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Unpacking the Constitution: How far are we in realising children’s rights

22 October 2010
Even though the capabilities of children should not be underestimated, it is a fact that children (especially at a younger age) often lack the political power to make sure that their rights are being protected. The onus falls on adults to ensure that the 18.7 million children living in South Africa are safe and cared for.
When young mothers (actually still children themselves) throw away their babies, or when we see street children begging at our car windows, it is time to take stock of children’s rights espoused in the Constitution and how far we are in making these rights a reality.
What the law says
The Constitution of the Republic of South Africa says every child has the right to a name, family care, basic nutrition, shelter, basic health care, and social services. They should be protected from neglect, abuse and exploitative labour practices. And children should only be arrested as a last resort and if so, detained for the shortest appropriate period of time. Also, everyone has the right to education.
Over the past years South Africa has put some progressive policies and laws in place to realise these rights. Support grants are also paid to 9 million children.
In April this year the Children’s Act came into force, which gives children the right to participate and have a voice. Doctors must now seek consent from their young patients for certain medical conditions. There is also a shift from the concept of parental power over children to parental rights and responsibilities and theDepartment of Social Development has an obligation to fund important social welfare services.
The Criminal Law (Sexual Offences and Related Matters) Act 2007 changed the definition of rape to include all forms of penetration without consent for both men and women.
However, certain aspects of the laws can be improved on. For instance; there are many protective measures available for complainants in sexual offences cases, but courts are allowed to use their discretion as to whether these measures should be implemented.
Laws and policies exist, but what is the actual situation at grassroots level?
Family care and shelter
It is commendable that 2.5 million subsidised houses have been built since 1994, but according to the 2009/10 Child Gauge, produced by the University of Cape Town’s Children’s Institute, 2.3 million children live in informal dwellings and 30% of children live in over-crowded households. Poverty keeps children from having proper shelter.
If their parents have HIV/AIDS and can no longer look after them, or if there is abuse in the household, severe poverty, or other social ills, children sometimes end up on the streets.
“My mother, a domestic worker, died when I was just five years old. My father is also dead – I only ever saw him for a few weeks, when I was very young. Sometimes, I had to steal just to survive,” Skhumboso Dlamini, a child who used to stay on the streets told the BBC in an interview in 2002. “There are no rules – we did exactly as we pleased. There’s also a lot of fighting – I still have the scars from when I was hit one time.”
According to the Children’s Rights Centre street children need “education, rehabilitation and if possible re-unification with their families. They need to regain confidence in adults and in themselves, so that they can form relationships and lead constructive lives with hope for the future”.
Luckily, Skhumboso was taken in by the YMCA’s Sakhithemba shelter for young offenders near Durban. “After a couple of months here, I think I have settled down. I think the routine and discipline are good for me, and I want to learn.”
For many of the same reasons that children leave their homes for the streets, unaccompanied migrant children travel to South Africa. According to a report by Save the Children (UK) “children become even more vulnerable when they migrate, particularly at the actual border crossing and also on their arrival in the host country. These children become prey to abuse, violence and exploitation, mainly owing to their young age and undocumented status in the host country”.
Creative Consulting & Development Works is currently conducted a baseline researchstudy for Save the Children UK’s programme entitled “Providing young people with skills to succeed in South Africa”.
Basic nutrition and health care
Because so many children in South Africa live in poverty, they are not getting the basic nutrition that they need and this impacts on their health. According to the Child Gauge 2009/10, 3.3 million children live in households where there is child hunger. One in five children is stunted and more than one in three children don’t have access to drinking water and basic sanitation.
“Since 1994, South Africa has made significant progress in improving access to health care services; yet it has failed to reduce child mortality and malnutrition,” the Gauge states. Before they reach the age of five, 67 babies out of every 1,000 will die.
The number of babies that contract HIV from their mothers during birth or breastfeeding has declined, due to the Constitutional Court ordering the state to roll out the prevention of mother-to-child transmission programme (PMTCT) in 2000. But the Gauge says: “the Constitutional Court did not prioritise children’s rights in its recent judgment on free basic water despite lack of access to water and sanitation contributing to the high number of children under five that die from diarrhoea.”
Abuse
According to Rapcan, 16068 rapes of children were reported in South Africa for the period 2007-2008. This was even before the Sexual Offences Act came into force and indecent assault was included under the category of rape. And a study by theMedical Research Councilfound that only one in nine rapes are actually reported to the police. Even more disturbingly, Unicef reports that amongst the small proportion of rapes that actually get reported, no more than one in ten result in a conviction. This is a dire situation for children in this country.
Civil society action
Fortunately there are many civil society organisations, such as those mentioned above, that are working to improve the lives of children in South Africa.
Children should also know their own rights. Creative Consulting & Development Works is currently producing a easy-to-understand, plain language booklet on the Constitution for the Western Cape Provincial Parliament, which will be able to inform children and any other citizens about their rights.
How far do you think we are in realising children’s rights? Click here to go to our blogand leave your comment!

To make sure children are happy and carefree, their rights need to be protected. Photo: Randy OHC on Flickr

To make sure children are happy and carefree, their rights need to be protected. Photo: Randy OHC on Flickr

This article first appeared in the 14th edition of the Development Works Newsletter, that we just sent out. Please give your opinion on how far we’ve come in realising children’s rights below. If you are not yet on our newsletter distribution list, please contact us.

Even though the capabilities of children should not be underestimated, it is a fact that children (especially at a younger age) often lack the political power to make sure that their rights are being protected. The onus falls on adults to ensure that the 18.7 million children living in South Africa are safe and cared for.

When young mothers (actually still children themselves) throw away their babies, or when we see street children begging at our car windows, it is time to take stock of children’s rights espoused in the Constitution and how far we are in making these rights a reality.

What the law says

After 1994, many rights pertaining to children have been enshrined in the Constitution. Photo: United Nations Photo

After 1994, many rights pertaining to children have been enshrined in the Constitution. Photo: United Nations Photo

The Constitution of the Republic of South Africa says every child has the right to a name, family care, basic nutrition, shelter, basic health care, and social services. They should be protected from neglect, abuse and exploitative labour practices. And children should only be arrested as a last resort and if so, detained for the shortest appropriate period of time. Also, everyone has the right to education.

Over the past years South Africa has put some progressive policies and laws in place to realise these rights. Support grants are also paid to 9 million children.

In April this year the Children’s Act came into force, which gives children the right to participate and have a voice. Doctors must now seek consent from their young patients for certain medical conditions. There is also a shift from the concept of parental power over children to parental rights and responsibilities and the Department of Social Development has an obligation to fund important social welfare services.

The Criminal Law (Sexual Offences and Related Matters) Act 2007 changed the definition of rape to include all forms of penetration without consent for both men and women.

However, certain aspects of the laws can be improved on. For instance; there are many protective measures available for complainants in sexual offences cases, but courts are allowed to use their discretion as to whether these measures should be implemented.

Laws and policies exist, but what is the actual situation at grassroots level?

Family care and shelter

Children need proper family care. Photo: thecaveofthedead, on Flickr

Children need proper family care. Photo: thecaveofthedead, on Flickr

It is commendable that 2.5 million subsidised houses have been built since 1994, but according to the 2009/10 Child Gauge, produced by the University of Cape Town’s Children’s Institute, 2.3 million children live in informal dwellings and 30% of children live in over-crowded households. Poverty keeps children from having proper shelter.

If their parents have HIV/AIDS and can no longer look after them, or if there is abuse in the household, severe poverty, or other social ills, children sometimes end up on the streets.

“My mother, a domestic worker, died when I was just five years old. My father is also dead – I only ever saw him for a few weeks, when I was very young. Sometimes, I had to steal just to survive,” Skhumboso Dlamini, a child who used to stay on the streets told the BBC in an interview in 2002. “There are no rules – we did exactly as we pleased. There’s also a lot of fighting – I still have the scars from when I was hit one time.”

According to the Children’s Rights Centre street children need “education, rehabilitation and if possible re-unification with their families. They need to regain confidence in adults and in themselves, so that they can form relationships and lead constructive lives with hope for the future”.

Luckily, Skhumboso was taken in by the YMCA’s Sakhithemba shelter for young offenders near Durban. “After a couple of months here, I think I have settled down. I think the routine and discipline are good for me, and I want to learn.”

For many of the same reasons that children leave their homes for the streets, unaccompanied migrant children travel to South Africa. According to a report by Save the Children (UK) “children become even more vulnerable when they migrate, particularly at the actual border crossing and also on their arrival in the host country. These children become prey to abuse, violence and exploitation, mainly owing to their young age and undocumented status in the host country”.

Creative Consulting & Development Works is currently conducted a baseline research study for Save the Children UK‘s programme entitled “Providing young people with skills to succeed in South Africa”.

Basic nutrition and health care

Many children live in poverty and this affects their health. Photo: DFID on Flickr

Many children live in poverty and this affects their health. Photo: DFID on Flickr

Because so many children in South Africa live in poverty, they are not getting the basic nutrition that they need and this impacts on their health. According to the Child Gauge 2009/10, 3.3 million children live in households where there is child hunger. One in five children is stunted and more than one in three children don’t have access to drinking water and basic sanitation.

“Since 1994, South Africa has made significant progress in improving access to health care services; yet it has failed to reduce child mortality and malnutrition,” the Gauge states. Before they reach the age of five, 67 babies out of every 1,000 will die.

The number of babies that contract HIV from their mothers during birth or breastfeeding has declined, due to the Constitutional Court ordering the state to roll out the prevention of mother-to-child transmission programme (PMTCT) in 2000. But the Gauge says: “the Constitutional Court did not prioritise children’s rights in its recent judgment on free basic water despite lack of access to water and sanitation contributing to the high number of children under five that die from diarrhoea.”

Abuse

Violence against children need to be stopped. Photo: Gregor Rohrig

Violence against children need to be stopped. Photo: Gregor Rohrig

According to Rapcan, 16068 rapes of children were reported in South Africa for the period 2007-2008. This was even before the Sexual Offences Act came into force and indecent assault was included under the category of rape. And a study by the Medical Research Council found that only one in nine rapes are actually reported to the police. Even more disturbingly, Unicef reports that amongst the small proportion of rapes that actually get reported, no more than one in ten result in a conviction. This is a dire situation for children in this country.

Civil society action

Fortunately there are many civil society organisations, such as those mentioned above, that are working to improve the lives of children in South Africa.

Children should also know their own rights. Creative Consulting & Development Works is currently producing a easy-to-understand, plain language booklet on the Constitution for the Western Cape Provincial Parliament, which will be able to inform children and any other citizens about their rights.

How far do you think we are in realising children’s rights? Leave your comment below!

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