The Enyobeni Tavern tragedy and the state’s obligation to fulfil children’s right to recreation and leisure

The African Charter on the Rights and Welfare of the Child (African Children’s Charter) is the only continent-specific children’s rights instrument in the world. South Africa became a party to the charter in 2000 and is legally required to implement it.

The charter was made to address the issues pertinent to persons under the age of 18 on the continent. Article 12 provides for children’s rights to leisure, recreation and cultural activities. It obliges state parties, the government of South Africa included, “to recognise the right of the child to engage in play and recreational activities appropriate to the age of the child”, and that children must have equal access to such activities.

Often when one thinks of children’s rights, one thinks of younger children. The rights of adolescents tend to get lost in this interpretation. The principle of evolving capacities acknowledges that a person’s needs, desires and capabilities are in a constant state of flux.

A child’s preferences for recreation and leisure will differ greatly depending on their age, interests and identity. Adolescence, or the teenage years, sees people trying to form connections and beginning to envision their place in the world. It is characterised by a pulling away from parental care and an increased need for privacy and independence.

When considering the social aspect of recreation and leisure in the context of adolescence, it becomes clear that adolescents need to be given opportunities to exercise this right in a safe and healthy way.

The tragic deaths of 21 children in an East London tavern in the early hours of 26 June 2022 have prompted a national debate on the measures required to ensure such a tragedy never happens again.

President Cyril Ramaphosa has called for a debate around raising the legal age for drinking alcohol against the backdrop of a broader call to tighten and enforce laws regarding the consumption of drugs and alcohol. Further calls have been made for community-based awareness-raising initiatives on the dangers of underage drinking.

The African Children’s Charter demonstrates the positive obligation that the government of South Africa is under to respect, promote and encourage appropriate and equal opportunities for children to participate in cultural, artistic, recreational and leisure activities. This obligation must be fulfilled with a due regard for the violent levels of inequality that shape the realities of children in South Africa. All children deserve to have a good time on a Saturday evening, and to have a level of agency in deciding how their Saturday evening should go.

Communities often step in to provide children with options on how to exercise this right through the provision of sporting, cultural and religious activities, but this is often subject to that community’s access to wealth.

One example is a South African company called U-PARTY, which organises “under-18 socials” held at schools. Entry fees are charged, which serve as a fundraiser for the schools, although they must have the financial capacity to host the events. Further resources – spatial, human and otherwise – cannot be taken for granted.

The obligation rests with governments to provide safe and appropriate recreational opportunities for all children, particularly those living in underresourced areas. If the goal is to discourage children from visiting taverns and nightclubs, suitable alternatives need to be provided.

It is concerning to note that South Africa has not developed legislation or policies to enable the fulfilment of the child’s right to recreation and leisure. It is not mentioned in the Children’s Act.

At the decentralised level, the City of Johannesburg’s Culture and Recreation By-laws, for example, come with concerning provisions. They define a “young adult” as “a person older than 14 years but younger than 18 years who has never been married”.

This provision does not align with the definition of a child in the African Children’s Charter and Section 28(3) of the Constitution, which is any person under the age of 18. Barring this, the by-laws provide for the establishment of recreational facilities but do not mandate the provision of recreational activities for children.

Considering the deficiency of South Africa’s legal frameworks, it is important to mention the Basic Education Laws Amendment Bill which is open for public comment until 15 August 2022. All are encouraged to think more about the role this bill could play in regulating the provision of suitable recreational activities and facilities for children within the basic education framework.

More broadly, it is hoped that this brief article can jump-start a broader discussion about what should go into imagining and providing for this right of children.

Most importantly, this should be a call to ask children what they want their recreational activities to be, and for adults and the government to help children access them. DM