Children occupy a special place in any community. Their vulnerability and precociousness makes them prone to various forms of exploitation which stifle their human development. It is, therefore, important for any community to safeguard and promote the interests of any child within their society. This means we should all have an informed opinion on children’s rights from all angles be they social, economic or political.
The Convention on the Rights of the Child (hereinafter the Convention)[i] and other instruments[ii] provide that a child is a person below the age of eighteen. The Convention further provides that the age can be altered by law, allowing the age of majority to be attained earlier.[iii] Embedded in this definition is also the legal concept of the age of consent. This legal protection guards against sexual exploitation. In most African jurisdictions, the age of consent is set at 16.[iv] This legal provision makes any sexual activities with a minor criminal, as consent is deemed to not have been given. Age of consent fends off marriage of children at a young age to avoid sexual abuse which has devastating effects that can, permanently and physically damage adolescents.
The age of consent serves two purposes. The natural purpose is to infantilize the sexually active teenager.[v] This places an assumption on the person, that by virtue of being a child, he or she is incapable of making a choice about any sexual activity. It is also aimed at controlling the behavior of the child. It is the latter purpose that has been a source of antagonism in most societies. Parents and guardians alike do not want to imagine that their children are engaging in any carnal activities. Whilst parents can agree on other rights for children like education, it is unthinkable that a parent will sit down with his or her son or daughter and discuss any sexual rights due to them.[vi] In Africa, a child remains as such until marriage, for children are deemed as an extension of their care givers and are, “umbilically destined to sink or swim with them”.[vii]
Therein lies the silent problem. The question for determination is therefore, do children have the autonomy to regulate their sexual conduct?
Porterfield and Stanton (20xx0) vehemently suggest that prescribing the age of consent gives countries the power to “arbitrarily decide at what age childhood ends and when adulthood begins”.[viii] By extension, this also means that parents impose themselves on their children, thus stifling their natural development into adulthood. Article 5 of the Convention[ix] provides for limitation of parental roles in light of evolving capacities[x] of adolescents. It therefore suggests that it is within children’s rights to exercise their freedom of thought and conscience on their sexual rights.[xi] The English case of Gillick v West Norfolk and Wisbech Area Health Authority[xii], in which the House of Lords ruled that a child does not require parental consent for access to contraceptives or abortion, is instructive in this regard. This decision known as the Gillick Competence[xiii] finds less acceptance in Africa, the reason being that cultural tendencies suggest that parents have unfettered control of their children even when they are young adults. The age of consent is largely paternal than legal. Parents still cultivate the untainted image of the virginal child[xiv] and any sexual activity is viewed as not only unnatural but also corrupt influence. It is also seen as a sign of defying parental authority. But the disappointing truth is that, “children engage in various forms of sexual experimentation from a relatively early age”.[xv]
The World Health Organisation[xvi] acknowledges that at this age adolescents develop a deep self-awareness. The development is not only psychological but also social and physiological in nature. In South Africa, the Constitutional Court[xvii] even went a step further by decriminalizing the sexual offences committed by children between the ages of 12-15. Put simply, the highest Court in South Africa held that, “consensual sex between adolescents should not be reported nor prosecuted”.[xviii] This effectively lowered the age of consent to a mere 12 years. From the onset, the court clarified that the case was, “not about whether children should or should not engage in sexual conduct”. Rather this case was about whether it is “constitutionally permissible”, for adolescents to be subjected to criminal proceedings as away to deter sexual intercourse. The Court, therefore, did not go on to enforce abstinence as parents keenly do and pray for. Parents find it difficult to reconcile with this legal imperative. [xix]
As for Sudan[xx], the age of consent has been subject to a lengthy legal discourse.[xxi] Children as young as 10 years old are deemed mature to consent to sexual activity. Sudanese law vaguely defines a child and physical signs of puberty are used to determine majority.[xxii] Girls between the ages of 9-15 who show physical signs of puberty are deemed to have consent to engage in sexual activities. As for boys, the age varies from 10-14. This presents a dangerous precedent. Children can be sold off for marriage, thus exposing them to sexual abuse. In a volatile[xxiii] country like Sudan there is a high likelihood that militia may also trample children’s rights and affect their positive growth.
In conclusion, the societal aim of regulating and policing inappropriate sexual contact with children should be applauded. The age of consent thus remains a source of conflict in Africa. However, it is important to also embrace the notion that, as human beings, children still enjoy the right to self-autonomy. This includes the capacity to understand and explore their bodies, intellect and emotions.[xxiv] It is a critical development that informs children to make right decisions when they grow into adulthood.
ABOUT THE AUTHOR
Shepherd Mutsvara is a professional with vast teaching experience in Southern Africa. His interests lie in Public International Law, Public Policy and Legal Research. Shepherd also holds an LL.B. from the University of South Africa and is working towards being admitted as an Attorney in South Africa. Currently he is a Research Intern at Alexis Foundation.
BIBLIOGRAPHY
Dickens, B.M. and Cook. R.J. (2005) “Adolescents and consent to treatment”, International Journal of Gynaecology and Obstetrics 89, 179-184.
Gillick v West Norfolk and Wisbech Area Health Authority [1986] Appeal Cases 1 12 (House of Lords)
Organisation of African Unity (OAU), African Charter on the Rights and Welfare of the child, 11 July 1990, CAB/LEG/24.9/49 (1990), available at http://www.refworld.org/docid/3ae6b38c18.html [accessed 5 September 2015]
Reforming Sudan’s Legislation on Rape and Sexual Violence: Briefing Paper September 2008. KCHRED & REDRESS
S v M (Centre for Child Law as Amicus Curiae) [2007 (12) BCLR 1312 (CC Porterfield. T and Stanton, G. (1989) “The Age of Majority: Article 1 : New York School Journal of Human Rights, vol.12, p30.
The Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another (CCT 12/13) [2013] ZACC 35.
UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p13 available at http://www.refworld.org/docid/3ae6b33970.html [accessed on 5 September 2015]
UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol 1577 p3 available at http://www.refworld.org/docid/3ae6b38f0.html [accessed 5 September 2015]
United Nations (2007) The United Nations and Darfur: Fact Sheet
Violet Odala (2013) “Importance of minimum age of marriage legislation” http://www.girlsnotbrides.org/wp-content/uploads/2013/06/ACPF
Walsh, K (2010) “The Sexual Rights of Children and the age of Consent”. www.inter-disciplinary.net/wp-content/uploads/2010/kwalshpaper.pdf [accessed on 31 August 2
World Health Organisation (1993) “The Health of Young People”, Geneva: WHO.
REFERENCES
[i] See Article 1 of the UN General Assembly, Convention on the Rights of the Child,20 November 1989,United Nations, Treaty Series, vol 1577 p3 available at http://www.refworld.org/docid/3ae6b38f0.html [accessed 5 September 2015] (Hereafter cited as the Convention
[ii] See Article 2 and Article 21(2) of the Organisation of African Unity (OAU), African Charter on the Rights and Welfare of the child, 11 July 1990, CAB/LEG/24.9/49 (1990), available at http://www.refworld.org/docid/3ae6b38c18.html [accessed 5 September 2015] Also see the provisions of Paragraph 36 of the General Recommendations No. 21 of the UN General Assembly,Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series,vol. 1249, p13 available at http://www.refworld.org/docid/3ae6b33970.html [accessed on 5 September 2015]
[iii] The Convention in Article 1 provides that, “Every human being below the age of 18 years unless under the law applicable to the child, majority is attained earlier, such as by marriage”.
[iv] Violet Odala (2013) “Importance of minimum age of marriage legislation” http://www.girlsnotbrides.org/wp-content/uploads/2013/06/ACPF list Malawi, Zambia and Guinea Bissau as the only countries in Africa that has the same minimum age of marriage for both sexes which 16. Most countries have discriminatory minimum ages for boys as 16 then girls vary from 12-15 years. This puts girls at a disadvantage as they drop out of school and are hastily married.
[v] Walsh, K (2010) “The Sexual Rights of Children and the age of Consent”. www.inter-disciplinary.net/wp-content/uploads/2010/kwalshpaper.pdf [accessed on 31 August 2015]
[vi] See En 4
[vii] S v M (Centre for Child Law as Amicus Curiae) [2007 (12) BCLR 1312 (CC
[viii] Porterfield. T and Stanton, G. (1989) “The Age of Majority: Article 1 : New York School Journal of Human Rights, vol.12, p30.
[ix] See the Convention Fn 1
[x] Article 5 of the Convention provides that, countries signatory to the Convention should respect the responsibilities, rights and duties of parents. But the State and the caregivers should provide appropriate direction and guidance that is “consistent with the evolving capacities of the child”
[xi] Dickens, B.M. and Cook. R.J. (2005) “Adolescents and consent to treatment”, International Journal of Gynaecology and Obstetrics 89, 179-184.
[xii] Gillick v West Norfolk and Wisbech Area Health Authority [1986] Appeal Cases 1 12 (House of Lords)
[xiii] See En 11
[xiv] See En 5
[xv] See En 5
[xvi] World Health Organisation (1993) “The Health of Young People”, Geneva: WHO. p 1
[xvii] The Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another (CCT 12/13) [2013] ZACC 35 ( Hereinafter Teddy Bear case)
[xviii] Teddy Bear case para 117
[xix] See En 4
[xx] Sudan was split into two in July 2011. It now have two countries one in the North (Sudan) which is mainly controlled by Arab Muslims. The new state (South Sudan) has many Christians and animists.
[xxi] Reforming Sudan’s Legislation on Rape and Sexual Violence: Briefing Paper September 2008. KCHRED & REDRESS
[xxii] See the discussion in the Briefing Paper cited in Fn 21
[xxiii] United Nations (2007) The United Nations and Darfur: Fact Sheet
[xxiv] Teddy Bear case para 40
