Children are among society’s most vulnerable, which our law attempts to address. Section 28(2) of the Constitution, for example, provides that ‘the best interests of the child are of paramount importance in every matter concerning the child’.
Similarly, the United Nations Convention on the Rights of the Child (UNCRC) provides that the best interests of the child are ‘a primary consideration’ in every matter concerning the child, and the African Charter on the Rights and Welfare of the Child (ACRWC) provides that the best interests of the child are ‘the primary consideration’.
In addition, aside from a few entitlements afforded by the Bill of Rights, such as the right to vote, the entire basket of rights afforded by human rights instruments are conferred upon children. Finally, national legislation, such as the Children’s Act and the Child Justice Act, also serves to protect children in various ways, as do various policy documents. These provisions should arguably protect children from violence, neglect, abuse and exploitation. But what is the reality? Perhaps a poignant example at this time is the management of the Covid-19 pandemic and how it has affected people under 18.
Before exploring the impact of the mechanisms employed thus far to control the spread of the pandemic, it is necessary to explain the meaning of the ‘best interests’ construct and how it is put into effect. At first glance it may appear to be somewhat of a nebulous and all-encompassing construct, almost suggesting that our law places a higher price on realising the rights of children than those of their adult counterparts. To this end, the case of S v M (Centre for Child Law as Amicus Curiae) held that:
‘The word ‘paramount’ is emphatic. Coupled with the far-reaching phrase ‘in every matter concerning the child’, and taken literally, it would cover virtually all laws and all forms of public action …. This cannot mean that the direct or indirect impact of a measure or action on children must in all cases oust or override all other considerations. If the paramountcy principle is spread too thin it risks being transformed from an effective instrument of child protection into an empty rhetorical phrase of weak application…’
So how does Covid-19 and efforts to mitigate its impact affect children? The short answer is that present efforts affect them tragically and sometimes irreparably. In fact, UNICEF has warned that ‘lockdown could kill more than Covid-19 as [a model they are utilising] predicts 1.2 million child deaths’. This, as it indicates, represents a 45% increase in child mortality globally. It points out that ‘the risk of children dying of malaria, pneumonia or diarrhoea in developing countries is far greater than of dying as a consequence of Covid-19’. Dr Stefan Swartling Peterson, Chief of Health at UNICEF, points out: ‘Indiscriminate lockdown measures do not have an optimal effect on the virus. If you are asking families to stay at home in one room in a slum, without food or water, that won’t limit virus transmission…we need to lift our eyes and look at the total picture of public health.’
Indeed, there have also been immense disruptions to the access to health services in South Africa, with fewer children accessing healthcare out of fear of catching Covid-19, a change in the focus of providing public healthcare services and a decreased drive to ensure universal vaccination and the necessary testing for diseases such as tuberculosis (with one dedicated ward for such patients already having been turned into a Covid-19 ward).
In addition, with many living in cramped conditions in informal settlements where it is impossible to engage in social distancing, it is doubtful that the virus can be kept effectively at bay anyway. This degree of violation of the right to access healthcare flies directly in the face of the best interests of the child being paramount, which the government is compelled to observe, regardless of other circumstances.
Access to healthcare is guaranteed by section 27 of the Constitution. While it is a socio-economic entitlement that is not immediately enforceable – meaning it is ‘subject to progressive realisation and reasonable administrative and legislative measures’ – an important feature of such an entitlement is that, according to implementation tools of instruments such as the International Covenant on Social, Cultural and Economic Rights, measures taken by a state pertaining to this right cannot be regressive. This means it is unlawful for a government to backtrack and countenance people having less access to services than they had before.
While a right can be limited, the limitation must be constitutional. In the face of putting the lives of children at risk, it is impossible to argue that the limitation passes muster, or that the government is not regressing on its constitutional promises to healthcare.
Certain rights in the Bill of Rights are what are known as non-derogable rights. These are rights that cannot be extinguished for any reason, even in a state of national disaster. Among these is the right to life (section 11 of the Constitution). By placing children in a position where they can become seriously ill, or die, government is wholly curtailing this right and so reneging on one of its constitutional promises to children, and in turn acting directly against their best interests. This is unacceptable in a democratic society.
Children may stand a relatively low chance of suffering serious ill effects from Covid-19, but the risk posed by the actions of the state stand to be devastating.
It is critical that measures be taken to ensure their safety. The current approach places them in a profoundly precarious position. When dealing with a vulnerable group, constant vigilance is required to ensure their protection is maintained. In the case of South Africa’s children, the government should act before it’s too late.
The views of the writer are not necessarily the views of the Daily Friend or the IRR