Normative Definitions In the South African Context

International and Domestic Legal Conventions and Legislations

States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.



States Parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities.



States Parties shall refrain from recruiting any person who has not attained the age of 15 years into their armed forces. In recruiting among those persons who have attained the age of 15 years but who have not attained the age of 18 years, State Parties shall endeavour to give priority to those who are oldest.



In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children who are affected by an armed conflict.

State parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.

States Parties to this Charter shall undertake to respect and ensure respect for rules of international humanitarian law applicable in armed conflicts which affect the child.



States Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and shall refrain in particular from recruiting any child.



States Parties to the present Charter shall, in accordance with their obligations under international humanitarian law, protect the civilian population in armed conflicts and shall take all feasible measures to ensure the protection and care of children who are affected by armed conflicts. Such rules shall also apply to children in situations of internal armed conflicts, tension and strife.28

Context Analysis:

1973-1983 - The Soweto uprising marked the beginning of the open resistance era to apartheid. It was accompanied by an important element which was the protagonist role that the children of the country acquired from then onwards.

After almost 15 years of peaceful resistance to apartheid (1961-1976), the children of Soweto mobilised against the language medium of their education - Afrikaans. The uprising that sparked this protest was followed by many throughout the country, leaving scores of children under arrest, displaced from their traditional homes, or even dead.

It also created new expectations of the possibility of fighting the regime, and the need to engage in armed struggle to overthrow it. This led to a new exodus of children across the border to participate in armed struggle against the regime. However, despite the fact that many children left the country, there is no clear evidence that they returned to fight and engage the regime in direct military actions (TRC Special Report, 1998; Brett and McCallin, 1996).



1983-1990 - The protagonist role continued and it was intensified during this period - when the United Democratic Front (UDF) called to make the townships "ungovernable" (MDM, 1989; Seekings, 1993). It is important to raise that the emergence of the UDF in 1983, signalled the beginning of a new era of popular resistance, where the townships were the focus of the struggle.In this process, to resist meant to involve all possible sectors of the communities, making it almost impossible for the local authorities to operate. This included the distortion of normal routines at schools.

This process meant that child participation in the struggle increased, and their protagonist role became more prominent. This was the case with schools, for example, where the process of boycotting classes continued, following the tradition established in 1976 (Seekings, 1993). Moreover, it meant the strongest retaliation from the state, which had to call two states of emergency to contain the resistant mode of the children and others in the townships (Seekings, ibid).

Indeed, the children, or the "youth" as the people under 18 years who were commanding the revolts throughout the country became known, led most of the historically heroic actions. But as much as they protested and challenged the regime, the repression was also felt. More children were detained in this period (in particular 1986), than ever before, as the state used all its might to control the dissidence (Lawyers Committee for Human Rights, 1986).



. 1990-1994 - The era of political transition initiated on February 2, 1990 transformed the political role of children. Moreover, the return of exiles brought on board a sense of reorganisation of the struggle as far as the leadership managed to come to the country and lead the political transition. In this regard, the children lost their protagonist role.

However, the internal conflicts in South Africa, and in particular the emergence of political conflicts between the ANC and the IFP in particular in Johannesburg and KwaZulu/Natal, led to the emergence of the so-called Self Defence Units and the Self Protection Units, which increased the violence and re-established the protagonistic role of children during the transition.34

The violence involving these two political factions went beyond control in the early 1990s. It consolidated an experience that emerged in 1976 with the Soweto uprising, and demonstrated that children’s participation in the "wars" of the country was more important than their participation in normal children’s activities.

The social impact of this process has to be seen in relation to further disruptions in the children’s lives; lack of participation in normal age-related activities; further involvement of children in criminal or pseudo-criminal activities; and a major dislocation of family life, where a "point of no return" took place in the life of many children, who where not able to return to their homes and became urban nomads, or street children.

The following summarises the experience of the 1990s, and is told by a former Self-Defense Unit member.

More [disturbing] is the fact that they are being seen as the persons responsible for the crime wave. "This is not so" says a former unit member... "There are some members who do crime but then their behaviour stems from other factors and not merely because they are members of the SDUs. One of these is the fact that many former members... find it difficult to return to school." (As quoted in Brett and McCallin, 1996:170; emphasis added).



1994 to present - This period is marked by the first democratic governments attempts to develop acomprehensive policy for children.

For example, one of the first measures taken by President Nelson Mandela, was to institute free access to medical services for those under six years. Through decisions of the Constitutional Court and policy implemented by the Ministry of Justice, children were treated again as children, and were not processed by the criminal justice system as adults.

In addition, the Ministry of Welfare embarked on a consultation process leading substantial reform in the way in which children are handled by the criminal justice system. This process has resulted in several proposals leading to the so-called "juvenile justice" reform (Pinnock, 1997).35

Finally, the government launched in 1997 the National Youth Commission, which has almost a constitutional ranking, and is to facilitate the development, welfare and general status of young people. Although it does not embody exclusively children (under 18 years), it embodies a general vision which is consistent with the legacy of the struggle - where children, youth and comrades were virtually the same category of people (Seekings, 1993).

Recruitment Methods

By spontaneous adherence to a protest/challenge against the apartheid regime. This is the case of the Soweto uprising and its immediate aftermath.



Alternatively, in the early 1980s, the banned political organisations realised the power that young people’s organisations could have in challenging the authority of the apartheid state. As a result, political organisations began a drive to involve children and young people, to use them in the uprising against the regime.36

The recruitment was geared at two levels: for the children to participate in the actions of social unrest that were mostly concentrated on making the townships "ungovernable"; and in recruiting these children to participate in the liberation armies in exile.37



As from the late 1980s, the state response to the national resistance and uprising was to develop other forms of repression against the social forces that were challenging its authority. This included, among others, the development of vigilante forces and state-run initiatives by "private sectors". In the particular case of vigilante organisations, the children were not only their targets, but also a source for their forced recruitment policies (Jeffrey, 1997a:61-77).38



In the early 1990s the political conflicts and tensions between two of the main African political organisations led to a formal recruitment of political cadres to join the Self Defence Units (SDUs) and Self Protection Units (SPUs). Different to a traditional national liberation army, these forces were defending the communities from the attack of vigilante organisations (Cronin, 1991; Marks, 1995). They were armed and mobilised to engage in a low intensity war against their immediate enemy - another black organisation operating in the community. In this regard, the emergence of vigilantism in the late 1980s, created the conditions for the open recruitment of young people either to the vigilante organisations or to the self defence organisations. In both circumstances children

The process of recruitment in a way comes to an end after 1994. Once the government of national unity was put in place, and the major opposition parties in the violence of "black against black" were represented in the new political dispensation, the level of violence, at least political violence, was reduced and with it the need to recruit further urban [child] soldiers.

The identity of the struggle:

1976-1983 - An identity of spontaneous leadership, challenging the state authority and opening the door for active players in the struggle against the regime.



1983-1989 - An identity of "domestic" freedom fighters - historical role and intervention that led the children, now classified as youth, to adopt a highly militant role in challenging the state authority in the communities, and which motivated for making the townships "ungovernable".



1990-1994 - As "defenders of the community". As the struggle and conflict evolved, and the regime had to diversify its repression, children/young people had to move to the terrain of defence of the communities; particularly because the targets of the state-led repression were no longer activists but ordinary unrelated and defenceless community people.40

Psychological and Social Damage

Role of Civil Society and the State

Developing a frame of tolerance in a particular period when the state response, versus the people’s response, was deeply immerse on violent solutions.



Providing necessary support to the victims of the violence, and in particular to children.



Creating capacity where it was needed, entering and participating in many communities in difficult times, when state authority was contested and nonexistent.



Promoting alternative solutions to the then climate of violence that permeated through the country, and fostering the idea for a political resolution of the conflict.



Taking over the country during the transition from 1990 to 1994 and managing to exercise the role of an acceptable governing body, when the apartheid state could not provide an alternative.50



Providing assistance in the reintegration and resocialisation of children who participated in the conflicts of the past. This has occurred notwithstanding many difficulties.51

It moved the internal debate on the question of children at war beyond the national frontiers. The internationalisation of the problem provided for further inputs and international parameters to assess the national question of South Africa.



It created an important pressure group on the South African government, forcing it to handle the domestic question, in particular violence against children, with more care and caution (Lawyers Committee for Human Rights, 1986:11).



It provided necessary financial assistance for the legal actions, solidarity support and infrastructure development that was needed in South Africa to foster a struggle against apartheid in which many children were involved, but also assisted the local initiatives that emerged out of the political violence and which required an active [progressive] civil society.



It provided an important "donor culture" influence in many of the programmes developed in South Africa during those days, which needed to accommodate internationally accepted practices, at least in relation to children and young people matters.55

Demobilisation, Reintegration and Resocialisation Mechanisms in a PosT-apartheid Society

was at least 35 years of age on the commencement date; and



was prevented from providing for a pension because, for a total or combined
period of at least five years prior to February 2, 1990, one or more of the following circumstances applied:



that person was engaged fulltime in the service of a political organisation.



That person was prevented from leaving a particular place or area within the Republic, or from being at a particular place or in a particular area within the Republic, as a result of an order issued in terms of a law mentioned in Schedule 1 of this Act.



That person was imprisoned or detained in terms of any law for any crime mentioned in Schedule 1 of this Act, or
that person was imprisoned for any offence committed with a political objective.

The state has to provide clear guidance to avoid the past being repeated, in particular in terms of the effects of the criminal justice system on children. The current process of reform and transformation of the criminal justice system must be speeded up so that the benefits of a new legal order reach children and young people sooner rather than later.



Special education should be provided to any one who lost his or her "history" for having been involved in the politics of the country. Age should not be a factor to take into consideration when analysing the need to provide basic schooling to all those who fought against the apartheid regime and for the transformation of the country into a democratic and egalitarian society.



Greater speed is needed in the process of complying with international obligations in relation to the rights of the child. The international parameters will provide now, in addition to the national legislation, the basic standards that need to be provided by the government.



Civil society, not only the so-called progressives must become heavily involved in assisting in the empowerment of those many children who participated in the struggles against apartheid in the mid-1970s and mid-1980s. A social responsibility tax deduction, for example, geared to providing upliftment programmes or initiatives for children and young people, should be adopted in the country.



A more comprehensive state policy, is needed to deal with the conflicts of the past and recognise that not only black activist children were traumatised due to the the type of civil war experienced in the country. White children were also victims of the struggle of the past, and those who were conscripted and participated in the South African Defence Force at under 18 years old, must have been seriously affected by what they experienced.



Although South Africa must comply strictu sensu with the international conventions, it should use them as minimum rather than maximum standards. In this regard, age limitation (18 year and under) should not preclude the government from providing additional incentive to those "young lions" in their late 20s or early 30s, who seriously participated in the transformation of South Africa.



The government should prohibit the recruitment of children under 18 years to enter into the national security forces, and in particular the army.61



The government should strengthen all legislation in relation to the possession and sale of arms.



South Africa should take a leading role in the international community to encourage other states, and in particular, African states to:

a. prohibit and punish the use of children in armed conflicts of any kind.

b. encourage other states of the international community to punish those responsible for the involvement of children in armed conflicts.

c. engage in an international campaign to prohibit the further development of the arms industry geared to child soldiers, by way of manufacturing lighter weaponry.



A national policy dealing with children as victims of South Africa’s wars, should be developed, focusing on the gender differentiated impact of the conflicts of the past.



Policy should be established prohibiting South African based military/mercenary operators from recruiting children to fight in the military conflicts of the African continent.



The South African government should seek the international criminalisation of the practice of recruiting children to participate in armed conflicts. Those who are active in recruiting children to participate in military conflicts, should be responsible before the International Criminal Court when it comes into effect.

The use of the word child defines any person under 18 years old. Although international legal conventions such as the United Nations Convention on the Right of the Child (UNCRC, 1989), allows for children under 18 years and over 15 years, to be conscripted, the general discussion in this monograph adopts the emerging dominant trend to prohibit the use of children under the age of 18 in any capacity in war conflicts or military activities. (Coalition, 1998).



Almost 99 percent of the 190 state-members to the United Nations, are signatories to the UNCRC (NGO Coalition, 1998); exceptions are the United States and Somalia (Coalition, 1998).



As I will contextualise below, South Africa’s history of resistance against the oppressive apartheid regime can be categorised at various chronological stages. Perhaps it is possible to talk about before and after the Rivonia trial in the 1960s; and before and after the 1976 Soweto students’ uprising against compulsory education in the Afrikaans language. What is important to state, as analysed later in the text, is that the 1976 students’ revolt, led by "child soldiers" created the foundations for a new collective memory of resistance and triumphalism, which led the country into the 1980s and the subsequent people’s revolts (cr ref, Seekings, 1993:30).



It is important to highlight that South Africa’s wars included direct military intervention by the state in the 1970s and 1980s in neighbouring states - such as the military intervention in Angola, and the proxy war in Mozambique. Internally, the wars involved state repression against organised and non-organised expressions of popular resistance. In either experience, children were victims and perpetrators of the conflicts.



It is impossible to describe what the unequal experience of apartheid symbolised for all in South Africa, but most specially for children. Black children were, in a way, entitled to no benefit or state protection. This led, not without contradictions and conflicts, to the eventual rebellion of the children against the system. In the case of white children, despite allegations of their role and involvement in the defence of the ‘nation against the communist invasion’, they received wide support and protection from the state - making the life inequality harsher for black children than for white children (Goldstone Report, 1994).

Thipanyane describes the impact that the apartheid regime and unequal policies had for white children and black children in the context of street children:

In 1990 there were an estimated 9 000 street children in South Africa, homelands included. There were no white street children in the same period, but there were about 10 000 white children in 160 state registered and subsidised children’s homes. This can be contrasted with 12 private children’s homes accommodating just 1 000 African children and 11 places of safety which accommodate 700 African children. With the declining economic conditions and escalating political upheavals, the number of homeless children in South Africa is likely to increase. However, there is very little being done for homeless children. (Thipanyane, 1995:123)



The Truth and Reconciliation Commission of South Africa - Report (1998) describes the above situation:

Fear of the ‘other’ was implanted in [white] children under the guise of an imminent ‘communist’ plot, articulated through slogans such as ‘total onslaught’. All this contributed to a situation in which many white males concluded that it was their obligation to serve in the armed services. (TRC - Report, 1998:Vol 4, 257).



Most of the literature revised for this monograph does not examine the role of white children in South Africa’s internal war. In this regard, the monograph reproduces the existing logic of other researchers and concentrates mostly on the essential parties in conflict in the past (cr ref, Rock, 1997; Marks, 1992, 1995; Seekings, 1993). However, recent government initiated work (both before and after the 1994 transition) tends to provide space to constructing the history of the past involving the experience of white children as well (TRC - Report, 1998; Goldstone Report, 1994).



The modality of South Africa’s use of child soldiers during the height of the internal conflicts (1976 to 1994) is different to that of many other African or international experiences. Age limitation for children to participate in the state army (white males) was 16 years during the apartheid era (Brett and McCallin, 1996:46). The post-apartheid era increased the age limitation to 17 years. However, the irregular armies, of the national liberation forces, used children below 18 years old, during the struggle against apartheid, and also during the 1990-1994 transitional era, when intra-black violence emerged (Brett and McCallin, 1996:47). In this regard, both "armies", the state and the non-state, used children to pursue their aims.



This state assumption is constituted within the states best interest approach for its citizens. There is no scientific or other evidence that can legitimately justify that 18 years is the right age to enter into conflict. Probably this is based more on a moral attitude to early age participation in armed conflicts, than on a justifiable delivery problem.



In certain ways, South Africa’s history is similar to that of Northern Ireland, where children’s’ involvement was beyond the traditional military structures. In both countries, children got involved as members of paramilitary organisations or national liberation forces, as victims; and as members of their own organisations and initiatives outside the political organisations (ie, as petty criminals, joyriders etc). For an interesting exploration of the Northern Ireland conflict, see Smyth (1998).



This debate is important on two levels: firstly to disentangle South Africa’s experience from normative and legal definition of what constitute a child at war; secondly, to be able to create a multiple identity approach when analysing South Africa’s "child soldiers," because in a way they were victims of an oppressive and repressive regime, but they were also agents of transformation and radicalism. More on this in the text.



In terms of the state army during the apartheid era, the South African Defence Force was the official institution. The national liberation forces were Umkhonto we Sizwe (MK) for the African National Congress and the Azanian People’s Liberation Army (APLA) for the Pan African Congress.



In the Truth and Reconciliation Commission Report (1998), for example, there is no mention or suggestion that the two national liberation armies (MK and APLA) did recruit young people under the age of 18 years (TRC Report, 1998: Vol Four, Chapter Nine). Even in the case of the political violence in KwaZulu Natal, the involvement of children was more as victims of the violence, or as proxy urban militants, who did not belong to any formal army or liberation army but who were seriously involved in the urban/township protests (cr ref, Jeffrey, 1997a).



I am playing here with Harold Wolpe’s famous political analysis of South Africa as "colonialism of a special kind".



For the purpose of this monograph, although noticing the popular perceptions - at least in South Africa - the international legal convention definitions are used in the strict sense.



Seekings, for example, examines the problem of normative definitions by stating that:

South Africa underwent considerable social change in the 1980s; childhood, youth and adulthood became blurred as the ‘natural’ progression from home to school, and then to work became anything but commonplace. In this context the category of youth came to be increasingly understood in terms of attitudes and behaviour, particularly related to the process of political change. This has given rise to stereotyped understanding of the youth, with each stereotype based in an interpretation of the broader processes of political change. (Seekings, 1993:2).



As I will discuss below in the text, although the international legal conventions operate, as well as now the South African Constitution of 1996, it is important to distinguish and to differentiate the context of South Africa’s history. In particular, because during the heyday of the struggle 1976-1990, and during the transitional period (1990-1994), perceptions of what constituted a child did not necessarily match international understanding.



The above discussion is relevant when one is developing policy, as it has occurred in South Africa, in relation to children/young people. Those who were children yesterday, in particular during the 1970s, and are now young people (mid-30s) are, perhaps, to benefit from certain state initiatives such as the National Youth Commission, and also from the Truth and Reconciliation Commission recommendations (TRC Special Report, 1998).



Sitas for example describes this difficult normative categorisation as follows: The tyre, the petrol-bomb, the knife, the stone, the hacking: death. The words, "comrade" and "amaqabane" conjure them up... The word [comrade] frames images of unemployed black youth with no future, no home, busy destroying everything in their way: homes, shops, schools, infrastructures and traditions... [T]he media picture is of young men, hungry men, with hardened features and red eyes. (Sitas, 1991:6 - as sited in Seekings, 1993:3).



There have been many attempts by various scholars to define the generation of children [and young] people who participated in the struggle of the 1970s, but in particular who were highly involved in the 1980s. Among others, it is important to mention Schärf’s definition of "militarised youth" - describing those young people who participated from civil society in the social uprisings against apartheid (Schärf, 1997).



The post-1995 period of redefinition of normative concepts, coincides with South Africa’s adoption of the international Convention on the Right of the Child. This process re-creates the discourse, both legal and social, of how to classify those involved in the armed conflict of the 1980s.

For example, Duncan and Rock redefine the experience of the 1980s by stating:

In essence, apartheid gave rise to, and fed on, the brutalisation of black children and the communities in which they were located. To a certain extent, the brutalisation of black children can be seen as having been a pre-condition for the functioning and success of apartheid, because in order to succeed this system had to produce an oppressed group that was so dehumanised that it could accept white dominance, as well as its own domination, without too much protest. (Duncan and Rock, 1997:52).

For an additional reinterpretation of the introduction of the normative concept of "child" (and children) in the 1990s, see Goldstone Report (1994).



The discussion of what constitutes an armed conflict is governed for international conflicts under the 1949 Geneva Conventions and the 1977 Additional Protocols I and II to the Geneva Conventions of 1949. What is important is that it has been established that "‘hostilities’ means a battle or similar armed engagement in an armed conflict" (Brett and McCallin, 1996:188). However, it is important to highlight that social scientists have provided a looser definition, based on a definition of levels of violence and number of people killed in any particular conflict (Wallensteen and Axel, as quoted in Lederach, 1998:26). For the purpose of this monograph, although I adopt a more traditional definition according to international law, I also found it important to explore popular or non-legal definitions of armed conflicts. In a way, international legal conventions, as with any domestic legal legislation, are subject to natural limitations.



South Africa in this regard poses an interesting modification of the international experience of armed conflicts and the involvement of children. The conflicts of the past, in which many children participated, did not involve exclusively an open war against the state; or between the state and guerrilla movement. In fact, a great deal of conflict, in particular in the 1990s, involved armed conflict between two political movements, without the direct participation of the state (Brett and McCallin, 1996:chapter 5). Palestine and Northern Ireland have similar histories.



Jeffrey provides a good analysis of the role of the KwaZulu Natal "civil war" between the African National Congress and the Inkatha Freedom Party. From her account, it was clear that young people were at war with non-state parties, and that they were suffering the consequences of this engagement. Young people as well as children died innocently in this conflict (Jeffrey, 1997a:396).

The Truth and Reconciliation Commission, in its final report, also opens the door for the exploration of the role of vigilante forces in the [state] war against young children/people. The intervention of these forces further increased the brutalisation of the conflict.

Vigilantes were recruited from the ranks of the homeland authorities, black local authorities, black police officers and those who wished to protect existing social hierarchies. The state colluded with vigilante organisations to destabilise resistance organisations. As migrant hostel dwellers were drawn into the conflict with youth, vigilante attacks came to reflect class, ethnic and geographic differences.

Many vigilante attacks were rooted in integenerational conflicts. Some men saw the dramatic surge of women and youth to political prominence as a threat to the patriarchal hierarchies of age and gender. Young people were perceived to be undermining the supremacy of traditional leaders who saw it as their duty to restrain them. Vigilantes mobilised around slogans such as ‘discipline the children’, and frequently described themselves as ‘fathers’. (TRC - Report, 1998: Vol 4, p 255.).



As an example, the Coalition to Stop the Use of Child Soldiers (1998), argues that:

Although as discussed below, international human rights and humanitarian law currently set 15 as the minimum age for military recruitment and participation in armed conflict, national laws in the majority of the world’s countries set that limit at 18. (Coalition, 1998:7).



It is important to note that there is a distinction between international human rights law, which applies only to the states, and international humanitarian law, which regulates the nature of armed conflicts. It has been understood that international humanitarian law applies to all parties, as a result of specific clarity in the conventions or as an adopted international legal practice (Brett and McCallin, 1996:188-189).



Kirmaryo describes what it entails for a state to sign and domestically ratify the UNCRC:

Ratification of the Convention means respecting and ensuring the rights set in it, for all children, without discrimination. It also involves the adoption of measures, be they legislative, administrative, programmatic or other as appropriate to the implementation of the rights.

The implementation of the Convention is a long-term process/goal and this is a responsibility for all sectors of society, requiring enormous effort from all.

Incorporation into the programming process includes situation analysis; objective/goals; strategies; planning/National Programme of Action; implementation; and monitoring and evaluation. (emphasis in original; Kirmaryo, 1995:25).



It is important to add, following Brett and McCallin, that:

The only regional human rights treaty which addresses the age of recruitment is the 1990 African Charter on the Rights and Welfare of the Child, Article 2 of which defines a child as every human being below 18 years. Article 22 reaffirms the obligation to respect and ensure respect for rules of international humanitarian law, and goes on "(2) States Parties to the present Charter shall take all necessary measures to ensure that no child shall take a direct part in hostilities and shall refrain in particular, from recruiting any child". Thus government may not recruit under 18s, and has an absolute duty to ensure that under-18s do not take a direct part in hostilities. Unfortunately, not enough states have yet become parties to this Charter to bring it into effect. (Brett and McCallin, 1996:1993; emphasis added).



The 1993 Interim Constitution stated:

Section 30:

(1) Every child shall have the right -

(a) to a name and nationality as from birth;

(b) to parental care;

(c) to security, basic nutrition and basic health and social services;

(d) not to be subject to neglect or abuse; and

(e) not to be subject to exploitative labour practices nor to be required or permitted to perform work which is hazardous or harmful to his or her education, health or wellbeing.

(2) Every child who is in detention shall, in addition to the rights which he or she has in terms of Section 25, have the right to be detained under conditions and to be treated in a manner that takes account of his or her age.

(3) For the purpose of this section a child shall mean a person under the age of 18 years and in all matters concerning such child his or her best interest shall be paramount.



The impact of South Africa’s adoption of the UNCRC and its role in modifying the domestic legal order, has been studied by others. In particular see Thipanyane (1995).



In conversation with attorney Vincent Saldanha from the Legal Resources Centre (Cape Town), on December 9, 1998, who is coordinating the projects of the office on children rights, it was clear that for the local legal fraternity involved in this area of work, South Africa’s ratification of the convention is a positive asset. The ratification of this convention provides additional tools for enhancing the rights of South Africa’s children.



In conversation on November29, 1998 with Priscilla Jana, MP (member of the national assembly at national parliament) , who is a member of the Judiciary Committee of Parliament, and who has been personally involved in the process of the government signing and ratifying the UNCRC, she stated that South Africa’s past conflicts, internal revolts and the role of the children/young people, do not fit easily with international legal definitions. From her point of view, South Africa was a different experience, where "armed conflict" and children’s participation in it, have to be constructed from the perspective of the internal revolts and the involvement of the children/youth in it.



In particular this can be seen in the debates about reintegration and resocialisation of children/young people at war in a post-apartheid South Africa. In the case of the reorganisation of the criminal justice system, for example, most of the proposals developed since 1994 argued for a more humane system that breaks away from the experience of the past (Pinnock, 1997; Juvenile Justice Drafting Consultancy, 1994).



The Self Protection Units were aligned with the Inkatha Freedom Party, whilst the Self Defence Units were aligned with the African National Congress.



Although no formal policy has been established yet in relation to juvenile justice, a great deal of discussion has been generated nationwide, creating a momentum for a major reform - a reform which will remove children from the traditional criminal justice system when they commit offences.



Seekings, for example, describe this period as follows:

It was during the bitter conflict of the mid-1980s that the youth came to be seen as the driving force of township militancy. Their role in transforming the dream of liberation into an apparently imminent event led to their being celebrated as the ‘young lions’; the association with the rising use of violent direct action led to their being denigrated as mal-socialised savages. In reality, the so-called youth in the mid-1980s included politically astute strategists as well as violent individualists, and many other young people besides. The category of youth was an amalgam of many different types of young people, with a wide range of goals and motivations. (Seekings, 1993:56).



If one takes the Truth and Reconciliation Commission final report (1998) as a guiding document containing strong evidence into what happened in the past, it could be argued that the modus operandi of the recruitment of children/young people was through students organisations mobilised to disrupt social and government order in the communities. However, it cannot be suggested with strong evidence that the recruitment of children/young people was geared towards mobilising this category of people into the national liberation armies, but that instead it is more a phenomenon inferred by the circumstances of the period.



The Truth and Reconciliation Commission final report analysed his phenomenon of recruitment of children/young people into vigilante organisations. In particular it stated:

Some young people were recruited into vigilante activities by, for example, being offered money to attack the homes of activists. Two youth from Thokoza admitted to having been recruited by the police for this purpose. Young people were also manipulated by state projects such as the Eagles, which was founded in the early 1980s, and came into conflict with organisations like the South African Youth Congress (SAYCO). Groups like the Eagles were involved in activities such as assisting the policy to identify activists, launching arson attacks and disrupting political meetings. In 1991, the Eagles were exposed as an official state project. (TRC Final Report, 1998: Vol 4, 256).



The Truth and Reconciliation Commission final reports, states that:

Large numbers of youth, whether politically active or not, were affected by the violence, especially those who lived near hostels. In many cases, the responsibility for protecting their homes and streets fell on children. Some young people turned their attention to the defence of their communities, redirecting their energies into the formation of self-defence units that were, in their view, justified by vigilante attacks. (TRC Final Report: 1998, Vol 4, 255).



Marks summarises this process as:

The consequences of these realities is that youth who do see themselves as "defenders of the community" are forced to play the role of an alternative police service. This in itself is problematic since these youth are not formally trained as police personnel; in some instances, they themselves are the perpetrators of crime and part of gang formations. Their legitimacy, therefore, as defenders of the community, differs from one area to the next. Nonetheless, these youth derive a sense of identity and purpose through their engagement in "policing activities", largely as a result of the fact that they have historically been marginalised from key social activities such as employment and education. (Marks, 1995:25).



Seekings summarises the argument quite clearly when he states:

The ANC encouraged almost any form of militancy as contributing to the intensifying ‘people’s war’ against the state, in which the youth were the heroic combatants. Direct action and confrontation also provided spaces for a range of people to seek social affirmation, and even to enjoy themselves through collective action. The intensification of local struggles drew many people into conflict, including violent conflict who would otherwise have remained passive or peaceful. Young women, by contrast, were largely marginalised. (Seekings, 1993:97).



This is a delicate implication that emerges out of the political transition. As it has been noted by others (Marks, 1995; Rock, 1997) the new dispensation transformed the identity of the children who were highly involved in the years of the struggle, and is not necessarily providing a clear remedy to assist them in the process of reintegration. The discussion at the beginning of this monograph of the implication of adopting the UNCRC and limiting the age determinant factor to 18 years, is a fundamental element to understand the implications of the new state policies in the children/young people generation. For many in the age range of over 18 years to mid-30s, reality seems to be, to paraphrase Seekings, "lost".



Contotsi is a South African word which defines a person who is a comrade and also a small criminal (totsi).



In personal conversation with Monique Marks on December 1, 1998, she notes the fact that the process of reintegration and resocialisation of children/young people has not been completely successful since 1994; in particular because the rate of unemployment is so high, the lack of expectations unfulfilled is also beyond the control of these activists, and the pace of government delivery has been too slow. In this regard, the so-called "lost generation" continues to be "lost".



The following assists in the process of analysing the psychological and social implications of the apartheid regime on the youth.

The TRC Final Report states that:

The security establishment engaged in the informal repression of children by hunting down ‘troublesome’ youth and developing an informer network. This latter had dire consequences for youth organisations. Stories are told about the transfer of detailed children to rehabilitation camps where it is thought that they became informers and participated in counter-mobilisation structures and other state security projects. In the words of Mr Mzimasi Majolo at the Eastern Cape hearing: "Our friends were made to spy on us... be it girlfriends or boyfriends, were forcibly turned to spy on us for the benefit of the monster". (TRC Final Report, 1998: Vol 4, 254).

On the other hand Duncan and Rock (1997a) provide clear statistical information of the amount of children/young people who were caught in the struggle by the security forces and as such, wrongly treated. The age category of those under police arrest, suggests the magnitude of the people’s revolt but also extent into which the state was prepared to repress in order to crush the social uprising. They argue,

Extant research reveals that until 1989 children consistently constituted between 25% and 46,5% of all detainees held by these forces (...). Of these, 25% were aged 16 years and younger (...) and an alarming 6,13% were 14 years of age and younger (...), some as young as 7 years of age (...). (Duncan and Rock, 1997a:59).



The total number of children who suffered violence, were detained, killed, tortured, or maimed is open for contestation due to the lack of reliable sources. However, the TRC Final Report,can provide some insights to the situation.

• According to the report, just a few children under 12 were killed. However, as a result of political violence, deaths among 13 - 24 year-olds amounted to almost 1 500 children (TRC Final Report, 1998:Vol 4: 259).

• Very few children were tortured, but almost 2 000 13 - 24 year-olds were tortured. (TRC Final Report, 1998:Vol 4: 262).

• In terms of detention for the period of 1985 to 1989, children under the age of 18 years represented between 26% and 45% of those in detention. Of a total amount of 80 000 detentions, 48 000 were detained under the age of 25 years old (TRC Final Report, 1998:Vol 4: 261).

For further information on children under detention, tortured or killed, see Lawyers Committee for Human Rights (1997); Duncan and Rock (1997a, 1997b); Brodgen and Shearing, 1993:30, 33).



This process reminds me of the initial analogy used in this monograph. In the film/book the Lord of the Flies, what is important to capture is the process of desensitisation that the children experienced and how it became normal to participate in the violence. It is important to recognise that to move beyond this human condition to which many children have been exposed due to the war, will take many years, if not various generations. The problematic aspect lies in the fact that it might not be in the state interest now to take care of this generation which has been highly traumatised by South Africa’s own type of civil war, and which now faces an emerging crisis of marginalisation, social oblivion and identity. Private conversation with Monique Marks, December 1, 1998. See also: Marks (1995) and Seekings (1993).



I am referring to the political organisations which under the 1950s and 1960s legislation were declared prohibited, such as the Communist Party, the African National Congress and the Pan African Congress, among others.



A critical review of the role of civil society in the transformation of South Africa is yet to be written. In particular the role of different organisations, for example the Institute for a Democratic Alternative for South Africa (IDASA; currently renamed after the transition as the Institute for Democracy in South Africa), who facilitated multiple dialogues with the liberation forces and also with the state to achieve a negotiated settlement.



The experience of 1990 to 1994 was perhaps a unique experience for the country and for those enduring what seemed to be a very uncertain political transition at the time. Civil society, at least the one that I have defined as the "good" civil society (that composed of progressive non-governmental organisations), managed to articulate a practical response to the state’s lack of legitimacy, repressive mentality and inefficiency to rule over a political transition (cr ref Nina, 1995). From land development to constitutional legal advice, conflict resolution and human developments, among other areas, civil society in the form of non-governmental organisations and progressive academics, controlled the country. In the case of "children at war", for example, organisations such as the Trauma Centre for Victims of Violence in Cape Town, or the Centre for the Study of Violence and Reconciliation in Johannesburg, provided the necessary knowhow and support for the healing of child victims of the violence in the country.



As argued before, the state since 1994 has been "rolling back" civil society and taking over areas controlled in the past by many non-governmental organisations. This is probably a natural process - the state has a role to fulfil. However, what has to be recognised is the fact that a great deal of expertise has been lost, or it could be lost, in the new dispensation and that there is no need to "reinvent the wheel". For a general discussion around the state role in post-apartheid South Africa see: Nina (1995).



Excluded from this process is the role of corporate civil society, religious civil society, labour civil society and generally other private entities in civil society which assisted or obstructed the struggle for the transformation of South Africa. This discussion is beyond the scope of this monograph. For a general analysis, from a theoretical perspective see: Gramsci (1986); for the role of the many faces of South Africa in the years of apartheid, see the Truth And Reconciliation Final Report (1998, Vols 1 to 5).



This is an important argument in terms of what was going on in the country at the level of political society - in particular between the state and the national liberation forces. From the research conducted for this monograph, it does not appear that the national liberation forces, in the case of the African National Congress or the Pan African Congress, used children or young people under 18 years old for joining and fighting through their respective liberation armies (ie Umkhonto we Sizwe or Azanian People’s Liberation Army). However, in the local domain, at the urban township communities, the same political organisations were encouraging the children and the young people to destroy and destabilise the regime. In this regard, as discussed at the introduction of this monograph, these child soldiers were used as proxy agents of real war soldiers. As the reader can imagine, the moral responsibilities and considerations between one category of soldiers and the other are too thin. It is in this context that the role of civil society has to be understood: it provided criteria and parameters for a vision/future beyond the war mentality that permeated the state but also for the children/young people as well as for those who participated in the struggle.



The list of organisations in the international civil society is wide (including for example Amnesty International, the Quaker Peace and Service and many more). In addition, one has to argue as well for the role of progressive community/activist-based formations operating internationally, which focused, among other things on the impact that the war had on the children. For example, the Anti-Apartheid Committee in London and the Anti-Apartheid Solidarity Committee in the Netherlands. What is important to highlight is that the pressure against the government, and to a lesser extent the liberation forces, was mounted not only in the national territory but in the international domain.



This point is strongly based on a personal perspective on the work that I have conducted in South Africa for many years around non-governmental organisations and academic institutions. What is not clear to me yet, is how much influence the progressive international civil society had in the military camps or in the international offices of the national liberation forces. This is a theme that needs to be explored in the future.



The process that has taken place in South Africa, in relation to the demobilisation aspect of the struggle, has been assessed internationally. In particular, Brett and McCallin have argued that:

In South Africa, although there has been no formal demobilisation of young people involved in the self-defence units/protection units, the normalisation of their daily lives should be addressed through a programme of re-education, retraining and vocational programmes. This process should be assisted by the process of disarmament which the government has implemented "by declaring an amnesty wherein all members of former units protecting communities could hand in weapons in their possession". (Brett and McCallin, 1996:149).



As discussed in the section of the international and domestic legal documents, complications exist for those who fought during the 1980s against the apartheid regime, and who are now in an age bracket which exclude them from any state benefit: they are no longer classified as children (18 years old and under).



In terms of South Africa’s new constitutional order, the 1996 Constitution (Act 108) states in chapter 8, section 166, the composition of the judicial system, which includes the following tiers: Constitutional Court; Supreme Court of Appeal Division; the Magistrates’ Courts; and any other court established by an act of parliament. It is important to state that one of the first rulings of the Constitutional Court was to declare unconstitutional the corporal punishment of children at school, and the keeping of children in detention in prisons together with adults.



In terms of the 1990s, I am referring here to those involved in Self Defence Units and Self Protection Units.



The policy today in South Africa is in the process of changing the recruitment age to 18 years.

References:

Articles, Chapters and Books:

Brodgen, M and C Shearing (1993) Policing for a new South Africa. London: Routledge.

Coalition to Stop the Use of Child Soldiers (Coalition, 1998) Stop using child soldiers. London: Rädda Barnen.

Cronin, J (1991) "For the sake of our lives! Guidelines for the creation of people’s self-defence units", Seminar 2, Project for the Study of Violence, University of the Witwatersrand, Johannesburg.

Dowdall, T (1994) "Children in violence", Community Law Centre (edited at) The right of the child to a secure family life: proceedings of the International Seminar, held at the Community Law Centre at the University of the Western Cape, March 25 to 27, 1994.

Duncan, N and B Rock (1997a) "Children and violence: quantifying damage", in Rock, B (editor) Spirals of suffering. Pretoria: HSRC.

Duncan, N and B Rock (1997b) "Going beyond the structures", Rock, B (editor) Spirals of suffering. Pretoria: HSRC.

Golding, W (1959) Lord of the Flies. New York: Capricorn Books.

Goldstone Report (1994) "Inquiry into the effects of public violence on children", Pretoria, Commission of inquiry regarding the prevention of public violence and intimidation.

Gramsci, A (1986) Selection from the prison notebooks. London: Lawrence and Wishart.

Hobbes, T (1914) Leviathan. London: J M Dent and Sons.

Jeffrey, A (1997a) The Natal Story: 16 years of conflict. Johannesburg: South African Institute of Race Relations.

Jeffrey, A (1997b) Bill of rights report. Johannesburg: South African Institute of Race Relations.

Juvenile Justice Drafting Consultancy (1994) Juvenile Justice for South Africa: proposals for policy and legislative change. Cape Town: Juvenile Justice Drafting Consultancy.

Kimaryo, S (1995) "The United Nations Convention on the Rights of the Child in international and municipal legal systems: promoting children’s rights in a post-apartheid South Africa", in Pollecutt, L and M Motshekga and A Gardner (editors) The legal rights of children in South Africa: proceedings from an international conference on The Child and the Constitution of South Africa. Johannesburg: The National Institute for Public Interest Law and Research: Community Law Centre.

Klothen, K (1995) "The convention on the rights of the child: an international perspective from the United States", in Pollecutt, L and M Motshekga and A Gardner (editors) The legal rights of children in South Africa: proceedings from an international conference on The Child and the Constitution of South Africa. Johannesburg: The National Institute for Public Interest Law and Research: Community Law Centre.

Lawyers Committee for Human Rights (1986) The war against children. New Yrok: Lawyers Committee for Human Rights.

Lederach, J P (1998) Construyendo la paz: reconcilición sostenible en sociedades divididas. País Vasco: Bakeaz & Gernikca Gogoratuz.

Quakers Peace Service (Quakers, 1992) Child Soldiers. London: Quakers Peace Service.

Marks, M (1992) "Youth and political violence: the problem of anomie and the role of your organisation", Johannesburg, Project for the study of violence, University of the Witwatersrand.

Marks, M (1995) "‘We are fighting for the liberation of our people’: Justifications of violence by activist youth in Diepkloof Soweto". Unpublished paper. Centre for the Study of Violence and Reconciliation, Johannesburg.

Mass Democratic Movement (MDM, 1989) Discussion papers for the Conference for a Democratic Future. N/a

Nina, D (1995) "State gains new ground", SASH, Vol 37 No 3.

Pinnock, D with D Douglas-Hamilton (1997) Gangs, rituals and rites of passage. Cape Town: African Sun Press with Institute of Criminology.

Rock, B (1997) Spirals of suffering. Pretoria: HSRC.

Rose, S (1993) Collins essential film guide. Glasgow: Harper Collins Publishers

Schärf, W (1997) "Re-integrating militarised youths (street gangs and self-defence units) into the mainstream in South Africa: from hunters to game-keepers?". Paper delivered at the Urban Childhood Conference, in Trondheim, Norway, June 11.

Seekings, J (1993) Heroes or Villains? Youth politics in the 1980s. Johannesburg: Ravan Press.

Sitas, A (1991) "The comrades", Reality, May.

Sitas, A (1992) "The making of the comrades movement in Natal 1985-91", Journal of Southern African Studies, Vol 18, No 3.

Smyth, M (1998) Half the battle - understanding the impact of the troubles on children and young people. Belfast: INCORE.

Thipanyane, T (1995) "The rights of the children in Natal", in Pollecutt, L and M Motshekga and A Gardner (editors) The legal rights of children in South Africa: proceedings from an international conference on The Child and the Constitution of South Africa. Johannesburg: The National Institute for Public Interest Law and Research: Community Law Centre.

Truth and Reconciliation Commission of South Africa (TRC Report, 1998) "Report Vol 1 to V", Pretoria, Truth and Reconciliation Commission.

UNICEF (1997) "Los niños y la guerra, in Noticias de UNICEF, No 159, March.



South Africa’s Legal Documents

Internal Security Act of 1982.

South Africa Interim Constitution, Act No 200 of 1993.

South Africa Constitution, Act 108 of 1996.

Special Pension Act, Act No 69 of 1996.



International Legal Documents

1949 Geneva Convention and Additional Protocols to the Geneva Convention I and II.

United Nations Convention on the Rights of the Child. Adopted by the United Nations General Assembly on November 20, 1989.