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

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32 influence of the best interest principle in proclaiming its supremacy over other considerations. 91 According to Sloth-Nielsen, the reference to ‘a primary consideration’ is indicative of the fact that the interests of the child him or herself should also be given due consideration. 92 Furthermore, the intention behind the use of “primary” as opposed to “paramount” in the CRC was not to weaken the principle, but to provide the flexibility needed to give priority to other circumstances and interests so dictated. 93 Although no clear guidelines are given in international law as to what the best interest principle entails, the comments made by various authors and legal scholars provide some guidance as to what should be regarded as the best interest of the child. It has been argued that even though the best interest criterion will not always be the single, overriding factor to be considered, it is however important that the child’s interest must be the subject of “active consideration.” 94 In the South African context, the practice of virginity testing and male circumcision has the potential to violate a number of international human rights provisions aimed at protecting children. The unhygienic conditions in which the practices are carried out as well as other hardships accompanied with traditional male circumcision places children at risk of physical harm and death, in extreme cases, as explained in chapter 1. It can therefore be argued that in these circumstances, the practices mentioned above do not conform with the best interest principle enshrined in the CRC. 91 Ibid at 26. 92 See fn 89 above at p 408. 93 Glen Mower A, “The Convention on the Rights of the Child – International Law Support for Children”, Greenwood Press, 1997, at p 24. 94 See fn 65 above at p 42 - 43.
33 1.3 THE RIGHT TO NON-DISCRIMINATION Equality and non-discrimination are positive and negative statements of the same principle. 95 One is treated equally when one is not discriminated against and one is discriminated against when one is not treated equally. 96 Discrimination, therefore, can and does prevent the realisation of all rights. 97 The right to non-discrimination is contained in Article 2 (1) of the CRC and Article 3 of the African Children’s Charter. In Article 2(1) of the CRC, it is stated that: “State parties shall respect and ensure the rights set forth in the present Convention … without discrimination of any kind, irrespective of the child’s or his or her parent’s … race, colour, sex, language, religion, political or other opinion … birth or other status.” 98 The phrase ‘the rights set forth in this Convention’ indicates that the obligation of non-discrimination applies with respect to all the rights contained in the CRC. 99 The scope of Article 2 is very broad and therefore not only prohibits discrimination against children on the basis of their status but also prohibits discrimination on the basis of the family’s status. 100 Discrimination does not only occur when there is discrimination between adults but also between different groups of children. 101 95 Besson S, “The Principle of Non-Discrimination in the Convention on the Rights of the Child”, The International Journal of Children’s Rights, Volume 13, No. 4, 2005 at p 434 -435. 96 Ibid at p 435. 97 Author unknown, “Children’s Rights: Equal Rights? – Diversity, difference and the issue of Discrimination”, Published by the International Save the Children Alliance, 2000 at p 26. 98 See fn 68 above at p 263. 99 See fn 95 above at p447. 100 Davel CJ, “Introduction to Child Law in South Africa”, Juta and Co. Ltd, 2000 at p 203. 101 Ibid.
Page 1 and 2: HARMFUL TRADITIONAL PRACTICES, (MAL
Page 3 and 4: 3 Convention on the Rights of the C
Page 5 and 6: 5 DECLARATION I declare that Harmfu
Page 7 and 8: 7 DEDICATION This mini-thesis is de
Page 9 and 10: 9 1.4 The right to survival and dev
Page 11 and 12: CHAPTER 1 11 1. BACKGROUND AND INTR
Page 13 and 14: 1.1 The Origins of Virginity Testin
Page 15 and 16: 15 diseases. 10 Since it was well k
Page 17 and 18: 17 that it is acceptable to pass ju
Page 19 and 20: 19 presence of either the mother or
Page 21 and 22: 21 Traditional leaders have argued
Page 23 and 24: 23 exposes young boys to an array o
Page 25 and 26: CHAPTER 2 INTERNATIONAL LAW AND HAR
Page 27 and 28: 27 harmful social and cultural prac
Page 29 and 30: 29 Concern has also been expressed
Page 31: 31 “In all actions concerning chi
Page 35 and 36: 35 taboos or negative or judgmental
Page 37 and 38: 37 “The right to life is the most
Page 39 and 40: 1.5 THE RIGHT TO RESPECT FOR THE VI
Page 41 and 42: 41 Furthermore, it is stated that i
Page 43 and 44: 43 In the ensuing chapter, the righ
Page 45 and 46: 1.2 The right to culture 45 As ment
Page 47 and 48: 47 limitation on the rights contain
Page 49 and 50: 1.2.1 The application of section 36
Page 51 and 52: 51 prohibiting corporal punishment
Page 53 and 54: 53 is found in the application of t
Page 55 and 56: 55 into an in-depth analysis of the
Page 57 and 58: 57 studs. The appellant in this cas
Page 59 and 60: 59 The following chapter will exami
Page 61 and 62: 61 After listening to submissions i
Page 63 and 64: 63 religious practices. 204 The fol
Page 65 and 66: 65 Outside of the debate in parliam
Page 67 and 68: 67 ‘they’ who threatened to kil
Page 69 and 70: 69 traditional leaders with the pre
Page 71 and 72: CHAPTER 5: RECOMMENDATIONS. 71 The
Page 73 and 74: 73 Government in an effort to ensur
Page 75 and 76: 75 restrictive means include educat
Page 77 and 78: BIBLIOGRAPHY BOOKS 77 Aldeeb Abu Sa
Page 79 and 80: Van Bueren G, “The United Nations
Page 81 and 82: Author unknown, “Submissions by N
Page 83 and 84:
83 Author unknown, “Children have
Page 85:
85 Proudlock P, “No Second-Best L
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