Harmful traditional practices, (male circumcision - Electronic Thesis ...

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“In all actions concerning children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities or legislative bodies, the best
interest of the child shall be a primary consideration.” 85
In Article 4 (1) of the African Children’s Charter, the principle is enunciated as
follows:
“In all actions concerning the child undertaken by any person or authority the best
interest of the child shall be the primary consideration.” 86
The principles of respect for the views of the child, the right to survival and
development and the right to non-discrimination are all relevant in determining
the best interests of the child. 87 Detrick states that the best interest principle is
an “umbrella provision” which can be invoked in conjunction with other
provisions of the CRC in order to clarify, justify or support a particular approach
to certain issues under the Convention. 88 The best interest standard exceeds
traditional concepts of protection and therefore all of the provisions in the CRC
should be interpreted with the best interest of the child in mind. 89
According to Gose, 90 Article 4 (1) of the African Children’s Charter provides that
the ‘best interest’ of the child shall be ‘the primary consideration’ while under
Article 3(1) of the Convention it is only ‘a primary consideration’. When
interpreted in this manner, the African Children’s Charter seems to maximize the
85
See fn 65 above at 39.
86
Author unknown, “The African Charter on the Rights and Welfare of the Child”. Available
online at http://www.anppcan.org/new/resources/international/charter.html#12,13, at 4.
Accessed on 31 August 2006.
87
See fn 65 above at 42.
88
Detrick S, “A Commentary on the United Nations Convention on the Rights of the Child”,
Martinus Nijhoff Publishers, 1999 at 92.
89
Sloth-Nielsen J, “Ratification of the Convention on the Rights of the Child: Some implications
for South Africa”, 1995, South African Journal on Human Rights, at 409.
90
Gose M, “The African Charter on the Rights and Welfare of the Child”, Community Law Centre,
2002, at 25 – 26.