Child protection in Swaziland: An analysis report
1. Introduction
The term child refers to a
person below the age of 18.[1]
Children are the greatest resource and the future of the country. However,
social and economic indicators of household welfare reveal serious disparities
in their access to social and economic services and also confirm fundamental
inequalities to the support and care they receive. Thus, children are one of
the most powerless sectors of the human community, hence their vulnerability to
all forms of abuse.[2] As a
result, there is a need for child protection and legal support of children.
Child protection mainly focuses on “preventing and responding to violence,
exploitation and abuse of children.[3]
It includes commercial
sexual exploitation, trafficking, child labour and harmful traditional
practices such as female genital mutilation/cutting and child marriage.[4]
Child protection comprises a wider concept and consists of thirteen major risk
indicators to be addressed in order to indicate the best interest of the child.
This include, (1) birth registration, (2) violence against children, (3) child
marriage, (4) female genital mutilation, (5) child labour, (6) sexual
exploitation and abuse of children, (7) child trafficking, (8) migration, (9)
children with disability, (10) children without parental care, (11) children in
justice system, (12) children in emergencies, (13) landmines, (14) explosive
remnants of war and small arms.[5]
The provision of child protection services and a supportive legal environment
are a crucial fundamental basis for the fulfilment and protection of the rights
of children. Child abuse threatens child survival and the child may enter a
cycle of abuse in which they abuse others around them.[6]
Hence there has been a need for child protection measures to be put in place.
Over the years,
international as well as regional bodies and their partners have made efforts
to put in place programmes to improve the welfare of children. The United
Nations Convention on the Rights of the Child (CRC)[7]
guides all actions in support of children.
The country submitted its initial report to the CRC Committee in 2006. The
state report articulated that CRC had no direct effect under domestic law owing
to various challenges such as HIV/AIDS prevalence among children, child-headed
households, child abuse, and disabilities. Extreme lack of statistical data was
noted to be a hindrance to effecting appropriate programmes for children.
2. Background to children’s rights and welfare in Swaziland
2.1 Demographics
The population of
Swaziland is youthful in nature with 39.6% of the population under 15 years of
age and 52% younger than 20 years.[8]
The challenges facing children mirrors the challenges faced by a majority of
the population such as poverty, gender-based violence, HIV/AIDS and many other
challenges. The impact of these challenges is hasher or worse for children as
we know that children depend on adults for survival and livelihood.
2.2 Situation of children
2.2.1 HIV and Poverty
Children
are potentially exposed to abuse, violence, exploitation and neglect both
directly (when an adult or another child intentionally maltreats the child) and
indirectly (when lack of access to a basic right or need exacerbates the
protection risk, or vice versa).[9]The
situation of children in the country is made worst by poverty perpetuated by
the many social ills that Swaziland is facing such as the severe HIV and AIDS
epidemic. It is reported that many children in the country experience an
abnormal child development processes because of the challenges the country has,
yet the children are future leaders and the quality of their welfare largely
determine the future of the country.
The
Children’s Policy of 2009 notes that the HIV and AIDS pandemic has affected a
large number of children and is placing increasing numbers at risk. It is
estimated that Swaziland has an HIV prevalence of 26%. Government estimates indicate
that there are130, 000 children (31.3% of all children in the country) who are
orphaned or vulnerable and this number is expected to grow.[10]
There has also been an increase in the number of “child-headed” households with
households headed by children under 14 years increasing from 0.24% in 1997 to
1.4% in 2007.[11]
The
number of people estimated to be living below the poverty line is at 64%, and
most of them are affected by HIV and AIDS.[12]
Poverty in Swaziland has, indeed, taken
a “child face” as more and more children confront the reality of losing parents
and the subsequent increases in the various types of vulnerabilities that they
are exposed to. Most of the vulnerable people are children. The impact of
poverty and HIV is to the effect that the majority of people, especially
children, orphans and vulnerable children, are unable to meet their basic needs,
particularly for food, health and education. Malnutrition of children under 5
years has remained one of the major indicators for people who suffer hunger.
Present statistics indicate that 39% of under-fives are stunted.
There
is a rise in the number of children living on the streets, who have fallen
victim to abuse, neglect, poverty and whose basic physical and developmental
needs are not being met by their families and relatives.[13]
Too
little rain in those years has left most of the country’s roughly one million
people dependent on foreign food aid.[14]
Food security has been deteriorating in Swaziland making it increasingly
difficult for children especially orphans and vulnerable children to adequately
meet their domestic food requirements. One notable impact of the food crisis on
the population has been on children. The report 2008 National Nutritional
Survey indicates that 40% of Swazi children under 5 years of age show signs of
stunting, 7% are underweight, and 1% wasted.[15]
2.2.2 Placing children with extended families
Child headed households
grew in Swaziland as a result of the HIV scourge. Swazi culture has been put to
use to try and ameliorate the hardship orphaned children face on a daily basis.
According to culture, no child should suffer the consequences of being an orphan
as extended families of the deceased orphan’s parents are expected to take
him/her in. So, the government has
called upon and encouraged extended family members and distant relatives of
orphans to take them in. The reliance on culture failure proved that today’s
family set up is not like that of old in terms of moral adherence. It has no
capacity to accommodate others due to poverty and the fact that to take-in the
orphaned children have got major financial implication than it had in the past.
Some of the people who were expected to take in the children proved to be unscrupulous
and ended up ill-treating them, grabbing the properties left by their deceased
parents and some forced them to become street kids.
2.2.3 Domestic violence
According
to a 2007 UNICEF[16] study
accurate statistics on violence against women in Swaziland are not known.
However, the study revealed that:
°
Approximately 1 in 3 females experience some form of sexual
violence as a child;
°
1 in 4 females experienced physical violence as a child;
°
Nearly 2 in every 4 eighteen to 24-year-old females had
experienced some form of sexual violence.[17]
The
2011 Surveillance on Violence Report paints an even darker picture. It revealed
that 77% of females in Swaziland had been the victims of abuse and perpetrators
were male and were known to the survivors.[18]
The
placing of children with distant relatives has also increased children’s
vulnerability to abuse such as physical abuse, sexual abuse and emotional
abuse. Children who experienced rape or cruelty at the hands of their guardians
or family members have been coaxed not to report such cases to anyone as such
violation is seen as a family secret and must be swept under the carpet or mat.
It is considered un-Swazi or even un-cultural to expose such matters.
3. Opportunities to build on
Swaziland has a dual legal
system prevailing side by side. This dual legal system consists of written laws (Common law and statutes[19]) and unwritten laws (Swazi customary law).
The two laws are found not to be mutually reinforcing one another. The written
laws are seen to a large extent to be enacted to promote the rights and welfare
of children in society. Swaziland has ratified international and regional
treaties promoting the rights and welfare of children and promulgated at national-level laws and policies promoting the rights and welfare of children. Swaziland
has also put in place safety nets to promote and protect children’s welfare and
rights.
3.1 International and regional treaties on children’s rights
Swaziland’s child
protection legal framework has advanced rapidly over the past few years.
Swaziland is a signatory and has ratified all the following important
international and regional conventions and treaties that are relevant to child
protection. Swaziland is a state party to the United Nations Convention on the
Rights of the Child (CRC) having ratified the Convention in 1995. The best
interest of the child is provided for in article 3 of the CRC and provides as
thus:
‘In all actions concerning
children, whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration’.
In essence, in each and
every decision affecting the child, various possible solutions must be
considered; due weight must be given to the child’s best interests. This principle extends further to all matters
that concern children, including the development of policies, legislations,
programmes and allocation of public resources.
Non-discrimination is
another major principle of the CRC which allows that all children should be
given the opportunity to enjoy the rights recognised by the CRC. Article 2
provides thus;
‘States Parties shall
respect and ensure the rights set forth in the present Convention to each child
within their jurisdiction without discrimination of any kind, irrespective of
the child’s or his or her parent’s or legal guardian’s race, colour, sex,
language, religion, political or other opinions, national, ethnic or social
origin, property, disability, birth or other status’.
The Right to survival,
well-being and development; the CRC is grounded in the recognition of the right
to survival, well-being and development. This principle is in no way limited to
a physical perspective; rather, it further emphasises the need to ensure full
and harmonious development of the child, including the spiritual, moral
psychological and social levels.
The CRC principle on child
participation affirms that all children are entitled to express their views in
all matters affecting them and requires that those views be given due weight in
accordance with the child’s age and maturity. It recognises the potential of
children to enrich the decision-making processes and to participate as citizens
and actors of change.
Swaziland is also a state
party to the African Charter on the Rights and Welfare of the Child (ACRWC)
having ratified the Charter in 2012. The Children’s Charter is in many respects, similar to the UN Convention on the Rights of the Child. There only difference
is that persons under the age of 18 years are protected to a higher level under
children’s Charter.
These instruments call
upon governments to domesticate the rights and welfare of children in their jurisdictions.
Swaziland has an obligation to respect, protect and fulfil the rights of
children.
3.2 National legal framework on children’s rights
The Government of the Kingdom
of Swaziland has taken significant strides to ensure the promotion and
protection of the rights of children in Swaziland. The most notable and
laudable strength of Swaziland’s child protection policy context is that the
Children’s Policy covers all child protection issues comprehensively. A number
of laws and policies are in place to protect the rights of children. The
national legal framework that is promoting and protecting children’s rights and
welfare are the Constitution of Swaziland of 2005 and the Children’s Protection
Act of 2012.
3.2.1 The Constitution
At the Apex of the Common Law on child protection is the Constitution. The Constitution in Section 29 stipulates as
follows;
’29. (1) A child has the
right to be protected from engaging in work that constitutes a threat to the
health, education or development of that child.
(2) A child shall not be subjected to abuse or torture or
other cruel inhuman and degrading treatment or punishment subject to lawful and
moderate chastisement for purposes of correction.
(3) The child has the right to be properly cared for and
brought up by parents or other lawful authority in place of parents.
(4) Children, whether born in or out of wedlock, shall enjoy
the same protection and rights.
(5) Children have the duty to respect their parents at all
times and to maintain those parents in case of need.
(6) Every Swazi child shall within three years of the
commencement of this Constitution have the right to free education in public
schools at least up to the end of primary school, beginning with the first
grade.
(7) Parliament shall enact laws necessary to ensure that -
(a) a child has the right to the same measure of special
care, assistance and maintenance as is necessary for its development from its
natural parents, except where those parents have effectively surrendered their
rights and responsibilities in respect of the child in accordance with law;
(b) a child is entitled to reasonable provision out of the
estate of its parents;
(c) parents undertake their natural right and obligation of
care, maintenance and proper upbringing of their children; and
children receive special
protection against exposure to physical and moral hazards within and outside
the family.’
Therefore,
section 29 of the Constitution provides for the rights and freedoms of children
from abuse and exploitation. It protects the inheritance, maintenance,
citizenship and family rights of children.
3.2.2 The Children’s Protection and Welfare Act of 2012
The
introduction of the Children’s Protection and Welfare Act (CPWA) provides a
robust framework that is supportive of child rights and translates the Swazi
Constitution into tangible laws and policies. The CPWA is the guiding mechanism
when dealing with children in conflict and in contact with the law as well as
issues dealing with child protection in general. It provides the overall
protection of children in Swaziland. CPWA is grounded in the rights of the
child and the responsibilities of parents[20] and
the state. It spells out family and state responsibilities towards children in
need of care and protection, children in need of rehabilitation and urgent
protection.[21]
The Act also pronounces offences in relation to health and welfare of children
and provides for adoption,[22] sale,
harbouring and abduction of children.[23] The
CPWA brings together all legislation on children in conflict with the law into
one place.[24]
It determines the age of criminal responsibility, including processes for age
determination.[25]
The CPWA spells out the police and court powers and duties throughout the
justice process.[26]
It further providers for restorative justice and diversion, which were not
formerly included in laws.[27] The CPWA
establishes institutions which will promote child protection and ensure the
safety of children, especially the role of Department of Social Welfare.[28] It
addresses some issues that were previously not included in laws, including
parentage, custody and guardianship, maintenance, employment[29] and protection
of children regarding matters of health.[30] The
CPWA is profound in that it provides for the rights of a child to refuse being
compelled to undergo or uphold any custom or practice that is likely to
negatively affect their life, health, welfare, dignity or physical, emotional,
psychological, mental and intellectual development.[31]
3.3 Policy environment
The Swaziland National Children’s Policy of 2009 provides policy guidance
on all actions touching upon children in Swaziland. The overall goal of the
policy is to promote, protect, and fulfil the rights of all children and ensure
their full development and long-term welfare including their physical and
psychosocial development.
The Swaziland Education
and Training Sector Policy (2011), makes specific proposals to protect children
and young people from all forms of sexual abuse, including harassment, sexual
molestation, sexual exploitation and rape. As a result, it stipulates that any
person within the sector who exploits their position or authority over learners
shall be subject to disciplinary action.
3.4 Other legislation protecting children from harm
The Prevention of People
Trafficking and People Smuggling (Prohibition) Act of 2009 prohibits the
trafficking and smuggling of children and sets out structures and roles for
different entities to provide support to child victims of human trafficking and
smuggling. For instance, the smuggling of children is a crime and any person who
is found guilty by the court will on conviction be liable to an imprisonment
term not exceeding 20 years.[32]
Also, the Employment Act
of 1980 prohibits the employment of children in any industrial setting other
than a family business, vocational training and other educational activity,
with legislation around the number of hours that a child can work.
3.5 Children Safety nets
Children have the right to
live in a protected family environment. In Swaziland, like in all traditions
and societies, the family is regarded as the fundamental social unit around
which the society revolves especially children. The family provides the best
environment for meeting a child’s developmental needs. The family provides the
first safety net to child protection and/or the family is the primary duty
bearer in child protection. In addition to providing care and protection, the
family is where children learn how to interact with other people, where they
discover their family history and the language and customs of their community.
Hence, the family provides the first safety net to a child; however, there are
instances where the family is dysfunctional or is broken.
In the instance where a
child is vulnerable or in need of care and protection, the government of
Swaziland established the Department of Social Welfare tasked it with the duty
to look into children well- being and welfare.[33]
The Department of Social Welfare is found at the Deputy Prime Minister’s office
tasked with coordinating children’s welfare in the country. It has the duty to
give policy direction and monitor the implementation of social protection for
vulnerable children including orphans.
There is a role that is
played by civil society organisations in complementing government efforts for
the provision of both formal and informal child protection services. These are
Non-Governmental organisation (NGO), Community Based Organisation (CBO), and
Faith-Based Organisation (FBO) which have a mandate of promoting and protecting
the rights and welfare of children. Most civil society organisations in
Swaziland provide services to children who are abused neglected and without
family care as well as monitor and take action on child protection issues; mobilise
resources for child protection activities; establishment of children’s corners;
advocate on children’s rights; provide care and support to needy children care;
link individuals and communities to support networks; strengthen community
coping mechanisms; empower families and communities economically, and create
coordination and collaboration networks on OVC.
At the community level, there
are less formal safety nets catering for children in need of care and support. The
structures have been developed or revived in response to the advent of the
HIV/AIDS scourge in Swaziland particularly to cater for orphaned and vulnerable
children’s (OVC) needs and/or welfare at community levels. There is the Neighbourhood
Care Points (NCPs) which are a crucial entry point for children who may be at
risk of harm.
There is also kaGogo Centres
which serve as community administrative centre, where children can be registered
for birth certificates. Furthermore, there is Lihlombe Lekukhalela (LLs) (a
shoulder to cry on) which is a community-based child protection initiative that
seeks to ensure that every child grows up in a safe and conducive environment
for development at family and community level.[34]
The objective behind the LLs is not only to ensure safe development of
children, but also the eradication of sexual violence. Child protection forums
(LLs) have been established as a means to protect children from all forms of
abuse. Research reports reveal that an estimated 10,000 LL protectors are working in all four regions of the country.[35]
LL volunteers are the main actors who visit the homes of vulnerable families
and children and serves as an informal referral mechanism for cases of abuse
and neglect.[36] The
LL child protectors are viewed as a culturally compatible and home-grown child
protection service. It is also reported that there are 44 registered, and an
unknown number of unregistered, residential child care facilities which are
mostly privately owned.[37]
4. Gaps and challenges
4.1 Unwritten laws
While written laws are seen to a large extent
promoting human rights, the unwritten laws to a large extent negate the notion
of rights and by extension children’s rights. By unwritten laws, reference is
being made to communal and familial policy practices which are not embracing
the notion of human rights. It is said that Swaziland is a very conservative
society, so when you come with something new or something that is perceived as
out of the norm, then you will have to introduce it cautiously. So, the notion of rights particularly
children’s rights in traditional communities when it was first introduced it
was not unpacked but the word rights was communicated which led to it being
stigmatised which is the main challenge. Rights are regarded as something bad.
4.2 Rights literacy
In some communities, there
is a need for educating the community members about the Constitution and rights
in general as they have little understanding of these. Children’s rights are
viewed as the source of ill-discipline and misbehaving of children. Now, there is a need for the
de-stigmatisation of rights, so that people in traditional communities embrace
the notion of rights in order to ensure that children have access to their
rights and have their welfare safeguarded.
4.3 Implementation and domestication of laws
International and regional
instruments promoting and protecting children’s rights ratified by the country
have not been fully domesticated or implemented as it is portrayed by the state
report to the CRC Committee[38]
due to a shortage of funding or lack of political will. There is also a lack of political
will to operationalise and implement national laws promoting and protecting
children’s rights, an example of this would be the disbandment of the National
Children’s Coordination Unit NCCU due to financial difficulties.
5. Need for a CP Training Manual
All children have a right
to be protected from harm and have their welfare promoted – whoever they are,
and wherever they are. Anyone who works for an organisation that comes into
contact with children has a responsibility to keep them safe and promote their
welfare. It is only relatively recently that agencies working with children in
developing countries have started to take full responsibility for keeping
children safe by developing formal policies and systems to better protect
children. World Vision Swaziland has embarked on developing a child protection
manual which will operationalise the legal framework on child protection and
welfare. The Training Manual further aims to strengthen and expand appropriate
legal protections for children and legal consequences for perpetrators, and continues
to educate auxiliary social workers and other public safety officials about the
problem and how to respond to it insensitive and effective ways.
References
Government of
Swaziland: Central Statistics Office, Population and Housing Census of 2007
(2010).
Government of Swaziland:
Central Statistics Office, The National Surveillance System on Violence Report
Swaziland 2011
Government of Swaziland:
The Ministry of Economic Planning and Development (MEPD), Swaziland country
report: ICPD at 2014 and beyond 2012
Holaday B, Knowledge and
perceptions of parents regarding child sexual abuse in Botswana and Swaziland
2006
Kalisch BJ, Child abuse
and neglect 1975
Long S, Protecting
Swaziland’s children: strengthening Swaziland’s child protection system: a
mapping and assessment study 2013
Mavundla S
& Others, Youth and Public Policy in Swaziland 2015
National Plan of Action for OVC
2006-2010
SWAGAA’s annual Report
2010/11
The African
Charter on the Rights and Welfare of the Child 1999
The Children’s Protection
and Welfare Act of 2012
The Prevention of People
Trafficking and People Smuggling (Prohibition) Act of 2009
The Swaziland Education
and Training Sector Policy 2011
The United
Nations Convention on the Rights of the Child 1990
UNFPA &
MEPD, ICPD + 20 Swaziland Country Report of 2012
UNICEF, The
national study on violence against children and young women in Swaziland 2007;
[1] See: Article 1 of the Convention on the Rights of the Child (CRC)
Adopted and opened for signature, ratification and accession by General
Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990
and Article 2 of the African Charter on the Rights and Welfare of the Child,
OAU Doc. CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999.
[2] B Holaday’ Knowledge and Perceptions of Parents Regarding Child
Sexual Abuse in Botswana and Swaziland’:
International Paediatric Column 2006
Elsevier Inc.
[3] United Nations Children Fund, Child Protection Strategy (2008)
retrieved from www.unicef.org
[4] Ibid
[5] Ibid
[6] BJ Kalisch, Child abuse and neglect (1975) Greenwood Press, New
York, 111
[8] Government of
Swaziland: The Ministry of Economic Planning and Development (MEPD). Swaziland
Country Report: ICPD at 2014 and Beyond. (2012)4.
[9] S Long, ‘Protecting
Swaziland’s children: Strengthening Swaziland’s child protection system: a mapping
and assessment study’ (2013)
[10] UNFPA & MEPD, ICPD
+ 20 Swaziland Country Report of 2012 (2012).
[11] Government of Swaziland: Central Statistics Office, Population and
Housing Census of 2007 (2010).
[13]Ibid (n 5- ICPD 2014 Report)
[14] Ibid
[15] Ibid
[16]UNICEF, ‘The National Study on Violence against Children
and Young Women in Swaziland’ (October 2007); available on http://www.unicef.org/swaziland/sz_publications_2007violenceagainstchildren.pdf.
[17]Ibid.
[18]Central Statistics Office (CSO), The National Surveillance System on
Violence Report Swaziland (2011).
[19] By Common Law in Swaziland reference is made to the law that was
imported from the Roman/Dutch system that was operating in South Africa through
the General Law and Administration Proclamation No. 4 of 1907; as well as statute
laws and Court decisions.
[20] CPWA 2012 section 18
on the duties and responsibilities of parents and guardians.
[21] Ibid section 23 on child in need of care and protection.
[22] Ibid section 55
[23] Ibid section 75
[24] Ibid section 79
[25] Ibid
[26] Ibid section 92
[27] Ibid section 120
[28] Ibid section 22 on the
general functions of the Department of Social Welfare.
[29] See CPWA section 13 on the right to protection from exploitative
labour, section 236 on the minimum age for hazardous employment, and section 237 on the non - engagement of
children and young persons in industrial undertakings.
[30] See section 239 on the protective measures relating to the health
of children.
[31] See section 15 of the CPWA of 2012
[32] See section 21 of the
People Trafficking and People Smuggling (Prohibition) Act of 2009
[33] See the CPWA of 2012
[34] SWAGAA’s annual Report
2010/11
[35] Ibid (n 6 above)
[36] Ibid
[37] Ibid
[38] Committee on the Rights of the Child, ‘Consideration of Reports
Submitted By States Parties Under
Article 44 of the Convention initial report of States parties due in
1997 Swaziland’- CRC/C/SWZ/1, 2006.
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