Bridget Clampett and Eric Atmore
As we celebrate Universal Children’s Day today, the reality is that South Africa’s children face numerous challenges resulting from widespread poverty and inequality. These challenges include child-headed households; orphans and vulnerable children; the inequality of the education system; inadequate housing; widespread hunger; limited access to basic services; HIV/Aids; and inadequate child health care. Two-thirds of South African children live in poverty.
Since the demise of apartheid in 1994, legislation has been passed and policies formulated to address these challenges faced by children. The South African constitution of 1996 includes the Bill of Rights, which sets out the rights of children – to education, shelter, health and freedom from maltreatment, among others. A number of laws pertaining to the rights of children have also been passed.
These include the Children’s Act (2005); the Children’s Amendment Bill (2006); the Prevention of Family Violence Act (1993); the South African Schools Act (1996); the Child Justice Act (2008); and the Domestic Violence Act (1998). Despite this, it is clear that as a country, we are not effective in protecting and advancing the rights of children. To address these challenges, stakeholders in the children’s sector are unanimous that an ombudsperson for children is necessary, and that we urgently need to explore the role, scope and powers of such an office.
According to the South African Child Gauge (2012), as of 2010 there were 18.5 million children, of whom 21 percent were orphans, 24 percent were not living with a biological parent, and 0.5 percent were living in child-headed households. In terms of income poverty, 60 percent of children were living below the poverty line and of these children 35 percent were living in a home where no adults received a salary.
Child health is another concern. The under-5 mortality rate was 56 deaths per 1 000 live births in 2009, and the infant mortality rate was 40 deaths per 1 000 live births. Three percent of children under the age of 15 were believed to be HIV-positive and 17 percent were faced with hunger. In terms of access to education in 2009, 97 percent of children were enrolled in primary schools. However, this does not reflect the rate of more than 50 percent drop-outs occurring before children reach Grade 12, nor does it indicate the quality of the education outcomes.
Access to housing is another significant issue in South Africa: 2 million children live in inadequate housing and 23 percent of children live in overcrowded houses. Children in these circumstances are vulnerable to many forms of abuse due to the lack of a family safety net. One such form of abuse is coercion into sexual activities to earn income for necessary living expenses.
The need to establish an office of the children’s ombudsperson has been voiced for a number of years. This is driven by the fact that despite the legislation intended to protect children, the situation is dire and necessitates an independent position, such as an ombudsperson tasked with protecting children’s rights and well-being.
Recent research suggests that there are five key roles which an ombudsperson could play. The central role involves safeguarding and promoting children’s interests” through promoting their rights and welfare. The second is reviewing and monitoring the operation of complaints procedures, which includes examining the operations and arrangements for resolving complaints in order to establish whether or not they are effective in protecting and promoting children’s rights and welfare.
These operations may involve representing the views of children or offering guidance about their rights. Investigating complaints is the third role of an ombudsperson for children. This involves examining the type of cases presented. The specific circumstances under which an examination may be undertaken, and the procedure that the ombudsperson should follow, should be specified in legislation.
The fourth role is assisting children who are using complaints procedures. The final role is reviewing the effect on children of the exercise of functions by public bodies, which involves evaluating the effect of any legislation on children, that is either in effect or proposed.
An ombudsperson for children would require independence, authority and power, and would be capable of fulfilling responsibilities only if such independence was stipulated in our constitution.
In the South African context, the ombudsperson for children should be a Chapter Nine institution, accountable to the National Assembly. To be successful, the office should have the power to fulfil its role, including the capacity to retrieve relevant information for cases from specific persons when necessary, and to enforce the examination of witnesses.
The movement to establish an ombudsperson for children in South Africa is not new. During the drafting of the Children’s Act, the Law Reform Commission considered such a position. However, in the end, it was not included as the “protections afforded children in these drafts were considered adequate” (Parliamentary Liaison Office, 2014). Due to the slow and limited implementation of the current Children’s Act, and the subsequent absence of services for children in crisis, the desire to implement an ombudsperson for children has returned to the agenda, led by Molo Songololo and other organisations.
An additional challenge is that if insufficient resources were allocated to this office, this would result in limited effectiveness, thus the office of the ombudsperson for children should be equipped with an adequate number of qualified staff who possess a thorough knowledge of the children’s rights environment.
For an office of the ombudsperson for children to be effective in a South African context, there should be sufficient resources, staff and mechanisms in place that ensure accessibility for all children and their families.
The jurisdiction of an ombudsperson for children should include all children residing in South Africa, regardless of their nationality, and all children should be able to lodge complaints. Accessibility should be through established provincial offices and also through a toll-free line.
Although it is clear that there is an urgent need for an ombudsman, a key challenge is to overcome the lack of political will.
l Clampett is a social worker who will graduate with her Honours degree in social development later this year. Atmore is adjunct associate professor in the department of social development at UCT and director of the Centre for Early Childhood Development.