17th International Association of Women Judges (“IAWJ”) Africa Regional Conference:Kampala UGANDA, 25 to 29 October 2022 - Women Judges Breaking Barriers to Equal Justice and Strengthening Institutions SDG 16- Peace, Justice & strong institution
Strengthening Africa’s international obligations on child rights and protection: the importance of the Hague Children Conventions
Presented by Justice B C Mocumie[1] and O Momoh[2]
On 27 October 2022, Justice B Constance Mocumie and Dr Onyoja Momoh jointly presented a paper entitled - Strengthening Africa’s international obligations on child rights and protection: the importance of the Hague Children Conventions, addressing hundreds of esteemed judges at the 17th International Association of Women Judges (IAWJ) Conference - African Chapter. The conference was hosted by the National Association of Women Judges in Uganda (NAWJU) and held at the Commonwealth Resort and Speke Hotel Munyonyo in Kampala Kampala, Uganda. The conference was officially opened by the President of the Republic of Uganda H.E Yoweri Kaguta Museveni, and took place over 5 days in Kampala from 25 to 29October 2022 (see conference programme). The theme of the conference was “Women Judges: Breaking Barriers to Gender Equality, Strengthening Institutions” anchored in the UN SDG 16 – peace, justice and strong institutions. Like its theme, the objective of the conference was to (a) To share and promote practices that strengthen the judiciary as an institution (b) To enhance peer learning and experience sharing among the judges to inform gender sensitive adjudication (c) To promote and elevate the role and position of women Judges.
A collaboration between Justice Mocumie and Onyoja that grew following the 23rd International Family Law Conference in Cape Town in March 2020 and had progressed over many discussions on efforts to build capacity and awareness amongst African countries on international legal treaties and the mechanism to protect the rights of children and families in the region. In fact, the idea to curate a title to present to the IAWL leadership ahead of the conference was as a result of previous endeavours to present at a judicial workshop in July 2022 in Abuja, Nigeria. The theme for that training programme was child protection and child justice administration, organised by the Nigerian National Judicial Institute. The aim was to present to the judiciary and examine current practices in cross border children matters, while raising awareness of the importance of strengthening the private international family law framework in Nigeria. Although the opportunity to speak at the judicial workshop in Abuja could not be secured in the limited time, an invitation to attend next year’s judicial training in Abuja is anticipated.
In the meantime, Onyoja and Justice Mocumie had identified that the incoming president of IAWJ was Nigeria’s Judge Binta Nyako and with the IAWJ Africa Region Conference due to take place in October in conjunction with the Uganda Chapter of IAWJ, it appear pertinent to attend this event, to address judges in the region and beyond. Our proposed paper entitled “Strengthening Africa’s international obligations on child rights and protection: the importance of the Hague Children Conventions” was kindly accepted by the head of the Uganda Chapter of IAWJ, the Hon. Lady Justice Henrietta Wolayo, President NAWJU.
The conference welcomed hundreds of judges from across Africa from Magistrates, High Court, Court of Appeal, Supreme Court Judges and the ICC; the entire leadership of the IAWJ from the respective parts of Africa including the President of the IAWJ; the Board members of the IAWJ, the Ugandan Chapter of the International Association of Women Judges; distinguished guests such as the Hon. Chief Justice of the Republic of Uganda, His Lordship, Alfonse Owiny-Dollo; the Chief Justice of Kenya and President of the Supreme Court, the Hon. Lady Justice Martha Koome; as well as delegates from organisations such as the International Development Law Organisation.
Onyoja and Justice Mocumie presented on day 2, with the Honourable Supreme Court Justice commencing with an introductory message, attending via Zoom for this hybrid presentation. The paper was divided into two main parts, focusing on child protection in the context of child abduction and intercountry adoption. In summary, we covered the following areas: (1) Overview of the HCCH and Children Conventions, a) 1980 Child Abduction, b) 1993 Intercountry Adoption, c) 1996 Child Protection, and d) the 2007 Child Maintenance; (2) International Human Rights Instruments, a) UNCRC, and b) African Charter; (3) A closer look at child protection in the context of intercountry adoption; (4) The African Region and Private International Law; (5) SADC Demography and Challenges; (6) A closer look at child protection in the context of parental child abduction; (7) Gender Perspective, (8) Observations and Concluding Remarks. Onyoja commenced by reflecting on her first reported foreign adoption recognition case which involved a British Ugandan mother and a Ugandan child AMDK v NA [2020] EWHC 1548 (Fam), echoing Justice Mocumie’s remarks and gratitude for the esteemed platform to address the congregation. After introducing the four conventions, Onyoja addressed the congregation on intercountry adoption, reflecting on the provisions under the UNCRC (Articles 3 and 21(b)) and the African Charter. In particular, how the African Charter echoes the promotion and protection of the rights and welfare of the child, the duty on the part of everyone, the virtues of their cultural heritage and historical background and the principles of other treaties including the UNCRC. Combining these observations with the 1993 Hague Convention, especially from a practitioner and academic perspective, Onyoja explored key principles: the best interests of the child and the principle of subsidiarity, as well as touching on illicit practices that the Convention seeks to address, including but not limited to abduction, sale of, trafficking in children; improper financial gain; falsification or forgery of documents and improper consent. Onyoja concluded by pointing out the lacuna in the international framework across Africa for countries that do not have the important and mutually recognised safeguards that the 1993 Hague Convention offers.
Justice Mocumie resumed her address with observations on the relevance of private international law in Africa and the lack of research conducted specifically on why Africa in general does not accede to or ratify Hague Children Conventions. Her Ladyship touched on the variety of legal traditions that African states hold, from common law, Roman-Dutch law, civil law, customary law and religious law. She honed in on Southern African Development Countries (SADAC) and the uniqueness of the region’s demography, development and challenges, reiterating the need to join the Hague Children Conventions, noting that 76% of the population in the SADC region is below the age of 35. Justice Mocumie then moved on to the 1980 Hague Convention, giving an overview of the Convention, including the objectives under Article 1, some of the exceptions to return such as Article 13(1)b) and then focussing on, amongst others, the responsibilities of judicial officers under Article 11 to act expeditiously in proceedings for the return of children. Her Ladyship shared her experience in dealing with Hague child abduction cases, critically as an expert in international family law and Primary Liaison Judge of HCCH, representing South Africa. Justice Mocumie concluded with an impassioned call for the judiciary present seek out important treaties to protect children in international proceedings by joining the Hague Children Conventions and for the next IAWJ lead event to focus on child protection.
The paper was well received with commitments to explore the feasibility and benefits of the Hague Children Conventions and invitations from judicial dignitaries from all over the region for future collaborations; countries including Nigeria, Kenya, Uganda and Ethiopia, to mention but a few. We were deeply honoured to have been included in the speakers programme at this distinguished event.
The presentation was followed by observations and questions across the floor with great support and interest from amongst others, the Chief Justice of Kenya, Hon. Koome LJ and the Court of Appeal Judge of Nigeria Her Ladyship Aishatu Ali, and questions from other judicial dignitaries including Justice Hilewena Nesuru Kedir, Justice of the Supreme Court of Ethiopia. Questions ranged from issues relating to child protection under the 1996 Hague Convention to queries as to whether there was a tension between the domestic laws in some African countries and international instruments in intercountry adoption cases pertaining to same-sex couples. Of significance, many judges with front-line adjudicating experience of cross-border children cases stated that they were not aware of these conventions! The outpour of support and encouragement was warmly received, demonstrating, amongst others the importance of awareness raising amongst the judicial community, the key actors in child protection matters. Justice Mocumie and Onyoja were given an opportunity to respond briefly to the observations and questions before the lunch adjournment where discussion and exchange of personal contact details continued.
The momentum that has begun amongst the IAWJ judicial community is a powerful indicator that through the engaging and exchanging of views and practices with others globally, barriers to equal justice can be challenged and institutions strengthened in the interest of Africa’s children and beyond.
[1] Justice of the Supreme Court of South Africa, a member of the South African Chapter of the International Association of Women Judges and former President of the Chapter (2010-2014), Primary Liaison Judge of The Hague Conference on Private International Law, representing South Africa and an expert in Family Law.
[2] English Barrister, specialised in international family law; a lecturer at the School of Law, University of Aberdeen; a fellow of the Centre for Private international law; and inaugural chair of the Nigeria Group on Private International Group
