QUESTION 1
a) Background to the Convention on the rights of the Child.
The CRC represents the most comprehensive attempt to date towards universalising
the dominant contemporary discourse on childhood. The Preamble to the CRC defines
the aspirations of the Convention. It makes reference to the Universal Declaration on
Human Rights and alludes to the fact that in the Declaration childhood is entitled to
special care and assistance. Furthermore, the Preamble to the Convention recognises
explicitly that the child requires legal protection provided in a free and secure
environment, which promotes its dignity and equality. More importantly, it recognises
that children have special needs and that they are vulnerable and need to be brought
up in a family environment, in an atmosphere of happiness, love and understanding.
The Convention has provisions which address a variety of child-related issues,
including children’s civil and political, and social, economic and cultural rights. These
include the rights to life, survival and development; the right to health and the child’s
right to be heard in all matters that affect them. It also covers the right to name and
nationality, freedom of expression54 and religion, the right to health56 and the right to
education. The CRC embodies four pillar principles which inform its provisions: non-
discrimination; the best interest of the child; the child’s right to life, survival and
development; and the right of the child to be heard on matters affecting him or her.
The CRC succeeded in establishing binding mechanisms for the review of its
enforcement. To this end, Article 43 of the CRC creates a Committee on the Rights of
the Child (CRC Committee) tasked with monitoring the implementation of the
Convention, and mandates it to examine the progress made by state in achieving their
duties under the Convention. Periodically, State Parties’ are required to submit reports
to the CRC Committee with details on the measures they have taken to give effect to
the rights contained in the Convention.
b) Whether the case will be admissible before the Committee on the Rights of
the Child.
, Article 7 of the Optional Protocol to the Convention on the Rights of the Child regulate
admissibility. It provides that the Committee shall consider a communication
inadmissible when:
a) The communication is anonymous;
b) The communication is not in writing;
c) The communication constitutes an abuse of the right of submission of such
communications or is incompatible with the provisions of the Convention and/or
the Optional Protocols thereto;
d) The same matter has already been examined by the Committee or has been or
is being examined under another procedure of international investigation or
settlement;
e) All available domestic remedies have not been exhausted. This shall not be the
rule where the application of the remedies is unreasonably prolonged or unlikely
to bring effective relief;
f) The communication is manifestly ill-founded or not sufficiently substantiated;
g) The facts that are the subject of the communication occurred prior to the entry
into force of the present Protocol for the State party concerned, unless those
facts continued after that date;
h) The communication is not submitted within one year after the exhaustion of
domestic remedies, except in cases where the author can demonstrate that it
had not been possible to submit the communication within that time limit.
The Kangala Constitutional Court as the apex court has heard similar matters and has
dismissed those cases regarding the right to education of children living with disability
on grounds of resources constraints. This means that CSJ has exhausted the
domestic remedies and therefore qualifies to approach the Committee on the Rights
of the Child. The Committee will have jurisdiction to deal with the matter brought by
ACERWC on behalf of CSJ since the Kangala has ratified all major United Nations
Convention including the Convention on the Rights of the Child and all its Protocols
and the Convention on the Rights of Persons with Disabilities and its Protocols.
c) The principle of exhaustion of domestic remedies; its rationale and whether
this prerequisite is flexible or inflexible.
a) Background to the Convention on the rights of the Child.
The CRC represents the most comprehensive attempt to date towards universalising
the dominant contemporary discourse on childhood. The Preamble to the CRC defines
the aspirations of the Convention. It makes reference to the Universal Declaration on
Human Rights and alludes to the fact that in the Declaration childhood is entitled to
special care and assistance. Furthermore, the Preamble to the Convention recognises
explicitly that the child requires legal protection provided in a free and secure
environment, which promotes its dignity and equality. More importantly, it recognises
that children have special needs and that they are vulnerable and need to be brought
up in a family environment, in an atmosphere of happiness, love and understanding.
The Convention has provisions which address a variety of child-related issues,
including children’s civil and political, and social, economic and cultural rights. These
include the rights to life, survival and development; the right to health and the child’s
right to be heard in all matters that affect them. It also covers the right to name and
nationality, freedom of expression54 and religion, the right to health56 and the right to
education. The CRC embodies four pillar principles which inform its provisions: non-
discrimination; the best interest of the child; the child’s right to life, survival and
development; and the right of the child to be heard on matters affecting him or her.
The CRC succeeded in establishing binding mechanisms for the review of its
enforcement. To this end, Article 43 of the CRC creates a Committee on the Rights of
the Child (CRC Committee) tasked with monitoring the implementation of the
Convention, and mandates it to examine the progress made by state in achieving their
duties under the Convention. Periodically, State Parties’ are required to submit reports
to the CRC Committee with details on the measures they have taken to give effect to
the rights contained in the Convention.
b) Whether the case will be admissible before the Committee on the Rights of
the Child.
, Article 7 of the Optional Protocol to the Convention on the Rights of the Child regulate
admissibility. It provides that the Committee shall consider a communication
inadmissible when:
a) The communication is anonymous;
b) The communication is not in writing;
c) The communication constitutes an abuse of the right of submission of such
communications or is incompatible with the provisions of the Convention and/or
the Optional Protocols thereto;
d) The same matter has already been examined by the Committee or has been or
is being examined under another procedure of international investigation or
settlement;
e) All available domestic remedies have not been exhausted. This shall not be the
rule where the application of the remedies is unreasonably prolonged or unlikely
to bring effective relief;
f) The communication is manifestly ill-founded or not sufficiently substantiated;
g) The facts that are the subject of the communication occurred prior to the entry
into force of the present Protocol for the State party concerned, unless those
facts continued after that date;
h) The communication is not submitted within one year after the exhaustion of
domestic remedies, except in cases where the author can demonstrate that it
had not been possible to submit the communication within that time limit.
The Kangala Constitutional Court as the apex court has heard similar matters and has
dismissed those cases regarding the right to education of children living with disability
on grounds of resources constraints. This means that CSJ has exhausted the
domestic remedies and therefore qualifies to approach the Committee on the Rights
of the Child. The Committee will have jurisdiction to deal with the matter brought by
ACERWC on behalf of CSJ since the Kangala has ratified all major United Nations
Convention including the Convention on the Rights of the Child and all its Protocols
and the Convention on the Rights of Persons with Disabilities and its Protocols.
c) The principle of exhaustion of domestic remedies; its rationale and whether
this prerequisite is flexible or inflexible.
