Legal implementation of the UNCRC : lessons to be learned from the constitutional experience of South Africa

• Author: Ursula Kilkelly,Ton Liefaard
• Pages: 521-539
• Date: 01 April 2019
• Published date: 01 April 2019
• DOI: 10.10520/EJC-1ac36ed063
• Record Number: dejure_v52_n1_a32

Legal implementation of the UNCRC 521

Legal implementation of the UNCRC:

lessons to be learned from the

constitutional experience of South Africa

Ursula Kilkelly

Ton Liefaard

SUMMARY

The UN Convention on the Rights of the Child (“CRC”) is the leading

international instrument recognising the human rights of children across

all areas of their lives. Amid measures of legal incorporation, giving

constitutional expression to children’s rights represents a high watermark

of legal protection. South Africa was an early mover in this space adopting

a strong children’s rights provision in the 1996 South Africa Constitution

which made children’s rights justiciable as part of a Bill of Rights. Over the

last two decades, an empowered judiciary and an active community of

legal advocates have combined to enable the South African Constitutional

Court to create a body of case-law that has provided leadership globally in

the recognition and enforcement of the constitutional rights of children.

Against the backdrop of the Convention’s 30th anniversary and increased

emphasis on the legal implementation of children’s rights, this article

reflects on the South African experience of using its Constitution to

advance children’s rights. Using South Africa as a case study, it considers

how the potential associated with giving children’s rights the highest status

in a country’s legal system can be maximised. It identifies the lessons to

be learned from the South African experience before concluding with a

reminder that however dynamic the development of children’s rights law,

the effectiveness of the CRC’s implementation can only ever be measured

by the extent to which it improves children’s enjoyment of their rights.

1Introduction

The UN Convention on the Rights of the Child (“CRC”) is the leading

international instrument recognising the human rights of children across

all areas of their lives. Thirty years after the CRC’s adoption, legal,

political and societal change in the way children are treated continues to

be a challenge.1 At the same time, as states parties continue to take steps

incorporate the CRC’s provisions into national law,2 there is some

1 Multiple edited collections have been published providing a wealth of

analysis on the Convention’s implementation. See for example, Tobin, J.

(ed.) The UN Convention on the Rights of the Child. A Commentary. OUP,

2019; Kilkelly, U. and Liefaard, T. (eds) International Human Rights of

Children, Springer, 2018; Ruck, M, Peterson-Badali, M. and Freeman M.

(eds).Handbook of Children’s Rights: Global and Multidisciplinary

Persp ecti ves, Routledge, 2017 andVandenhole, W, Desmet, E. Reynaert, D.

Lembrechts, S. (eds)The Routledge International Handbook of Children’s

Rights Studies, Routledge, 2015;

2 Kilkelly, U. “The UN convention on the rights of the child: incremental and

transformative approaches to legal implementation”23 (2019) The

International Journal of Human Rights 323-337.

How to cite: Kilkelly & Liefaard ‘Legal implementation of the UNCRC: lessons to be learned from the

constitutional experience of South Africa’ 2019 De Jure Law Journal 521-539

http://dx.doi.org/10.17159/2225-7160/2019/v52a30

522 2019 De Jure Law Journal

evidence that legal and non-legal measures of implementation have

begun to improve children’s lived experience of their rights.3

Giving constitutional expression to children’s rights represents a high

watermark of legal protection even if, around the world, practice varies

from instruments that include limited references to the needs of children

to those that recognise children as fully fledged rights holders.4 The

process of constitutionalising children’s rights is complex and dynamic;

it starts with the insertion of children’s rights into the Constitution and

then requires further associated actions to give real meaning to that

change.5 These include measures to promote children’s access to the

courts, provide effective remedies where rights have been violated and

enable the judiciary and the legal profession to interpret and apply these

rights in a progressive manner.6 In truth, there are few examples of

where such approaches have been a success.

South Africa was an early mover in the domestic incorporation of

children’s rights.7 Building on previous instruments, the 1996 South

Africa Constitution contains a strong children’s rights provision – Section

28 – the adoption of which represented a “ground-breaking moment in

the advancement of children’s rights” when for the first time, children’s

rights were “robustly and comprehensively recognized in the express

language of a nation’s constitution”.8 Children’s rights were made

justiciable under the Constitution, making the courts pivotal in the

enforcement of the Bill of Rights.9 While there was scepticism that the

rhetoric would not translate into tangible legal progress for children’s

rights in South Africa,10 early political measures led by President

3 Lundy, L., Kilkelly, U., Byrne, B and Kang, J. The UN Convention on the Rights

of the Child: A study of Legal Implementation in 12 Countries, UNICEF UK,

2012.

4 See in particular, Tobin, J. “Increasingly seen and heard: the constitutional

recognition of children’s rights”, 21 South African Journal on Human Rights

(2005) 86-126; European Commission for Democracy through Law (Venice

Commission) Report on the Protection of Children’s Rights: International

Standards and Domestic Constitutions (2014), Opinion n°713 / 2013, para

146, available at www.venice.coe.int and O’Mahony, C. “Constitutional

Protection of Children’s Rights: Visibility, Agency and Enforceability” (2019)

19(3) Human Rights Law Review 1-34.

5 O’Mahony, C. “The Promises and Pitfalls of constitutionalising Children’s

Rights” in Dwyer (ed), Oxford Handbook of Children and the Law (Oxford:

Oxford University Press, 2019) 869-864.

6 Committee on the Rights of the Child, General Comment No. 5 (2003),

General measures of implementation of the Convention on the Rights of the

Child (arts. 4, 42 and 44, para. 6), 27 November 2003, CRC/GC/2003/5.

7 Binford, W. (2015) “The Constitutionalization of Children’s Rights in South

Africa”, 60 New York Law School Law Review 333-364, 342.

8 Binford, W., 334.

9 Cameron, E and Taylor, M “The untapped potential of the Mandela

Constitution” Public Law (2017) 382-407, at 386.

10 See Sloth-Nielsen, J. “The Contribution of children’s rights to the

reconstruction of society: some implications of the constitutionalisation of

children’s rights in South Africa” 4 International Journal of Children’s Rights

(1996) 323-344, at 324.