Committee on the Rights of the Child
Concluding observations on the initial report submitted by South Africa under article 12 (1) of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography *
1.The Committee considered the initial report of South Africa (CRC/C/OPSC/ZAF/1) at its 2143rd meeting (see CRC/C/SR.2143), held on 20 September 2016, and adopted the present concluding observations at its 2160th meeting (see CRC/C/SR.2160), held on 30September 2016.
2.The Committee welcomes the submission of the State party’s initial report and its written replies to the list of issues (CRC/C/OPSC/ZAF/Q/1/Add.1). The Committee appreciates the constructive dialogue held with the high-level and multisectoral delegation of the State party.
3.The Committee reminds the State party that the present concluding observations should be read in conjunction with the concluding observations on the State party’s second periodic report under the Convention on the Rights of the Child (CRC/C/ZAF/CO/2), which were adopted on 30 September 2016.
4.The Committee notes with appreciation the State party’s ratification of the:
(a)United Nations Convention against Transnational Organized Crime, in 2004;
(b)Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, in 2004;
(c)Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, in 2004;
(d)Convention on Protection of Children and Cooperation in respect of Intercountry Adoption, in 2003;
(e)International Labour Organization (ILO) Worst Forms of Child Labour Convention, 1999 (No. 182), in 2000.
5.The Committee welcomes the various measures taken by the State party in areas relevant to the implementation of the Optional Protocol, including the adoption of the:
(a)Prevention and Combating of Trafficking in Persons Act (Act No. 7 of 2013);
(b)Criminal Law (Sexual Offences and Related Matters) Amendment Act (Act No. 32 of 2007).
6.The Committee is concerned at the lack of reliable data covering the offences under the Optional Protocol, including the sale of children, child prostitution, child pornography and child trafficking, as well as data on adoption. Likewise, it is concerned about the lack of data on the general situation of children who are at high risk of exposure to such offences, such as girls who are victims of domestic violence, children in street situations, migrant, refugee and asylum-seeking children, children living in institutions, and children adopted through informal customary adoption.
7. The Committee recommends that the State party:
(a) Develop and implement a comprehensive, coordinated and effective system of data collection and data analysis for all areas covered by the Optional Protocol, including data concerning the number of prosecutions and convictions for offences under the Optional Protocol;
(b) Disaggregate the data by, inter alia, sex, age, nationality and ethnic origin, region, and socioeconomic status, paying particular attention to children who are at risk of becoming victims of offences under the Optional Protocol;
(c) Actively utilize the information collected for policy decisions, impact assessments and the monitoring of progress on the implementation of the Optional Protocol.
IV.General measures of implementation
8.The Committee notes that national legislation covers child prostitution, child pornography and trafficking in children. However, the Committee is concerned that the current criminal law does not address effectively all acts and activities relating to the sale of children as defined in articles 2 and 3 of the Optional Protocol, whether such offences are committed domestically or transnationally or on an individual or organized basis, such as, for example, transferring the organs of a child for profit, engaging a child in forced labour or improperly inducing consent, as an intermediary, for the adoption of a child, in violation of the applicable international legal instruments on adoption.
9. The Committee recommends that the State party ensure that all acts and activities referred to in the Optional Protocol are fully covered under its criminal law, including all forms of sale of children.
Comprehensive policy and strategy
10.The Committee notes that a number of laws and policies relevant to the implementation of the Optional Protocol require the development of adequate policy frameworks for the coordination of multisectoral interventions. However, the Committee is concerned at the lack of such an overarching policy framework to coordinate the various relevant policies.
11. The Committee recommends that the State party:
(a) Include all issues covered under the Optional Protocol in a comprehensive policy and strategy for children ’ s rights, paying particular attention to the implementation of all provisions of the Optional Protocol and taking into account the outcome documents adopted at the World Congresses against Commercial Sexual Exploitation of Children;
(b) Ensure the active and meaningful participation of children, communities and civil society organizations in the policy formulation.
Coordination and evaluation
12.The Committee notes that several government departments are responsible for the implementation of laws and policies relevant to the implementation of the Optional Protocol. The Committee is, however, concerned at the lack of a coordination mechanism to enable the effective cross-sectoral coordination that is necessary for the implementation of the Optional Protocol.
13. With reference to paragraphs 9 and 10 of its concluding observations under the Convention on the Rights of the Child (see CRC/C/ZAF/CO/2), the Committee recommends that the State party ensure that the National Children ’ s Rights Intersectoral Coordination Committee is given a clear mandate and sufficient authority to coordinate all activities related to the implementation of the Convention and the Optional Protocols at the cross-sectoral, national, regional and local levels and that it is provided with the necessary human, technical and financial resources for its operation. The Committee also recommends that the State party strengthen the coordination of its work with community-based organizations and informal community structures.
14.The Committee welcomes the development of operational guidelines, as well as the intensified training for various stakeholders, including law enforcement personnel, prosecutors, judges, social workers and professionals working in the media and on producing publications, on the policies, laws and programmes giving effect to the Optional Protocol. However, the Committee is concerned that the capacities and expertise of key stakeholders, such as the police and courts, have not been sufficiently built for effective implementation of the Optional Protocol.
15. The Committee recommends that the State party continue its efforts to:
(a) Provide further training on the Optional Protocol to professionals and institutions working on the offences covered by the Optional Protocol and for child victims of such offences, including the family violence, child protection and sexual offences units, the Human Trafficking Desk and the Cybercrime Unit of the police, the sexual offences courts and the children ’ s courts;
(b) Equip them with operational tools, such as guidelines and protocols, for the effective implementation of laws, policies and programmes relevant to the implementation of the Optional Protocol.
Allocation of resources
16.The Committee is concerned that many services necessary for the full implementation of the Optional Protocol, including child protection and support services, and specialist police and court services for children, are still under-resourced.
17. The Committee recommends that the State party allocate sufficient technical, human and financial resources for the full implementation of the Optional Protocol, in order to ensure:
(a) The implementation of the Children ’ s Act and the Prevention and Combating of Trafficking in Persons Act;
(b) The effective functioning of the children ’ s courts, the sexual offences courts and the Film and Publication Board;
(c) The effective functioning and the expansion of Thuthuzela Care Centres and one-stop centres which provide multidisciplinary services for victims of sexual assault.
18.The Committee notes that civil society organizations are heavily involved in statutory service delivery for child protection and welfare, including services relevant to child victims of offences that are covered by the Optional Protocol. However, the Committee is concerned that government funding for such civil society organizations is insufficient to meet the costs that quality service delivery incurs.
19. Noting that the State has the primary responsibility to provide the child protection and welfare services necessary to protect children from offences covered by the Optional Protocol, the Committee recommends that the State party:
(a) Review the adequacy of the budget allocations for service delivery by the Government and the adequacy of the funding for service delivery by civil society organizations;
(b) Improve transparency in the decision-making on subsidies, including in the selection criteria for recipients;
(c) Ensure active and meaningful consultation with and participation by civil society organizations in the development of budgets for service delivery for children, as well as in the monitoring of their implementation.
V.Prevention of the sale of children, child prostitution and child pornography (art. 9 (1) and (2))
Measures adopted to prevent offences prohibited under the Protocol
20.The Committee notes the establishment of the National Child Protection Register and the National Sex Offenders Register, which are aimed at preventing children from being exposed to offenders who have committed abuses against children. It also notes that the State party has introduced strong border control measures in order to prevent the trafficking and abduction of children. However, it is concerned at the duplication of the function of the two registers, which may undermine their effectiveness. The Committee is also concerned about the effectiveness and proportionality of the border control measures introduced.
21. The Committee recommends that the State party review the effectiveness of the National Child Protection Register and the National Sex Offenders Register, and the border control measures for preventing child trafficking and abduction. In doing so, the State party should consult with all stakeholders, including children and civil society organizations working with and for children, and should actively utilize objective data and information to identify effective and proportionate measures to achieve the objectives.
22.The Committee notes that informal care arrangements, including those made as part of customary adoptions, are common in the State party. While such informal arrangements may have potential as options for alternative care within the extended family and the community, the Committee is concerned that such customary adoptions are not subject to regulation and official monitoring, with a risk of sale of children for the purpose of adoption.
23. The Committee recommends that the State party:
(a) Collect disaggregated data and conduct research on the situation of informal care arrangements, including customary adoptions, as a basis for the development of policy responses;
(b) Develop a regulatory framework for customary adoption and a system for monitoring such adoption, with the active and meaningful participation of children, families, communities and civil society organizations working with and for children.
Child sex tourism
24.The Committee notes that efforts have been made to address child sex tourism, including criminalizing the promotion of child sex tours under the Criminal Law (Sexual Offences and Related Matters) Amendment Act of 2007. Nevertheless, it is concerned that the State party is reportedly a major hub for child sex tourism in Africa.
25. The Committee urges the State party to:
(a) Enhance the implementation of the regulatory framework and take all legislative, administrative, social and other measures necessary to prevent and eliminate child sex tourism;
(b) Take all necessary measures to ensure that cases of child sex tourism are investigated and that alleged perpetrators are prosecuted and, if convicted, duly sanctioned;
(c) Enhance its advocacy with the tourism industry on the harmful effects of child sex tourism and widely disseminate the World Tourism Organization Global Code of Ethics for Tourism and the provisions of the Optional Protocol, including information on legal sanctions, among travel agencies and tour operators;
(d) Continue encouraging business enterprises in the tourism industry to become signatories to the Code of Conduct for the Protection of Children from Sexual Exploitation in Travel and Tourism;
(e) Ensure that disaggregated data on sex tourism is systematically collected;
(f) Pay due attention to children who are at heightened risk of being victims of child sex tourism, in particular children in street situations.
Measures to prevent and tackle online child sexual exploitation and abuse
26.The Committee is concerned about the reported increase in cases of online child sexual exploitation and abuse.
27. With reference to Human Rights Council resolution 31/7 on the rights of the child, which addresses information and communications technologies and child sexual exploitation, and to the outcomes of the 2014 London and 2015 Abu Dhabi “ We Protect ” summits, the Committee recommends that the State party adopt a national response for preventing and addressing online child sexual exploitation and abuse, in close collaboration with relevant industries and organizations, consisting at a minimum of:
(a) A national policy to prevent and respond to online child sexual exploitation and abuse through an appropriate legal framework, a dedicated coordination and oversight entity, and specific analysis, research and monitoring capabilities;
(b) A dedicated, proactive, responsive and victim-focused criminal justice system with a trained police force, prosecution and judiciary; management of offenders to prevent reoffending, nationally and internationally; and a national database linked to the INTERPOL database;
(c) Appropriate support services for children, including integrated services during investigation, prosecution and aftercare; trained professionals working with and for children; and accessible procedures for complaints, compensation and remedies;
(d) A strategy for preventing online child sexual exploitation and abuse, including a public education programme to raise awareness, mandatory school education on online behaviour and safety, and knowledge and reporting of online child sexual exploitation and abuse offences; child participation in the development of policies and practices; industry engagement to block and remove online child sexual exploitation and abuse content, to report incidents to law enforcement authorities and to develop innovative solutions; close cooperation with organizations working to end child sexual exploitation online; and ethical and informed media reporting.
VI.Prohibition of the sale of children, child pornography and child prostitution and related matters (arts. 3, 4 (2) and (3) and 5-7)
Existing criminal or penal laws and regulation
28.The Committee is concerned that the criminal law in the State party does not define and criminalize all forms of offences covered by the Optional Protocol.
29. The Committee recommends that the State party define and criminalize the sale of children, in conformity with articles 2 and 3 of the Optional Protocol, and that it not limit the definition to cases of trafficking in children. In particular, the State party should explicitly define and criminalize:
(a) The sale of children through illegal adoption;
(b) The transfer of organs of the child for profit;
(c) The engagement of the child in forced labour.
30.The Committee is concerned that the Films and Publications Act and the Criminal Law (Sexual Offences and Related Matters) Amendment Act do not differentiate between adult and child offenders, and that children consensually sharing their own pictures may be found guilty of manufacturing, possessing and distributing child pornography. The Committee is also concerned that the current criminal legislation lacks an overarching definition of pornography that would also cover the disposal of pornographic materials.
31. The Committee recommends that the State party review its criminal law to:
(a) Decriminalize consensual sharing of self-generated images by children;
(b) Differentiate between adult and child offenders as regards child pornography and ensure that the child offenders are treated in a manner consistent with the promotion of the child ’ s sense of dignity and in full conformity with the provisions of the Convention on the Rights of the Child and the Optional Protocol;
(c) Review the existing definition of pornography with a view to amending it to also cover the disposal of pornographic materials;
(d) Develop and strengthen awareness-raising programmes for children on risks related to the use of self-generated content through digital media and information and communications technologies.
32.The Committee notes that the services provided at Thuthuzela Care Centres have improved the processes for reporting sexual offences, which has led to an increase in conviction rates for sexual offenders. However, the Committee is deeply concerned that the rate of prosecution and conviction of perpetrators of offences under the Optional Protocol remains very low.
33. The Committee urges the State party to take all measures necessary to ensure that all cases of sale of children, child prostitution and child pornography are investigated effectively and that perpetrators are prosecuted and are punished with appropriate sanctions commensurate with the gravity of their crimes.
34.The Committee notes the information contained in the report of the State party (see CRC/C/OPSC/ZAF/1, paras. 124-126) that section 291 of the Children’s Act extends the State’s jurisdiction to prosecute cases of child trafficking committed abroad by South African nationals, permanent residents or juristic persons registered in South Africa and that section 61 of the Sexual Offences Act provides for the extended jurisdiction of the State in respect of any crime committed outside the country’s borders by South African nationals, permanent residents or juristic persons registered in South Africa, including where such offence is committed in the territorial waters of South Africa or aboard a ship or aircraft registered, or required to be registered, in South Africa. However, the Committee is concerned that such provisions do not allow the State party to establish its jurisdiction over all the offences referred to in article 3 (1) of the Optional Protocol and in a manner consistent with the provisions of article 4 (2) of the Optional Protocol.
35. The Committee recommends that the State party take appropriate measures to explicitly establish its jurisdiction in respect of the offences referred to in article 3 (1) of the Optional Protocol and in all the cases defined in article 4 (2) of the Optional Protocol, namely when the alleged offender is a national of the State party or a person whose habitual residence is in its territory and when the victim is a national of the State party.
36.The Committee notes the information contained in the report of the State party (paras. 186 and 187) that South Africa enacted the Extradition Act (Act No. 67) in 1962, and that since its ratification of the Optional Protocol, it has ratified, signed and negotiated several bilateral and multilateral mutual legal assistance agreements. The Committee also notes that the State party makes extradition conditional on the existence of an extradition treaty.
37.The Committee encourages the State party to withdraw the condition that only allows extradition where an extradition treaty exists, and to consider using the Optional Protocol as a legal basis for extradition in respect of all offences against children as defined therein.
VII.Protection of the rights of child victims (arts. 8 and 9 (3) and (4))
Measures adopted to protect the rights and interests of child victims of offences prohibited under the Optional Protocol
38.The Committee is concerned that child victims of prostitution are criminalized, and that victims and witnesses of sexual exploitation and abuse face revictimization in the criminal justice and health systems.
39. The Committee recommends that the State party:
(a) Establish mechanisms and procedures to protect the rights of child victims of offences covered by the Optional Protocol, including the establishment of a clear obligation of non-prosecution in the criminal justice system, and ensure that they are treated as victims rather than as criminals by the law enforcement and judicial authorities;
(b) Ensure that child victims or witnesses of offences under the Optional Protocol are not revictimized and that evidence, such as video recordings of testimonies, is always accepted in judicial procedures.
Criminal justice system protection measures
40.The Committee is concerned that child offenders may be registered on the National Sex Offenders Register.
41. The Committee recommends that the State party reconsider the placement of child sex offenders on the National Sex Offenders Register and ensure that the procedures applicable to child sex offenders fully respect the right of the child to have his or her best interests taken into account as a primary consideration.
Recovery and reintegration of victims
42.The Committee welcomes the establishment of the Thuthuzela Care Centres, which provide medical, psychological and other services for victims of sexual assault. However, the Committee is concerned that the availability, accessibility and quality of the services for the recovery and reintegration of child victims of offences under the Optional Protocol remain limited.
43. The Committee recommends that the State party:
(a) Increase the number of the Thuthuzela Care Centres and one-stop centres to cover all parts of the country;
(b) Increase the number of social workers and build their capacity to meet the needs of child victims of offences covered by the Optional Protocol;
(c) Develop an operational mechanism or tool, such as standard operating procedures, for assisting child victims of offences covered by the Optional Protocol, that, among other things, enables their identification and their referral to the police and to the necessary support services;
(d) Increase the number of shelters and safe houses.
VIII.International assistance and cooperation (art. 10)
Multilateral, bilateral and regional agreements
44. In the light of article 10 (1) of the Optional Protocol, the Committee encourages the State party to continue to strengthen international cooperation through multilateral, regional and bilateral arrangements, especially with neighbouring countries, including by strengthening procedures and mechanisms for coordinating the implementation of such arrangements, with a view to improving the prevention of offences under the Optional Protocol and the detection, investigation, prosecution and punishment of those responsible for any such offences.
IX.Follow-up and dissemination
45. The Committee recommends that the State party take all appropriate measures to ensure full implementation of the present recommendations, inter alia by transmitting them to the relevant government ministries, the Parliament and national and local authorities for appropriate consideration and further action.
Dissemination of concluding observations
46. The Committee recommends that the report and written replies submitted by the State party and the present concluding observations be made widely available, including through the Internet, to the Government, the Parliament, the courts, the public at large, civil society organizations, youth groups, professional groups and children, in order to generate debate on and awareness of the Optional Protocol and its implementation and monitoring.
47. In accordance with article 12 (2) of the Optional Protocol, the Committee requests the State party to include further information on the implementation of the Optional Protocol and the present concluding observations in its next periodic report under the Convention on the Rights of the Child, to be submitted in accordance with article 44 of the Convention.