Sanu Ranjan, 5th Year Student at Chanakya National Law University, Patna
John Murungi, in her sublime remarks, puts out the Humanity Jurisprudence of the South African Constitution by stating that,
“Each path of jurisprudence represents an attempt by human beings to tell a story about being human. Unless one discounts the humanity of others, one must admit that one has something in common with all other human beings. What is essential to law is what secures human beings in their being. The pursuit and the preservation of what is human and what is implicated by being human are what, in a particular understanding, is signified by African jurisprudence.”
The South African Constitutional Court in M v The State[1], profoundly evolved the ‘rich jurisprudence of child rights’, with Sachs J. speaking for the court eloquently observed the Constitutional Rights of Child enshrined under Sec. 28 as,
“Every child has his or her own dignity. If a child is to be constitutionally imagined as an individual with a distinctive personality, and not merely as a miniature adult waiting to reach full size, he or she cannot be treated as a mere extension of his or her parents, umbilically destined to sink or swim with them. The unusually comprehensive and emancipatory character of section 28 presupposes that in our new dispensation the sins and traumas of fathers and mothers should not be visited on their children.
Individually and collectively all children have the right to express themselves as independent social beings, to have their own laughter as well as sorrow, to play, imagine and explore in their own way, to themselves get to understand their bodies, minds and emotions, and above all to learn as they grow how they should conduct themselves and make choices in the wide social and moral world of adulthood. And foundational to the enjoyment of the right to childhood is the promotion of the right as far as possible to live in a secure and nurturing environment free from violence, fear, want and avoidable trauma.”
The Constitutional Court of South Africa in The Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development[2], infused the dignity of the child in sec. 10 of the Constitution, as the Court, speaking through Khampepe J.observed that,
“Section 10 of the Constitution provides that “[e]veryone has inherent dignity and the right to have their dignity respected and protected.” While dignity is a cornerstone of our Constitution, it is not easily defined, at least in legal terms. Suffice it to say that dignity recognises the inherent worth of all individuals (including children) as members of our society, as well as the value of the choices that they make. It comprises the deeply personal understanding we have of ourselves, our worth as individuals and our worth in our material and social context. This Court has found that children’s dignity rights are of special importance and are not dependent on the rights of their parents. Nor is the exercise by children of their dignity rights held in abeyance until they reach a certain age.”
The Court further expounded the ‘jurisprudential nature of right’ and the ‘interpretive role of court’ with respect to the constitutional enumeration referring to Children in Sec. 28 by observing that,
“The ambit of the provisions is undoubtedly wide. The comprehensive and emphatic language of section 28 indicates that just as law enforcement must always be gender-sensitive, so must it always be child-sensitive; that statutes must be interpreted and the common law developed in a manner which favours protecting and advancing the interests of children; and that courts must function in a manner which at all times shows due respect for children’s rights. These considerations reflect in a global way rights, protection, and entitlements that are specifically identified and accorded to children by section 28. They are extensive and unmistakable. Section 28(1) provides for a list of enforceable substantive rights that go well beyond anything catered for by the common law and statute in the pre-democratic era.”[3]
Further explaining the “Best Interest of Child” Principle as mentioned in Sec. 28(2) of the Constitution, being ‘paramount importance’ in consideration of Child Rights observed that,
“Section 28(2) requires that a child’s best interests have paramount importance in every matter concerning the child. The plain meaning of the words clearly indicates that the reach of s 28(2) cannot be limited to the rights enumerated in s 28(1) and 28(2) must be interpreted to extend beyond those provisions. It creates a right that is independent of those specified in s 28(1). [Therefore], it will be noted that [it is] a right, and not just a guiding principle. It was with this in mind that this Court in Sonderup referred to section 28(2) as “an expansive guarantee” that a child’s best interests will be paramount in every matter concerning the child”[4]
The Court emphasised the duty of the state as pares parentis to take care of child in cases of breakdown of family, by observing that,
“No constitutional injunction can in and of itself isolate children from the shocks and perils of harsh family and neighbourhood environments. What the law can do is create conditions to protect children from abuse and maximise opportunities for them to lead productive and happy lives. Thus, even if the State cannot itself repair disrupted family life, it can create positive conditions for repair to take place.”[5]
Therefore, if it were to be seen of a Jurisprudence that serves the ‘progressive realization’ of Rights of ‘Constitutional Child’, the true ‘Constitutional Homage’ must be paid to the South African Jurisprudence which has recognized the ‘positive enumeration’ in constitution not merely as directive principles’ but as ‘a guaranteed and enforceable right’ of the Children, making it as ‘basic norm’ of its dignity jurisprudence in regard to the Child & its Childhood, that respect the “inherent worth of Child as a Child itself”.
References
[1] CCT 53/06 [2007] ZACC 18 [2] CCT 12/13 [2013] ZACC 35 [3] Supra, note 1 [4] Supra, Note 1 [5] Ibid.
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)