Cultural And Traditional Practices And The Implementation Of The Right Of The Child To Be Heard Under Article 12 Of The Uncrc
The 1989 United Nations Convention on the Rights of the Child (hereafter UNCRC) is one of the international instruments that broadened children's rights and placed it at the top of government agenda. A fundamental objective of the UNCRC is to establish the status of children as rights-bearers, and for their rights to be considered as important as those of adults with regards to respect and defence of such rights. Aside the other relevant articles in the UNCRC, which are linked to the participation of children, Article 12(1) clearly elaborates on the participatory right of the child. In the context of the provisions of Article 12(1) of the UNCRC, the reference to "in all matters" indicates that the participatory rights in Article 12(1) of the UNCRC are not limited to matters specifically addressed in the UNCRC. It covers both the private and public spheres of society, and foists on the state duties in relation to matters left for actors in the private sphere, such as the family, to decide. Therefore, the right to participate in terms of Article 12(1) refers to every child's right to be heard and to participate in all matters that affect their lives, including decision-making within the family. This presupposes that children are autonomous individuals capable of making and participating in decisionmaking within the family. Despite the importance attached to the provisions of Article 12(1), it has been the subject of much debate and controversy. Among the major concerns on the part of some State Parties and critics are that the provisions of autonomy rights in Article 12(1) of the UNCRC present the child as having a separate identity from others. These concerns seem to have been exacerbated by the lack of provisions regarding the duties and responsibilities of the child within the family and towards others under the UNCRC. Thus, critics claim that the UNCRC does not adequately account for the reciprocal and interdependent relationships between the child, her/his parents, and other members of his/her family. Again, they question the desirability and applicability of the UNCRC construction of a child's autonomy within those socio-cultural contexts where the autonomy of the individual is not emphasised as much as his/her interdependence and duties within the family and the community. In other words, the characterisation of children as autonomous logically raises the question of legitimacy, desirability and applicability within different socio-cultural contexts where the autonomy of the individual is not privileged as much as interdependence and the fulfilment of duties within the family. Consequently, critics argue that the practical implementation and effectiveness of the relevant provisions of the UNCRC cannot be enforced in some state jurisdictions. In understanding the influence of culture, values and practices in children's rights discourse, the thesis considers the implementation approach of Article 12(1) of the UNCRC in the domestic children's rights legislations of specific State Parties such as Nigeria, South Africa and Australia. In these cultural values of rights and duties of the child within the family is an intricate measure of implementation in their specific domestic children's rights legislation. More so, while the South African and Australian national children's laws on the one hand embed the cultural value of rights and duties and responsibilities of children within the family, they, on the other hand, embeds the UNCRC autonomous children's rights approach of children's participation rights in decision-making within the family. In Nigeria, the UNCRC's implementation approach in the country's national children rights law is completely based on acceptable local norms and customs in terms of the rights and duties of the child within the family. In other words, there appears to be resistance to, and neglect of the specific provisions of Article 12(1) of the UNCRC concerning children's rights, owing to socio-cultural f