Introduction
The Child Rights bill is a bill that aims at protecting and promoting the rights of the child. The SLCMP is writing a series of articles on this bill to familiarize and sensitize the populace in order to prepare them for this bill which, when passed to law, will greatly enhance the rights of children and improve on juvenile justice. This article forms the start of a series of articles discussing the child rights bill, which will be published in forthcoming editions of the SLCMP Monitor. It is currently before Parliament, and on the 23rd and 24th of April, 2007, the public was invited to make statements on issues of the bill in a Parliament legislative committee. Pa Momoh Fofanah made a statement on which certain issues and definitions were clarified and some definitions and clause added to the bill.
History to the Child Rights Bill
The civil war is Sierra Leone (1991-2002) is universally described as a brutal conflict in which there were unprecedented acts of violence, bloodshed, destruction and human rights abuses virtually unparalleled anywhere in the world. The Truth and Reconciliation Commission which developed out of it was established in order to provide a forum for the victims and perpetrators of human rights violations, since the beginning of the conflict, to tell their story, get a clear picture of the past, and to recommend measures to be taken for national reconciliation. In its report in 2004, one of the Commission’s major findings was that the exclusion and marginalisation of key social groups such as women and children was one of the key factors responsible for the conflict. Accordingly, it recommended that in the area of children’s rights in Sierra Leone , a Child Rights Act needed to be made part of the country’s legislation.
In addition, Sierra Leone is a signatory to a number of international and regional human rights instruments, the most relevant of which under the present topic are the Convention on the Rights of the Child (CRC) (which sets out the civil, political, economic, social and cultural rights of children), together with the Optional Protocol on the Involvement of Children in Armed Conflict and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography. At regional level, Sierra Leone is a signatory to the African Charter on the Rights and Welfare of the Child (ACRWC)
Against this background, a Child Rights Bill has been drafted, but is yet to become law, and the said bill, if crystallised into law, will consolidate the national law relating to children, in addition to domesticating the principles set out in the aforementioned international and regional instruments.
Object of the Child Rights Bill
The short title of the Bill (and hopefully Act) describes it as one to provide for the promotion of the rights of the child compatible with the aforementioned international regional instruments. Thus it could be seen as an attempt to consolidate the law relating to children in Sierra Leone , as well as a domestication of the principles set out in the international instruments in so far as they relate to the rights and welfare of the child.
Raising age of ‘child’ and emphasizing their welfare
The Bill defines a “child” as a person below the age of 18, bringing to an end the ambiguity and uncertainty caused by the divergent definitions of what constitutes a child in Sierra Leone ’s existent legislation. 18 becomes the age at which a person is allowed to marry, and also the age at which they are able to enter the armed forces.
Therefore this is the age of consent. This is simply so, because the child would know what is good and what is bad at this age.
The overriding principle to be applied in the interpretation of the Bill is that the short and long-term best interest of the child shall be a primary consideration in any decision or action that may affect the child or children as a group. Factors to be taken into consideration in relation to this include following the general principles of the CRC, non-discrimination with respect to children in the enjoyment of their rights and respect for the views of the child.
Child Rights
The Bill sets out a series of key rights for the child to enjoy. A child has the right to live and grow up with his or her parent (unless it is proved in court that living with the parent would be inimical to the interest of the child e.g. in cases of child abuse). Under the Bill children also have the right to welfare and health care including immunization against disease, and the right to be protected from involvement in armed or any other kind of violent conflict. The Bill provides for the right not to be deprived from the estate of a parent whether or not that child was born in wed lock. Disabled children are accorded the right to special care education and training so as to develop their maximum potential and make them self-reliant.
Further rights include the right to express an opinion which said opinion should be given due weight in accordance with the age and maturity of the child. Children are also given the right to be protected from exploitative labor.
It is important to note that physical punishment of a child is justifiable where it is ‘reasonable’ and the child ‘understands’ why he is being punished. This runs contrary to most countries’ law relating to physical punishment of children, which has gradually moved towards prohibiting physical chastisement under any circumstances.
Early Marriage/ Female Genital Cutting
Under the Bill, no person shall force a child to be betrothed, to be the subject of a dowry transaction or to be married. Moreover, no person or association shall subject a child to an initiation ceremony, and it shall be an offence to so subject a child. This provision has caused a great deal of controversy within Parliament and across the country as a whole. Even within the Ministry of Social Welfare, Gender and Childrens Affairs there are conflicting views on whether such a provision should be included. However, emphasis is deliberately placed on the age at which a person may be initiated into a society, so that once a person is of an age when they can fully consent, at 18, initiation shall not be prohibited. It is hoped that this compromise shall be acceptable to Parliamentarians and that this provision will not hinder the progress of the Bill into law.
Parental Responsibilities
The Bills also sets out the responsibilities of parents in relation to children. Under the Bill it is the primary responsibility of parents to provide support to their children, but the State also has this responsibility if the child is in need. Parents have a duty to protect their children from neglect, discrimination, violence and exposure to physical and moral hazards and oppression; to provide good guidance care assistance and maintenance for the child; to ensure that in the temporary absence of the parent the child shall be cared for by a competent person and that a child under 18 months of age shall only be cared for by a person age 15 and above.
Parental Rights
Subject to the best interest of the child parents also have certain rights in relation to their children, amongst which are the right to have the child live with them, to control and guide the child’s upbringing and to act as the child’s legal representative regarding the child’s property or other interests.
Under the new law, parents will have the right to maintain relations with children with whom they are not living. This provision relates to the sad cases when parents separate in circumstances of animosity, and the parent with whom the children live prevent the other parent from seeing the children. In other countries, such as the UK , there are many high profile cases of fathers publicly demonstrating in complaint that their former partners prevent them from seeing their children. Interestingly, in Sierra Leone the situation is normally reversed. Here it is very common for women leaving a marriage to leave their children with their former husbands because they have no financial means of supporting their family on their own. It is thus normally women who are often prevented from seeing their children. In both circumstances this is most often to the detriment of the children concerned.
State Responsibility and the Establishment of the National Commission for Children
In addition to setting out parental responsibilities, the Bill establishes a National Commission for Children, a provision which recognizes that the State too has an obligation to protect and promote the rights of children.
The Commission shall be based in Freetown and shall be comprised of a Chairman to be appointed by the President and 12 other members, representing a cross-section of representatives from bodies interested in the welfare of children, each for a term of three years and, in order to accumulate experience, shall be eligible for re-appointment. The object of the Commission is to monitor and co-ordinate the implementation of the CRC and the ACRWC, to oversee the implementation of children’s rights and to advise the Government on policies aimed at improving the conditions or welfare of children in Sierra Leone . The Commission will be required to review legislation and customary law practices relating to children, and advise government and other state institutions on the application of the principle of the best interest of the child. It should contribute to the process of decentralization of authority to the districts and other local levels with a view to ensuring that every child is registered at birth and has access to health care and free basic education, and should issue reports including recommendations on child rights in Sierra Leone.
The secretariat for the Commission shall be located in Freetown but the Commission may establish other provincial offices. It will be funded by monies appropriated by Parliament for the purposes of the Commission, gifts or grants of donor and income from any investments by the Commission.
Conclusion
The main concern of the Sierra Leone Court Monitoring Programme (SLCMP) is to see this bill passed into law quickly before Parliaments disbands. This is why sensitization has already started by the SLCMP in order to make children aware of their rights that are supposed to be accorded them.
In the next edition of the Monitor newsletter, Child Rights Bill issues like parentage and custody, institutionalized care and child employment will be discussed.