by Dr. Jane Wathuta & Anita Wambui

The family is the fundamental unit of society and it entitled to the protection of the State.[1] Various human rights instruments therefore enunciate the right of the family to protection from arbitrary or unlawful interference.[2] Motherhood and childhood are further entitled to special care and assistance.[3] In the African context, the family is recognized as the custodian of traditional values and therefore entitled to the protection of the State.[4] Conversely, the family is, in itself, a source of protection to its individual members. The Charter of the Rights of the Family indeed recognizes that parents have the original, primary, and inalienable right to educate their children for their development and wellbeing of members and society.[5] It takes cognizance of the fact that different generations in the family come together to offer it members physical, social, legal, material, and emotional stability.

The sanctity of the family is invariably challenged in situations of internal displacement. In the context of internal displacement, family separation can occur deliberately where parents entrust other people to care for their children, often believing it is in their best interest. It can also occur accidentally if a child is left behind during flight. Finally, separation can also occur where well-meaning humanitarian interventions are ill-conceived, for example, facilitating adoption agreements for refugee children without making arrangements for their parents.[6]

The effects of such family separation may be aggravated for different groups of people based on their sex, age, and specific needs. Women and children, in particular, may be exposed to the risk of gender-based violence. They may also suffer discrimination and lack of access to land and shelter. Men often face heightened risk of harassment, arbitrary arrest, or detention, and forced recruitment into armed groups. Young girls and boys face the risk of exploitation, limited access to education and forced recruitment into armed forces. Older persons and persons with disabilities may face difficulties when trying to move, find shelter, or access assistance to services such as healthcare.[7]

The 2007 Handbook for the Protection of Internally Displaced Persons by the Global Protection Cluster Working Group discusses four key principles that should be at the heart of any efforts geared towards the prevention of family separation, especially in cases involving children. The first is the respect for human rights including the principle of family unity. In situations of internal displacement, it requires efforts to prevent separation, and in case it occurs, rapid tracing and reunification should be ensured. The second principle is the principle of non-discrimination on any ground. It however takes into account that in order to ensure full assistance, efforts must be made to meet specific needs. Third is the principle of participation that requires that separated family members, including children, are informed about the relevant procedures of family tracing and reunification, and kept updated through the entire process. Finally, the principle of the best interests of the child[8] requires that an assessment is carried out regarding any action that may affect them throughout the displacement cycle.

Both the State and human rights and humanitarian actors have a role to play in the protection of the family and family unity. The State should take any necessary legislative, administrative and other measures to prevent family separation from taking place. This includes registration of births and deaths, keeping records of any changes to civil status such as marriage and divorce, and ensuring equal rights to manage property. Should family separation occur, the State has a duty to enable rapid tracing and reunification of separated family members, and to offer protection and assistance to all separated persons, including providing children who have been separated from their families with alternative care. At every stage of the displacement cycle, the State should inform all next of kin of the fate of their missing relatives.[9]

Human rights and humanitarian actors, on their part, may help in the preservation of family unity through advocacy with relevant actors to take appropriate legislative, administrative and other measures to promote and protect the principle of family unity. An example is advocating for the recognition of customary marriages to ensure respect for the rights of women to claim custody of their children and to inherit land upon the death of their husbands. They may also help in mobilizing communities to raise awareness of the risks of family separation and take measures that can help prevent separation from taking place, or where such separation occurs, can facilitate tracing and reunification. They can also play a role in ensuring that there are adequate mechanisms to identify, register and document separated family members. Human rights actors may also play a role in providing protection where reunification is not possible, such as alternative care where children are involved. Where there is no hope of reunification, adoption may be considered. [10]

Various actors play key roles in family tracing and reunification. At the international level, the key players include, the ICRC, UNICEF, UNHCR, IRC, Save the Children, and World Vision International. At the national level, the key actors include the internally displaced persons and host communities, NGOs and FBOs, child-welfare and social support services and the ministries of social affairs and education.[11]

[1] Article 16 (3), Universal Declaration on Human Rights, 10 December 1948, 217 A (III)., Article 23, International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171.

[2] Article 17, International Covenant on Civil and Political Rights; Article 10, African Charter on the Rights and Welfare of the Child, 1 July 1990; Article 16, Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3.

[3] Article 25 (2), Universal Declaration on Human Rights.

[4] Article 18, The African Charter on Human and Peoples’ Rights, 27 June 1981.

[5] Article 5, Charter on the Rights of the Family, 22 October 1983

[6] Global Protection Cluster Working Group, Handbook for the Protection of Internally Displaced Persons, 2007, 233.

[7] Ibid, 232.

[8] Pursuant to Article 3 of the Convention on the Rights of the Child

[9] Ibid, 234.

[10] Ibid, 234 – 239.

[11] Ibid, 240.

The Authors,

Dr. Jane Wathuta & Anita Wambui are from Strathmore University, Institute for Family Studies & Ethics/Law School, Nairobi, Kenya. They are members of the Global Engagement Network in Internal Displacement

This blog forms part of research of the Global Engagement on Internal Displacement in Africa (GENIDA) (EP/T003227/1) projects supported by the UK Research and Innovation (UKRI) Global Challenges Research Fund (GCRF).

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