From Kenya to Tanzania through Mauritania, Cameroon and Sudan: the approach of the African Children’s Committee to the principle of non-discrimination in selected communications

3.1 Agency on the child

First, article 3 requires an agency on the child to have entitlements to rights and freedoms under the African Children’s Charter.38 The Children’s Charter has handed down principles to guide the normative understanding of the principle of non-discrimination. As will be shown, the African Children’s Charter has used article 46 (which allows the use of inspiration from other sources of the law) to draw on inspiration from other sources to interpret article 3. This has included the use of guidance from other human rights bodies such as CRC and the CEDAW Committee, the African Commission on Human and Peoples’ Rights (African Commission), the African Charter on Human and Peoples’ Rights (African Charter) and the African Court on Human and Peoples’ Rights (African Court).

In addition, the child is mandated to enjoy all the rights and freedoms in an environment that is provided by all stakeholders, starting with the state. It is interesting to note that the mandate is not specifically visited in the state. This potentially dangerous predicament is solved by the African Children’s Charter which offers insights into the state party’s obligations. The African Children’s Charter mandates the state to recognise the rights, freedoms and duties enshrined in the African Children’s Charter.39 Based on the mandatory requirement, consequently, the state is mandated to undertake necessary steps within the bounds of their constitutional processes and all kinds of measures (including legislative measures) to give effect to the provisions of the African Children’s Charter.40 Furthermore, the wording may also be interpreted to mean that all stakeholders, persons or entities in the environments where a child is have an obligation to urge the state as the main duty holder to ensure that the child enjoys their rights.41

3.2 Obligation on the state as an active (rather than a passive) player

Second, it is argued that the active identification of the child affected by discrimination includes the engagement of proactive steps, such as the increased delivery of accessible basic services such as education, healthcare and birth registration, coupled with an increase in the allocation of funds, human resources and the required facilities.42 As such, the state is actively involved in identifying children affected by discrimination and is expected to take deliberate steps to remedy the situation.43 The active identification may start with the commitment by a state party to non-discrimination against women and girls, which requires it to recognise child marriage as a form of sex and gender-based discrimination, and to take appropriate measures towards its elimination.44 To this end, critical information on children who may be suffering the brunt of discrimination has to be actively and continually identified and subsequent steps taken to ensure that children are not discriminated against. In addition, the African Children’s Committee reiterates, by implication, the need for the use of equitable rather than equal treatment in the use of special measures to mitigate the effects of discrimination.45 The African Children’s Committee has in the recent past made recommendations to state parties to ensure non-discrimination as a constitutional guarantee.46

3.3 The status of the child is irrelevant

Third, the status of the child is irrelevant and has no bearing on the enjoyment of the rights under the African Children’s Charter.47 This gives the application of the principle of non-discrimination a broad-based contextual application. The first point of call is to have a non-exhaustive list of vulnerable children.48 The wording of the article by design is to the end that specific contextual imperatives regarding the child are irrelevant.49 For instance, the existence of parents or guardians, and their ethnic group, colour, sex, language, religion, political or other status are irrelevant, especially if they may stifle the child’s enjoyment of the rights under the African Children’s Charter.50 The African Children’s Committee gives a clarion call to state parties to ensure that birth registration is enforced regardless of the whereabouts of the child’s parents or guardians, their ethnicity, group, colour, sex, language, religion, political or other opinion from a national, social origin or other status. 51 This shows how non-discrimination, while it is explicitly mentioned in article 3, is a principle that permeates through the entire African Children’s Charter. This is supported by literature that looks at non-discrimination as both a substantive right and a principle.52 In addition, there is emphasis on the fact that the principle of non-discrimination applies in all environments where a child is, whether there is armed conflict, tension, strife, refugee settings or in places of peace. 53

3.4 The use of differential treatment

Fourth, a question that comes to the fore is the use of differential treatment or positive discrimination as an approach to non-discrimination.54 The African Children’s Committee uses the spellings ‘deferential’ in the Children of Nubian Descent and Sudanese Nationality, and ‘differential’ in Mauritanian Enslaved Brothers and Tanzanian Girls. For accuracy, the author refers to the term ‘differential’ - and it is acknowledged that they refer to the same thing. The cardinal rule is that a child can be justifiably treated differently from others based on their age, as long as the differentiation is proven to have a legitimate aim, that is, a necessary solution to achieve that aim, and to be proportional to the achievement of the result.55 While the African Children’s Charter does not provide for differential treatment, it allows the African Children’s Committee to draw inspiration from international law on human rights, and other instruments adopted by the United Nations (UN) and by African countries in the field of human rights, and from African values and traditions.56 For instance, the African Children’s Committee recognises that the African Charter on Human and Peoples Rights on the Rights of Women in Africa (African Women’s Protocol) reiterates the principles of non-discrimination and provides for the right to freedom from discrimination based on sex or gender.57 It is argued that if the application of differential treatment is based on the child rights-based approach and the added value that the African Children’s Charter provides, it may be used to increase the application of differential treatment. Although the African Children’s Committee has come through strongly to reiterate other sources of law,58 it is yet to be seen when it will apply the principle of possible differential treatment as a point of departure from a finding of a violation of the principle of non-discrimination.

4.1 Children of Nubian Descent

This was the first communication which was filed in 2009, and the African Children’s Committee handled its decision in 2011 with a finding on the violation of the principle of non-discrimination by Kenya against children of Nubian descent. It was reported that, historically, the Nubians were forcibly conscripted into the colonial British army and upon demobilisation, they were never returned to Sudan.59 Although the British colonial authorities allocated land to Nubians, the post-colonial government of Kenya regarded them as aliens.60 Consequently, the lack of ancestral land in the state party, and the failure to recognise their claim to land was linked to the denial of Kenyan citizenship.61 Consequently, the children of the Nubian community did not have citizenship, and the lack of valid documentation on the part of their parents meant that they could not easily receive the benefits that children with citizenship or legal status in Kenya had.62 This was further complicated by the fact that the children of Nubian descent had no legitimate expectation from the state and would most probably remain stateless.63 The respondent state filed no response to the communication.

In dealing with the issue of non-discrimination, the African Children’s Committee reiterated five critical principles. These principles are discussed below in light of the normative principles and the subsequent three communications on non-discrimination.

First, the African Children’s Committee introduced racial and ethnic discrimination as prohibited and binding as jus cogens under international law.64 While this was a point of departure from the normative underpinnings, it reiterated various principles. The Children’s Committee, by implication, uses international law as the yardstick to place agency on the child as the recipient of the rights and freedoms under the African Children’s Charter, and that discrimination should not be an exception.65 In addition, the African Children’s Committee by implication reiterated that the state is actively involved in identifying children affected by discrimination and is expected to take deliberate steps to remedy the situation.66 Furthermore, the Children’s Committee reiterates the principle that the state is taken to play an active rather than a passive role in how it responds other than failing to act. As such, the failure of the state to address the discrimination against the Nubian children was evidence of the state playing a passive role.67 It was to this end that the African Children’s Committee was not convinced that the state practice that has led children being stateless for long, coupled with the discriminatory treatment, was proportional or necessary.68

Second, the African Children’s Committee introduced the concept of a burden to justify fair or positive discrimination. It stated that where the facts indicate a prima facie case of discrimination, the burden shifts to the state to justify the difference in treatment and how this may amount to fair discrimination.69 This is amplified in the findings where the Children’s Committee confirms that this burden cannot be extinguished when a state (in this case, Kenya) elects not to respond to the allegations levied against it by the complainant. 70

Third, the African Children’s Committee pronounced itself on the application of fair discrimination. It used jurisprudence from the African Commission and underscored three grounds that have to be proved by the state for discriminatory treatment to be justified, namely, ‘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’.

From the above, the valid reasons for discrimination are legitimacy, proportionality and absolute necessity. Interestingly, this is the first communication where the African Children’s Committee refers to fair discrimination and alludes to a ground that could be used to justify it. It is argued that although the Children’s Committee does not refer to the concept as ‘positive discrimination’ or ‘differential treatment’, it ought to be noted that various reasons may justify different outcomes.71 Although positive discrimination occurs where a disadvantaged group gets preferential treatment, the state may legitimately negatively discriminate against groups as well, for instance, through the denial of voting rights to non-citizens.72 While is it not a form of preferential treatment to the vulnerable group as non-citizens, it is a form of legitimate discrimination on the basis of citizenship. From an introspection, it would have been expected that the African Children’s Committee would refer to article 46 (to draw inspiration from other sources of international human rights law and international humanitarian law) but it did not.

Fourth, the African Children’s Committee reiterated the need for the state to take measures to facilitate procedures for the acquisition of nationality for children who would be stateless and not otherwise. This position upheld the principle that measures such as birth registration need to be enforced regardless of the whereabouts of the child’s parents or guardians, their ethnicity, group, colour, sex, language, religion, political or other opinion from a national, social origin or other status is a given.73 Most importantly, the Committee reiterated its broad-based contextual application of the principle that the status of the child is irrelevant and has no bearing on the enjoyment of the rights under the African Children’s Charter.74

Fifth, the African Children’s Committee enunciated a principle to the end that the violation of the principle of non-discrimination may lead to consequential violations of other provisions. It noted that the indivisibility of rights in the African Children’s Charter was underscored by the consequential impact of the denial of nationality to children of Nubian descent by the state. This was evident in the finding that the state had as a consequence violated its obligations under articles 1 (to respect, protect, promote and fulfil its obligations under the African Children’s Charter) and 14 (health).

It is also worth noting that the communication informed the subjective development of the jurisprudence on non-discrimination in the wording of General Comment 5 on state party obligations.75 Some specific aspects of the normative underpinnings did not come through in this communication. Others include the application of the principle of non-discrimination in all environments such as peace, conflict and host communities,76 and the mandate to ensure that all stakeholders (starting with the state) have an obligation to a child in the enjoyment of their rights.77 The author hastens to add that since the facts of the communication did not involve children in spaces of conflict, humanitarian settings, as refugees or internally displaced, it is expected that a communication with such facts will build on this jurisprudence.

Regarding the violation of state obligations under article 1, the applicants never alleged a violation of the said article. The African Children’s Committee only refers to the specific articles that have allegedly been violated by the Kenyan government. These include articles 6(2), (3) and (4); 3; 14(2)(b), (c) and (g); and 11(3) of the African Children’s Charter.

4.2 Mauritanian Enslaved Brothers

This communication was received in 2011 and the decision was handed down in 2017. The brief facts are that two children were born to the Haratine sect, which automatically recognised them as slaves.78 They served in this context to the El Hassine family and their chores involved looking after the family’s heads of camels, and working for the whole week without remuneration.79 The El Hassine family subjected the two boys to corporal punishment and denied them the right to education.80 When the matter was brought before the lower courts, judgment and a fine of $1 500 were handed down by the lower courts. Having been aggrieved by the decision, attempts to appeal were not supported by the state prosecutor.81 After a failure to solve the case at the domestic level, the African Children’s Committee found a violation of the principle of non-discrimination under article 3. Other violations that were found by the Children’s Committee included the best interests of the child; the right to life, survival and development;82 the right to education, leisure, recreation and cultural activities; and protection from economic exploitation.83 In addition, the African Children’s Committee found a violation of protection against harmful cultural and social practices and the prevention of trafficking in and abduction of children.84

Concerning discrimination, the complainants argued that since they were treated differently from children who were not slaves, this was a violation of the principle and right to non-discrimination. As such, the respondent’s failure to prevent and investigate acts of discrimination, and ensuring the punishment of perpetrators with a view of ensuring redress to the victims, amounted to discrimination.85 The complainants further argued that the treatment of the two children and the failure of the government to prevent such treatment and to provide an effective remedy violated their rights to education, survival and development, leisure, recreation, and cultural activities as a result of the discriminatory engagements by the state.86 The respondent state did not specifically address its mind to the issues of discrimination.87 Interestingly, it gave a general approach by the government in ensuring that the rights of the child were not violated, such as a legislative framework that protected children against abuse;88 the development of a plan of action against child labour;89 the enrolment of the children in school;90 and the prosecution of the perpetrators.91

In the evaluation of the violation of the principle of non-discrimination, the African Children’s Committee showcased three points in its approach in this communication. First, it reiterated that for a state to justify the use of differential treatment, three aspects should exist, namely, ‘a legitimate state interest, limitations that are proportionate with, and necessary for the advantages for which they are obtained’.92 It should be stated that this approach maintained consistency by the African Children’s Committee in referring to its earlier jurisprudence on differential treatment.93 Second, the Children’s Committee relied on persuasive jurisprudence as referred to in article 46, such as communications from the African Commission and the Inter-American Commission.94

Third, and closely linked to the foregoing position, the African Children’s Committee used the extent to which a state upholds its legal responsibilities. With an emphasis on the acts of discrimination by private individuals, the Children’s Committee recalled that the state has the duty to protect children from discrimination by taking preventive measures against violations by private individuals and providing remedial actions to correct the violations.95 The cumulative effect of the second and third pointers was the application of the due diligence principle that requires the state to take steps to prevent and investigate human rights violations, impose the appropriate punishment and ensure adequate compensation.96 The introduction of the due diligence principle is a reiteration of the agency on the child to have entitlements to rights and freedoms under the African Children’s Charter.97 In addition, the use of the due diligence principle is a clarion call that the state has to actively identify individual children and groups of children (slaves in this communication) whose recognition and subsequent realisation of their rights require special measures.98 By implication, it is correct to assert that the state fails to be actively involved in the engagement of the non-discrimination discourse.99 To this end, the state is not committed to ensuring non-discrimination against the children who are slaves.100 Closely related to the above, the failure by the state to support the two minors by integrating them into their society is a failure to show commitment and a lack of the use of equitable treatment measures to mitigate the effects of discrimination by the state (as a duty bearer) and different stakeholders.101

Regarding the violation of state obligations under article 1, the applicants expressly alleged a violation of the said article in relation to other articles such as articles 3, 4, 5, 11, 12, 16 and 29. The African Children’s Committee finds a violation of article 1 and other provisions of the African Children’s Charter. This indicates that the African Children’s Committee will find a violation of an article when it is expressly pleaded by the applicant.

4.3 Cameroonian Child Rape

This was the third communication to be decided concerning non-discrimination. It was received in 2015 and decided in 2018. The complainants claimed violations of articles 1, 2, 5, 7 and 17 of the African Children’s Charter by the respondent state. These articles related to state party obligations; the definition of a child; the right to life, survival and development; freedom of expression; and protection against child abuse and torture.102 The facts alleged showed that the victim had been raped by an important individual in the community on three occasions.103 Attempts to have justice were delayed by the police and, as a result, the Court dismissed the case.104 When the complainant’s mother went to a local radio station to express her dissatisfaction with the outcome of the case, she was charged with judicial defamation.105

The African Children’s Committee reiterated the agency on the child even in instances where the applicant’s assertions in the complaint do not point to the violation. In this regard, it stated:106

Article 3 of the Charter stipulates that all children are entitled to the enjoyment of the rights provided therein irrespective of all grounds including sex. This provision is clear that any form of gender based discrimination against girls is prohibited, however, it does not vividly portray that sexual violence is a form of gender based discrimination as argued by the applicants.

This position reiterates that non-discrimination should be looked at in a wider perspective which inculcates all grounds that would show discriminatory acts, and that their status is irrelevant in qualifying the existence of discrimination. In addition, any form of discrimination should not be encouraged but rather prohibited. Finally, despite the failure to articulate the form of discrimination, the African Children’s Committee would go ahead to read in the violation in light of its evaluation of the facts before it.

The African Children’s Committee reiterated the active role of the state in identifying vulnerable children and taking steps to remedy their situations. To this end, it used a two-step approach by, first, applying article 46 of the African Children’s Charter to draw inspiration from other sources of human rights law. This was informed by the jurisprudence of the Inter-American Commission of Human Rights,107 the African Commission108 and the European Court of Human Rights and Fundamental Freedoms.109 Second, the African Children’s Committee relied on the jurisprudence of the CEDAW Committee and applied the principle of due diligence,110 with the aid of X and Y v Georgia from the CEDAW Committee, where it was held that there is a violation of the principle of non-discrimination where the respondent state fails to take legislative measures to protect the victim from domestic violence. The CEDAW Committee reiterated that even where the state was not directly responsible for the violation of the principle of non-discrimination, it was important that the failure to exercise due diligence to investigate and prosecute the perpetrators of the crime made it accountable under international law.111 As such, the African Children’s Committee found that the sexual abuse committed against the child disabled her from enjoying the protection under the African Children’s Charter.112 It also added that although the discriminatory act had not been perpetrated by state actors, the state has failed to deliver its obligation to protect the child as far as it failed to investigate the alleged violation.113

Regarding the violation of state obligations under article 1, the applicants expressly alleged a violation of the said article in addition to violations of articles 3 and 16. The African Children’s Committee found the respondent state in violation of its obligations under article 1 (obligation of state parties); article 3 (non-discrimination); and article 16 (protection against child abuse and torture) of the African Children’s Charter. This still points to the finding of violations with respect to provisions that have been pleaded by the applicant.

4.4 Sudanese Nationality

In Sudanese Nationality, parents who were from areas that were now gazetted to South Sudan wanted to maintain their nationality with Sudan. They were not considered nationals of Sudan and, as a consequence, the children were also denied nationality. The main issue was whether the violation of the principle of non-discrimination led to the violation of the right to acquire nationality.114 The African Children’s Committee held the view that the enjoyment of the right to non-discrimination was not a condition after a balancing act before it was applied.115 Consequently, the Committee correctly stated that the right cannot be denied in disregard of the principles that govern non-discrimination as provided for in article 3 of the African Children’s Charter.116

The African Children’s Committee adopted a conceptual approach requiring that the state party should not use discriminatory regulations on different groups of a population in the grant of nationality.117 It found that, as such, the law of the Sudan on the acquisition of nationality was discriminatory since it allowed fathers (excluding the mothers) of Sudanese children to automatically confer nationality on their children.118 In addition, the African Children’s Committee expounded on the use of reciprocity and retaliation. This was based on the fact that a similar law was applied by South Sudan to deny nationality to children from Sudan.119 The African Children’s Committee stated that the respondents’ attempt to use reciprocity and retaliation was not applicable in areas of human rights, but in other areas such as trade, intellectual property and technology transfer.120 This was an important assertion in terms of qualifying retaliation and reciprocity regarding the application of the principle of non-discrimination.121 This meant that the status of the child was irrelevant and had no bearing on the enjoyment of the rights under the African Children’s Charter.122

The African Children’s Committee departed from the literal approach that looked at non-discrimination as a principle and not a right in Children of Nubian Descent and took on a conceptual approach that establishes a link between the principle of non-discrimination and the right to acquire nationality.123 This approach creates an interesting pattern upon which the African Children’s Committee builds to develop its jurisprudence. First, it refers to non-discrimination as both a principle and as a right - an inherent entity of which the state cannot deprive a child.124 This approach adds value to the placement of a contextual agency on the child to have entitlements to rights and freedoms under the African Children’s Charter.125

Second, it states that the enjoyment of the right to non-discrimination is not subject to a balancing act for the principle to be applied.126 Consequently, the African Children’s Committee correctly stated that the right cannot be denied in disregard of the principles that govern non-discrimination as provided for in article 3 of the African Children’s Charter.127 This means that the state cannot use the principle of non-discrimination to violate the rights of a child.

Third, the African Children’s Committee shared the view that in the context of nationality and non-discrimination, the ‘link between the prohibition of discrimination and the right to nationality emanates from the very meaning and benefit of nationality’.128 As such, it advises that the benefits that an individual has with a nation as a result of a social and legal bond ought to flow to the children without the application of arbitrary and discriminatory laws.129 It is argued that this is in line with the principle that the status of the child is irrelevant and does not have any bearing on the enjoyment of the rights under the African Children’s Charter.130 The point of departure is that the African Children’s Committee uses a conceptual approach to apply its broad-based contextual application.

Fourth, using the conceptual approach, the African Children’s Committee then decided the allegation of the violation of article 3 by answering two questions: (i) whether Sudan’s nationality laws have discriminatory provisions on the acquisition of nationality; and (ii) whether Sudan’s nationality laws have discriminatory provisions on the deprivation of nationality. In answering question 1, the African Children’s Committee uses a dual approach where it first relies on its jurisprudence in General Comment 2 and Children of Nubian Descent to explain the link between the principle of non-discrimination and the acquisition of nationality.131 Second, it refers to persuasive jurisprudence from other human rights monitoring bodies on the international and national scene. For instance, there is a reference to the Expelled Dominicans and Haitians v the Dominican Republic of the Inter-American Commission, the Convention on the Elimination of all Forms of Discrimination Against Women, and the Namibian High Court case of Unity Dow. The common denominator granulated from all these decisions is the need for mechanisms at the state level to avoid the use of discriminatory regulatory regulations or processes on different groups of a population in granting nationality.132 This dual approach leads to the recommendation that the Sudanese law on the acquisition of nationality is discriminatory as far as it allows fathers of Sudanese children to automatically confer nationality on their children other than mothers.133

Regarding question 2, the African Children’s Committee conceptualises the arbitrary deprivation of nationality as a possible violation of the principle of non-discrimination.134 It does this in four ways: first, it qualifies the extent to which a state may use sovereignty to decide to confer, withdraw or regulate the nationality of an individual.135 It argues that the arbitrary deprivation of nationality is a limit to the sovereignty of states. As such, state sovereignty is not a magic wand at the beckon of states to arbitrarily deny an individual of their nationality.136 This pronouncement by the African Children’s Committee creates a basis to place an agency on the child in light of the enjoyment of the various rights and freedoms under the African Children’s Charter.137

Second, the African Children’s Committee still reiterates the use of persuasive jurisprudence from other human rights monitoring mechanisms to adopt a definition of ‘arbitrariness’. To this, a General Comment of the Human Rights Committee138 and the case of Girls Yean and Bosico v Dominican Republic139 are used to state that if a state uses discrimination to deprive one of his nationality, arbitrariness is rendered present.140 This position by the African Children’s Committee adds value to the positioning of the state as an active player in the engagement of the non-discrimination discourse by relating to good practices when it visits countries on field missions.141 The pronouncement calls for the state to go beyond a commitment to actual deliberate steps in ensuring that there is no arbitrariness in handling matters of nationality.142 It is desirable that where the African Children’s Committee uses persuasive jurisprudence, article 46 is unpacked and qualified to the bounds of its use (just as it did in this communication).

Third, the African Children’s Committee undertakes a value analysis of the provisions of the state’s laws in comparison with the position of the African Children’s Charter. This is evident in the analysis of the laws that govern the conferment, withdrawal and regulation of nationality in Sudan.143 This analysis fell within the bounds of violation of the principle of non-discrimination as the African Children’s Committee related the non-willingness of the respondent state to confer nationality on the complainants.144 By implication, the African Children’s Committee reiterated the position that the state retains the obligation to actively identify individual children (born of South Sudanese parents) and groups of children whose recognition and subsequent realisation of their rights require special measures (such as of children of South Sudanese mothers whose fathers’ nationality was revoked).145

Fourth, and as a consequence, the African Children’s Committee addressed the question of the place of the use of reciprocity and retaliation. It noted that the respondent state reiterated its position because of a similar law that was being applied by South Sudan.146 Using a hypothetical, the African Children’s Committee stated that where state Y is violating its child rights obligations concerning children who are nationals of state X, the latter should reciprocate to the former. It correctly stated that while the principles of reciprocity and retaliation may operate in areas of the law such as trade, intellectual property and technology transfer, they do not extend to human rights obligations. 147 This was an important assertion in terms of qualifying retaliation and reciprocity regarding the application of the principle of non-discrimination. 148 It may be argued that this communication calls for legislative and administrative measures to address the challenges that children of South Sudanese parents (especially South Sudanese mothers, where the fathers do not have Sudanese nationality). This requires the need for the use of equitable rather than equal treatment in the use of special measures to mitigate the effects of discrimination. 149 The African Children’s Committee takes a stance on deferential treatment as a result of the application of the Sudan Nationality Act as a position that is against the object and purpose of the principle of non-discrimination in the African Children’s Charter. There is a clear reiteration that the status of the child is irrelevant and has no bearing on the enjoyment of the rights under the African Children’s Charter. 150

Regarding the violation of state obligations under article 1, the applicants never alleged a violation of the said article. It is interesting to note that the African Children’s Committee does not expressly state so as well. It rather states that it finds the respondent state in violation of its obligations under article 3 on non-discrimination, articles 6(3) and (4) on the right to nationality and prevention of statelessness, and article 11 on education. From the tenor of the African Children’s Committee, it reads a violation of article 1 of the African Children’s Charter.

4.5 Tanzanian Girls

The uncontested facts by the complainants that show discrimination indicate that, first, the primary and secondary schoolgoing girls were subjected to forced pregnancy testing and expulsion from schools.151 Second, the statistics showed a disturbing trend in the numbers of girls that dropped out of school due to pregnancy, with over 55 000 female students between 2003 and 2011, and 2 433 girls in primary and 4 705 in secondary schools in 2012.152 Third, the practice of forced pregnancy testing was done on girls as young as 11 years and it was not done according to the standard procedures.153 In addition, the results of the testing were not communicated to the students but shared with the school staff - a position that led to an alleged violation of their privacy, and exacerbated the stigma.154

It suffices to note that the practice was neither prescribed by the Education Regulations nor included as a ground for expulsion in the Education (Expulsion and Exclusion from School) Regulation of 2002.155 It was further contended that since the expulsion of the girls was a universal practice in public schools in Tanzania, the girls who discovered that they were pregnant dropped out of school to escape the humiliation and stigma.156 There was no exception in the application of the expulsion and exclusion even in instances where the pregnancy was due to sexual abuse or incest.157 Married girls are not allowed to register or to remain in school under the Education (Imposition of Penalties to Persons Who Marry or Impregnate a School Girl) Rules of 2003.158 It was also noted that expulsion and exclusion is a permanent measure that disallows girls from readmission into public schools, not to mention the subjection of girls to unlawful detention and/or harassment by the investigating officers.159 The respondent state did not contest the facts but argued that it retained the margin of appreciation regarding the circumstances in the provision of the right to education and, as such, had the prerogative to limit the rights of the girls to education if it aimed to achieve a given result. 160

The African Children’s Committee laboured to contextualise differential treatment as one of the complementary elements of the right (not the principle) to non-discrimination.161 It is necessary to differentiate because the African Children’s Committee clarifies that non-discrimination may pass as a principle, as a right or as both. It identified three complementary elements to non-discrimination as differential treatment, interference and rights and freedoms in the African Children’s Charter.162 With the aid of textbooks, the African Children’s Committee upheld the persuasion that these three elements inform the application of the rights under the African Children’s Charter and CRC.163 It also reiterated the grounds for differential treatment to be (i) reasonability; (ii) objectivity; and (iii) to achieve a legitimate purpose.164 This position embraces the earlier stance in Children of Nubian Descent where the state bears the burden to justify the difference in treatment and how this may amount to fair discrimination.165 Another important aspect that the African Children’s Committee noted was that the right to non-discrimination was absolute and not bound by a balancing test.166 This is a reiteration of its position in Sudanese Nationality.167 Interestingly, the African Children’s Committee qualified the use of necessity as a defence for the state in the application of differential treatment. It stated that a restriction on a right is necessary if there is no other alternative to achieve the intended objective.168

Regarding the expulsion of pregnant girls from school, the African Children’s Committee stated that the act of the respondent state in the expulsion of pregnant girls from school perpetuated negative and discriminatory attitudes which, in turn, led to child marriage and teenage pregnancy.169 It is argued that by implication the African Children’s Committee states that an act of a state party that perpetuates negative and discriminatory attitudes and tendencies is a violation of its obligations under the African Children’s Charter. It is to this end that the African Children’s Committee found that the state’s perpetuation of the expulsion of pregnant girls with no re-entry, forced pregnancy testing, detention of pregnant girls, and the affected girls’ socio-economic status not only amounted to a violation of the provisions of the African Children’s Charter, such as the rights to health and education, other than article 3.

Some pointers are discernible when one compares and contrasts the principles in part 3 above and this communication. First, the African Children’s Committee reiterates the agency on the child to have entitlements to rights and freedoms under the African Children’s Charter.170 It calls upon the state to actively identify the individual children and groups of children, not for purposes of punishment but for their recognition and subsequent realisation that their rights require special measures.171 It may be argued that the act of the state in perpetuating the vice of forced pregnancy testing eludes its role as an active player in the engagement of the non-discrimination discourse.172 Other than generalising these to more general principles, it is argued that the communications offer interpretation from a jurisprudential perspective to understanding normative elements of non-discrimi-nation. These jurisprudential developments should then be incorporated into the broader understanding of the principle of non-discrimination.

Regarding the violation of state obligations under article 1, the articles that the applicants expressly alleged violations of were the only ones that formed the finding by the Committee. The African Children’s Committee found a violation of its obligations under article 1 (obligation of state parties); article 3 (non-discrimination); article 4 (best interests of the child); article 10 (protection of privacy); article 11 (education); article 14 (health and healthcare services); article 16 (protection against child abuse and torture); and article 21 (protection against harmful social and cultural practices).

5.1 Agency on the child

As a matter of principle, all five communications reiterate the normative foundations of attaching an agency to the child as the recipient of the rights and freedoms under the African Children’s Charter, and that discrimination should not be an exception. The difference is in the departure from a literal approach in Children of Nubian Descent and Cameroonian Child Rape to a conceptual stance in Sudanese Nationality and Mauritanian Enslaved Brothers, and a contextual approach in Tanzanian Girls. The literal approach in Children of Nubian Descent is in reference to the interpretation of article 3 in light of the facts in the communication without labouring to develop jurisprudence at this stage. This is understandable as this was the first decision of the African Children’s Committee. For instance, the findings on ethnic and racial discrimination as prohibitions under international law reflect this position. The conceptual stance was applied in Sudanese Nationality as regards the qualification of non-discrimination as both a principle and as a right. The due diligence principle was also applied in Mauritanian Enslaved Brothers. As a right, the qualification would be in the use of the obligation of result as the litmus test to establish the extent to which the state had upheld its obligations under the African Children’s Charter. The contextual approach Tanzanian Girls shows the steps taken by the African Children’s Committee to contextualise known elements of the principle of non-discrimination in international law. While the conceptual was greatly tilted to the factual elements of the communications, the contextual approach finds its positioning in the use of legal principles that would be used to align the understanding of the principles of non-discrimination for a legislative setting; the unpacking of the principles of the right to non-discrimination, the use of differential treatment, and the centrality of the child in answering the African child question.

5.2 Obligation on the state as an active (rather than a passive) player

In addition, the African Children’s Committee reminds state parties to remain active rather than passive players in the engagement of the non-discrimination discourse. It should be noted that in all five communications, the African Children’s Committee does not expressly state that states should be active players. Rather, the call is implied across the five communications. It is discernible that the African Children’s Committee’s wording in all five communications is suggestive of the fact that (i) the failure to take steps to correct the violations;175 (ii) the application of a discriminatory law;176 (iii) the failure to exercise due diligence;177 and (iv) the perpetuation of discriminatory practices (that may lead to unfortunate lived realities for children),178 makes the state a passive other than an active player. The African Children’s Committee should impress this obligation on states and also call on other stakeholders to be accountable in their activities. For instance, civil society and national human rights institutions are critical stakeholders in ensuring that states are accountable for steps taken to ensure the implementation of the African Children’s Charter.

5.3 Differential treatment as positive discrimination

The African Children’s Committee has taken strides to develop its jurisprudence on the use of differential treatment. This concept is considered in all five communications. In Children of Nubian Descent the African Children’s Committee acknowledged that for differential treatment to be justified, the state ought to explain the use of grounds of legitimacy, proportionality and absolute necessity. In Sudanese Nationality it evaluates the three grounds with the state’s application of the Nationality Act. In Mauritanian Enslaved Brothers the African Children’s Committee reiterates the three grounds enunciated in Children of Nubian Descent.179 In Tanzanian Girls the African Children’s Committee contextualises three elements of differential treatment, interference, and rights as the complementary elements of the right to non-discrimination.180

Second, the African Children’s Committee introduced the concept of a burden to justify fair or differential treatment as a preserve of the state - if differential treatment is to be used. It stated that where the facts before the African Children’s Committee indicate a prima facie case of discrimination, the burden shifts to the state to justify the difference in treatment and how this may amount to fair discrimination.181 This position is reiterated in Tanzanian Girls.182 The placement of the burden on the state is important in ensuring that the duty bearers do not abuse the principles governing non-discrimination. Without prejudice to the foregoing, an actual engagement of the grounds for differential treatment should be deliberately subjected to facts to ensure that an informed application of the principle is used.

5.4 Use of inspiration from other sources under article 46

What is interesting to note, in all the communications, is that the African Children’s Committee refers to persuasive jurisprudence. The point of departure is the reference to textbooks and commentaries as persuasive jurisprudence. A reading of article 46 of the African Children’s Charter does not expressly point to the use of textbooks as persuasive jurisprudence. Rather, it refers to the use of inspiration from international human rights law as provided for specifically in (i) the African Charter; (ii) the then Charter of the OAU (now the Constitutive Act of the African Union); (iii) the Universal Declaration; and (iv) CRC. On a general front, persuasive jurisprudence may be obtained from other instruments adopted by the UN and by African countries in the field of human rights, and African values and traditions.183 The author argues that any materials other than the specific and general sources in article 46 should include international human rights law or African values and customs. The African Children’s Committee should prepare a guiding note or a document on the application of article 46. As of now, it is rarely placed in context, let alone mentioned in the communi-cations. A conceptual or contextual appreciation of the application of article 46 is instructive in its application.

5.6 Non-discrimination: principle, right or both?

The African Children’s Committee envisages an important approach to non-discrimination. While it refers to the same as one of the cardinal four principles that inform the child rights-based approach, it also refers to the same as a right. For instance, it should be recalled that in Children of Nubian Descent, non-discrimination is approached as a principle. In Sudanese Nationality, the African Children’s Committee interchangeably refers to non-discrimination as a right and a principle. This approach introduces a triple obligation on the state to, first, ensure that the child is not deprived of their inherent entity, on the one hand,184 and, second, to use the right to non-discrimination as a basis for the enjoyment of the right to nationality; third, to uphold the place of the principle of non-discrimination as one that is not subject to a balancing act.185 It is acknowledged that the reference to the principle as a right is not fatal in implementing the rights of the child. In domestic circles, the right to non-discrimination is often tagged with the right to equality.186 However, there is a lack of clarity on whether the reference to non-discrimination as a right or a principle, by design, is default or chance. For the sake of jurisprudential development, this kind of application requires thinking through the approach used.

5.7 Reciprocity and retaliation as non-qualifiers to the application of the principle of non-discrimination

The African Children’s Committee pronounced itself on specific principles that may apply in international law, in bilateral treaties, but not in instances where human rights are at stake. To this end, as such, while the principles of reciprocity and retaliation may operate in areas of the law such as trade, intellectual property and technology transfer, they do not extend to human rights obligations.187 As noted earlier, this stance by the African Children’s Committee lays to rest the use of the foregoing principles in qualifying the application of the principle of non-discrimination.188 There is a need for the Children’s Committee to deliberately call on state parties to use its other mechanisms, such as the communications procedure and state party reporting, to ensure that there is a move for universal harmonisation of domestic laws with the provisions of the African Children’s Charter.189

5.8 Use of due diligence

The African Children’s Committee introduces the principles of due diligence in the and Tanzanian Girls communications. Although the principle helps in the need for states to interpret and implement their obligations from the perspective of result, the principle points to the need for the former to use the principle to actively identify individual children and groups of children whose recognition and subsequent realisation of their rights require special measures.190 It is also clear that the active identification of individuals and groups of children should not be for punishment but for recognition and realisation of their rights and the required special measures.191 The African Children’s Committee should not waiver in its commitment to advise state parties in the use of due diligence as far as they should evaluate their obligation based on the result of measures used to address the violations of the rights of the child.192 In addition, the development of jurisprudence on the grant of compensation for both pecuniary and non-pecuniary loss should be developed. A tabulated annex is hereby attached at the end of the contribution.

ANNEX

Tabulated engagement of the principle of non-discrimination

Key