(2008) JLP 58: 33-67
This article tries to escape orthodox analysis of children’s rights analysis by engaging in a grounded examination of the core principles of Africa’s core document on children’s rights, the African Charter on the Rights and Welfare of the Child. There are four cross-cutting principles that may be thought of as underpinning the entire instrument. These are: the rule against discrimination; the ‘best interests’ rule; the rule promoting the child’s survival and development; and the rule requiring the child’s participation. The paper attempts to present a picture of these principles in action in the lives of the children and adults in areas of Southern Malawi where fieldwork was conducted among predominantly Lomwe people.
It is found that narratives that support non-discrimination perspectives are not only based on children’s rights discourse but also on an eclectic mix of cultural, religious and spiritual arguments. Non-discrimination perspectives are not the preserve of human rights advocates alone but also that of ordinary people who claim no special knowledge of children’s rights. Attempts to analyse the ‘best interests’ principle encounter theoretical problems and difficulties of translation into the vernacular languages. It is found that, while there is a clear recognition that children’s interests are an important issue in the management of the family, the customary processes for mediating those interests tend to serve interests ‘larger’ than those of the individual children. There is a clear acceptance of the survival and development rights of the child, but the manner in which these will be realised in relation to each individual child depends on the strength of the resource network to which such child has access, and in modern conditions some traditional resource networks are breaking down. Participation rights can be achieved by children using the channels of communication available in traditional society. Again changes in socio-economic patterns and the resultant mobility of rural folk have affected these, but it is concluded that arguments about the exact nature of the participation structures in the society studied are essentially non-fatal, and sooner or later there will be a resolution.
The article shows that, in seeking to determine the cultural legitimacy of the rights and welfare of the child, a methodology is required which focuses on detailed case studies so that an analysis of child rearing practice and its intersection with culture and children’s rights is not formulated in abstract forms but is located in specific, concrete experiences derived from the lives of children and their families. The African Children’s Charter’s insistence on culture and context is supportive of this type of methodology which is sensitive to context, raises the legitimacy of the principles underlying the children’s rights system, and gives rise to a pluralism that is neither universalist nor relativist but grounded in the reality of children’s daily lives