Introduction
In this paper we will focus on the Convention on the Rights of the Child. We will be analyzing the current human rights situation of the Democratic Republic of Congo (DRC) in relation tot this convention. We chose the DRC because we are interested in the controversial situation regarding the child soldiers that has been an issue in Congo for a long time. To reach our conclusion about the human rights situation in the DRC regarding the Convention on the Rights of the Child we are going to analyze the state of 6 different human rights in the DRC. The different human rights we are going to analyze are:
– The right to freedom from al forms of violence;
– The right to birth registration;
– The right of the child to education;
– The rights of children in armed conflicts;
– The rights of children in juvenile justice;
– Harmful practices.
We chose these rights, because in our opinion they are the most interesting and controversial rights in the Convention on the Rights of the Child, and are relevant in regards to the child soldier situation in the DRC. We will discuss each human right in a separate chapter, and in the end we will formulate our conclusion on how this country is doing in regards to complying to the Convention on the Rights of the Child.
Chapter 1: The right of the child to freedom from all forms of violence.
Article 19 paragraph 1 of the Convention on the Rights of the Child states that; “States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.” What this in essence means is that a child has the right to freedom of all forms of violence. The general comments say that this is primarily based on the idea that no violence against children is justifiable and all violence against children is preventable. The general comments also tell us that there is no exception to this rule. As article 19 states “all forms of…” there is no room for legalized violence against children, no matter what level.
Article 19 states a lot of different forms of violence against children, we cant discuss them all in our paper so we have chosen to focus on the sexual abuse aspect. We chose for this aspect of the right to freedom of all forms of violence because we believe that this is the biggest problem in the DRC and the problem we could find the most sources about. So what can be counted as sexual abuse? The answer to this question can be found in the general comments, in which the Committee states that sexual abuse and exploitation include:
– The inducement or coercion of a child to engage in any unlawful or psychologically harmful sexual activity;
– The use of children in commercial sexual exploitation; and
– The use of children in audio or visual images of child sexual abuse;
– Child prostitution, sexual slavery, sexual exploitation in travel and tourism, trafficking (within and between countries) and sale of children for sexual purposes and forced marriage. Many children experience sexual victimization which is not accompanied by physical force or restraint but which is nonetheless psychologically intrusive, exploitive and traumatic.
What is worth noting, in our opinion, is that even just inducing a child to engage in any sexual activity is considered as sexual abuse.
Analysis on the situation in the DRC
The numbers regarding sexual abuse of children diverge quite a lot between sources. For instance there is a source that states that in 2009 there were 150.000 cases of sexual abuse, of which 50% were against children under 18 years of age. Another source, The United Nations Population Fund (UNFPA), reported that 15,996 new cases of sexual violence were registered in 2008 throughout the country. In the eastern province of North Kivu alone, there were 4,820 new cases. UNFPA also reported that more than 65 percent of victims of sexual violence during the same period were children, the majority adolescent girls. Yet another source states that, according to data collected from local health centers in Kivu, about 40 women are raped every day. The data reveals that 13 percent of these victims are under 14 years of age, which comes down to roughly 4 children that are raped in Kivu each day. In a report of the Secretary General of the United Nations verified 254 child victims of sexual violence in 2015. Armed groups were responsible for the majority of incidents, but even the Congolese national police had a share in these numbers.
So we have all these sources that are saying all kinds of different things, how do we know if there is a problem, and if there is how big this problem is? The Concluding observations by the Committee give, in our opinion, some clarification regarding this question. In the concluding observations the Committee acknowledges the efforts made by the DRC in the past several years to improve the sexual abuse issue. The efforts include the adoption of a law against sexual violence (2006), a national strategy to combat sexual violence and gender-based violence, and the information provided during the dialogue (between the Committee and the DRC) that sexual violence had been reduced by half over the past two years. However, the Committee also expresses its deep concern that:
1) The rate of sexual violence against children, notably rape, reportedly remains high;
2) Rape and other types of sexual violence against women and children are used as weapons of war in conflict-affected areas of the country;
3) Children surviving sexual violence receive little access to health care, psychological support and compensation;
4) Perpetrators of rape and sexual violence against children enjoy impunity.
Conclusion
As we have stated before, the sources diverge about the actual numbers regarding sexual abuse against children. In our opinion, although this makes it is hard to establish the size of the problem, all the sources do indicate that there is in fact a problem regarding sexual abuse of children in the DRC. This is supported by the fact that the Committee has expressed its deep concern about the sexual abuse issue in the DRC, in their very recent concluding observations of 28 February. On top of that, the sources can only take into account the known cases of sexual abuse. In a country like the DRC with all its problems it is not strange to assume that a lot of cases never see the light of day.
Chapter 2: The right to birth registration
According to article 7(1) of the convention of the rights of the child, a child needs to be registered directly after birth. From birth a child also has the right to a name, the right to acquire a nationality, and if its possible, the right to know and be cared for by his or her parents. This article doesn’t need further explanation, because the text is very clear.
In the DRC birth registration is not very widespread. According to the statistics of Unicef only 27.8% of the children born between 2005 and 2012 were registered. Therefore it is not strange that in the last concluding observations of the DRC, the Committee speaks out its concern about this subject. But, due to new law, birth registrations are on the up since a couple of years. Besides a national identification office will be established, where all Congolese nationals will be provided with identification. The Committee expresses its concern about the enormously low and continuing decrease of rates of birth. Because of this children are vulnerable to statelessness. Also the lack of a birth certificate limits access to most public services. The cause of the low rates is the lack of information that parents receive on the importance of birth registration, the negligence of parents, and the long distance that parents have to travel for the registration of birth. But not only the parents are the cause of these low rates. The civil registration offices are under resourced and have slow administrative processes. There are also corresponding hidden costs for birth registration. Last but not least the continuous armed conflicts, that lead to a continual movement of the population in the affected areas. All these things are also concerning for the Committee.
Analysis on the current situation in the DRC
The committee gives in its report some points that the DRC should follow to improve the rate of birth registration. They refer to target 16.9 of the Sustainable Development Goals on providing, which means that by 2030 there should be legal identity for all, including birth registration. The DRC should raise awareness among its population on the importance of birth registration. A possibility to achieve this point is to organize sensitization campaigns.
Also there needs to be an easier access to the civil registration offices, which can be achieved by initiating mobile registration services. The Stakeholder report on the DRC, submitted by World Vision, adds that donors along with the DRC government should work to guarantee that there are mobile birth registration teams, which are helping, especially in the rural areas, to access these services. UNICEF Child Protection officer Vanessa Wirth says that there is also a need for more civil registry offices. ‘’There are only around fifty for a population of 10 million, which is far too few.’’
A third solution is to provide the financial, human and technical resources, which are necessary for the effective functioning of registration offices. In the current situation the prices of birth registration are too high, so all the administrative costs for birth registration must be removed. Also the civil servants need to get a higher salary for their work, so that they don’t abuse the system.
Conclusion
Despite of the improvements the DRC has done the last few years, there is still a long way to go, to reach target 16.9 of the Sustainable Development Goals on providing. In our opinion they are not going to reach the target before the deadline in 2030. Because of the small percentage of newborns who were registered in a period of seven years, and the small amount of civil registry offices.
Chapter 3: The right of the child to education
The fourth right that we will be discussing is the right of the child to education, as stated in article 29 paragraph 1 of the Convention on the Rights of the Child. This article says that States should:
– Make primary education compulsory and available free to all;
– Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
– Make higher education accessible to all on the basis of capacity by every appropriate means;
– Make educational and vocational information and guidance available and accessible to all children;
– Take measures to encourage regular attendance at schools and the reduction of drop-out rates.
The most important aspect of this article is that States should make primary education compulsory and available free to all. The fact that primary education should be available free to all is the part that in general creates the most issues, because it is well known that in a lot of (mostly African) countries education is not (entirely) free to all. In regards to the DRC we will be looking at the availability of primary education to children. We will be looking into this aspect because, in our opinion, this is the most fundamental right that this article gives to children.
Analysis on the situation in the DRC
In 2010 the government of the DRC made a decision that they would gradually make primary education free. So with this decision you would think that by now every child in the DRC has free primary education available to them, right? There is nothing further from the truth, although the numbers given by different sources diverge yet again, it is clear that education in the DRC is not available free to every child, and that therefore not every child attends (primary) school. Multiple sources report that in 2013 a whopping 7.4 million children aged 5-17, where not in school. More recent numbers show that currently 3.5 million children of primary school age are not in school. 44 percent of those who are in school start school late, after the age of six. What is also worth noting is that National data show that only 67 percent of children who enter first grade will complete sixth grade. Of those who reach 6th grade, only 75 percent will pass the final exam. Reportedly 95 percent of school fees, which fund everything from classroom materials to teacher salaries, are paid for by families. This is a large issue in the DRC, because children from poor families are a lot less likely to attend school than children from wealthy families. There is also something positive to be noted, the DRC joined the Global Partnership for Education in 2012 and has since received two substantial grants to help the Congolese education system. The first grant of $100 million from 2013-2016 significantly improved national primary school enrollment, restored more than 700 classrooms, provided 20 million textbooks and teacher guides, and trained more than 11,000 teachers. So the DRC seems to have made education more of a priority the last few years, which is of course a good thing.
In their concluding observations, the Committee also notes the initiatives taken by the government to improve the situation in the DRC. However, The Committee regrets that the efforts are not sufficient and that a large number of school-age children in the DRC remain without access to school. The Committee states that only half of children aged between 6 and 11 years attend primary school, which is due to the fact that education is not genuinely free. They also express their concern about the large numbers of children that abandon school early, the fact that access to schools in various provinces remains unequal and that the quality of education remains poor. The quality of education remains poor because the teachers are not qualified, not paid regularly and lack pedagogical materials. Furthermore the Committee states that the infrastructure and equipment of schools are insufficient and inadequate, that Armed groups continue to attack schools, students and teachers in conflict affected areas, putting children at risk of abduction and recruitment, and use schools for military purposes.
Conclusion
Despite the Government decision in 2010 to make education free, there is still a big problem regarding (free) education for children in the DRC. The DRC has made some progress towards complying to the right to education, but as the Committee stated in their concluding observations, these efforts are still not sufficient enough to tackle all the problems in the DRC. Not only the non-availability of free primary education, but also the quality of the education is a big problem in the DRC.
Chapter 4: The rights of children in armed conflicts
One of the main issues in the DRC is the use of children in armed conflicts. We all know the stories about Joseph Kony, the leader of a guerilla group, who is using children to fight for him in armed conflicts in Sub-Saharan Africa. By using children as soldiers there are many rights of the child that are being violated. We are going to analyze article 38 of the convention of the rights of the child, which is a specific article about children in armed conflicts.
States have to do everything to protect and care for children affected by war. According to paragraph 2, the States parties shall take all possible measures to ensure that people under the age of fifteen do not take direct part in conflicts. Paragraph 3 says that States cannot recruit people under the age of fifteen into their armed forces. When a state recruits children who reached the age of fifteen, but not the age of eighteen, then the state need to give priority to those who are the oldest. There also is ‘the Convention’s Optional Protocol on the involvement of children in armed conflict’, which says that the minimal age for direct participation needs to raise to the age of eighteen, and that there needs to come a ban on compulsory recruitment for children under eighteen.
Analysis on the current situation
It’s estimated that 1 out of 10 total child soldiers are found in the DRC, which equals to 30.000 child soldiers from the DRC. The UN believes that 15-30% of all recruited soldiers in the DRC are under the age of eighteen. Alone in the DRC there at least four groups that recruit child soldiers: the FARDC, the FDLR, ADF and the FRPI. The UN verified that in 2015, 488 children where recruited in the DRC only for the armed groups in the DRC. A whopping 30 percent of them where under the age of fifteen years old. This is more than twice the number of documented cases in 2014.
The most of the children who where recruited are coming from the eastern DRC, especially from North Kivu. 89 percent of the child soldier recruiting occurred in this district.
Another fact that follows from the children and armed conflict report of 2015 is that there were twenty-six verified attacks on schools in that year. And notwithstanding an order, issued in 2013 by the Ministry of Defense, prohibiting the practice of military use of schools, twenty schools were used by FARDC, and ten by other armed groups. With the support of the UN, thirteen of them were vacated.
Military pressure and radio messages encouraging children to escape of military groups resulted in 20.145 escaped, which is twice the number of children that escaped in 2014. In 2012 the DRC government signed an action plan with, among other things, the child recruitment. Throughout 2015, the government maintained its promise to implement this plan. One of the main issues with the plan is to screen military groups on the presence of minors without the help of the UN. This screening on age verification is, furthermore, ineffective because of the low birth registration.
Also the Committee speaks out their concerns despite of the action plan. In the concluding observations of 2017 the Committee is concerned about the large number of children that continue be killed, raped, maimed, recruited and used in armed conflicts.
Conclusion
The facts are showing us that there is an increase in child soldiers under the age of fifteen. Despite of the improvements the DRC government took, it doesn’t seem to go in the right direction. There are still a lot of children that are murdered and recruited in armed conflict. Military groups even occupy schools. Therefore it doesn’t look like the DRC does enough to protect and care for children affected by war.
Chapter 5: Children’s rights in juvenile justice
We will now be taking a look at children’s rights in juvenile justice. These rights are mainly established in the General Comment no. 10 (2007) and in the Convention on the Rights of the Child. For instance article 37 of the Convention On the Rights of the Child. We will be focusing mainly on sub b of this article, which states that no child should be deprived of his or her liberty unlawfully or arbitrarily. Furthermore this article states that, if a child is to be arrested, detained or imprisoned this should be in conformity with the law. These means should only be used as a measure of last resort, and for the shortest period of time possible. The general comments state that an effective package of alternatives must be available for the States parties to realize their obligation under article 37 (b), to use deprivation of liberty only as a last resort. States should also take legislative action to reduce the use of pretrial detention, because pretrial detention as punishment violates the presumption of innocence. A child should only be held in pretrial detention to ensure his/her appearance at the court, or when he/she is an immediate danger to him/herself or others. Decisions regarding pretrial detention should be made by a competent, independent and impartial authority or judicial body. A child should always be provided with legal, or other appropriate, assistance. The most important aspect we can deduce from all this is the fact that a child should only be in detention when there are no (appropriate) alternatives.
Analysis on the current situation in the DRC
In January 2009 the DRC proclaimed a law on Child Protection. This law has provisions for judicial, penal and social protection of children under the age of 18 years. This law also states that a judge can send children to a “public or private institution of a social character, but only as a measure of last resort, and not to a prison. According to this law it is absolutely illegal to have children in prison. However, two years after this law has been proclaimed, an estimated 3,000 children remain in prisons across the DRC.
Another source found that in 2013 and 2014 Congolese armed forces arrested and detained at least 257 children.
A more recent source reports that 29 children are unlawfully detained in a military prison. The Congolese military is detaining them, because the authorities allege that the children, aged 15 to 17 years old, were members of a rebel armed group. The boys are, not yet, charged with any crimes nor had access to lawyers or their families.
In their concluding observations the Committee urges the DRC to bring its juvenile justice system in line with the Convention and other relevant standards. Among other things the Committee urges the DRC in particular to promote alternative measures to detention, to ensure that children are not detained together with adults and to improve the detention conditions. Furthermore the Committee urges the DRC to increase the number of specialized juvenile courts and to improve the provision of legal aid to children. Finally the Committee urges the DRC to advance the implementation of the minimum age of criminal responsibility and to establish the age of criminal majority t 18 years.
Conclusion
Although it seems that the DRC has tried to improve the situation regarding their juvenile justice system with for example their law on child protection of 2009. There are still many reports on children being in prison in the DRC, and in our opinion this is still a huge problem. Although the law of 2009 prohibits any children of being in prison there is still a lot of evidence of children being in prison in the DRC, and adding to that the condition in prison are also not up to par with the Convention on the Rights of the Child. In our opinion the DRC needs to take their law of 2009 seriously and start enforcing it.
Chapter 6: Analysis about the harmful practice of witchcraft
The final analysis we will make is the analysis of article 24 paragraph 3 on the Convention on the Rights of the Child. This article states the following: ‘’ States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children.’’ The fact that this article is a matter of harmful practices can be deduced from the general comments on article 24. The first note of this general comment says that paragraph 3 is not covered by those general comments, because a general comment on harmful practices was being developed at that time.
So now the question arises what are harmful practices? Following the Committee in the general comments a harmful practice is ‘’a persistent practice and form of behavior that is grounded in discrimination on the basis of, among other things, sex, gender and age, in addition to multiple and/or intersecting forms of discrimination that often involve violence and cause psychological and/or psychological harm or suffering.’’
The Committee is giving four criteria for a practice to be regarded as harmful. We will just focus on the aspects that are of importance to the rights of the child.
The criteria in brief are:
1. The practice needs to constitute a denial of the dignity and/or integrity of the individual and a violation of the rights of the child.
2. The practice constitutes discrimination against children and are harmful insofar that they result in negative consequences for them as individuals.
3. The practice is traditional, re-emerging or emerging, and is prescribed by social norms based on inequality of children.
4. The practice is imposed on children by family members, community members or society.
Analysis on the current situation in the DRC
A big part of the population in the DRC beliefs in witchcraft, it is common to find cases of children being accused of demonic possession in the DRC. In most of the cases it comes down to children who’s parents can not take care of them. Study has shown that once blamed of witchcraft, children are stigmatized and discriminated against for life. The children are getting tortured or disowned for allegedly partaking in sorcery. The same study has shown that children who are being suspected of witchcraft are a subject to psychological violence, first by family members and their friends, after that by church pastors or traditional healers. The population of the DRC believe that the children are able to commit the most horrific crimes and that they are drinking the blood and eating the flesh of their relatives. The facts concerning witchcraft are frightful. In 2015 there were 50.000 children living on the streets of the DRC capital Kinshasa, all abandoned after being suspected of witchcraft. Father Alexis Katziota Mungala of the Gallicane Catholic Church says that witchcraft is a part of the Congolese culture. Also Etienne Maleke, who worked with street children for over twenty years, confirmed that it is part of the Congolese tradition. Knowing all this we can conclude that, considering the four criteria, witchcraft can be identified as a harmful practice. This conclusion can also be found in the general comments under paragraph 9, and is therefore in breach of article 24 paragraph 3 of the convention on the rights of the child.
Where the Committee in its report of 2009 was slightly positive about the witchcraft, the Committee now is extremely concerned. In particular about the increasing number of murders and violence against children accused of witchcraft in combination with the impunity faced by committers linked to certain churches. The Committee sees no improvement and reiterates its recommendation of 2009.
Conclusion
As we saw before, witchcraft can be identified as a harmful practice, and therefore it is in breach of article 24 paragraph 3 of the convention of the rights of the child. In the period of 2009 – 2017 the Committee saw no improvements. This is one of the reasons that we think the witchcraft shall not disappear quickly. Also the Congolese culture and traditions play a big role in this. Most of the Congolese people see witchcraft as a tradition and there are no clues that they want to change this view.
Chapter 7: General conclusion
After our research we can conclude that the DRC still has a long way to go if it wants to fully comply to the rights of children. In most of the rights we looked at the DRC made an effort to improve the situation, which was also noticed by the Committee in most cases. However, these efforts were not enough as the situation in the DRC was so bad that the improvements they tried to make were not sufficient by a long shot. In their concluding observations this was also concluded by the Committee in most of the cases we looked at. In the area of witchcraft we even found that there was no improvement at all.
In some cases we even saw that the DRC has introduced a law to improve the situation, but years later the law still wasn’t effective and the situation had not improved (much). The concluding observations by the Committee were made very recent, in which the Committee has stated numerous recommendation for improvement. The DRC needs to take these recommendation very seriously, in our opinion, if they really want to improve the human rights situation in their country. However, we also feel that this will be a real difficult task, because of the unstable situation the DRC is in. The DRC has been plagued by armed conflict and poverty, which makes it really hard to improve the human rights situation. But of course this is no excuse, because in our opinion human rights should exist everywhere in the world, despite poverty or war.