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The Rule of Law and the Exploitation of Children in Africa John Mukum Mbaku

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The Rule of Law and the Exploitation of Children in Africa John Mukum Mbaku Hastings International and Comparative Law Review Volume 42 Article 2 Number 2 Summer 2019 Summer 2019 The Rule of Law and the Exploitation of Children in Africa John Mukum Mbaku Follow this and additional works at: https://repository.uchastings.edu/ hastings_international_comparative_law_review Part of the Comparative and Foreign Law Commons, and the International Law Commons Recommended Citation John Mukum Mbaku, The Rule of Law and the Exploitation of Children in Africa, 42 Hastings Int'l & Comp.L. Rev. 287 (2019). Available at: https://repository.uchastings.edu/hastings_international_comparative_law_review/vol42/iss2/2 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings International and Comparative Law Review by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Volume 42Article 1Number 2 Spring 20191 - Mbaku [4.11.2019] (1).docx The Rule of Law and the Exploitation of Children in Africa BY JOHN MUKUM MBAKU* ABSTRACT The abuse and exploitation of children is a major public policy priority for all African countries. Throughout the continent, children are routinely abused and exploited as sex objects; tools in the production of various goods, including cocoa, gold, and various minerals, as well as, services, such as pornography and prostitution; and, as child soldiers to fight in sectarian conflicts and civil wars. Children in Africa are exploited and abused by both domestic and external or foreign actors and these include, but are not limited to, family members and community leaders, foreign tourists who seek the continent’s children for sex, and international criminal gangs who are engaged in the production of child pornography, sex trafficking and the illegal harvesting and sale of organs. With respect to the use of African children in military conflicts, exploiters include state- and non-state actors. In several African countries, religious and customary practices account for a significant amount of the abuse that children, particularly girl children, are subjected to. In addition, many children are also subjected to servitude labor in cocoa plantations, mines, traditional religious shrines, and the homes of rich urban dwellers. International actors involved in the abuse and exploitation of African children also include UN peacekeepers and aid workers belonging to various non-governmental organizations. Effectively combatting the abuse and exploitation of African children must begin with * John Mukum Mbaku is an Attorney and Counselor at Law (licensed in the State of Utah) and Brady Presidential Distinguished Professor of Economics & John S. Hinckley Research Fellow at Weber State University (Ogden, Utah, USA). He is also a Nonresident Senior Fellow at the Brookings Institution, Washington, D.C. He received the J.D. degree and Graduate Certificate in Environmental and Natural Resources Law from the S.J. Quinney College of Law, University of Utah, where he was Managing Editor of the Utah Environmental Law Review, and the Ph.D. (economics) from the University of Georgia. This article reflects only the present considerations and views of the author, which should not be attributed to either Weber State University or the Brookings Institution. 287 288 Hastings Int’l & Comp. L. Rev. [Vol. 42:2 institutional reforms within each African country to provide democratic institutions, which can adequately constrain the State and prevent those who serve in it (i.e., civil servants and political elites) from engaging in activities (e.g., corruption and failure to enforce the laws) that contribute to the exploitation of children. With a governing process undergirded by the rule of law, each country can then develop the capacity to bring all perpetrators of child abuse and exploitation to justice. Although making certain that all African countries have legal and judicial systems that are fully capable of effectively prosecuting all individuals and organizations that commit crimes against children must be the first line of the fight against child abuse and exploitation in Africa, it is important to acknowledge the important role that international law can play in the protection of the rights of children in Africa. In addition to the fact that international legal instruments can help African countries in their efforts to make certain that customary and traditional practices involving children do not offend international human rights norms, international law is also critical in efforts to minimize the exploitation and abuse of children across international borders. I. INTRODUCTION Throughout Africa, children are extremely vulnerable to abuse and exploitation by both state- and non-state actors.1 The violation of children’s rights in Africa, however, is not limited to domestic groups. Members of international and multilateral organizations (e.g., the United Nations) are sent to the continent to prevent such abuses, especially among refugee children; provide humanitarian services to vulnerable groups (e.g., children and adults displaced by war, sectarian conflict, and other forms of violent disputes); secure the peace; and help feuding groups return to peaceful coexistence. In doing so, they have been implicated in the exploitation and abuse of children.2 For example, in 2014, the United Nations (UN) faced one of the worst scandals in its history since it was founded in 1945—UN peacekeepers, who were sent to the Central African Republic to secure the 1. See, e.g., Kevin Lalor, Child Sexual Abuse in sub-Saharan Africa: A Literature Review, 28 CHILD ABUSE & NEGLECT 439 (2004); Carol A. Plummer and Wambui Njuguna, Cultural Protective and Risk Factors: Professional Perspective About Child Sexual Abuse in Kenya, 33 CHILD ABUSE & NEGLECT 524 (2009); Charles Mtibo, Neil Kennedy and Eric Umar, Explanations for Child Sexual Abuse Given by Convicted Offenders in Malawi: No Evidence of “HIV Cleansing”, 35 CHILD ABUSE & NEGLECT 142 (2011). 2. See, e.g., Scott A. Levin, U.N. Report: Sexual Exploitation of Refugee Children by U.N. Peacekeepers, 19 N.Y.L SCH. J. HUM. RTS. 833 (2003). Summer 2019] The Rule of Law and the Exploitation of Children in Africa 289 peace and stabilize a country that had been embroiled in sectarian conflict for more than a decade, were accused of raping and abusing “hundreds of boys, girls, and women.”3 When António Manuel de Oliveira Guterres became Secretary-General of the UN on January 1, 2017, he acknowledged the exploitation and abuse of children by UN peacekeepers in the Central African Republic and promised to fully address its peacekeepers’ perpetuation of rape and sexual violence. In August 2017, the Secretary-General appointed Jane Connors, an Australian lawyer, legal scholar, and long-time human rights advocate, to be the UN’s first Victims’ Rights Advocate.4 In September 2017, Mr. Guterres stated that “[s]exual exploitation and abuse have no place in our world”5 and that “[i]t is a global menace, and it must end.”6 In addition to creating a new position that oversees the elimination of UN peacekeepers’ sexual exploitation and abuse of children, UN officials also announced that they would significantly increase funding and provide additional staff to the fight against rape and the sexual assault of children. Mr. Atul Khare, UN Under-Secretary-General for Field Support said recently that those additional efforts by the organization have produced a 50% drop in “assaults on children by peacekeepers across the globe during the first 11 months of 2017 compared with the same period in 2016.”7 He went on to argue that the organization’s new anti-sexual violence campaign is making significant progress. Nevertheless, he conceded that “even one allegation is one too many.”8 The spokeswoman for UN peacekeepers in Bangui, Central African Republic, Ms. Uwolowulakana Ikavi-Gbetanou, confirmed that the new measures, which include additional training of personnel and more aggressive investigations of cases, are paying off as “abuse cases”9 have declined.10 Nevertheless, the UN’s own watchdog, the UN Human Rights Committee, has conceded that despite some progress, much more work is 3. Christian Locka and Jabeen Bhatti, Africans Slam U.N. for Rapes by Troops, USA TODAY (Jan. 1, 2018), https://www.pressreader.com/usa/usa-today-us-edition/20180116/ 281522226496304. 4. Australian Jane Connors Appointed First UN Rights Advocate for Victims of Sexual Exploitation, UN NEWS CENTER (Aug. 23, 2017) http://www.un.org/apps/news/story.asp? NewsID=57401#.Wl9bmGW7lBw. 5. Quoted in Locka and Bhatti, supra note 3. 6. Id. 7. Id. 8. Id. 9. Id. 10. Id. 290 Hastings Int’l & Comp. L. Rev. [Vol. 42:2 required.11 Human rights groups, however, have disputed the UN claims of improvement in the fight against sexual violence in the Central African Republic.12 Researchers have argued that although the UN’s new advocate against sexual violence, Paula Donovan, has implemented a policy of “zero tolerance for sexual exploitation and abuse,”13 the situation has worsened in the Central African Republic.14 Granted, post-apartheid South Africa has a very progressive constitution15 and has managed to establish a democratic governing process undergirded by separation of powers and relatively effective checks and balances,16 and has an economy that is considered one of the strongest and most robust in the continent.17 Yet, its children are still among the most vulnerable to abuse and exploitation.18 South Africa has one of the highest levels of child abuse and exploitation in the world, including child rape and the use of children in the production of pornography and various forms of prostitution.19 11. Id. 12. Id. See also Fred Muvunyi, UN on Spot Over Sexual Assaults in CAR, DW (March 4, 2016), http://www.dw.com/en/un-on-spot-over-sexual-assaults-in-car/a-19095276. 13. Id. 14. Id. 15. THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, Oct.
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