The Children's Bill of Mauritius: A critical assessment of key aspects

AFRICAN HUMAN RIGHTS LAW JOURNAL To cite: R Mahadew ‘The Children’s Bill of Mauritius: A critical assessment of key aspects’ (2020) 20 African Human Rights Law Journal 852-872 http://dx.doi.org/10.17159/1996-2096/2020/v20n2a122 The Children’s Bill of Mauritius: A critical assessment of key aspects Roopanand Mahadew* Senior Lecturer, Human Rights Law, Public International Law and Environmental Law, Faculty of Law and Management, University of Mauritius https://orcid.org/0000-0002-8964-590X Summary: This article critically assesses the Children’s Bill that has been presented as a law that will revolutionise the sphere of children’s rights in Mauritius. It is set to replace the Child Protection Act which was way below the required international standard for children’s rights. Essential aspects of the Bill are reviewed by using as barometers the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. Some of the aspects explored are the principle of the best interests of the child, the protection of the child, the child as a juvenile offender and the Children’s Court. The article also compares the Bill to the previous Child Protection Act to evaluate the efficacy of the changes brought about by the Bill. Key words: children’s rights; Mauritius; Children’s Bill; Children’s Court * LLB (Mauritius) LLM (Pretoria) LLD (Western Cape); CHILDREN’S BILL OF MAURITIUS: CRITICAL ASSESSMENT 853 1 Introduction Children’s rights have always received the necessary importance and attention in Mauritius. Since independence, various governments have legislated on the issue with the creation of acts of parliament and necessary subsequent amendments.1 Mauritius has also ratified and acceded to critical international treaties and conventions on the rights and welfare of the child.2 While the existing normative framework on children’s rights was a rather decent one,3 it could be said that with respect to certain aspects it fell short of the required standard set by international human rights law. In 2019 the Children’s Bill was presented in Parliament with the primary aim of significantly ameliorating the existing legal framework on the rights and welfare of the Mauritian child. A final draft of the Children’s Bill was submitted to the Mauritian National Assembly in September 2019. The Bill would have become an Act last year had it not been delayed because of the general elections of November 2019. As the ruling party has won the general elections between 2014 and 2019 and remain in power, the Children’s Act will very soon materialise and gain the force of law.4 It is considered a significant upgrade to the existing Child Protection Act of 1994 (CPA), as it is in line with international standards on children’s rights such as the African Charter on the Rights and Welfare of the Child (African Children’s Charter) and the United Nations (UN) Convention on the Rights of the Child (CRC). Against this background this article seeks to critically assess certain aspects of the Children’s Bill, namely, (i) the best interests and protection of the child; (ii) child offenders and the juvenile justice system; and (iii) the Children’s Court. This exercise is undertaken by using the African Children’s Charter and CRC as barometers in view of examining the extent to which these provisions of the Children’s 1 2 3 4 Child Protection Act; Protection from Domestic Violence Act; Education Act; Computer Misuse and Cyber Crime Act; Juvenile Offenders Act; Ombudsperson for Children Act; National Children’s Council Act; Criminal Code; Cinematograph Act; Dangerous Drugs Act; Divorce and Judicial Separation Act. African Charter on the Rights and Welfare of the Child; Hague Convention on Civil Aspects of Child Abduction; Convention on the Rights of the Child; Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography; Worst Forms of Child Labour Convention 1999; Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts. UN CRC ‘Consideration of reports submitted by states parties under Article 44 of the Convention – Mauritius’ UN Doc CRC/C/3/Add.36 2 October 1995 paras 3-7. Kalpana Koonjoo-Shah ‘Sur le Children’s Bill L’Express 4 July 2020. 854 (2020) 20 AFRICAN HUMAN RIGHTS LAW JOURNAL Bill are in line with the required international standards. The abovementioned aspects of the Children’s Bill are then analysed critically, highlighting the ways in which it may be considered a significant upgrade to the current legal position. 2 An overview of the normative framework on children’s rights in Mauritius Mauritius has maintained a decent record regarding children’s rights. Nevertheless, there still is room for improvement.5 The positive situation of children’s rights in Mauritius has been highlighted by the UN Committee on the Rights of the Child (CRC Committee) in its Concluding Observations issued to Mauritius in 2015. The Committee indeed noted with appreciation the ratification of a number of international conventions and treaties on children’s rights,6 welcomed the adoption of a series of legislative Acts7 and the establishment of a number of policies, action plans and programmes concerning the rights and welfare of the child.8 As an illustration of the above, government expenditure on education for 2019/2020 has been estimated at around US $500 000, which is 10 per cent of its total expenditure.9 For preprimary education, the gross enrolment ratio, that is, the number of students enrolled per 100 of the population aged four and five years, is around 96 per cent, out of which 49 per cent are girls.10 The same ratio concerning primary education is 95 per cent out of which 5 6 7 8 9 10 See Recommendations for Universal Periodic Review – Updated as at December 2015, https://www.upr-info.org/sites/default/files/document/mauritius/session _17_-_october_2013/mauritius_mid-term_2ndcycle_2016.pdf (accessed 10 March 2020). UN CRC ‘Concluding Observations on the combined third to fifth periodic reports of Mauritius’ UN Doc CRC/C/MUS/CO/3-5 27 February 2015 para 3. As above. Equal Opportunities (Amendment) Act, which established the Equal Opportunity Commission to prevent all forms of discrimination, 1 January 2012; Institute for Judicial and Legal Studies Act, 1 October 2011; Combating of Trafficking in Persons Act 2009; Amendment to the Child Protection Act which set up a child mentoring scheme, in December 2008. As above. Political manifesto of the new government, which strengthens the protection of children against illicit substances, sexual exploitation and exploitation on the internet, December 2014; National Child Protection Strategy and its Action Plan which aims at preventing violence against children, Oct (...truncated)