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The African Charter on the Rights and Welfare of the Child entered into force ten years
ago - on the 29 November 1999 ² and almost ten years from the date of its adoption on 11 July
1990!

The Charter was based on consideration of ´.....the virtues of their cultural heritage,
historical background and the values of the African civilization which should inspire and
characterize their reflection on the concept of the rights and welfare of the child.....µ, and
´.....concern that the situation of most African children, remains critical due to the unique
factors of their socio-economic, cultural, traditional and developmental circumstances, natural
disasters, armed conflicts, exploitation and hunger, and on account of the child·s physical and
mental immaturity he/she needs special safeguards and careµ and the recognition ´..... that the
child, due to the needs of his physical and mental development requires particular care with
regard to health, physical, mental, moral and social development and requires legal protection
in conditions of freedom, dignity and security...µ 1

Article 1 of the Charter imposed an obligation on Member States parties to the Charter to
´.....recognize the rights, freedoms and duties enshrined in this Charter....µ and to ´ undertake to
the necessary steps, in accordance with their Constitutional processes and with the provisions
of the present Charter, to adopt such legislative or other measures as may be necessary to give
effect to the provisions of this Charter and to discourage any ´.....custom, tradition, cultural or
religious practice that is inconsistent with the rights, duties and obligations contained in the
present Charterµ

Article 4 makes it clear that,µ in all actions concerning the child undertaken by any
person or authorityµ, the best interests of the child shall be, not just of ´paramount
importanceµ, as provided for in the Constitution of the Republic of South Africa, 2 but ´the
primary considerationµ.

Article 16(1) of the Charter requires State Parties to ´take specific legislative,
administrative, social and educational measures to protect the child from all forms of torture,
inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or
maltreatment including sexual abuse.....µ

Article 27 is specific to the protection of children from sexual exploitation. State Parties
´.....shall undertake to protect the child from all forms of sexual exploitation and sexual abuse
and shall in particular take measures to prevent:

(a) the inducement, coercion or encouragement of a child to engage in any sexual activity;

1 Preamble to the Charter


2 Section 28(2), Act 108 of 1996
(b) the use of children in prostitution or other sexual practices;

(c) the use of children in pornographic activities, performances and materials.µ


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2.1 What is child pornography?

Law enforcement and child protection practitioners have commented on the difficulties†
of defining ´child pornographyµ, pointing, in particular, to the different definitions in the
legislation of different jurisdictions. ´The question of what constitutes child pornography is
extraordinarily complex. Standards that are applied in each society or country are highly
subjective and are contingent upon differing moral, cultural, sexual, social, and religious beliefs
that do not readily translate into law. Even if we confine ourselves to a legal definition of child
pornography, the concept is elusive.µ

The legal definition of ´child pornographyµ varies from country to country, sometime
even among states or provinces within the same country5, with regard to, mainly, the definition
of ´childµ, the inclusion of images and descriptions, the concept of the ´virtual childµ and the
definition of ´sexual conductµ . However, almost without exceptions, there is a common theme
in the definitions among all jurisdictions ² child pornography is not defined with reference to
pornography but with reference to the abuse of a child for sexual purposes - which makes the
expression ´child abuse images/materialsµ a more accurate and appropriate description6 of this
heinous crime against children. 7 A few examples illustrate the frustrations of law enforcement
in trying to deal with a global crime through national legislations:

=? The Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography
defines child pornography as ´any representation of a child engaged in real or simulated
explicit sexual activities or of the sexual parts of a child for primarily sexual purposes.µ
There is no reference to descriptions of child pornography, the sexual activities must be
´explicitµ and the reference is only to the ´sexual parts of a childµ. The words ´ real or
simulatedµ is somewhat ambiguous: does it mean-

(i) ? whether or not children are actually engaged in sexual activities, or

(ii) ? pretending to be engaged in sexual activities, or

3 See, for instance, Max Taylor and Ethel Quayle, Child Pornography: An Internet Crime, Brunner-Routledge, 2003;

Jens Waltermann and Marcel Machill (eds), Protecting Our Children on the Internet: Towards a New Culture of
Responsibility, Bertelsmann Foundation Publishers, 2000.
4 Margaret A Healy, Child Pornography: an international perspective
5 See, for instance, State of Minnesota, Respondent vs. Gary Lee Johnson, Appellant, Clay County District Court,

File No. 11-CR-08-1453, December 2009


6 ´One very special day, I received an abusive email from a member of the thriving ¶online sex offender community·

(or OSC) talking about a piece I had written called ¶My child porn smile wasn·t real· ² written before I realised how
deeply offensive and prejudicial the term ¶child porn· is, to our kind...µ , Shy Keenan, Broken¸ Hodder & Stoughton
Ltd, London (2008)
7 See Child Pornography or Child Abuse Materials? The reality of the sexual abuse and exploitation of children,

Iyavar Chetty (2004)


(iii) ? or actually or pretending to be engaged in activities simulating sex, or

(iv) ? does it mean that the child may be a real child or a fictitious child as a product of
one·s imagination, such as a ´virtual childµ?

=? Section 163.1 of the Canadian Criminal Code defines child pornography as ´a


photograph, film, video or other visual representation«..that shows a person who is or
is depicted as being
under the age of eighteen years and is engaged in or is depicted as engaged in explicit
sexual activity, or the dominant characteristic of which is the depiction, for a sexual
purpose, of a sexual organ or the anal region of a person under the age of eighteen
years; or any written material or visual representation that advocates or counsels sexual
activity with a person under the age of eighteen years that would be an offence under
this Act.µ Descriptions of child pornography will not constitute child pornography in
terms of Canadian law, unless the description advocates or counsels sexual activity
with a child. However, following the judgment o f the Supreme Court in R v Sharpe 8, Bill
C-2 proposes certain amendments to Canadian child pornography provisions to include,
within the definition of child pornography, audio recording and any written material
´whose dominant characteristic is the description, for a sexual purpose, of sexual
activity with a person under the age of eighteen years that would be an offence under
this Actµ.

=? n terms of Chapter·, § 2256, Ch. 110 of the United States Federal Code, child
pornography ´means any visual depiction«..of sexually explicit conduct where the
production of such visual depiction involves the use of a minor engaging in sexually
explicit conduct, or such visual depiction has been created, adapted or modified to
appear that an identifiable minor is engaging in sexually explicit conduct.µ US
legislation is, clearly, harm-based: if no child has been harmed, no offence has been
committed9. Descriptions of child pornography is not prohibited under US law,
presumably on the basis that no child is harmed in the production of written child
pornography. ´Virtualµ child pornography, unless the prosecution can establish that the
depiction has been created, adapted or modified to represent an identifiable minor, is
not an offence. ´dentifiable minorµ has been interpreted to mean an actual or real child
and not a fictitious person. The US Congress is expected to introduce legislative
amendments to include ´virtual-child pornographyµ within the definition of child
pornography. The US Justice Department employs five criteria to decide whether or not
an image is child pornography: there must be focus on the genital area; the image must
show unnatural poses; depict children as sex objects; imply that children are willing to
engage in sex and the image must have a suggestive setting.

=? n the United Kingdom, child pornography is defined with reference to an ´indecent


photographµ and excludes anything that falls outside the definition of ´photographµ,
such as written material, but includes computer-generated images, defined as ´pseudo-
photographsµ. 10 There is no requirement of sexual content since nudity itself is

8 2001 SCC 2
9 See John D Ashcroft, Attorney General, et al., Petitioners v The Free Speech Coalition et al, discussed in my
article Ashcroft v Free Speech Coalition Notwithstanding, ¶Virtual-Child· Pornography s Child Abuse (2002)
10 Protection of Children Act, 1978
sufficient, in certain circumstances, to constitute an indecent image to come within the
definition of child pornography in the United Kingdom.

=? The International (or Budapest) Cyber-crime Convention, to which South Africa is a


signatory, defines ´child pornographyµ as including pornographic material that
visually depicts a minor, or a person appearing to be a minor, or realistic images
representing a minor, engaged in sexually explicit conduct. Written material is
excluded from the definition.

2.2 However, the fact that different jurisdictions have different legal definitions of child
pornography does not necessarily mean that there is no one understanding of the concept
itself. One can extract, from the different legal definitions, a common thread: child pornography
is not about consensual sex or obscenity 11 but about images of the abuse, for sexual
gratification, of a child. A ´childµ, of course, may be defined differently in the different
jurisdictions. In most jurisdictions, a ´childµ is a person under the age of 18 years. However,
some jurisdictions, for the purpose of child pornography, define a ´childµ as a person under the
age of 16 years.

3.3 But any difference in the legally-defined age does not, in my opinion, fundamentally alter
the substance of what constitutes child pornography as commonly understand ² that is, images
of the abuse of a child for sexual gratification and, therefore, images of a serious crime having
been committed against a child and the continuing non-contact abuse and degradation of
children. Child pornography is, in itself, the act of the abuse and degradation of children and as
well as a description, in words or pictures, of the crime of the sexual abuse of a child. Child
pornography is inherently harmful 12 and not just a fantasy or misrepresentation of otherwise
normal and acceptable sexual conduct. Child pornography creates child pornography by
stimulating a demand and leads to the abuse of more children to satisfy that demand.13 The
stark reality of child pornography, never revealed in its legal definition in any jurisdiction, is that
it is an image of child abuse, and increasingly, of child torture.14 It is not ´pornographyµ in any

11 See the opinion on the third prong of the Miller test for obscenity by Justice O·Connor in her concurring
judgment in New York v Ferber
12 See R v Sharpe, 2001 SCC 2, and The Harmful Effects of Child Pornography, Iyavar Chetty (2004). See, also,

Broken, Shy Keenan, Hodder & Stoughton Ltd, London (2008): ´When my childhood abusers took my childhood
and stole my innocence, they also condemned me to various multiple life sentences, which have stolen parts of my
adulthood. To make things worse, most of these life sentences don·t even become apparent until later in life.....I am
broken, with bits of me that work and bits that don·tµ
13 ´It was then that realised the full impact of those pictures taken of me. Once taken, it·s like a crime that never

stops being committed, a crime that helps another crime to be committed, a crime that never lets you forget you
were the victim of it.µ Shy Keenan op.cit
14 According to a report from the Internet Watch Foundation (IWF, UK), the images are not only of younger and

younger
children, including toddlers a few months old, but the images are more and more sadistic: ´It makes horrific
reading but it
remains a fact that the children in the images we deal with are suff ering some of the cruellest forms of sexual
abuse and
these children, increasingly, appear to be younger ´ IWF Annual Report (2007)
sense of that word, which, strictly, should be used to only describe images and descriptions of
adult consensual sex. 15

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t is important to understand that the nternet is a global phenomenon. t is not
restricted by national boundaries or bureaucratic protocols. The nternet, and the convergence
of information and communication technology, has led to the globalisation and harmonisation
of child pornography by paedophiles and child abusers, while the laws against it, as well as
sentencing policies, remain national and fragmented. t defies logic that while a paedophile in
New York is downloading the same child pornography from the same website as the paedophile
in Nairobi, the pervert in Johannesburg, the child abuser in Sydney and the criminal in Toronto,
not all of them are guilty of any offence and, of those charged and convicted, not all of them will
receive the same or similar punishment. 16

The nternet is a 24/7 global, borderless communication tool, defying regulation and
control by any single government ² and it is the medium of choice for paedophiles and criminal
syndicates17 for the creation, production, distribution and possession of child pornography.
Given that the nternet is a global communication tool, and that it is the medium of choice for
the trade in child pornography, the response to this crime against children ought not to be
based on national statistics but on global statistics. Any increase in the child pornography
trade in any one country is an increase in every country in which any person has access to a
computer and a modem.18

3.1 The scope and extent of child pornography is difficult to estimate ² in any country.19 t
is even more difficult to estimate its scope and extent in developing countries, where lack of any
laws specifically targeting child pornography combines with inadequate human and financial
resources for child protection to give one the impression that online sexual abuse and
exploitation of children is not a problem. However, the fact that information on child
pornography is not available in a particular country does not mean that there is no paedophilic
activity in that country. Paedophiles and child abusers do not make public their perverse

15 The term ´child pornographyµ is used in this paper for convenience


16 See The Trivialisation of child Pornography By South African Courts As Reflected n Sentencing Policies, yavar
Chetty (2007) and Child Pornography: Model Legislation & Global Review, CMEC (2006 and 2008): ´Combating
child pornography at home and abroad is a daunting task and harmonization of laws is essential in order to
effectively address this growing, international phenomenon. Only by combining efforts will we be able to secure a
safer future for our children.µ
17 See Child Pornography s A Booming nternet Business, yavar Chetty (2007)
18 See Technology and Child Pornography, yavar Chetty (2006)
19 See Child Pornography: Summary of Views, yavar Chetty (2000). ´Pedophilic and paraphilic pornography are

widely available through various computer networks and protocols, such as Usenet, World Wide Web, and
commercial ¶adult· BBS. The Carnegie Mellon research team was able to identify consumers of these types of
materials in more than 2000 cities in all fifty states in the United States, most Canadian provinces, and forty foreign
countries around the world.µ [ncluding Johannesburg and Pretoria], Marty Rimm, Marketing Pornography on the
nformation Superhighway: A Survey of 917,410 mages, Descriptions, Short Stories, and Animations Downloaded
8.5 Million Times By Consumers in Over 2000 Cities in Forty Countries, provinces and Territories (1995).
´«..Computer and digital technology has transformed the political economy of all pornography, making it possible
for almost anyone to be producer, distributor and consumer simultaneouslyµ, Liz Kelly and Linda Regan, Rhetoric
and realities: Sexual Exploitation of Children in Europe (2000)
interest in children and Africa is certainly not immune to the attraction of the ´dark sideµ of the
nternet20. The following reports merely skim the surface of the scope and extent of the child
sexual abuse and exploitation in Africa:

=? C: Children suffer torture, rape and cruelty 21


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S„ D„ OF R„IFIC„ION D„ OF „CC SSION

„ 21 M 1999 8 J 2003

„ 11 „
 1992 7 O 1999

B 27 F  1992 17 „


 1997

B   10 J 2001 10 J 2001

Bk !  27 !  1992 8 J 1992

B  28 J 2004 24 „ 2004

C  16 S
 1992 5 S
 1997

C   „  R
 4 !  2003 

C 6 D 2004 30 M  2000

C  

30 I   C  (2009) 
.
vory Coast 27 !ebruary 2004 --------------------

Democratic republic of Congo ------------------------- ---------------------

Dibouti 28 !ebruary 1992 ---------------------

"uatorial Guinea 20 December 2002 19 !ebruary 2003

ritrea 22 December 1999 25 January 2000

thiopia 2 October 2002 27


December 2002

Gabon 27 !ebruary 1992 -------------------------

Ghana 18 August 1997 10 June 2005

Guinea 22 May 1998 27 May 1999

Guinea-Bissau 8 March 2005 ------------------

Kenya 22 July 2000 10/08/2000

Lesotho 27 September 1999 29 October 1999

Liberia 14 May 1992 ----------------------

Libya 9 August 1998 23 September 2000

Malawi 13 July 1999 16 September 1999

Mauritania ----------------- ----------------------------

Mozambi"ue 15 July 1998 22 December 1998

Namibia 13 July 1999 23 July 2004

Niger 13 July 1999 11 December 1999

Nigeria 13 July 1999 23 July 2001

Rwanda 2 October 1991 11 May 2001

Senegal 18 May 1992 29 September 1998

Seychelles 27 !ebruary 1992 13 !ebruary 1992

Sierra Leone 14 April 1992 13 May 2002

Somalia 1 June 1991 ------------------


Sudan ---------------- ------------------

Swaziland 29 June 1992 ------------------

Togo 27 !ebruary 1992 5 May 1998

Uganda 26 !ebruary 1992 17 August 1994

Zambia 28 !ebruary 1992 ---------------------

Zimbabwe 19 January 1995 22 !ebruary 1995

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 Articles 16(1) and 27 of the African Charter on the ights and Welfare of the Child are
clear and unambiguous. State Parties to the Charter.... ´shall take s
ecific legislatie, social
and educational measures to
rotect the child from all forms of torture, inhuman or degrading
treatment and es
ecially
hysical or mental injury nor abuse, neglect or maltreatment including
sexual abuse.....µ and ´.....shall undertake to
rotect the child from all forms of sexual
ex
loitation and sexual abuse and shall in
articular take measures to
reent:

(a) the inducement, coercion or encouragement of a child to engage in any sexual actiity;

(b) the use of children in


rostitution or other sexual
ractices;

(c) the use of children in


ornogra
hic actiities,
erformances and materials.µ

There is no discretion on the


art of the ´State
arties to the
resent Charterµ ² they
shall do what is re"uired of them in Articles 16(1) and 27. t is im
ortant to note that Article 16
re"uires State Parties to take s
ecific measures to
rotect children. !or instance, a law that

rohibits
ornogra
hy in general, regardless of the age of the
ersons de
icted, will not meet
the re"uirements of Article 16 because such a law is not s
ecific to child
ornogra
hy, een it
includes a
roision
rohibiting the distribution of
ornogra
hy to children or criminalises the
use of children in the creation of
ornogra
hy. The reason should be obious: the reality of
child
ornogra
hy re"uires s
ecific anti-child
ornogra
hy legislation because child
pornography is not ´pornographyµ but the abuse brutalisation torture and even murder31 of
children. The reality of child pornography is that it is not pornography but child abuse. ?
?

5.1 n 2006 and 2008 the nternational Centre for Missing & #ploited Children (CM C)
conducted a survey of legislative response to the problem of child pornography among all
Member States of NT RPOL. 32 The results were shocking and a chilling reminder that children
in Africa still do not enoy minimum protection and assurance of their emotional psychological
and physical well-being from their governments ² with few e#ceptions - in fact with one
e#ception: South Africa was the only African State that the study identified as meeting all the
re"uirements for an appropriate and effective response to the se#ual abuse and e#ploitation of
children through the creation distribution and possession of child pornography.

5.2 The Preamble to the Charter emphasises ´.....the virtues of their cultural heritage
historical background and the values of the African civilization which should inspire and
characterize their reflection on the concept of the rights and welfare of the child.....µ and
´.....concern that the situation of most African children remains critical due to the uni"ue
factors of their socio-economic cultural traditional and developmental circumstances natural
disasters armed conflicts e#ploitation and hunger and on account of the child·s physical and
mental immaturity he/she needs special safeguards and careµ and the recognition ´..... that the
child due to the needs of his physical and mental development re"uires particular care with
regard to health physical mental moral and social development and re"uires legal protection
in conditions of freedom dignity and security...µ 33

According to the CM C study none of the State Parties listed in Chapter !our (abov e)
have responded even remotely to Articles 16(1) and 27 of the Charter. These countries are safe-
havens for paedophiles and child abusers ² not only for the abuse and e#ploitation of children
in those countries but children around world given the nature of the nternet.

5.3 s the reason for this visible betrayal of children the fact that children in these countries
are not at risk because access to the nternet whether through computers or mobile phones is
limited The facts tell a different story:

5.3.1 Algeria ratified the Charter in 1999 and acceded to it in 2003. Between 2000 and 2009
the number of nternet users in Algeria increased by 8 100% - from about 50 000 users to over
4 000 000.34

Angola ratified the Charter in 1992 and acceded to it in 1999. Between 2000 and 2009
the number of nternet users in Angola increased by 1 733.3% - from 30 000 to over 500 000
users.

Cameroon ratified the Charter in 1992 and acceded to it in 1997. Between 2000 and 2009
the number of nternet users in Cameroon increased by 3 525% - from 20 000 users to 725 000.

31 See the case of Thea Pumbroek Child Pornography: An nternet Crime Ma# Taylor and thel Quayle Brunner-

Routledge (2003)
32 Child Pornography: Model Legislation & Global Review (2006) and(2008)
33 Preamble to the Charter
34 All nternet usage statistics are "uoted from nternet Usage Statistics for Africawww.internetworldstats.com 30

September 2009
n fact there was an e#ponential growth of nternet users in eer countr which ratified
and acceded to the Charter. There was a 12 900% increase in users in Chad a 57 900% increase
in the Democratic Republic of the Congo 2 300% in "uatorial Guinea 3 900% in ritrea 3 500%
in thiopia and 3 223.3% increase in Ghana. n Africa as a whole the number of nternet users
increased during the period 2000 and 2009 b 1 392.4% - from 4 514 400 users to 67 371 700.

Whateer happened to ´African ciilizationµ which should hae inspired and


characterised the reflection of African States ´on the concept of the rights and welfare of the
childµ Or to the ´concern that the situation of most African children remains criticalµ And
the recognition in 1990 when the Charter was adopted ´.....that the child due to the needs of
his ph sical and mental deelopment re"uires particular care with regard to health ph sical
mental moral and social deelopment and re"uires legal protection in conditions of freedom
dignit and securit µ


ccANDc

This paper is not intended as a criticism of an particular countr . t is intended to draw
attention to a growing problem that makes it unsafe for children to eno ma#imum benefits
from the nternet; and to suggest child protection initiaties based on the e#perience and
e#pertise of countries which hae had a longer tenure in dealing with this problem. The lack of
an ade"uate and appropriate response to the online abuse and e#ploitation of children brings to
mind Manuel Castell·s chilling conclusion: ´«..the network societ deours itself as it
consumes/destro s enough of its own children to lose the sense of continuit of life across
generations so den ing the future of humans as a humane species.µ 35

Articles 16(1) and 27 re"uire State Parties to the Charter to take specific legislatie
administratie social and educational measures to protect children.
Perhaps what is needed is a ´Charterµ or Conention that is specific to child protection
issues: an African Union Conention on Preenting the Se#ual Abuse and #ploitation of
Children and Combating the Creation Distribution and Possession of Child Abuse Materials 
which  hae drafted and will be happ to submit for consideration.

35 The nd of Millennium Blackwell Publishers (1998)