A rights-based approach focuses on making human rights real
The South African
constitution defines a child as “a person under the age of 18 years” and this is supported by other legal instruments like the African Charter on the Rights and Welfare of the Child.
The African Charter on the
In Africa, diversity in children is recognised and the African Charter on Rights and Welfare of the Child (ACRWC) recognises the rights of all children to be celebrated in their diversity. The ACRWC was adopted by the Organisation for African Unity in 1990. It recognises that all African children deserve respect and have a right to have a say in decisions made about them. It sets out the rights of African children. The Convention has four central principles at the heart of its definition of children’s rights:
The ACRWC also contains some specific provisions not in the United Nations Convention on the Rights of the Child (UNCRC), for example special consideration for the education of pregnant children and the extension of protection for refugee children. It also discusses the issue of children’s responsibilities. South Africa has signed and ratified the ACRWC to show that it agrees to it
Section 28 of our
constitution specifies particular conditions relevant to children in South Africa. The most significant clause indicates that the best interests of children are para –mount. Section 28 (2) specifically provides that “[a] child’s best interest are of paramount importance in every matter concerning the child.” This means in all courts of law, decisions must be made in the best interest of the child. Chapter 2 documents all the rights found in the Bill of Rights of the Constitution, thus this principle is a considerable fundamental right. It is this clause of the best interests of the child which makes the South African constitution one of the most progressive in the world in terms of the rights of children.
Principals and teachers you need to understand you are an extension of government. You are state officials and as such are not operating in your personal capacity. As a government official you are obligated to act in accordance with the constitution.
The South African Constitution and the Bill of Rights
The South African Constitution is the highest law in our country. The Bill of Rights is in the South African Constitution and our government has a duty to safeguard, protect and promote all the rights in the Bill of Rights. For example, The Bill of Rights specifies the rights for all South Africans, including for example:
How the law applies to transgender and gender non-conforming learners
Transgender and gender non-conforming children are equally protected by the rights framework. In particular, the best interest of the child principle can be demanded when dealing with trans and gender non-conforming children.
The CRC makes a provision of non- discrimination (essentially right to equality) on the basis of race, sex, ethnic group, language, etc. that trans and gender non-conforming children should be protected from discrimination on the basis of sex (which is an expressly included ground) and gender identity.
It is found in the CRC that children shall be assured the right to express their views freely in accordance with the child’s age and level of maturity in matters concerning the child. This principle and provision can be similarly found in the Children’s Charter.
Accordingly, it is asserted that trans and gender non-conforming children must have the right to express their individual positions in matters concerning them. Moreover, it is required in proceedings involving them that their expressions be factored in decision-making processes.
Additionally, it is noted that the careful consideration of the child’s age and level of maturity is centred on the evolving capacity of the child which remains cogent.
Studies on how interest of the child (BIC) principle have been applied in South African law can be found in your resources tab