Andr” Viviers gave a paper at the Nuffield Free State Faculty of Law Conference on Human Rights on 11 April 2001
I want to start with a quote from Daniel Goleman:
"It is the paradox of our time that those with power are too comfortable to notice the pain of those who suffer, and those who suffer have no power".
Though my focus will be on the enforcement of children's rights in South Africa, certain aspects may just as well apply to all people in South Africa. I am also going to try to focus rather on some practical matters, rather than purely on the theory that underpins the enforcement of human rights.
The basis of human rights in our country, and thus also children's rights, is laid down in the South African Constitution, which is complemented by other international treaties on child rights which the SA Government has ratified, such as the United Nations Convention on the Rights of the Child and the OAU Charter on the Rights and Welfare of the African Child.
An approach to the implementation of child
To start, I would like to add to the many existing definitions, a simplistic description that human rights are generally those basic standards without which people cannot live in dignity.
It should also be understood that all human rights apply equally to children as they do to adults, but that additional rights are afforded to children through the above conventions and various other international instruments.
We understand that the State has the legal and moral obligation and accountability with regard to the meeting of basic needs of its people and the upholding of their rights. In other words, the state is the primary duty bearer in the implementation of rights. The state has a duty to act in the best interest of children when allocating resources available in society, no matter how small the amounts. More, children are subjects of rights or rights holders and not objects of charity. Such a view facilitates the process whereby children, within the context of their evolving capacities, participate in matters and decisions that concern them and affect their lives.
One of the first steps in implementing rights is to create an awareness of rights and how they apply to each individual in a country. This is usually achieved through information and awareness campaigns which are important tools in making sure that all citizens know and understand their rights.
This coincides with the processes of capacity building and training to ensure that the duty bearers understand how rights apply and should be safeguarded. We need to create and increase the capacity of duty bearers to integrate a human rights based approach in their daily work. This component is often much neglected, and the idea that this capacity in people will be learned through "osmosis" is not working, and we thus failing rights holders in a democratic society. Capacity building of duty bearers should not only include the transfer of knowledge and skill, but should also, and most prominently, focus on the development of attitudes towards a human rights/child rights culture.
Advocacy is another component of human rights implementation and usually focuses on specific issues, for example the current strong lobby on the availability of antiviral drugs for the prevention of HIV transmission of mothers to children during birth.
The monitoring of the implementation of rights is critical. This needs to happen internally, e.g. when government assesses its own progress in implementing rights. Understandably, this kind of monitoring is subjective and usually focus on what has been achieved, rather than on what has not been achieved. External monitoring, done by NGOs as well as the international community such as the United Nations and the OAU, complements this.
Responding to violations of the rights of children is central in the process of enforcement of rights “remembering that not informing people of their rights is as serious as a blatant violation of rights.
It is critical that the state works towards the implementation of the rights of children in a manner that makes a difference to every child. A child in the most remote rural village should experience that he/she is a right holder. This means going beyond the state merely ratifying international treaties and developing legislation, and being responsible for putting resources in place that will ensure the implementation of the rights of children.
It is relatively easy for the government to implement Civil and Political Rights (so-called “first generation rights–) where there are, in principle, no additional costs beyond changing laws and approaches to ensure that the rights themselves are respected, for example, in non-discrimination, criminal justice, participation, etc. The blockage seems to be with the implementation or progressive realisation of Economic, Social and Cultural Rights (so-called “second generation–) rights, as the implementaton of these will inevitably have associated costs, for example, health, housing and education rights.
In terms of the latter, it is important that the government ratifies the Convenant of Social, Economic and Cultural Rights as this gives an obligatory effect towards the progressive realisation of rights contained in conventions ratified by a country, particularly socio-economic rights, which require resources for implementation. There are also guidelines and principles in place such as the Limburg Principles (1986) and the Maastricht Guidelines on the Violations of Economic, Social and Cultural Rights (1997), which provide direction to state parties in obligations towards the progressive realisation of human rights. Thus, deliberate and direct efforts are required from states parties to direct resources towards the realisation of rights.
The South African Constitution sets out certain institutions that should be created for the support of Constitutional Democracy, which include:
The Public protector
The Human Rights Commission
The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.
The Commission on Gender Equality
The Auditor General
The Electoral Commission
The Independent Authority to Regulate Broadcasting
In addition, the Independent Complaints Directorate, Office on the Status of Disabled Persons, and Office on the Rights of the Child have also been introduced in the governance structures.
Responding to violations
As I have indicated earlier, responding to violations of rights is an important aspect in the enforcement of rights. The structure best known to us in dealing with this as part of their duties, is the SA Human Rights Commission. I want to salute this Commission for the work that they have done thus far and their vivid attempts and actions towards the protection of rights, as well as for setting up a focal point for children within the commission. I am, however, concerned that such a body remains, in my opinion, grossly under resourced, so that they are not able (as they would have liked) to respond to all rights violations.
Through involvement in the child rights arena I have seen that effective mechanisms for responding to and monitoring rights violations are limited. A situation is created where children have rights, but when these are violated, very little, if anything, can be done about it. In most cases it is the NGOs and legal institutes at academic institutions that take the lead in such cases, and their contribution has been extremely valuable.
My concern is that, if we cannot adequately and appropriately respond to the violation of rights, we are limited in our enforcement of rights. This creates the impression amongst rights holders that violations are not taken seriously and are not responded to.
This requires of all of us who are serious about the implementation of rights, that we work in our daily practice towards a position where all people, and not only the privileged few, benefit from having rights. We should work towards building mechanisms and networks to promote and monitor implementation and to respond to rights violations. This is part of our culture of accountability -- both of civil society, and of the state which has its own particular obligations as a rights duty bearer.