understanding kinship care of children in africa

319 Pages·2014·21.77 MB·English

by  Edmund Amarkwei Foley

UNDERSTANDING KINSHIP CARE OF CHILDREN IN AFRICA: A FAMILY
ENVIRONMENT OR AN ALTERNATIVE CARE OPTION?

B Y
USANG MARIA ASSIM
LLB (Ife) LLM (Pretoria)

A thesis submitted in fulfilment of the requirements for the degree of Doctor of
Laws in the Faculty of Law at the University of the Western Cape

PROMOTER:
PROFESSOR JULIA SLOTH-NIELSEN
Senior Professor and Dean of Law, University of the Western Cape and 2nd Vice-
Chairperson, African Committee of Experts on the Rights and Welfare of the Child

CO-PROMOTER:
DR BENYAM D MEZMUR
Lecturer, Faculty of Law, University of the Western Cape and Chairperson, African
Committee of Experts on the Rights and Welfare of the Child

NOVEMBER 2013
DECLARATION
I certify that the work presented in this thesis: ‘Understanding kinship care of children in Africa: A family

environment or an alternative care option?’ is, to the best of my knowledge and belief, original, except as

acknowledged in the text. I further certify that this work has not been submitted, either in whole or in part,

for a degree at any other university or academic institu tion.

Name: Usang Maria Assim
Signature:
Date: 25 November 2013

The law reviewed in this study is stated as at the end of October 2013.

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DEDICATION

To the LORD God Almighty

“A father to the fatherless,

a defender of widows,
is God in his holy dwelling.
God sets the lonely in families….”
(Psalm 68: 5-6)

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ACKNOWLEDGEMENTS
‘The end of a matter is better than its beginning, and patience is better than pride’ (Eccl. 7:8). The PhD
journey has been for me, a humbling one along a narro w road; but I am grateful for the many lessons learnt

and the growth experienced in several domains of my life and personality.

I am grateful to my supervisor, Prof Julia Sloth-Nielsen whose dedication to excellence always pushed me to

give the best I could, not only in the course of writing this thesis but in all research projects I have
undertaken under her watch. I have been so amazed by her depth of knowledge and eagerness to pass on
the knowledge, and I have learnt a lot from being privileged to work under her supervision. Thank you very
much, Prof. I am also grateful to Dr Benyam Mezmur who, despite his busy schedule, always made time to
go through and give incisive comments on several draft chapters of portions of this thesis. Special and
heartfelt thanks to Prof Dr Katharina Boele-Woelki who hosted me at the Utrecht Centre for European
Research into Family Law at Utrecht University (The Netherlands) for three months in 2011, and walked
with me through some of the difficult parts of getting this work done.
The Community Law Centre (CLC) has been my home since March 2010 when I embarked on the PhD
journey, and I am very grateful to the entire CLC family for the support I have received. Dear Jill Claassen
(formerly the Information Manager at the Community Law Centre (CLC), and currently the Research
Repository Manager at the main library of the University of the Western Cape (UWC)), thank you so very
much for everything. Not only could you gain access to the most up-to-date and important materials at
your fingertips, best of all, you always could make me believe I was the best researcher ever, thereby
keeping me motivated all the way. Sincere thanks to Trudi Fortuin (former Office Manager at CLC); your
regular mails and calls to ask after my welfare and progress backed by several meals will never be
forgotten.
My sincere thanks to the management and staff of CLC for making this dream come true. I am grateful to
the former Director of the Centre, Prof Nico Steytler and the current Director, Prof Jaap de Visser for
providing an environment to work in. Thanks to all the Project Coordinators: Ms Samantha Waterhouse,
Prof Lukas Muntingh, Dr Ebenezer Durojaye, ‘Dr’ Derek Powell, and most especially Mr Edmund Foley of
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the Children’s Rights Project. Mr grateful thanks are also due to all the administrative staff for all their
support (Crystal, Valma, Kay, Nadia, Nikita, Lee-Anne and Piwo). I especially thank Ms Virginia Brookes for

doing all to make sure the stipends kept rolling in. I cannot thank the Office Manager, Mrs Debbie Gordon

enough for her care and concern for my health and general well-being among other things. Debbie, thank

you particularly for doing all to shield me from all distractions so I could focus and finish. I will always be

grateful to you. Thanks to all the researchers in the different projects: Phindile Ntliyiwana, Clare Ballard,
Gwen Dereymaker, and Jean Redpath. To Annette my sister and friend, thank you so very much. To Gladys,
asante sana for everything.
To all post-doctoral and fellow doctoral researchers, thank you very much for the support and
encouragement all the way: Dr Zemelak Ayele, Mr Tinashe Chigwata, Mr John Muthaka, Ms Thuli Selokela,
Ms Ngcime Mbano-Mweso, Nicholas, Mr Enoch Chilemba, Mr Chofor Che, Mr Douglas Singiza, Mr Michel
Ndayi, and my brother, Mr Ayodeji Bello. Special thanks to my fellow ‘Hotel Belhar’ occupants: Dr
Aquinaldo Mandlate, Dr Conrad Bosire and Dr Nkatha Murungi. I also offer thanks to Mr Jacob Nthoiwa,
CLC’s calm Information Manager and Sibongile for all her efforts at keeping the offices clean daily. I also
made friends at the Law Faculty in the course of this journey and their support has contributed to my
success. Thanks to Uncle Eddie, Farieda Hendricks, Cheryl Davids, Hazel Jephtah, Maggie Nelson and Mrs
Lynette Thomas.
To my natural and church family members, at home and abroad, words can never be enough. Thanks for
your prayers, support and encouragement all the way. God bless you. To my friends, at home and abroad,
you made this journey far less lonely than it could have been. Thank you for keeping in touch through the
years to offer love and encouragement. To the best little sister in the entire world, Deborah Damilola
Adeyemo, words are not enough…our relationship is one of the very best things in my life. I will always love
you, and be grateful to God for you and for your presence in my life.
Finally and most significantly, I am grateful to the Almighty God who has brought me from a mighty long
way and is yet taking me further because ‘He knows my name’.

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KEY WORDS AND PHRASES

1. Kinship care

2. Kin/Extended family

3. Alternative care
4. Foster care
5. Child protection
6. Children’s rights
7. Family/Family environment
8. Convention on the Rights of the Child
9. African Children’s Charter
10. UN Guidelines on the Alternative care of Children

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ABSTRACT

In Africa generally, orphaned and vulnerable children are traditionally cared for by their relatives or close

family friends; this is an abiding practice even in contemporary times. This was historically considered to be

a moral obligation binding on different relatives in different ways or at differing levels. In the face of the

increasing complexities and changing demographics in African societies, high levels of poverty and socio-
economic inequalities as well as the incidence of HIV and AIDS, among others, the traditional family
continues to undergo structural changes and experience various challenges which make child rearing
responsibilities difficult to cope with especially in the context of loss of parental care. Nonetheless, the
extended family system still bears the greatest burden in caring for such children, despite the obligation of
governments to provide alternative care for children without parental care. The care of children who have
become deprived of parental care by other relatives/family members or family friends is generally
described as kinship care.
This study seeks to examine kinship care against the background of international children’s rights law as
encapsulated in the United Nations Convention on the Rights of the Child, the United Nations Guidelines on
the Alternative Care of Children and the African Charter on the Rights and Welfare of the Child, among
others. Thus, this research seeks answers to a number of related research questions such as: Does the
international children’s rights framework recognise or provide for kinship care as a measure of alternative
care for children deprived of a family environment? What is the history and practice of kinship care in
Africa and what are the challenges confronting kinship care in contemporary African societies? What is the
relationship between kinship care and the child protection system? And what forms of support are
available for kinship care at both the international and national levels?
Four main themes are considered in separate chapters of the thesis as follows: the contextual and historical
background to kinship care in Africa; the international and regional legal framework on the right to
alternative care; the conceptualisation of kinship care as alternative care; and the law and practice of
kinship care in selected domestic jurisdictions. South Africa and Namibia are the main focus of this study in
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the chapter on the status of kinship care at the domestic level. This is mainly because both countries have
made some progress in the attempts at (legally) providing for kinship care and addressing some of its

attendant challenges, with a particular emphasis on the provision of support for kinship care.

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ACRONYMS/ABBREVIATIONS

Acronym/Abbreviation Description

ACERWC African Committee of Experts on the Rights and Welfare of the Child

ACHPR African Charter on Human and Peoples’ Rights

ACPF African Child Policy Forum
ACRWC African Charter on the Rights and Welfare of the Child
CA Children’s Act (South Africa)
CCPB Child Care and Protection Bill (Namibia)
CDG Care Dependency Grant (South Africa)
CRC Convention on the Rights of the Child
CRC Committee Committee on the Rights of the Child
CSG Child Support Grant (South Africa)
DSD Department of Social Development (South Africa)
FCG Foster Care Grant (South Africa)
FPG Foster Parent Grant (Namibia)
GC General Comment
Hague Convention Hague Intercountry Adoption Convention (1993)
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ILO International Labour Organization
ISS/IRC International Social Service/International Reference Centre for the
Rights of Children Deprived of their Family
LAC Legal Assistance Centre (Namibia)
MGECW Ministry of Gender Equality and Child Welfare (Namibia)
OVC Orphans and Vulnerable Children
SALRC South African Law Reform Commission
SMG South African Law Reform Commission
The 1924 Declaration The Geneva Declaration of the Rights of the Child (1924)
The 1959 Declaration The Declaration of the Rights of the Child (1959)
The 1986 Declaration The Declaration on Social and Legal Principles relating to the
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Protection and Welfare of Children, with Special Reference to
Foster Placement and Adoption Nationally and Internationally
(1986)

The 1979 Declaration The Declaration on the Rights and Welfare of the African Child

(1979)

UDHR Universal Declaration of Human Rights

UK United Kingdom
UNG United Nations Guidelines on the Alternative Care of Children
UNICEF United Nations Children’s Fund
USA United States of America

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