EXPLOITATIVE CHILD LABOUR IN GHANA LEGAL ASSESSMENT AND MORE EFFECTIVE MEANS OF REGULATION
     An overview of the situation in Ghana
The phenomenon of child labour has existed for many generations in virtually all parts of the world. A child may be classified as a person between birth and puberty, lacking experience or understanding. A child is not ‘a small adult’ and must be catered for completely by his/her parents or guardians until the stage of adulthood where the child is capable of providing for himself or herself. In the legal sense, this is referred to as ‘a child’s right to maintenance’.ÂÂ
The developmental achievements of a child depend on the enforcement of their rights by the state. A child grows to become an informed citizen, a well meaning person and a qualitative human resource for the nation. Engaging the child in labour before their adulthood deprives them of those developmental achievements and consequently weakens the nation’s potential labour force. The issue of exploitative child labour is often played down by the phenomenon of ‘poverty’, always blameable on poor economy and non-performance of governments.
It is an undisputable fact that past and present governments have been making some efforts at addressing the child labour in Ghana. For example, the National Programme for the Elimination of Child Labour in Cocoa (NPECLC), is in partnership with 48 district assemblies and non-governmental organisations (NGOs) to promote universal basic education, identify children who are involved in the various forms of child labour, to support them in school and to promote best labour practice on cocoa farms. The Ghana COCOBOD has been the main financier of most of the efforts at addressing child labour in cocoa production. The reason for concentrating efforts on cocoa production might be because of the challenge faced by the country with marketing of cocoa when the international community threatened to boycott the purchase of Ghana’s cocoa beans if the country should continue to use child labour in the production process, motivated by consumer campaign against child labour.
The various statistical evidence from local and international sources  have proved that various forms of exploitative child labour still persist in spite of the efforts being made to arrest the situation and even extends deeper into other sectors of the economy beyond cocoa production.
A study conducted by the Ghana Statistical Service (GSS) in 2001 reported that out of the estimated 6,361,111children in Ghana, 1,273,294 or 20 percent of the children between the ages of 5 and 17 were engaged in various forms of child labour including agriculture.
These revelations have been confirmed by International Labour Organization (ILO) survey which also estimated that 1.59 million children were working while attending school. One disturbing picture the survey portrays is that about 1.27 million children, representing nearly 20 percent of children are engaged in activities classified as worst forms of child labour, such as fishing, mining, prostitution, pornography and drug peddling. Children are forced into these forms of labour by circumstances beyond their control and they work long hours for very little or no reward. The UN Convention on the Rights of Children (CRC) (Article 38) has explicitly prohibited a person under the age of 18 years being recruited into the armed forces or direct participating in hostility. In spite of this special provision under CRC, many countries still involve children below 18 years in hostilities.
Another study conducted in Cameroon, Cote d’Ivoire, Ghana and Nigeria by International Institute of Tropical Agriculture (IITA) in 2002 estimated that there were about 284,000 child labourers working in hazardous conditions on cocoa farm.
Emerging trends indicate that exploitative child labour is increasingly becoming a threat to child survival in Ghana and the fight for child survival is becoming a mirage. Exploitative child labour is rampant in the cities of Ghana. This is as a result of the migration of people from the rural areas, especially, the northern parts of the country where poverty is at its peak. This situation has contributed to a swell up of the population in southern cities like Accra, Tema, Kumasi and Takoradi, making it difficult for the inadequate social amenities to serve the enormous population size. As a result, some children have to indulge in economic activities in order to survive and support their poor families. They work in activities as domestic labour, farms, plantations (including cocoa), and other businesses. However, other forms of work in which children can be found include portering heavy loads, street hawking, truck pushing, child-prostitution, polishing and mending of shoes, illegal mining, drug peddling and as informants in criminal activities. Some empirical researches conducted in Ghana have already identified major causes of this trend of development as poverty, weak parental care, broken home, cultural practices, political instability, domestic violence, urbanization. (For further information on these, go to www.oneworld.net).
     Child labour and International Law
The definition of what constitute child labour is derived from international legal sources. The main sources are: the Convention on the Rights of the Child (1989/1990); the International Labour Organization Constitution; Instruments for Amendment of ILO Constitution (1997, not yet in force), ILO Occupational Safety and Health Convention, No 155 (1981/1983); Optional Protocol on the Involvement of Children in Armed Conflict (2000/2002); and Optional Protocol on the Sale of Children (2000/2002).ÂÂ
All these conventions define child labour as all forms of work that are harmful and hazardous to a child’s health, safety and development, taking into account the age of the child, the conditions under which the work takes place, and the time at which the work is done. They all talk about decent work and human dignity.
Global political initiatives to respect the rights of children, together with the production of internationally recognized statistics, are coordinated by the International Labour Organisation (ILO) through its International Programme on the Elimination of Child Labour. The ILO  (founded in1919) has sponsored two key instruments of international law.
Firstly, the 1973 Minimum Age Convention imposes a minimum age of 15 for legal employment. Secondly, the 1999 Convention for the Elimination of the Worst Forms of Child Labour obliges countries to identify and quantify the incidence of such child labour, backed by national plans for its elimination. The ILO aims at achieving this goal by 2016. Countries ratifying these conventions are committed to pass laws consistent with the provisions of the convention and reinforce child labour legislations. A major review of the 2016 global objective published by the ILO in 2007 says that “it is clear that this ambitious target will not be achieved by business as usual.” (For further information on this go to www.oneworld.net/guider).
The 1999 Convention for the Elimination of the Worst Forms of Child Labour   is particularly weak on the special vulnerability of girl children. This is countered in part by extra-territorial laws that permit prosecution of citizens who sexually abuse children in another country. For example nationals from many European countries and the US can now be charged at home for engaging a child prostitute in Thailand.
 According to the ILO, child labour refers to work that is mentally, physically, socially and morally dangerous and harmful to children, and which interferes with the child’s schooling by depriving them of the opportunity to attend school, by obliging them to leave school prematurely or by requiring them to attempt to combine school attendance with excessively long and heavy work. The ILO also classifies child trafficking as a worst form of a child labour.
 Worst forms of child labour is defined by ILO as all forms of work or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom, as well as forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict and the use of a child for the production of pornography, also the use, procurement or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in relevant international treaties, and work which by its nature or the circumstances in which it is carried out is likely to harm the health, safety or morals of children. Importantly, Ghana is a member of the ILO and has given consent to be bound by its constitution and many other related treaties making compliance obligatory. We would examine in the next section certain provisions of the Ghanaian law which directly have bearing on child labour and the extent to which corresponding legislation in Ghana reflects those requirements provided in the ILO documents in regulating child labour.ÂÂ
   Child Labour and the Ghanaian law
In the domestic sphere, the sources of law on child labour are: the 1992 Constitution of the Republic of Ghana, the Children’s Act 1898 and bye-laws of traditional authorities and district assemblies.
 Article 28 of the 1992 Constitution provides that:
“Parliament shall enact such laws as are necessary to ensure that…
(2) Every child has the right to be protected from engaging in work that constitutes a threat to health, education or development.
               (3) A child shall not be subjected to torture or other cruel, inhuman or degrading
               treatment or punishment.”
In fulfilment of Article 28 of the constitution, the Children’s Act 1998 (Act 560) was enacted by parliament to reform and consolidate the law relating to children, inter alia to regulate child labour and apprenticeship for ancillary maters concerning children generally. In particular section 87of the Act states: “No person shall subject a child to exploitative labour”. It defines a child as a person below the age of 18 years. The1992 Constitution and the Children’s Act form the legal bases of realisation of children’s rights and their protection. Although Ghana has a law prohibiting the employment of children below a certain age, the legislation proves ineffective. The Children’s Act is shrugged off by hardened business owners and disillusioned campaigners.ÂÂ
The law on child labour as contained in the Children’s Act 1998 is inadequate to protect children from exploitative child labour. This is evident in section 89 of the Act, which allows children between 15 and 17 years of age to be engaged in labour provided the conditions under which they work are not tedious, degrading, immoral or harmful to their health. Since the Constitution and the Children’s Act define a child as a person below 18 and are prohibited from being engaged in child labour, employers may take advantage of section 89 to exploit this age group of children who are always available as source of cheap labour. There is no effective mechanism of monitoring the forms and conditions under which children between 15 and 17 work. ÂÂ
Article 32 (1) of the Convention on the Rights of the Child, entreats state parties to this convention to recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.ÂÂ
The inadequacy of the law lies in the fact that the act does not specify or give the kinds of job children between 15 and 17 years are permitted by law to do. Moreover, the law in section 89 is silent on whether these underage workers should earn an income from the work they do. In many communities of Ghana, the work of children who are under the guardianship of another family is quite loaded and exploitative. Guardianship is aimed at promoting the development of skills and giving material/financial support necessary for the child’s successful adulthood. It constitutes an apprenticeship in life under the tutelage of the guardian-family or community. Some of the children are under the age of 15 and the conditions under which they work are very unhealthy, tedious and can be described as enslavement but without any monetary reward apart from providing them with shelter, clothing and food, and the law seems not to regulate this aspect because of the gratuitous nature of the relation. Everyone closes the eye to whatever age and whichever form of work the children are engaged in since the law is also silent.ÂÂ
In Ghana, the minimum age for the engagement of a child in ‘light work’ is 13 years. Light work does not fall under exploitative labour, but it may include house chores such as sweeping, washing of dishes and cleaning which are normally done under the supervision of parents or guardians. It is common to see children even less than 13 years engaged in ‘light work’. Some parents and guardian allow these children carry heavy loads, work for long hours or sell in traffic which are all regarded as ‘light work’. This brings us to the point whereby it is important to require that the law clearly define the kind, nature and degree of the term ‘light work’ and state whether ‘light work’ should attract some monetary reward or not. A clear line must also be drawn between child abuse and discipline/correction for lawful child workers. Section 13(2) of the Children’s Act provides that, “no correction of a child is justifiable which is unreasonable in kind or degree according to the age, physical and mental condition of the child and no correction is justifiable if the child by reason of age or otherwise is incapable of understanding the purpose of the correction”. This, in my opinion draws the line between correction and child abuse.  Every child has, under the constitution, the right to the same measure of special care, assistance and maintenance as is necessary for its development from its natural parents, except where those parents have effectively surrendered their rights and responsibilities in respect of the child in accordance with law, (Article 28(1)(a) ).
Almost every type of lawful work done during the day will definitely interrupt with the education of the child. The law allowing children between 15 and 17 to work also denies them the constitutional right to education. The opportunity costs of child labour is to be out of school. That decision should not be left for the child to take but by the parents and the state as a responsibility under the law. This is because the children constitute a weak and vulnerable group within the population and must therefore be protected by law and well maintained.
  Recommendations to end exploitative child labour
The nation needs to reinforce its legislations on worst forms of child labour. It should also identify its incidence, backed by national plans as requested of it under the 1999 Convention for the Elimination of the Worst Forms of Child Labour.
 To combat child labour Ghana needs stringent law enforcement (detection and punishment) and
ethical standards. This is achievable through coordinated efforts of all local and international stakeholders, such as Emily Sandall Memorial Foundation and the International Initiative to End Child Labour.
Penalty for contravention of the provisions of the Children’s Act must be reviewed. In accordance with section15 of the Act, “any person who contravenes a provision of this Sub-Part commits an offence and is liable on summary conviction to a fine not exceeding GHc 500.00 to a term of imprisonment not exceeding one year or both.” Offenders deserve stiffer jail sentences and imposition of higher damages. Additionally, there should be seizure in part or full of any property acquired through exploitative child labour. The practice where people found to have engaged in exploitative labour were given light sentences and allowed to come back to continue the practice and enjoy their wealth need to stop. Seized property should be sold and the proceeds paid into children’s funds or government chest.ÂÂ
Government should terminate contracts with factories and institutions where there are underage workers and should engage in co-partnership with local and international organisations. Sections should be included in the Children’s Act, that would ban the exportation and importation of goods made “with child” to prevent others profiting from child labour. Parliament should ratify ILO Convention 182 and ILO Convention 138 as a matter of urgency.
Conclusion
The role of children in the socio-economic development of every country cannot be over-emphasized. Given the necessary push and resources, children would be able to make significant impact in the national development programme. It is time political leaders stop talking and start real investment into eradicating issues affecting children in general and there is the need for political will on the part of government.
A child worker becomes alienated from the rest of the family and is likely to engage in self-destructive behaviour. We cannot deny the fact that “rights-based approach” which relies on realization of laws and their enforcement is also insufficient in broader human development considerations. For example, authorities in India occasionally engineer police raids on suspected factories creating headlines that “children have been rescued”. But such actions will be ineffective in the absence of institutional capacity to rehabilitate the children and assist their families in overcoming the loss of income. It is also true that laws need to be complemented with development programmes which recognize the practical difficulties in reintegration of children into formal education. However, in all these, law and its enforcement remain paramount in regulating exploitative child labour in Ghana.
Government support of the Draft Domestic Workers Regulation of 2007, which is being spearheaded by LAWA-Ghana, to become a Legislative Instrument (LI) under the country’s Labour Act will go a long way to protect domestic workers from abuse, maltreatment and inadequate payment for services they render since the present act did not provide enough protection to this group of people. They are referred to as domestic assistants when they are aged between 15 and 17, and domestic workers when they are above 18 years. They include house boys, gardeners, caretakers, child minders, cooks and drivers among others. It will also be appropriate to include in the curriculum of institutions engaged in the training of security agents, such as the police, programmes involving human rights issues and the handling of child labour issues cases.
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