The Constitutionalization of Children’s Rights in South Africa

When the Republic of South Africa drafted its Interim Constitution in 1994 and its final Constitution in 1996, it was a groundbreaking moment in the advancement of children’s rights. It was the first time that children’s rights were robustly and comprehensively recognized in the express language of a nation’s constitution. Before then, children’s rights were recognized primarily through statutes, case law, and international treaties, with only occasional recognition of specific rights such as the right to primary education and certain family rights found in the express language of constitutions. Additionally, a variety of courts interpreted their constitutions to recognize children’s rights (albeit usually limited rights both in number and scope relative to adults), but no country had promulgated a constitution that recognized children as a unique population of rights holders with numerous specific rights beyond those held by adults. This article outlines the development of children’s rights in South Africa within domestic, international, and historical contexts with a heightened focus on children’s rights under South Africa’s interim and final constitutions. It then identifies some of the most definitive decisions of the South African Constitutional Court interpreting children’s rights under the final Constitution, and questions whether the recognition of children’s rights in the constitutions of post-apartheid South Africa is making a difference in the day-to-day lives of children.