting process that is applicable to children of Nubian decent is extremely arduous, unreasonable, and de facto discriminatory.

  1. The Complainants allege and attempt to substantiate that the facts submitted by

them are supported by reports from the United Nations bodies, non-governmental organizations, independent researchers, academicians, and adults and children of Nubian descent living in Kenya.

The Complaint

  1. The Complainants allege violation of mainly Article 6, in particular sub-articles (2),
  1. and (4) (the right to have a birth registration, and to acquire a nationality at birth), Article 3 (prohibition on unlawful/unfair discrimination) and as a result of these two alleged violations, a list of “consequential violations” including Article 11(3) (equal access to education) and Article 14 (equal access to health care).

Procedure

  1. The Communication was received by the Secretariat of the African Committee on 20 April 2009. After some effort to follow up with the Complainants, and the Respondent State, during its 15th session, the Committee declared the Communication admissible as per Decision number 01/Com/002/2009 dated March 16, 2010.
  2. A note verbal (reference DSA/ACE/64/1000.10 dated 13 July 2010) was addressed

to the Respondent State to present its written argument on the merits of the Communication to allow the Committee consider the Communication, but no response was received.

  1. The Committee deferred the consideration of the Communication for its next ordinary session.
  2. Another note verbal (reference DSA/ACE/64/256.11 dated 22 February 2011) was again sent again to invite the Respondent State to come and present its argument during the African Committee’s 17th ordinary session, but again no response was received.
  3. At its 17th Ordinary Session held in March 2011, the African Committee reasoned that children’s best interests demanded that it consider the Communication, and decided to be seized thereof and consider the Communication on its merits. As a result, it heard oral arguments by the Complainants, and scrutinized the validity, legality, and relevance of such arguments through a series of questions.
  1. Unfortunately, despite continued efforts by the Secretariat of the African Committee, this Communication does not benefit from a response by the Respondent State. This has inevitably forced the African Committee to rely on other information sources in determining and ascertaining questions of fact and law, that could possibly have been provided, raised, and/or invoked by the Respondent State. It is important to mention at the outset that the Guidelines for the Consideration of Communications explicitly provide that the absence of a party shall not necessarily hinder the consideration of a communication.

Admissibility

Complainants’ submission on admissibility

  1. The current communication is submitted pursuant to Article 44 of the African Charter on the Rights and Welfare of the Child which allows the African Committee to receive and consider communications from “any person, group or nongovernmental organization...”.The Guidelines for the Consideration of Communications provides, under Chapter II Article 1, that the admissibility of a communication submitted pursuant to Article 44 is subject to around seven conditions relating to form and content.
  2. The Complainants submitted, in a submission dated 6th November 2009, that the authors of the Communication have been identified and relevant details of the Communication have been provided to the Committee, it is written and it is against a State Party to the African Children’s Charter. The Complainants submitted that the Communication is compatible with the provisions of the Constitutive Act of the African Union as well as with the African Children’s Charter, that the Communication is not exclusively based on information circulated by the media, and that the same issue has not been considered according to another international procedure. In addition, the Complainants submitted that the Communication is submitted within a reasonable period of time and that the Communication is not written in an offensive language.
  3. A more detailed explanation is provided by the Complainants in relation to the requirement to “.exhaust all appeal channels at the national level.”.In this regard, the Complainants submitted that they have undertaken a number of efforts to exhaust local remedies for a period of seven years in order to resolve the issue of lack of citizenship of the Nubian community.
  4. The Complainants submit that in 2002 the Nubian community, through the Kenyan Nubian Council of Elders, instructed the Centre for Minority Rights Development (CEMIRIDE) to institute legal proceedings against the Kenyan Government. On 17th March 2003 an action was commenced in the High Court of Kenya by way of an urgent application that led to a leave to file a class action suit on behalf of the Nubian community.
  5. However, the Complainants indicate that, even though CEMIRIDE filed the substantial constitutional application the same day in the High Court in Nairobi, numerous procedural obstacles have since been raised which have stalled the case. These obstacles reportedly include how on 8 July 2003 a certain Justice of the High Court declined to transmit the file to the Chief Justice on the ground that it was necessary to ascertain the identity of the 100,000 applicants; how another Justice of the High Court subsequently agreed that such a process to ascertain was unreasonable and fixed a date for a hearing of the merits of the case for the 7th of June 2004; but later on how, on the 7th of June 2004, again another Justice declined to hear the application and referred it back to the duty judge for directions on grounds that there were contradictory orders in the file.
  6. Frustrated with the process, especially with the fact that within fifteen months of filing, the case had been brought before five different judges none of whom had proceeded with it, the Complainants indicate that a letter was sent to the Chief Justice of Kenya stating that there appeared to be a deliberate placement of administrative and procedural obstacles in the path of the determination of the application brought on behalf of the Nubian community. In this regard, the Complainants indicate that no response to this letter, and other letters sent on 24 July 2004, 24 September 2004, and 24 January 2005 was received.
  7. As a result, the Complainants submitted that, more than six years after the CEMIRIDE instituted proceedings on behalf of the Nubian community, no bench has been constituted and no date has been fixed for a substantive hearing on the case. By invoking jurisprudence from the African Commission, and highlighting the provisions of the African Children’s Charter and its Guidelines on the Consideration of Communications, the Complainants submit that such a delay is excessive, and should be seen as an exception to the exhaustion of local remedies rule.
  8. The Complainants are of the view that the pursuit of local remedies by the Nubian community has been fraught with such impediments that it offers no prospect of success and children of Nubian descent living in Kenya cannot be reasonably expected to benefit from these local remedies. As a result of the above, the Complainants argue that the Communication should be declared admissible as it complies with all the requirements of the Guidelines for the Consideration of Communications.

The African Committee’s analysis and decision on admissibility

  1. The African Committee, after a detailed consideration of the Communication, agrees with the submission of the Complainants that the form of the Communication is in compliance with the Guidelines of the African Committee- i.e. it is not anonymous, it is written, and concerns a State Party to the African Children’s Charter. It also decides, after a thorough look at the Communication, that the Communication is compatible with the Constitutive Act of the African Union and with the African Children’s Charter. The Communication is presented in a professional, polite and respectful language, and is based on information provided, inter alia, by the alleged victims and on court documents, and not solely based on media reports. The Secretariat of the African Committee has also undertaken efforts to confirm that the same issue provided for the in the present Communication has not been considered according to another international procedure.
  2. However, to decide on the less straightforward and important issue whether local remedies have been exhausted (and in connection to that, whether the present Communication has been brought within a reasonable period of time), which is an issue that probably would have been challenged by the Government of Kenya, the African Committee has scrutinsed the written and oral submissions by the Complainants in detail, and would offer below a more elaborate explanation.
  3. At the outset, it should be mentioned that the African Children’s Charter explicitly mandates the African Committee, in Article 46 of the Charter, to:

...draw inspiration from International Law on Human Rights, particularly from the provisions of the African Charter on Human and Peoples' Rights, the Charter of the Organization of African Unity, the Universal Declaration on Human Rights, the International Convention on the Rights of the Child, and other instruments adopted by the United Nations and by African countries in the field of human rights, and from African values and traditions.

It is based on this explicit legislative mandate that the African Committee makes reference to laws, and jurisprudence from other countries or treaty bodies in Africa and elsewhere.

  1. This as a backdrop, a local remedy has been defined as "any domestic legal action that may lead to the resolution of the complaint at the local or national level."[2]Oneof the main purposes of exhaustion of local remedies, which is also linked to the notion of state sovereignty, is to allow the Respondent State be the first port of call to address alleged violations at the domestic level. In the words of the African Commission, exhaustion of local remedies is intended “to give domestic courts an opportunity to decide upon cases before they are brought to an international forum, thus avoiding contradictory judgments of law at national and international levels”.[3] Furthermore, the primacy and greater immediacy of the domestic level is reinforced by the fact that local remedies are “normally quicker, cheaper, and more effective”[4]and allow for better fact finding of alleged violations too. The African Committee understands and unreservedly supports these roles that the rule on the exhaustion of local remedies is supposed to play.
  2. The lack of awareness of an alleged violation by the State deprives it the opportunity to address such a violation. However, in the context of the present Communication, it would not be reasonably defensible to argue that the authorities in Kenya did not know about this ongoing allegation of violations of human rights in the presence of a number of related reports (including by the Human Rights Commission of Kenya) and more so, in the face of the pending case law before the High Court in Nairobi for such a long period of time.
  3. This said, it is a well established rule under international human rights law procedures that “only domestic remedies that are available, effective, and adequate (sufficient) that need to be exhausted”.[5]In Communication Nos. 147/95 and 149/96, the African Commission held that a remedy is considered available if the Complainant can pursue it without impediment; it is deemed effective if it offers a prospect of success; and it is found sufficient if it is capable of redressing the complaint.[6]In other words, in terms of jurisprudence from the African Commission, and by interpreting the African Committee Guidelines for the Consideration of Communications, it follows therefore that the local remedies rule is not rigid.
  4. In a clear distinction from other cases declared inadmissible by the African Commission,[7] the Complainants did not operate on the basis of anticipating the effectiveness or otherwise of local remedies in theory and argued an exception to the rule. Rather, they in fact engaged the judicial system in Kenya, but with no success so far to have the case heard on its merits. Furthermore, there are unconfirmed indications that the case in the High Court is still pending as a result of some procedural technicalities that may need to be fulfilled under Kenyan law. Even then, it cannot be in these children’s best interests (a principle domesticated by the Children’s Act of 2001) to leave them in a legal limbo for such a long period of time in order to fulfil formalistic legal procedures. As an upper guardian of children, the State and its institutions should have proactively taken the necessary legislative, administrative and other appropriate measures in order to bring to an end the current situation children of Nubian descent in Kenya find themselves in.
  5. Furthermore, with some stretch of imagination, it could also be argued that the Complainants should have exhausted extra-judicial remedies such as administrative procedures within the relevant government offices or by lodging an official claim at the Kenya National Commission on Human Rights. However, what is envisaged under the Guidelines for the Consideration of Communications, and also supported by the jurisprudence from the African Commission, is that extraordinary remedies of a non-judicial nature do not fall within the notion of “local remedies” and need not necessarily be exhausted for a communication to be declared admissible.
  6. The African Committee is of the view that the Complainants can be exempted from exhausting local remedies if such an attempt would be or is unduly prolonged, which is an explicitly mentioned exception under Article 56(7) of the African Charter on Human and Peoples’ Rights.
  7. In fact, an unduly prolonged domestic remedy cannot be considered to fall within the ambit of “available, effective, and sufficient” local remedy. Therefore, while the African Committee notes that in Civil Liberties Organization v. Nigeria,[8] the African Commission declined to consider a Communication with respect to which a claim had been filed but not yet settled by the courts of the Respondent State, it is our view that the unduly prolonged court process in the present Communication is not in the best interests of the child principle (Article 4 of the Charter), and warrants an exception to the rule on exhaustion of local remedies.
  8. To conclude, a year in the life of a child is almost six percent of his or her childhood. It is in the spirit and purpose of the African Children’s Charter, the Africa Call for Accelerated Action (Cairo Plus 5), the Millennium Development Goals and other similar commitments, that States need to adopt a “children first” approach with some sense of urgency. This is one of the messages that the drafters of the African Children’s Charter wanted to communicate in its Preamble when they recognized that “the child occupies a unique and privileged position in the African society”. The implementation and realization of children’s rights in Africa is not a matter to be relegated for tomorrow, but an issue that is in need of proactive immediate attention and action.
  9. As a result of the above, the African Committee decides that the six years that lapsed without a consideration of the merits of the case before the High Court in Nairobi is unduly and unreasonably prolonged, and qualifies for an exception to the requirement imposed on Complainants to exhaust local remedies. In connection to this, the Committee is also of the view that this Communication is brought within a reasonable period of time, after waiting for a sufficient period of time attempting to see if local remedies would offer any prospect of success and adequate remedies.
  10. In view of the preceding reasoning, the Communication is declared admissible.

Consideration of the Merits

  1. The Communication alleges that the Respondent State violated Articles 6, in particular sub-articles (2), (3) and (4), Article 3, and as a result of these two alleged violations, a list of “consequential violations” including Article 11(3) and Article 14.

Decision on the merits

Alleged Violation of Article 6

  1. Article 6 of the African Children’s Charter, titled “Name and Nationality”, provides in full that:
  1. Every child shall have the right from his birth to a name
  2. Every child shall be registered immediately after birth.
  3. Every child has the right to acquire a nationality.
  4. States Parties to the present Charter shall undertake to ensure that their Constitutional legislation recognize the principles according to which a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws.
  1. It is rightly said that birth registration is the State’s first official acknowledgment of a child’s existence, and a child who is not registered at birth is in danger of being shut out of society - denied the right to an official identity, a recognized name and a nationality.9The Complainants allege that the treatment of children of Nubian descent violates their right to be registered at the time of their birth, because some parents have difficulty having their children registered especially since many public hospital officials refuse to issue birth certificates to children of Nubian descent. Such a limitation is confirmed by the Kenya National Commission on Human Rights (KNHCR) that identified and recorded practices indicating discrimination against certain population groups, including persons of Nubian descent, in the grant of birth registration and identity documents.[9]
  1. Both the African Committee (2009) and the CRC Committee (2007) have already recommended through their concluding observations to the Government of Kenya that there is some gap in the State Party’s birth registration practice, partly reflected in the number and categories (such as children born out of wedlock, children of minority groups, and children of refugee, asylum-seeking or migrant families) of births that go unregistered. Unregistered children are not issued birth certificates and thus rendered stateless, as they cannot prove their nationality, where they were born, or to whom. The African Committee is of the view that the obligation of the State Party under the African Children’s Charter in relation to making sure that all children are registered immediately after birth is not only limited to passing laws (and policies),[10] but also extends to addressing all de facto limitations and obstacles to birth registration.[11]
  2. The Complainants have further alleged that even when birth certificates are issued, they do not confer a nationality. They allege that children of Nubian descent are often left to wait until they turn 18 to apply to acquire a nationality.
  3. In this respect, the African Committee is of the view that there is a strong and direct link between birth registration and nationality. This link is further reinforced by the fact that both rights are provided for in the same Article under the African Children’s Charter (as well as the UN Convention on the Rights of the Child). The African Committee notes that Article 6(3) does not explicitly read, unlike the right to a name in Article 6(1), that “every child has the right from his birth to acquire a nationality”. It only says that “every child has the right to acquire a nationality”. Nonetheless, a purposive reading and interpretation of the relevant provision strongly suggests that, as much as possible, children should have a nationality beginning from birth. This interpretation is also in tandem with Article 4 of the African Children’s Charter that requires that “in all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration”. Moreover, this interpretation is further supported by the UN Human Rights Committee that indicated: “States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born” (African Committee’s emphasis).[12]Moreover, by definition, a child is a person below the age of 18 (Article 2 of the African Children’s Charter), and the practice of making children wait until they turn 18 years of age to apply to acquire a nationality cannot be seen as an effort on the part of the State Party to comply with its children’s rights obligations. Therefore, the seemingly routine practice (which is applied more of as rule than in highly exceptional instances) of the State Party that leaves children of Nubian descent without acquiring a nationality for a very long period of 18 years is neither in line with the spirit and purpose of Article 6, nor promotes children’s best interests, and therefore constitutes a violation of the African Children’s Charter.
  4. The Complainants allege that birth registration certificate in Kenya explicitly indicates that it is not proof of nationality thereby leaving even registered children stateless. Furthermore, the Communication further alleges that while children in Kenya have no proof of their nationality, they have legitimate expectation that they will be recognised as nationals when they reach the age of 18. However, for children of Nubian descent in Kenya, since many persons of Nubian descent are not granted the ID cards that are essential to prove nationality, or only get them after a long delay, this uncertainty means that the future prospects of children of Nubian descent are severely limited, and often leaves them stateless. The Complainants further allege that a vetting process that is applicable to children of Nubian decent is extremely arduous, unreasonable, and de facto discriminatory.
  5. Therefore, central to the present Communication is the issue of statelessness. One of the main purposes of Article 6, in particular Article 6(4) of the African Children’s Charter, is to prevent and/or reduce statelessness. A “stateless person”, according to the 1954 UN Convention relating to the Status of Stateless Persons, means “a person who is not considered as a national by any State under the operation of its law”. There is evidence that this universal definition of a “stateless person” is accepted as part of customary international law. Therefore, a “stateless child” is a child who is not considered as a national by any State under the operation of its laws.
  6. While complex issues of parentage, race, ethnicity, place of birth, and politics all play a role in determining an individual's nationality, the root causes of statelessness are complex and multifaceted including state succession, decolonization, conflicting laws between States, domestic changes to nationality laws, and discrimination.[13]
  7. Whatever the root cause(s), the African Committee cannot overemphasise the overall negative impact of statelessness on children. While it is always no fault of their own, stateless children often inherits an uncertain future. For instance, they might fail to benefit from protections and constitutional rights granted by the State. These include difficulty to travel freely, difficulty in accessing justice procedures when necessary, as well as the challenge of finding oneself in a legal limbo vulnerable to expulsion from their home country. Statelessness is particularly devastating to children in the realisation of their socio­economic rights such as access to health care, and access to education. In sum, being stateless as a child is generally antithesis to the best interests of children.
  8. At the global level, a range of instruments recognise the right to acquire a nationality, albeit with varying formulations.[14] Here, it is worth mentioning that, as Doek rightly explains, international human rights law has shifted from the position that “the child shall be entitled from his birth (...) to a nationality”,[15] to one mandating that the child “shall acquire a nationality” (Article 7(1) of CRC, Article 24(3) of ICCPR).[16]The same wording and position is transparent under Article 6 of the African Children’s Charter. The reason for such a shift is because it is felt that “a State could not accept an unqualified obligation to accord its nationality to every child born on its territory regardless the circumstances”.[17]
  9. Therefore, under general international law, States set the rules for acquisition, change and loss of nationality as part of their sovereign power. However, although states maintain the sovereign right to regulate nationality, in the African Committee’s view, state discretion must be and is indeed limited by international human rights standards, in this particular case the African Children’s Charter, as well as customary international law and general principles of law that protect individuals against arbitrary state actions. In particular, states are limited in their discretion to grant nationality by their obligations to guarantee equal protection and to prevent, avoid, and reduce statelessness.[18]
  10. This as a backdrop, the Government of Kenya has adopted its rules that provide for conditions by which a person can become a Kenyan citizen. Pursuant to Chapter IV of the former Constitution of Kenya and the Kenya Citizenship Act, Cap 170 of the Laws of Kenya, the four ways through which a person may acquire Kenyan citizenship are birth, descent, registration, and naturalisation. The African Committee has found sufficient evidence that indeed some persons (including children) of Nubian descent in Kenya have acquired Kenyan nationality through one of these four ways. Therefore, neither the Communication alleges nor the African Committee believes that all children of Nubian descent in Kenya have been left stateless. However, the crux and truth of the matter is that, even with the application of these (fairly restrictive)four ways through which a person can become a Kenyan national, a significant number of children of Nubian descent in Kenya have been left stateless.
  11. As a result, the duty in Article 6(4) of the African Children’s Charter to ensure that a child “...acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws” is squarely applicable to the present Communication as an obligation of the Government of Kenya. This, by no means, is an attempt by the African Committee to be prescriptive about the choice States make in providing for laws pertaining to the acquisition of nationality. Therefore, while the African Committee is not suggesting that States Parties to the Charter should introduce the jus soli approach, in line with the best interests of the child principle, it is explaining the intent of Article 6(4) of the African Children’s Charter that if a child is born on the territory of a State Party and is not granted nationality by another State, the State in whose territory the child is born, in this particular case Kenya, should allow the child to acquire its nationality.
  12. It may have been further argued (by the Government of Kenya), perhaps rather loosely, that the children of Nubian descent in Kenya may be entitled to the nationality of the Sudan, and, as a result, the Government does not have to provide them with Kenyan nationality. However, such a line of argument would be remiss of the fact that, implied in Article 6(4) is the obligation to implement the provision proactively in cooperation with other States, particularly when the child may be entitled to the nationality of another State. In the Communication at hand, nothing has transpired that indicates that the Government, if it holds such view, has undertaken any meaningful efforts to ensure that these children acquire the nationality of any other state.
  13. In this regard, it is apposite to further highlight the nature of the State Party obligation that Article 6(4) of the Charter provides, which is - “undertake to ensure”. As such, the obligation that States Parties including Kenya have under Article 6(4) of the Charter is not an obligation of conduct but an obligation of result. States Parties need to make sure that all necessary measures are taken to prevent the child from having no nationality.
  14. The African Committee notes and commends the new Constitutional dispensation introduced in 2010 in Kenya which ushers a number of advancements in promoting and protecting children’s rights, including their right to acquire a nationality. In particular, Article 14(4) of the 2010 Constitution entrenches that a child less than eight years of age whose parents are not known is presumed to be a citizen by birth. While the African Committee lauds the effort of the State Party in providing for this provision in its Constitution, it would like to draw the attention of the State Party that this provision is still not a sufficient guarantee against statelessness, let alone address the crux of the present Communication- namely, children born in Kenya of stateless parent(s) or who would otherwise be stateless, to acquire a nationality by birth.
  15. As a result of the above, the African Committee finds violations of Articles 6(2), 6(3) and 6(4) of the African Children’s Charter buy the Government of Kenya.

Alleged Violation of Article 3

  1. The Complainants allege that children of Nubian descent in Kenya are treated differently from other children in Kenya, for which there is no legitimate justification, amounting to unlawful discrimination and a violation of Article 3 of the African Children’s Charter. They further allege that the fact that children of Nubian descent are expected to go through a lengthy and arduous process of vetting (including requiring them to demonstrate the nationality of their grandparents, as well as the need to seek and gain the approval of Nubian elders and governmental officials, etc.) is discriminatory, and depriving them of any legitimate expectation of nationality, and leaving them effectively stateless.
  2. Racial and ethnic discrimination are prohibited as binding jus cogensnorm of international law. The African Children’s Charter is no exception. Article 3 provides in full that:

[e]very child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.

The current facts in relation to children of Nubian descent in Kenya indicate a prima facie case of discrimination and violation of Article 3 of the Charter. As a result, the burden shifts to the state to justify the difference in treatment indicating how such a treatment falls within the notion of fair discrimination. The failure of the State to be present for a consideration of this Communication makes such an engagement impossible. However, the African Committee weighed whether the treatment of the children of Nubian descent in Kenya can be considered to be a fair discrimination, but found otherwise. For instance, in a very similar case involving children of Haitian descent in Dominican Republic, it was held that the refusal and placing of unfair obstacles by local officials to deny birth certificate and recognition of the nationality of Dominicans of Haitian descent as part of a deliberate policy which effectively made the children stateless constituted racial discrimination.[19] Moreover, after a thorough investigation of the situation of children of Nubian descent in Kenya, the Kenya National Commission on Human Rights has concluded that “the process of vetting... Nubians... is discriminatory and violates the principle of equal treatment. Such a practice has no place in a democratic and pluralistic society”.[20]

  1. The current practice applied to children of Nubian descent in Kenya, and in particular its subsequent effects, is a violation of the recognition of the children’s juridical personality, and is an affront to their dignity and best interests. For a discriminatory treatment to be justified, the African Commission has rightly warned that “the reasons for possible limitations must be founded in a legitimate state interest and . limitations of rights must be strictly proportionate (sic) with and absolutely necessary for the advantages which are to be obtained”.[21]The African Committee is not convinced, especially in relation to a practice that has led children to be stateless for such a long period of time, that the current discriminatory treatment of the Government of Kenya in relation to children of Nubian descent is “strictly proportional with” and equally importantly “absolutely necessary” for the legitimate state interest to be obtained. The Committee is of the view that measures should be taken to facilitate procedures for the acquisition of a nationality for children who would otherwise be stateless, and not the other way round. As a result of all the above, the African Committee finds a violation of Article 3 of the African Children’s Charter.

Consequential violations

  1. The indivisibility of rights in the African Children’s Charter is underscored by the consequential impact of the denial of nationality to children of Nubian descent by the Government of Kenya. All Charter rights generate obligations to respect, protect, promote and fulfil. This is no less so in respect of the rights implicated when nationality and identity rights are violated. The complaint in the instant Communication has primarily resulted in an infringement of Article 3 which fundamentally proscribes discrimination against the child so as to limit the enjoyment by the child of the rights and freedoms recognised and guaranteed in the Charter. In the instant case, the discriminatory treatment of the children affected by the conduct of the Government of Kenya based on their and their parents’ and legal guardians’ social origin has had long standing and far reaching effects on the enjoyment of other Charter rights. And, as the African Commission on Human and Peoples’ rights has confirmed, in the African context, collective rights and economic and social rights are essential elements of human rights in Africa.[22]

Alleged Violation of Article 14

  1. In the first place, a case had been made out that the affected children have suffered denial and unwarranted limitation of their rights to health. The Charter provides in Article 14 for the children to enjoy the right to the highest attainable standard of health. Minimal access to health facilities, a lower level of contact with health promoting measures and medical assistance, and a lack of provision of primary and therapeutic health resources and programmes is inconsistent with respect for the child’s right to the highest attainable standard of health. African jurisprudence places a premium on both the right to health care and the right to the underlying conditions of health. In the Purohitcase, the African Commission held that the right to health in the African Charter on Human and Peoples’ Rights includes the right to health facilities, access to goods and services to be guaranteed to all without discrimination of any kind.[23] It has been confirmed that the underlying conditions for achieving a healthy life are protected by the right to health. Thus lack of electricity, drinking water and medicines amount to a violation of the right to health. The Zaire case,[24] concerning Article 16 of the African Charter on Human and Peoples’ Rights, confirmed that the failure of the government of Zaire to provide the mentioned basic services amounted to an infringement of the right to health.
  2. In the Communication regarding the children affected by the denial of their nationality and Kenyan identity, a case was made out that the State Party had violated in particular the right enshrined in Article 14(2) (b) (the duty to ensure the provision of necessary medical assistance and heath care to all children with the emphasis on the development of primary health care) and article 14(2)(c) (the duty to ensure the provision of adequate nutrition and safe drinking water). These provisions being similar in content to the equivalent provisions in the African Charter on Human and Peoples’ Rights, it can be deduced that the findings of the African Commission bear significant relevance.
  3. It is incumbent upon States Parties to the African Children’s Charter to ensure that Article 14(2)(g) is given full implementation, within available resources. Integrated health service programmes must be fully incorporated national development programmes, including those pertaining to the most vulnerable who lived in overcrowded and underserviced slum areas or camps. Where the underlying conditions, such as conditions in informal settlement and slum areas, present a heightened risk to the child’s enjoyment of her right to health, the duty bearer must accept that there is a correspondingly more urgent responsibility to plan and provide for basic health service programmes under Article 14 (2)(g)). The States Parties to the African Children’s Charter are encouraged in giving effect to their Article 14(2)(g) obligations, to ensure that national development plans reflect the need to prioritise health services and to intensify such planning for services to otherwise disadvantaged communities where child beneficiaries live.
  4. The affected children had less access to health services than comparable communities who were not comprised of children of Nubian descent. There is de facto inequality in their access to available health care resources, and this can be attributed in practice to their lack of confirmed status as nationals of the Republic of Kenya. Their communities have been provided with fewer facilities and a disproportionately lower share of available resources as their claims to permanence in the country have resulted in health care services in the communities in which they live being systematically overlooked over an extended period of time.[25] Their health needs have not been effectively recognised and adequately provided for, even in the context of the resources available for the fulfilment of this right.

Alleged Violation of Article 11(3)

  1. The Committee notes that the violation includes an infringement of the rights enshrined especially in Article 11(3) of the African Children’s Charter, which provides for the right to education. Ratifying States Parties undertake to take all appropriate measures, with a view to achieving full realisation of this right. Article 11(3) (a) requires in particular the provision of free and compulsory basic education, which necessitate the provision of schools, qualified teachers, equipment and the well recognised corollaries of the fulfilment of this right.
  2. The African Commission on Human and Peoples’ Rights has emphasised that the failure to provide access to institutions of learning would amount to a violation of the right to education under the African Charter on Human and Peoples’ Rights.[26]
  3. The affected children had less access to educational facilities for the fulfilment of their right to free and compulsory primary education than comparable communities who were not comprised of children of Nubian descent. There is de facto inequality in their access to available educational services and resources, and this can be attributed in practice to their lack of confirmed status as nationals of the Republic of Kenya. Their communities have been provided with fewer schools and a disproportionately lower share of available resources in the sphere of education, as the de facto discriminatory system of resource distribution in education has resulted in their educational needs being systematically overlooked over an extended period of time.[27] Their right to education has not been effectively recognised and adequately provided for, even in the context of the resources available for this fulfilment of this right.
  4. At this juncture, while not directly in contention in this Communication, the African Committee would also like to highlight the relevance of Article 31 of the African Children’s Charter to the issues at hand. Article 31 of the African Children’s Charter requires that every child shall have responsibilities towards the family, society and the state, as well as other legally recognised communities, subject to his age and ability and to other limitations as may be contained in the Charter. Children of Nubian descent who have been born in Kenya are subject to the requirement of their serving their national community by placing their physical and intellectual abilities at the service of the nation, as well as preserving and strengthening social and national solidarity and the independence and integrity of his country. Although it cannot be suggested that the fulfilment of these duties is contingent upon the of their status as nationals and their identity as children of Kenya, the fulfilment of Article 31 responsibilities highlights the reciprocal nature of rights and responsibilities, which reciprocity is not fulfilled when Article 6 rights are not respected by the State concerned. The Committee wishes to emphasise that national solidarity and African unity are best achieved in an environment which eschews discrimination and denial of rights.
  5. The African Committee regards the violations discussed in the preceding paragraphs as emblematic of the difficulties occasioned by the non-recognition of Kenyan nationality of children of Nubian descent in the instant case. Other Charter rights which, seen together, serve the child’s best interests can be adduced on which the present violation have a bearing. The African Committee does not need to investigate these in further detail in the light of the findings above.
  6. The Committee does not wish to fault governments that are labouring under difficult circumstance to improve the lives of their people. The Government of Kenya has ratified the African Children’s Charter earlier than many countries on the continent (25 July 2000), and more importantly, has made a number of significant progresses in implementing the provisions of the Charter. However, it is worthy of note that the violation complained of has persisted unchecked for more than half a century, thereby prejudicing not just the children in respect of whom the complaint has been brought under this African Children’s Charter, but indeed generations preceding them. The implications of the multi-generational impact of the denial of right of nationality are manifest and of far wider effect than may at first blush appear in the case. Systemic under-development of an entire community has been alleged to be the result. Therefore, in addressing the consequences of the non­recognition of the nationality of children of Nubian descent, actions which address the long­term effects of the past practice must be formulated. As is clearly stated in the African Children’s Charter (see Article 11(2)(h); Article 14(2)(h); Article 20(2)), such measures must be formulated with the participation of the impacted community.

Decision of the African Committee

  1. For the reasons given above, the African Committee finds multiple violations of Articles 6(2), (3) and (4); Article 3; Article 14(2) (b), (c) and (g); and Article 11(3) of the African Children’s Charter by the Government of Kenya, and:
  1. Recommends that the Government of Kenya should take all necessary legislative, administrative, and other measures in order to ensure that children of Nubian decent in Kenya, that are otherwise stateless, can acquire a Kenyan nationality and the proof of such a nationality at birth.
  2. Recommends that the Government of Kenya should take measures to ensure that existing children of Nubian descent whose Kenyan nationality is not recognised are systematically afforded the benefit of these new measures as a matter of priority.
  3. Recommends that the Government of Kenya should implement its birth registration system in a non-discriminatory manner, and take all necessary legislative, administrative, and other measures to ensure that children of Nubian descent are registered immediately after birth.
  4. Recommends that the Government of Kenya to adopt a short term, medium term and long term plan, including legislative, administrative, and other measures to ensure the fulfilment of the right to the highest attainable standard of health and of the right to education, preferably in consultation with the affected beneficiary communities.
  5. Recommends to the Government of Kenya to report on the implementation of these recommendations within six months from the date of notification of this decision.In accordance with its Rules of Procedure, the Committee will appoint one of its members to follow up on the implementation of this decision.

Done in Addis Ababa, Ethiopia,

22 March 2011

The Chairperson of The Committee

 

9 See UNICEF “Birth registration: Right from the start” (March 2002) Innocenti Digest No 9, 1.

 

[1] Although technically speaking “nationality” and “citizenship” do not mean the same thing, the African Committee uses the two notions interchangeably in this decision as they are used in such a manner in the Communication itself.

[2] See Constitutional Rights Project [CRP] v. Nigeria, Communication No. 60/91.

[3] SERAC v. Nigeria, Communication No. 155/96, para 37.

[4] F Viljoen International human rights law in Africa, (2007), 336.

[5] As above. See too citations there in pertaining to the jurisprudence of the African Commission in this regard and Dawda Jawara v. The Gambia, Communication Nos. 147/95 and 149/96, para.32.

[6] Paras 31 and 32.

[7] See, for instance, Anuak Justice Council v Ethiopia, Communication 299/2005, para 48

[8] Communication No. 45/90.

[9] See generally, KNCHR, “An Identity Crisis? Study on the issuance of national identity cards in Kenya” (2007).

[10] It remains to be seen in practice the extent to which the guarantee in the 2010 Constitution, particularly in Article 12(1)(b) which states that “[e]very citizen is entitled to a Kenyan passport and to any document of registration and identification issued by the State to citizens” will improve this situation.

[11] This can sometimes be achieved through a universal, well-managed registration that is based on the principle of non-discrimination and accessible to all (using e.g. mobile registration units for children living in remote areas) and free of charge. See J.E. Doek “The CRC and the right to acquire and to preserve a nationality” (2006) 25(3) Refugee Survey Quarterly 26.

[12] Human Rights Committee, General Comment No. 17, “Article 24: Rights of the Child”, (1989), para. 8.

[13] See S Kosinski “ State of uncertainty: Citizenship, statelessness, and discrimination in the Dominican Republic” (2009) 32 Boston College International and Comparative Law Review 377.

[14] These instruments include the Universal Declaration of Human Rights (UDHR); International Covenant on Civil and Political Rights (ICCPR); International Convention on the Elimination of All Forms of Racial Discrimination (CERD); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); Convention on the Rights of the Child (CRC); International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW); and the Convention on the Rights of Persons with Disabilities (CRPD).

[15] Principle 3 of the UN Declaration on the Rights of the Child of 1959.

[16] Doek (note 12 above).

[17] As above.

[18] In this regard, the African Committee is of the view that African States, including Kenya, need to be encouraged and supported to ratify and implement fully the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

[19] See, generally, Yean and Bosico v. Dominican Republic, I-ACtHR Judgment of 8 September 2005.

[20] KNCHR, (note 10 above), vi.

[21] Legal resources Foundation v. Zambia, Communication No. 211/98, para 67

[22] SERAC v. Federal Republic of Nigeria, Communication No. 155/96, para 68.

[23] Purohit and Moore v. The Gambia, Communication 241/2001, para 80.

[24] Free Legal Assistance Group and Others v Zaire, Communications No 25/89, 47/90, 56/91, 100/93

[25] This can also be said to affect their right to development under the African Charter on Humans and Peoples’ Rights, to which the Republic of Kenya is also a States Party. See, too the right to survival and development provided for on Article 6 of the UN Convention on the Rights of the Child, as well as Article 24 dealing with the right to health.

[26] Free Legal Assistance Group and Others v Zaire, Communications No 25/89, 47/90, 56/91, 100/93, para 11.

[27] This can also be said to affect their right to development under the African Charter on Human’s and Peoples’ rights, to which the republic of Kenya is also a states party. See, too the right to survival and development provided for on article 6 of the UN Convention on the Rights and Welfare of the Child, as well as article 24 dealing with the right to health.