1.

The state in Breach of the rights and welfare of the child

The state in breach of the rights and welfare of a child under this scenario is Nguvanian. The
victims who are the nationals of N guvanian were captured, and taken to the desert camp
where they are exposed to harsh elements. In the camps, there is scarce of water and food,
constant threat of conflicts, some of them lack nationality, there are outbreak of cholera,
tuberculosis and dysentery, no special food for babies. This state being the party to the
African Charter on the Rights and Welfare of the Child, 1989 as well as Optional Protocol to
the convention on the rights of the child on a communication procedure since 2011 has an
obligation to protect its nationals from different kinds of violations of the rights and welfare
of the child.

2. Issues to be determined before the committee

a. Whether the communication is admissible before the African Committee of
Experts on the Rights and Welfare of the Child.
b. Whether the Committee has jurisdiction to determine the matter.
c. Whether Nguvanian state is in breach of the obligations on protection of the
rights and welfare of the child as enshrined in the African Charter on the
Rights and Welfare of the Child, 1989.
d. Whether there are any reliefs the complainants/victims are entitled to.
 THE AFRICAN COMMITTEE OF EXPERTS ON THE RIGHTS AND WELFARE OF
THE CHILD (ACERWC)

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

African Union Commission
P.O.Box: 3243 Roosevelt Street
Addis Ababa, Ethiopia
www.acerwc.org

COMMUNICATION

1.0 The Complainant is an Advocate of the High and subordinate court thereto since
2015. He is a Nguvanian national and a family lawyer of the victims’ parents. The
complainant is filing this communication on behalf of the victims’ parents who fully
consented for representation through their letter of consent dated 12th August 2020 as
attached to this communication as annexure “C-1” For the purpose of this complaint,
the Advocates address is;

Emily Mposhi,

Kings Law Chambers,

Haidery Plaza, Suite 3LD,
Diz Street/Oman Road,
P. O. Box 32196,
Nguvanian.
MOBILE: +255758 012008.
2.0 The Complainant is submitting this communication on behalf of six children who fall
victims of the outrageous acts that resulted to violation of their basic rights and welfare.
The victims are six in number (5) and their particulars are as follows;

2.1 Tindi, who is a Nguvanian national aged 15 at the time of joining Wakatili group.
She has a baby boy who still has no name and clear identified nationality to date.
2.2 Two twins girl, orphans left by Kibi who detonated and killed herself in a suicide
bomber mission. They are unknown as to where they are. They have no names
and no clear identification of their nationality.
2.3 Two Ryians baby boys. One of them lacks clear identification as to nationality.
3.0 The Complainant wishes his identity and that of the victims withheld from the state party
against which this communication make reference. The reason is that the victims are too
young and therefore privacy is paramount. The complainant identity should also withheld
due to the nature and circumstance of the complains.

4.0 The state concerned in this communication is Nguvanian. The state is a party to the
African Charter on the Rights and Welfare of the Child and in 2015 the state ratified the
optional protocol to the convention on the Rights and Welfare of the child on a
communication procedure, 2011.

5.0 The communication is in relation to sufferings, the victims are facing while captured and
retained in the deserted camps controlled by Swamalians in Mashonga state. In the
Camps, the victims are exposed to harsh elements including scarce access to water, food
and health care. The scenario reveals that;

“There are on-going outbreak of cholera, tuberculosis and dysentery. There is a

water allocation of just 20 litres per tent per day for drinking, cooking and hygiene.
Food is rationed and there is no special food for babies. The food rations often run
out, and the women and the children go hungry”

6.0 Nguvanian state has breached by omission, numerous provisions of the African
charter on the Rights and Welfare of a child, 1989. It has not performed its obligations
to protect the various rights of a child as provided under the this treaty as follows;

6.1 Article 3 of the treaty provides for non discrimination of children. It declares a
breach of rights of a child when children are discriminated in terms of their
color, child’s or his/her parents’ or legal guardians’ race, ethnic group, colour,
sex, language, religion, political or other opinion, national and social origin,
fortune, birth or other status. But the state of Nguvanian through the Minister
of Foreign affairs rejected the request to bring the victims back for the reasons
inter alia that some of the victims might not be nguvanian nationals while
knowing that the victims were either Nguvanian or born by the parents of
Nguvanian origin.
6.2 Article 4 of the treaty provides for the best interest of a child. The contracting
state has to ensure that, in all actions concerning the child undertaken by any
person or authority the best interests of the child shall be the primary
consideration. The stated breached this obligation by rejecting the parents
 request regarding expatriation of the victims from Swamalian’s controlled
camps to Nguvania state.
6.3 Article 5 of the treaty provides for survival and development of the child. It is
an obligation of the state Party to ensure that life of the child is protected at
any cost. The stated breaches this obligation by letting Ryian to continue
living in the harsh environment without reproductive health care to the
detriment of her inborn child despite the professional advice from the health
clinic staff at the camp.
6.4 Article 6 of the treaty provides for the right to name and nationality of a child.
Sub Article 3 specifically poses an obligation to the contracting states to
assign nationality to their nationals wherever they are born. Nguvanian state
breached this obligation as the children who were born in Wakatili camp are
rejected and referred to as non citizens.
6.5 Article 11 provides for the rights to education which the state also breached.
The act of Nguvanian failure to take steps towards repatriation of the victims
to their home states presents a continuing breach of their right to get education
for their fullest potential.
6.6 Finally the state is in breach of Article 11 of the treaty. The state fails to
ensure that the victims are availed with all necessary medical assistance and
health care to all children with emphasis on the development of primary health
care; adequate nutrition and safe drinking water; combat disease and
malnutrition within the framework of primary health care as well as
appropriate health care for expectant and nursing mothers.

7.0 The Complainant is hereby requesting for immediate action from this honorable
committee and on behalf of the 5 victims pray for the following remedies;

 Repatriation of children and grand children given the dire condition in the
camp and vulnerability of their children and grand children
 Declaration that Nguvanian state breached the rights of children and grand
children including their best interests
 To order the Nguvanian government to locate Kibi’s twins and issue them
with travel documents
 To issue Tindi with her child and Ryan’s children travel documents
  To bring back Nguvanian Kibi’s twins.
 To take all measures necessary for their protection
 Considering the urgency and irreparable harm that might occur in case no
decisions are taken within a short period as provided under Section VII (1) (i)
of the African Charter on the Rights and Welfare of the child, 1989, the
complaint request for provisional measures against the Nguvanian state to
supply with food, water and health care pending formal repatriation to
Nguvanian.

8.0 The Complainant states that the Communication fulfills the requirement of admissibility
under Section IX (1) of the Revised Communications Guidelines, 2014. The Complainant
particularly focuses on the requirement of exhaustion of local remedies, where he submits
that the communication fulfills the requirement of exhaustion of local remedies.

8.1 The complainant states that in April, 2020, one of the victim’s father had made an
effort to visit the Swamalian camp and requested for release of his child and grand
children unsuccessful. Furthermore, he with other parents upon the return to Ole
Pumbun approached the Nguvanian Minister of Foreign affairs with a formal request
for bringing their children and grand children to Nguvanian but they met a rejection
from the Minister.

8.2 In May, 2020 they took further step to address their concern to Nguvanian Court with
relevant jurisdiction on praying for declaration that Nguvanian state breached the
rights of children and grandchildren including their best interests; to order the
government to locate Kibi’s twins and issue them with travel documents; to issue
Tindi and Ryans and their children travel documents; to bring back Nguvanian Kibi’s
twins, Tindi and Ryan and their children, and take all measures necessary for their
protection. However, the court rejected their prayers.

8.3 Furthermore, in July, 2020 the group of parents approached the prosecutor of
international criminal court, seeking an investigation into the commission of crimes
against humanity under Article 7 (1) h of the Rome Statutes of International Crime
Court to which Nguvanian is party since 2005 the Complainant states that local
remedies have been exhausted and the pending investigation in the ICC could be
prolonged and according to the nature and environment in which the victims were
 situated could not be tolerated hence they should not be required to wait any further
and pending investigation in the ICC. The scenario reveal a situation of urgency,
serious or massive violations of the African Children’s Charter and the likelihood of
irreparable harm to a child or children in violation of the African Children’s Charter
may, either on its own initiative or at the request of a party to the proceedings, request
the State Party concerned to adopt Provisional Measures to prevent grave or
irreparable harm to the victims of the violations as urgent as possible.

8.4 The Complainant further states that the local remedies are not effective as local
authorities are informed about the situation but have failed to act on it. Finally, the
Complainant states that local remedies are not available as the violations are serious
nature.

Verification

I the undersigned hereby verify that all that is stated in paragraphs 1, 2, 3, 4, 5, 6, 7, and 8 are
true to the best of my knowledge and information from the victims’ parents.

…………………………………..

EMILY MPOSHI-ADVOCATE

Verified at Dar es Salaam this……………………..day of……………………………..…2021

To be served upon:

Secretariet,
African Committee of Experts on the Rights and Welfare of the Child,
African Union Commission,
P.O.Box: 3243
Roosevelt Street,
Addis Ababa, Ethiopia.

Drawn by:

Emily Mposhi,
Kings Law Chambers,
Haidery Plaza, Suite 3LD,
Diz Street/Oman Road,
P. O. Box 32196,
Nguvanian.
Mobile: +255758 012008
ANNEXURE “C-1”
DESIGNATION OF AN ATTORNEY

(Made under Section I (2) of the Revised Guidelines for the Consideration of
Communications, 2014)

We, the parents of the victims named and particularized in the communication to be filed
hereafter, designate Mr. Emily Mposhi, an Advocate of the High Court and Subordinated
court thereto to act on our behalf and undertaking all representation to the African
Committee of Experts on the Rights and Welfare of the Child (ACERWC).

We undertake to take cognizance of all necessary requirement the Committee may direct us
to do on behalf of the victims

We humbly submit.

…………………………..
KATWIRA MTWA
PARENT FOR/ON BEHALF OF OTHERVICTIMS’ PARENTS