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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/11/Add.23 9 January 2001 ENGLISH Original: FRENCH |
COMMITTEE ON THE RIGHTS OF THE CHILD
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER
ARTICLE 44 OF THE CONVENTION
Periodic reports due in 1994
CAPE VERDE
CONTENTS
Paragraphs Page
General considerations 1
- 10 4
I. GENERAL MEASURES OF IMPLEMENTATION 11 -
39 5
A. General framework 11 - 22 5
B. Measures taken to
harmonize legislation and policy
with the provisions of the Convention
23 - 38 7
1. Legislation 24 - 27 7
2. Cape Verdean Juvenile
Institute 28 - 32 8
3. Education 33 - 35 9
4. Youth
36 9
5. Health 37 10
6. General policy
38 10
C. Mechanisms to coordinate and monitor
the
implementation of the Convention 39 10
GE.01-40105
(E)
CONTENTS (continued)
Paragraphs Page
II. DEFINITION OF THE
CHILD 40 - 65 10
A. Majority 41 - 42 10
B. Legal capacity of
minors 43 - 49 11
C. Legal counselling without parental consent
50 12
D. Medical counselling without parental consent
51 12
E. End of compulsory education 52 12
F. Employment 53 -
54 12
G. Sexual consent 55 12
H. Marriage
56 13
I. Voluntary enlistment in the armed forces
57 13
J. Giving testimony or making a statement in court
58 13
K. Criminal responsibility 59 13
L. Restriction or
deprivation of liberty 60 - 62 13
M. Consumption of alcohol 63 -
65 14
III. GENERAL PRINCIPLES 66 -
78 15
A. Non-discrimination (art. 2) 66 - 68 15
B. Best
interests of the child (art. 3) 69 - 72 15
C. Right to life, survival and
development (art. 6) 73 - 75 16
D. Respect for the views of the child
76 - 77 16
E. Copyright 78 17
IV. CIVIL RIGHTS AND FREEDOMS
79 - 97 17
A. Name and nationality 79 - 84 17
B. Preservation
of identity (art. 8) 85 18
C. Freedom of expression and
information
(arts. 13 and 17) 86 - 89 18
D. Freedom of thought,
conscience and religion (art. 14) 90 19
E. Freedom of association and of
peaceful assembly
(art. 15) 91 19
F. Protection of privacy 92 -
93 19
G. The right to honour and reputation 94 20
H. Prohibition of
torture and other cruel, inhuman or
degrading treatment or punishment
(art. 37 (a)) 95 - 97 20
V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE
98 - 127 20
A. Parental authority (art. 5) 98 -
100 20
B. Parental responsibilities (art. 18, paras. 1 and 2) 101 -
103 21
CONTENTS (continued)
Paragraphs Page
C. Separation from
parents (art. 9) 104 - 107 21
D. Family reunification (art. 10) 108 -
111 22
E. Recovery of maintenance for the child (art. 27, para. 4) 112 -
116 22
F. Children deprived of a family environment (art. 20) 117 -
120 23
G. Adoption (art. 21) 121 - 123 24
H. Periodic review of
placement (art. 25) 124 25
I. Illicit transfer and non-return (art. 11)
125 25
J. Abuse and neglect (art. 19) 126 - 127 25
VI. BASIC
HEALTH AND WELFARE 128 - 147 26
A. Survival and development (art. 6,
para. 2) 129 - 132 26
B. Disabled children (art. 23) 133 -
135 26
C. Health and health services (art. 24) 136 -
144 27
D. Social security and childcare services and facilities
(art.
26 and art. 18, para. 3) 145 - 146 28
E. Standard of living (art. 27,
paras. 1-3) 147 29
F. Cooperation with public and private
national
organizations 148 29
VII. EDUCATION, LEISURE AND
CULTURAL
ACTIVITIES 149 - 175 29
A. Education, including
vocational training and
guidance (art. 28) 149 - 164 29
B. Aims of
education (art. 29) 165 - 169 31
C. Leisure, recreation and cultural
activities (art. 31) 170 - 175 32
VIII. SPECIAL PROTECTION MEASURES
176 - 197 33
A. Children in conflict with the law 178 -
184 33
B. Children in situations of exploitation, including
physical
and psychological recovery and
social reintegration (art. 39) 185 -
197 34
IX. CONCLUSIONS 198 - 199 37
General considerations
1. Cape Verde is a small island country in the
Atlantic Ocean off the West African coast of Senegal and Mauritania. It was a
Portuguese
colony until 1975. According to 1992 statistical
data,[1] it has a land area of
4,033 km2 and a population of about 389,000 inhabitants.
The
country is part of the Sahelian zone and has the characteristics of that part of
the African continent, with an arid and semi-arid
climate and devastating
droughts. It has only 426 km2 of arable land and rain is
very sparse (about 200 mm/year). Prolonged periods of drought regularly affect
the country, jeopardizing
its survival and further accentuating the ongoing
process of desertification. The lack of permanent watercourses is one of the
country’s
major problems.
2. The economy is based on the provision
of services, which accounted for 60 per cent of GDP in the 1960s, while
agriculture and fishing
employed about 24 per cent of the active population, but
accounted for only 13 per cent of
GDP.[2] Because of the
above-mentioned conditions, an archaic structure and outdated technology,
however, the country cannot produce what
it needs for subsistence and has to
import staple commodities and ordinary consumer goods. Even during what are
regarded as good
farming years, production does not cover 60 per cent
of the country’s
needs.[3]
3. About 14
per cent of the population is considered extremely poor and 30 per cent is poor,
with a larger concentration of this population
sector in rural areas, where 70
per cent of the poor and 85 per cent of the extremely poor
live.[4] The unemployment rate
is quite high and stood at 23 per cent in 1990, according to an ILO
study.[5] The system of
production cannot provide employment for a population which is growing by 2.7
per cent each year. Unemployment primarily
affects women and young people, with
disturbing levels in urban
areas.[6] The majority of the
population lives in substandard dwellings. The poor have large families and
very little living space, without
sanitation and electricity. With the rural
exodus and as a result of the slums which have sprung up near towns and in which
health
conditions are extremely critical, the problem is growing
worse.
4. On account of major economic constraints, part of the Cape
Verdean population emigrates and it is estimated that nearly as twice
as many
Cape Verdeans live outside the country as in the islands. The adverse
social consequences of this situation are enormous,
but they are greatly
mitigated by emigrants’ remittances and by official development
assistance, which keeps increasing. From
1992 to 1995, official development
assistance rose from C.V. Esc 8,584 million to C.V. Esc
11,069 million and total investment amounted
to
C.V. Esc 10,427 million during the same
period.[7]
5. The
living conditions of much of the population are precarious. For example,
only 14.8 per cent of Cape Verdean families have
access to running
water and only 20 per cent have a bathroom with a toilet. When these data are
broken down by inhabited area, it
may be seen that, in rural areas, where the
majority of the population lives, these percentages drop to 2.9 per
cent for running
water and 6.1 per cent for access to a proper
bathroom.[8]
6. The
country’s overall socioeconomic problems are also reflected in the
nutritional situation, as shown by the large calorie
and protein deficit in
16.2 per cent of children under
age five.[9] Diseases
resulting from such living conditions carry considerable weight in cases of ill
health. Infectious and parasitical diseases
are thus the main causes of general
mortality (1.7 per thousand in 1993) and infant mortality (17.5
per thousand
in 1993).[10]
7. Family
structure is complex and is characterized by a large number of single people and
de facto unions. It should be pointed
out that 40 per cent of women
with more than one child have at least two different “fathers of
their children”[11] and
that nearly 80 per cent of children are born out of
wedlock.[12] Women, who
often support their families, have fewer skills and lower wages than men in
identical situations.[13]
This is the context in which a population with a very young component,
i.e. 55 per cent of young people
under age 20,[14]
lives.
8. Because of various factors, however, such as adequate social
welfare coverage, some health indicators are acceptable, particularly
when
compared with those in the region. General mortality (9.1 per cent
in 1995), infant mortality (45.1 per cent in 1995) and
underfive
mortality (59.8 per thousand), as well as coverage for children under
age one (64.2 per cent), are considered
positive.[15] Educational
indicators are also satisfactory, since the literacy rate stands at
80 per cent, which is quite
good.[16] The coverage rate
of preschool education in 1995 was about 40 per cent of children
aged between four and six. In basic education
(sixyear cycle), there was a
gross enrolment rate of 119 per cent and a net enrolment rate of
95 per cent in the same year. With
regard to secondary education
in 1995, gross and net enrolment rates stood
at 32.9 per cent and 29.6 per cent,
respectively.[17]
9. The
data relating to education reflect the cultural homogeneity of a physically and
culturally mixed population, which is the result
of the mixing of African
peoples and peoples of various cultures, especially the
Portuguese.
10. These general considerations may help provide a better
picture of progress in the implementation of the principles embodied in
the
Convention on the Rights of the Child.
I. GENERAL MEASURES OF IMPLEMENTATION
A. General framework
11. Since
national independence, the successive Governments of Cape Verde have
attached great importance to children. The situation
of children has been a
matter of constant concern not only to the State, but also to institutions,
political figures and civil society.
One of Cape Verde’s greatest
poets, Jorge Barbosa, denounced the situation in no uncertain terms during
the colonial period.
Amilcar Cabral’s famous saying that “Children
are the flowers of our revolution” reflects the country’s
concern
about the situation of children.
12. Political independence brought the
situation of children under institutional control, even though great efforts
still have to
be made in this regard. On the one hand, children enable
Cape Verdeans to see themselves as in a mirror and to show and renew their
emotions. On the other, they reflect the great problems in responding
adequately, in a very limited production
context to the demands of the large majority of young people, who are
consumers by nature. This institutional control is not merely
symbolic, but, in
practical terms, represents a break with the colonial approach, which was to
regard social problems as matters
for the police.
13. Twenty-two years
after national independence, the institutional model has changed a great deal
and progress has been made in promoting
the rights of children in various areas.
New problems always arise, however, and most of the old ones crop up again with
even greater
intensity; the obstacles to be overcome then become enormous.
14. Although there is a great deal of space for creativity and
rationalization, constraints are the result of material and human difficulties.
Part of this space might be occupied by actors who are trying, through
organizations of civil society, to establish the solidarity
that has always been
part of the Cape Verdean people’s traditions.
15. As stated above, efforts have been made over the years to give institutional shape to the Cape Verdean people’s way of life. In legislative and social policy terms, great strides were made and, generally speaking, they led to the implementation of the principles embodied in the Convention on the Rights of the Child. Cape Verde formally acceded to the Convention in 1991 (adoption of Act No. 29/IV/91 of 30 December) (Official Gazette No. 53, supplement No. 4). The progress made on the measures adopted thus far, in terms of the promotion and protection of the rights of the child, remains to be measured, however, and it must be determined whether this trend continued following ratification.
16. With regard to the main measures for the advancement and protection of children prior to 1991 and taking 1975 as a starting point, it may be stated that, in institutional terms, the coherent structure that has been built reflects the various stages in the country’s political history. Although a number of political measures in favour of children were adopted shortly after independence, the first Constitution (Lope, 5 July 1975, Official Gazette No. 1) did not deal specifically with the problem.[18] Like many other legal questions, those relating to the child continued to be dealt with by the colonial legislation that remained in force in Cape Verde after political independence. In constitutional terms, this was a major step forward that reflected the progress made during the 15 years between the first and last versions of the Constitution.
17. The 1980 Constitution did not make much headway on the problem of children.[1] Over the years, however, a number of infra-constitutional measures filled the gaps that existed and a large number of institutions were established or recognized to back up the policies being formulated.
18. In addition to these measures, mention must be made of the Juvenile Code and all the other texts which amended the Code of Criminal Procedure, the Civil Code and the Penal Code as a means of meeting the needs of families and minors. In 1976, prior to the enactment of the Juvenile Code, legislation was adopted that eliminated any distinction between legitimate and illegitimate children (Decree-Law No. 84/76 of 25 September) and introduced machinery to facilitate the declaration of paternity and maternity through affiliation proceedings (Decree-Law No. 57/75 of 6 December). The legislation on children which was drafted prior to the adoption of the Convention is based on principles which were embodied in the Convention a few years later.
19. It should be noted that the Convention does not merely validate these principles and give them greater dignity. The principles were amended extensively; children were no longer only persons to be protected and were now regarded as persons with rights.
20. With regard to institutions, particular attention is drawn to the work of
the Cape Verdean Juvenile Institute (ICM), which was
set up in 1982 and deals
with juvenile policy (Decree No. 90/82 of 25 September). Other important
organizations of civil society
began working in this field, such as Caritas Cape
Verde, the Cape Verde Red Cross and the Cape Verde Solidarity Institute (ICS).
These institutions have played a very important role - and some continue to do
so - in the implementation of proposals relating
to the protection of children
in the areas of education, culture and solidarity, particularly by helping State
and government health,
education, justice and social welfare
departments.
21. In view of the importance of child-related issues, Cape
Verde was present at the World Summit for Children in 1990 and, through
ICM, at
the OAU International Conference on Assistance to African Children, held in
Dakar from 25 to 27 November 1992. During these
conferences, various important
topics were discussed, including children in particularly difficult situations
and child victims of
armed conflict, the aims of child vaccination, access to
oral dehydration, iodine and vitamin A deficiencies and breastfeeding on
an
exclusive basis. Important recommendations to the participating countries were
drafted including those relating to the mobilization
of resources at the
national, regional and international levels, the formulation of plans of action
up to 2000 in areas such as health,
education, violence against children,
drinking water supplies and the role of women, the ratification of the African
Charter of the
Rights and Welfare of the Child and the formulation of national
children’s covenants. Meetings were also held with potential
donors who
were prepared to finance projects and programmes.
22. Cape
Verde’s participation in these conferences and other meetings on children
played a decisive role in energizing and
strengthening the institutional
structure for the protection of the rights of the child, i.e. ICM in
particular.
B. Measures to harmonize legislation and policy
with the provisions of the Convention
23. The ratification of
the Convention took place at the beginning of the country’s process of
democratization, which gave fresh
impetus to child protection policies. The
current Constitution, which was adopted in 1992 (Constitutional Act No. 1/IV/92
of 25 September), attaches importance to child-related problems and gives
them
dignity, while embodying important principles that were already contained in
other basic texts relating to family
law.[2] The necessary
institutional changes were also made and efforts focused on the implementation
of programmes in important child-related
sectors, such as education. The
ratification of the Convention was followed by the adoption of many measures
which are described
below.
1. Legislation
24. The adoption of the 1992 Constitution was
probably the most important legislative measure. International agreements such
as the International Covenants on Civil and Political
Rights and Economic,
Social and Cultural Rights and the African Charter on Human and Peoples’
Rights were approved or ratified,
as were other international instruments for
the protection of children. Cape Verde also acceded to the African Charter on
the Rights
and Welfare of the Child (National Assembly resolution No. 32/IV/93
of 19 July). In 1997, new legislation (Legislative Decree No.
12-C/97 of 30
June) amended the 1981 Family Code extensively and included various legal
principles abrogated by the old Code.
25. All these changes were
incorporated in the Civil Code, which now also includes all the fundamental
rights of the child which were
provided for in the Juvenile Code and are also
contained in the Convention on the Rights of the Child. Specific, but very
important
changes were made even in the Civil Code, thus contributing to the
strengthening of the legal status of children particularly with
regard to
adoption, alimony, property administration, the exercise of parental authority,
guardianship, inheritance, de facto union
and rules of conflict.
26. Criminal legislation (Legislative Decree No. 4/97 of 28 April) which
lists certain types of conduct that violate the rights of
the child and
characterizes them as criminal offences was also adopted in 1997. It will be
referred to in detail below.
27. Very important legislation such as the
Penal Code, the new Code of Criminal Procedure and a new act on the enforcement
of custodial
sentences, draft texts of which are being discussed by civil
society,[21] are to be
adopted very soon.
2. Cape Verdean Juvenile Institute
28. The objectives of ICM, which was established
in 1982, are to “promote and preserve the wellbeing of minors and protect
them
against situations which might endanger their full and harmonious
development” (art. 1). Following the ratification of the
Convention, ICM
began playing an active role in the promotion of the rights of Cape Verdean
children. In recognition of its work
ICM received the UNICEF “Children
and Their Rights” prize in 1996.
29. Despite the importance
attached to the topic of the rights of the child, ICM does have some problems,
both from the institutional
point of view and from the point of view of human,
material and financial resources. The greatest obstacles which urgently need
to
be overcome are its inadequate status, its inability to employ the officials it
trains and the country’s economic problems.
30. ICM’s area of
activity has expanded and now consists of preventive action and assistance
activities.
Prevention
31. ICM was established, inter alia, to
prepare field studies and reports on problems which may particularly affect
children, especially child workers, street children
and child prostitutes. From
what is, of course, a different point of view, ICM has already carried out a
study of the traditional
system of foster care for
orphans.[22] The activities
carried out by ICM include the dissemination, in the press, of information on
the Convention and legislation on the
rights of the child, the promotion of
discussions on the question of children and adolescents and the publication of a
comic strip
on the Convention for children and young people. ICM still intends
to prepare and hold the Children’s Parliament with 900
children in order
to promote basic aspects of the Convention. In addition to these activities,
awareness-raising campaigns have
been launched to promote specific issues, such
as the social integration of disabled children, the right of children to
recognition
by their parents and action to combat violence against
children.
Assistance
32. In order to carry out its assistance
activities, ICM has a youth centre, four social centres and nine nursery schools
and it supervises
seven other schools. Through these facilities and in
cooperation with other bodies, ICM provides social, educational and
psychological
assistance for needy children and children in particularly
difficult situations; in this context, it implemented eight programmes
in 1996
involving over 3,500 children of both sexes. The programme which involved the
largest number of children was entitled “assistance
in court”,
followed by the programmes on the development of children’s communities
(1,193) and the emergence of children
(324).[23] Social welfare
and social protection are two components of ICM’s assistance activities
which depend on coordination with other
bodies and whose constraints must be
analysed so that improvements may be made. ICM took part in assistance for
disabled children
through the Ministry of Health community rehabilitation
programme and contributed to the formulation of the integrated special education
programme being implemented by the Ministry of Education, Science and
Culture.
3. Education
33. In the context of measures to modernize the
system of education and in view of the wording of the text defining the basic
principles
of the national education system, as adopted in late 1990 (Act
No. 103/III/90 of 29 December), changes were made in this sector,
which takes account of practically all Cape Verdean children. The
modernizing approach of the educational sector is coordinated
with that of the
protection of human rights.
34. Some elements which are worth singling
out are the implementation of the “Education for family life”
programme, the
formulation of the “Integrated special education”
programme and the institutionalization of School Games, which bring
together
children from teaching establishments throughout the country in the context of
games and exchanges.
35. It should be noted that the reorganization of
the educational system, which must cover all levels of instruction, is severely
restricted. The most important restriction is financial, since it determines
the use of physical space and greatly limits the distribution
of teaching
materials and the adaptation and pedagogical support of teachers as a result of
the consequences of the problematic socioeconomic
situation.
4. Youth
36. As far as young people are concerned,
community activities are being encouraged and the Office of the Secretary of
State for Youth
and Sports was established in 1990 to formulate, implement,
monitor, evaluate and follow up youth policy.
5. Health
37. The health policy is designed to give
priority to prevention and better healthcare access. Attention is drawn to
mother and child
protection activities, especially vaccinations.
6. General policy
38. The holding in July 1995 of the Meeting
on Social Policy for Children and Adolescents, which was attended by the
country’s
main authorities and which adopted a major national political
and social declaration, showed how much importance is attached to the
question
of children by political and governmental bodies and by civil society. It was,
however, not possible to give effect to
all the recommendations formulated by
the Meeting, particularly on the establishment of a coordinating committee for
the policy on
children and adolescents.
C. Mechanisms to coordinate and monitor the implementation of the Convention
39. Although a great deal of work on the
wellbeing of children has been done by various departments, it is still
necessary to improve
specific coordination and monitoring mechanisms with a view
to the proper implementation of the Convention. The Government is aware
of
these shortcomings and is making every effort to find more appropriate and
effective solutions. According to a press release
by the Prime Minister
(No. 23/94 of 13 June), the Government set up a committee to carry out
studies on the new legislation relating
to minors. The dissemination of the
principles and provisions of the Convention has always been part of ICM’s
work.
II. DEFINITION OF THE CHILD
40. The Convention defines the child as any
human being below the age of 18 years unless, under the law applicable to
the child, majority
is attained earlier (art. 1).
A. Majority
41. The Convention adopts the general approach
that the child attains the age of majority at 18 years, but also
recognizes that that
age may be lowered if the States parties to the Convention
so decide. In Cape Verde, the age of majority is set at 18 years,
according
to an a contrario interpretation of article 45 of the
Juvenile Code,[24] as
approved by DecreeLaw No. 89/82 of 25 September. The same
approach is taken in article 133 of the Civil Code. The legal
approach
is thus in keeping with the definition of the child contained in the
Convention.
42. According to Cape Verdean law, children in general
lack capacity to exercise rights (art. 5 of the Juvenile Code and
art. 134
of the Civil Code). This lack of capacity is replaced by parental
authority and, alternatively, by the delegation of parental authority
to a legal
institution or to a guardian for the management of assets (art. 137 of the
Civil Code). These amendments were recently
introduced in the Civil Code. The
lack of capacity of minors ends when they have reached the age of majority or
are fully emancipated
by marriage and are thus capable of taking care of
themselves and disposing of their assets (art. 137 of the Civil
Code).
B. Legal capacity of minors
43. Although minors generally lack capacity to
exercise rights, the law gives them capacity to perform acts commensurate with
their
intellectual, moral and social maturity. Children may thus personally and
freely perform legal acts which correspond to their age,
for which they enjoy
capacity and which involve only minor expenditures or the disposal of minor
assets (art. 135, para. 2 (a), of
the Civil
Code).
44. Minors may also practise any occupation or trade not
prohibited by law, provided that they have attained the age set by labour
legislation and perform all the necessary legal acts necessary to practise that
occupation or trade (art. 135, para. 2 (c) and (d),
of the Civil
Code).
45. Minors may also perform any acts involving the management and
disposal of assets they have acquired by means of their labour (industry,
military, arts, liberal profession), whether or not they live with their parents
(art. 135, para. 2 (b) of the Civil Code).
46. Legal acts performed by a
minor may be invalidated (art. 36, para. 1 (a), and art. 140 of the Civil Code)
by his legal representative
when the case is brought before the courts within
one year of the request for invalidation and prior to the minor’s
attainment
of majority or his emancipation by marriage. A legal act may also be
invalidated by the minor’s legal representative within
the abovementioned
time limit even if the minor has attained the age of majority or emancipation,
when he is under a disability or
disqualification (art. 136, para. 1 (a), and
art. 140 of the Civil Code).
47. A minor may voluntarily request the
invalidation of an act which he performed, provided that he institutes
proceedings within
one year of having attained majority or emancipation
(art. 1 (b) of the Civil Code). However, he may not apply to have the
act declared
invalid if, at the time the act was performed, he acted
fraudulently by passing himself off as having attained the age of majority
or
emancipation (art. 136, para. 3, of the Civil Code).
48. An application
for a declaration of the invalidity of an act performed by a minor may also be
filed by any heir within one year
of the minor’s death, but prior to the
date of the deceased minor’s attainment of majority or emancipation by
marriage.
Invalidity may be challenged either by the minor, after majority or
emancipation, or by his legal representative in the case of
an act he was
entitled to perform in his capacity as legal representative (art. 136, para. 2,
of the Civil Code).
49. Minors may institute legal proceedings only
through their representatives, except in the case of acts they may personally
and
freely perform (art. 10 of the Code of Civil Procedure). Criminal
proceedings must be instituted by the legal representative in
the event of loss
or injury to the minor (art. 12 of the Code of Criminal Procedure).
C. Legal counselling without parental consent
50. On the basis of the preceding section,
minors may seek legal counselling, if they are capable of doing so, from lawyers
or public
legal aid and counselling institutions. In matters outside the scope
of their capacity to act, a legal representative must act on
their behalf.
Minors may apply to the Public Prosecutor’s Office, which, by law must
defend their interests.
D. Medical counselling without parental consent
51. Since a minor has legal capacity for certain
acts which are commensurate with his intellectual maturity, making him undergo a
medical examination requires his consent, provided that it has been proved that
he is sufficiently mature to understand the implications
of the examination. In
such cases, the consent of the minor’s legal representative is not enough,
since the minor’s
consent is also necessary.
E. End of compulsory education
52. Children go to primary school at age six.
Primary school is universal and obligatory and the obligation ends when the
child has
reached the age of 16.
F. Employment
53. The minimum age for the conclusion of a
full-time or part-time employment contract is 14 years. Minors’
employment contracts
are governed by a specific regime, which will be analysed
below (paras. 185 and 186) (art. 5 of Decree-Law No. 62/87 of
30 June).
Hazardous work
54. Article 160 of the Employment Contract Act
provides that the Government determines which activities are prohibited to
minors in
order to protect them physically, morally and intellectually. Thus
far, no activity has been prohibited to minors, as this is an
area which is in
urgent need of regulation and which is also part of the Government’s
programme. As will be shown in section
VIII.B. below (paras. 185 and 186),
national legislation offers a number of solutions as a means of preventing
employment at too
early an age and in difficult conditions, thereby protecting
the physical and mental integrity of minors and guaranteeing their full
and
harmonious development.
G. Sexual consent
55. Sexual relations with a minor under age 16
are regarded as unlawful, since a minor is incapable of consenting to such acts.
Cape
Verdean law does not take account of the consent given by a minor under age
16. Accordingly, any man who has sexual relations with
a girl under age 16
commits rape. Relations with a boy under age 16 are also punishable by up to
one year’s imprisonment.
There are no statistics on the pregnancy rate of
minors under age 16. A UNICEF study carried out in 1994 simply showed an
under-18
pregnancy rate of 18 per cent.
H. Marriage
56. In general, minors may not marry. However,
the law allows them to do so in exceptional circumstances. The courts authorize
a
minor under age 16 to marry, based on a substantiated request by him or his
legal representative. The marriage of a minor under
age 18 is invalid.
I. Voluntary enlistment in the armed forces
57. In order to perform military service as a
volunteer, a minor must be at least 17 years old and have the authorization of
his parents
or his legal representative. Military service is compulsory for all
men aged between 18 and 35 years.
J. Giving testimony or making a statement in court
58. In criminal proceedings, minors under age 7
cannot be witnesses, but may be heard as declarants, provided that they have the
natural
ability to make a statement (art. 216 of the Code of Criminal
Procedure). In civil proceedings, minors under age 7 lack legal capacity
to
give testimony (art. 617 of the Code of Civil Procedure).
K. Criminal responsibility
59. Criminal responsibility on the grounds of
age begins at age 16.
L. Restriction or deprivation of liberty
60. Minors under age 16 who commit any act
characterized by law as a crime or an offence are subject to the following
measures of
protection, assistance and
education:
(a) Arrest;
(b) Handing over to the parents or
guardian;
(c) Requirement that they should do certain things or behave
in a particular way;
(d) Educational assistance;
(e) Placement
in an apprenticeship or a job in an official institution or social welfare
organization;
(f) Placement in an institution for the protection of
minors.
61. In practice, such measures have not always been
applied[2] and that is the
result of paralysis in the operation of the competent body, the Juvenile
Protection Committee, [26]the
lack of appropriate institutions for the implementation of measures such as
those referred to in subparagraphs (e) and (f) above;
the lack of institutional
conditions in the courts[2]
and in the police department to speed up procedures (the backlog of cases which
are regarded as more urgent by the law and which
take up practically all of the
judges’ and prosecutors’ time and energy; and the quantitative and
qualitative shortage
of human resources) and failure by parents or other legal
representatives of the child, society and competent organizations and bodies
to
report cases in which such measures are applicable.
62. Minors on trial
for the commission of an offence may not be sentenced to more than
eight years’ imprisonment (arts. 108
and 55/5 of the Penal
Code). Criminal law provides that minors with a criminal record may serve their
sentence in a youth prison
or in a rehabilitation institution, but, in practical
terms, they cannot do so because infrastructure of this kind is lacking. All
convicted minors thus serve their sentences in ordinary establishments, but they
are kept separate from other offenders, although
this is not always possible
because of the shortage of space in such establishments. Criminal law also
provides for the possibility
of granting conditional release to minors who have
been found guilty and sentenced to a term of imprisonment, provided that they
are at least 25 years old and have proven that they are qualified, even if
they have not served half of their prison term.
M. Consumption of alcohol
63. The prohibition on the consumption of
alcohol by minors was governed by Ministerial Decree No. 4544 of
3 April 1954. According
to this Decree, minors under age 16 who
were not accompanied by a parent, a guardian or other family member could enter
bars or places
where alcoholic beverages were sold only to run an errand or give
someone a message. This prohibition was, however, not respected.
In view of
the harm that alcohol can do to children, the National Assembly adopted an act
prohibiting the sale, offer, supply and
consumption of alcoholic beverages to
minors under age 18 (Act No. 27/V/97 of
23 June).
64. This act entered into force on
1 October 1997. Prior to its adoption, the Ministry of Justice and
Internal Administration waged
a major campaign to raise the awareness of civil
society. Two implementing decrees were published on the same date: Ministerial
Decree No. 54/97 of 9 September, which defines the types and
dimensions of signs which indicate the prohibition and which are displayed
by
the owners of establishments where alcoholic beverages are sold; and Regulatory
Decree No. 13/97 of 22 September, which determines
the conditions
for the admission to recreational and cultural entertainment facilities of
minors aged 16 and over and their stay
until midnight. As a result of the
entry into force of this legislation and strict checks by the authorities,
minors have stopped
frequenting establishments and entertainment facilities
where alcoholic beverages are served. The Government has instructed the
competent authorities to implement permanent monitoring measures to achieve the
objectives set. It must be stressed that young people,
civil society, parents
and education officials, have all obeyed the law.
65. The Government
included an amount in the 1998 State budget which is intended to finance
activities to raise awareness of and prevent
minors under age 18 from
consuming alcoholic beverages and going to places where such beverages are
served.
III. GENERAL PRINCIPLES
A. Non-discrimination (art. 2)
66. Since Cape
Verde’s accession to the status of an independent and sovereign State, the
principle of the equality of all citizens
before the law has been considered an
inviolable right. All laws which, directly or indirectly, created situations of
inequality,
especially on the basis of sex or of birth in and out of wedlock,
have been repealed.
67. Taking the same approach as the previous
Constitution, the current Constitution sets forth the principle of equality
(art. 22) in the section relating to the rights and duties of citizens, stating
that “Every
citizen shall be equal in social dignity and shall be equal
before the law. No one shall have privilege or benefit or be injured,
deprived
of any right or exempted from any duty on account of race, sex, ascendancy,
language, origin, religion, social and economic
conditions or political or
ideological convictions”. To ensure that this principle is respected, the
Constitution requires the State “to undertake to eliminate restrictions
which are conducive to discrimination against women and to ensure
the protection
of their rights and those of children”
(art. 85, para. 2).
68. The Constitution also stipulates
that the family and society guarantee the protection of the child against any
form of discrimination or oppression
(art. 87), and prohibits discrimination
against children born out of wedlock and the use of any discriminatory
designation concerning
affiliation (art. 44). No discrimination is practised in
public or private institutions. However, there is a need for studies at
the
family level in order to verify whether this principle is observed by parents
when dealing with children, especially girls.
There are in fact indications
that, in some families, particularly those in rural areas which are experiencing
economic difficulties,
girls are taken out of school and assigned household
tasks such as cooking, fetching water and pasturing animals. A general, widely
held view is that the performance of household tasks is a necessary skill for
girls to acquire and that such tasks are womens’
work.
B. Best interests of the child (art. 3)
69. The principle of the best interests of the
child, which will be analysed later, was included in national legislation even
before
the Convention was ratified, but it was given greater force in the Cape
Verdean legal system with the ratification of the Convention
in 1991, the
Constitution in 1992 and the African Charter on the Rights and Welfare of the
Child in 1993. The rules and principles contained in the Convention
and the
Charter take precedence over all internal legislative and statutory instruments
(art. 114, para. 4 of the Constitution). Consequently, any ordinary legal
provision which is contrary to the rules and principles of the above-mentioned
instruments is
illegal and should not be applied by the courts. In addition,
all legislation concerning children should be interpreted in the light
of the
principles contained in the Charter and the Convention.
70. As stated
above, although the principle of the best interests of the child was not
formally and explicitly introduced into Cape
Verdean legislation until the entry
into force of the Constitution, the Conventions, and the Charter, it had already
been referred to in certain areas relating to children. In 1981, the Family
Code
stipulated that parental authority should be exercised in the best
interests of the children (art. 60, para. 2), that their assets
must be disposed
of only in their best interests and when manifestly necessary or desirable
(art. 61, para. 2) and that a divorce
could not be granted unless
“the best interests of the child were fully protected” (art.
32, para. 2).
71. Adoption, which is possible only for minors,
is permitted only in the interests of the adoptee and of children in general.
Since
1991, the year when the Convention entered into force, all decisions
relating to children adopted by public or private institutions
have had to give
priority to the best interests of the child.
72. Despite the lack of
statistics in this area, it may be stated that there is little reference to the
best interests of the child
in court decisions; however, even when not cited
explicitly, the best interests of the child underlie or are implicit in such
decisions.
C. Right to life, survival and development (art. 6)
73. Life and physical and moral integrity are
inviolable in Cape Verde (art. 21, para. 1, of the Constitution).
The right to health is guaranteed to all citizens regardless of socioeconomic
situation (art. 27 of the Constitution and art. 3 of the Basic Health Act
(Act No. 62/111/89 of 30 December 1989)). In addition, the
section of the Juvenile Code relating
to special rights for children provides
for the right to healthy growth and development. This right is also provided
for in articles
119, paragraph 1 (c), and 122, of the
Civil Code.
74. Promotive and preventive health care is free of
charge (art. 34 of the Constitution). Vaccination coverage for children
under one year of age is currently 64.2 per cent, according to 1995
statistics. Care is also
free for pregnant women, children aged two and younger
and vulnerable people suffering from
disease.[28]
75. Despite
the country’s economic difficulties, many steps have been taken to improve
the quality and efficiency of health
services. One indicator reflecting these
efforts is the progressive reduction of the infant mortality rate. More
detailed information
is found in chapter VI on basic health and
welfare.
D. Respect for the views of the child
76. As the Convention and the Charter take
precedence over internal legislation, the principle that children’s views
should
be sought and that they have the natural capacity to be heard in any
legal or administrative proceedings affecting them must be respected.
Consequently, although this right is absent from the procedural rules, it will
have to be included in any regulations concerning
parental authority when a
child shows himself to be capable of communicating.
77. With regard to
adoption, the law requires the consent of the adoptee when he or she is over 12
years of age and also sets forth
the obligation to hear the adopter’s
children when they are over 12 years of age, except when it would be difficult
to do so
(art. 82, para. 2, Decree No. 17/83 of 2 April). If the
adoptee is under the care of an educational or welfare institution, the
institution must be heard by the court (art. 1931, No. 2 of the
Civil Code).
E. Copyright
78. Children are entitled to benefit from
patrimonial and personal rights deriving from their intellectual creations and
are consequently
the sole holders thereof (Act No. 101/V/90
of 29 December). When children are incapable of exercising
patrimonial rights, they are
exercised by their legal representatives and
personal rights are exercised by children as soon as they have the capacity to
understand
them.
IV. CIVIL RIGHTS AND FREEDOMS
A. Name and nationality
1. Name
79. The
Civil Code establishes the right of everyone to use his or her full or
abbreviated name and to oppose anyone who makes illegal
use of that name for
identification or any other purpose (art. 70, para. 1). The right to a name was
embodied in the Juvenile Code
(art. 10) as a special right which a child
can use freely and whose illegal use by other persons he can oppose. This
approach is
reflected in the amendments to articles 119,
paragraph 1 (a), and 120.
80. According to the Civil Register
Code[29] a child must be
recognized within 30 days following his birth. This legal requirement is not
observed by parents and, according
to recent studies, many children are not
recognized. A study entitled “Health of children under five in
Cape Verde”
showed that 80 per cent of children under five years of
age have not been recognized and that this percentage is higher among modest
families. The reasons mentioned were lack of money, absence of one of the
parents and negligence.
81. To deal with this situation, the Government,
through the competent service of the Ministry of Justice and Internal
Administration
and in cooperation with ICM, conducted a
public awareness-raising campaign aimed at the recognition of children.
Last year, for
example, parents who intended to recognize their children
were exempted from the payment of taxes and fines (DecreeLaw 10/97 of
10
February). The results were positive: at the end of 1998,
20,595 children had been recognized. As for the child’s right
under
the Convention to know his or her parents, the birth certificate must bear the
name of the father and the mother.
82. When the name of the father or the
mother is not mentioned, the Civil Register official is under an obligation to
inquire about
the identity of the parent not present. If there has been no
official investigation and if paternity or maternity has not been established,
when the children acquire legal capacity, their legal representative or
recognized parent can institute paternity or maternity proceedings
(art. 54 of
the Family Code). It is presumed that the father of a child born in wedlock is
its mother’s husband (art. 50),
unless this presumption is refuted by the
mother (art. 50).
83. With the recent changes to the Family Code and
since the delegation of competence for official investigations to the Civil
Register
services, which has hitherto been the case, has proved impractical
owing to the shortage of human resources and means of exercising
this authority
effectively, the official registering the birth is responsible for extracting a
copy of the portion of the birth certificate
recognizing the child and
submitting it to the Public Prosecutor’s Office so that formal paternity
or maternity proceedings
may be instituted (arts. 1792 and 1793 of the
Civil Code). The child’s name generally consists of his or her first
name and
the parents’ surnames. However, the law also permits the use of
one of the parent’s surnames. The child’s surname
may be changed
only in the event of subsequent recognition, adoption or marriage.
2. Nationality
84. In accordance with the Nationality Act (Act
No. 80/III/90 of 29 June), the following are considered to be Cape Verdean
citizens:
(a) Persons born in Cape Verde to a father or a mother of Cape
Verdean nationality;
(b) Persons born abroad to a father or a mother of
Cape Verdean nationality in service with the State of Cape
Verde;
(c) Persons born in Cape Verde who have no other
nationality;
(d) Persons born in Cape Verde to a father or a mother who
is stateless or of unknown nationality.
The child of a father or a mother
who has acquired Cape Verdean nationality may acquire Cape Verdean
nationality. Cape Verdean nationality
may be also acquired by a foreign child
or a child of unknown nationality adopted by a Cape Verdean. Stateless
children adopted
by a Cape Verdean automatically acquire Cape Verdean
nationality.
B. Preservation of identity (art. 8)
85. The components of Cape Verdean identity are
the name and nationality, which may not be arbitrarily changed. It is possible
to
change a child’s name only in cases of recognition or adoption. Apart
from the above-mentioned cases, there can be no changes
to the child’s
name unless the best interests of the child so require. A child’s
nationality may be changed at the behest
of his or her legal representatives.
However, a child who has lost Cape Verdean nationality through a declaration
made during his
or her period of legal incapacity may reacquire it two years
after the end of the period of incapacity.
C. Freedom of expression and information (arts. 13 and 17)
86. The Constitution sets forth freedom of
expression and information as a fundamental freedom (art. 47), stating that all
persons, including children,
have freedom to express and to disseminate their
ideas through words, images or any other means and that all persons have freedom
to inform and be informed and to seek and disseminate information and ideas in
any form, without limitations, discrimination or impediment.
The right to be
informed is interpreted as being the right to be genuinely informed, either by
the media or by government bodies.
These freedoms cannot be subject to
censorship and are limited only by the right of every citizen to honour,
reputation, privacy
and family life and by the need to protect young people and
children.
87. The Constitution (art. 46) guarantees freedom of the press
and the State ensures the freedom and independence of the media in relation to
political
and economic power, the nonsubjection of the media to censorship, the
independence of journalists vis-à-vis the Government,
the administration
and other public bodies, and the existence and operation of a public radio and
television service.
88. The press and the media are governed by a set of
ordinary laws that replicate the principles embodied in the Constitution of the
Republic. The Advertising Code (art. 19) contains specific rules governing
advertising aimed at children, which must take
their psychological vulnerability
into account and children may not appear in commercials where there is a
connection between them
and the product being advertised.
89. Advertising
for alcoholic beverages and tobacco is prohibited (Advertising Code,
art. 21). Any advertising which is racially,
sexually, politically or
religiously discriminatory or offensive or is contrary to public morals and
decency is also prohibited (art.
8).
D. Freedom of thought, conscience and religion (art. 14)
90. The Constitution (art. 27) guarantees
freedom of thought, conscience and religion. All citizens have the right to
practise a religion or not, to
have a religious conviction of their own choice,
freely to participate in the act of worship and freely to express their faith
and
to disseminate their doctrine or conviction, provided that they respect the
rights and wellbeing of others. The State is secular
and non-denominational.
Churches and other denominations and religious communities are separate from the
State and may freely disseminate
their faith and expand their community.
Religious instruction is permitted. It is for the child’s representative
to choose
the child’s religious instruction until such time as the child
has attained the necessary intellectual maturity (art. 1825
of the Civil Code).
The right to conscientious objection is also guaranteed by the Constitution.
E. Freedom of association and of peaceful assembly (art. 15)
91. Freedom of association and freedom of
assembly are also fundamental freedoms explicitly provided for in the
Constitution (arts. 51 and 52). Although the legal recognition of associations
is the Government’s prerogative, they may be established
without any
authorization. However, the framework-law governing the establishment of
associations (Act No. 28/II/87 of 24 October)
stipulates that
associations are composed of adults. Public meetings and demonstrations may be
held in any place, including public
places, with no application for
authorization. There are no restrictions on children’s freedom of
assembly and freedom to
demonstrate peacefully.
F. Protection of privacy
92. The right of everyone to protection of
privacy and family life is set forth in the Constitution (art. 38), previous to
which it was protected by the1966 Civil Code, which establishes a duty to
protect the privacy of others (art.
78). The extent of this protection is
defined according to a person’s situation, which necessarily implies
that it is less broad for younger children and in cases
where it is the
child’s legal representative who is responsible for the
intervention.
93. Fraudulently opening a letter or a paper belonging to
another person is a crime punishable by imprisonment. However, such an
act is
not punishable if committed by parents or guardians of children who are still
under their authority.
G. The right to honour and reputation
94. Children are entitled to protection of their
honour and to consideration for their good name and reputation. The criminal
legislation
protects the honour of everyone, including children, by punishing
acts undermining such rights (art. 407 of the Code of Criminal
Procedure).
H. Prohibition of torture and other cruel, inhuman or
degrading treatment or punishment (art. 37
(a))
95. Torture is punishable in Cape Verde by up to 12 years’
imprisonment (Act No. 20/IV/91 of 30 June). The Constitution
considers evidence obtained through torture, force or violation of physical and
moral integrity to be null and void (art. 33, para.
6, of the
Constitution).
96. The age of the person tortured, to the extent that it
constitutes a circumstance indicating cruelty, inhumanity, violence or
perversity
on the part of the torturer, may aggravate the responsibility of the
torturer. In 1992, Cape Verde ratified the Convention against
Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (Act No. 44/IV/92 of 9
April).
97. The Juvenile Code stated that children cannot be subjected to
physical ill-treatment, lack of care or affection or mental cruelty
endangering
their physical, intellectual and emotional development and that all such acts
are punishable. Amendments to the same
effect were recently introduced into the
Civil Code, specifically in articles 119, paragraph 1 (i) and (l), 128 and
130.
V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE
A. Parental authority (art. 5)
98. The Constitution
recognizes the authority of parents, who are irreplaceable to their children,
and guarantees them protection by the State and society
in fulfilling their
obligations (arts. 842 and 872). The 1981 Family Code made the parents
jointly responsible for rearing and maintaining
their minor children and gave
each one the same duties and the same rights. This principle has been
replicated in the new Civil
Code (arts. 1817 et seq.), with a few
justifiable limitations. Parental authority must be exercised in the best
interests of the child.
99. If the parents do not live together and the
exercise of parental authority proves difficult, the court determines which of
the
parents has custody of a minor child and which rights and duties are held by
each parent. Parental authority must not be interfered
with unless it
constitutes
a serious danger to the child’s physical, moral and psychological
security and a judicial decision has been handed down to that
effect. In cases
of manifest failure to exercise parental authority, the court may divest one or
both of the parents of authority
over the children.
100. Parental
authority ceases with a child’s majority or emancipation, the death of the
parents or the child, or adoption (art.
1848 of the Civil Code). Parental
authority is shared with various social welfare agencies, especially those
relating to child welfare
and education, under conditions clearly defined by
law.
B. Parental responsibilities (art. 18, paras. 1 and 2)
101. Parents must provide assistance to children
born in or out of wedlock, especially with regard to maintenance, care and
education
(art. 86 of the Constitution). They are responsible
for:
(a) Caring for and supervising their children and ensuring their
maintenance, health, well-being and normal development;
(b) Ensuring and
supervising their intellectual and cultural education and training by instilling
in them a love for study and work;
(c) Providing them with proper moral
and social instruction so that they may respect others, themselves and the
community;
(d) Conscientiously managing their
assets;
(e) Representing them, even from birth, in all legal acts
requiring the parents’ presence, except as prohibited by
law;
(f) Authorizing them to perform acts which depend by law, on their
consent;
(g) Deciding on their domicile for as long as they remain under
the parents’ control.
102. Abandonment of a child or neglect of his
or her education, maintenance or care, or failure to fulfil or inadequate
fulfilment
of any other duty or obligation of parents may constitute a
punishable act (art. 1826 of the Civil Code).
103. To enable parents
to discharge their duties as effectively as possible, a few support measures are
available to them. These
include a family allowance for workers with dependent
children under 14 years of age and a breastfeeding subsidy for women for the
first six months following the birth of a child to a worker registered with the
social security system. The family allowance may
be extended to children over
14 and under 18 years of age, if they are successfully attending secondary
school.
C. Separation from parents (art. 9)
104. When parents separate or divorce, they must
come to an agreement concerning the custody of their minor children and the
responsibilities
each one of them will have. In the event of divorce by mutual
consent, such an agreement is absolutely
necessary.[30] If the
parents are unable to reach an agreement, the court will regulate the exercise
of parental authority. The court’s
decision will be taken in accordance
with the best interests of the child (art. 90/I of Decree No. 17/83 of 2 April).
As stated earlier,
parental authority will be suspended only in cases where the
child’s physical and moral integrity is endangered.
105. In such
cases, the court appoints a guardian (arts. 1870 et seq. of the Civil
Code), who will be responsible for the child and defend his or her interests.
The suspension of parental authority
over the children does not exempt the
parents from their maintenance obligation (art. 1849, No. 2, of the Civil
Code).
106. Family issues are not limited to legal aspects. They are
particularly complex as the family environment has been seriously affected
by
emigration and also because family ties have been weakened owing to far-reaching
social changes.
107. A study conducted by ICM and the National Programme
of Action to Combat AIDS (PNLCS) highlights the fundamental aspects of this
problem with regard not only to AIDS orphans, but to children in
general.[3]
D. Family reunification (art. 10)
108. The Constitution provides for the right of
every citizen freely to leave and to return to the national territory and even
to emigrate (art. 50/I).
This right may be restricted only by a judicial
decision. Cape Verdean children may leave the country freely, with
permission from
their parents or the persons who have parental authority over
them.
109. Foreigners, including children, who wish to enter the national
territory in order to join their parents or another family member
residing there
are required to have a residence visa. One of the factors looked on
favourably in evaluating a residence application
is the existence of family ties
to nationals or foreigners residing in the territory (art. 47 of DecreeLaw
No. 6/97).
110. Cape Verdean law prohibits the issue of transit,
tourism or residence visas to persons who have not attained majority under their
national legislation, without permission from the father, mother or guardian
(art. 32 of the DecreeLaw of 5 May).
111. The law empowers the
authorities to refuse entry to foreigners under 16 years of age when they
are not accompanied by the person
holding parental authority, when written
permission from that person is not presented or when there is no one in the
national territory
to take charge of the child (art. 32 of the DecreeLaw of
5 May).
E. Recovery of maintenance for the child (art. 27, para. 4)
112. The Constitution establishes the duty of
parents to assist their children, especially with regard to maintenance, care
and education.
113. The right to maintenance, which includes everything
that is indispensable for the child’s financial support, health, dwelling,
clothing, instruction and
education,[3] is
non-seizable, imprescriptible, nontransferable and may not be used for
compensation,[33] even when
the amounts in question have already been fixed. Maintenance for the child may
be required from the spouse or exspouse,
descendants, ascendants, brothers,
stepfathers or stepmothers and uncles (art. 4 of the Juvenile
Code).
114. When the person required to pay maintenance does not do so
voluntarily within 10 days following the payment of his or her salary,
the
court may order the amount in question to be deducted from the salary by the
entity for which the debtor works. If failure to
fulfil the maintenance
obligation exceeds 60 days and it has not been possible to obtain payment
in the abovementioned form, the
maintenance obligation will be the subject of a
judicial order and will entail criminal responsibility.
115. The
following also constitute crimes:
(a) Concealment or deliberate disposal
of assets or income in order to avoid the maintenance
obligation;
(b) Repeated failure to provide economic and moral
assistance, on the part of parents, guardians or other persons responsible for
a
child’s care;
(c) Desertion of the matrimonial home for more than
six months and failure to respect the obligations of parental
authority.
116. In order to facilitate the recovery of maintenance,
Cape Verde acceded to the multilateral Convention on the Recovery Abroad
of
Maintenance.[34] An
agreement has also been signed with Portugal, one of the countries which
receives the most immigrants of Cape Verdean origin,
making judicial
decisions concerning maintenance immediately applicable in both
signatory States.[35]
F. Children deprived of a family environment (art. 20)
117. Cape Verdean legislation stipulates that a
minor is placed under Court
supervision[3] when the
parents:
(a) Are deceased;
(b) Have been divested of parental
authority over the child;
(c) Have been prevented from exercising
parental authority or have not actually exercised it for six months and have not
delegated
it to another person;
(d) Are unknown or have
disappeared.
A guardian is appointed by the court, preferably from among
the child’s grandparents or brothers and sisters. If the child
is over 12
years old, the court is obliged to hear his or her views concerning the guardian
to be appointed. Guardianship is exercised
in the best interests of the child
and of society.
118. Another form of protection of the child is adoption,
which will be analysed in detail in the following section.
119. The study
on the traditional system of foster care for orphans mentioned earlier
(see para. 107), describes the operation and
principles of the system
and also highlights the difficulties currently affecting it. The Government is
analysing the situation,
in particular the problem of placing orphans with large
families in such a way as to preserve the child’s
identity.
120. The Government is aware of the need to implement the
entire set of measures which are recommended by this study and which are
to be
implemented by governmental and nongovernmental bodies with a view to
strengthening the foster care
system.[37] Among these
measures, mention should be made of care institutions for children, which are
often the solution of last resort after
the placement of children in a
family-type environment or with foster families has failed. Another measure to
be considered is financial
support for foster families which take in orphans.
Most of these recommendations were endorsed at a meeting between governmental
and non-governmental bodies held in April 1996 to discuss the results of the
study.[38]
G. Adoption (art. 21)
121. Adoption is permitted as a means of
defending the interests of the adoptee and the interests of children in
general[39] and becomes
effective only through a judicial decision. The court may order an
adoption only if it is convinced that adoption entails
advantages for the
adoptee, is based on legitimate and reasonable motivations and involves no
unfair sacrifices for the adopter’s
children; the adopter must therefore
care for the adoptee for a sufficient period of time to establish a tie that
will lead to a
relationship similar to biological affiliation
(art. 1923 of the Civil Code). Adoption provides the adoptee with a
tie to his adoptive
family which is equal to the tie between biological parents
and children. The adoptee loses his former surnames and his new surname
consists of the surnames of his adoptive father and mother or one of the two
surnames.
122. Under Cape Verdean legislation, when the adoptee’s
parents are living and have parental authority over the child, their
express
consent is required for the adoption. Express consent is also required in the
following cases (art. 1928 of the Civil Code):
(a) From the child when
he or she is more than 12 years old;
(b) From a spouse who is not
legally separated;
(c) From a common law spouse;
(d) From an
ascendant or collaterally related adult, up to the third
degree;
(e) From the person responsible for the adoptee, when the
parents are not present.
123. The court may, however, dispense with the
consent of the persons who might be entitled to give it:
(a) If they are
deprived of their mental faculties;
(b) If there are, or prove to be,
difficulties in hearing them;
(c) If they behave in an inappropriate
manner with the adoptee, whether they are the parents or one of the persons
referred to in
subparagraphs (d) and (e) above.
If the adopters have
children of more than 12 years of age, the court must seek the children’s
views concerning the adoption.
H. Periodic review of placement (art. 25)
124. Interim measures of protection for children
may be reviewed at any time, in the child’s interest (art. 25 of Decree
No.
17/83 of 2 April). Furthermore, several provisions of the Civil Code
and other instruments governing matters relating to children’s
legal
status, establish the principle that any protective measure or provision ordered
by the competent bodies or authorities may
be reviewed at any time.
I. Illicit transfer and non-return (art. 11)
125. There have been no reports in Cape Verde of
children illicitly transferred or held abroad. The violent or fraudulent
removal
of a minor under seven years of age from his home or place of residence,
with the express complicity of persons responsible for his
care, constitutes a
crime punishable by two to eight years’ imprisonment (art. 342 of the
Penal Code). Coercion of a minor
to leave the home of his parents or guardians
also constitutes a crime punishable by two years’ imprisonment (art. 343
of the
Penal Code). Concealment, exchange or incitement to immoral behaviour of
children are punishable by two to eight years’ imprisonment
(art. 342 of the Penal Code). In all the above-mentioned
cases, the prison term is increased by 16 to 20 years if the official does
not indicate the child’s place of residence.
J. Abuse and neglect (art. 19)
126. The Juvenile Code stipulates that children
may not be subjected to illtreatment or lack of care, lack of affection or
mental
cruelty endangering their physical, intellectual or emotional
development. The Civil Code (arts. 119, para. 1 (1), and 128) takes
the same
approach. The illtreatment of a minor by persons responsible for his
guidance and education is punishable by one to five
years’ imprisonment
(Decree-Law No. 4/97 of 28 April). An offence causing bodily harm
committed against a minor is punished
in accordance with the general terms of
the Penal Code, with the same penalty as if the act had been committed against
persons having
attained the age of majority. Such a crime committed by a person
having authority over the child is considered to be an aggravating
circumstance.
127. ICM recently established a telephone service,
“SOS Children”, to report cases of illtreatment, abuse and neglect
of children; the service guarantees confidentiality and anonymity for callers.
The use of corporal punishment or degrading
treatment[40] is prohibited
in schools and public or private institutions and this principle is generally
observed in practice.
VI. BASIC HEALTH AND WELFARE
128. Despite the great economic difficulties
facing the country, Cape Verde’s health system covers the whole of the
national
territory and devotes a good deal of attention to children,
particularly in terms of preventive measures. In 1994, there was a doctor
for
every 4,270 persons, a nurse for every 1,642 persons and a bed for every 633
persons. Statistical data for 1995 give figures
of a doctor for every
3,017 persons and a nurse for every 1,724
persons.[41]
A. Survival and development (art. 6, para. 2)
129. Despite some major constraints,
educational, health and legislative measures have been taken to ensure
children’s survival
and development. A large majority of Cape Verdean
children live in social, economic and environmental conditions that are bad for
their health. Their homes are in fairly poor condition and are overcrowded
(housing seven people on average) and this can help spread
infectious diseases,
especially respiratory diseases. Conditions are more precarious in rural
areas.
130. Sanitary conditions are in a critical state. Almost two
thirds of homes in urban areas and over 90 per cent of those in rural
areas have
no sanitary system or latrines. The biggest problem for the population is
probably drinking-water supply: only 30 per
cent of homes with young children
in urban areas and 3 per cent of those in rural areas have any water system and,
even when they
do have a supply, they are often short of water and families have
to fetch water from wells and water tankers. The unreliability
of the
sanitation system and the shortage of water lead to persistent malnutrition and
diarrhoea in children. Some 16.2 per cent
of Cape Verdean children suffer from
a long-term nutritional deficit (small size for their age), 4.8 per cent from
some form of serious
malnutrition and 11.4 per cent from moderate malnutrition.
The problem of long-term malnutrition is more common in rural areas than
in
urban centres, where one child in five is affected.
131. Child mortality,
which is an important indicator, also reflects children’s living
conditions. Between 1992 and 1995, the
trend was downwards; in 1995, it stood
at 53.7 per thousand and, last year, at 45.1 per
thousand.[42] There are
numerous obstacles to improving access to care and improving the quality and
efficiency of health services. Nevertheless,
as the indicators show, the health
services’ contribution to the survival and development of children is
uneven.
132. In 1995, a minimum social welfare system was introduced
(Decree-Law No. 2/95 of 23 January). It guarantees free care, food
aid
and a monthly allowance for people considered as vulnerable (Ministerial
Orders No. 26/95 of 20 May and No. 29/95 of 12 June).
B. Disabled children (art. 23)
133. It is estimated that 5 to 7 per thousand of
the population have a disability. Under article 72 of the Cape Verdean
Constitution, they have the right to the special protection of their
family
and society, which will enable them to receive appropriate education and
treatment and, where necessary, social rehabilitation.
In the areas of
education and health, community rehabilitation programmes and the development of
a special integrated educational
programme reflect this
commitment.
134. Article 37 of the Constitution deals with the rights of
disabled persons in the area of education and establishes the goals of special
education. The same provision
covers the organization of special education and
recognizes the need to support families. Financial support is guaranteed by
social
welfare services, which pay families a monthly allowance of
C.V. Esc 500 for each disabled person. For basically financial
reasons,
this support has been reduced at a time when policies for the disabled
have not yet been fully developed.
135. Disabled minors over 14 years old
may be entitled to family allowances if they are unable to perform paid
work.
C. Health and health services (art. 24)
136. Children’s right to health and to
access to the relevant services is recognized in the Constitution and the
framework law on health and is put into effect by government policies and
through the work of the health services.
137. Various measures have been
taken in the following areas:
(a) Child vaccination, which has fairly
good coverage (over 80 per cent covered by individual
vaccinations);
(b) Monitoring of growth: this is carried out
effectively, with almost 95 per cent of children being issued with a growth
certificate
(81 per cent of children can produce their growth certificate).
There is cause for some satisfaction with the treatment of diarrhoea,
although
it is still problematic, as in many other countries. Eighty per cent of
children received oral rehydration therapy, and
in almost three quarters of
cases of diarrhoea, the use of liquids was increased. As for mothers, measures
have been taken in the
field of antenatal care, which now includes anti-tetanus
vaccinations, even in rural areas, and there has been some progress in the
use
of contraceptive methods;
(c) Programmes to combat the main causes of
child mortality: efforts to combat infectious and parasitic diseases and
respiratory
infections have played a leading role in reducing mortality.
Mortality caused by infectious and parasitic diseases among children
under five
fell from 5.4 per thousand in 1992 to 3.9 per thousand in 1995; in the same age
group, mortality caused by respiratory
infections fell from 1.6 per thousand in
1992 to 1.3 per thousand in
1995;[4]
(d) Health
education: the support of the National Centre for Health Development is one of
the most important contributions to the
promotion of children’s health.
However, it should be stressed that, until the serious problems of water supply
and environmental
sanitation (referred to above) have been solved, the situation
will remain problematic;
(e) Literacy education for women (26,189 in
almost 17 years), which has helped improve health conditions insofar as mothers
are more
likely to understand the health care recommended for their
children.
138. A 1994 study showed that around 42 per cent of children
under age five had consulted a health worker over a period of three months,
a
figure that rises to 55.7 per cent for children under one year of
age.[4] The branches of the
mother and childcare/family planning programme are undoubtedly responsible for
the best nationwide medical coverage
for the under-fives. It will be recalled
that this is the programme that was awarded the UNICEF “Children and their
rights”
prize in 1996. The study showed that 94.5 per cent of children
had a certificate from the programme.
139. In the context of maternal and
child welfare (MCW) services and action by other organizations, the problem of
malnutrition is
the fundamental concern. Serious malnutrition is estimated at
4.8 per cent and moderate malnutrition at 11.4 per cent for children
under
five;[45] with that in mind,
attempts are being made to rectify the situation, which is jeopardizing
children’s health and development.
Children’s weight is checked and
guidance is permanently available to mothers.
140. School-age children
benefit from a school meals programme that guarantees them a hot meal and
promotes good eating habits. In
1996, 87,423 primary-school pupils benefited
from the
programme.[46]
141. As
malnourished children often suffer from diarrhoea, quick and effective oral
rehydration treatment has been made available.
One very positive development is
that over half of the children under the age of five who had diarrhoea in 1994
took
Oralite.[47]
142. Nonetheless,
one of the decisive factors in children’s health is the lack of drinking
water. Despite all efforts, only
52 per cent of the population had access to
drinking water in 1992,[48]
although this percentage rose to 72 per cent in
1996.[49]
143. Information
on children’s health, hygiene and food issues is disseminated, with a few
exceptions, through public information
services and specific campaigns, with the
support of the National Centre for Health Development. Information for adults
on issues
such as prevention in general and family planning is provided by the
Alfa newspaper (8,000 copies in 1996) and the “Education for family
life” programme. These educational efforts help to counter
the negative
influence of traditional practices, although the latter do not seem to carry as
much weight in Cape Verde as they do
in other African
countries.
144. Given the great difficulties facing the country, a large
number of the children’s health services benefit from international
support, including institutional support, training, research and help in kind.
Among the organizations from the United Nations system
involved are the
World Health Organization (WHO), the World Food Programme (WFP) and UNICEF.
D. Social security and childcare services and facilities
(arts. 26 and 18, para.
3)
145. All employees, whether they are civil servants or State
officials or working for someone else, are entitled to a family allowance.
The
allowance is paid for each child under age 14, up to a maximum of four children
per family. Employees registered with the social
security system are also
entitled to an allowance if they are responsible for children under the age of
14 or disabled persons.
Social security also pays a “nursing
allowance” for every infant and the insured person’s minor children
are entitled
to medical assistance and medicines.
146. There are difficulties
in respecting the principle that the State is responsible for ensuring that
children of working parents
have the right to benefit from child-care services
and facilities for which they are eligible. There are severe limitations with
regard to institutions providing care for children under age six; there are
insufficient crèches and kindergartens. The situation
for children over
age six is different, as primary-school coverage is practically
universal.
E. Standard of living (art. 27, paras. 13)
147. The principles established in article 27,
paragraphs 1 to 3, of the Convention are enshrined in the Constitution, the
Civil Code, legislation on minors and the other international conventions signed
by Cape Verde.[5] The family
is considered as the fundamental unit and basis of the whole of society and the
State has to protect it and establish
the conditions for it to exercise its
social function and for each of its members to find personal fulfilment
(art. 84 of the Constitution). The Constitution also
establishes that children may not be separated from their parents except in
cases where it is necessary in order to protect
the child’s development
and provide assistance to minors. Finally, the Constitution establishes the
State’s responsibility for creating the conditions necessary for the
integral development of children’s
physical and intellectual capacities
and for special care in cases of illness, abandonment or lack of
affection.
F. Cooperation with public and private national organizations
148. As has already been mentioned, cooperation
with Cape Verde’s various foreign partners is a key aspect of action to
protect
and defend children. Among the public organizations benefiting from
this cooperation are the mother and childcare/family planning
programme and the
Cape Verdean Juvenile Institute, which receive much of the assistance, although
other welfare, health and education
bodies also benefit from it. Among the
private organizations, the role of Caritas Cape Verde, the Cape Verdean Red
Cross, the Cape
Verdean Women’s Organization, the Associaçao de
Apoio a Auto-Promoçao da Mulher no Desenvolvimento (MORABI) and
the
Associação Caboverdiana para a Protecção da Familia
(VerdeFam) should be highlighted.
VII. EDUCATION, LEISURE AND CULTURAL ACTIVITIES
A. Education, including vocational training and guidance (art. 28)
149. The Cape Verdean
Constitution (art. 49) recognizes everyone’s freedom to learn, to receive
an education and to teach and guarantees the right to attend school.
The
inclusion of these freedoms and rights in the Constitution is the logical
corollary to the decisions already embodied in ordinary legislation, especially
in Act No. 103/III/90 of 29 December,
which defines how the educational system
is organized and run. The Act makes primary education compulsory, establishes
its objectives
and organizational structure and stipulates that the State,
together with families, must bear the costs of compulsory
education.
150. Now that these principles have been established, genuine
efforts to put them into practice should be stressed. These efforts
are in the
country’s tradition of attaching particular importance to educational
matters, despite some major constraints.
There has been considerable investment
in the education sector: in 1990, public spending reached 4.1 per cent of gross
domestic
product (GDP), or 19.9 per cent of total public spending. In 1994,
educational spending was 10.17 per cent of the overall investment
budget. In the 1997 State budget, considerable resources were again allocated
to
education.[5]
151. In
pre-school education, coverage for the age group between the ages of four and
five was 56 per cent in 1994. The pre-school
network is made up of
kindergartens (rural kindergartens, pre-school groups, social centres and
council-owned kindergartens), playschools
(run by the Cape Verdean Solidarity
Institute (ICS), the Cape Verdean Red Cross and the SOS Children’s Village
in Santa Catarina)
and local kindergartens that are either privately owned or
run by cooperatives. In 1994, 263 kindergartens accommodated 13,664
children.
152. The main constraints observed in pre-school education are
poor human resources skills, the absence of supervisory bodies, the
lack of an
organized physical network, mediocre teaching, inefficient services and the fact
that the State takes little responsibility
for this
subsystem.[52]
153. The
figures for coverage of primary education are as follows: in 1994, for a cohort
of 81,998 pupils, the gross school enrolment
rate was 139.7 per cent and the net
rate 95.5 per
cent.[53] In 1996/97, the
total number of pupils enrolled in primary education was 22,715 and the gross
and net enrolment rates were 32.9 per
cent and 29.6 per cent,
respectively.
154. The percentage of children repeating a year (19 per
cent) in primary education in 1990 is of some concern: indeed, only 51 per
cent
of pupils attending primary school complete this stage of their education. In
1994, the repeat rate fell to 15.7 per
cent.[5]
155. Among
the major investments in primary education, attention is drawn to those aimed at
reorganizing the system to ensure, among
other things, that schooling lasts for
six years instead of four and those designed to offer social
support.
156. In 1993, the 77,446 primary school pupils from all over the
country had a hot meal at school and 25,279 were given school materials.
This
support and, more particularly, that related to the school canteen programme are
the main elements in efforts to lower the
drop-out rate, which in 1994 was only
3.3 per cent for girls and 4 per cent for boys.
157. In secondary
education, the scenario is different. Only 23 per cent of pupils who complete
their primary education go on to
secondary education. Education is fee-paying
and even though the registration fees are not very high (they rose in 1997 and
the
Government issued various pieces of legislation on the subject), access to
it is still relatively limited. Despite the financial
support (in the form of
transport allowances and exemption from registration fees) given to the neediest
pupils, most of whom are
found among the poorest children from rural areas,
these are precisely the children who are left out of the system. In 1994, for
example, only 12,679 pupils were attending secondary schools. The figures
for secondary-school pupils repeating a year are high
(29.6 per cent in
1992).[5]
158. In some
secondary schools, there are academic and career guidance offices trying to help
young people make their choices. Although
they are important, these offices
find it very difficult to do their job, largely because of a shortage of
staff.
159. Although higher education has no formal structure in Cape Verde
as yet, post-secondary studies are being developed; access is
limited by the
shortage of places.
160. There is a scholarship programme to try to
alleviate the financial difficulties of the most needy students trying for a
place
in one of the four higher-education institutions, which are: the Higher
Education Institute, the Management and Marketing Institute,
the Higher
Engineering and Marine Science Studies Institute, and the Agrarian Research and
Development Institute.
161. To make up for the limitations in
intermediate and higher education, Cape Verde looks to foreign institutions,
which every year
train students in various academic fields. For this purpose,
there is an important programme for awarding annual scholarships on
a
competitive basis to hundreds of the most deserving young people. In 1994,
1,634 holders of scholarships under cooperation agreements
went to study
abroad.[5] In 1995, 258 more
students received scholarships. In order to boost the scholarship programme,
efforts are being made to introduce
some important changes that will guarantee
the funding for educating new
scholars.[5] In this way, an
attempt is being made to become at least relatively independent of international
cooperation funding and, to some
extent, of Treasury funding.
162. A system of loans at preferential rates underwritten by the State
has been set up. The loans are paid back at the end of the
course, beginning a
year after its completion.
163. These measures are a radical change from
the policy followed until now, under which no money had to be paid back.
Although the
legislation is intended to benefit less well-off families, there
are fears that observing this principle in practice may prove difficult.
In any
case, the legislation is due for review in two years’
time.
164. The system envisages education abroad at the intermediate,
higher and postgraduate levels, with intermediate and post-secondary
education
in Cape Verde.
B. Aims of education (art. 25)
165. The Framework Act on Education establishes
the aims of education on the basis of a modern view of education. Efforts are
being
made at the various educational levels to cultivate moral values,
solidarity, tolerance and respect for others. At the same time,
efforts are
being made to promote the national culture and develop the qualities in pupils
that will allow them to become active
members of society.
166. The
various curricula and teaching materials, particularly in the framework of the
reorganization of the education system, promote
these ideas on a daily basis
both in the classroom and in teacher training.
167. Since Cape Verde is
culturally and physically a mixed-race society and there is no gender-based
inequality in access to school,
it is easier to develop integration policies and
respect for different cultures, as advocated by the education
system.
168. The environmental balance is so delicate that environmental
concerns have to be borne in mind constantly, as reflected in a special
programme that is part of the reorganization under way.
169. The importance
of private education is recognized by the Constitution (art. 75). The Framework
Act on Education outlines its main features. Private education is seen as
complementary to State-run education
and those who advocate it are encouraged to
participate at the various educational levels. The implementing decree defines
the conditions
for establishing, authorizing and operating private schools and
specifies the conditions for granting State aid.
C. Leisure, recreation and cultural activities (art. 31)
170. Children enjoy the right to recreation and
cultural activities, including in school: the activities are integrated in
courses,
but are generally limited for lack of means. Schools also encourage
participation in healthy leisure activities, such as the School
Games which are
held during the holidays and are open to all young people in the country.
Children who do not go to school find
it more difficult, but organize their
leisure through sports and cultural organizations. The public and private media
and State
cultural departments organize many of these youth
activities.
171. Despite the large number of young people, getting them
to participate in healthy leisure activities continues to be one of the
major
challenges facing Cape Verdean society. There is a shortage of cultural and
leisure centres throughout the country. Those
which do exist, such as theatres,
libraries, cinemas, museums, cultural centres, parks and art galleries, do not
really meet people’s
needs. There is no national library, although
building work has begun on one with Chinese assistance. The national archives
sometimes
act as a national library. The Development Documentation and
Information Centre does important work on contemporary documents.
There are
some town libraries and there is a plan for travelling libraries to be run by
the Institute of Culture and the Department
for Extracurricular Activities.
Generally speaking, libraries tend to be used by primary and secondary school
pupils as a place
to study rather than as a place for reading or cultural
enrichment.
172. The only museums at the moment are the
telecommunications museum in Mindelo, the “embryonic” museum at the
National
Crafts Centre and the first ethnographic museum in the country, which
was opened in Praia by the Government in 1997 and which already
has a collection
of some 600 pieces. The Ministry of Education, Science and Culture is
responsible for several projects now under
way to set up museums and cultural
centres.
173. The few theatres and cinemas that exist have poor sound and
picture quality, and so entertainment is staged in improvised
locales.
174. There are also not many parks and green spaces in towns,
though the “Fifth of July” park in Praia is worth mentioning.
In
the 1970s and 1980s, multifunctional sports centres were built to stage not only
sports, but also popular cultural activities.
175. As has already been
mentioned, bilateral and multilateral cooperation is very important. The great
effort being made to educate
Cape Verdean young people and to reorganize the
educational system would not be possible without the partnership of friendly
countries
and cooperation institutions. The countries include Portugal, Brazil,
Switzerland, Germany, the Netherlands, the countries of the
European Union, Cuba
and China. The United Nations Educational, Scientific and Cultural Organization
(UNESCO), the Calouste Gulbenkian
Foundation, the World Bank and the African
Development Bank are the main cooperation institutions involved in the process
of establishing
a more modern and effective education system so that
children’s rights can be recognized and fully exercised effectively in
this field.
VIII. SPECIAL PROTECTION MEASURES (arts. 22 and 38)
176. Given its geographical location and natural
economic disadvantages, Cape Verde is not sought after by refugees as a host
country.
Article 36 of the Constitution nevertheless guarantees the right of
asylum to aliens or stateless persons persecuted for political reasons or
seriously threatened
with persecution on account of their activities in support
of national liberation, democracy or respect for human rights.
177. Cape
Verde has never had any armed conflicts in its national territory.
A. Children in conflict with the law
1. The administration of juvenile justice (art. 40)
178. As
pointed out above, young people must be over age 16 to be considered capable of
infringing criminal law. Minors under age
16 who commit any act defined in
criminal law as a crime are subject to the assistance, educational or corrective
measures already
mentioned.
179. The prohibition of the retroactive
application of criminal law is a fundamental principle of the Cape Verdean legal
system (art.
30 of the Constitution). It is also prohibited by the Constitution
to apply penalties or security measures that are not expressly provided for in
an earlier law (art. 30. para. 3). In matters of
criminal procedure, the
principle of the presumption of innocence still applies (art. 33, para.
1).
180. Defendants are not obliged to make statements on the acts of
which they are accused and have the right to be assisted at all
stages of the
proceedings by defence counsel. If, at the beginning of the adversary stage of
examination proceedings, the defendant
has not appointed a lawyer, the court
must appoint one. If defendants receiving assistance cannot afford to pay the
lawyers’
fees, these will be paid by the Legal Aid and Assistance
Institute (IPAJ), a publicinterest body representing lawyers and other judicial
officials that offers free legal aid to the poor. This option is available only
to minors or their legal representatives. Defendants
who do not understand
Portuguese receive the assistance of an interpreter.
181. For sentences
handed down in first instance, there is always the possibility of an appeal to
the Supreme Court of Justice.
2. Children deprived of their liberty (art. 37 (b) – (d))
182. Under article 28 of the Constitution, no
one may be deprived, either partially or completely, of their liberty unless
they have been convicted by a court of law. Every
person detained or imprisoned
without being found guilty must be brought within 48 hours before the competent
judge, who explains
to him in clear terms the reasons for his detention or
imprisonment, informs him of his rights and duties, questions him in the
presence
of a defence counsel freely chosen by him, gives him the opportunity to
defend himself and takes a decision, giving reasons for upholding
or maintaining
his imprisonment (art. 29 of the Constitution). A detainee’s family must
be notified immediately of his detention or imprisonment and of where he is
being held.
183. Minors sentenced to imprisonment are placed in ordinary
prisons, but they have to stay in suitable cells that separate them from
the
other prisoners and they receive more favourable treatment. As has already been
mentioned, it is not always possible to ensure
that minors are separated from
the rest of the prisoners because of space problems in national prisons.
3. The sentencing of children, with particular reference to
the prohibition
of capital punishment and life imprisonment (art. 37
(a))
184. Article 26 of the
Constitution recognizes the inviolability of human life and prohibits torture,
the imposition and execution of custodial sentences or measures
or cruel,
degrading or inhuman treatment, and the death penalty. Life imprisonment and
imprisonment or other custodial measures
for an unlimited or indefinite period
are also expressly prohibited by the Constitution. Courts may not sentence
minors to more than eight years’ imprisonment. All these rules are
rigorously adhered to by the
police, courts and the public prosecutor’s
office throughout the national territory.
B. Children in situations of exploitation, including physical
and
psychological recovery and social reintegration (art. 39)
1. Economic exploitation of children, including child labour
185. Children
of compulsory school age are expressly forbidden from working by the
Constitution. From the age of 14, minors may enter into an employment contract,
but any contract they sign can be invalidated at the request
of their parents or
legal representatives if the latter did not give their consent.
186. The
normal working hours for minors may not exceed 38 hours a week and 7 hours a
day, unless the tasks performed involve simply
being present or the work is
intermittent or exclusively devoted to the minor’s training. In these
circumstances, the working
hours may be the normal ones, that is, 44 hours a
week and 8 hours a day. Night work is prohibited for those younger than 16;
minors
over the age of 16 are allowed to work at night only when it is essential
for their vocational training. Overtime is permitted only
in cases of force
majeure and when the minor is over age 16 and may not exceed 2 hours a day and
30 hours a year. The wage paid
to minors for their work should be set according
to the constitutional principle whereby wages are proportional to the quantity
and
quality of the work.
2. Drug abuse
187. In December 1989, Cape Verde ratified the
1961 Single Convention on Narcotic Drugs and the Convention on Psychotropic
Substances.
Drug use is prohibited and punishable by up to three months’
imprisonment (Act No. 78/IV/93 of 29 November). However, if
the user is a
minor and not a repeat offender and undertakes not to use drugs any more, he
or she may be spared punishment. The sentence can also
be suspended if the
offender is a drug addict and agrees to undergo treatment or spend some time in
an appropriate institution.
188. Drug-trafficking is punishable by a
prison sentence of up to 15 years. The applicable sentence is always aggravated
when substances
and preparations are delivered to or intended for minors. The
potential sentence for incitement to use narcotics or psychotropic
substances is
even more severe when the acts committed harm a minor.
189. Action to
combat drugs is carried out basically by the judicial police, which is now in
the process of being reorganized. An
inter-ministerial commission, the
Commission to Coordinate Action against Drugs, coordinates the action of the
various State departments.
The Commission comes under the Minister of Justice
and Internal Administration, who, as a member of the Government, coordinates
anti-drug activities. The Commission has a multidisciplinary and cross-sectoral
membership, including some of the services involved
in action to combat drugs,
notably the services of the judiciary, the public prosecutor’s office, the
judicial police, the
police force, the coastguard (which is a branch of the
armed forces) and the government departments responsible for justice, health,
education, youth and foreign affairs. The Commission may yet include seven more
members - the number of non-governmental organizations
(NGOs) - in its
deliberative body. It has been active since 1996 and is responsible for
coordinating all anti-drug activities, essentially
in the areas of prevention
and the treatment and rehabilitation of drug addicts. It is also responsible
for preparing the national
programme of action against drugs, which is now in
its final drafting stage.
190. It will be noted that the instruments used
to prevent and combat the use of psychotropic substances have not yet had the
desired
effect, as the main bodies to prevent and combat drug use have only
recently been set up. The judicial police, for instance, was
established in
1993 and began its work at the end of 1994; its services have not been
introduced in the various parts of the territory
where its presence and action
are needed. The above-mentioned Commission was set up in 1995 and began its
work only in 1996. The
two institutions are still in the process of being
established and have only limited material, technical, human and financial
resources.
Nevertheless, these bodies have performed valuable work so far and
have achieved fairly positive results.
191. The Government is aware of
the situation in the country with regard to drug-trafficking and drug use; the
situation is not yet
alarming but it is complex and requires closer and constant
attention from the authorities and society in general. The Government
is
working to improve the ability of the preventive and anti-drug bodies to take
action by giving them the go-ahead to act independently
and by making them
financially independent. The Government is further committed to developing
mechanisms to coordinate all the services
working, directly or indirectly, in
the sector. The work of town councils and various organizations of civil
society and the willingness
they have shown to cooperate in combating this evil
should be stressed.
3. Sexual exploitation and sexual abuse (art. 34)
192. Criminal law (art. 405 of the Civil Code)
provides for one to two years’ imprisonment for parents who, in order to
satisfy
the indecent desires of another person, incite, encourage or facilitate
the prostitution or corruption of children. If the crime
is committed by some
other person who is legally responsible for the child, the prison sentence is
from six months to two years and,
if it is committed by anyone else, the
applicable penalty is three months (art. 406 of the Civil Code).
193. The
sexual abuse of minors under age 16 is punishable by two years’
imprisonment. However, if the crime is one of rape,
that is, one involving
penetration without the girl’s consent, the applicable penalty is from two
to eight years and from eight
to twelve years if the victim is less than 12
years old. It can be seen that sexual abuse of girls is more severely punished
than
that of boys. This situation will be rectified in the new Penal Code,
which is expected to be adopted in 1999.
194. Timid laws, insecurity
in society, the weakening of family ties and the abandonment of children all
serve to encourage sexual
exploitation, especially in urban centres. There are
no statistical data on the sexual abuse of minors, but cases of the sexual
abuse
of children are reported every day. All the cases reported are dealt with
satisfactorily by the judicial bodies.
4. Other forms of exploitation
195. In addition to what has already been said,
it should be stressed that, in the fight against the economic and sexual
exploitation
of children, the Constitution recognizes the right of children to
the special protection of the family, society and the State and prohibits any
possible legalization
of practices that might constitute a form of the
exploitation of children. The Government is aware of its obligation in this
area
and has incorporated a number of policies and political and legislative
measures designed to prevent and curb the exploitation of
children in the
outlines of its plan for 1997-2000 and in its programme.
5. Sale, trafficking and abduction
196. Abduction is punishable under Cape Verdean
criminal law, but in an unclear and unsatisfactory way (arts. 395-399 of the
Penal
Code). There is no penal provision specifically on the sale or
trafficking of minors, although some provisions of the Penal Code
(arts.
342-344) could be applied to certain kinds of acts similar to the sale or
trafficking of children. This gap in the legislation
is due to the fact that
the Penal Code in force is over a century old. The Government is aware of the
need to adopt a new Penal
Code and requested that a draft be prepared; this
draft is in the final stages of preparation and discussion. When the new code
is adopted, acts that are inconsistent with the rights of children will be
appropriately dealt with and punished.
6. Children belonging to a minority or an indigenous group
197. Given the homogeneity of the population,
there are no minority ethnic groups in Cape Verde.
IX. CONCLUSIONS
198. Now that this report has been completed on
the situation in Cape Verde with regard to the observance of the provisions of
the
Convention on the Rights of the Child, it is necessary to sum up the
conclusions on what the Government needs to do in future to
fill the gaps or
rectify the shortcomings that still exist. One thing that is certain is that
respect for the rights, especially
the economic, social and cultural rights, of
citizens in general and children in particular is a challenge and omnipresent
goal to
be pursued by States as they seek to advance people’s welfare and
the promotion and defence of human dignity and unimpeded
individual fulfilment.
In short, it is a question of promoting and defending development, which is
bound to include the sphere of
human development and which should be built on
the solid foundation of today’s children, who are the men and women of
tomorrow,
in each individual society and in the globalized world of the
twenty-first century.
199. The following are the most important
conclusions:
(1) It is clear from a reading of this report that Cape
Verde has made significant progress in the promotion and protection of
children’s
rights, despite the material, technical, human and financial
difficulties which it has always faced and which are aggravated by natural
adversity and permanent drought.
(2) In fact, there have been positive
developments throughout Cape Verde’s history since independence, with
appreciable results
in terms of the promotion and protection of children’s
rights and the right to development, as a result of the formulation
and
implementation of relatively consistent government policies.
(3) It has
been shown that real progress has been made in the legislation concerning
children, which incorporates the principles
established in the Convention. It
should be emphasized that Cape Verdean legislation anticipated some proposals
that were later
embodied in the Convention. However, it is still necessary to
give effect to certain principles by establishing appropriate legal
mechanisms,
especially with regard to the establishment of institutions to support and
rehabilitate juvenile offenders and minors
suffering from diseases or
impairments.
(4) Similarly, a number of areas need to be regulated so
that full use can be made of the mechanisms and institutions that have been
set
up. This is true, for instance, of the protection, assistance and education
measures provided for in the legislation in force.
(5) There is also a
need to move forward as quickly as possible with the reform of various legal
texts, including the Code of Civil
Procedure, the Penal Code and the Labour
Code, as well as legislation with important consequences for the legal status
and situation
of children, such as the laws prohibiting minors from engaging in
certain activities, those regulating access by disabled persons
to certain
public services and goods and those setting the conditions for attendance at
artistic and cultural shows and activities.
(6) Legislative and
administrative measures need to be adopted to implement the National Declaration
on Policy towards Children and
Young People so that it has the desired
effect.
(7) Despite the progress made, there are still some major
problems in the situation of children that can be overcome only through
the
continued efforts of the Government, civil society and national and
international development partners, mainly by taking the
following
measures:
(a) Create the conditions in which regular reviews of the
situation with regard to children’s rights can be carried out to
ensure
that aid for government development policies and choices is suited to the
current situation;
(b) Create the material, technical and, above all, human and financial
conditions for the formulation, execution, evaluation and
monitoring of
government development policies in general and those targeting children in
particular;
(c) Introduce and consolidate mechanisms for coordinating
sectoral policies which are directly or indirectly reflected in the status
and
situation of children;
(d) Continue promoting and taking action in cooperation with partners at
home, particularly families, schools and NGOs, and abroad,
with the aim of
complementing efforts to promote and protect children’s rights;
(e) Involve the media in providing more regular and suitable coverage of
the question of the promotion and protection of children’s
rights, which
will require better professional training and greater adaptability in this
area;
(f) Improve the capacity of the Cape Verdean Juvenile Institute to act
by updating its internal statutes and rules and adapting them
to the current
situation and by increasing its material, technical, human and financial
resources.
(8) There is a need to analyse, or analyse in greater depth, or evaluate
certain social phenomena in order better to promote and
defend children’s
rights, especially with regard to violence in the home and children who are
abandoned or ill-treated by those
responsible for them.
(9) A national
council on policy for children and young people must be set up to assess and
monitor overall policy for these population
sectors.
(10) The following
measures must be taken urgently:
(a) Harmonize and update legislation on the administration of juvenile
justice
in general;
(b) In revising the part of Penal Code that deals with crimes against minors,
adapt the accusation and punishment for certain types of crime, such as torture, prostitution, abduction, arms trafficking and ill-treatment and, at the same time, increase sentences for cases where children are used in drug-related activities;
(c) Adopt a special pre-trial detention regime for young
offenders;
(d) Review social security legislation to make it more
favourable to disabled
minors who are with their families.
(11) The trend in policies in the areas of children’s health and
welfare is on the whole positive. The main shortcomings are
related to
difficulties of a general nature. Health services are effective in many areas
and their efforts and greater capacity
should be recognized. However, in
settings where living conditions are quite precarious, the health services are
faced with a difficult
situation in that they must first set priorities if they
are to optimize their efficiency. The work mentioned in paragraphs 136
to 144
above should be highlighted. It is also necessary to encourage the health
services to expand their activities by identifying
the areas in which they are
stretched, with the aim of improving the effectiveness of their
response.
(12) In education, it is necessary to continue to develop and
perfect the policies and policy measures being implemented in order
to raise
standards in:
(a) Women’s literacy;
(b) The schooling and education of needy children, especially those
from rural
backgrounds;
(c) The involvement of children and young people in cultural activities
during
their leisure time.
(13) Conditions must be created to enable society to participate in its
own right in the process of promoting and protecting children’s
rights;
society needs to be kept informed at every step of changes in the situation so
that it can fulfil its responsibilities in
a critical and responsible way. To
this end, practical measures will be taken, including measures to improve the
dissemination of
studies and documents and to make better use of education
workers. Priority should be given to action by local councils in order
to
encourage them to play a significant role in the preparation and implementation
of the overall policy for children and young people.
Notes
[1] World Bank, Poverty in Cape Verde. A Summary Assessment and a Strategy for its Alleviation, June 1994.
[2] Ibid.
[3] NLTPS project,
National Long-Term Perspective Studies, Cape Verde,
2000.
4 UNDP, Development cooperation, Cape Verde,
1995 Report, p. 21.
[5] NLTPS project, op.
cit.
6 UNDP, op. cit.
[7] Report on the Third National Development Plan, 1992 -1993.
[8] Ministry of Health and
Social Welfare and UNICEF, Health of children under five
in Cape
Verde.
[9] NLTPS project, op. cit.
[10] Ministry of Economic Coordination, Midterm Evaluation of the Third National Development Plan, 19921993: Health and Social Welfare.
[11] Health and Children.
[12] Government of Cape Verde and UNICEF, Children and Women in Cape Verde. Analysis of the Situation, Praia, October 1993.
[13] Ministry of Health and UNICEF, op. cit.
[14] Government of Cape Verde and UNICEF, op. cit.
[15] Ministry of Health and Social Welfare, Health Diagnosis, Praia, 1997.
[16] NLTPS project, op. cit.
[17] Office of the Deputy Minister, Poverty Reduction Programme, Contributions by the Departments of Health, Nutrition and Education, 1997. UNDP, op. cit., p. 12.
[18] Cape Verdean
Juvenile Institute and UNICEF, Legal protection of children, Praia,
1994.
19 Ibid.
20 Ibid.
[21] At the time of writing, Decree-Law No. 12-C/97 of 30 June amending the Family Code has been published.
[22] ICM, “Interview with the President”, 21 February 1997.
[23] ICM, “Statistical Data, 1996”.
[24] A minor is any
person who has not yet reached the age of 18 years. The Juvenile Code
entered into force on 1 June 1983.
25 In
1990, the courts heard 48 cases involving minors under age 16; in 1991, there
were 24 such cases.
[26] The Juvenile
Protection Committees are collective ICM bodies at the municipal level (art. 17
of the statutes approved by Decree-Law
No. 90/82 of 25
September).
27 The law provides that, if the Juvenile
Protection Committees are not operational, their work is assigned to the courts
(art. 5 of
Decree-Law No. 89/82 of 25 September).
[28] See Ministry of Health and Social Welfare press release of 29 October 1991 (Official Gazette No. 45) and statutory decree No. 4/93 of 8 March (Official Gazette No. 7 of 8 March). According to the decree, vulnerable people include persons on welfare, unemployed persons, destitute persons and FAIRNO workers.
[29] Decree-Law No. 47678 of 5 May 1967 covering all of Cape Verde as subsidiary legislation through Order No. 23101 of 28 December 1967 and brought into force by Decree No. 49/77 of 4 May.
[30] Decree-Law No.
87-A/76 of 29 September. This Law has been superseded by articles 17341737
of the Civil Code.
31 ICM/PNLCS, Study of the
traditional system of foster care for orphans in Cape Verde,
Praia, 1996.
32 Article 80 of the Family Code
(repealed). See article 1943, paragraph 1, of the new Family Code.
[33] Article 87 of the Family Code (repealed). See Article 1943, paragraph 2, of the new Code.
[34] DecreeLaw No. 77/85 of 27 July 1985, approving Cape Verde’s accession to the Multilateral Convention on the Recovery Abroad of Maintenance.
[35] Judicial agreement
between Portugal and Cape Verde, decision 12/76 of 23 June;
Decree No. 86/82 of 18 September; agreement with
Portugal on recovery
of maintenance; agreement with Cape Verde and Angola, decision
No. 29/79.
36 Articles 90 to 101 of the Family
Code (repealed). See article 1871 of the Civil
Code.
[37] The study
projects 2,000 deaths from AIDS by the year 2000, which will increase the number
of orphans.
[38] Conclusions and
recommendations of the meeting on the presentation and analysis of the results
of the research on the traditional
system of foster care for orphans, Praia,
April 1996.
[39] Article
69 of the Family Code (repealed),. See article 1920 of the Civil Code.
[40] Article 18 of the Juvenile Code; see also article 182, paragraph 2, of the Civil Code.
[41] UNDP, Cooperation ... (see note 4 above), p. 12.
[42] Ministry of Health,
Health ... (see note 15 above).
43
Ibid.
44 Ministry of Health and UNICEF, Health of
Children ... (see note 8 above).
[45] Ibid.
[46] Health ... (see note 15 above).
[47] Health of Children ... (see note 8 above).
[48] World Bank, Poverty ... (see note 1 above).
[49] NLTPS project, op.
cit. (see note 3 above).
50 Article 23 of the
International Covenant on Civil and Political Rights and article 20 of the
International Covenant on Economic,
Social and Cultural
Rights.
51 Act No. 16/V/96 of 30 December adopting the
State budget for 1997.
[52] NLTPS project, Human Resources Development, p.12.
[53] Ibid., p.
12.
54 Ibid., p. 7.
55
Ibid.
56 Ibid.
57 Decree-Laws
Nos. 6, 7 and 8/97 of 3 February.
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