حماية حقوق الطفل في ظل الميثاق الإفريقي لحقوق ورفاه الطفل

Abstract

eighteen years is to be welcomed. This is in contrast to the Convention, which, while applying to persons under eighteen years in general, does limit its application in certain instances. Indeed, some very far-reaching and innovative provisions, for example the Article on children living under apartheid and serious discrimination, have been incorporated in the Charter. Unfortunately, the Charter is not able to maintain these innovations throughout the whole document. Thus even though some parts of the Charter can be said to bear the “African cultural fingerprint” this is mostly not the case, as this study shows. However, given the fact that the Charter does not intend to lower the level of protection, or to substitute the Convention, but rather to complement it, an additional legal human rights instrument cannot do any real harm to the legal situation of children. If the Charter contained only one single provision that exceeded the level of protection already granted by other instruments, its existence would not be in vain – and it has been shown that the Charter does contain provisions that are able to do so. This fact, and its potentially better possibilities for enforcement, constitute the real value of the Charter. Even though the approach of this paper towards the Charter might be seen as fairly critical, and the conclusions offering little encouragement, for these improvements alone the Charter must be lauded. Furthermore the interpretations contained in this study could be understood a a guide to develop the Charter to its full potential. Once authoritatively interpreted by an appropriate body established under the Charter that clarifies the points in doubt and excludes possibilities of regressive interpretation, the Charter has the potential to step out of the Convention’s shadow. Particularly because of its enforcement provisions, the Charter has the potential to be a living instrument that is able to adapt to changing circumstances and to be developed to the greatest possible benefit of children. This inherent potential is the real value of the Charter.