HIV/AIDS is a humanitarian crisis in many parts of the world, the most globalised epidemic in history. It is also a social, developmental and public health crisis displaying complex psychological, biological and sociological factors that put children at high risk. Whereas at first it was thought that children were little affected by HIV/AIDS, it is now recognised that children are at the heart of the crisis with the majority of new infections impacting on children of all ages (Sloth-Nielson 2005, p.73). HIV/AIDS is creating new complications for the realization of children’s rights and failure to ensure children’s rights creates occasion for HIV infection. Progress in the realization of children’s rights on a universal and regional scale is necessary to stem the growth of the HIV/AIDS global pandemic and local epidemics. This essay compares the United Nations Convention on the Rights of the Child (UNCRC or UN Convention) and the African Charter on the Rights and Welfare of the Child (ACRWC or African Charter) vis-à-vis HIV/AIDS and discusses what is accomplished through the evolution of a regional framework for the rights of children following the development and implementation of a universal standard. Perspectives on children’s rights are complex and often controversial given the plurality of childhood and the many different cultural contexts of the lives of children. Therefore the paper will also examine the presence of two strange bedfellows within international conventions of children’s rights: universalism and cultural relativism.
History penned down meaningful changes in the scope of the fate of children during the Twentieth Century; the rights of children were characterized by a paradigm shift on how concerns affecting children were advanced and acted upon from needs to rights, charity to obligation and sympathy to duty. The development of the UN Convention can be charted back to the formation of the United Nations (UN) following the Second World War (WWII). The fate of children in times of war has provoked spontaneous movements of sympathy for their rights, across borders and enemy lines (Marshall, 2002, p.196). Societal changes brought on new ideological and political ideas - democratic and socialist - raising the price of human life, bringing effort through intervention of neutral parties (Black 1996A, p.19).
Economical and technological progress after WWII and the Great Depression highlighted co-operation amongst individuals, families, groups, within and eventually also between nations (Black 1996A, p.15-16). The UN International Children’s Emergency Fund (UNICEF) was established by resolution of the UN General Assembly in 1946 (Black 1996A, p.15). UNICEF faced a mammoth mission focussing initially on developed states to aid in recovering and restoring the shattered lives of children in the devastating aftermath of WWII. The organisation expanded their role and also brought and continues to bring relief to the uneducated, hungry, unhealthy, ill and dying children of the poorer developing nations.
The International Year of the Child in 1979 represent a turning point in the history of children’s rights when children were rediscovered as a special group, paving the way for the UN Convention (Black, 1996B, p.13). The UN Convention adopted in 1989 and enforced in 1990, became the first legally binding international instrument to incorporate the full range of universal human rights: civil, cultural, economic, political and social. It has since achieved near-universal ratification with only the United States and Somalia yet to ratify (Harris-Short, 2003, p.130). The adoption of the UN Convention signalled the beginning of an era of concrete efforts by nations to give legal recognition and protection to the rights of children.
Central to the understanding of the application of human rights to policies and practice are universalism and cultural relativism. The need for universalism was highlighted after Germany showed the world just how destructive an individual culture could become; however cultural relativism scaffolds the fluidity of ever evolving culture and furthermore came to the forefront as a counter to colonialism. Cultures do not readily accept the imposition of a universal right when that right clashes with individual viewpoints (Reichert 2006, p.24, 26 & 29). The founding principle of the UN Convention embraces universalism and African member-states recognised that important socio-cultural and economic realities of the African experience were overlooked (Olowu 2002, p.128). Shortly after enforcement of the UN Convention, the African Charter was adopted by the Assembly of Heads of State and Government of the Organisation of African Unity in 1990, however was only brought into force nearly 10 years later in 1999 (Olowu 2002, p.127). Human rights can be neither universal in totality nor rest on the theories of cultural relativism completely but represent a fine balance of both theories riding a double edged sword. What then are the expectations of the African Charter over the UN Convention especially since they are “silent on the issue of HIV/AIDS directly” due to both being formulated before the full impact of the pandemic on the lives of children were recognised (Sloth-Nielson 2005, p.73)?
Core principles of the UN Convention and the African Charter both support non-discrimination (UNCRC article 2 & ACRWC article 3); the right to have the child’s best interests taken into account (UNCRC article 3 & ACRWC article 4); the right to life, survival, development and progress of the child (UNCRC article 6 & ACRWC article 5); and child participation & freedom of speech (UNCRC article 12 & ACRWC article 7) (UN Convention on the Rights of the Child 1989; African Charter on the Rights and Welfare of the Child 2009). In addition to the core principles, a series of other rights affected by HIV/AIDS are the right to special protection and assistance by the state (UNCRC article 20); the right to health (UNCRC article 24); and the right to preventive health care, sex education and family planning education and services (UNCRC article 24(f)) (UN Convention on the Rights of the Child 1989). What is in the best interest of the child in the HIV/AIDS environment? HIV/AIDS represents a silent demographic shift that is weakening and compromising the position of African children, rendering them vulnerable through the loss of parental and primary caregivers. Cry, the beloved children.
HIV/AIDS provides an example of the way in which the UN Convention enables a shift from a biomedical approach to an understanding (and response to) social, cultural and economic determinants of risk and survival (McMillan 2009, p.71). This compares with the African Charter whose obligations apply uniformly to economic, social and cultural rights (Chirwa, 2002 p.157). The African Charter however holds an edge by adopting a more holistic approach, giving equal importance to social and political rights opposed to the more ideological standpoint of the UN Convention. The African Charter gives prominence to customs and traditions that is inconsistent with the rights, duties and obligations contained in the UN Convention. Whilst both define the child as a person under the age of eighteen years, the African Charter makes provision to accommodate laws under which a child might attain majority at an earlier age. This is of great importance within the HIV/AIDS environment that demands economical, legal and social security for AIDS orphans living in child-headed households. Child participation entails that children are rightful contributors within children’s rights discourse, policy formation (Grover 2004, p.81) and economics (Liebel 2003, p.265, Levison, 2000, p.125). Economists however, persist in portraying children as powerless (Levison 2000, p.126), a portrayal which is being challenged by the HIV/AIDS crisis. For many children, working is essential for their survival (Woodhead 1999, p.27, Raffaelli 2001, p. 396). Liebel is adamant that working and caring HIV/AIDS orphans view themselves as “successful survivors” opposed to “beings in lack” (2003, p.277). Working children in Africa enjoy rights, preserve judgment and are granted responsibilities within the framework of the African Charter, which are unrecognised by the West and the UN Convention.
Discrimination against children living with HIV/AIDS and AIDS orphans is rife among the nations of Africa. The African Charter provides for special protection of children living under various forms of discrimination and according to Chirwa finds no comparison in any other human rights instrument including the UN Convention (2002, p.159). Whilst the clause originated in response to Apartheid in South Africa, it is now equally applicable to HIV/AIDS. The UN Convention takes the lead over the African Charter by including disability as a ground for discrimination. Neither however, provide for the right to equality before the law, weakening the idea of child equality and child as active agent as defined by the new sociology of childhood. Whilst the right to have the child’s best interests taken into account is “the” primary consideration within the African Charter, it is only “a” consideration within the UN Convention.
The adoption of the African Charter paves the way for the development of similar conventions in other parts of the world, showcasing that the UNCRC does not have the final word on the protection of children. The African Charter merits the preservation of local and regional morals, traditional values, safeguarding regional unity and territorial integrity. Whilst the UN Convention is instrumental in recognising preconditions for reducing vulnerability in pandemics such as HIV/AIDS, and acts on social issues that influence and constrain individual independence, decision-making and behaviour, it has to be recognised that universal frameworks for the rights of the child should not be established without the input of regional conventions such as the African Charter.