Migration related detention of children in Southern Africa: Developments in Angola, Malawi and South Africa

Abstract

This article examines the laws and practices in Angola, Malawi and South Africa regarding the migration-related detention of children in light of international human rights standards. Detaining a migrant child is in conflict with article 37(b) of the Convention on the Rights of the Child, namely, that detention of a child should be used as a the measure of last resort and for the shortest appropriate time, the principle of the best interests of the child and the right to development. At the African Union level, the African Charter on the Rights and Welfare of the Child serves as the primary human rights instrument that comprehensively guarantees children’s rights. The countries in the case study have ratified both CRC and the African Children’s Charter. Nevertheless, children are deprived of liberty in Southern Africa, with Malawi serving as a transit country and South Africa and Angola mostly as destination countries. While Angola and Malawi lack adequate legal and effective protection of migrant children, South Africa has put in place robust legal guarantees, but in practice migrant children are nevertheless detained. Thus, the article suggests that these countries need to adopt and implement comprehensive child protection policies including alternatives to detention with a view to ensuring improved respect for children’s rights. Furthermore, it emphasises the need for enhancing regional cooperation to curb the problems that children are facing in relation to migration and beyond. Most importantly, states must show the political will not only to adopt protective laws but also to effectively implement these laws in order to create a safer world for children. Key words: children; migration; detention; liberty; Southern Africa