Background
Uganda is rich in natural resources and well suited for agricultural production. However, there is prevalent vulnerability to food insecurity and deprivation of the human right to adequate food at the local level, in part due to seasonal food crop variations and uneven food accessibility and distribution [
1]. Food taboos and food distribution at household level are culturally determined along age- and gender lines. In effect, children, particularly the girls, are vulnerable to food shortages and inadequacy [
2].
Ugandan children face high prevalence of poverty [
3], disease and malnutrition [
4], affecting their survival, health, development, wellbeing, future economic performance, and consequently the intergenerational detrimental cycle of malnutrition and poverty [
5,
6]. Children comprise more than half of the Ugandan population [
4], and 96% have been classified as having some degree of vulnerability, with 51% being moderately or critically vulnerable [
7]. Moreover, children not living with their biological parents are of concern as they are at risk of exploitation, neglect and/or violence [
8]. Nineteen percent of Ugandan children are living with neither of their biological parents and 32,000 children are living without an adult caregiver [
4,
9].
An ‘approved home’ is a governmental or non-governmental institution approved by the Minister of Children’s Affairs under the Ministry of Gender, Labour and Social Development to provide alternative care for children below the age of 18 years with a ‘care order’ of court. In order for the children’s homes to assume the legal responsibility for the children in their care, the children need a ‘care order’ issued by the police or local government within the first 24 h of their arrival at the children’s home. While the children’s homes actually should be ‘approved homes’ with a license received from the Minister of Children’s Affairs under the Ministry of Gender, Labour and Social Development, this has been received only by very few children’s homes. Nevertheless, even without this license, children’s homes may assume the legal responsibility for vulnerable children through a ‘care order’. The ‘approved homes’ are subjected to regulations under the Approved Homes Regulations under sections 66 and 110 of the Children Act, Cap 59 [
10,
11]. In spite of the need for children’s homes to resolve acute situations for some children’s wellbeing, growing up in children’s homes may have damaging effects on children’s physical, psychological, social and cognitive development; whereas families often provide the best environment for children’s growth and development [
12]. The Government’s legal and policy frameworks emphasize reducing the rates of institutionalization by supporting family reintegration, family and community-based empowerment and care, and economic strengthening [
13]. In 2015, there existed more than 850 private non-approved children’s homes in Uganda (UNICEF Consultant Mark Riley, personal communication), and in 2012 the numbers of children living permanently in children’s homes exceeded 57,000. Approximately 50,000 of these were separated from their families, and more than half were admitted without a ‘care order’, thus being there illegally [
14].
There is limited research on the situation of vulnerable children receiving care and the state of the children’s homes in Uganda. According to investigations, most children’s homes do not comply fully with human rights standards, with negative effects on living conditions and the provision of care [
14‐
18]. This includes limited healthcare provisions and inadequate access to clean drinking water, a very limited diet, and malnourished-looking children. As most children’s homes are not subject to adequate Government control, the potential for disregard of the human rights and of the best interest of the child is imminent. The Approved Home Regulations [
11] guide the operation of approved children’s homes. Yet these guidelines do not specify food and nutrition standards.
The overall aim guiding the study was to examine the performance of the State of Uganda in meeting its legal obligations accruing from international and domestic human rights law to respect, protect and fulfill the rights relevant to obtain good nutritional health and wellbeing of children receiving care in children’s homes in Uganda. Our study has two parts: 1) To examine the institutional structures and legal, policy and program framework supporting the right to adequate food, nutritional health and wellbeing of vulnerable children receiving care in children’s homes, and the consequent duties of duty bearers. 2) To perform a qualitative role and capacity analysis of duty bearers with duties towards children receiving care in children’s homes. To this end, we first performed a desk review of the institutional structures and legal, policy and program framework supporting the right to adequate food, nutritional health and wellbeing of the children, the consequent roles and duties of duty bearers, and Uganda’s overall compliance with relevant human rights obligations. Based on the findings from the desk review we developed adequate research tools and then performed a qualitative capacity analysis investigating the subjective perceptions of selected duty bearers concerning their duties towards the children. Finally, we analyzed the findings, based on both the desk review and the investigations of duty bearers. This analysis was structured according to the State’s obligations to respect, protect, and fulfill human rights as the overall aim of the study, and to the five elements of capacity linked to the following five research questions:
1.
To what extent are legal, administrative, social and cultural factors in the responsible institutions, constraining duty bearers to perform their duties to realize the human right to adequate food to obtain good nutritional health and wellbeing of children in children’s homes in Uganda?
2.
To what extent do duty bearers recognize their roles in terms of meeting their above mentioned duties?
3.
To what extent do duty bearers have the managerial, economic, and organizational capacity to fulfill their duties to promote, support and/or implement the human right to adequate food and nutritional health in children’s homes?
4.
To what extent do duty bearers communicate effectively in order to fulfill their duties to uphold the rights of the children?
5.
To what extent do duty bearers have the capacity for making decisions to implement the right to adequate food and nutritious health?
Discussion
The five elements of capacity necessary for duty bearers to meet their obligations are discussed below.
With regard to Capacity I, in order to meet their human rights duties, duty bearers need the capacity of mandate and authority to be able to take action. However, formal and informal rules, norms and power relations, may influence such facilitation of authority. Engh [
37] argues that once the State obligations are identified, there is a need to define mandates and authority that translate such obligations into relevant policies.
While most duty bearers reported that they have legal and/or moral legitimacy to act in accordance with a duty to promote and/or realize the rights of children living in children’s homes, they reported of social, legal-administrative, and cultural barriers to overcome. While most respondents were aware of the mandate and authority of the Ministry of Gender, Labour and Social Development as the lead line ministry responsible for policy implementation relevant for vulnerable children, the mandate of the Ministry of Agriculture, Animal Industry, and Fisheries and the Ministry of Health as the line ministries responsible for ensuring the human right to food and food security policy, was not recognized. The mandate of the society, including parents and children’s homes, was mostly recognized as a moral duty to care for vulnerable children and not a legal duty. The respondents did not consider the lack of legal authority and mandate, nor the inconsistence of following the Government strategies, as a constraint for duty bearers to take action as regards their human rights duties towards vulnerable children. As such, there is need for enactment of the Food and Nutrition Bill [
32] to establish a home for its Council to be able to efficiently carry out its oversight and capacity development mandate. Further, there is need for capacity development as regards the legal and moral responsibility of parents and families to care for their children as well as the strategy of deinstitutionalization as outlined in continuum of care of the revised Children Act, the Alternative Care Framework [
13], and the Approved Home Regulations [
11], which is not yet enacted, as well as the National Orphans and other Vulnerable Children Policy, and Programme Plan. The enactment, implementation, and capacity development as regards this framework is necessary to realize the concept of the best interest of the child and the human rights of Ugandan children to adequate food, nutritional health, and wellbeing [
22,
23]. This would contribute to a change of focus, from a charity approach towards a human rights based approach, as regards the realization of the right to food, health and care for vulnerable children as a duty. The basic needs and charity approaches to development emphasize finding resources to alleviate the manifestation or immediate causes of problems and relieving suffering. These approaches recognize a moral responsibility of rich towards poor, and individuals are seen as victims or objects that deserve assistance. In contrast to the human rights based approach, there is no obligation to meet needs through focusing on structural causes, manifestations and injustices nor the redistribution of existing resources, and as such needs for adequate food, healthcare and care are met only when resources are available.
As regards decentralization and authority of local Governments, the respondents considered there was adequate mandate and administrative and financial authority to carry out policies relevant for vulnerable children. There was a lack of sustained commitment as reflected in excessive bureaucracy and corruption and lack of human and financial resources at all levels of the society. As such, the structure of accountability, an essential part of the human rights based approach for good governance, was not adequately implemented to ensure that duties were performed in accordance with obligations and that duty bearers were accountable to the proper authorities. With the exception of civil society organizations, duty bearers at lower levels of the hierarchy often felt that they were restricted in term of influence on decision-making.
In terms of capacity II, acceptance of legal and/or moral responsibility involves duty bearers’ motivation to implement measures towards the enjoyment of a human right, and the internalization, commitment, and leadership taken in this regard. From a human rights perspective it is important to distinguish political will from capacity, i.e. where the inability to perform a duty is interpreted as lack of capacity to do so as compared to unwillingness to comply.
As a State Party to all relevant international and African human rights instrument as well as through its legal and policy framework, Uganda recognizes and acknowledges that it should do something about the nutritional health and wellbeing of its population and in particular its vulnerable groups such as children. These issues indicate acceptance of obligations on the part of the State. Ratification of human rights instruments is however a limited indicator of political commitment as it is a one-time event. The lack of legislating the human right to adequate food into the legally binding Chapter 4 of the Constitution of the Republic of Uganda [
26] and the Food and Nutrition Bill [
32], the lack of instituting the Uganda Food and Nutrition Council, the lack of provision of adequate funds and other resources to realize the human right to adequate food, as well as the lack of policy implementation, indicate a lack of State acceptance as regards meeting its legal obligations of the right to adequate food. The prolonged time for the enactment of the revised Children Act [
33], the Alternative Care Framework [
13], and the Approved Home Regulations [
11] adversely affects provision of funds and resources to the Ministry of Gender, Labour and Social Development, and hence, the implementation of the policies of relevance to realize the principle of the best interest of the child. Furthermore, the prolonged time for the State submission of initial and periodic reports according to schedule to the respective United Nations treaty monitoring agencies, indicates a lack of commitment towards international obligations. The State does not have a social assistant grant scheme for poor and vulnerable children. Political leadership has not taken practical steps towards allocating national resources towards realizing the human right to nutritional health and wellbeing of vulnerable children in children’s homes. However, The Ministry of Gender, Labour and Social Development, the most underfunded ministry in Uganda, showed acceptance towards its legal obligations relevant for vulnerable children through its policy framework and its work in this regard.
The duty bearers recognized elements of the human right to adequate food, however lack of capacities limited the acceptance towards the vulnerable children in the children’s homes. While children’s home respondents should acknowledge their special role in providing nutritional health and wellbeing to children in their care, the lack of available resources was considered a valid reason for the lack of available nutritious food. Duty bearers, particularly in the children’s homes, believed in short term food and other necessity handouts. None of the duty bearers recognized how this was opposed to the human rights based approach and the human right of the child to adequate food [
22,
23]. Some duty bearers distinguished between the commitments to their occupational legal human rights duties as compared to their private moral duties, i.e. they did not necessarily accept the concept of human rights of the child and as such saw human rights work only as an income generating activity.
There was generally low acceptance and internalization of basic human rights and the rights of the child in the Ugandan society. Since placing children in the children’s homes is a direct choice of child protection strategy of parents and civil society organizations, which is contradictive to the Government policy of child protection, there is a clear violation of the principle of the best interest of the child and the legal rights of the child to parental care [
22,
23]. Moreover, as there was a deliberate choice made by duty bearers in the children’s homes to spend the limited available resources on institutional rather than on parental care for the children. As such, duty bearers at all levels were not responsive to vulnerable children and their needs. As most children’s homes’ staff operated without adequate knowledge of the human rights and the best interest of the child, and were not following the Ministry of Gender, Labour and Social Development approach of deinstitutionalization, there were misuse of authority and lack of commitment and subsequent violation of the right of many children to be cared for by their parents.
Capacity III involves having access to and control over necessary economic, human, and organizational resources required to address a problem and meet a duty. Uganda has enough available food resources to feed all its citizens adequately in terms of quantitative and qualitative adequacy, safety and cultural food acceptance, including malnourished groups. Nevertheless, food insecurity at regional, local and household levels is extensive due to amongst others an inadequate food distribution system, and hunger and malnutrition is periodically widespread in the country. Furthermore, the State does not ensure adequate food storage as a backup for times of disasters. As such, the State has not fulfilled its obligation under the CESCR [
22] nor under its Constitution [
26]. Article 11.2(a) of the Covenant [
22] states that the States Parties, “recognizing the
fundamental right of everyone to be free from hunger, shall take, individually and through international co-operation, the measures, including specific programmes, which are needed to improve methods of
distribution of food by making full use of technical and scientific knowledge”. Objective XIV (b) of the Ugandan Constitution [
26], interpreted only as non-justiciable political objectives or guiding principles, states that the State shall ensure that all Ugandans enjoy access to
food security. According to Objective XXII, the State shall a) take appropriate steps to encourage people to grow and store adequate food, and b) establish national food reserves. At the national level, the State has not committed adequate budget allocations towards the implementation of policies, plans and regulations relevant for the realization of good nutritional health and wellbeing of vulnerable children living in children’s homes. Also, resources that enable food security, such as land and other natural resources, are under threat due to acquisition by multinational companies and lack of protection by the State. Uganda has large debts to international lending agencies, and the present research did not include a comprehensive budget analysis. It is however clear that the State of Uganda does not comply with its minimum core obligation under the CESCR [
22] Article 11.2(a) to
ensure all children freedom from hunger. According to the National Council for Children [
36], the prioritization of children in budget allocations is not likely to change soon.
There were financial, human and organizational resource constraints in all institutions involved in the present study. Duty bearers reported of being dependent on external donor funding as central State funding was inadequate for State agencies and absent for civil society organizations. Most children’s home respondents perceived that there were financial resource constraints in their respective home, which may compromise the vulnerable children’s right to food and nutritional health and wellbeing, including inadequate number of staff.
Most duty bearer institutions lacked access to the necessary human resources that are required to be able to meet their obligations and duties. Such human resources are applied in the daily work with the vulnerable children, to mobilize resources, in communication strategies such as advocacy, awareness rising, empowerment, and lobbying, as well as in coordination and monitoring.
All duty bearers in the children’s homes claimed the vulnerable children have access to available mechanisms to provide feedback and exercising influence on decision-making, an essential part of the principle of the best interest of the child. However, in several of the homes these mechanisms were deemed inadequate. As regards awareness of accountability mechanisms, these were not well developed by the children’s homes.
Capacity IV involves the ability to participate in communication and to achieve a common understanding and influence decision-making and empower people to claim their rights. Our findings indicated that the communication capacity is applied in the daily work with the vulnerable children, to mobilize resources, in communication strategies such as advocacy, awareness rising, empowerment, and lobbying, as well as in coordination and monitoring activities. The findings also indicated that the legislation, policies, regulations and other relevant information agreeing with the Alternative Care Framework [
13], and the human right to adequate food and related rights of the vulnerable children, were not routinely and well enough disseminated nor were they adequately sensitized towards duty bearers, the public, or relevant stakeholders. As such, mechanisms for adequate communication coordination and transparency, as well as resources and capabilities for communication within and between relevant Government institutions, civil society organizations, children’s homes, the public and stakeholders, were deemed inadequate. According to Article 24.2e of the Convention on the Rights of the Child [
23], States shall ensure that all segments of society are informed and are supported in the use of basic knowledge of child health and nutrition. It was also evident that the advocacy efforts of raising the prestige of vulnerable children had not gained adequate results as evident in the continued insufficiency of Government budget allocations.
Evidence-based information on vulnerable children, the human rights of the child, and nutrition was apparently not easily available in relevant languages. However, the Ministry of Gender, Labour and Social Development had developed several tools and training manuals for caregivers, caretakers and service providers of vulnerable children, and it had developed staff guides and performance appraisals. It is important to notice that while most of the relevant Government institutions and civil society organizations were rather good at sharing information through their internet pages, most Ugandans do not have access to this information nor have the literacy skills to process such information. A broad strategy of sharing information and for capacity development of duty bearers at all levels of proximity to the child, is necessary to decrease the dependency on children’s homes and other civil society organizations, and to shift the focus over to generating livelihoods and on family and community empowerment. As regards the right to adequate food and nutrition, there is also a lack of legislation.
With regard to capacity V, having capabilities for informed rational decision-making, is key for duty bearers in the process of meeting and fulfilling their duties. Our findings indicated that the concept of the human rights based approach for good governance is not well understood among Ugandans, and that the State of Uganda has adverse governance issues such as lack of accountability, transparency, and corruption. Monitoring and evaluation efforts of vulnerable children, poverty, malnutrition, and food insecurity at State level was carried out periodically by the Uganda Bureau of Statistics, while the Ministry of Gender, Labour and Social Development, the Uganda Human Rights Commission, and the National Council for Children also performed smaller surveys in relation to vulnerable children and children’s homes. As such, all actors have access to information that makes it able to assess the problem, analyze its causes and consequences and act accordingly. However, terminology differences between different organizations create unclear statistics. This lack of clear information is a major obstacle as regards decision-making and in allocation of appropriate resources and the determination of appropriate responses.
All respondents considered child empowerment, participation and freedom of expression, and opportunities for exercising influence in decision-making, as positive. Some respondents claimed that vulnerable children merely were consulted and did not have a significant influence on the process of setting priorities for policy and public expenditure allocation. According to the National Council for Children [
36], meaningful child participation is not well understood nor are their views respected. Accordingly, there were needs for budgeting geared towards changing the cultural norms and attitudes of the society as well as awareness rising of the society on meaningful child participation.