11. Laying down the conditions of admissibility, Section IX (1) (A) of the Revised
Communication Guidelines (Revised Guidelines) prescribes that a
Communication has to be compatible with the provisions of the Constitutive Act of
the African Union or with the Charter on the Rights and Welfare of the Child. The
complainants submitted that this condition is satisfied since the Communication is
presented pursuant to Article 44 of the African Children’s Charter.
12. The Communication is brought on behalf of two children who have passed away.
The Complainants allege that the Communication concerns violations of the
provisions of the Charter. They further argue that the Charter should protect the
rights of deceased children.
13. According to Section II (1) of the Revised Guidelines, the Committee considers
Communications alleging violations of the rights and welfare of the child pursuant
to the Charter. The complainants allege that the Communication concerns
violations of articles 14,16 and 44 of the Charter. In this regard the Committee
would like to refer to the decision of the Commission in Korvah v Liberia in which
it was decided that the case is inadmissible due to the fact that the allegations
thereunder did not amount to human rights violation under the African Charter on
Human and Peoples’ Rights. 1 Hence, for the purpose of admissibility of this
Communication, it is paramount to analyse if the allegations relate to violations of
the rights and welfare of the child under the Charter.
14. Taking in to consideration the fact that the Communication was brought mainly on
the assertion that acts committed on the deceased children should be considered
a violation of their human rights under the Charter, the main issue in assessing
the admissibility of the communication is the extent of protection accorded in the
Charter as a human rights instrument. In other words, does the Charter protect
the right of deceased children? The Committee duly notes that, according to
article 2 of the Charter (definition of a child), it is stated that a child is a human
being under the age of 18. This provision makes the extent of protection of the
Charter clear and excludes deceased children. However, the Complainants
request that the Charter should be interpreted to extend its protection to the
remains of deceased children. Responding to this request demands an
exploration of the issue in relation to foundations of human rights.
15. The Committee recognises that the philosophical foundation of human rights is a
contentious matter, however the Universal Declaration of Human Rights (UDHR)
and consecutive instruments indicate that the justification for human rights is the
inherent dignity of human beings. The Vienna Declaration and Plan of Action
(VDPA) on the other hand states that human rights emanate from ‘the dignity and
worth inherent in the human person.’2 The key in these justifications is human
beings or the human person; the obvious question with a seemingly obvious
1
2
Korvah v Liberia (2000) AHRLR 140 (ACHPR 1988)
Vienna Declaration and Programme of Action, preamble
4