Cultural and traditional practices and the implementation of the right of the child to be heard under Article 12 of the UNCRC

Abstract

The 1989 United Nations Convention on the Rights of the Child (hereafter UNCRC) is one of the international instruments that broadened children's rights and placed it at the top of government agenda. A fundamental objective of the UNCRC is to establish the status of children as rights-bearers, and for their rights to be considered as important as those of adults with regards to respect and defence of such rights. Aside the other relevant articles in the UNCRC, which are linked to the participation of children, Article 12(1) clearly elaborates on the participatory right of the child. In the context of the provisions of Article 12(1) of the UNCRC, the reference to "in all matters" indicates that the participatory rights in Article 12(1) of the UNCRC are not limited to matters specifically addressed in the UNCRC. It covers both the private and public spheres of society, and foists on the state duties in relation to matters left for actors in the private sphere, such as the family, to decide. Therefore, the right to participate in terms of Article 12(1) refers to every child's right to be heard and to participate in all matters that affect their lives, including decision-making within the family. This presupposes that children are autonomous individuals capable of making and participating in decisionmaking within the family. Despite the importance attached to the provisions of Article 12(1), it has been the subject of much debate and controversy. Among the major concerns on the part of some State Parties and critics are that the provisions of autonomy rights in Article 12(1) of the UNCRC present the child as having a separate identity from others. These concerns seem to have been exacerbated by the lack of provisions regarding the duties and responsibilities of the child within the family and towards others under the UNCRC. Thus, critics claim that the UNCRC does not adequately account for the reciprocal and interdependent relationships between the child, her/his parents, and other members of his/her family. Again, they question the desirability and applicability of the UNCRC construction of a child’s autonomy within those socio-cultural contexts where the autonomy of the individual is not

emphasised as much as his/her interdependence and duties within the family and the community. In other words, the characterisation of children as autonomous logically raises the question of legitimacy, desirability and applicability within different socio-cultural contexts where the autonomy of the individual is not privileged as much as interdependence and the fulfilment of duties within the family. Consequently, critics argue that the practical implementation and effectiveness of the relevant provisions of the UNCRC cannot be enforced in some state jurisdictions. In understanding the influence of culture, values and practices in children’s rights discourse, the thesis considers the implementation approach of Article 12(1) of the UNCRC in the domestic children’s rights legislations of specific State Parties such as Nigeria, South Africa and Australia. In these cultural values of rights and duties of the child within the family is an intricate measure of implementation in their specific domestic children’s rights legislation. More so, while the South African and Australian national children’s laws on the one hand embed the cultural value of rights and duties and responsibilities of children within the family, they, on the other hand, embeds the UNCRC autonomous children’s rights approach of children’s participation rights in decision-making within the family. In Nigeria, the UNCRC’s implementation approach in the country’s national children rights law is completely based on acceptable local norms and customs in terms of the rights and duties of the child within the family. In other words, there appears to be resistance to, and neglect of the specific provisions of Article 12(1) of the UNCRC concerning children’s rights, owing to socio-cultural factors. In light of the foregoing, the question is not so much about the relevance of cultural values as it is about the dangers of emphasising cultural values over participation rights enshrined in Article 12(1). In the context of rights and relationship, the application of rights and duties within the family demonstrates the complexity and the challenge it offers. In other words, when it comes to children’s participation in decision-making, the cultural value of “duties and rights”

can engender complex “conflict” situations within the family. For instance, a family has to deal with situations where indigenous practices and culture play a role in child-rearing and upbringing. As a result, the duty to respect parents might readily be used to limit children’s rights to participate in decision-making, particularly in matters affecting them. Some of these cultural practices that may be used within the family are those tied to a “legitimate” cultural practice that is allowed and regulated by the law, and others that are not so legitimate and “harmful” to the child. Male circumcision, which is common in South Africa, is an example of such legitimate cultural practice. Also, the custom of ukuthwala in South Africa is another example of a practice that could be considered as legitimate, although it is not so legal due to the negative aspects associated with the practice. In Nigeria, South Africa and Australia, Female Genital Mutilation/Cutting (FGM/C) is a specific example of “harmful” practices, which may hide under the canopy of the cultural value of “duty and rights” within the family. The above-mentioned cultural practices are not only regarded as harmful, but they also violate the UNCRC’s Article 12(1) provision on children’s participation rights in decision-making within the family. In light of the above-mentioned culturally diverse Sate Parties’ implementation approaches, the thesis primarily examines the extent to and manner in which existing national children’s rights law in Nigeria, South Africa and Australia facilitates the inclusion of Article 12(1) of the UNCRC participation rights of children in decision-making within the family in the country’s pursuit of children’s rights and development. Consequently, the thesis commences with a discussion of key theoretical concepts such as culture and indigenous cultural values, as well as the main features and perspectives of children’s right to participation under Article 12(1) of the UNCRC. The meaning, relationship and application of the concepts of culture and cultural values, as well as Article 12(1) are investigated in order to lay the normative groundwork for the rest of the thesis. That is followed by an examination of the specific children’s rights law that domesticated Article 12(1) of the UNCRC in the legal system of Nigeria, South Africa and Australia. Furthermore, an analysis of the specific cultural practices that are considered “harmful” and

which may be used under the canopy of family child-rearing and upbringing in terms of the value of “duty and rights”, is made in line with the focus of this study. These specific cultural practices are queried and tested against the Article 12(1) provisions on children’s participation rights in decision-making within the family. An approach in favour of Article 12(1) children’s participation rights is canvassed. Finally, the thesis concludes that the progressive application and interpretation of the global and domestic idea of children’s participation rights within the family and the society can be aided by Article 12(1) of the UNCRC as well as cultural values of rights and duties within the family. As a result, the participation rights requirements in Article 12(1) should be incorporated into Nigeria’s Children’s Right Act. The research for this study was concluded in November 2021.