Duration: Approximately 25 days (October 2016 – May 2017)
Location: Home-based, reporting to Save the Children AU Liaison and Pan Africa Office
When a State ratifies the African Charter on the Rights and Welfare of the Child (ACRWC), it becomes obligated under international law to implement it. Article 1 of the ACRWC places an obligation on States Parties to undertake all necessary legislative and other measures, to give effect to the provisions of the ACRWC. This obligation also extends to provisions that are more conducive to the realization of the rights and welfare of the child contained in the law of a State Party or in any other international convention or agreement in force in that State. The Article further provides that any custom, tradition, cultural or religious practice that is inconsistent with the rights, duties and obligations contained in the ACRWC must to the extent of such inconsistency be discouraged.
At the global level, similar State obligation to implement children’s rights is enshrined in Article 4 of the UN Convention on the Rights of the Child (CRC). This has been elaborated upon in the General Comment No. 5 of the UN Committee on the Rights of the Child which sets out the general measures of implementation of the CRC. Thus, the text of General Comment No. 5 provides useful insight to the interpretation of Article 1 of the ACRWC. However, it is important that this Article is interpreted from the perspective of the ACRWC and its added value as a regional instrument on children’s rights. Because the provision of this Article is different from the one of Article 4 (CRC) in that it does not make the distinction between economic, social and cultural rights and civil and political rights in relation to availability of resources. And it gives preference to provisions that are more conducive to the realization of the rights and welfare of the child in other legal instruments applicable in a State. It also addresses customs, traditions, cultural or religious practices inconsistent with the rights, duties and obligations contained in the ACRWC.
After the general discussion on Article 1 hosted during its 26th ordinary session in November 2015, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) decided to develop a General Comment on Article 1 with the support of its partners. In view of this, the General Comment on Article 1 would be important to identify and expound on the key agents for change in the implementation of children’s rights in an African context. It should build upon General Comment No. 5 of the UNCRC while at the same time examining emerging issues that have an impact on the architecture needed for implementation of children's rights in Africa.
A General Comment (GC) on Article 1, issued by the ACERWC, will provide Governments with much needed guidance in implementing their obligations deriving from the ACRWC. At the same time, it will serve children, civil society and other stakeholders by demonstrating not only that it is eminently possible to fulfil State obligations, but also that there are profound benefits associated with doing so.
However, from the stipulations of the article, it is not necessarily very clear how open, inclusive and accountable governance extends to the protection and promotion of all aspects of children’s rights, including the efficient spending of public resources to realize these rights. Hence, it is more than required to outline States parties’ obligations to develop what the ACERWC has termed “general measures of implementation” in its working documents and clarify how open, inclusive and accountable the related processes should be.
The GC should therefore offer guidance about general measures of implementation of the ACRWC that State parties are expected to take. Firstly, it should, among other things, set standards and promote common understanding on general measures that each State party needs to take to implement Article 1 and to recognize and give effect to the rights, freedoms and duties enshrined in the charter. Both State and Non-State actors should be clear about the actions or measures that each State party needs to take with regards to the laws, policies and practices that should be put in place to ensure that the rights of children are respected, protected and fulfilled as requested by Article 1. In particular, the GC should clarify how States Parties should invest sufficiently and efficiently in children and provide monitoring tools related to that. Additionally, the GC should also outline the different aspects of the general measures of implementation of the ACRWC that are implicitly covered by the stipulations of Article 1. Finally, the GC should clarify how State parties should disseminate the ACRWC and ACERWC Concluding observations and decisions; and how they should collaborate with State and Non-State actors to deliver on children’s rights on their territories.
A GC on Article 1 will serve to enhance State accountability by supporting Governments in implementing and reporting on the ACRWC. This authoritative interpretation of the stipulations of article 1 accompanied with realistic action recommendations from the treaty body will also empower children and civil society for more effective child rights advocacy and monitoring at local, national and international levels. Therefore, the GC should clarify the normative content of this article including the related State obligations, and provide monitoring tools to enable children and civil society to play their respective roles. For example, the GC should detail and interpret the article and provide clear indicators to help determine that a State party has satisfactorily recognized “the rights, freedoms and duties enshrined in this charter” as they are required by the article.
Because, there’s a need for clear standards agreeable to State parties to help determine that a State party has undertaken “the necessary steps” to “give effect to the provisions of this charter” as requested by Article 1; including tools to help monitor the extent to which the ACRWC is being effective for the realization of children’s rights in a specific State party.
Secondly, concerning the preference that the ACRWC gives to other more conducive provisions in the concerned article, there’s a need for standards and common understanding of when one can say without being mistaken that a specific provision from a different legal instrument is more conducive than those of the ACRWC. The GC needs to clarify the meaning of and provide tools to help identify “a more conducive” provision to those of the ACRWC. It should also indicate the steps to follow whenever a more conducive provision is identified.
Finally, when it comes to the customs, traditions and cultural or religious practices provided for in Article 1, the GC should explain and provide examples of the customs, traditions, cultural or religious practices that should be considered as “inconsistent with the rights, duties and obligations contained in the present charter”; and what exactly should State parties do for such customs, traditions, cultural or religious practices to “be discouraged” as required.
On behalf of the ACERWC and its partners, Save the Children would like to contract a consultant/consulting firm to assist with the drafting and peer-reviewing the general comment on Article 1 of the ACRWC.
The purpose of the consultancy is to draft the General Comment on the General Measures of Implementation of the ACRWC.
 Guidelines for Initial Reports of States Parties on the African Charter on the Rights and
Welfare of the Child; and Guidelines on the Form and Content of Periodic State Party Reports.
 In general, child rights impose three distinct obligations on governments: the obligations to respect, protect and fulfil those rights. The obligation to respect child rights requires governments to refrain from interfering directly and indirectly with children’s enjoyment of their rights. The obligation to protect children against violence, abuse, exploitation and neglect refers to the governments’ duty to prevent, investigate, punish and ensure redress for the harm or threat caused by third parties, such as individuals or other Non-State actors. The third obligation necessitates that governments fulfil the rights of children through the implementation of legislative, administrative, budgetary, judicial and other measures. This obligation includes governments’ duties to facilitate and provide for basic needs, particularly when children’s families are unable to do so.
3. Expected results and deliverables
Under the Save the Children- Pan Africa Office designated supervisors, the consultant will be responsible for the following output: Draft the General Comment on the general measures of implementation of the African Charter on the Rights and Welfare of the Child (Article 1).
Estimated duration of the consultancy is 25 working days, within the period of 21st October 2016 – 31st May 2017. The consultancy will be home-based.
(Estimated # of days)
1. Prepare a draft outline of the General Comment and present it to the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) and its partners;
2. Develop a first draft of the General Comment, based on the agreed outline; collect input and develop a second draft for presentation to ACERWC;
3. Participate in the coordination, planning, consultation and validation meetings, as required
4. Develop a third draft of the General Comment based on inputs, and revise it based on inputs, for adoption by the ACERWC
Consultancy fees will be paid at the daily rate to be negotiated with the selected consultant/consulting firm for the 25 days. The costs for travels and accommodation and other workshop related costs will be covered by contracting agent where necessary in the course of this assignment. Payment will be made in two instalments. The 1st instalment which is 30% of the contract amount will be paid after the signing of the agreement and the 2nd and final payment which is 70% will be paid at the end of the agreed period upon submission of the expected deliverables and pursuant to a detailed invoice of the consultant submitted to Save the Children.