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    Ghetnet metiku ehrc cr ts harmonization study Ghetnet metiku ehrc cr ts harmonization study Document Transcript

    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 Assessment on the Harmonization of the National Framework in Ethiopia with International Child Rights Standards (Zero Draft) Ghetnet Metiku Woldegiorgis October 2011 Addis AbabaUpdated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 1 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 Table of Contents List of Acronyms................................................................................................................ 4 Executive Summary............................................................................................................51. Introduction......................................................................................................................6 1.1. Purpose and Objectives.............................................................................................6 1.2. Research Approach................................................................................................... 7 1.3. Key Research Issues................................................................................................. 92. Background....................................................................................................................10 2.1. Socio-Economic Context........................................................................................ 10 2.1.1. Economy.......................................................................................................... 10 2.1.2. HIV/AIDS........................................................................................................11 2.2. Situation of Children...............................................................................................12 2.2.1. Education......................................................................................................... 13 2.2.2. Health and Nutrition........................................................................................ 14 2.2.3. Violence against Children................................................................................14 2.2.4. Orphans and Vulnerable Children................................................................... 153. International Standards.................................................................................................. 17 3.1. Measures for the Implementation of the UNCRC.................................................. 17 3.2. An Enabling Environment for Child Protection..................................................... 20 3.2.1. Child Protection............................................................................................... 20 3.2.2. Components of an Enabling Environment for Child Protection .....................214. Policy and Legislative Measures for the Implementation of the UNCRC in Ethiopia..26 4.1. Status of Ratifications.............................................................................................26 4.2. Constitution.............................................................................................................26 4.3. Major Legislation....................................................................................................27 4.3.1. Family Law......................................................................................................27 4.3.2. Criminal Law................................................................................................... 28 4.3.3. The Labour Proclamation................................................................................ 29 4.4. Policy Documents................................................................................................... 29 4.4.1. Developmental and Social Welfare Policy ..................................................... 29 4.4.2. The Criminal Justice Administration Policy....................................................30 4.4.3. National Action Plans...................................................................................... 30 4.4.4. Guidelines........................................................................................................ 31 4.5. The Institutional Framework...................................................................................335. Assessment.....................................................................................................................33 5.1. General Issues......................................................................................................... 33 5.1.1. Ratification.......................................................................................................33 5.1.2. Incorporation into the Legal System................................................................34 5.1.3. Status within the Hierarchy of Laws................................................................34 5.1.4. Justicibility of UNCRC Provisions..................................................................36 5.1.5. Regional Implementation.................................................................................37 5.2. Issues in the Current Level of Harmonization........................................................37 5.2.1. Definition of a Child........................................................................................ 37Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 2 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 5.2.2. General Principles of Child Rights..................................................................37 5.2.3. Civil Rights and Freedoms...............................................................................37 5.2.4. Child Health and Welfare................................................................................ 38 5.2.5. Education, Leisure and Cultural Activities......................................................38 5.2.6. Special Protection Measures............................................................................386. Conclusions and Recommendations..............................................................................387. References......................................................................................................................39Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 3 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 List of AcronymsUpdated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 4 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 Executive SummaryUpdated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 5 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 20101. IntroductionThe Ethiopian Human Rights Commission (EHRC) is a national human rights institutionestablished in accordance with Article 55(14) of the Constitution of the FederalDemocratic Republic of Ethiopia (FDRE) through Proclamation No 210/2000. Theestablishing law gives the EHRC extensive mandates to promote, protect and worktowards the realization of human rights in Ethiopia. More specifically, the duties andresponsibilities of the Commission include: educating the public to be aware of and claimits rights; seeing to it that the human rights are protected, respected and fully enforced;investigating complaints of human rights violations; and, recommending remedialmeasure where they are found to have been violated.The EHRC is a key human rights actor responsible for promoting, protecting andenforcing the fundamental rights of citizens and peoples of Ethiopia as enshrined in theFDRE Constitution and international human rights instruments. In line with itsorganizational vision, mission and values the EHRC particularly strives towards: − enhancing the capabilities of rights-holders to claim their rights through a participatory and empowering programming and governance framework; − building the capacities of key actors responsible for the realization of human rights through partnership across sectors and levels of intervention; and, − contributing towards addressing the structural causes of non-realization of recognized rights.In undertaking its duties and responsibilities the Commission has so far conductedimportant activities and programmes geared towards ensuring its role as the key humanrights institution within the country. One among the focal areas being addressed by theEHRC since its establishment is conducting research on the situation of groups vulnerableto and victimized by human rights violations as well as the status of their rights. One suchgroup is children. Accordingly, the Commission has decided to conduct an assessment onthe harmonization of national policies, laws and institutions with the applicable standardsof child rights in international and regional agreements ratified by Ethiopia. The findingsand recommendations of the assessment are expected to inform the programmes of theEHRC, especially in relation to legislative and policy recommendations to be submitted tothe appropriate government bodies, as well as those of its partners and other actors. 1.1. Purpose and ObjectivesThe assessment of the child rights framework aims at enabling the creation of acomprehensive national policy, legal and institutional framework for the protection andpromotion of child rights. To this end, the current activity aims at:Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 6 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 – Identification of international and regional child rights instruments ratified by Ethiopia; – Setting the international standards for the implementation of international and regional child rights instruments ratified by Ethiopia; – Review of measures taken to harmonize national policies, laws and institutional arrangements with the provisions of international and regional child rights instruments; and, – Proposing specific actionable recommendations for the EHRC and its partners in aligning the national child rights framework with applicable standards.This major research activity is expected to serve as a basis for legislative reform andlobbying activities to be conducted by the Commission and its partners during and afterthe current fiscal year, including the ratification of international human rights and childrights treaties not yet ratified. The lessons drawn from the assessment as well assubsequent activities will also serve as part of a model framework for similar activities tobe designed in subsequent planning periods. 1.2. Research ApproachThe development of the current report is primarily be guided by the organizational valuesof the EHRC. Based on standards drawn from the Ethiopian and international humanrights framework as well as good practices among national human rights institutions, thecore values of the EHRC are: – Commitment to human rights : The leadership and staff of the EHRC are committed to human rights principles and values recognized under the Ethiopian and international human rights frameworks in substance, methods, and organization. Such commitment shall in particular be owed to the Nations, Nationalities and Peoples of Ethiopia and the FDRE Constitution as an expression of their will. – Independence : With due regard for the status of the State as the primary legal duty bearer and non-state actors as moral duty bearers, the EHRC will maintain its organizational independence and seek to establish partnerships across sectors and levels for the design and implementation of the report. The EHRC’s relationships and dealings with human rights actors, stakeholders and rights-holders will be guided by equality, fairness mutual respect, non-discrimination and good-faith. The leadership and staff of the EHRC shall in particular uphold the public trust and demonstrate integrity in all their dealings with the public. – Impartiality and neutrality : The leadership and staff of the EHRC shall be, and shall be perceived to be, neutral and without personal or institutional bias in their duties. However, such neutrality shall not extend to the values of the EHRC and the public interest.Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 7 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 – Integrity : The leadership and staff of the EHRC will perform their official duties so as to conserve and enhance the integrity and objectivity of, as well as public confidence in, the Commission. In implementing this principle, they shall in particular avoid any form of discrimination or harassment that are contrary to law, either within or external to the Commission, ensure that their personal biases do not compromise the Commissions role in promoting human rights, ensure that there is no misuse of power or knowledge acquired through their position at the Commission, including no gain, profit, self-dealing, improper use of inside information, advancement or benefit accruing to them or members of their immediate family. – Transparency and public information : The Commission’s services, procedures and communications with the public will be clear, honest, respectful, transparent, fair, reasonable and consistent. The public has the right to receive accurate reports on the Commission’s processes, procedures and policies in a format that is understandable and accessible. As such, staff of the EHRC shall in particular ensure that information is accessible, user friendly, complete, understandable and truthful. – Information Security : Staff of the Commission shall ensure the security of printed and electronic information in their possession; disclosure of information through mass media shall be guided by the Commission’s policy guidelines and guidance provided by the Commissioners. In particular, Staff shall not knowingly take advantage of, or benefit from, information that is obtained in the course of their official duties and responsibilities, and which is not generally available to the public.In line with these core values of EHRC, the research approach adopted for this studyshould incorporate and reflect the following as key elements: – using the realization of human rights as guidelines, indicators and benchmarks for the assessment of the situation of rights holders, the design and implementation of interventions by key actors and stakeholders, and analysis of the structural (policies, laws, institutions, and practices) framework; – promoting the empowerment of rights holders through meaningful participation in the design and implementation of interventions, including the conduct of rights research; – promoting the involvement of key actors and stakeholders across sectors and levels and integration of the views and expertise; – mainstreaming of human rights across key program areas and institutional arrangements;Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 8 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 – evidence based human rights research involving the use of empirical data, whether qualitative, quantitative, administrative or events-based, which illustrate and document the respect for and implementation of human rights including how rights-holders are deprived of their rights, or alternatively how duty-bearers make efforts to fulfil human rights obligations; and, – strategic focus on building the capacities of rights holders to claim their rights, legal and moral duty bearers to fulfill their responsibilities and strengthening the policy and legal framework.Attention is also be given to protection issues and ethical considerations, includingconfidentiality, willingness, safety, health status, parent/community acceptance, freedomof expression, and any legal obligation to report abuse. 1.3. Key Research IssuesThe major research issues addressed during the assessment of the child rights frameworkare: – international and regional child rights instruments ratified by Ethiopia, including a review of child rights instruments not ratified and reservations to those already ratified; – harmonization of the national child rights framework, including constitutional provisions, domestic laws, policies and institutions, with the international and regional child rights commitments; and, – achievements, gaps and challenges in the implementation of laws, policies and institutional arrangements for the realization of child rights including the human rights monitoring system, national human rights institutions, and ad hoc arrangements established to monitor the situation of child rights.As an exercise in legislative review, this activity will not cover implementation issues otherthan those with structural implications.Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 9 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 20102. Background 2.1. Socio-Economic Context 2.1.1. EconomyThe Ethiopian economy is predominantly agricultural with the sector accounting for 85per cent of total employment as well as contributing approximately 42% of the totalgross domestic product (GDP) and 90 percent of export earnings in 2006.1 Until 2005,the share of the industrial sector has not exceeded 14% of GDP and the manufacturingsub-sector (cottage industry, small and micro enterprises and medium and large scalemanufacturing industries) constituted 5.5% of GDP and less than 5% total exports onaverage.2 In 2003/2004 the country recorded a GDP Growth of 11.6% mainly becauseagricultural production improved significantly following two consecutive drought years(2001/02-2002/03).3 The growth registered during the three years ending 2006 averaged10.7 percent.4 According to the International Monetary Fund (IMF), Ethiopia was thefastest growing non-oil driven African economy in 2007 with a 10.5% GDP growth. Thelargest contributor to GDP growth was agriculture, which accounted for approximately42% of the total GDP.5 The growth since 2006 has been broad-based, with industry,agriculture and services all expanding strongly.Despite improvements in the overall economy, a recent report indicated that 23% of thepopulation of the country still lives on less than one US dollar a day.6 The HumanDevelopment Index for 2006 ranked Ethiopia 170 out of the 177 countries while theHuman Poverty Index ranks the country 92 out of 95.7 The 2008 HDI for Ethiopia is0.406, which gives the country a rank of 169th out of 179 countries with data.8 Country Basic Facts YearPopulation, total (number) 73,918,505 20071 OECD, 2006 and AfDB/OECD, African Economic Outlook, 20082 PASDEP, 2005, pp. 149-1503 Ministry of Finance and Economic Development (MOFED), Development Planning and Research Department (DPRD), Annual Progress Report (2003/04), Addis Ababa, March 2005.4 MoFED, Dec. 20065 OECD, 20066 UNICEF, The State of the World’s Children, 20077 Government of Ethiopia-UNICEF: Country Programme Action Plan, 2007-20118 UNDP, 2008 Statistical Update: Ethiopia, Human Development Indices, 18 December 2008Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 10 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards” Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010Population, male (number/%) 37,296,657/50.5 2007Population, female (number/%) 36,621,848/49.5 2007Population, children aged 0-17 (number/%) 38,468,083/52.0 2007Population growth (annual %) 2.6 1994-2007Regional Population Tigray 4,314,456 2007 Afar 1,411,092 2007 Amhara 17,214,056 2007 Oromia 27,158,471 2007 Somali 4,439,147 2007 Benishangul Gumuz 670,847 2007 SNNP 15,042,531 2007 Gambella 306,916 2007 Harari 183,344 2007 Addis Ababa 2,738,248 2007Surface area (sq. km) (thousands) 1,104Life expectancy at birth, total (years) 55 2008Literacy rate, total 36 2003-2008Literacy rate, youth female (% of females ages 15-24) 38.5 1995-2005Prevalence of HIV, total (% of population ages 15- 2.1 200749)GDP (current US$) (billions) 17 2007GNI per capita, Atlas method (current US$) 280 2008Foreign direct investment, net inflows (% of GDP) 2.4 2005To reduce poverty, the Government is implementing its second national povertyreduction strategy, the Plan for Accelerated and Sustained Development to End Poverty(PASDEP) 2006-2010. To implement the PASDEP Ethiopia has become one of the fewcountries in the world that allocates more than one-half of its total expenditure forinvestment purposes. Its expenditure on pro-poor sectors as a share of total expenditure isalso one of the highest in Africa. Since the adoption of PASDEP there has been a clear shiftin the allocation of expenditure towards infrastructure development and provision ofbasic services. As a result, five sectors—education, health, water, sanitation, transport,agriculture and urban development—consumed nearly 62 percent of the generalgovernment budget in the 2008 financial year compared to 50 percent in 2003.9 2.1.2. HIV/AIDSEthiopia ranks among the countries significantly affected by the HIV/AIDS pandemic withan official adult prevalence rate of 3.5% in 2005.10 More recent estimates based on datafrom ANC surveillance and the Demographic and Health Survey (DHS)11 reflect a lesssevere epidemic with adult prevalence estimated at 2.1% in 2006/07 (7.7% urban, and9 UNCT report for the Universal Periodic Review of Ethiopia – Sixth Session of the UPR Working Group (30 November-11 December 2009)10 Federal Ministry of Health and the National HIV/AIDS Prevention and Control Office, AIDS in Ethiopia, Sixth Edition, September 2006, p. 2011 The two exercises produced national adult HIV prevalence estimates of 1.4% and 3.5% respectively.Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 11 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 20100.2% rural). The estimates for 2007 put the total number of people living with HIV at977,394. In 2005, a total of 277,757 persons, including 213,306 (76.8%) adults in theage group 15-49 years and 43,055 (15.5%) children in the age of 0 to 14 years, wereestimated to require ART.12 These numbers, which were anticipated to increase by around73,000 in 2010, reached an estimated 258,264 in 2007.There were an estimated 64,813 HIV positive children (0-14 years) in 2007, of which31,996 were female and 38,988 from urban areas. New HIV infection is also estimatedto be 14,148 for 2007 and 14,093 in 2008 and 14,140 in 2009, females only slightlybelow 50% in all cases. Similarly, annual AIDS deaths for children (0-14years) was10,825(5, 347Female) for 2007 with a projection of 9,284 (4,586Female) for 2008. Thedocument further provides that there were 75,420 HIV-positive pregnancies and 14,148HIV-positive births in 2007 This number is projected to rise to 90311 and 14276,respectively, in 2010. 13 The ART needs of children was estimated to be 15,716 for 2007and 17,264 for 2008 while it is projected to be 26,053 for 2010.14 2.2. Situation of ChildrenApproximately 52% of Ethiopia’s population is below 18 years old; with children 15 yearsof age accounting for 48% of the general population.15 The projected primary school agechildren (age 7-14) is estimated to reach 17.71 million in 201016 and the number ofchildren of secondary school age (15-18 years) is estimated to reach 6.8 million in 2010. Child Statistics YearUnder-5 mortality rate, 109 2008Infant mortality rate (under 1), 69 2008Annual no. of under-5 deaths (thousands), 321 2008Primary school net enrolment/ attendance (%), 45 2003–2008% of infants with low birth-weight, 20 2003–2008Single and double orphans (est. 5.5 2007 million)Street children (est. 600,000) 2005Children with disability (est. 700,000) 2008HIV positive children under age 14 (est. 64,813) 2007Children orphaned by HIV/AIDS (est. 855,720) 2010Child mothers (women/girls reported first pregnancy before age 18) 24.7% 2005Children in detention facilities (est. 1,500) 2007Child headed households (est. 77,000) 2008Child labour (5–14 years), total 53 1999–2008Child labour (5–14 years), male 59 1999–200812 AIDS in Ethiopia, 6th Edition, p. 2713 Ministry of Health, Single Point HIV Prevalence Estimate, June 200714 Ministry of Health, June 200715 DHS, 200516 CSA, 1998Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 12 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010Child labour (5–14 years), female 46 1999–2008Child marriage, total 49 2000–2008Child marriage, urban 27 2000–2008Child marriage, rural 55 2000–2008Birth registration, total 7 2000–2008Birth registration, urban 29 2000–2008Birth registration, rural 5 2000–2008Female genital mutilation/cutting, women a (15–49 years) , total 74 1997–2007Female genital mutilation/cutting, daughters, total 38 1997–2007Attitude towards domestic violence, , total 81 2001–2008 2.2.1. EducationIn 2005/06 out of the estimated 6,959,935 children of the appropriate age group (4-6)about 186,728 children have been reported to have access to pre-primary education in1,794 kindergartens all over the country. Since these data do not cover all schools (datafrom some NGO schools are not captured) total enrolment could be a little higher thanthe above figure. The Gross Enrollment Rate (GER) for kindergarten level is 2.7% in2005/06 which is a little higher than the previous year’s 2.3%. This means, 97.3 % of theeligible children at these level do not have access to pre-primary education. The level ofenrollment is therefore, negligible when compared to the appropriate age group.The number of primary schools, which has increased by 54.7% between 1997 and 2005or 12.6% annually, reached 21 thousand in 2006/07.17 As a result of wider availability,the primary school enrollment reached 14 million in 2006/07. The GER at national levelhas been increasing continuously reaching 91.6% for all children and 85% for girls in2006/07. On the other hand, the gender gap by GER has been decreasing except for the2006/07 academic year. Net Primary Enrollment ratio or enrollment for school agechildren (7-14) has increased from 77.5% in 2005/06 to 78.6% in 2006/07.The number of secondary schools has grown at an annual growth rate of 16.4% in recentyears reaching 971 in 2006/07.18 In 2005/06, 1,066,423 students were enrolled insecondary 1st cycle (grades 9-10). Out of the total enrollment, 387,707 (36.4%) weregirls. Second cycle secondary school intake capacity increased to 101,791 in 2006/07 form74,717 in 2005/06. In 2006/07 the national GER at secondary level reached 36.2% forfirst cycle and 5.3% for second cycle following a trend of annual increases. In the past sixyears, the GER at the first cycle of secondary (9-10) showed an increase of 16.3percentage points (23.3 and 12.7 percentage points for boys and girls respectively).Similar increase was observed in the second cycle though with more limited rate.However, the gender gap increased in favor of boys through out except for a 0.1%decrease at the second cycle in 2006/07. The NER of the first cycle of secondary (9-10)reached 13.2% in 2005/06 showing a 5.8 percentage point increase in five years. Despitethese improvements, the gender gap has shown a continuous increase except for2005/06.17 MoFED, PASDEP: Annual Progress Report, 2006-2007, p. 6318 MoFED, PASDEP: Annual Progress Report, 2006-2007, p. 65Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 13 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 2.2.2. Health and NutritionIn 2005, the overall prenatal mortality rate is 37 still births per 1000 live births whileinfant and child mortality rates stood at 77 and 123.19 The coverage for DPT3, Measles,and fully immunized children reached 73%, 65%, and 53% respectively in 2006/07though the coverage for DPT 3 showed slight decline compared to what has beenachieved in 2005/06.20 At country level, the share of children that suffer from stunting(chronic malnutrition) and wasting (acute malnutrition) stood at 47% and 11% while38% percent were under weight in 2004 (DHS, 2005). WMS reports show a consistentdecline in malnutrition over time; with a tremendous decrease in stunting in both urbanand rural areas. For instance, the rate of stunting in urban areas fell from 58% in 1996 to30% in 2004 and from 67% to 48% in rural areas.21 According to DHS 2005, anoverwhelming majority of births (94 percent) were delivered at home, compared to 95%in the DHS 2000. Five percent of births were delivered in a public facility and less thanone percent of births were delivered in a private facility. In rural areas 97 percent ofdeliveries are in the home, while in urban areas 57% of women gave birth at home. 2.2.3. Violence against ChildrenA study conducted by the African Child Policy Forum and Save the Children Alliancerevealed children remain vulnerable to different forms of abuse and violence inEthiopia.22 In its second five year report, the government concedes that child abuse andneglect is widespread in the country.23 The report further takes note of the absence ofsystematic data gathering and monitoring mechanism to indicate even crude estimate ofthe incidence of harmful traditional practices. The results of existing studies indicate theprevalence of all forms of sexual violence, especially rape, sexual harassment, abduction,child prostitution, trafficking in children for sexual purposes and early marriage, inEthiopia.24 This is confirmed by official crime statistics released by federal and state policeauthorities showing that sexual outrage (child sexual abuse) and rape are the mostprevalent offences as well as being on the increase.25 In 2004/2005 and 2005/2006, 64%and 55%, of the total victims of sexual abuse in Addis Ababa were children between theage of 11 and 18 years, followed by the 6-10 years age category.26 Studies also indicatethat children have been subject to humiliating physical punishment and psychologicalabuse at home, in school and in the community as well.27 There are also reports of trends19 CSA. ORC Macro: Ethiopia, Demographic and Health Survey (2005), August 200620 MoFED, PASDEP: Annual Progress Report, 2006-2007, p. 6721 CSA: Welfare Monitoring Survey, 200422 The African Child Policy Forum & Save the Children Sweden , Violence Against Children in Ethiopia, 200623 The Second Five Year Country Report on the Implementation of the UN Convention on the Rights of the Child, April 2005 , p.3324 Government of Ethiopia, Report on Progress in Implementing the World Fit for Children Plan of Action in Ethiopia, Addis Ababa, June 2007, p. 5825 Ministry of Labor and Social Affairs, National Action Plan on Sexual Abuse and Exploitation of Children (2006 - 2010), December 2005, pp. 9 - 1026 JJPO and Save the Children Sweden: Sexual and Physical Abuse and Violence against Children and Youth in Addis Ababa. Survey Report(unpublished)Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 14 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010showing increasing incidences of trafficking in children for sexual purposes, childprostitution and forced prostitution in and outside of the country.28 2.2.4. Orphans and Vulnerable ChildrenThe Standards of Services for Orphans and Vulnerable Children in Ethiopia,29 which wasdeveloped in the context of the HIV/AIDS response, defines an orphan as a child 0-17years old who has lost one or both parents and OVC as “a child from 0-17 years old whois either orphaned or made more vulnerable …”. According to this document avulnerable child may be characterized by HIV-positive status, lack of adequate adultsupport, living outside family care, or being a target of stigma and discrimination. Thus, aworking definition of OVC in the Ethiopian context refers to children whose rights to careand protection are being violated or who are at risk of those rights being violated as aresult of the death of their parents or other factors that put them in such a situation.Within Ethiopia 5.5 million children are categorized as orphans or vulnerable children(OVC), constituting around 6% of the total population of the country or almost 12% ofEthiopia’s total child population.30 Over 83% of these OVC are living in rural settings.The HIV/AIDS pandemic has fueled a rise in the number of orphaned and vulnerablechildren. In 2007, the number of children orphaned by HIV/AIDS was reported at898,350 among a total of 5,441,556 orphans. 31 The total number of AIDS orphans inEthiopia is projected to increase until 2010 although the rate of increase is expected tolessen due to the impact of the planned ART services with the number of orphans in ruralareas exceeding that of urban areas.32 Based on these projections, the total number oforphans would have increased to 5,459,139 in 2008 and to 5,453,313 in 2009 with therespective estimates of 886,820 and 855,720 for AIDS orphans. Another significant resultof the HIV and AIDS epidemic is the increasing number of child-headed households;currently estimated to be 77,000; the second highest number in Sub-Saharan Africa33 It isestimated that 13 percent of children in the country have lost one or both of their parentsfor various reasons.34 Moreover, the 2005 Ethiopian Demographic Health Surveyestimates that 18% all Ethiopian households are presently caring for an orphan.27 The African Child Policy Forum & Save the Children Sweden , Violence Against Children in Ethiopia, 200628 See: MoLSA, National Action Plan on Sexual Abuse and Exploitation of Children (2006 - 2010), December 2005; IOM, Assessment of the Magnitude of Trafficking in Women and Children Within and Outside Ethiopia, 2006; and WVE, Trafficking in Children from Chenca, 200629 PEPFAR: Draft Standards of Services for Orphans and Vulnerable Children in Ethiopia, Quality OVC PEPFAR Programming July 31, 2007, pp. 4-530 SCUK, Summary of Legal and Policy Frameworks governing orphans and vulnerable children in Ethiopia, 200931 MOH, Single Point HIV Prevalence Estimate, June 200732 The estimated number of orphans in urban areas has been greater than that in rural areas up to 2003; however, beginning in 2004, the number of orphans in rural areas is expected to exceed that in urban areas.33 African Child Policy Forum, 200834 SCUK, Legal and Policy Frameworks governing orphans and vulnerable children in Ethiopia, 2008Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 15 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010The Ministry of Labor and Social Affairs has reported the existence of some 150,000children live on the streets in Ethiopia of which about 60,000 live in the capital35. Otherestimates report a much higher number. For example in the Third Supplementary reportto the Committee on the Rights of the Child, in Ethiopia36, it was stated that there wereapproximately 200,000 street children in the Ethiopian urban areas, of which 150,000reside in Addis Ababa. UNICEF estimated there were 600,000 thousand street children inthe country and more than 100 thousand in Addis Ababa.37A recent study by Save the Children Sweden estimates that there are nearly 700,000children with disabilities in the country, with the most common disability associated withmobility challenges (55%), intellectual (13%), visual (12%) and hearing (9%)38. This studyfound that about 11% of the respondents are drop-outs and the remaining 29% are notenrolled at all. Another study conducted by Handicap National in Addis Ababa39 alsopoints out that out of the total CwDs surveyed, 2,597(49.3%) are not currently attendingschool and most lack access to skills training and health care services. The vulnerability ofCwDs to various forms of abuse, neglect and exploitation was also confirmed by thesestudies with around 12% of the children participating in the SCS study reporting exposureto sexual abuse especially by close relatives, friends and neighbors.40A 2005 survey41 showed that there are an estimated 77,000 child-headed householdswith no accompanying adults. According to a study commissioned by the African ChildPolicy Forum, the majority of child-headed households were found to be headed bychildren between the age of fourteen and eighteen and that the average size of a childheaded household was found to be three42. The study further adds that children growingup in child-headed households face many challenges and deprivations including difficultyin getting food and shelter, serious threats to their education because of poverty, a higherrisk of being sexually abused by neighbors and relatives, more child prostitution and childlabor, and more likelihood of pursuing life on the street.One study by Prison Fellowship Ethiopia points out that children below the age of 18detained in all the 120 prisons all over the country could be 2% of the total saying that:“The number of inmates in all these prisons is approximately 70,000 and the number ofchildren in conflict with the law could reach up to 1500.43 The ACPF and UNICEF studyfurther points out that, at the time it was gathering data (April-July 2007) the number of35 Quoted in the Report on Progress in Implementing the World Fit for Children Plan of Action in Ethiopia Addis Ababa June 2007 page 5536 CRDA, Supplementary Report of NGOs on the Implementation of the Convention to the Rights of Children in Ethiopia: A Supplement to the Third Five-Year Country Report of Ethiopia Compiled by The Children and Youth Forum of the Christian Relief and Development Association37 US State Department Report on Human Rights Practices in Ethiopia 200538 Save the Children Sweden, Situation Analysis of Children with Disabilities, 200839 Handicap National: Situation Analysis of CwDs in Addis Ababa 2007, p.1540 Save the Children Sweden: A Situation Analysis of Disabled Children in Ethiopia, December 2008(unpublished)41 CSA, Child welfare survey, 200542 African Child Policy Forum: Reversed roles and stressed Souls,2008Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 16 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010children detained in the Addis Ababa Rehabilitation Institute for Juvenile Delinquentswere totally 71 children, with 59 boys and 12 girls. It also points out that at that timechildren constitute a significant fraction of persons deprived of their liberty in most of thedetention facilities covered by the study.44 To that effect it adds that out of a total of1346 prisoners, 148 (11%) were children in Debre Berhan prison, children aged 15-18constitute about 70% of the detainees in the police station in Ziway and out of about900 prisoners, children account for about 20–30 percent of the total population ofprisoners in Awassa. The report of CPUs in Addis Ababa also shows that significantnumber of children come in conflict with the law. For instance, in 2008 FSCE ChildProtection Program has reported that a total of 1174 children (235F) have been reportedto all CPU in Addis Ababa as children in conflict with the law. 453. International Standards 3.1. Measures for the Implementation of the UNCRCWhen a State ratifies any binding international agreement it takes on obligations underinternational law to implement it. Generally, the basic obligations of States Parties to aninternational instrument relate to three mutually supporting obligations: obligation torespect, obligation to protect and obligation to fulfill. However, most agreementscomplement this international law framework on the obligations of states byincorporating specific provisions on measures of implementation.Like most international human rights instruments, the CRC has provided for specificmeasures for the implementation of its substantive provisions. Article 4 of theConvention, which is the basic implementation provision, requires States parties to take“all appropriate legislative, administrative and other measures” for implementation of therights contained therein. In addition, Article 42 creates the obligation the obligation tomake the content of the Convention widely known to children and adults while Article44, paragraph 6 binds States to make reports widely available within the State. Inaddition to these provisions, other general implementation obligations are set out inarticle 2: “States parties shall respect and ensure the rights set forth in the presentConvention to each child within their jurisdiction without discrimination of any kind …”.Examination of general comments, concluding observations, recommendations andexamination of periodic reports indicate that the Committee has identified what it hastermed “general measures of implementation” as deserving particular attention. Thesegeneral measures of implementation include legislation, the establishment of coordinatingand monitoring bodies - governmental and independent - comprehensive data collection,awareness-raising and training and the development and implementation of appropriatepolicies, services and programmes. The establishment of independent child rights43 Justice for All-Prison Fellowship Ethiopia: The Situation of Children in Ethiopian Prisons. ACPF and UNICEF: Children in Prisons and Detentions Centers in Ethiopia: the Way Forward..(2007)Page 2144 Which includes Addis Ababa Remand Home and prison facilities in Dessie, Jimma, Ambo, Ziway, Awassa and Bahir Dar45 FSCE: Annual Progress Report 2008.Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 17 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010institutions within the government structure including ministers for children, inter-ministerial committees on children, parliamentary committees, children’s ombudspersonsand children’s rights commissioners was even the subject of a separate general commentby the Committee. The formation of NGO coalitions on children’s rights as well as thedesign of child impact analysis, children’s budgets and “state of children’s rights” reportswas also given specific attention among these general measures of implementation.As part of its consideration of general measures of implementation, and in the light ofthe principles of indivisibility and interdependence of human rights, the Committee onthe Rights of the Child consistently urges States parties, if they have not already done so,to ratify the two Optional Protocols to the Convention on the Rights of the Child (on theinvolvement of children in armed conflict and on the sale of children, child prostitutionand child pornography) and the six other major international human rights instruments.A country ratifying a UN human rights treaty agrees to respect and implement withindomestic law the rights the treaty covers. States parties need to ensure, by all appropriatemeans, that the provisions of the Convention are given legal effect within their domesticlegal systems. Though it does not necessarily agree to make the human rights normdirectly enforceable in domestic courts, the State Party agrees to review its laws and issueimplementing legislation. In ideal cases the Convention is incorporated into domestic lawso that that the provisions of the Convention can be directly invoked before the courtsand applied by national authorities and that the Convention will prevail where there is aconflict with domestic legislation or common practice. Where a State delegates powers tolegislate to federated regional or territorial governments, it must also require thesesubsidiary governments to legislate within the framework of the Convention and toensure effective implementation.For rights to have meaning, effective remedies must be available to redress violations.This requirement is implicit in the Convention and consistently referred to in the other sixmajor international human rights treaties. Children’s special and dependent status createsreal difficulties for them in pursuing remedies for breaches of their rights. So States needto give particular attention to ensuring that there are effective, child-sensitive proceduresavailable to children and their representatives. These should include the provision ofchild-friendly information, advice, advocacy, including support for self-advocacy, andaccess to independent complaints procedures and to the courts with necessary legal andother assistance. Where rights are found to have been breached, there should beappropriate reparation, including compensation, and, where needed, measures topromote physical and psychological recovery, rehabilitation and reintegration, as requiredby article 39.Finally, the Committee on the Rights of the Child has in its general comments, concludingobservations, recommendations and examination of periodic reports identified a broadcategory of measures. This catch-all group of administrative and other measures includethe following: – Developing a Comprehensive Strategy: The development of a unifying, comprehensive and rights-based national strategy or national plan of action forUpdated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 18 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 children that is relevant to the situation of children, covering all the rights in the Convention and developed through a process of consultation. – Coordination of implementation of children’s rights: Coordination among central government departments, among different provinces and regions, between central and other levels of government and between Government and civil society to ensure respect for all of the Convention’s principles and standards for all children within the State jurisdiction and to ensure that the obligations inherent in the Convention are recognized across government agencies. – Monitoring the Implementation of the CRC: Ensuring that the best interests of the child are a primary consideration in all actions concerning children (art. 3 (1)), and that all the provisions of the Convention are respected in legislation and policy development and delivery at all levels of government through a continuous process of child impact assessment46 and child impact evaluation47. – Data collection and analysis and development of indicators: Collection of sufficient and reliable data on children, disaggregated to enable identification of discrimination and/or disparities in the realization of rights. – Making children visible in budgets: In its reporting guidelines and in the consideration of States parties’ reports, the Committee has paid much attention to the identification and analysis of resources for children in national and other budgets. – Training and capacity-building: Developing training and capacity-building for all those involved in the implementation of child rights - government officials, parliamentarians and members of the judiciary - and for all those working with and for children. – Cooperation with civil society: Implementation is an obligation for States parties, but needs to engage all sectors of society, including children themselves. – International cooperation: Article 4 of the Convention emphasizes that implementation of the Convention is a cooperative exercise for the States of the world. – Independent human rights institutions: The establishment of independent human rights institutions falls within the commitment made by States parties upon ratification to ensure the implementation of the Convention and advance the universal realization of children’s rights.46 Predicting the impact of any proposed law, policy or budgetary allocation which affects children and the enjoyment of their rights47 Evaluating the actual impact of implementationUpdated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 19 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 – Making the Convention known to adults and children: Under Article 42 of the Convention States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike. – Making reports under the Convention widely available: Article 44/6/ of the Convention states that States Parties should make their reports widely available to the public in their own countries. 3.2. An Enabling Environment for Child Protection 3.2.1. Child ProtectionThe term ‘child protection’ is used to refer to different concepts depending on thepurposes and contexts in which the author intended to apply it. In the context of childrights it normally means protection from violence, abuse and exploitation as a corollaryto a child’s right not to be subjected to harm. Children’s rights to protection fromviolence, abuse and exploitation are clearly laid out in international law, the legalstandards of regional bodies and in the domestic law of most if not all countries in theworld. International human rights instruments such as the UDHR, ICCPR and ICESCRrecognized the human right to be free from violence, abuse and exploitation foreveryone, including children. In 1989, the United Nations Convention on the Rights ofthe Child was adopted by the General Assembly as a reflection of international consensuson the need for an international instrument explicitly and specifically addressing the rightsof children. The UNCRC, which is the most widely ratified human rights treaty in history,gave legal force to standards set out in earlier instruments and introduced new conceptsincluding the principles of child participation and best interest of the child. The creationof the Committee on the Rights of the Child is another innovative aspect of theConvention.Article 19 of the Convention provides for the rights of the child to be protected from: “allforms of physical or mental violence, injury or abuse, neglect or negligent treatment,maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legalguardian(s) or any other person who has the care of the child.” The broad descriptions ofthis provision are further elaborated in other provisions of the Convention dealing withprotection from specific forms of abuse and exploitation. These include: – protection from torture or other cruel, inhuman or degrading treatment or punishment (Article 37); – corporal punishment in schools (Article 28/2); – economic exploitation of the child, including child labor (Article 32); – the use of children in the illicit production and trafficking of narcotic drugs and psychotropic substances (Article 33);Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 20 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 – the abduction, sale or traffic of children for any purpose or any form (Article 35); – all other forms of exploitation prejudicial to any aspect of the child’s welfare (Article 36).These provisions of the UNCRC are supplemented by a number of international andregional human rights instruments recognizing the child’s rights to protection from thevarious forms of abuse and exploitation. These include: – The African Charter on the Rights and Welfare of the Child (1990); – International Labour Convention No. 138 (1973) on minimum age; – International Labour Convention No. 182 (1999) concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour – The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children to the UN Convention on Transnational Organized Crime (2000)The two Optional Protocols to the Convention on the Rights of the Child (on theinvolvement of children in armed conflict and on the sale of children, child prostitutionand child pornography) are also important elements of the international child protectionframework. 3.2.2. Components of an Enabling Environment for Child ProtectionThe characteristic features of a protective environment context for children include thefollowing legal, political and social elements. – Political commitment: The Commitment of the State to fulfilling protection rights of children is an essential element for a protective environment. – Policies, Legislation and enforcement: An adequate legislative framework, its consistent implementation, accountability and a lack of impunity are essential elements of a protective environment. – Social support: Societies where attitudes, traditions, customs, behavior and practices work against all forms of violence against children, and promote respect for the rights of children contribute most to a protective environment for children.In this context, the State and society have recognized their duty to safeguard theprotection of children and put in place an enabling political, legal and social environmentto fulfill such duty. Provided that children are empowered to become active agents inprotecting their rights and capacity limitations are addressed, these three elements wouldensure that children’s protection rights are realized.Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 21 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010a) Political CommitmentRatification of international and regional legal instruments dealing with child protection isan important initial step in express political commitment to child protection. The formalact of ratification through which a state becomes party to an international instrumententails assumption of obligations towards the realization of the rights contained therein.While important in itself, this expression of commitment is not a one-off act on the partof the state. Rather, as a State Party to the specific convention, the governmentundertakes an ongoing obligation to present reports on the status of implementation ofthe Convention. For instance, once a country has become party to the Convention on theRights of the Child, initial report and subsequent periodic reports are submitted in to theUN Committee on the Rights of the Child in accordance with the periodicity establishedin the Convention. States also undertake to ensure that proper follow-up to the reportand the Committee’s recommendation on the country report is carried out. Relatedcommitments of states having ratified the UNCRC also include: – Ensuring wide dissemination of information on children’s rights including availability of the Convention in the national languages; – Making reports under the Convention and other documentation of the examination of their reports under the Convention widely available to the public in their own countries including through translation into all languages and into appropriate forms for children;Another expression of political commitment is the allocation of adequate resources forchild protection. Expression of such commitment starts with making children visible innational and other budgets so that the State can determine whether it is fulfillingchildren’s rights “to the maximum extent of … available resources”. This would alsoenable the State to ensure that budgetary decisions are made with the best interests ofchildren as a primary consideration. The next step is ensuring that ggovernmentcommitments regarding child protection issues match the protection needs of children asidentified in data and analysis and are reflected and adequately funded in the nationalbudget. The allocation of resources includes both financial resources as well as the timeand energy of different institutions and branches of government. Other importantexpressions of political commitment include: – establishment of independent human rights institutions to monitor independently the State’s compliance and progress towards implementation and endeavor towards the full realization of children’s protection rights; – ensuring collection of reliable, comprehensive and disaggregated national data on child protection issues for an accurate appraisal of children’s needs and the development of appropriate responses; – encouraging and facilitating the involvement of children and young people advocates and actors for their own protection;Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 22 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 – building coalitions, providing leadership and support, and identifying opportunities for collaboration with civil society and international partners for child protection; – active participation in international efforts to promote respect for children’s rights;In more general terms, political commitment is expressed through prioritizing childprotection issues in the national policy agenda.b) Policies and LegislationA country ratifying an international or regional human rights agreement agrees to respectand ensure, by all appropriate means, that the provisions of the Convention are givenlegal effect within their domestic legal systems and policy frameworks. Harmonization ofnational legislation with international standards on child protection often starts withmeasures incorporating protection principles and standards into the national constitution.Such constitutional recognition provides a firm basis for further harmonization since theconstitution serves as the framework for other legislation.Once child protection principles are enshrined in the constitution, the next step is todevelop and adopt national legislation to the constitutional standards. Typically, thisinvolves national legislation setting the principles, objectives and priorities for nationalaction to ensure child protection in line with international and constitutionalcommitments. The substantive legislation then forms the basis for subsequent lawsproviding for subsidiary rules for the implementation of child protection standards as wellas the establishment and mandating of institutions responsible for the implementation ofchild protection laws and policies. The same results may also be achieved through aprocess of legislative reform involving a review of national laws and standards pertinentto child protection to see if they meet the protective provisions of internationalinstruments to which States are party. In addition to compliance with applicablestandards, such reviews can identify gaps in the existing legislation on the protection ofchildren and identify, quantify and analyze violations of the rights of children that needto be addressed. As such, the research can make an important contribution towardslegislation that is well adapted to the socio-economic and cultural context for childprotection.Parallel measures of implementation to harmonize the national policy framework withinternational commitments ideally involve the development of a unifying, comprehensiveand rights-based national strategy or national plan of action for children that is relevantto the situation of children, covering all their rights and developed through a process ofconsultation. Such a policy or strategy would involve the development of indicatorsrelated to the rights, establish effective systems for data collection to assess progress inimplementation, to identify problems and to inform policy development, mechanisms forUpdated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 23 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010coordination among key actors, and process for child impact assessment48 and childimpact evaluation49.In conclusion, a comprehensive legal and policy framework for child protection comprisesof laws, policies, strategies and plans on: – prevention of abuse and exploitation of children at home, in the community, in schools, in child care institutions and other contexts; – systems for the identification of victims, reporting suspected instances, investigate allegations of child abuse and neglect and assess the child and family; – a framework of child protective legislation and a judicial system that is separate from but integrated with the laws and systems that respond to criminal behavior; – procedures to provide immediate safety for the child and longer-term alternative care when required; – assistance and support for the child victim, family members, and perpetrators of abuse and exploitation; and – an overall system of coordination among the many stake-holders involved.Ideally, such a framework will be set out within the text of comprehensive legislativeand/or policy documents dealing with child protection or child rights in general such as achildren’s act, children’s policy or a national plan of action on children/child protection.c) Social SupportThough the State is the primary duty bearer assuming obligations under internationalchild rights instruments, the role of other actors in providing for a protective environmentfor children is also essential. These actors include parents or guardians of the child,educational and other institutions responsible for the care of the child, service providersand community members. The roles of parents and guardians are especially recognized inthe relevant child rights standards including the UNCRC.Societal attitudes or traditions may facilitate or hamper the protection of childrendepending on whether violations are tolerated or abhorred. For instance, severe corporalpunishment and child labor draw upon conception of childhood while the practice ofHTPs or gender-based violence against girls reflects gender perceptions. In such cases, theobligations of the State to protect children against abuse and neglect, including abusehappening within the family, as well as other caring environments, such as foster care,day care, schools, and institutions comes into play.50 The government is thus expected to48 Predicting the impact of any proposed law, policy or budgetary allocation which affects children and the enjoyment of their rights49 Evaluating the actual impact of implementation50 Article 19 of the Convention on the Rights of the ChildUpdated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 24 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010take “all appropriate legislative, administrative, social and educational measures” toensure social support for the protection of children.On the other hand, communities could also make positive contributions to the protectionof children in various ways. This may come about pre-existing positive values andstructures that can be used to promote the rights of children. Cases in point includetraditional or religious arrangements for the care of children such as extended families andadoption of children under Islamic law. Even where the initial social context is notprotective of children, community actors could be sensitized and engaged towards thecreation of social support for child protection. The role of community based institutionsand structures, community leaders, and children’s structures are especially important inthis respect.Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 25 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 20104. Policy and Legislative Measures for the Implementation of the UNCRC in Ethiopia 4.1. Status of RatificationsEthiopia ratified the Convention on the Rights of the Child in 1992 through Proclamation10/1992.51 General human rights instruments ratified by Ethiopia include the Conventionfor the Suppression of the Traffic in Persons and the Exploitation of the Prostitution ofOthers, the International Covenant on Economic, Social and Cultural Rights, theInternational Covenant on Civil and Political Rights, and the Convention on theElimination of all Forms of Discrimination Against Women (CEDAW). The Ethiopiangovernment has also ratified the ILO Conventions No. 29 (Forced Labour), No. 182(Prohibition and Immediate Action for the Elimination of the Worst Forms of ChildLabour), No.138 (Minimum Age Convention), No. 181 (The Private Employment AgenciesConvention), No. 105 (The Abolition of Forced Labour Convention), and No. 111(Discrimination in Employment and Occupation). Ethiopia has signed the OptionalProtocol to the Convention on the Rights of the Child on the Involvement ofChildren in armed conflict52 on 28 Sep 2010. However, the optional protocol hasyet to be ratified by the House of Peoples’ Representatives.53 4.2. ConstitutionThe 1995 Constitution of the Federal Republic of Ethiopia has an in-built mechanism ofincorporating international laws as it has provisions which makes all internationalagreements ratified by Ethiopia part of the law of the land. Article 13/2 of theconstitution has a specific provision for international human rights instruments such as theUNCRC, UNDHR, ICCPR, and ICESER which also provide standards for theinterpretation of the Constitution in matters related to fundamental human rights.The FDRE Constitution enumerates fundamental rights and freedoms under its Chapter IIIcovering the whole range of human rights consistent with the substance of theinternational bill of rights. The general provisions of the Constitution on security of theperson (Article 16) and prohibition of inhuman treatment including forced labor, slavery,servitude and trafficking in persons (Article 18) are especially important in the context ofchildren. The right to equal access to publicly funded social services and thecorresponding obligation of the State to allocate the necessary resources have also beenrecognized (Article 41/3 and 4, and Article 90/1). These general provisions are applicable51 The Ethiopian government also ratified the African Charter on the Rights and Welfare of the Child on 4th of July 2000 by virtue of Proclamation 283/2000.52 Adopted 25 May 2000 and came into force 12 February 200253 The ratification of the OP already signed is among the recommendations accepted by the government of Ethiopia during the UPR process. This has reportedly led to the initiation of a process to do so within the HPR.Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 26 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010to all persons, including children, without discrimination as per article 25 of theConstitution on non-discrimination and equality before the law. The Constitution alsoprovides specifically for the rights of children under article 36.Article 36 of the Constitution explicitly recognizes several rights of the child namely therights of the child to life, name and nationality, to know and be cared for by parents orlegal guardians, to be protected from labor exploitation and not to be forced toundertake work that may harm his or her education, health and well-being, to be freefrom harsh or inhuman punishment that may be inflicted on his body, in schools or childcare institutions. Article 36(2) of the Constitution goes beyond recognition of specificchild rights and incorporates the principle of best interest of the child. This provisionprovides that the best interest of the child shall be the primary consideration in all actionsconcerning children by public institutions, courts of law, administrative authorities orlegislative bodies. Another relevant constitutional provision, Article 41/4, dealing witheconomic and social rights states that, “The State shall, within available means, allocateresources to provide rehabilitation and assistance … to children who are left withoutparents or guardian.” 4.3. Major LegislationUpon ratifying an international agreement, States are obliged to make a comprehensivereview of all domestic legislation and related administrative guidance to ensure fullcompliance with the convention. States should ensure by all appropriate means that theprovisions of the convention are given legal effect within their legal system. In thisrespect, Ethiopia has taken some major steps to harmonize its domestic laws with theprovisions of the CRC. As discussed above, these efforts start with the federal constitutionadopted in 1995 which contains provisions for the domestication of international humanrights agreements including the CRC and specifically incorporates some of the rightsrecognized in the Convention. Measures have also been made to harmonize some specificlaws with the standards of international laws including CRC. As part of a comprehensivelaw reform program, the Ethiopian government has revised a number of key legislationsrelevant to the realization of child rights. These include the Revised Family Code (2000)and the Criminal Code (2005). 4.3.1. Family LawThe Revised Family Code of the Federal Democratic Republic of Ethiopia (ProclamationNo. 213/2000) 54 was adopted to replace the family law provisions of the Civil Code of1960. The Code contains general provisions recognizing the ‘proper care and well beingof children’ as the basis for decisions under the Code, defining a child (Article 215),providing for the health, education and upbringing of the child (Articles 257, 260, and258), adoption (Articles 180-194) and institutional care (Article 229). The Family Codehighlights the lines of family relationship that are responsible to provide care and supportto children who have lost their parents. Where the parents of the child are not in a54 This Code is applicable only federally, in Addis Ababa and Dire Dawa City administrations. Yet, most of the other regions have adopted more or less the same provisions under their respective Regional family codes.Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 27 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010position to take care of their children, the responsibility to take care of an orphan is thegrandparents’. If the orphan does not have grandparents, the responsibility would go toolder sisters and brothers.55 The last available resort provided by the Revised Family Codeis that the orphan children would be sent to institutions.56 The issue of birth registrationhas also been covered in relation to proof of age (Articles 2/7 and 155) and record ofbirth (Article 154) and registration of civil status (Article 321). These provisions imposeobligations on the Federal Government to establish the institutions for theimplementation of the birth registration regime and give official recognition to certificatesof civil status issued by an appropriate authority until the Government does so (Article321/1 and 2).The recognition of the welfare and wellbeing of children as the principle guiding thecompetent authorities is elaborated through detailed provisions of the RFC directing courtaction in family matters. These include decisions relating to appointment or removal ofpersons responsible for the care of a child (Article 249), approval of divorce (Articles80/3 and 82/6), custody of children upon dissolution of marriage (Article 113/2), andsimilar disputes within irregular union (Article 114). The Revised Family Code has furtherincorporated the principles of the best interests of the child and child participation. Article113 of the Code directs the court to take into account the age and interests of children indetermining the custody and maintenance of children upon the dissolution of marriage. Italso provides for the views of the child to be considered in the decision. Similarly, theprovisions of the Code on adoption and the appointment and removal of guardians andtutors direct the Court to consult the child and seriously consider the childs opinions.Article 194 (2) of the same Code provides that the court shall decisively verify theadoption is to the best interest of the child before an agreement of adoption. In someinstances if the court requires additional information it may order the MoWA to collectfurther evidence.57 4.3.2. Criminal LawThe Criminal Code of the Federal Democratic Republic of Ethiopia (Proclamation No.414/2004) came into force in 2005 replacing the Penal Code, which was in force since1949. The provisions of the Code criminalize and stipulate serious penalties for thevarious forms of abuse and exploitation against children. These include infanticide (article544), rape (articles 620-628), sexual outrage (articles 626-631), abduction (articles 587-590), female genital mutilation (article 565 and 566), early marriage (articles 648 - 649),endangering the lives of or causing bodily injury to pregnant women and children (article561-563), maltreatment, neglect and negligent treatment (articles 576, 658-659),exposure to imminent danger or abandonment of a child (article 574), omission toregister the birth of an infant or failure to report an abandoned infant (article 656),trafficking in children and child labor (articles 596, 597 and 635), and prostitution ofanother for gain (articles 604 and 634). In addition to criminalizing forms of violenceagainst children not covered by the old Penal Code, the Criminal Code has redefined theelements of some existing offences, added aggravating circumstances and revised the55 Article 220 and the following of the Revised Family Code56 Article 220 and the following of the Revised Family Code57 Article 193 of the Revised Family CodeUpdated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 28 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010penalties applicable in cases of violation. New provisions on concurrence of offences andthe liability of institutions have also been included. 4.3.3. The Labour ProclamationProclamation number 377/2003, i.e. the Labor Code applicable to employmentrelationships within the private sector, explicitly prohibits the employment of childrenbelow the age of 14 years (Article 89/2). It also provides special protections for childworkers between the ages of 14 and 18 including prohibition of employment to performwork whose nature or the circumstances under which it is to be carried out is harmful tothe life or health of the young worker (Article 89/3). The Code sets the maximumworking hours for young workers at seven hours a day (Article 90) and precludes theemployment of young workers for night work, overtime work, work on weekly rest daysand on public holidays (Article 91). Furthermore this law requires the Ministry of Laborand Social Affairs to prescribe the schedules of dangerous operations that are not to beperformed by persons below the age of 18 (Article 89/4). The proclamation finallyprescribes penalties for contravention of its provisions by the employer under articles 183– 187. The penalty provision relevant to our discussion, article 184 (1), addresses threeacts of violation by the employer: violation of provisions relating to working hours;violation of provisions on weekly rest days; public holidays or leaves; and, violation ofthe duty to inform the Ministry upon the suspension of the contract of employment. 4.4. Policy DocumentsEthiopia has yet to have a single comprehensive policy dealing with the rights of children.However, child rights concerns are addressed in the various policy documents on relatedmatters. One among these instruments is the Developmental and Social Welfare Policy(1996) which, among other objectives, aims at implementing international standardsrelating to the welfare of children. The cultural policy of Ethiopia also addresses the issueof eradicating harmful traditional practices affecting children. Similarly, the NationalYouth Policy, National Education Policy, and the Policy on have dealt with issues ofdirect relevance to child rights. In addition to these policy documents, a set of nationalaction plans relevant to the promotion and protection of rights of children are inexistence. These include the National Programme of Action for Children and Women(1996 - 2000), the National Plan of Action on Orphans and Vulnerable Children (2004 –2006), the National Plan of Action for Children (2003 – 2010) and the National ActionPlan on Sexual Abuse and Exploitation of Children (2006 - 2010). Other issues on whichthe development of national action plans are reportedly underway include child laborand Civil Registration and Vital Statistics Systems. Two guidelines developed andpublished by MoWA recently are also important for child rights. 4.4.1. Developmental and Social Welfare PolicyThe most relevant policy for the welfare and protection of children is the Developmentaland Social Welfare Policy, which was issued in 1996 by the Ministry of Labor and SocialAffairs. The policy explicitly affirms the commitment of the Ethiopian Government toensuring the welfare of, especially the disabled, the elderly, as well as that of orphanedand abandoned children. The Policy further addresses issues related to protection againstUpdated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 29 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010child abuse and neglect, care and support to vulnerable children, and support to childcare institutions. Regarding the welfare of children, the policy is committed toimplementing all international standards and to provide appropriate and comprehensiveservices to children to ensure their development. The Policy directs the State to makeevery effort to create an environment conducive to addressing problems of children inespecially difficult circumstances, promote conditions that will enable orphaned andabandoned children to get assistance, and find appropriate and effective ways and meansof dealing with the problems of children with physical and mental impairments. Inrelation to institutions for the care and education of children the emphasis of the Policy ison promoting child-development-oriented care and services to children through supportand incentives, and support to the establishment and operation of child welfare anddevelopment organizations and services by appropriate organs of government,communities, non governmental agencies, voluntary associations and individuals. 4.4.2. The Criminal Justice Administration Policy 4.4.3. National Action PlansThe National Plan of Action for Children for the period 2003-2010 and beyond, whichbecame operational in June 2004, is a comprehensive policy document addressing issuesrelated to education, health, HIV/AIDS, and protection of children against abuse andexploitation. The Plan aims at protecting children from abuse, exploitation and violence,improving the situation of children under difficult circumstances, and assisting OVC in thecontext of HIV/AIDS. Specific goals, strategies, activities and indicators have been outlinedin the document under each of the three objectives. The NPA defines children underdifficult circumstances as “children who are without adequate or no family support andare in need of some socio-economic assistance”. The limitation of the document is that itis too general and it has not been effectively implemented by the Government and othernon-state actors.The National Action Plan on Sexual Abuse and Exploitation of Children (2006-2010),which was issued by MoLSA in 2005, provides for interventions to prevent and respondto sexual abuse and exploitation of children. Aiming to minimize the prevalence ofproblem, the prevention measures within the National Action Plan relate to datacollection and research on sexual abuse and exploitation of children and existinginterventions, awareness raising and sensitization on the rights of children in general andthe right for protection from sexual abuse and exploitation, capacity building for keyactors and stakeholders including children and youth associations, and facilitating accessto basic services to address major causes of vulnerability (Section 7.2.1). The protectionprogram, on the other hand, involves a range of measures to improve the accessibilityand effectiveness of the legal and policy framework for the better protection of childrenfrom sexual abuse and exploitation. To this end, the National Action Plan proposes legalstudy to improve understanding of the existing legal and policy framework, legal reformto harmonize laws with international standards and improve their implementation,capacity building to improve quality and accessibility of services by law enforcement andjudicial bodies, and public interest litigation of selected cases of sexual offences againstUpdated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 30 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010children (Section 7.2.2). Finally, the National Action Plan covers measures for therehabilitation and reintegration of child victims of sexual violence by initiating andstrengthening integrated rehabilitation services and referral systems. The specificinterventions relate to facilitating the provision of integrated comprehensive services tochild victims, initiating the establishment of community level protection centers, anddevelopment of guidelines on service delivery and ethical standards (Section 7.2.3). 4.4.4. GuidelinesThe Ministry of Women’s Affairs (MOWA) has developed and adopted recently acomprehensive guideline for alternative child care based on the principles and standardsstipulated in the UNCRC, the ACRWC, the FDRE Constitution, and Ethiopian laws. Theguideline covers principles various forms of alternative childcare including programs andservices on community-based child care, reunification and reintegration of children, fosterfamily care, adoption, and institutional child care. The overall objective of the alternativechildcare guideline is to establish a regulatory instrument on childcare systems with aview to contribute towards improving the quality of care and service provided bygovernmental and non-governmental organizations involved in childcare and to advancethe welfare of the orphans and other vulnerable children (OVC) in the country. Thespecific objectives of the guidelines are to: – facilitate the provision of quality and effective care and support to OVC based on the principles that ensure the best interests of the child; – set minimum conditions on the delivery of alternative childcare services in the country; – develop sound child oriented operational frameworks in accordance with the rights-based approach both at institutional and community levels; and, – promote a participatory approach of dealing with the care and support of OVC.The Guidelines outline the overall and specific objectives of each form of alternative childcare, the roles and responsibilities of involved actors, service provision guidelines andregulatory issues. Illegal acts have also been identified in the guidelines specific to fostercare and adoption. Those related to adoption relate to falsifying information aboutchildren and family background; misleading and mis-informing parents and guardians;facilitating adoption without consent of parents and guardians; using adoption forfinancial or other gains; abusing, selling and trafficking children through adoption; andfacilitating adoption without the knowledge of MOWA and other authorities.The Standard Service Delivery Guidelines for Orphans and Vulnerable Children Care andSupport Programs were developed by MoWA and the Federal HIV/AIDS Prevention andControl Office (FHAPCO/HAPCO) to address gaps in standardization and uniformity inservices offered to OVC by various actors.58 The Guidelines outline the programme design58 MoWA and HAPCO, Standard Service Delivery Guidelines for Orphans and Vulnerable Children Care and Support Programs, Addis Ababa, February 2010Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 31 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010components for OVC care and support services, provide quality standards for servicecomponents of OVC care and support, and describe a monitoring and evaluationframework. The overall goal of the Guidelines is to improve the general wellbeing ofOVC by standardizing the implementation of OVC services. More specifically, theGuidelines are intended to guide key OVC stakeholders, harmonize OVC services, andcontribute to an OVC data management system. The Guidelines identify seven coreservice areas as essential components of programming targeting OVC. These are: shelterand care, economic strengthening, legal protection, health care, psychosocial support,education, and food and nutrition. Each of the dimensions of quality are elaborated inrelation to each of these core services as well as issues of coordination andimplementation at various levels. The development of the Service Delivery Guidelinesinvolved pre-testing and piloting for quality assurance and universal access through aparticipatory pilot program implemented from February 2008 to March 2009, and wasinformed by feedback from community based organizations (CBOs), community membersand OVC.59 CRC Provisions Relevant Ethiopian LawsArticle 5: Parental guidance FDRE Constitution Article 34/3 Revised Family Code Article 216Article 9: Separation of children from FDRE Constitution Article 36/1/cparents Revised Family Code Articles 243-245, 247-249 Criminal Code Articles 654, 659, 574,576Article 10: Entering or leaving a country FDRE Constitution Article 32for family reunification Immigration Proclamation No. 354/2003, Article 6, 7 and 23Article 19: Right to protection from all FDRE Constitution Article 36/1/eforms of violence Revised Family Code Article 258/2 Civil Code Articles 267/2, 2039/3 Criminal Code Articles 565, 568, 574, 592-594, 596- 598, 620, 626, 627 and 659 MoLSA, National Action Plan on ChildrenArticle 20: Children Deprived of their FDRE Constitution Article 36/5family environment Revised Family Code Articles 228, 229, 192, 193, 197 and 198 MoWA Guidelines on Alternative Care Programs MoWA, OVC Care and Support Service StandardsArticle 21: The best interest of the child in FDRE Constitution Article 36/2adoption Revised Family Code Articles 193/1, 194 MoWA Guidelines on Alternative Care Programs MoWA, Directives on Inter-country AdoptionArticle 25: Right to periodic review of MoWA Guidelines on Alternative Care Programs59 Save the Children Federation, Communities in Action: Improving Quality in Service Delivery for Enhanced Wellbeing of Children in Ethiopia, USAID Health Care Improvement Project, 2009Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 32 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards” Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010institutional care MoWA, OVC Care and Support Service StandardsArticle 32: Right to protection from FDRE Constitution Article 36/1/aeconomic exploitation Labor Proclamation No. 377/2003, Articles 89-91, 48/2, 170, 184 MoLSA, Developmental and Social Welfare PolicyArticle 34: Right to protection from sexual Criminal Code Articles 623, 629, 630, 639abuse and exploitation MoLSA, National Plan of Action on Sexual Abuse and Exploitation of ChildrenArticle 35: Right to protection from Criminal Code Articles 590, 592, 593, 599abduction, sale or traffickingArticle 36: Right to protection from all Criminal Code Article 579forms of exploitation 4.5. The Institutional Framework5. Assessment 5.1. General Issues 5.1.1. RatificationEthiopia has signed the Optional Protocol to the Convention on the Rights of the Childon the Involvement of Children in armed conflict60 on 28 Sep 2010. However, theoptional protocol has yet to be ratified by the House of Peoples’ Representatives.61Ethiopia is not yet a party to other child rights instruments addressing their vulnerabilityand protection from abuse, exploitation and neglect, including when they are exposed tolive without family care and support. The list of non-ratified instruments includes: − The two Optional Protocols to CRC on the Sale of Children, Child Prostitution and Pornography, and on the Involvement of Children in Armed Conflict. Adopted in May 2000 and came into force February 2002. − The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children supplementing the United Nations Convention against Transnational Organized Crime (Palermo Protocol). Adopted in 2000 and came into force in 200360 Adopted 25 May 2000 and came into force 12 February 200261 The ratification of the OP already signed is among the recommendations accepted by the government of Ethiopia during the UPR process. This has reportedly led to the initiation of a process to do so within the HPR.Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 33 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 − The Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption. Adopted in May 1993Since ratifying the UNCRC in 1991, Ethiopia has submitted three reports to the ChildRights Committee. These are: − Initial report, 14th session, January 1997 − 2nd report, 26th session, 11 January 2001 − 3rd report, 43rd session, 12 September 2006The 4th and 5th combined report on the implementation of the CRC in Ethiopia is due forsubmission in December 2011. 5.1.2. Incorporation into the Legal SystemThe FDRE Constitution incorporates international and regional child rights standards intothe Ethiopian legal system in two ways. First, under article 9/4 of the Constitution, allinternational agreements ratified by Ethiopia automatically become part of the law of theland.The second mode of incorporation provided for under article 13/2 of the FDREConstitution is specific to human rights agreements, which are used as standards ofinterpretation for the human rights provisions of the Constitution. 5.1.3. Status within the Hierarchy of LawsThe hierarchy of laws refers to the relative authority of legislation in cases where twolegal provisions are found to be in conflict. Here we are concerned about conflictsbetween the provisions of the UNCRC/ACRWC and domestic laws.Three approaches have been suggested in Ethiopian jurisprudence and practice: − The first starts with the provisions of article 9/4 of the FDRE Constitution stipulating the ratification of international agreements as the basis for their incorporation into the laws of the land. Since international agreements, including child rights agreements, are adopted by a simple majority in the HPR, they have the same status as Proclamations or primary laws issued by the legislature. Thus, the Constitution prevails over treaty provisions and conflicts with primary laws are to be resolved using established rules of interpretation, i.e. the latter prevaila over the former and the specific prevails over the general. This approach is in line with the general rule for the determination of the hierarchy of laws within a legal system; the mandate of the body issuing the legislation is the determinant factor inUpdated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 34 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 establishing hierarchy.62 The downside of this approach is the inherent preference for existing inconsistent legislation over the provisions of the UNCRC/ACRWC owing to the fact that the child rights standards are by definition general while domestic laws are more specific. Moreover, the HPR may issue new laws that are not consistent with already adopted provisions of the UNCRC/ACRWC. In this context, the very idea of harmonization as an essential state obligation arising from the child rights framework becomes obsolete. − Another approach situated on the opposite side of the spectrum argues for the supremacy of child rights standards over all domestic legislation including the provisions of the Constitution. Under international law, i.e. the law of treaties, States may not use domestic laws including constitutions as a defense for failure to comply with their international obligations. Thus, international standards on child rights should be recognized above the Constitution in the hierarchy of laws and supersede them where there is conflict. While ideal from the perspective of harmonization, this approach poses serious challenges for implementation. At the outset, since international agreements are signed by the executive and adopted by the legislature, they may not prevail over the ultimate expression of sovereign authority of the people, i.e. the Constitution. Even the mandate of the executive to sign international agreements and of the legislature to ratify them emanate from the provisions of the Constitution. In effect, the ratification of an international agreement will amount to circumventing the constitutional amendment procedures which are more stringent than those applicable for ratification.63 From a more pragmatic angle, this approach puts the international standards in contrast with the provisions of the Constitution thereby discouraging ratification and direct implementation. − The third approach is based on the more specific reference to human rights agreements under article 13/2 of the Constitution. The fact that international human rights agreements, including the UNCRC/ACRWC, are given the status of standards for the interpretation of the human rights provisions of the FDRE Constitution implies that they are at least in par with the constitutional provisions. This approach makes the international standards part of the Constitution and precludes situations where conflicts may arise between the standards and the child rights provisions of the Constitution. This is apparently the intended result since the Constitution merely glosses over the rights of the child under article 36. The challenge here is where the Constitution explicitly provides for standards falling62 The Constitution, which is adopted by a Constitutional Assembly representing the Peoples’ sovereign power, is the supreme law of the land. Next in hierarchy come the proclamations issued by the federal legislature, i.e. the HPR. Regulations issued by the Council of Ministers under legislative mandate delegated by the HPR occupy the next level. Finally, the directives issued by any of the executive bodies appointed by the Executive are the lowest in the hierarchy.63 Under the FDRE Constitution, ratification requires a special majority in the HPR (except for more stringent procedures involving amendment of some provisions) while ratification of an international agreement requires a simple majority.Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 35 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 short of the ones stipulated in the UNCRC/ACRWC. For instance, article 36/1/e of the FDRE Constitution explicitly states that corporal punishment is prohibited in schools and institutions for the care of children but fails to refer to the same violation occurring within the family context. If we are to apply article 13/2 in the literal sense, the specific reference to some contexts wherein corporal punishment occurs does not imply permission in others. However, the legislature has apparently interpreted the constitutional provision as tolerant of the application of mild forms of punishment by parents as is evident from the relevant provisions of the subsequently issued Criminal Code. Article 576/3 of the Code, which criminalizes the maltreatment of a minor, exempts parents and guardians taking ‘a disciplinary measure that does not contravene the law, for the purpose of proper upbringing’.Each of these arguments has strengths and weaknesses from theoretical and practicalperspectives. However, the very conception of harmonization suggests that theobligations undertaken within the international and regional child rights frameworkprevails over the existing domestic legal system.In conclusion, international human rights agreements ratified by Ethiopia are consideredpart and parcel of the human rights chapter of the FDRE Constitution for the purpose ofharmonization. One should, however, note that the explicit scope of article 13/2 isinherently limited to the substance of the rights and does not extend to the mechanismsfor implementation.64 Thus, persisting gaps in constitutional alignment would constitute acritical challenge to harmonization of child rights unless addressed through appropriateconstitutional interpretation or amendment processes. 5.1.4. Justicibility of UNCRC ProvisionsThe issue of justicibility refers to whether or not international agreements could beinvoked by domestic courts or applied by national authorities without the need for anenabling legislation. The FDRE Constitution has made international agreements part ofEthiopian laws upon ratification. This would suggest that their provisions are justiciablewithout the need for an enabling legislation as soon as the agreements are ratified by theHPR. The domestic jurisprudence, including statements of judicial policy stated by theFederal Supreme Court, is in line with this understanding. However, some importantchallenges arise in implementation mainly due to the legislative practice of publishing the64 The assumption here is that the provisions of an agreement may come into conflict with those of the Constitution in terms of the substance of a specific right or measures for its implementation. In terms of substance, the problem arises only where the Constitution imposes limits beyond those permissible under the international human rights framework. A narrower definition or omission of a specific right in the Constitution does not constitute conflict and would simply permit application of the standards incorporated through 13/2. Similarly, constitutional recognition in excess of the international provisions reflects the role of international human rights norms as minimum standards. Conflicting obligations arising from the Constitution and human rights agreements could also be a problem, especially in federal arrangements where the relevant mandate resides with regional states.Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 36 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010fact or ratification rather than the text of the ratified agreement in the official legalgazette: − Courts in Ethiopia are required by law to take as law only those letters that appear in the official law gazette65. This had in the past pushed the very applicability of international agreements in judicial proceedings to the forefront of serious debate. − Moreover, not being published in the official legal gazette deducts from the status of international human rights instruments, especially where in conflict with existing legal provisions or inconsistent practices are entrenched. − Availability and accessibility issues arise since the texts are not published and distributed as part of the legal documents − There are no official translations of the texts of international human rights instruments in the official/working languages of the federal and regional courts − Typically, the provisions of international instruments are not always self-executing, i.e. they require more detailed domestic legislation to identify mandates, structures, procedures and remedies.In practice, there is some evidence of judicial recognition of international child rightsstandards as legislative provisions. Yet, one could not in good conscience argue that it isthe rule. 5.1.5. Regional Implementation 5.2. Issues in the Current Level of Harmonization 5.2.1. Definition of a Child 5.2.2. General Principles of Child Rights 5.2.3. Civil Rights and Freedoms65 1995, Proclamation No. 3/Article 2(3)Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 37 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 5.2.4. Child Health and Welfare 5.2.5. Education, Leisure and Cultural Activities 5.2.6. Special Protection Measures6. Conclusions and RecommendationsUpdated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 38 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 20107. References 1. ACPF and UNICEF, Children in Prisons and Detentions Centers in Ethiopia: the Way Forward, 2007 2. Australian Government, Adoptions Australia 2008–09, Annual Report, Attorney General’s Department, 5 February 2010 3. Central Statistical Agency, Child welfare survey, 2005 4. Central Statistical Agency, Ethiopian Demographic and Health Survey, September 2006 5. Chamber of Rights Consultancy Final Report of the External Evaluation of the Activities of the Child Justice Project Office of the Federal Supreme Court of Ethiopia (1999 and 2009) 6. Emebet Getachew, An Assessment of Inter-Country Adoption in Ethiopia: In the Case of Children’s Home Society and Family Services, Addis Ababa University, July 2008 7. FDRE- HAPCO, Report of Progress towards the Implementation of the UN Declaration of Commitment on HIV/AIDS, March 2008 8. Federal Supreme Court, Ethiopian Law and the Convention on the Rights of the Child, Juvenile Justice Project Office and Save the Children Sweden, 9. Hope of Africa Children Initiative (HACI) Ethiopia, OVC Services and Institutional Assessment in Addis Ababa and its Surroundings, January 2006 10. Justice Development Consultants, Review and Analysis of Domestic Child Laws vis-à-vis International Conventions, Guidelines, Covenants and Procedures, Ministry of Women’s Affairs, April 2009 11. MoH, Single Point HIV Prevalence Estimate, June 2007 12. MOJ and UNICEF. Assessment of Justice Sector Responses pertaining to GBV and Violence against Children, February 2010 13. MOLSA, Italian Cooperation and UNICEF, Survey on the Prevalence and Characteristics of AIDS Orphans in Ethiopia, 2003 14. MoWA, CIFF FHI, and UNICEF, Improving Care Options for Children in Ethiopia through Understanding Institutional Childcare and Factors Driving Institutionalization, April 2008Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 39 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 15. MoWA, MoFA, MoJ and AACA Social Affairs Bureau, Evaluation of Adoption Service Providers in Addis Ababa, September 2008 (Amharic) 16. PEPFAR, Draft Standards of Services for Orphans and Vulnerable Children in Ethiopia, Quality OVC PEPFAR Programming July 31, 2007 17. PEPFAR, FY 2008 Country Profile: Ethiopia 18. Population Census Commission, Summary and Statistical Report of the 2007 Housing and Populations Census, Population Size by Age and Sex, December 2008 19. Save the Children Federation, Communities in Action: Improving Quality in Service Delivery for Enhanced Wellbeing of Children in Ethiopia, USAID Health Care Improvement Project, 2009 20. Save the Children UK, Summary of Legal and Policy Frameworks governing orphans and vulnerable children in Ethiopia, 2009 21. Semhal Getachew, Inter-Country Adoption under the Revised Family Code, May 2003 22. Tilahun Teshome and Getnet Alemu, Good Governance and Budget Tracking from Child Rights Perspective, 2006 23. UNDP, 2008 Statistical Update: Ethiopia, Human Development Indices, 18 December 2008 24. US Department of State, Intercountry Adoption: Ethiopia, Office of Children’s Issues, November 2009Ethiopian Laws and Policies 1. MoJ, Criminal Justice Administration Policy, March 2010 2. MoLSA, Development and Social Welfare Policy, 1996 3. MoLSA, National Action Plan on Sexual Abuse and Exploitation of Children (2006-2010), 2005 4. MoLSA, National Plan of Action for Children (2003–2010), June 2004 5. MoWA, Directive for the Provision of Inter-country Adoption Services, May 2008 6. MoWA and HAPCO, Standard Service Delivery Guidelines for Orphans and Vulnerable Children Care and Support Programs, Addis Ababa, February 2010 7. MoWA, Guidelines for Alternative Child-Care, 2009Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 40 of 41
    • Assessment on “Harmonization of the National Framework in Ethiopia with International Child Rights Standards”Based on a Draft Submitted to the Ethiopian Human Rights Commission April 2010 8. Proc. No. 283/2002, Proclamation to Ratify the ACRWC 9. Proclamation No 213/2000, The Revised Family Code of the Federal Democratic Republic of Ethiopia, 2000 10. Proclamation No. 1/1995, Constitution of the Federal Democratic Republic of Ethiopia 11. Proclamation No. 10/1992, Proclamation to Ratify the UNCRC 12. Proclamation No. 414/2004, The Criminal Code of the Federal Democratic Republic of EthiopiaInternational Instruments 1. African Charter on the Rights and Welfare of the Child 2. International Labour Organization, Convention 138, Minimum Age Convention (1973) 3. International Labour Organization, Convention 182, The Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, (1999) 4. Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict (2000) 5. Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (2000) 6. United Nations Convention on the Rights of the Child (1989) 7. United Nations International Convention against Transnational Organized Crime and Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol) (2000)Updated October, 2011Ghetnet Metiku WoldegiorgisSocio-Legal ResearcherE-mail: gmgiorgis@gmail.com Page 41 of 41