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United Nations Committee on the Rights of the Child - States Parties Reports |
UNITED
NATIONS |
|
CRC
|
|
Convention on the Rights of the Child |
Distr. GENERAL CRC/C/3/Add.57 8 August 2000 ENGLISH Original: FRENCH |
COMMITTEE ON THE RIGHTS OF THE CHILD
CONSIDERATION OF REPORTS SUBMITTED BY STATES
PARTIES
UNDER ARTICLE 44 OF THE CONVENTION
Initial reports of States parties due in 1992
Addendum
DEMOCRATIC
REPUBLIC OF THE CONGO*
[28 February 1998]
* Following the request
addressed to the authorities of the Democratic Republic of the Congo by the
Committee on the Rights of the
Child on 1 April 1998, the first part of the
initial report has been updated; a revised version was submitted on 14 June 2000
and
is incorporated in this document.
GE.0043826 (E)
CONTENTS
Paragraphs Page
FOREWORD 4
Part One
General information
I. LAND AND PEOPLE 1 10 5
A. Land 1 5 5
B. People 6
10 5
II. SOCIOECONOMIC INDICATORS 11 31 7
A. Principal
economic data 14 7
B. The social situation 15 31 9
III. POLITICAL
STRUCTURE 32 38 13
IV. GENERAL LEGAL FRAMEWORK FOR THE
PROTECTION
OF THE RIGHTS OF THE CHILD 39 48 14
A. Protection at the national
level 40 14
B. Protection at the international level 41
42 14
C. Remedies 43 45 15
D. The structure of the
judiciary 46 16
E. Human rights instruments and national
legislation 47 16
F. Associations for the defence of human
rights 48 16
V. INFORMATION AND PUBLICITY 49 17
Part Two
Implementation of the
Convention
INTRODUCTION 50 59 18
A. The
child in Congolese society 50 54 18
B. The protection of the child by the
Convention
on the Rights of the Child 55 19
C. Commitment of the
State 56 57 19
D. Working methods 58 59 20
CONTENTS (continued)
Paragraphs Page
I. EXAMINATION OF LEGAL
TEXTS OF RELEVANCE
TO THE CONVENTION 60 87 21
A. The transitional
Constitution 61 62 21
B. The Criminal Code 63 71 22
C. The Family
Code 72 86 24
D. The Labour Code 87 27
II. ACTIVITIES, MEASURES
AND OBSTACLES RELATING
TO THE IMPLEMENTATION OF THE CONVENTION 88
216 27
A. Definition of the child 88 90 28
B. General
principles 91 98 28
C. Civil rights and freedoms 99 112 30
D. Family
environment and alternative care 113 130 34
E. Health and wellbeing of the
child 131 148 39
F. Education, leisure and recreational activities 149
167 42
G. Special protection measures 168 208 47
H. Observance of
established norms 209 210 56
I. General measures of implementation and
entry
into force of the Convention 211 216 56
III. DECISIONS AND
RECOMMENDATIONS 217
222 58
A. Decisions 218 58
B. Recommendations 219
222 59
CONCLUSION 223 225 60
FOREWORD
There can be no denying the importance of young people in the
construction of tomorrow’s Democratic Republic of the Congo.
Over
50 per cent of the population (45.5 million persons in 1995) are below the
age of 18 years. This is the group of persons covered
by the Convention on the
Rights of the Child, the actual implementation of which is analysed in the
various chapters of this initial
report.
The Government wishes, through
the intermediary of the National Committee on Children, to thank UNICEF, which,
by financing this
study, enabled the Government to meet its commitment to submit
its initial report on the implementation of the Convention.
The
principal constraint met with in the completion of this task has been the
insufficiency or total lack of reliable data. That
situation implies the
preparation of additional studies on children in particularly difficult
situations, and in particular on street
children, children subject to sexual
abuse, conscripted children and participants in armed conflicts, all these being
fields covered
by the Convention. These studies will prepare the way for the
preparation of the periodic reports which the Government of the Democratic
Republic of the Congo will have to submit to the Committee on the Rights of the
Child in future years.
On completing this task we express our
appreciation of the contributions of the individuals and institutions which
assisted in its
preparation (see appendix).
Part One
General information
I.
LAND AND PEOPLE
A. Land
1. The Democratic Republic of the Congo is a central African country
situated on both sides of the Equator. It is bordered on its
north side by the
Central African Republic and Sudan, in the east by Uganda, Rwanda, Burundi and
the United Republic of Tanzania,
in the south by Zambia and Angola and in the
west by the Atlantic Ocean, the Cabinda enclave and the Republic of the
Congo.
2. The Democratic Republic of the Congo is a huge country with a
total area of 2,345,409 square kilometres; the land is mostly flat.
In the centre of the country there is a broad basin (cuvette), of an average
altitude of 350 metres; it is covered by equatorial
forest, interspersed with
numerous marshy areas. This central basin is bordered by plateaux rising in
successive steps except in
the east, where mountains of volcanic composition
predominate; their average height is over 1,000 metres.
3. The country is
situated astride the Equator; it has a hot and humid climate
(average 25° centigrade), and rainfall is regular
and heavy.
Rainfall and temperatures gradually decline as one moves eastwards. The year is
divided into two seasons: a dry season,
lasting almost four months, and a long
rainy season.
4. The country has a substantial river network. The river
Congo crosses the entire country in a general northwesterly direction
before
flowing into the Atlantic Ocean; it is 4,700 kilometres long,
with a discharge rate exceeded only by the Amazon. It is fed by a
number of
tributary rivers and is navigable along the greater part of its length.
5. The soil and subsoil are rich in important and varied agricultural
and mineral resources.
B. People
1. Demography
6. In 1956 the population was estimated at 12,768,705 persons. By 1960
it had increased to 14,106,666; the administrative census
of 1970 gave a
figure of 20,700,500, and the scientific census conducted on 1 July 1984
established the population at 30,731,000.
According to projections undertaken
by institutions specializing in the subject, and in particular the
United Nations Population
Fund (UNFPA), the population was estimated at
43 million persons in 1995 and 47,500,000 in 1999; it was expected to reach
52,099,000
by the year 2000.[1]
The Democratic Republic of the Congo is one of the most populous countries in
Africa. The population structure by age and sex has
the form of a pyramid with
a broad base, concave sides
and a narrow apex. This is due to overall growth of the population: in 1997
the latter included
25.9 million individuals under age 18.
[2] The natural rate of
population increase is 3.4 per cent (19901998); the fertility rate is 6.4. Life
expectancy at birth rose from
age 45 in 1970 to age 51 in 1998.
7. A
breakdown of the population by zone reveals the following features of the
demographic situation:
(a) Since 1993, 60 per cent of the population has
been living in rural areas and 40 per cent in urban centres with 5,000
or more
inhabitants; the degree of concentration in urban areas varies
considerably from province to province;
(b) In Maniéma the
proportion of the population in urban areas is low; in Kinshasa it is high
(about one tenth of the entire
population);
(c) Rapid growth of the
urban population (7 to 8 per cent); the concentration of 28 per cent
of the entire urban population in Kinshasa;
and the high rate of emigration from
rural areas;
(d) An uneven geographical distribution of the population; the
highest population densities are found in the city of Kinshasa and
the provinces
of BasCongo, Kivu (Nord and Sud) and Maniéma.
2. Ethnic groups
8. The population is divided into over 450 tribes, which can be
classified into four major groups, each firmly established in a particular
territory. The largest tribe (18 per cent) is the Luba (or Baluba) living in
CentreSud; the next largest is the Kongo (16.6 per
cent), living in
BasCongo. The northeast region is inhabited by the Mongo
(13.5 per cent), the groups speaking Rwandan and Burundian
languages
(3.8 per cent), the Zandé (6.1 per cent), the
Mangbetu and a large number of other ethnic groups. The Chokwé
and the
Lunda are to be found along the frontier with Angola. The Pygmies (less than
0.5 per cent) are to be found in Equateur and
Orientale provinces.
3. Languages
9. In the Democratic Republic of the Congo the official language is
French. In addition, some 250 languages and dialects are in widespread
use. Of these, 90 per cent are of Bantu origin. Four of them are
referred to as “national languages”, namely: (a)
Swahili
(40 per cent) in the east, in Nord and Sud-Kivu, Katanga, Orientale
and Maniéma provinces; (b) Lingala (27.5 per cent)
in
Kinshasa (the capital) and the neighbouring areas, and in Equateur and Orientale
provinces; (c) Kikongo (17.7 per cent) in BasCongo
and Bandundu;
and (d) Chiluba (15 per cent) in the two provinces of Kasai
(Oriental and Occidental). It should also be mentioned
that in the northern
part of the country the many spoken languages belong to the NegroCongolese
family (Ubangian subgroup) and the
NiloSaharan families (central Sudan group and
Nilotic subgroup).
4. Religion
10. Although according to its Constitution the Democratic Republic of the
Congo is a secular State, there are nevertheless five traditional religious
denominations: Roman
Catholic, Kimbanguist, Protestant, Orthodox and Muslim.
There are also several religious sects within the country. However, there
are
still a few animists.
II. SOCIOECONOMIC INDICATORS
11. Against a background of structural imbalance in the fields of
production and services, the economic development of the Democratic
Republic of
the Congo has been extremely patchy. Between 1983 and 1989 the situation was
relatively stable. In 1990 the country
entered a period of economic crisis
which lasted until 1996; that period was marked by a breakdown of the principal
economic equilibria,
which found expression in high rates of inflation and
currency depreciation, a fall in production, generalized unemployment and
extreme
poverty. That situation a characteristic feature of the Second
Republic was primarily attributable to lax financial and budgetary
management together with unplanned expenditure met by recourse to the printing
press.
12. Between May 1997 and July 1998, following the establishment of
the new regime, the principal economic indicators showed a remarkable
improvement in the situation, particularly in the areas of prices, currency and
public finance. This situation led the Government
to launch a new
currency the Congolese franc the parity and exchange rates of which
against the principal foreign currencies were
encouraging. Unfortunately, since
2 August 1998 the principal economic equilibria have once again been
disrupted on account of the
attack launched against the country by the
RwandaBurundiUganda coalition.
13. That war has given rise to
hyperinflation. The latter has had serious repercussions for the purchasing
power of the population,
which it has reduced to poverty. At the same time it
has given rise to a significant fall (estimated at 3.15 per cent) in
gross
domestic product (GDP). The rate of inflation fell from
656.8 per cent in 1996 to 13.7 per cent in 1997 and
2.2 per cent in July
1998. But in the absence of any revival of
production, and in the light of the conflictual atmosphere prevailing in the
country,
the results achieved have been precarious and uncertain. This explains
why the inflation rate rose from 196.3 per cent in September
1999
to 489 per cent in
December 1999.[3]
A. Principal economic data
14. The following is a summary of the principal data relating to the economic
situation
in 1998:[4]
(a) Production:
estimated GDP 3.15 per cent;
(b) Market inflation: 108.5
per cent;
(c) Public finance: on 31 August 1998 the position was as follows:
− Income: US$ 263.8 million
− Expenditure: US$ 352.9 million
− Balance: US$ 89.1 million;
(d) Balance of
payments: the deficit during the first six months of 1998 was
US$ 250 million (as against US$ 363.9 million in
1997);
(e) Exchange rates: in September 1998 the Congolese franc (Fc)
stood at 1.80 to a United States dollar. In January 2000 the official
rate
was 9 Fc to the dollar (parallel market rate: 30 Fc);
(f) Money in
circulation: on 23 September 1998: 491.5 million Fc on 23 September1998
(as against 228.34 million Fc on 31 December
1997);
(g) Currency reform:
this reform was launched on 30 June 1998. It permitted the introduction of a
uniform currency throughout the
country, the establishment of a system of
payments through the banks, the unification of the exchange rate and the
restructuring
of the banking system;
(h) External
indebtedness:
In 1975: US$ 1,718 million (25 per cent of
GNP)
In 1986: US$ 5,430 (97 per cent of GNP)
Total indebtedness: US$ 12,948.38 million in September 1998 (as against US$ 12,263.52 million on 30 June 1997)
Debt servicing: US$ 8,304.63 million on 30 June 1998;
(i) Incomes and
wages: price instability and the steady fall in the purchasing power of
the working masses are evidenced by the
gross rate of GDP per inhabitant, which
fell from US$ 170 in 1989 to US$ 120 in 1992 and 117 in 1993; today it
stands at approximately
US$ 90;
(j) Money and finance: in
this area three principal facts may be borne in mind:
(i) A high rate of inflation, a consequence of the low level of national production caused by the protracted economic crisis, aggravated by the war of aggression of which the Democratic Republic of the Congo has been the object for the last two years;
(ii) The serious disequilibrium in the balance of payments, giving rise to a rapid depreciation of the Congolese franc and a heavy burden of external indebtedness;
(iii) The deterioration of public finances, which showed large deficits;
(k) Investment: public investment has shown sharp falls, owing mainly to the degradation of basic infrastructures and the fall in production.
B. The social situation
15. The deterioration of the social fabric began at the end of the 1970s.
It was accelerated by a series of unfortunate events, namely
the 1974
“Zairianization” campaign and the two outbreaks of looting in
October 1991 and September 1993. However, the
war of liberation of 1996/97 and
the accession to power of the new regime opened prospects for a national
reconstruction aimed at
the rehabilitation of basic social
services.
16. But that process was halted by the war of aggression
against the Democratic Republic of the Congo which has been going on since
2
August 1998 and is still continuing, notwithstanding the signature of ceasefire
agreements on 10 July 1999 in Lusaka and on 14
April 2000 in Kampala. The
social sectors worst affected by these crises include health, education and the
protection of the child.
1. The health sector
17. During the last 20 years the health situation has deteriorated
considerably. Evidence of this is to be found in the basic data
set out in the
following paragraphs:
18. Children and adolescents:
Infantile
mortality rate: 125 per mille
Perinatal mortality:
80 per cent
Mortality among underfives: 213 per mille
Weight
insufficiency: 15 per cent
Malnutrition among children under age
5: 50 per cent
Immunization coverage (199099): 29
per cent.
Children aged one year having received a complete series
of vaccinations against:
Tuberculosis (1995): 46 per cent
Diphtheria, chickenpox and
tetanus: 26 per cent
[In 1999, chickenpox and tetanus: 57.1 per cent]
Measles (1995): 39 per cent
Poliomyelitis (1995): 27 per cent.
During the 1999 vaccination campaign the percentages were as follows: phase
1: 96.4 per cent; phase 2: 92.4 per cent; phase 3:
94.2 per cent. It
should be mentioned that during this campaign vitamin A was added to the
antipoliomyelitis vaccination administered
to children under
5.
19. Breastfeeding:
Percentages of infants breastfed
(199099):
Entirely breastfed (03 months): 32 per cent
Breastfeeding
together with weaning foods: 40 per cent
Protracted breastfeeding (2023
months): 64 per cent.
Educational campaigns promoting breastfeeding have
been launched with the aim of warning parents against the potential dangers of
feeding infants exclusively on artificial foods. In 1999 the Government adopted
the International Code of Marketing of BreastMilk
Substitutes, but has yet to
give it force of law.
20. HIV/AIDS
In 1997, 310,000 children
under age 15 whose parents, or whose mothers, had died of AIDS were
identified.[5] The rate of
prevalence among adults is 4.4 per cent. The rate of transmission of HIV from
mothers to children is 40 per cent.
The Government, with the assistance
of external partners and in cooperation with NGOs, has launched programmes to
strengthen the
ability of families and communities to look after orphans and
other children affected by this disease.
− Induced abortions among adolescents: 16.2 per cent
− Unwanted pregnancies: 30 per cent of all pregnancies.
21. Women of childbearing age
High
maternal death rate: 1,837 maternal deaths per 100,000 live births
Extent
of coverage of prenatal care: 67.2 per cent
Birth rate: 48 per
mille
Fertility rate: 217 per mille.
22. Water and
sanitation
Percentage of population with access to safe water (199098):
Total: 42 per cent
In urban areas: 89 per cent
In
rural areas: 26 per cent.
Percentage of the population with access to reliable sanitation (199098):
Total: 18 per cent
In urban areas: 53 per cent
In rural
areas: 6 per cent.
23. Consumption of iodized salt
During
the period 199298, 90 per cent of households were consuming iodized salt. The
aim is to ensure that children do not suffer
from intellectual or physical
deficiencies or other disorders caused by a lack of iodine. Certain regions of
the Democratic Republic
of the Congo (Equateur, BasCongo) are particularly
severely affected.
2. The educational sector
24. In 1999, out of 12 million children of school age (between ages 6 and
15), only half (6 million) were attending school. Of the
latter, 42
per cent are girls; but threequarters of them leave school before completing
primary schooling, in particular, on account
of the poverty of their
parents,[6] early marriage or
unplanned pregnancies.
Adult literacy rate:
1980: men: 75
per cent
women: 45 per cent
1995: men: 87 per
cent
women: 68 per cent
Enrolment rate in primary
education:
199097 (gross): boys: 86 per cent
girls: 59 per
cent
199996 (net) boys: 71 per cent
girls: 50 per
cent
Enrolment rate in secondary education:
199096: boys: 32
per cent
girls: 19 per cent
Net attendance rate in primary
education:
199098: boys: 59 per cent
girls: 53 per
cent
1999 overall: 39 per cent.
25. During the period 199095, only 64 per cent of children who enrolled in
the first year of primary education reached the fifth year.
The principal
causes of the qualitative and quantitative deterioration of basic education are
the breakdown of structural cooperation
and the small size of the education
budget (24 per cent in 1980 and 10 per cent in 1989, falling to 1 per cent in
1999), the low
purchasing power of families and the loss of motivation among
teachers on account of the economic crisis which the country is
undergoing.
3. The protection of children
26. The economic crisis and the armed conflicts from which the country is
suffering are still taking a heavy toll of child victims.
New categories of
children requiring special protection measures unaccompanied children in
population displacements caused by the
war; street children; children being
economically or sexually exploited; children who are caught up in mining
operations; and child
soldiers are appearing.
(a) Child
soldiers[7]
27. The
war of liberation of 19961997 and the people’s determination to safeguard
national sovereignty in the face of the war
of aggression launched against the
Democratic Republic of Congo induced a considerable number of young Congolese to
enrol in the
combatant forces. On 67 December 1999 the Government, in
cooperation with UNICEF and other partners, organized an African forum
in
Kinshasa on the demobilization and reinsertion of child soldiers. From that
conference emerged a set of guidelines for the process
of demobilization and
social reintegration of child soldiers in Congo.
28. The National
Commission on Demobilization and Reintegration (CONADER), a coordination
mechanism covering the key technical ministries
and established by presidential
decree, has been charged with the implementation of that process. The
precondition for the commencement
of operations within this structure is the
cessation of hostilities, since no viable activity can be accomplished unless
peace and
security are achieved.
(b) Street
children[8]
29. There
are currently between 15,000 and 20,000 street children in Kinshasa. The scale
of this highly complex phenomenon can be
attributed to a number of factors, and
in particular the poverty experienced by families on account of the economic
crisis, the breakup
of families following events such as divorce and
displacements due to the war, the abandonment of children believed to have
magical
powers and the death of parents caused by AIDS.
(c) Children
in the mining
basins[9]
30. This
category includes two types of children:
(a) Children forced to work in
artisanal mining enterprises, more particularly in the provinces of Kasai
orientale, Kasai occidentale
and Orientale;
(b) Children whose existence
is affected by the presence of mines in their vital environment.
As a
rule these children do not have access to basic social services (health,
education).
(d) Child victims of AIDS
31. This group of
children comprises children one or both of whose parents have died of AIDS and
those who are themselves infected.
In 1997 the number of children under age 15
whose mothers, or both of whose parents, had died of AIDS was estimated at
310,000.
III. POLITICAL STRUCTURE
32. After over 30 years of a oneparty, dictatorial and highly centralized
regime, new prospects were opened up in April 1990 through
a political
dialogue which was to lead to the establishment of democratic institutions of a
nature to guarantee the enjoyment of
the fundamental rights of the citizens and
national development.
33. But this process, which was planned to take
three years, lasted seven years, and even so remained unfinished on account of
the
dilatory manoeuvres of the political leaders of the Second Republic.
Thus the lack of national consensus led to social tensions,
which found
expression in the outbreaks of looting in 1991 and 1993 and the general climate
of insecurity.
34. The entry into office of the Government of Public
Salvation on 17 May 1997 permitted a break with the former system.
The Republic
of Zaire became the Democratic Republic of the Congo and committed
itself to a course of national reconstruction, the political objective
within
which was the creation of a sovereign nation and a State governed by the rule of
law, democracy and social justice and with
political power commensurate with its
geographical situation, its extent and its substantial natural resources, the
better to contribute
to the development of Africa.
35. To translate those
objectives into reality, the authorities adopted a new political philosophy
which was to guide the development
of the country. The programme for the
achievement of those objectives was as follows:
(a) During the first
half of 1998: the establishment of a constitutional and electoral commission.
That body drew up a draft constitution,
which was submitted to the political and
social forces for study, and started to prepare for
elections;
(b) During the second half of 1998: consultation of the
dynamic forces within the nation in order to initiate a dialogue which was
to
lead to internal cohesion. In October 1998 the Head of State held meetings
with the principal political organizations, civil
society and the Episcopal
Conference of Bishops in the Congo, who submitted to him their plan for peace
and national reconstruction;
(c) In January 1999 Decree 194, concerning
the forms, organization and functioning of political parties and associations
was signed;
(d) AprilDecember 1999: referendum on the Constitution and
elections at all levels.
36. It is clear that the war of oppression directed
unjustly against the Democratic Republic of the Congo since
2 August 1988 by the
BurundiRwandaUganda coalition has upset the
political calendar and thus jeopardized the future of the process of
democratization
and development in the country.
37. Above all, children
are the worst sufferers from this war, which, in the provinces occupied by
foreign troops, and particularly
in Kisangani city, is still causing deaths and
disrupting access to basic services, including vaccination against
poliomyelitis,
a nationwide campaign against which is being successfully
conducted in the provinces under government control.
38. The Government
of National Salvation is determined to restore security and peace throughout the
country and has taken part in
the different meetings organized at regional level
by the OAU and the SADC, and at the level of the United Nations, which led to
the signature of the ceasefire agreement of 10 July 1999 in Lusaka
(Zambia).
IV. GENERAL LEGAL FRAMEWORK FOR THE PROTECTION
OF THE RIGHTS OF THE CHILD
39. The protection of fundamental human rights
is guaranteed by DecreeLaw No. 003 of 27 May 1997,
article 9 of which stipulates that
“the human being is sacred. The
State has the obligation to respect and protect it”.
A. Protection at the national level
40. This protection is provided by a number of legal provisions which in
practice constitute the body of legislation which should
be applicable to every
child, whether boy or girl born within or outside marriage, handicapped or not,
living in a family environment
or on the streets. The relevant provisions are
to be found in DecreeLaw No. 003 of 27 May 1977 concerning the
organization and exercise
of power in the Democratic Republic of Congo, as
subsequently amended; in the Family Code; in the Criminal Code; and in the
Labour
Code. It should be mentioned that since the entry into force of
DecreeLaw No. 003 of 27 May 1997 that instrument has regulated
the
exercise of power; in article 2 it guarantees individual and collective
rights and freedoms, subject to compliance with the law,
public order and
morals.
B. Protection at the international level
41. In addition to the Convention on the Rights
of the Child (ratified on 22 August 1990), the Democratic Republic of
the Congo is
a party to other international instruments on the protection of
human rights, and in particular:
− The International Covenant on Economic, Social and Cultural Rights (ratification 16 December 1996);
− The International Covenant on Civil and Political Rights (16 December 1996);
− The International Convention on the Elimination of All Forms of Racial Discrimination (21 December 1965);
− The International Convention on the Suppression and Punishment of the Crime of Apartheid (30 November 1973);
− The Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948);
− The Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979);
− The Convention on the Political Rights of Women (20 December 1952);
− The Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (7 September 1956);
− The Convention relating to the Status of Refugees (28 July 1951) and the Protocol relating to the Status of Refugees (16 December 1966);[1]
− The 1949 Geneva Conventions.
These various provisions
are complied with by the authorities, the police, courts and tribunals and
administrative institutions (the
ministries responsible for public health,
social affairs and the family, human rights, reconstruction, labour and social
insurance).
42. Other national institutions have been established to
ensure the promotion of the rights of the child. The most important of these
are the National Council for Children (CNE) and the Provincial Councils for
Children (CPEs), within which there are representatives
of public institutions,
nongovernmental organizations (NGOs) and secular and religious associations
active in matters concerning
children. The NGOs caring for children in
difficulties have joined together in a nationwide body known as the CNOS in
order to harmonize
their interventions and to rationalize the use of the limited
resources available.
C. Remedies
43. In the Democratic Republic of Congo remedies are available at
administrative and judicial levels.
1. Administrative remedies
44. In the event of a measure deemed prejudicial, any official may request
his immediate superior to reconsider a decision or appeal
to a higher
administrative authority. He also has the right to appeal to the administrative
inspectorate if he finds the measures
taken unsatisfactory. However, as a
general rule such matters are settled informally. Only where conciliation fails
is a case referred
to the judicial authorities.
2. Judicial remedies
45. The Democratic Republic of the Congo recognizes that any person involved
in a justiciable dispute has the right of appeal to a
higher court. Any
judgement handed down by one court may be reviewed or quashed by a higher court.
The different forms of remedy
are: opposition, appeal, review, (according to
whether the matter is one for customary or criminal law) and cassation.
D. The structure of the judiciary
46. The structure of the judiciary in the Democratic Republic of the Congo is
as follows:
− district court;
− court of first instance;
− court of appeal;
− military court;
− Supreme Court of Justice.
E. Human
rights instruments and national legislation
47. National legislation and more specifically DecreeLaw No. 003 of 27 May 1997, the Penal Code and the Labour Code has been inspired to a considerable degree by the instruments relating to human rights. As legal instruments are published in the Official Gazette, the Congo is able to ensure that its domestic legal system is in conformity with the international legal order.
F. Associations for the defence of human
rights
48. The organizations active in the defence of human rights include in
particular:
− The Congolese Human Rights League (LICODHO);
− The Congolese League for the Defence of Human Rights;
− The African Zone League for the Defence of the Rights of Schoolchildren and Students (LIZADDEL);
− The Congolese Section of the International Association of Human Rights Judges and Advocates;
− The National League for Free and Transparent Elections (LINELIT);
− The League of Teachers in Civic Education (LECI);
− The Programme for the Rehabilitation and Protection of Pygmies;
− The Human Rights Federation;
− The Union for the Defence of the Free Press and Human Rights;
− The Congolese Centre for the Promotion of the Rights of Women and Children (CCDEF).
V. INFORMATION AND PUBLICITY
49. Information on human rights in general is transmitted through the
mass media (newspapers, periodicals and the audiovisual media),
the bulletins of
the human rights organizations such as LINELIT, the publication in national
languages of the Convention on the Rights
of the Child and other legal texts,
official publications (such as Revue Libota, published by the Ministry of Social
Affairs and
the Family), the White Paper issued by the Ministry for Human Rights
and the different campaigns, such as the vaccination campaigns,
etc.
Part
Two
Implementation of the
Convention
INTRODUCTION
A. The child in Congolese
society
50. When considering the problems of children in an African environment generally, and in a Congolese environment in particular, a distinction must be made between their place during the precolonial period, which was marked by essentially traditional or ancestral values, and that during the colonial and postcolonial period, which has induced Africans, and particularly Congolese, to adopt a path of “authentic” modernity and still motivates them to continue on that path.
1. The child before colonization
51. As everywhere in Africa, in the traditional Congolese environment a child
was an asset to the clan and the community to which
it belonged; consequently,
its education was the concern of everyone. It developed, especially at primary
level, in a spirit of
relational conformism. Respect for traditional and
ancestral practices took precedence over individual rights and freedoms. Thus,
the practice of marriage of a girl before puberty and without her consent, that
of female circumcision and other practices which
modern thinking considers as
retrograde derived their rationale from this context of development, which was
dominated by community
concepts of human
rights[11] and the rights of
the child. The protection of the child in a traditional environment is still a
natural right based on the dignity
of its person as a human and social being.
52. This affirmation may seem to run counter to generally accepted
modern opinion, which designates African States as champions in
the field of
violations of human rights. It is not denied that cases of “violation of
the rights of the child” did exist
during the precolonial period; however,
it must be pointed out that that judgement often fails to take account of the
specifically
African and Congolese context, which, moreover, is in the throes of
a development crisis. A systemic approach appears to offer the
best way of
understanding the facts and events in their development context.
2. The child during and after colonization
53. It is particularly in the urban and modern environment that the welfare of children was to give rise to problems. Currently many children in Africa generally and in Congo in particular find themselves in highly critical situations as a result of the rapid changes in the context of their development, and in particular the erosion of the community spirit and approach to life under the influence of modernism. Thus, the members of the Colonial Council justified the drafting of the decree of 6 December 1950 concerning delinquent children in the following terms:
“The extraordinary development of the Congo, the dislocation of the clans, the outrageous and immoral character of the individualism which is becoming increasingly widespread, the increasing tendency among young people to shake off customary authority and parental discipline, the abandonment of the customary environment and the drift of thousands of children and adolescents into nontraditional cities and centres are giving rise to problems of the utmost seriousness. In particular, in nontraditional centres and in cities the breakdown of morals, the uncontrolled emancipation of women, gambling and drunkenness are having a pernicious influence on young people and are encouraging vagrancy, theft, prostitution and criminality. In the teeming environment of the centres three or four Natives live in a single room in conditions which can be imagined. The consequences of promiscuity constitute an environment of immorality for young people from which it is difficult for them to escape.”[12]
54. Since the country gained its national sovereignty in 1960 these
evils have worsened, creating a development of underdevelopment
in rural areas
and an underdevelopment of development in the
towns.[13] Unemployment, a
lack of occupations for young people and a lack of supervision over them are
some of the factors which have contributed
to the phenomenon of “children
of and on the streets” which is prevalent in African towns in particular.
These many
evils are further compounded by the armed conflicts and civil and
tribal wars which frequently break out. Today the wind of perestroika
is
blowing through the African continent with gale force, destabilizing the
monolithic political regimes of States and driving them
in the direction of a
democracy which has still to find its feet. All these upheavals in Africa are
having dramatic consequences,
particularly for children, to whom special
protection must be given.
B. The protection of the child by the Convention on the
Rights of the Child
55. A child needs special protection. That protection is justified by a lack or insufficiency of discernment on its part, the malleability of its character and its physical and mental state, both of which are in full development.[14] No country in the world can claim to be protecting the child sufficiently. Statistics show that thousands of children are dying from hunger and sickness, are deprived of housing, health care and education, are objects of shameless exploitation in the fields of labour, sexuality and morality and are the victims of many tribal and ethnic wars. Many of them are separated from their parents, lack supervision and affection or are mere victims of illtreatment of all kinds. These evils, which are developing a degree of homogeneity and internationalization, are placing thousands of children throughout the world and particularly in Africa, a continent undergoing a development crisis in conditions of physical, psychological, material, cultural, moral and spiritual insecurity. These are the children who are referred to as being “at social risk”. They attract the attention of Governments and appeal to them for aid and cooperation, both domestically and internationally. Herein lies the reason for giving protection to children and promoting their rights within the framework of a convention, that is to say, a written agreement on which the nations have reached a consensus and the provisions of which are designed to establish standards acceptable to all.
C. Commitment of the State
56. On the theoretical plane, the commitment of the State to defend the
interests of the child is apparent in the principles laid
down in the
transitional Constitution (Constitutional Act of the Transition
Period),[15] and in
particular article 9, which states that “the human being is sacred.
The State has the obligation to respect and protect it”. Article 11
guarantees the fundamental
freedoms of all citizens. Article 20 states that “the care and
education to be given to children and parents constitute, according
to the case,
for parents and children, a right and a duty which they exercise with the help
of the State”.
57. On the practical plane, the commitment of the
State finds concrete expression in a certain number of measures taken at both
the
international and national levels:
(a) At the international level,
Congo ratified the Convention on the Rights of the Child on
22 August 1990 (OrdinanceLaw No. 90/48).
It has adopted the
African Charter on the Rights and Welfare of the Child (Addis Ababa, 1990). It
has taken part in several seminars
and symposia on the protection of the
child;
(b) At the national level there is a ministry responsible for
health, social affairs and the family. Within that ministry the following
institutions have been organized:
(i) The National Action Plan for the Survival, Protection and Promotion of the MotherandChild Couple by the Year 2000. This plan was drawn up by the Ministry of Planning, Reconstruction and Supplies (November 1992);
(ii) The National Committee on Children, an advisory body to the Government, which was set up in 1994. Its task is to follow up on the recommendations of the World Summit for Children and the implementation of national policy on the protection of the child. In its programme of action for 1997 the Committee provided, among other things, for the establishment of regional committees in the provinces, continuous action to promote more widespread knowledge of the Convention on the Rights of the Child and the preparation of a new policy of rehabilitation and reclassification of children.
For the
attainment of the objectives set, cooperation is organized with other ministries
(national education, youth and sports, justice,
etc.), services, NGOs and
specialized agencies of the United Nations whose mandates include the
solution of the problems of children.
D. Working methods
58. In the preparation of this report considerable recourse has been had to
the thoughts set down by Professor Idzumbuir Assop in
her study on the
place of the Convention in domestic
law.[16] The report also
complies with the guidelines laid down by the Committee on the Rights of the
Child regarding the form and content
of initial reports by States parties (15
October 1991). In accordance with those guidelines, this report should enable
Governments:
(a) To conduct a comprehensive review of the measures
undertaken to give effect to the rights of the child under the
Convention;
(b) To monitor progress made in the enjoyment of those
rights; and
(c) To obtain a detailed picture of the implementation of
the Convention, while being aware of the factors and difficulties preventing
compliance with the Convention.
59. The general outline of the second
part of this report is as follows: (a) the first chapter examines the basic
legal texts in
force of relevance to the Convention; (b) the second chapter
analyses the implementation of the Convention, mentioning the activities,
the
measures taken and the obstacles met with; and (c) the third chapter contains
resolutions and recommendations addressed to the
Government, to parents, to NGOs
and to international organizations.
I. EXAMINATION OF LEGAL TEXTS OF RELEVANCE
TO THE
CONVENTION
60. Article 4 of the Convention reads as follows:
“States parties shall undertake all appropriate legislative,
administrative, and other measures for the implementation of the
rights
recognized in the present Convention. With regard to economic, social and
cultural rights, States parties shall undertake
such measures to the maximum
extent of their available resources and, where needed, within the framework of
international cooperation.”
In accordance with the commitment
accepted by the Congo, which has ratified the convention, we shall examine the
level of incorporation
or implementation of the Convention through domestic
legislative instruments. This brief examination will cover the transitional
Constitution, the Criminal Code, the Family Code and the Labour Code.
A. The transitional Constitution
61. The transitional Constitution lays down the basic provisions with which,
as a general rule, all other national legislation must comply.
62. A
child, on the same footing as an adult, enjoys all the fundamental rights
constitutionally guaranteed to all Congolese nationals
without any
discrimination arising from the law or an act of the executive by reason of sex,
religion, membership of a social or
ethnic group, place of birth, place of
residence or political convictions (art. 11). Thus a child
enjoys:
(a) The right to life (art. 9) and to individual and collective
freedom, and in particular freedom of movement, of enterprise, of
information,
of association and of assembly and to take part in processions and
demonstrations, subject to compliance with the law,
public order and morals
(art. 10);
(b) The right to development, peace and the common heritage
of humankind (art. 12);
(c) The right to defend itself in person or
to be assisted in so doing by an advocate of its choice
(art. 15);
(d) The right to freedom of thought, conscience and
religion (art. 17);
(e) The right to freedom of expression (art. 18), to
marry and to found a family with a person of its choice and of the opposite
sex
(art. 20);
(f) The right to education and instruction (art. 21), to
individual and collective ownership of property (art. 22), to the inviolability
of the home (art. 23), to confidentiality of its correspondence,
telecommunications and all other forms of communication (art. 24),
to engage in
commerce (art. 25), to work (art. 28), to strike under the conditions laid down
by law (art. 29) and to a healthy environment
(art. 31).
These
provisions in the transitional Constitution, taken together, are in conformity
with the spirit of the Convention on the Rights of the Child and of the
Universal Declaration
of Human Rights, which has served as a model for all
international legislation on the rights of the child. However, flaws,
shortcomings
and contradictions are occasionally encountered in the
implementation and the form of individual legislative instruments.
B. The Criminal Code
63. On account of its particular situation, a child needs legal protection
before as well as after birth. With this principle in
mind the Criminal Code,
in conformity with the transitional Constitution, protects the child against
every threat to its life and its physical and moral integrity.
1. Abortion
64. Abortion is prohibited and punishable under articles 166 and 167 of the Code. However, the definition of abortion the “expulsion of the foetus from the body of the mother” has omissions and shortcomings with regard to the protection of the human life in process of gestation. These provisions need to be elaborated in the light of scientific knowledge in the field of human reproduction in order better to protect the child.
2. Repression of antinatalist propaganda
65. The provisions of article 178 of the Code, which prohibits any act of a nature to prevent conception (and in particular the sale, distribution, exhibition and popularization of contraceptive devices and methods), give rise to problems in the light of the presidential ordinance of 14 February 1973, which established the National Council on Desirable Births (CNND) and empowered it to provide couples wishing to engage in family planning with those devices which are specifically prohibited under the Criminal Code. Since the provisions of the presidential ordinance, like those of article 18, paragraph 2, of the Convention, seek to promote the welfare of the family and the child, legislation is needed to decriminalize the acts mentioned in article 178 of the Criminal Code when they are performed under the aegis of the CNND.
3. Other acts of a nature to endanger life and
physical health
66. Articles 43 to 56 of the Criminal Code prohibit homicide and bodily harm caused intentionally or unintentionally to an individual, irrespective of the age of the victim. The acts covered include murder, killing, causing bodily harm and assault. It would be preferable to
make specific provision to treat the killing of a newborn child as
infanticide, punishable as a separate crime from ordinary killing;
and that the
definition of infanticide should be broadened to include acts of omission,
maintenance and care concerning a newborn
child for which the person concerned
had responsibility in the event of the death of that child.
4. Acts of violence, abuse and other forms of
exploitation
67. Article 67 of the Penal Code makes it a punishable offence to kidnap or
cause to be kidnapped by violence, trickery or threats,
arbitrarily to arrest or
cause to be arrested, or to detain or cause to be detained, any person. The
penalty is increased if that
person has been subjected to physical torture and
if such torture has caused the person’s death. As in previous cases,
these
crimes are prohibited without distinction and irrespective of the status
of the victim.
68. The same is true of article 68 of the Criminal Code,
which declares punishable the same act committed with the intention of selling
as slaves persons placed under the authority of the perpetrator or treating them
as such. In view of the increasingly widespread
occurrence of incidents such as
sexual harassment, trafficking, the abduction of girls, the taking of children
as hostages, the trafficking
in children and their sexual exploitation for
commercial and pornographic purposes, one cannot but wish for the elaboration of
the
existing penal provisions in order to provide better protection for
children.
5. Acts of immorality against children
69. The protection of the morality of the child is ensured by articles 167 to 177 of the Criminal Code, which deal with indecent assault, rape and immoral acts. Unfortunately this protection is inadequate in cases of rape, since the marriageable age has been reduced from 16 to under 14 years. Incest, which is punishable under the headings of immoral acts and rape, should be defined as such. In case of indecency a pimp is not punished when, taking advantage of his activities, he takes sexual satisfaction for himself and “not to satisfy the passions of others”.
6. Discrimination
70. In addition to the transitional Constitution, which guarantees equality
of rights and equal protection of Congolese citizens before the law, article 75
bis of the Criminal Code makes manifestations of aversion and tribal or
racial hatred expressed in writing, orally, by gestures or by
any other means
punishable offences (OrdinanceLaw No. 66/342 of 7 July 1966). Article 3 of
the same instrument provides for the
dissolution of societies, clubs,
associations or groups whose real purpose, activity or actions are motivated by
racial, ethnic,
tribal or regional discrimination. To combat discrimination
based on the circumstances of birth, the Family Code has introduced
an
innovation in the form of the concept of “affiliation”, thus
abolishing the terms “natural child” and
“adulterine
child” used in the old Civil Code. Where the identity of the biological
father cannot be established, the
institution of “legal father” is
applied.
71. However, in practice there remain forms of discrimination
relating in particular to sex, social inequalities arising from living
conditions, retrograde ancestral customs and certain negative perceptions in
society of women in general and girls in particular.
For instance, parents
give the schooling of boys preference over that of girls, while poorer and “disadvantaged” children are marginalized and have difficulty in obtaining access to schooling, health services and organized recreational activities.
C. The Family Code
72. Law No. 87/010 of 1 August 1987 establishing the Family Code has the
merit of “unifying and adapting” the rules affecting
the rights of
the individual and the Congolese family. It consists of four chapters, dealing
respectively with nationality, individuals,
the family and inheritance and
gifts.
1. Nationality
73. This subject is governed by Law No. 81/002 of 29 August 1981
concerning nationality, which may be acquired by naturalization,
choice or
adoption (art. 9). A mother can also transmit Congolese nationality by
descent (art. 5). The term “child born in
Congo” covers any
birth occurring on Congolese territory or on board a Congolese aircraft or
vessel; the term “newborn
child found in the Congo” covers any
newborn child, born of unknown parents and found on the territory of the Congo
or on board
a Congolese aircraft or vessel (art. 3). Thus in certain cases
Congolese legislation recognizes the principle of jus soli. These
provisions are in line with the spirit of the Convention on the Rights of the
Child. However, it must be mentioned that,
notwithstanding this flexibility,
the Congo still has to settle the problems of identification of the inhabitants
of the regions
bordering on Rwanda, Burundi, Angola and Sudan.
2. Individuals
(a) The name of a natural person
74. On this subject the Family
Code amends Law No. 73/022 of 20 July 1973, relating to the names of natural
persons. It provides
that names must be drawn from the cultural heritage of the
country (art. 58) and that any person who deliberately adopts a name in
violation of those provisions, as well as the civil registry official who
registers that name, shall be punishable by law (art. 70).
The bearing of
Christian names is prohibited by the Ordinance of 30 August 1972.
These provisions are contrary to the spirit of
the Universal Declaration of
Human Rights, the transitional Constitution and the Convention on the Rights of
the Child, which call for freedom of thought and religion. It is sometimes
preferable to react
by incentive as opposed to repressive measures. A policy of
recourse to ancestral values (positive or humanizing) would also help
to
encourage the bearing of an authentic name, which has greater significance for a
Congolese than a foreign name.
(b) Civil status
75. The law
lays down a number of details relating to the civil status of individuals, and
more specifically on the subject of certificates
of birth, marriage and death
(arts. 72 to 160). The birth of a child occurring on national territory must be
reported to the civil
registry within the 30 days
following the birth on pain of penalties (art. 116). However, owing to the
lack of resources to organize implementation measures
(establishment of a
central civil status registry office) and adequate awareness promotion, the
effort being made by the Government
is still lacking in practical
effect.
(c) Domicile and residence
76. Article 166 of the
Family Code stipulates that the domicile of an emancipated minor shall be with
its father or mother or with
the person exercising guardianship over it,
according to the case. In practice these provisions are often not applied; one
major
obstacle consists of certain ancestral patterns of living which still
encourage mobility of residence, particularly that of
children.
(d) Absence, disappearance, legal capacity and parental
authority
77. The Family Code lays down provisions governing absence
and, more particularly, disappearance concepts which were absent from
the
former Civil Code. It fixes the age of legal capacity of a child at 18 years.
But that same code still provides for the legal
incapacity of a married woman,
thus helping to confer an inferior status on women and preventing them from
meaningfully playing their
roles as mothers, wives and educators within the
framework of parental authority.
78. A child may be emancipated on
reaching the age of 15 years. It thus acquires full capacity on the same
footing as an adult (art.
292). Emancipation may not be revoked
(art. 290). A child who is a minor is placed under parental authority. In
the absence of
both parents it is placed under the guardianship of the family
(family council); if it has no family, or the parents have been deprived
of
parental authority (art. 239), guardianship is assumed by the
State.
79. The Convention concentrates entirely on respect for the rights
of the child. However, the Family Code, like the African Charter,
also
emphasizes the duties of the child; the latter owes honour and respect to its
father and mother (article 316 of the Family Code)
and has responsibilities
towards its family, society, the State and the community (article 31 of the
African Charter). Consequently
the person with parental authority may inflict
reprimands and punishments on the child to an extent compatible with its age and
the
improvement in its conduct (article 326 of the Family Code). Unfortunately,
the economic crisis which the Congo is undergoing is
not of a nature to
encourage family solidarity for the genuine acceptance of responsibility for the
care of orphan and abandoned
children. The guardianship of the State is often
purely theoretical.
3. The family
80. The family is the natural base element of the human community; the primary environment in which the individual socializes; the product of marriage; and the legal framework for procreation. It is placed under the protection of the State. It consists essentially of a man, a woman and a being called a “child” the subject of our concern here. The word “essentially”
(instead of “solely”) is used here because the family in Africa
in general and in the Congo in particular is conceived
in a broad sense,
comprising all relatives (see the preamble to the Family Code). Previously
the legislation on the family was contained
in Book I of the
Civil Code. The Family Code has introduced a number of innovations in
order to bring the legislation into line
with authentic Congolese realities
and the requirements of the modern world. A discussion of the points
more specifically relating
to the protection of the child
follows.
(a) Engagement and marriage
81. The legislature
has confirmed the constitutional principle of freedom of consent for both
engagement and marriage (articles 351
and 402 of the Family Code) and
lays down severe penalties for cases of violation. To ensure the unity and
stability of marriages,
it begins by regulating engagements, following which it
lays down rules governing the substance and form of marriages. As regards
the substance, the marriageable age is fixed at 15 years for girls and
18 years for boys (art. 352); the consent of the spouses is
compulsory, even if they are minors (art. 351); finally, payment of at
least part of the dowry is compulsory (art. 361). As regards
form, in
addition to the marriage celebrated before a civil registrar, the legislature
has introduced marriage according to customary
rules or celebrated within the
family and confirmed by payment of a dowry. Monogamy is accepted as the legal
form of marriage by
implication, in particular, from the provisions suppressing
bigamy (art. 408). Girls have not completed their secondary education
on
reaching age 15.
82. Nevertheless, this set of provisions does not
sufficiently protect the rights of the child. The rules for the organization of
engagements and marriages fall within the sphere of custom, some elements of
which are retrograde and prejudicial, especially for
girls; mention may be made
of trial marriages, the right of an uncle to marry his niece (kituil),
the excessively early age of capacity to marry, the fact that dowries are
not regulated by the State and thus become a means of
enrichment for the parents
of girls in an urban environment, and, lastly, the proof of adultery committed
by a man living in cohabitation
(or in “bureaugamie”, to use the
Congolese neologism designating that practice) is difficult for the
mistress to establish,
since adultery must be “surrounded by
circumstances which are offensive to the spouse”
(art. 467).
(b) Divorce and separation of
parents
83. To avoid dissension between parents, which makes for
instability in the child, the legislature, in introducing the Family Code,
opted
for “remedialtype” divorce to replace the “sanctiontype”
divorce previously in force. Unlike the “sanctiontype”
system of
divorce, a restrictive list of grounds for which is laid down by the
legislature, the “remedialtype” system
now in force provides for
divorce only if there is objective evidence of the irremediable breakdown of the
matrimonial relationship
(arts. 549 and 550). Where a divorce takes place,
the legislature protects the child by organizing its custody and parental visits
(arts. 560 to 568) with its best interests in mind.
(c) Descent and affiliation
84. In addition to providing for
recognition of the child by descent, the Family Code specifically reflects the
basic political concept
that “every child must have a father”
(art. 591). The term “affiliation” is thus used to signify the
compulsory
recognition (enforced by penalties) by the father of his child born
outside marriage (art. 614). If the paternal descent of a child
born outside
marriage cannot be determined, the court will designate a “legal
father” from among the members of the mother’s
family (art. 64,
para. 3).
85. The practice of adoption in the modern and legal sense
is rare in Congolese culture, within which there is a preference for de
facto
custody of children. This situation gives rise to “fictitious”
acceptances of responsibility which are prejudicial
for the education, care and
maintenance of the children concerned, especially in urban environments, where
family solidarity is breaking
down. The law does not provide a framework for
acceptance of responsibility; this shortcoming is remedied by the guardianship
procedure.
4. Inheritance and gifts
86. In this area children born within marriage, children born outside
marriage but affiliated to the deceased during his lifetime
and adopted children
all participate in the inheritance on an equal footing (art. 758).
D. The Labour Code
87. Work performed by children is regulated by the Labour Code (Order No.
19/67 of 3 October 1967), which gives a child the capacity
to enter
into an employment contract (minimum age 14 years, maximum 18 years, according
to the case); regulates conditions and hours
of work and the nature of the work
on which the child may be employed and stipulates the penalties applicable.
Once again, and particularly
in this area, practice falls far short of theory.
Not only are the beneficiaries (parents and children) often unaware of their
rights;
in addition, current economic conditions make for violations in the
sphere of child labour, which often takes place in the informal
or unstructured
sector or involves living by one’s wits.
II. ACTIVITIES, MEASURES AND OBSTACLES RELATING
TO THE IMPLEMENTATION OF THE CONVENTION
Note.
As we have said, this chapter is devoted to a critical review of each article of
the Convention in order to assess the progress
achieved by the Democratic
Republic of the Congo in ensuring the enjoyment of children’s rights.
This chapter will be structured
as follows: an unofficial summary of the
article subject to critical review appears at the top of each section or
subsection (in
italics); this summary is followed by paragraphs containing
information on the activities carried out, the measures taken and the
obstacles
encountered in the context of the implementation of the Convention.
A. Definition of the child
Article 1
A child means every human being below the age of eighteen years, unless, under national law, majority is attained earlier.
88. In the Congo, the age of 18 is the start of civil (Family Code, art. 219)
and political majority (transitional Constitution, art. 6). Majority for penal
purposes is set at 16 (Decree of 6 December 1950 on juvenile
delinquency as subsequently amended by
OrdinanceLaw No. 78/016 of 4 July
1978) and majority for purposes of marriage or sexual majority at 14 years of
age (Criminal Code,
art. 167). The legislator uses the expression
“apparently ... years old”, which means that in cases of doubt or
the
absence of identity papers, a doctor must be applied to in order to
determine the child’s age.
89. At the Sovereign National
Conference, the speakers proposed that the penal majority and the majority for
purposes of marriage
(capacity for sexual consent) should also be raised to
18 years of age at the time of the
act;[17] this was partly to
extend the protection of juvenile delinquents and child victims of rape and also
in order to comply with rule
4 of the United Nations Standard Minimum Rules
for the Administration of Juvenile Justice (“The Beijing Rules”),
which
states that “In general, there is a close relationship between the
notion of responsibility for delinquent or criminal behaviour
and other social
rights and responsibilities (such as marital status, civil majority,
etc.).”
90. Since the age of marriage (for girls) and emancipation
(for both sexes) of 15 years of age (Family Code, arts. 289 and 352) gives
the
parties concerned full legal capacity, the provisions of the Convention are not
applied to them although they are still children.
It would therefore be
appropriate to raise the age of marriage for girls and of emancipation to 18
years of age, so that the protection
given by the Convention can benefit a
larger child population.
B. General principles
Article 2
All rights apply to all children without discrimination. The State has the obligation to protect the child against all forms of discrimination and to take positive measures to ensure respect for his or her rights.
91. There are certain forms of discrimination related to differences in the socialization of girls and boys from infancy. A girl, like her mother, has a lower social status, the repercussions of which are felt, inter alia, in education and in participation in public life. In June 1996, Parliament had 38 women members as against 699 men.[18]
2. The best interests of the child
Article 3
Any decision concerning a child shall take into
consideration his or her
best interests. The State shall ensure the
child such protection and care as
is necessary when his or her
parents or other individuals legally responsible
for him or her are
unable to do so.
92. The best interests of the child must be the
concern of any public or private authority, the parents and persons and
institutions
dealing with young people. The authorities must take them into
account in all legal and social decisions and respect their rights,
particularly
the right to be heard, to express an opinion, in short, to be actively involved
in their rights and not merely passive
objects. A ruling has been handed down
that a plaintiff who is a minor within the meaning of the law may in civil
proceedings be
represented by his or her parents or guardians (court of first
instance of Matete, 22 February 1988, Jurdos, Wardship No. 1).
93. The
Family Code notes in article 588 that decisions concerning custody of and right
of access to children in the event of the
divorce or separation of the parents
should take into account “the best interests of the child”.
Similarly, article
18 of the Decree of 6 December 1950 on juvenile delinquency
provides for the review of measures taken in the “interests of
the
juvenile delinquent”. Where custody of children is concerned, for
example, the district court of Gombe (24 January 1992,
Registre de la
Jurisprudence Zaïroise, 1992, p. 51), hearing a divorce case, gave custody
to the father on the grounds that
he had the financial means to ensure the
material wellbeing and the upbringing of the children. In our African
societies, where
it is often the man who has the material and financial means,
judges tend to give the custody of children to the father on that criterion
alone, although the law provides for the possibility of the father paying the
mother maintenance where she has custody of the children.
The judge must take
the child’s opinion into account if he or she has the necessary
discernment, and also maternal affection,
which is so important for the
child’s psychological balance.
94. Of 122 cases of divorce recorded
by the district court of Lemba from 1993 to 1994, in 30 cases custody
of the children was awarded
to the father and in 14 to the mother. As regards
justice for juvenile delinquents, measures are always obligatory (there are no
voluntary measures); this can hardly be said to encourage the participation of
the parents and children concerned in the taking of
decisions and their
implementation.[19]
Considerable powers of discretion are given to a judge who is not specialized in
the protection of young people. Such a judge frequently
fails to seek the
necessary information for ensuring that the measure to be taken is proportional
to the circumstances of the offenders
and the offences (The Beijing Rules, rule
5).
95. To seek the wellbeing and the better interests of the child does
not mean ignoring the rights and needs of others and of society.
The Family
Code in article 326 and the African Charter on the Rights and Welfare of the
Child in article 31 note that the child
not only has rights but also duties, in
particular, to work for the cohesion of the family, to respect its parents,
superiors and
elders, to serve its community and to preserve and strengthen
solidarity, cultural values and national independence.
3. The survival and development of the child
Article 6
Every child has the right to life and the State
has the obligation to ensure the survival and development of the
child.
96. This point is discussed in chapter 1, sections B.1 to B.3
(paras. 64 to 66).
4. Respect for the opinion of the
child
Article 12
In any question or proceedings
affecting the child, he or she has the right
to express his or her opinion freely and for it to be given due
weigh t.
97. Traditional African culture in general and Congolese
culture in particular makes for conformity in behaviour, the notion of
collective
responsibility and the principle of linear authority of the father
over the son and the elder over the younger. Respect in traditional
society is
more than a rule for living; it designates each individual’s place and
role.[20] This notion has
aspects which are positive (social cohesion), but also negative, consisting in
preventing children from exercising
the freedom of expression, creativity,
initiative and personal responsibility which favour the development of the
individual. This
requires the provision of information and the creation of
awareness among adults and authorities in order to modify the way in which
they
regard children and interpret their conduct.
98. For other
considerations, see subsection B.2 on “The best interests of the
child” (paras. 9295) and the subsection
on “Administration of
juvenile justice” (paras. 181185).
C. Civil rights and freedoms
1. Name,
nationality and preservation of identity
Article 7
The child has the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
Article 8
The State has the obligation to preserve and if necessary to reestablish the fundamental elements of the child’s identity (including name, nationality and family relations).
99. The reader should first of all refer to chapter 1, section C, entitled “The Family Code” which, among other things, deals with the points mentioned in articles 7 and 8 of the Convention
(paras. 7285, above). With regard to the right of the child to know his or
her parents, it should be added that the Convention rightly
retained the phrase
“as far as possible”. Procreation within marriage is the accepted
norm; procreation outside marriage
is deviant behaviour that could not be
legalized on the pretext of protecting the child by “affiliation” or
by the obligatory
recognition by the father of a child born out of wedlock. In
a society in which people attempt to make “bureaugamie”,
or
“Congolesestyle adultery”, (see paragraph 82, above) legally
acceptable by describing it as “de facto marriage”,
the introduction
here of discrimination on grounds of sex (affiliation concerns men only) would
risk seriously damaging the institution
of marriage and therefore the family.
Consequently, the Sovereign National Conference, having considered this issue,
proposed “to
refer to the Constitution and to other international legal
instruments which establish equality between men and women, in order to ensure
that the recognition
of a child born out of wedlock should be a parent’s
right, rather than an obligation” (see footnote 17).
100. It is
difficult for anyone to assert their rights without identification. Congo must
endeavour to clarify the organization of
people’s civil status records, on
which population policy, the organization of censuses and reliable elections
depend. The
most recent population censuses were made over 15 years ago. The
State will avoid accommodating persons of uncertain identity within
its borders.
To that end Law No. 81/002 of 29 August 1981 concerning nationality must be
effectively implemented in order to expedite
action on disputes over
nationality, since it provides sufficient protection for the child’s
identity.
101. Requests for name changes or alterations may be heard by
district courts in cases where a name is offensive, humiliating, provocative
or
insulting (articles 58 and 64 of the Family Code). The unlawful use of a name
is punishable by the same courts.
2. Freedom of expression, religion and association
102. These freedoms are guaranteed by articles 10 and 17 of the
transitional Constitution (see paragraph 62, above); they are also provided for
in law, including those instruments mentioned below.
Article 13
The child has the right to express his or her views, to obtain information and to impart information and ideas, regardless of frontiers.
103. OrdinanceLaw No. 2/04 of 1982, as amended by No. 96/002 of 22 June
1996, establishes the modalities of operation of the press,
otherwise known as
the freedom to express opinions and feelings through speech, writing or images,
provided that public order, the
rights of others and the morals are respected.
The press and the media in general have the following functions: information,
education,
recreation or leisure and the promotion of social cohesion.
Unfortunately, these objectives are rarely achieved due to the lack
of adequate
resources (material, financial and human).
Article 14
The State shall respect the right to freedom of
thought, conscience and religion, with respect for the role played by parents in
providing direction.
104. OrdinanceLaw No. 71/012 of 31 December
1971, as amended by No. 79/002 of 3 January 1979, regulating the
practice of religion,
stipulates in article 1, paragraph 1, that there is
no State religion; paragraph 2 stipulates that all persons have the right to
freedom of thought, conscience and religion. They may express that
right in public or in private through worship, teaching, etc.,
provided
that the public order and morals are
respected.
105. The objectives
of the 1979 amendment to the 1971 ordinance are, among other things, to curb the
anarchic proliferation of religious
sects and churches and to prohibit all
collections of charitable donations on behalf of sects or churches not
registered as legal
entities. The Government will ensure the effective
implementation of these provisions in order to combat phenomena such as
religious
sects which exploit children by leading them astray from their
schooling, from obedience and affection towards their parents and
from
solidarity with family and society. It will also combat (with information
and repression) sects which endanger the health,
education and morality of
the general population, and children in particular. As a result of their status
as minors, children are
sometimes victims of the decisions of the adults who
look after them (Jehovah’s Witnesses, for example, who refuse the giving
of blood transfusions).
Article 15
Children have the right to assembly and to
join or form associations.
106. OrdinanceLaw No. 66/342 of 7
June 1966, on the suppression of racism and tribalism, prohibits
associations and groups promoting
discrimination on racial, ethnic, tribal or
regional grounds. It also prohibits political associations. The latter
provision, adopted
during the period of dictatorship, has been amended as part
of the process of democratization and transition to a multiparty system
in the
Congo which began on 24 April 1990. OrdinanceLaw No. 68/193 of 3 May
1968 prohibits associations established to cause injury
to persons or property
(art. 3).
107. As can be seen, the exercise of fundamental freedoms is
theoretically respected and protected by laws which should serve to punish
the perpetrators of violations of those freedoms.
3. The protection of privacy
Article 16
“1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such
interference or attacks.”
108. No child shall be subjected to
interference with his or her privacy (including family, home and
correspondence), nor to unlawful
attacks on his or her honour and dignity.
These rights are guaranteed by the transitional Constitution, articles 22 to 24,
and by specific legal provisions (including articles 69 and 70 of the Criminal
Code), which punish any person
entering someone else’s private home
against the latter’s wishes and without legal authorization.
109. The child needs some privacy in his or her development to provide
him or her with social, psychological and emotional security.
Whereas in the
developed countries there is a fear of the invasive spread of official
monitoring of the private lives of children,
in the developing countries the
lack of necessary information to guide that monitoring is more of a problem.
Since it is difficult
to obtain information on children in difficulty, people
working in that area tend to make generalizations about the disadvantaged
situations of those children, which makes it more likely for them to be labelled
as deviants. The stigmatization of street children
reinforces their
marginalization.
110. With regard to juvenile justice, in 1950 the
legislator made it illegal for judicial and political/administrative authorities
to include information in criminal records on juvenile criminals against whom
legal proceedings have been brought, and also to withhold
such information in
criminal justice proceedings.
4. Access to information
Article 17
The State shall guarantee the child’s
access to information and material from a diversity of sources and encourage the
media
to disseminate information of social and cultural benefit to the child.
The State shall take measures to protect the child from
material injurious to
his or her wellbeing.
111. Steps should be taken at government level
to support and enhance radio and television programmes for children. Children
find
it difficult to obtain books, magazines, newspapers and other written
material because they are too expensive. Price liberalization
in this sector
would be a sound policy likely to lead to improved access to
information.
112. Whenever embassies and some parishes of the Catholic,
Protestant and Kimbanguist churches organize discos, clubs and reading
rooms,
the State will try to support and participate in such initiatives. The Board of
Censorship lacks the necessary support to
carry out its functions, which include
monitoring broadcasts and written material available to the public and to
children in particular.
D. Family environment and alternative care
1. Family reunification
Article 9
The child has the right to live with his or her
parents unless it is adjudged to be in his or her best interests not to do so;
the
child also has the right to maintain contact with both parents if he or she
is separated from one or other of them.
113. The child not only has
the right to know its parents; it also has the right to live with them. With
that in mind, the State
should do everything within its power on one hand to
avoid the separation of children from their parents or guardians, and on the
other to facilitate the unification and reunification of families, by not
granting divorce too easily, by organizing the return of
children who have been
illegally transferred abroad, by authorizing visits and contacts between
children and parents, for instance
when either children or parents are in
detention or when parents are forced to move in the line of duty. Statistics
from Lemba district
court (199394) indicate that of 200 divorce cases brought
before the court, 122 resulted in divorces, which means that 60 per cent
of
couples were granted a divorce. This figure is too high, particularly in view
of the fact that in order to discourage the breakup
of families, the Family Code
has replaced the “sanctiontype” divorce with the
“remedialtype” divorce. It
provides for several reconciliation
mechanisms so that divorce should occur only when those concerned are convinced
that the marriage
has irremediably broken down (see also paragraph 83 above).
Custody of the child and visiting rights are regulated in the child’s
best
interests.
114. The transitional Constitution stipulates in article 20
that “the family is placed under the protection of the State. It is
organized in such a way as to
ensure its unity and stability”.
Unfortunately, this protection is merely de jure and not de facto due, on
one hand, to the weight of ancestral traditions and, on the other, to the
State’s inability, in material
and financial terms, to provide help to
families. Legal protection alone is not enough to prevent the breakup of
families; it needs
to be backed up with parallel social and economic measures.
Such measures will be designed to combat poverty among families, unemployment
among fathers, polygamy and the underdevelopment of the country, particularly of
rural areas. These are some of the factors that
make for the separation of
children from their parents.
Article 10
The child and his or her parents have the right
to leave any country and to enter their own for the purpose of family
reunification
or to maintain relations with each other.
115. Article
33 of the transitional Constitution protects the rights and legitimate interests
of Congolese nationals resident abroad. Similarly, foreign nationals in the
Democratic
Republic of
the Congo enjoy the same rights and freedoms as Congolese, under the
conditions determined by treaties and laws, subject to reciprocity.
They must
comply with the laws and regulations of the Republic (art. 34).
Article 11
The State has an obligation to combat the
illicit transfer and nonreturn of children abroad carried out by a parent or
guardian.
116. The State participates in efforts to combat the
trafficking of women and children as a party to the relevant international legal
instruments. It has, for instance, ratified the Convention on the Elimination
of All Forms of Discrimination against Women (OrdinanceLaw
No. 85/040 of 6
October 1985).
117. Solidarity within families, coupled with the poverty
affecting those families, explains why many parents agree to place their
children under the guardianship of another member of the family, often someone
who is welloff or in paid employment. Some workers
become guardians in order to
increase their incomes through welfare benefits linked to the number of children
in their care (family
allowances, for example). However, this is often a
“fictitious” guardianship, since the children concerned continue
to
live with their parents, who look after their daily needs, and the guardian
helps them on a merely sporadic basis. The Matete
district court granted
76 cases of guardianship out of 240 legal proceedings initiated, i.e. 30
per cent of cases (1995 register
of civil cases Nos. 2800 to 3040); the
corresponding court in Lemba indicates that 57 cases of guardianship
were granted to members
of the same family out of 79 cases of guardianship
registered in 1995.
2. Parental responsibilities
Article 18
Both parents have the primary and joint responsibility for the upbringing of the child, and the State must help them to exercise this responsibility. The State shall render parents appropriate assistance in the upbringing of the child.
118. For the upbringing and development of the child, he or she needs a
family environment which provides security in material, educational,
moral and
spiritual terms. Both parents have the primary and above all joint
responsibility for ensuring that the child has that
environment.
With that
in mind, the legislator decided to replace paternal authority by parental
authority
(article 317 of the Family Code). The contribution of each
parent varies according to their respective capabilities and means. All
legal
precautions are taken to ensure that during the marriage, in the event of a
breakdown in the marriage or if one or both parents
should die, the best
interests of the child are protected (see also subsection B.2, paragraphs 92
to 94, above).
Article 5
The State shall respect the rights and responsibilities of parents and members of the extended family to provide guidance in a manner consistent with the evolving capacities of the child.
119. In view of the disintegration of structures of family solidarity in
noncustomary environments, and in an attempt to integrate
the ancestral mode of
organization of families into that of modern urban settings, as part of a policy
of seeking authenticity, the
legislator of the Family Code has introduced a
system of bilinear parentage to replace systems based on paternal or maternal
linearity.
This is a new conception of the family, placed under the domestic
authority of the head of the community or household. The household
means the
married couple, unmarried children in their care, as well as any other persons
living regularly in the family house and
towards whom the spouses have an
obligation of maintenance (article 700 of the Family Code). The obligation to
provide assistance
extends to relatives and inlaws.
120. The child
growing up in a family context of this nature can expect to be given support in
his or her upbringing and with his
or her evolving capacities, provided this
takes place with respect for the public order and morals. Parents shall
exercise their
authority over the child with humanity and respect for his or her
rights. Failure to do so is punishable by law, for instance by
the deprival of
parental authority (art. 319). Article 62 of the Family Code punishes all
persons who abuse their authority by subjecting
the child to exploitation of any
kind.
Article 27
Every child has the right to a standard of
living adequate for his or her physical, mental, spiritual, moral and social
development.
The parents have the primary responsibility to secure this
standard of living. The State has the duty to ensure that this responsibility
can be, and is, fulfilled. The State’s responsibility can include
material assistance to the parents and to their children.
121. Faced
with numerous and urgent problems to resolve, the State seems increasingly to be
shifting its duties and responsibilities
on to parents and all persons
effectively or legally responsible for a child’s upbringing. Left to fend
for themselves, these
persons must meet the cost of the child’s food,
education, health care, transport, etc.; furthermore, many parents are
unemployed
or have not been paid for several months.
122. In the Congo,
GDP growth has remained very low compared to population growth rates. It fell
from 3.9 per cent in 1994 to 0.6
per cent in 1995, with a
population growth rate of 3.1 per cent. The rate of inflation is
rising year by year: 9,769.9 per cent
in 1994
and 540 per cent in 1996. In addition to currency inflation,
there is also currency fluctuation, with the exchange rate in United
States
dollars fluctuating continually (set at 98.8 per cent
in 1994, it exceeded 100 per cent in October 1996). All this
is indicative of a standard of living of the population close to the
poverty
line.[21] Under these
conditions, it is difficult for parents and guardians of children to fulfil
their duties with success and dignity.
3. Children deprived of a family environment
Article 20
The State has an obligation to provide special protection for the child deprived of his or her family environment and to ensure that he or she can enjoy the protection of a foster family or placement in a suitable institution. Any steps taken in connection with this obligation shall pay due regard to the child’s cultural background.
123. A child may be deprived of its original family environment following
separation from its parents as a result of abandonment,
war, deportation,
imprisonment, for work or servicerelated reasons, or due to divorce, separation,
guardianship, adoption, death,
judicial or administrative measures, etc. For
all these cases, the legislator provides, among other things, for guardianship
as
a mechanism to take care of minors whose mother and father are unknown,
abandoned children, orphans with no family and, if appropriate,
minors whose
parents are deprived of parental authority (article 239 of the Family Code).
These minors, known as “wards of
the State”, are placed by the
guardianship council with delegated guardians, natural or legal persons,
associations or charitable
or State or private educational institutions
registered as legal persons (art. 239). The delegated guardian must take care
of the
upbringing and education of the minor.
123a. In addition to the
guardianship of the State, any child not yet emancipated and without either a
mother or a father capable
of exercising parental authority is provided with a
representative guardian (art. 222). If a parent is imprisoned, OrdinanceLaw
No. 344 of 17 August 1965 on the prison regime provides for a special
regime for mothers with infants (children under 6 years of
age) and authorizes
visits in order for contact to be maintained between the detainee and his or her
family. It is very important
to organize support and assistance for the
families of detained persons.
4. Adoption and other measures
Article 21
In countries that recognize or permit adoption,
it shall only be permissible when it is in the best interests of the child and
all
the authorizations and necessary guarantees from the competent authorities
have been obtained.
124. The legislator has also provided for
adoption in order to give the child a substitute family environment. In
addition, it allows
the child to prove a relationship of descent from his or her
father (article 630 of the Family Code) by making it an obligation for
the
father to recognize his child born out of wedlock through
“affiliation”. If the parents are divorced or separated,
it
organizes guardianship and visiting rights concerning the child. According
to the register of civil cases from the Lemba district
court, a total of 636
cases brought between 1993 and 1994 resulted in 9 verdicts establishing descent,
17 establishing affiliation
and 1 establishing a “legal father”.
Article 19
The State must protect the child from all forms of maltreatment by his or her parents or by any other person who has the care of the child; it shall establish appropriate social programmes to prevent maltreatment and to provide treatment for the victims.
5. Maltreatment of the child
125. The child may suffer from maltreatment by his or her parents,
members of the family, care workers and teachers, public authorities
and adults
in the society to which he or she belongs. Maltreatment covers a range of
behaviour from physical or mental violence
to a wide range of different forms of
injury, abuse, neglect, negligent treatment or exploitation.
126. In
industrialized societies, maltreatment is largely caused by the extravagance and
individualism which characterize people’s
behavioural habits, while in the
developing countries poverty, the economic crisis and ignorance are the main
causes of maltreatment,
which is predominantly an urban phenomenon and manifests
itself as neglect, deprivations of all kinds, malnutrition, a lack of adequate
care and attention and exploitation (for instance, by forcing the child into
vagrancy, prostitution, begging and retrograde ancestral
practices).
127. Article 326, paragraph 4, of the Family Code gives the right to the
person exercising paternal authority “to reprimand
or punish the child to
the extent compatible with its age and the improvement in its conduct”.
Unfortunately, some parents,
and “fathers” in particular, exceed the
boundaries of this description by depriving the child of food or clothing for
lengthy periods or by administering beatings with a belt or
stick.
128. Article 319 of the Code provides that the father, mother or
any other person exercising parental authority may be deprived of
it where, for
instance, through illtreatment, abuse of authority, blatant misconduct or grave
negligence he or she endangers the
health, security or morals of the child.
Examples we may cite are a father or uncle who, abusing his authority, pushes up
the bride
price, thus jeopardizing the stability of the daughter’s
marriage; or again, customs that subject a girl child to retrograde
practices
detrimental to her physical integrity, in particular incisions resulting in
mutilation of certain of her intimate organs.
129. In face of all these
evils there is a manifest lack of appropriate structures for child protection,
such as an office for referral
of children in need of protection, which might be
composed of officers of the judicial police and social workers specializing in
protection of young persons. School welfare services, sociopsychological
medical services, and school medical services, equipped
to prevent and detect
cases of abuse and exploitation of children and treat the victims, need to be
created or strengthened.
130. The criminal code penalizes illtreatment
or maltreatment taking the form of offences against physical integrity, indecent
assault
and immoral acts. More effective protection of the child calls for
penalization of illtreatment of children in all its forms.
E. Health and wellbeing of the child
1.
Health
Article 24
The child has the right to enjoy the highest possible level of health and have access to the medical services. The State shall lay particular stress on primary health care and preventive care, on public information and on reduction of child mortality. States shall encourage international cooperation in this regard and strive to ensure that no child is deprived of the right to have access to effective health services.
131. Decent housing, drinkable water and a healthy environment are among
the elements constituting the quality of life, and particularly
the health, of
populations. To meet those health requirements, and in line with the objectives
of the International Conference on
Assistance to African Children (Dakar, 2527
December 1992), the State has drawn up an action plan for the benefit of
children between
now and the year 2000. In evaluating this plan, the national
survey on the situation of children and women in Zaire in 1995 (ENSEF/Zaire1995)
concluded as follows in its final report dated February 1996:
(a) In the
housing sphere there was marked overcrowding; nearly 70 per cent of households
(64.4 per cent in urban and 70.7 per cent
in rural areas) were occupying
dwellings with less than three rooms, whereas the average size of households was
5.76 persons;
(b) With regard to clean drinking water, about 59 per cent
of households (11 per cent in town and 74 per cent in rural areas) had
no
drinking water;
(c) Where environmental health is concerned, the survey
found the environment unhealthy inasmuch as 82 per cent of households (47
per
cent in towns and 97 per cent in rural areas) were using unhygienic latrines or
no latrines at all. Furthermore, 66 per cent
of households were dumping their
garbage in the open;
(d) In conclusion, 80.6 per cent of households
(78.6 per cent of the population) were living in unfavourable social and
hygienic
conditions. In other words, the State’s task in relation to the
objectives of the 1992 Dakar conference and to its own goals
has hardly
begun.
132. To assess the socioeconomic level, ENSEF/Zaire1995 divided
the households surveyed into three categories:
(a) The most
disadvantaged, constituting 80.6 per cent, or 78.5 per cent of the total
population;
(b) The intermediate level, comprising 11.4 per cent, or
12.8 per cent of the total population;
(c) Those enjoying good living
conditions, representing 8 per cent, or 8.6 per cent of the total
population.
133. Again according to the same survey findings, the infant
mortality rate showed a worsening trend: it rose from 137 per thousand
in 1984
to 148 per thousand in 1995.
134. In 1981 the State introduced
primary health care as a national health strategy by State decision No. 10/CC/8
of the Central Committee
of the Peoples’ Revolutionary Movement. This new
policy was given effect by the creation throughout the country of 306 health
zones (autonomous operational units directed by a health zone chief medical
officer).
135. In the area of promotion of feeding and nutrition, a
Nutritional Planning Centre (CEPLANUT) has been set up. Evaluating the
activities conducted under this head, ENSEF/Zaire1995 determined among other
findings that malnutrition was more widespread in economically
deprived
households than in those which were more affluent.
136. With regard to
immunization coverage of populations at risk, a survey of women with children
aged from 0 to 11 months, revealed
a substantial difference between women with
secondary or higher education (44.2 per cent) and those who had had no schooling
(27.4
per cent). This highlights the impact of school education on
the prevention of diseases such as measles, diphtheria, poliomyelitis,
tuberculosis, whooping cough, neonatal tetanus, diarrhoeal diseases, acute
respiratory infections, malaria, monkeypox and viral haemorrhagic
fevers. The
Expanded Programme of Immunization has decided also to attack hepatitis,
meningitis and AIDS, the most fearsome pandemic
scourge of the twentieth
century, which is on the increase in Africa, including the Congo. Mother and
child centres have been established
for the support and promotion of women and
the family as part of the maternal and child health and family planning
programmes.
137. The Congo has committed itself to a policy of family
planning: to that end, it applies the charter of 12 rights in regard to
sexuality and reproduction adopted in 1995 by the International Planned
Parenthood Federation, of which it is a member.
138. Instead of
improving, however, the indicators in the health field, as also in that of
education, are pointing to red. The State
will have to make great efforts in
those areas or risk missing the target for the year 2000.
2. The handicapped child: rehabilitation and
followup
Article 23
A handicapped child has the right to
special care and to appropriate education and training that will enable him to
lead a full,
decent and dignified life and attain the
highest
possible degree of autonomy and social integration.
139. There exists
a system of special education designed for persons of all ages suffering from
one or more handicaps (mental, psychomotor,
sensory, psychosocial, locomotor,
etc.) that adversely affect one or more of their adaptive functions, with
particular stress on
training for their integration or reintegration into
society. Like the educational system in general, special
education is faced with difficulties from the viewpoint of educational,
administrative, legal and financial management in a sociopolitical
context
dominated by a severe economic and political crisis in face of which education
and health, as government priorities, are
somewhat neglected.
140. Many
children drop out of school because they are forced to take the normal
curriculum although suffering from mental handicaps.
Hence the need for many
more medicopsychological and school guidance centres equipped to identify, to
give guidance (palliative
or preventive care), to provide treatment and to
provide followup services for children having difficulty with their schooling or
social adjustment.
141. More particularly, in the State care and
education establishments (see paragraphs 187 and 188 below) provision will
have to be
made in the educational programme for special teaching and for
remedial classes. This formula should be applied generally in all
the
country’s large schools. Educational and social assistance to the
handicapped is a means of preventing them from falling
into deviance and
delinquency. In the criminal sphere, mental handicap may exempt an offender
partially or even completely from
responsibility (see Code of Criminal
Procedure). Far from attracting benevolent attention, a physical or mental
handicap is sometimes
interpreted from the sociocultural viewpoint as a curse, a
state of bewitchment or possession. Such retrograde attitudes contribute
to the
handicapped person’s social exclusion (child sorcerers belong to this
category).
142. Efforts are indeed being made in the governmental and
private spheres towards rehabilitation of the handicapped (mental, physical
or
social). Governmental centres include the CENAPHI (National Centre for
Vocational Apprenticeship) group, which has branches in
several regions of the
country. Kinshasa has 142 associations for the handicapped; their activities
are coordinated by the Congolese
Federation for Handicapped Persons. In the
private sphere there exist a number of centres, some of them subsidized. They
are generally
multipurpose centres designed to cater for the varied needs of the
handicapped, such as vocational apprenticeship, physical or mental
rehabilitation, or schooling for deaf mutes.
143. The indicative figure
given by the World Health Organization for the number of handicapped persons
comprises one tenth of the
population. In the Congo the trend is upwards owing
to ethnic conflicts and war situations. To those factors must be added poor
health conditions and the decline of immunization coverage, with a consequent
increase in the incidence of poliomyelitis and other
infectious
diseases.
Article 25
A child who has been placed by the competent
authorities for the purposes of care, protection or treatment has a right to
periodic
review of the placement.
144. Supervision of placement
centres and followup of children need to be organized. There
is currently a
proliferation of NGOs and placement centres for young persons in difficulty.
Some of them exist only in name and have
no real activities on the ground. This
situation highlights the need to set up a body for certification of facilities
that take
in, educate and train children in difficulties. This will obviate
illthoughtout and poorly coordinated activities likely to do the
children more
harm than good. Design, coordination, awarenesspromotion and followup in
respect of activities on behalf of handicapped
persons are tasks of major
importance.[22] There can be
no valid review of decisions taken with regard to children in placement without
prior assessment and followup of those
decisions. It is therefore difficult for
us to provide statistics on children placed for purposes of protection.
3. Social security
Article 26
The child has a right to benefits from social security, including social insurance.
145. The general social
security system is established by Organizational Decree Law (Social Security) of
29 June 1961 (see Moniteur congolais, No. 17, 1961). This Decree
organizes social security for the benefit of wage earners and comparable
categories of employee and
their dependants, subject to no discrimination
whatsoever.
146. Members of the judiciary, State officials and
supervisors, and personnel of the gendarmerie and army are governed by specific
instruments or statutes. Their dependants are children born within and out of
wedlock; children that the employee has adopted; children
of whom the employee
has custody or legal parenthood; and children to whom he owes maintenance in
accordance with the Family Code
(see article 931 of that Code, which amended
article 4 K of the Labour Code).
147. A child is taken into account if
unmarried and under the age of majority (18 years), under 25 years old
if a student, and without
age limit if incapable of performing a gainful
activity.
148. Social security for the abovelisted persons covers the
following areas: illness, disability benefit, accidents, family allowances,
etc. Circular END/BCE/EPS/001/812/78 of 1 April 1978 establishes a
school insurance scheme for schoolchildren and students.
F. Education, leisure and recreational
activities
1. Education
Article 28
The child has a right to education. The State shall make primary education compulsory and free, encourage the organization of different forms of secondary education and make them accessible to every child, and make higher education accessible to all on the basis of the capacities of each individual. School discipline shall have respect for the rights and dignity of the child. To ensure respect for this right, States shall engage in international cooperation.
149. Education is a right of human beings in general and of the child in
particular (see inter alia the Universal Declaration of Human
Rights). In the Congo this right is guaranteed by the transitional Constitution
(arts. 20 and 21) and formalized in Framework Law No. 86/005 (national
education) of 29 September 1986 (Journal officiel, special issue, July
1989). This law, which has not come into force in the absence of implementing
measures, makes schooling compulsory
for boys and girls until they have
completed their fifteenth year (art. 115). The States General of National
Education provide for
primary education to be free of charge.
150. The
International Conference on Assistance to African Children, held in Dakar
from 25 to 27 November 1992, determined that the
educational objective
to be attained by the middecade (1995) should be the strengthening of basic
education with a view to reducing
by one third the gap:
(a) Between, on
the one hand, the primary school enrolment and retention rates in 1990 and, on
the other, the enrolment and retention
of at least 80 per cent of schoolage
children projected for the year 2000;
(b) Between the school enrolment
and retention rates for boys and girls respectively recorded in
1990.
151. In November 1992, with a view to the attainment, among other
objectives, of that of the Dakar Conference, the State drew up a
national action
plan, to be implemented by the year 2000, for the survival, protection and
promotion of the mother and child couple.
In regard to education the overall
objective is “to promote education for all by the year 2000”. The
specific objectives
for primary education include:
(a) Halting the
current decline in the school enrolment rate (76 per cent at the time) with
the view to attaining 100 per cent by
the year 2000;
(b) Making
basic education compulsory;
(c) Raising the primary school enrolment
rate for girls from the current 42 per cent to 100 per cent by the
year 2000;
(d) Reducing illiteracy among women from 56 per cent to
0 per cent.
152. In evaluating the educational objectives,
ENSEF/Zaire 1995 cites the following statistics:
Net school enrolment rates
198788
|
199495
|
|||||||
Boys
|
Girls
|
Total
|
Boys
|
Girls
|
Total
|
Boys
|
Girls
|
Total
|
86.5
|
57.8
|
71.8
|
66.4
|
51.1
|
58.7
|
62.4
|
54.6
|
58.5
|
Clearly these rates indicate a downward trend, with a degree of
stagnation for girls. The decline in the school enrolment rate must
be
resulting in an increase in the illiteracy rate, which the same information
source puts at 17.5 per cent for men and 45 per cent
for women, the
rural areas being the most affected.
153. With regard to primary school
retention rates, the same survey, taking as a parameter the fifth year of
primary schooling, produced
the following figures:
|
198788
|
199495
|
||||
|
Boys
|
Girls
|
Total
|
Boys
|
Girls
|
Total
|
Town
|
|
|
|
77.8
|
42.8
|
60.3
|
Country
|
|
|
|
16.3
|
13.9
|
15.1
|
All areas
|
56.8
|
45.6
|
51.2
|
27.9
|
22.7
|
25.3
|
154. The above two tables show not only that school enrolment is
declining, but also that many children do not get as far as the beginning
of the
fifth year of primary schooling. This situation, which is gloomier for girls
than for boys living in both urban and rural
residential environments, appears
still worse when considered according to socioeconomic bracket and sex:
Socioeconomic category
|
Boys
|
Girls
|
Both sexes
|
Low
|
58.6
|
47.9
|
53.3
|
Middle
|
73.8
|
75.7
|
74.7
|
High
|
93.8
|
91.1
|
92.2
|
All categories
|
62.4
|
54.6
|
58.5
|
Thus the school education objectives determined in 1992 by way of
response to the global objective of the Dakar Conference are far
from having
been attained.
155. Among the ills besetting the educational system we
must stress the lack of basic school facilities capable of meeting the
demand
of a population whose most salient characteristic is youth, 58.9
per cent of the inhabitants being under 20 years old and 19 per
cent
under five years
old.[23]
156. The
worsening of the economic crisis owing to “congolization” of staff,
and to the retrocession and plundering of
enterprises, not to mention political
instability, is having a marked impact on the State budget and the share
allocated to the education
sector. The state of public finances is worsening
yearly: 500 million United States dollars on an annual average prior to 1990
and 119.7 million in 1996, with a delivery rate of 23.7 per cent in
the first quarter of that year (see Government’s national
report to the
Stockholm Congress, 1996, cited in note 21 above). For the past four years the
State has been shifting the burden
massively on to parents, who must finance the
running of schools and the teachers’ pay. In short, they must meet very
heavy
school expenses calculated in hard currency, whereas most heads of family
are unemployed or have not been paid for several months.
157. The result
is that children, especially boys, drop out of school from the age of 12
or 13 years onwards to make a living by their
wits. The “mine
children” of Kasaï, the “bana lunda” of Kwilu, the car
washers, the youngsters of or
on the streets, etc., belong to this category of
children. That might explain the 50 per cent reduction in the disparity
between
the school attendance rates for the two sexes, which fell from 27.5
per cent in 198788 to 7.5 per cent
in 199495, to the advantage of girls. Moreover, the census of Kinshasa
street children and youngsters shows totals of 8,567 boys
(or 87.3
per cent) as against 1,249 girls (or
12.7 per cent),[24]
which bears out our supposition.
Article 29
The State shall endeavour to promote the
development of the child’s personality and potentialities. It shall
prepare the child
for active adult life in a free society and encourage in him
or her respect for his or her parents, identity, language and cultural
values,
as also for the culture and values of others.
158. The new
orientation mapped out for schools by the States General of Education (1995)
calls for partnership at the internal and
external levels. It enunciates the
concept of the socalled “village school” aimed at involving the
community in the
assumption of responsibility for children’s education and
in the preparation of teaching programmes that take into account
the real needs
of the populations, with due regard to local and regional
specificities.
159. Given the extensive development of the informal
economic sector, which is proving the salvation of many economic actors, the
young need to be “armed” with knowledge in a range of fields so as
to be able to cope with the new economic environment.
To that end,
professionalization at all levels of education is
imperative.
(a) Children belonging to minorities
Article 30
“In those States in which ethnic,
religious or linguistic minorities or persons of indigenous origin exist, a
child belonging
to such a minority or who is indigenous shall not be denied the
right, in community with other members of his or her group, to enjoy
his or her
own culture, to profess and practise his or her own religion, or to use his or
her own language.”
160. Children belonging to minorities
(Pygmies and others) are integrated into the national education system in which
French dominates
as a national language. Like some indigenous (less
acculturated) children, they are sometimes disadvantaged by having to memorize
and repeat “like parrots” in a language other than their mother
tongue.[25] However, the
opening of schools teaching in foreign languages (English, Arabic, Spanish,
etc.) is authorized. The same applies
to utilization of foreign languages: in
court, for example, litigants may use the language of their choice.
(b) Education of women
161. Women’s education has
been given a prominent place as the twentieth century draws to a close. One may
cite, merely as
an indication, the World Conference on Women (Beijing, 1995),
the States General of Education in
Zaire[26] and the Forum on
Women (Kinshasa, 1996), which, moreover, stressed the notion of the “girl
child” enunciated at the Beijing
Conference. This category (girls aged
from 5 to 19 years) comprises 34 per cent of the Congolese female
population.[27] The African
Charter on the Rights and Welfare of the
Child[28] adopted by the
Congo in 1990 also lays stress on the education of gifted and disadvantaged
female children and recommends that girls
who become pregnant should have the
possibility of completing their education (arts. 11 and 12). This upsurge
of concern for the
importance of the education of women in general and girls in
particular is justified by the important role of the female component
of society
in national and global development. “To educate a woman is to educate a
nation”. Women themselves are becoming
ever more aware that their human
and social development is bound up with school education.
162. The
disparity between the number of educated women as compared with men increases
with age and the level of instruction attained:
23.8 per cent of
males against 18.4 per cent of females at the primary level,
10.7 per cent of males against 4.7 per cent of females
at
the secondary level, and 0.6 per cent of males against
0.1 per cent of females at the higher level. The reasons for this
discrimination
are complex: negative and retrograde social representations of
women; early marriage and pregnancies; domestic and agricultural
work: the
burden of working in the economy in addition to household duties; and sexual
harassment.
163. All the above considerations point to the urgency of the
need in the Congo to halt the deterioration of the situation in regard
to the
quality of teaching and the numbers of children benefiting from it, especially
girls. Moreover, educational failure at any
level may contribute to creating or
fostering an environment conducive to the sexual exploitation of children
(particularly girls)
for commercial
purposes.[29]
2. Leisure, recreational and cultural
activities
Article 31
The child has a right to play and to participate in cultural life and the arts.
164. With particular reference to the sphere of culture and leisure,
OrdinanceLaw No. 23/216 of 4 May 1959 on public cinema screening
prohibits juveniles under 18 years of age from attending cinema screenings
open to the public (art. 1), the showing of trailers and
films not being
permitted without authorization. Articles 4 and following provide for the
creation and organization of the Board
of Censorship for films and other forms
of entertainment. With regard to music, the mandate of the Control Board
provided for in
Ministerial Order No. 295 of 23 August 1967
was recently extended by Decree 003 of 21 February 1996
establishing the National Board
for censorship of songs and other forms of
entertainment.
165. On the ground, a regrettable effect of the process of
democratization has been that certain citizens ascribe to basic freedoms
an
absolute value despite the limitations imposed by domestic and international
legal instruments. In particular, they write, display,
sing, dance and screen
scenarios and shows of a noneducative nature liable to incite the population,
and especially the young, to
violence, hatred, dissension, immorality,
alcoholism and tobacco addiction.
166. The disappearance and unregulated occupation of green areas are
contributing to the spread of the phenomenon of “children
of or on the
streets”.
167. To coordinate and supervise recreational, cultural
and leisure activities, in pursuance of the Act adopted at the National
Sovereign
Conference (Sociocultural Committee), there has existed since
June 1994 a National Youth Council responsible for the planning and
coordination of activities for protection of the young.
G. Special protection measures
1. Children
in situations of emergency
(a) Refugee children
Article 22
Special protection shall be accorded to a child who is a refugee or is seeking refugee status. The State has the obligation to cooperate with the competent organizations mandated to provide such protection.
168. Focal areas of war, tension between ethnic groups, internal
disorders and armed conflicts are spreading, particularly in Africa.
Many
people are fleeing their countries of origin and nationality to live in
neighbouring countries, thus becoming refugees. Among
them are many children,
accompanied or otherwise, whose lot is a tragic one affecting their dignity and
their rights.
169. Zaire is a signatory to the Universal Declaration of
Human Rights, which states that “everyone has the right to seek and
to
enjoy in other countries asylum from persecution” (art. 14). It is a
party to a number of international agreements enabling
refugees to exercise the
basic human rights that they will be able to invoke in their countries of asylum
in order to lead a normal
and active life. Thus in wartime children under
15 years old have a recognized right to free passage of any consignment of
food,
clothing and tonics specifically intended for them. Those who are orphans
or separated from their families have a right to maintenance,
to the practice of
their religion and to education. They have a right to any preferential
treatment (see Geneva Conventions of
12
August 1949).
170. The Organization of African Unity, of
which the Congo is a member, adopted on 10 September 1969 a
Convention governing the specific
aspects of refugee problems in Africa. This
legal instrument came into force in 1974 with the creation of an office for
the placement
and education of refugees. To accomplish its task, the office
cooperates with UNHCR and other organizations concerned with
refugees.
171. The problems of refugees in general and child refugees in
particular cannot be solved by legal instruments alone. Neither can
humanitarian aid root out the causes of the evil, which lie in dictatorial
political systems, the wretchedness and poverty of the
population, economic and
mental underdevelopment, and social injustice.
172. Since UNHCR
cannot on its own meet the costs entailed in the resettlement and repatriation
of refugees, effective support from
governments and from intergovernmental and
private organizations is indispensable. The Congo has signed headquarters
agreements
with UNHCR. The distribution of the refugees under UNHCR care in
the Congo is shown in the following table:
Year
|
Refugees receiving assistance
|
Refugees not receiving assistance
|
Total
|
31 December 1994
31 December 1995 31 October 1996 |
1 559 200
1 292 900 1 380 914 |
165 100
40 000 103 353 |
1 724 300
1 332 900 1 484 267 |
Source: UNHCR, Kinshasa, December 1996.
173. In
the Congo, child refugees are housed in the State orphanages of Kisangani
and in the Red Cross orphanage at Bukavu, among
others. As no data are
available on the percentage of children, we may assume that, on the pattern of
neighbouring African countries,
the proportionate number of children among the
refugees can be evaluated at 50 per cent or more (as is the case
in Angola, Uganda
and Burundi).
Displaced children
174. Although
not refugees, Congolese children who are displaced also need assistance; while
upholding family cohesion, the State
must organize facilities for their
accommodation.
(b) Children affected by armed conflicts
Article 38
“2. States parties shall take all
feasible measures to ensure that persons who have not attained the age of
15 years do not
take a direct part in hostilities.”
No child under 15 years of age shall be recruited into the armed forces. States shall also provide protection and care for children affected by an armed conflict, in accordance with the relevant provisions of international law.
175. In case of war, rebellion, or ethnic or tribal conflict, children
and women are among the victims. Many children suffer through
being separated
from their parents. The State must strengthen the application of the rules of
humanitarian law applicable in case
of internal or international armed conflict
(the Geneva Conventions) by assisting children who fall victim to it.
This applies to
child victims of the tribal conflicts in Shaba, the child
refugees from Rwanda and Burundi, and the thousands of Congolese displaced
owing
to the war in the east of the country.
176. It is difficult to dissociate the domain of international humanitarian
law from the internal disorders and tensions currently
accompanying the
political disturbances in several countries of Africa. Accordingly
article XXII of the African Charter on the Rights
and Welfare of the Child
provides as follows:
“States parties to the present Charter shall, in accordance with their obligations under international humanitarian law, protect the civilian population in armed conflicts and shall take all feasible measures to ensure the protection and care of children who are affected by armed conflicts. Such rules shall also apply to children in situations of internal armed conflicts, tension and strife.”
Currently, the complex nature (internal and international) of armed
conflicts is diluting the force of Member States’ obligations
under
humanitarian law. Where developing countries, in particular, are concerned,
their situation of economic dependence in relation
to the rich countries is
compounded by a humanitarian dependence which sometimes gives rise to political
and doctrinal discussions
to the detriment of the application of the principle
of “first call for children” enunciated
by UNICEF.
177. Regarding children drawn into hostilities and
recruited into the armed forces, the Sovereign National Conference went even
beyond
the provisions of the 1949 Geneva Conventions (Additional
Protocols I and II) and the Convention on the Rights of the Child.
Instead
of 15 years, it set at 18 years the age for recruitment
into military service and participation in hostilities. Unfortunately, after
a
series of compromises, those provisions were not included in the transitional
Constitution now in force; however, the latter does proclaim in article 35
the duty of the State to integrate human rights education into the
school
curriculum and take measures for dissemination of human rights
information.
178. The provisions of the military criminal code regarding
children who take part in hostilities or are recruited into armed forces
must be
revised to bring them into conformity with those of the Standard Minimum
Rules for the Administration of Juvenile Justice
(“The Beijing
Rules”), which recommend differential penal treatment between child and
adult offenders. The reader is
also referred to chapter II,
subsection B.3, of Part One (paras. 27 and 28 above).
179. Failing
rapid action Africa, with its numerous wars, is at risk of developing the
“child soldier” or “child
militiaman”
phenomenon.[30]
180. In
view of the contradictions between the Convention on the Rights of the Child and
the Geneva Conventions (Additional Protocols)
concerning the age of recruitment
and enrolment of children, the Congo will need, in line with
document A/51/306, dated 26 August
1996, of the
United Nations General Assembly, dealing in particular with the impact
of armed conflict on children, to work with the
other Member States towards
completing the preparation of the
optional additional protocol on the
participation of children in armed conflicts, so as to raise
to 18 years (as the Sovereign National
Conference had indeed proposed)
the minimum age for recruitment and participation in
hostilities.[*]
2. Children in conflict with the law
(a) Administration of juvenile justice
Article 40
Any child alleged as, accused of, or recognized as having infringed the law has a right to treatment such as will promote his sense of dignity and worth, which takes account of his age and which aims at his reintegration into society.
The child has a right to fundamental guarantees, as also to legal or other appropriate assistance for his defence.
Judicial proceedings and placement in institutions must be avoided wherever possible.
181. Juvenile justice is regulated by a colonial enactment: the Decree
of 6 December 1950 regarding juvenile delinquency and cases
of associated
deviant behaviour. The legislation defines minors for penal purposes as persons
under age 16 (article 1 of the Decree
of 1950, amended by OrdinanceLaw
no. 78/016 of 4 July 1978). Competence to try the acts committed by a
juvenile offender is vested
in the courts alone, namely at present the district
courts (and, more specifically, the juvenile chambers established within them).
Hence the attribution to the judiciary of competence to act in the case of
juvenile offenders.
182. Further, the legislation stipulates that the
Decree does not override the provisions of general law in punitive matters
except
where it expressly so states, and that whatever is not amended in general
legislation must remain intact; i.e. that the judge must
in certain cases refer
to the general law for adults. In that respect, the basic guarantees regarding
procedure and judgement that
are accorded to adult defenders are also accorded
to juveniles. These include in particular the right to be assisted by counsel
for the defence of its interests, the right to be heard, the right to
confrontation with witnesses, the right to appeal to a higher
court,
etc.
183. The Decree contains mandatory provisions for identification and
for investigation of social circumstances in the course of which
measures may be
taken for provisional custody, in a family or an institution (arts. 15 and
16), or exceptionally in a prison, where
the juvenile must be placed under a
special regime (art. 17).
184. The Decree accords extensive discretionary
power to the judge, who, depending on the circumstances specific to the offender
or
the offence, may choose between reprimand, placement in an institution
(closed or open) or with a private individual until the age
of 21 years, or
detention at the disposal of the government until the age of 21 years. The
same applies to the system of noncustodial
supervision (arts. 13 and 14) applied
to a juvenile serving a sentence in an open establishment. All these measures
are subject
to review in the juvenile’s interest (art. 18). The
juvenile offender cannot therefore be subject to the infliction of a penalty
(art. 5), including capital punishment. However, in order to comply with
the spirit of the Convention, the age of criminal majority
needs to be raised
from 16 to 18 years.
185. We see from the above that the 1950
legislation, though antedating the Beijing Rules and the Convention,
nevertheless reflects
to some degree the spirit of those international
instruments. Being nearly 50 years old, however, the 1950 Decree needs
reforming
to adapt it more closely to the needs of juveniles, to the realities
of the country’s situation and to the scientific requirements
of modern
judicial procedure. To that end, the government has initiated preliminary draft
reforms to take the juvenile justice system
out of the hands of the judiciary,
widen the range of measures which are still too limited, promote communitytype
solutions and categorize
juvenile offenders with a view to better tailoring to
the individual of the measures taken. The draft determines the minimum
threshold
below which the child is considered as incapable of infringing the
law. The absence of specialized courts and of personnel trained
in judicial
procedure is conducive to incorrect and even uncertain application of the 1950
decree.
(b) Children deprived of their liberty
Article 37
No child shall be subjected to torture, cruel treatment or punishment, or illegal arrest or detention. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age.
Every child deprived of liberty shall be separated from adults, unless it is considered in the child’s best interest not to do so.
Every child deprived of his or her liberty shall have the right to access to legal and other appropriate assistance, as well as the right to maintain contact with his or her family.
186. The decision to detain a minor in a cell is taken by judicial police
officers, who furthermore rule illegally on the substance
of cases involving
young offenders; by law, this competence lies solely with district courts
(Decree of 1950, arts. 2 and 5). This
situation accounts for the very small
number of juveniles brought before the courts. By way of example, Gombe
district court, whose
jurisdiction covers the areas of Gombe, Kinshasa, Barumbu
and Lingwala, with a population of 166,154 in 1987, is recorded as having
dealt
with only nine cases involving juveniles in 1987 and five in 1988. The
Matete court, which covers the areas of Matete, Limete
and Kisenso (360,889
inhabitants), dealt with 15 recorded cases in 1987 and 18 in
1988.[31]
187. OrdinanceLaw
No. 13/140 of 13 January 1954 governs State custodial and educational
establishments constructed with a view to
the implementation of the Decree of 6
December 1950 relating to young offenders. These enactments regulate the
placing of young
offenders in institutions. Although preceding in time the
Convention and the Beijing Rules (art. 26), most of these enactments respect
the
rights of the child.
188. However, a number of these establishments
(about 10 in the whole country) are in a dilapidated state; only two or three
(notably
Madimba and BensekeFuti in the Kinshasa and Lower Zaire region)
are still operational. One NGO, the League for Assistance to Juveniles
in
Prison, recorded, in September and December 1995, a total of 18 children or
young persons between ages 9 and 24 in the State establishment
in BensekeFuti.
In Madimba, on 23 September 1995, it recorded a total of 31 young people
aged between 11 and 23; the figure for
people between the ages of 11 and 21 at
the Provisional Accommodation Centre within Makala central prison was 19. It
should not
be forgotten that under Congolese criminal law a person who is aged
under 16 at the time of the offence is considered to be a young
offender. The
age limit for holding a young offender at the disposal of the governmental
authorities may, in the case of certain
serious offences, be raised from 21 to
25. In the abovementioned establishments, young people spend most of the time
idle, without
effective training or supervision. Review of the measures taken
is a rare event. All the privations they suffer constitute veritable
torment
for the children concerned.
189. The Government will make a point of
giving a democratic character to the juvenile justice
system,[32] notably by
entrusting its management to private enterprise, with which cooperation will
continue during the social rehabilitation
of juveniles under noncustodial
supervision (Decree of 1950 on young offenders, arts. 13 and 14). In this
connection, mention may
be made of Fr. Franck’s Rehabilitation
Project (ORPER) and Assistance to Disadvantaged Children (AED) in Kinshasa,
whose activities
cover action of this kind.
3. Children in situations of exploitation
(a) Child labour
Article 32
Children have the right to be protected from performing any work that is likely to be harmful to their health, education or development.
The State shall provide for a minimum age for admission to employment and regulate conditions of employment.
190. The Labour Code regulates child labour, and in particular capacity
to enter into a contract, the prohibition of night work, the
duration of daily
rest and monthly leave, the kinds of work children are forbidden to
perform, and penalties which must be imposed
on an employer who infringes
the above provisions. It should be noted that the measures for the
implementation of these various
provisions are developed by Decree No. 19/67 of
3 October 1967, Decree No. 68/13 of 17 May 1968 and Decree No.
28/75 of 30 October
1975.
(i) Capacity to enter into a contract
(Labour Code, art. 3)
191. The hiring or continued employment of a person
under age 14 is prohibited. A person aged between 14 and 16 may not be hired
or
retained except in order to perform light, healthy work. The hiring or
retaining of a person aged between 14 and 16 is prohibited
if not agreed to by
the person exercising parental authority or guardianship over that
person.
(ii) Prohibition of night work
192. It is
forbidden to employ children under the age of 18 on night work in public or
private establishments (art. 106).
(iii) Hours of work, daily rest
and monthly leave
193. No child aged between 14 and 16 may be
employed for a period exceeding four hours a day or work in breach of the
regulations
relating to education. No child between the ages of 16 and 18
may work more than eight hours a day and, if the duration of work
is in excess
of four hours, it must comprise one or more breaks. The daily rest period for
children between two periods of work
must be at least 12 consecutive hours (art.
108). The duration of monthly leave must be at least one and a half working
days per
full month of employment for workers under age 18 (art.
120).
(iv) Kinds of work which may not be done by
children
194. A child may not perform work which may exceed its
strength and must be assigned to appropriate employment (art. 116, para. 2).
In
addition, in the relevant legislation care has been taken to define work done
and the effort which it entails, depending on whether
it is performed by a boy
or a girl. Decree No. 68/13 of 17 May 1968 forbids the employment of children
under age 18 on certain work
such as: checking, greasing, cleaning or
repair of machines or mechanism while running; driving of motors, vehicles and
machines,
and extraction of minerals: in other words, any work liable to
jeopardize their health or carrying a special risk of accident.
The same
applies to work of an immoral character, such as working as a barman or in some
other capacity in bars or in establishments
which print indecent
texts.
(v) Labour inspection
195. The Labour Code makes
provision for a labour inspection department which exercises supervision and
ensures observance of the
relevant provisions (art. 160). In the event of a
violation, it establishes penalties to be imposed on those
responsible.
196. Given the current disastrous economic situation, where
employment in the informal economic sector is the only answer for the
majority
of the population,[33] a
number of parents tolerate, or even send their children to do, work which the
latter are forbidden to perform by law. In view
of this tolerance and the
failure of parents, children and the labour inspectorate to report this
situation, employers exploit children
at their leisure. Even the State seems
indifferent to the manifold cases of violation (“mine children” in
Kasaï,
the “bana lunda” in Bandundu, who dive or dig to
considerable depths to look for diamonds).
(b) Drugs and narcotic
substances
Article 33
Children have the right to be protected from the use of narcotic drugs and psychotropic substances, and from the use of children in the illicit production and trafficking of such substances.
197. The Legislative
Ordinance of 22 January 1903, as approved by the Decree
of 10 March 1917, prohibits the cultivation, sale, transport,
possession or consumption of hemp. These provisions need to be
expanded to cover other drugs and narcotic substances such as morphine,
cocaine,
roche4,
etc.[34]
198. Ordinance
No. 27 bis (hygiene) of 15 March 1933, as subsequently amended, regulates
the exercise of the pharmaceutical profession. This must conform
to the
provisions of the international conventions, including the United Nations
Convention against Illicit Traffic in Narcotic Drugs
and Psychotropic Substances
of 1988. The Congo ratified, in 1964, the United Nations Single Convention
on Narcotic Drugs of 1961
and has acceded to a number of other related
international legal instruments.
199. Although many children inhale
solvents and consume certain toxic pharmaceutical products such as roche4 or
other imported drugs,
the act of smoking hemp is becoming a veritable way of
life which forms part of the “minority moralities” which
dysfunctional
subgroups are trying to impose on the social majority. Unemployed
and disadvantaged street children, children known as “mine
children”
or “bana lunda”, together with young adult musicians, drivers and
soldiers, are great hemp consumers.
By way of illustration, it may be noted
that of 168 children helped by the AED, 134 (78.5 per cent)
stated that they had used drugs
(hemp, roche4, etc. Unpublished study). The
common factor for all these categories of young people is daily stress due to,
inter alia, fear of the difficult living and working conditions
which will confront them at an early age in the informal economic
sector.
200. On the specific question of girls living in the streets,
because of drugs they tend to have sexual experiences with adults (mainly
expatriates or soldiers), and also with boys and other girls. They experience
feelings of guilt and despair (about the future),
accompanied by a desire to
secure the means of existence and even luxury articles (jewellery, designer
clothing). They are exploited
by pimps for their own pleasure or for commercial
ends.
201. Apart from narcotic drugs and hemp, the advertising of
alcoholic beverages and tobacco by young people is immoral. OrdinanceLaw
No. 68/010 of 6 January 1968 establishing regulations relating to alcoholic
beverages, and No. 75/153 of 31 May 1975 establishing
the opening
hours of bars and prohibiting night clubs throughout the Republic, should be
strengthened and enforced in practice.
They will be expanded by provisions
regulating posters and advertising on television, radio, etc., in order to
prohibit economic
operators from overhyping alcoholic beverages and, above all,
using juveniles and mothers for this purpose.
202. Apart from legal measures, the State will disseminate information on the
dangers of narcotic drugs and psychotropic substances
to mental, physical and
social health, and especially that of young people the adults of tomorrow.
These measures will have to
be accompanied by a policy aimed at social welfare
through the improvement of living conditions.
(c) Sexual exploitation
and sexual abuse
Article 34
The State shall protect the child from sexual abuse and sexual exploitation, including prostitution and the use of children in pornographic performances.
203. Apart from the forms of abuse and exploitation prohibited by the
Criminal Code (see paras. 6371 above) and maltreatment as we
have
defined it (see paras. 125130), we consider it useful to draw particular
attention to the sexual exploitation of adolescents,
who are victims in two
respects: first, of the difficult living conditions with which the population
as a whole are confronted,
and secondly, of the vulnerability related to a
particular stage of their psychosocial, physical and cognitive
development.
204. WHO defines adolescence as the period from 10 to 19
years, which represents a very turbulent stage of development. It is an
irregular and uncoordinated period of transition during which the child passes
from childhood to adulthood, from economic dependence
to relative independence,
from puberty to full sexual and reproductive
maturity.[35] The disparity
in the ages at which adolescents reach maturity has an effect on their
vulnerability to sexual exploitation, notably
when periods and breasts appear at
an early age in girls. This maturity, which makes them look older than they
are, may lead some
people to expect of them sexual behaviour whose consequences
they are incapable of dealing with.
205. Sexual exploitation, which is a
very real phenomenon in the Congo, manifests itself in several forms.
Unfortunately, however,
we do not have any indepth studies or statistics on the
subject (reference may nevertheless be made to the document submitted to
the
1996 World Congress in Stockholm see note 21). The various
forms of sexual exploitation recorded include: incest (by family
members);
forced early and incestuous marriage; rape (by brothersinlaw of sistersinlaw, by
employers of maids, by teachers of pupils,
by soldiers and prisoners of adult
women, girls or female prisoners, etc.); “cohabiting” of adults and
minors (mario); procuring, prostitution, pornography. These evil
practices result in sexually transmissible diseases, abortions, sterility, early
pregnancy, forced celibacy of women, brutality, physical disabilities, etc.
From the psychological and social standpoints, they
jeopardize mental health and
the stability of life in society, families and schools.
206. The causes
are mainly of an economic nature (poverty), but also of a social nature
(proximity of dwellings, depravity), a family
nature (economic and emotional
insecurity), a politicallegal nature (absence, insufficiency or nonenforcement
of relevant legal provisions),
or a cultural nature (lack of
savoirvivre, ignorance of sexuality, notably because of certain sexual
taboos). Again in the cultural sphere, reference may be made to the custom
of
certain ethnic groups which, as a token of hospitality, “obliges parents
to offer their daughters and men to offer their
wives to a visitor
to a village in order to express their
esteem”.[36] Street
children and young migrants living with family members (where they are left to
their own devices, without effective supervision
or genuine practical support)
are at greatest risk. Consequently, the stages of the child’s moral
development interact with
the reality of the sociocultural and political context
in which he or she grows up.
207. Instead of labelling or stigmatizing
adolescents in a “situation of social risk”, the State, adults and
society must
promote feelings of receptiveness and understanding of their
situation, with the aim of protecting them against the evils that lie
in wait
for them.
Article 35
The State has an obligation to take all appropriate measures to prevent the abduction or sale of children or traffic in children.
208. With regard to
sale, trafficking and abduction, reference should be made to the information
given above in chapter I, section
B.4 (paras. 67 and 68).
H. Observance of established norms
Article 41
If a provision relating to the rights of the child contained in the national or international law in force for a State is more favourable than the similar provision in the Convention, the more favourable norm shall apply.
209. Africa is moving towards a form of modernity which nevertheless
retains “authentic” aspects; these should be taken
into account and
safeguarded. For this reason, legislation which is too advanced in relation to
mental, social, economic and cultural
structures is sometimes more dangerous
than an outdated legal
system.[37] By way of
example, it should be stated that a Congolese considers that physical punishment
of a child by the person having authority
over him still has an educational
value. However, the law protects children against any abuse in this respect
(Family Code, art.
319; Criminal Code, arts. 46 et seq.).
For example, excision seen from the physical standpoint is a barbarous and
inhuman practice but, when considered from the cultural
standpoint, it retains
an initiatory, educational and sexual value which should be
safeguarded.
210. It is desirable that, before ratifying a convention,
States parties should first recast their legislation in order to introduce
amendments in conformity with the spirit of that convention. The African States
in particular have no difficulty in signifying their
agreement with
international legal instruments; many do so more out of political considerations
than for the purposes of the defence
of the rights of the child. The inadequate
implementation of these instruments bears witness to this fact.
I. General measures of implementation and entry into force
of the Convention
211. The Convention has become an integral part of international law since,
of 186 States parties, 42 more than the 30 required
had adopted
it and 135 ratified it by January 1996. The Congo is a signatory of
the Convention, which it ratified on 22 August 1990.
Since that date,
however, its publication in the Journal officiel in conformity with
article 112 of the transitional Constitution has been pending.
Nevertheless, several bodies and mechanisms have been set up to publicize and
implement the principles contained
in the Convention.
(a) At
governmental level: establishment of a Child Protection Department in the
Ministry of Public Health and the Family (1992),
and similar departments and
services in other ministries;
(b) At grassrootscommunity level:
establishment of nongovernmental organizations and associations such as:
Defence for Children
International (DCI), Zaire section (February 1990),
the LIZADDE (June 1991), the APAPEZaire (1993) and the African Zone League
for
the Defence of the Rights of Schoolchildren and Students (LIZADDEL)
(1994).
212. Many types of activities have been undertaken to publicize
the Convention (studies, printing of documents, lectures, radio and
television
broadcasts, press articles, seminars, translation of the Convention into the
four national languages). Several bodies
notably NGOs and essentially with
UNICEF support, have contributed to the dissemination of the Convention. The
fact is, however,
that the rights of the child are not yet sufficiently well
known in the Congo, the reasons being the unfavourable political environment
and
context, lack of coordination, and the inadequacy of human, material and
financial resources for giving continuous publicity
to the
Convention.
213. In 1994, the Congo established a National Committee on
Children responsible for reporting to the United Nations Committee on
the Rights
of the Child on the implementation of the Convention in conformity with
article 44. This National Committee is composed
of representatives of
ministries, NGOs, associations and religious denominations. It is important to
emphasize that a number of
international organizations (UNICEF, UNHCR, UNESCO,
ILO) hold observer status within the National Committee, their incorporation
ensuing from the provisions of article 45 (a) of the
Convention.
214. The present report is the first which the National
Committee has submitted to the Committee on the Rights of the Child. It will
be
given a large printrun so that it can be widely distributed among NGOs,
associations and international organizations in the Congo
whose mandate gives
them responsibilities relating to children. Meetings, notably in the form of a
national forum, could be organized
in order to facilitate the dissemination of
the report and to elicit suggestions and criticism.
215. The training of
participants and the execution of specialized studies relating to matters
covered by the Convention will make
it possible, inter alia, to find
appropriate strategies for the dissemination of the Convention and its
acceptance within the Congolese mentality. In order
to do this, cooperation
with the international organizations is essential, since the Congo, like African
countries in general, is
experiencing financial difficulties in organizing
research and training.
216. UNICEF, for example, has made possible the publication of studies on the
following topics: civic education the rights and duties
of children up to the
age of 18 (by C. Meeus, 1994); the place of the Convention on the Rights of
the Child in Zairian law (by J.
Idzumbuir Assop, 1994); Justice for
minors in Zaire realities and perspectives (by J. Idzumbuir Assop,
1994). In Kinshasa and several
other cities, UNICEF has financially supported a
number of seminars and symposia on the promotion of the rights of the child,
notably
the awarenessraising seminars organized by the DCI, under the auspices
of the Government and UNICEF, for schoolchildren and military
personnel in the
capital.
III. DECISIONS AND RECOMMENDATIONS
217. Although their enactment in many cases preceded the adoption of the
provisions of the Convention on the Rights of the Child,
the Congolese legal
instruments in force to a large extent reflect the spirit of the Convention.
However, an essential effort remains
to be made, namely to ensure the effective
implementation of these provisions.
A. Decisions
218. In order to ensure that these instruments are indeed implemented
effectively, the Government, after having ratified the Convention,
undertakes
to:
B. Recommendations
1. To parents
219. “By their fruits shall ye know them”. In the Congo,
however, parents are often heard saying “Babotaka mwana,
kasi motema
te”, which translates as “We bring the child into the world, but not
its heart”. If “motema”
means “personality”, one
must agree with the eminent psychologist C. Debuyst that personality is
something which is “constructed”.
It develops in contact with
internal or endogenous factors and external or exogenous factors. For this
reason, we recommend that
parents should:
(a) Bring up their children
with the kindness and affection due to their dignity as human and social beings
(in the Congo, the word
“parents” is understood in a broad sense
covering “patrilineal and matrilineal kinship”, whether this link
results from civil filiation or from purely legal
filiation);
(b) Consider children as subjects of law capable of
participating in the renewal of society’s
institutions;
(c) Endeavour to use the knowledge, facilities and
resources made available to them by society in order to help them with family
planning and the supervision, education, and care of children;
(d) Avoid
rigidly adhering to retrograde traditional behaviour liable to cause or give
rise to generational, cultural or socialclass
disputes between them and
children; such a change of mentality and behaviour will be possible only through
an educational input,
which will lead parents to make harmonious use of
traditional and modern values with a view to their adaptation for the purposes
of the better education of children. By way of example, action to combat
excision must not be allowed to create a cultural and educational
void.
2. To nongovernmental organizations
220. The protection of children in general and their rights in particular
involves numerous and varied matters which are dealt with
by a number of
national and international NGOs. In order to ensure that they do not work in a
disorganized manner, the establishment
of a coordination network is essential;
this network will be responsible for, inter alia, the design and followup
of programmes for the protection of the rights of the child.
221. To this end, we propose the following structure:
Ministry of Public Health and Social and Family
Affairs
|
|||||
|
National Committee on Children
|
|
|||
|
|
||||
NGOs and various services
|
State bodies
|
Specialized agencies of the United Nations
|
In short, the National Committee on Children, under the aegis of the
Ministry responsible for the advancement of the family, will
work in conjunction
with other state bodies, NGOs and various services, and with United Nations
specialized agencies whose responsibilities
include the protection of children.
The Government will provide material and financial support for national
initiatives in order
to ensure that they adequately fulfil their duties and
obligations. To achieve this, close cooperation will be established between
them and the specialized agencies.
3. To the international organizations
222. Particularly during this period of economic crisis, the support of
the international organizations whose responsibilities include
the protection of
children and the promotion of their rights is essential. This support will
primarily consist of essential logistic
and financial assistance
for:
(a) Research and training of participants children and young
people;
(b) Enforcement of laws for the protection of children and the
family (e.g. the Law on the protection of young offenders and delinquents,
the
Family Code);
(c) Publicity for, and dissemination of, the Convention on
the Rights of the Child;
(d) Followup and evaluation of activities to
promote the rights of the child.
UNICEF is already involved in several of
these activities.
CONCLUSION
223. The evaluation of implementation of the various articles of the
Convention in the Congo indicates that reference to the Convention’s
provisions is more de jure than de facto. This finding may be
accounted for by the fact that:
224. For
this reason, instead of repressive or restrictive measures, preference will have
to be given mainly to strategies using “attractive”
education and
awarenessraising measures. The latter, unlike the former, not only avert
cultural and generational conflicts, but
also promote spontaneous conformity
with new and valued patterns of behaviour because their acceptance would have
been facilitated;
this in the final analysis is less costly to
society.
225. In addition, activities aimed at the promotion and
protection of the rights of the child must be more closely incorporated within
the national programme for the development and general wellbeing of the
population in order to secure greater involvement by the
State.
Notes
Appendix
The following persons have contributed to the preparation of this
document:
1. Collaboration of experts
2. Guidance and technical contribution by the
UNICEF/Zaire office
[1] Ministry of Planning: “Note distratégie nationale” (“Note on national strategy”), March 1999.
[2] National Statistical
Institute: Data taken from the 1984 scientific
census.
3 Ministry of Planning: “Les
indicateurs socioéconomiques” (“Socioeconomic
indicators”), 1999.
[4] Ibid.
[5] Ministry of National Education: “Plan cadre national pour la reconstruction du système éducatif de la RDC” (“National outline plan for the reconstruction of the education system in the RDC”), Vol. 2, Kinshasa, August 1999.
[6] UNICEF: Plan cadre des
opérations pour la survie, la protection et le développement des
enfants 1998 (Outline plan
of operations for the survival, protection and
development of children), Kinshasa, January 1999.
7
UNDP Human Development Report, 1999: Indicators and
Statistics.
8 See footnote
6.
9 Education sector.
10
Journal officiel de la République Démocratique du Congo,
Instruments internationaux relatifs aux droits de l’homme
ratifiés
par la RDC (International human rights instruments ratified by the RDC), 40th
year, special issue, 9 April 1999.
[11] Kienge Kienge Intudi, “Quelques spécificités de la Charte africaine des droits et du bienêtre de l’enfant” (“Some specific aspects of the African Charter on the Rights and Welfare of the Child”), ZaïreAfrique, Kinshasa, No. 295, May 1995.
[12] Piron P. and Devos J., Codes et lois du Congo Belge (Codes and Laws of the Belgian Congo), 8th edition, 1960, Vol. II.
[13] Thomas, L.V., “Acculturation et nouveaux milieux socioculturels en Afrique noire” (“Acculturation and new sociocultural environments in Black Africa”), Bulletin de l’Institut fondamental d’Afrique noire, XXXVI, series B, No. 1, 1974.
[14] Izdumbuir Assop, Joséphine, “La justice pour mineurs au Zaïre. Réalités et perspectives” (“Justice for minors in Zaire. Realities and prospects”), Kinshasha, Ed. Universités africaines, 1994.
[15] Acte constitutionnel de la transition (transitional Constitution), Journal officiel de la République du Zaïre, special issue, April 1994.
[16] Idzumbuir Assop, Joséphine, “La place de la Convention relative aux droits de l’enfant ... droit zaïrois” (“The place of the Convention on the Rights of the Child in Zairian law”), UNICEF/Zaire, Kinshasa, 1994, p. 40.
[17] Report of the Legal Commission of the Sovereign National Conference, People’s Palace, Kinshasa, 1992.
[18] Bolie Nonkwa Mubiala, Odette, “Evaluation de l’état d’application de la Convention sur l’élimination de toutes les formes de discrimination à l’égard de la femme au Zaïre”, Kinshasa, June 1996.
[19] Idzumbuir Assop, op. cit. (see above, note 14).
[20] Le Guerinel N., N’Diaye N. et al., “La conception de l’autorité et son évolution dans la relation parentsenfants”, Psychopathologie sociale africaine, Vol. 5, 1969.
[21] National report of
the Transitional Government of the Republic of Zaire presented to the World
Congress against Commercial Sexual
Exploitation of Children, Stockholm,
2731 August 1996.
[22] Idzumbuir Assop and Omalete Osako, “De la nécessité de créer un Office national de protection de la jeunesse au Zaïre” (“The need to create a national Office for Protection of Young Persons in Zaire”), periodical Bana ba biso, special issue 1992.
[23] National Institute of Statistics: Scientific population census (1984) (UNDTCD, Projects ZAI/83/019; ZAI/88/PO3).
[24] Census of Kinshasa street children and youngsters, survey conducted by the “ORPER Protection” team in March 1996 (with UNICEF support).
[25] KiZerbo, Joseph, Eduquer ou périr, Impasse et perspectives, (“Educate or die problems and perspectives”), UNESCOUNICEF, 1990.
[26] Etats généraux de l’éducation nationale au Zaïre (organized in pursuance of the resolution of CNSKinshasa), Palais du peuple, 1995.
[27] Nonkwa Mubiala, doc. cit. (see above, note 18).
[28] African Charter on the rights and welfare of the child, Addis Ababa, OAU document CAB/LEG/153/Rev.2, July 1990.
[29] Education: a force for change, document submitted by UNICEF to the World Congress against Commercial Sexual Exploitation of Children (Stockholm, 2731 August 1996).
[30] BulaBula Sayenan, “Le parapluie humanitaire de l’enfant” (“The child’s humanitarian shield”), Revue interdisciplinaire des droits de l’homme, Vol. 1, No. 1, JanuaryApril 1995.
[*] Secretariat note: The draft
optional protocol additional to the Convention on the Rights of the Child,
concerning the involvement of children in
armed conflicts, was adopted by the
Commission on Human Rights at its fiftysixth session (resolution 2000/59 of 26
April 2000, annex
A). The text appears in document E/CN.4/2000/L.11/Add.6 and
in the report of the Commission (E/2000/23E/CN.4/2000/167, chap.
I).
[31] Idzumbuir Assop,
op. cit. (see note 14 above).
[32] Idzumbuir Assop, Joséphine, “De la nécessité de démocratiser le système de justice pour mineurs au Zaïre” (On the need to democratize the juvenile justice system in Zaire), Annales de la Faculté de droit, Vol. XXV, Zaire University Press, August 1996.
[33] Idzumbuir Assop, Joséphine, “Contribution du secteur économique informel à l’adaptation sociale des acteurs sociaux marginalisés” (Contribution of the informal economic sector to the social adaptation of marginalized social actors), Bulletin semestriel de CerdasLiaison IRES, Faculty of Economic Sciences, Kinshasa, 1984.
[34] Bungu Musoy Dia Siy, Baudouin, “La problématique de l’efficacité des dispositions pénales zaïroises sur les stupéfiants” (The problems relating to the effectiveness of the Zairian criminal provisions on narcotic drugs), law degree thesis, University of Kinshasa, Faculty of Law, December 1996.
[35] “Prevention and psychosocial rehabilitation of child victims of commercial sexual exploitation”, paper submitted by the NGO group for the Convention on the Rights of the Child to the World Congress in Stockholm, 2731 August 1996.
[36] Report submitted to the Stockholm Congress (see note 21 above).
[37] Gendarme, “Problèmes juridiques et développement économique” (Legal problems and economic development), quoted by Coissy, D., in “Politique criminelle des Etats d’Afrique noire” (Criminal policy of black African States), Revue internationale de criminologie et de police technique (RICPT), No. 3, 1993.
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