A critical analysis of eThekwini Municipality’s bylaws that criminalise children in street situations.

Abstract

For a little more than fifteen years, children in street situations have been a focus of concern for relief organisations, such as NGOs and governments. There are children on the streets in every country, which is an issue in both developed and developing countries. This is not unique to South Africa. Post-apartheid government was tasked to redevelop and correct the ills of the past including but not limited to matters of poverty, social development, law enforcement and inequality; through following and holding high the provisions in the constitution. Children in street situations are protected by section 28 of the Constitution of the Republic of South Africa, 1996, which extends to their best interests being paramount. This leaves the state with powers invested in them to care and protect them. However, there have been criticism rising about lack and/or inadequacy in eThekwini Municipality bylaws that criminalise these children. Their approach highlights negligence and a shortfall in policy and strategy formulation meant to protect, care and manage homelessness and children in street situations in their city. The perception created by the bylaws is that children in street situations are a “nuisance, vagrants, criminals” and so forth. This categorisation and stigmatisation is in conflict with children’s rights inter alia in the Constitution, the Children’s Act 38 of 2005, the African Charter on the Rights and Welfare of the Child, and the United Nations’ Convention on the Rights of the Child. This study unpacks the eThekwini Municipality’s bylaws in relation to children in street situation and finds that it fails to care and protect these children in line with its local government obligations. The study draws on principles established in case law, advisory opinions, soft law and treaty obligations, particularly that of the African and Inter-American regional legal systems. Recommendations are made to help align policies, bylaws and strategies to speak children’s rights and state obligations.