Advocacy dossier UNICEF Chile Constitutional Reform, Comparative case studies, and Youth Participation

Transcription

1 Theories of Advocacy and Human Development Fall semester 2014/2015 Advocacy dossier UNICEF Chile Constitutional Reform, Comparative case studies, and Youth Participation Katherine Eshel Lisa Jansen Marianne Samaha Paula Trujillo

2 TABLE OF CONTENTS BACKGROUND 3 1. CONSTITUTIONAL REFORM Chile s current constitution: limits and opportunities Best practices Characteristics and trends from around Latin America Proposed model for integrated child protection Best Practices for Chile Constitutional language and norms COMPARATIVE CASE STUDIES Brazil Step One: Meeting of the National Movement of Street Children Step Two: Drafting Constitutional Amendments Step Three: Implementing Legislation for the Child and Adolescent Statute Colombia Process for changing the law according the Convention on the Rights of the Child System of protection of children and adolescents Iceland The Young People s Constitution YOUTH PARTICIPATION AND CONSTITUTIONAL REFORM IN CHILE Challenges in participation of children and adolescents in public policy Requirements for youth participation for adults and youth Actively promoting the participation of disadvantaged groups Current youth participation in public policy in Chile How can UNICEF Chile enhance youth participation in the process of Constitutional Reform? Proposal for workshops on Children s Rights: Metaplan Follow-ups on workshops on Children s Rights 22 Bibliography 23 Annex I: Child-specific provisions of the Constitution of the Republic of Ecuador 25 2

3 BACKGROUND Chile ratified the Convention on the Rights of the Child on With this step, the Chilean state committed itself to the protection of the children and the improvement of their welfare. The Convention enshrines the elemental principles of universality and indivisibility from the Universal Declaration of Human Rights, and confirms that all rights are essential and should be promoted and respected in order to protect every child. This document signifies an important change for the childhood concept; goes on to consider the children as equal human rights' holders instead as an object of legal protection only when they are in a vulnerable situation. Nevertheless, despite the signing of this Convention the Chilean State needs to make constitutional reforms in order to change the state approach towards children and adolescents. Currently, the government of the President Michel Bachelet is taking steps to reform its Constitution. As the local arm of the United Nations Children s Fund, UNICEF-Chile has a critical role to play in this process. In order to enhance the efficacy of UNICEF-Chile s advocacy, this dossier provides information on constitutional reform for children s rights in other Latin American countries to identify best practices, and proposals to promote child and youth participation in constitutional reform, based on case studies. On the one hand, in section 1, comparative studies of constitutional reforms provide qualitative information for UNICEF-Chile to participate in designing exemplary constitutional articles on children s rights and protection, which may include child participation in political processes as a national priority within the future constitution. This analysis will help UNICEF-Chile to frame discussions on reform of Chile s constitution and how to engage with local authorities on this subject. On the other hand, in sections 2 and 3, we also seek to provide practical materials to assist UNICEF-Chile to build the participation of children and youth in the reform process. This dossier is not intended as a prescriptive document; rather, the case studies show a range of possible plans of action to include children in decision-making. Additionally, we provide methodologies to engage children in discussions about the constitution, their rights and participation, and how UNICEF can use workshop outputs in its advocacy. Finally, we also propose that UNICEF-Chile consider a youth ambassador program, whereby children who wish to stay involved beyond workshops can bridge the gap between UNICEF-Chile and other children in their communities, as well as speak for children when national consultations take place. 3

4 1. CONSTITUTIONAL REFORM The first portion of this dossier focuses on best practices for constitutional reform in Latin America, in the context of children s rights. First, we will present the background of Chile s current constitution; then, the dossier presents a series of comparative examples of constitutional principles, rules and practices, pulled from experiences of constitutional reform in other Latin American countries; finally, we present norms of constitutional language to assist UNICEF Chile in its assistance of the Chilean Government and Congress in reinforcing the recognition and protection of children s right in its future Constitution Chile s current constitution: context, limits and institutional landscape The Political Constitution of the Republic Chile took shape under close supervision of the military government and subsequent democratization of the nation. Indeed, the current constitution was voted into law by plebiscite in 1980, under the military dictatorship of Augusto Pinochet, and was fully effective in 1990, amended to progressively replace the constitution of President Arturo Alessandri signed the constitution of 1925 in Santiago, in a context of a national shift away from a class-led oligarchy toward a more populist form of government, following a severe economic and social crisis. Indeed, the constitution of 1925 itself had replaced that of 1833, one of the most long-lived constitutions that set up an authoritarian presidency and oligarchic parliament, as well as instating Catholicism as the Chilean state religion. The achievements of the Constitution of 1980 are relative to Chile s past constitution. Passed under tight military control, the 1980 constitution was designed such that Chileans would approve Pinochet s candidacy, proposed by the military junta, every eight years. When a majority voted no to Pinochet s candidacy in 1988, the military government came to an end two years later (the USSR dissolved concurrently), as the country transitioned to a democracy, with numerous amendments to the Constitution. Amended on an ad hoc basis since Pinochet left power, the Chilean constitution is not necessarily well adapted to the realities of modern Chilean society; for instance, the constitution still includes anti-terrorism provisions, leading Human Rights Watch to criticize the Chilean government for abuses of such legislation in land conflicts against indigenous groups (HRW 2004). Approximately 22% of Chile s population is under 15 years old, five points below the average population of South American countries (see figure 1). Meanwhile, Chile remains one of the only countries of the continent that has yet to reform its constitution to include children s rights since they ratified the United Nations Convention on the Rights of the Child in 1990 (although Guatemala, the country with the highest proportion of under-15s, has not reformed its constitution either, despite being a signatory to UNCRC since 1990). While its regional community has adapted their constitutional foundations to act in the best interests of children, Chile runs the risk of failing to fulfill its international duties to its children and youth 4

5 . Figure 1: Portion of population under 15 years old in each Latin American country. Statistics from the Population Reference Bureau (2014). The Chilean Constitution only refers to children in three articles: Articles , pertaining to nationality and citizenry, and Article 19, concerning the right to education as a part of the bundle of constitutional rights and duties. However, upon closer examination, these rights are all articulated from the perspective of the parent s relationship to their child, rather than discussing the intrinsic rights of the child. Art and 19.11, in particular, exhibit this bias toward the parent s rights over their children: Article 19.10: The right to education. The objective of education is the complete development of the individual in the various stages of his life. Parents have the preferential right and duty to educate their children. The State shall provide special protection for the exercise of this right. Basic education is mandatory; to that effect, the State must finance a gratuitous system designed to ensure access thereto by the entire population. It is, likewise, the duty of the State to promote the development of education at all levels, encourage scientific and technological research, artistic creation, and the protection and increase of the 5

6 cultural patrimony of the Nation. It is the duty of the community to contribute to the development and improvement of education. Article 19.11: Freedom of teaching includes the right to open, organize and maintain educational establishments. Freedom of education has no other limitations but those imposed by morals, good customs, public order and national security. Officially recognized education cannot be directed towards propagating any type of political-partisan tendency. Parents have the right to choose the education establishment for their children. A constitutional organic law shall establish the minimum requirements for each of the levels of primary and secondary education and shall provide for the objective norms of general application, that may enable the State to watch over compliance therewith. Said law shall, likewise, establish the requirements for obtaining official recognition of educational establishments at all levels (emphasis added) These two articles, dictating a parent s rights as pertain to their child s education, are do not meet the standards of UNCRC, which enshrines the right of the child to equal, free and worthy education (Art. 28), directed toward development of personality, respect, and preparedness of life (Art. 29), the rights of disabled children to education (Art. 23), education as pertains to health and family planning (Art. 24), protection from economic exploitation or other work that might interfere with education (Art. 32), among others. Thus, the Chilean constitution is lacking on multiple fronts in the field of education alone. Chile must therefore engage in a process of constitutional reform in order to guarantee continuity between UNCRC provisions and the rights and duties conferred under their own constitution. Given that children s right are not made explicit in the Chilean Constitution, we can presume that children are conferred the same basic rights as other individuals, as detailed in Ch. 1. Art. 1 and Ch. 3 rights to life, physical and psychological integrity, equal protection under the law, private life, of conscience, to personal freedom, education, health, of expression, association, religion, ownership, and more. These basic universal rights are reduced in scope to protect individuals rights, with no distinction between adults and children or youth. Additional rights, such as the rights of marginalized groups (disabled, indigenous, or other) to education, will therefore need to be considered during the reform process for inclusion in the new Constitution. At present, a number of public institutional mechanisms in the field of health, education, and justice are working together on issues pertaining to children and adolescents (UNICEF 2014:46). The main institution involved in children s issues is the Department of Minors (Servicio Nacional de Menores, SENAME), which falls under the Ministry of Justice. SENAME then hosts the Offices for the Protection of Rights (Oficinas de Protección de Derechos) and two other social programs, namely Community Prevention Programs (Programas de Prevención Comunitaria) and Short Intervention Programs (Programas de Intervención Breve), which all operate at the local level (UNICEF 2014:7). In addition, the Ministry of Social Development oversees an Intersectoral System of Social Protection (Sistema Intersectorial de Protección Social), responsible for the administrative aspects of social programs and social security, executed by different state agencies. The Intersectoral System of Social Protection consists of many subsystems, such as Chile Solidario and Chile Crece Contigo (UNICEF 2014:33). All in all, the impact of these mechanisms is limited as they are highly fragmented, do not collaborate enough and lack autonomy and resources (UNICEF 2014:7). 6

7 1.2. Best practices Characteristics and trends from around Latin America In order to facilitate and streamline the reform process, we provide here a number of examples of constitutional principles, rules and practices, implemented in other Latin American countries. This section draws heavily on the work of Alejandro Morlachetti on Sistemas nacionales de proteccion integral de la infancia (national systems for the integrated protection of childhood), published in 2013 in Santiago and supplemented with contributions from the UNICEF national office of Chile. Morlachetti synthesized the basic elements necessary for a successful constitutional reform into the following list: (1) institutionalization and integration; (2) stewardship; (3) decentralization; (4) participation; (5) independent enforcement; (6) explicitation of the budget; (7) sustainability and evaluation. The first element, institutionalization and integration, denotes the inclusion of child policy within new or existing institutions. In Latin America, a great deal of diversity is exhibited in nations choice. Laws or codes of protection can provide a legal basis for the creation of a dedicated national council, or the new institution for child policy may simply be subsidiary to an already existing ministry. Levels of institutionalization in Colombia: The process of reform in Colombia to comply with CRC began in 1989, yet failed three times between 1994 and 2004 due to bureaucratic management. Collaboration between governmental institutions, civil society and international organizations, including UNICEF, as well as the creation of the Alliance for Colombian Children, was instrumental in producing a new law in 2005, with very clear levels of institutionalization, and Code for Children and Youth in The policy-maker directing child policy is the Colombian Institute of Family Wellbeing (Instituto Colombiano de Bienestar Familiar ICBF), executive power is shared by the Colombian Institute of Family Wellbeing and departmental and municipal Councils for Social Policy, which oversee implementation of the National Development Plans, smoothly integrating child policy into Colombia s existing implementation frameworks. Stewardship, or coordination, of the protection system is closely tied to its institutionalization. Morlachetti s analysis found that stewardship of the system should be clearly defined, beyond implementation. For instance, in Argentina, Bolivia, Ecuador, Peru and Venezuela, stewardship is assigned to a ministry, which has implications for the capacity of the child policy management authority s capacity to autonomously direct its own affairs. Local stewardship in El Salvador: The national councils for childhood and youth are granted stewardship of El Salvador s child protection system, an innovation that allows for multi-stakeholder engagement in child policy; indeed, national councils for childhood and youth are generally plural and deliberative organizations, spaces for articulation and participation of invested actors beyond government representatives. El Salvador s local councils therefore have a very significant representation of NGOs and child-focused organizations, although its councils at national levels are not equally representative, composed mainly of ministry representatives and government institutions. Decentralization also allows for better integration of other actors into child policy. The devolution of political and technical responsibilities to regional, provincial and municipal levels not only empowers communities, but also devolve may transfer with execution, financing and enforcement responsibilities. Therefore, two types of decentralized institutionalization emerge: first, devolution of powers to deliberate and formulate policies, as 7

8 well as control and evaluate them; the, a transfer of executive power and responsibility to safeguard rights. All countries examined by Morlachetti, except for El Salvador, mandated the creation and maintenance of local agencies in each municipality. Decentralization in Brazil: As a federal state, Brazil made decentralization a core component of its constitutional reform for child policy. Indeed, this can be detected in the levels of institutionalization of its child policy: the National Council for the Rights of Children and Youth (CONANDA) sets the policy agenda, whereas states, granted provincial autonomy in the federal Brazilian system, are given full executive power; CONANDA and lower-level Rights Councils then carry out policy implementation. The participation component acknowledges the need for intersectoral coordination within managers of the system, between the administration and civil society, and especially with children and youth. However, the involvement of children and youth, as an agenda item for constitutional reform, goes through the involvement of child-focused non-governmental organizations (NGOs). NGOs and their agents may be included in decision-making processes on the basis of parity (Guatemala, Venezuela, Ecuador, Dominican Republic), have higher representation at lower levels (El Salvador), or have integrated the system so completely that child-focused NGOs are members of ministries and institutions of government that steer child policy (Nicaragua, Costa Rica, Uruguay). Effective participation of civil society, and especially children and youth themselves, in the child protection system would be a true innovation for Latin America, and presents an opportunity for Chile to bring a significant value added to the child protection landscape of Latin America. An independent mechanism to enforce the rights of the child promotes and ensures that the CRC is applied. Many Latin American countries incorporate children and youth into existing human rights institutions, with the simple designation of a specific defender or ombudsperson for the rights of children and youth. However, these positions are often subsidiaries of bodies with vested interest. For instance, Jamaica has a children s advocate, but the position is not independent on Parliament and remains vacant. Argentina has set itself apart from the rest of the continent by creating a truly independent Defensor de los Derechos de las Niñas, Niños y Adolescentes (Public Defenders of the Rights of Children and Adolescents), whose broad function is to defend the individual and collective rights of children and youth. Morlachetti further recommends that a consistent budget, whether national or local, be devoted directly or indirectly to implementation of reforms on child policy and enforcement of rights as conferred by the amended constitutions. This requirement is interpreted in diverse ways in Latin America: The budget cannot be inferior to that of previous years (Argentina); The Code for Children and Youth explicitly designates a percentage of the national budget that shall be allocated to the National Council for Children and Adolescents for the child protection system (Dominican Republic); A foundation for children and youth is created and established through set yearly transfers from the Fund for Social Development and Family Aids (Costa Rica) or through private, public and international financial contributions (Ecuador); use of the fund may be restricted to the financing of special projects and programs only, rather than full financing of the protection system (Venezuela); 8

9 The government finances operation costs of the National Council for Children and Youth, regional level councils are funded by the relevant municipality (Ecuador), or respective jurisdictions must allocate sufficient resources to carry relevant provisions (Venezuela). Finally, sustainability and evaluation are inherent to the design of a child protection system. A number of countries experienced a slow establishment of the protection system by local authorities (Argentina, Costa Rica, Bolivia, Guatemala, Paraguay). Additionally, children s rights were often included in national codes without explicit reform, rather through process-oriented legislations reorganizing ministries, modifying the hierarchy of existing institutions, or shut down one ministry and transfer its competencies to another body. Nicaragua s National Council for the Integrated Protection of Children and Youth was subsumed into the Ministry of Family, Youth and Childhood; Venezuela granted the Ministry of Popular Power jurisdiction over child and youth protection in a 2007 reform; Ecuador has been elaborating a law to establish a Council for Generational Equity that will replace the National Council for Childhood and Youth, as part of their decentralized protection system. The evaluation of protection systems efficiency and effectiveness, as well as the identifications of necessary corrections, is both necessary and seemingly difficult to undertake, given the short operating time of Latin American child protection systems. Nonetheless, while a number of nations have taken steps to modify their child protection systems on an as needed basis, explicit evaluation and monitoring mechanisms, information and observer systems and clear indicators for child rights are lacking across the board, yet remain critical to guarantee the long-term sustainability, relevance and effectiveness of a child protection system that withstands the test of time Proposed model for integrated child protection Figure 2: Model for an Integrated System of the Protection of Childhood 9

10 Morlachetti proposes a model for an integrated system of protection of childhood that includes basic functions, capacities and structures (see figure 2 from Morlachetti, p. 88), and that each society could adapt to match its own social, cultural and political context, its existing institutional structure and according to available resources. In his model, stewardship (rectoría) is clearly defined at the national (upper left) and local (upper right) levels, attributed to Councils that both are deliberative in character (carácter deliberativo) and have equal representation of government and civil society (representación paritaria gobierno-sociedad civil). This stewardship then feeds into interdisciplinary and decentralized institutions, public defenders and specialized judiciary bodies (lower right) to frame the protection, defense and restoration of children s rights. Finally (lower right), an autonomous institution, which may be a ministry subsidiary, local, regional and municipal bodies and other interested parties are entrusted with the execution of the protection system s policies and programs. In the center of the diagram, a feedback mechanism is implied through the arrows, which also indicates the relationship hierarchy between the the stewards, guarantors and executor; stewards set the agenda, guarantors ensure that rights are upheld, and the executive institutions implement policy, changing the context of children, which in turn informs future policy-making, creating an institutionalized, decentralized, participatory and sustainable system of integrated child protection Best practices for Chile As a latecomer, Chile benefits from a large range of potential protection system formats. Morlachetti includes his own suggestions to meet the seven broad requirements (pp ), which should form the backbone of any evaluation or revision of an existing system. Key ideas to ensure that Chile s child rights reform is forward-looking and becomes a model for other nations to emulate include: Institutionalization: Chile, the current host institution for child policy is the Department of Minors (Ministry of Justice), which carries out court orders pertaining to minors; the primary concern is security and public order, rather than nation-wide coordination of integrated child protection. In keeping with Morlachetti s proposed model, the existing National Council for Children, created to steer the process of constitutional reform, could be given a permanent mandate to design legislation and national programs for children and youth. On the local level, councils may be formed to advise the regional intendant, or to assist provincial governors, who are assisted by Provincial Economic and Social Councils. Stewardship/coordination: Closely tied to institutionalization, councils may act as coordinators of lower-level actors - national council over regional councils, regional councils over provincial councils, provincial councils over municipalities and local actors, leveraging on El Salvador s successful incorporation of civil society at lower levels. Decentralization: Executive powers may be devolved to lower levels to adapt child protection systems to local contexts. An additional national-level fund could provide an additional level of coherency and counteract disparity in regional/provincial capacities related to funding. Participation: Chile may create Councils for Children and Youth on the basis of parity of representation of government and civil society, yet direct participation of the children and youth themselves is an opportunity for Chile to set itself apart. In particular, local councils can create spaces for concertation and participation of children and youth during important decisions on local policies, in keeping with Articles 12 (right to be heard) and 5 (need for direct relationship between children and government, rather than one that is mediated by NGOs or human rights institutions) of the CRC. Independent enforcement mechanism: Following the lead of Argentina, the establishment of an independent public defender guarantees that children s rights will have priority over the rights of others. 10

11 Budget: A specified and sufficient budget allows for sustainability of policies and a relative safety from political volatility. Evaluation: The creation of an observatory, evaluation mechanisms and a protocol for reform in the terms of reference of the National Council for Children, or an eventual law or code establishing children s rights, enables a strategic approach to child protection. While other Latin American countries have amended their constitutions or laws pertaining to children, Chile would be the first to equip its child protection system with the tools to undertake an efficient and far-reaching policy for the integrated protection of children Constitutional language and norms In terms of explicit language, Chile can follow a Constitution-Code combination, similar to that of Colombia, where children s rights are defined in the constitution (while protection system provisions are located instead in the Code for Children and Adolescents): Article 44. The following are basic rights of children: life, physical integrity, health and social security, a balanced diet, their name and citizenship, to have a family and not be separated from it, care and love, instruction and culture, recreation, and the free expression of their opinions. They will be protected against all forms of abandonment, physical or moral violence, imprisonment, sale, sexual abuse, work or economic exploitation, and dangerous work. They will also enjoy other rights upheld in the Constitution, the laws, and international treaties ratified by Colombia. The family, society, and the state have the obligation to assist and protect children in order to guarantee their harmonious and complete development and the full exercise of their rights. Any person may request the Competent authority to enforce these rights and to sanction those who violate them. The rights of children have priority over the rights of others. Article 45. The adolescent is entitled to protection and integral development. The state and society guarantee the active participation of adolescents in public and private organizations that are responsible for the protection, education, and progress of youth. The first paragraph of Article 44 of the Colombian Constitution describes the rights accorded to the child. Additionally, the final sentence of gives the rights of children priority over all other rights. The constitutions of other Latin American countries use similar language to define children s rights. Ecuador, in particular, has a lengthy section devoted to children and adolescents (Sec. V), which can be found in Annex I, and similarly lists children s rights, establishes them as preeminent over other groups rights, and explicitly entrusts the State with the task of adopting measures for their protection. Other countries use the following language: Brazil: Article 227. It is the duty of the family, the society and the State to ensure children and adolescents, with absolute priority, the right to life, health, nourishment, education, leisure, professional training, culture, dignity, respect, freedom and family and community life, as well as to guard them from all forms of negligence, discrimination, exploitation, violence, cruelty and oppression. Paraguay: Article 54: Of the Protection of the Child. The family, the society, and the State have the obligation of guaranteeing the child his harmonious and integral development, as well as the full exercise of his rights, protecting him against abandonment, undernourishment, violence, abuse, trafficking, and exploitation. Any person may demand of the competent authority the fulfillment of such guarantees and 11

12 the sanctioning of offenders. In case of conflict, the rights of the child have prevailing character. Dominican Republic: Article 56: Protection of underage persons. The family, the society and the State, shall prioritize the superior interests of children and youth; they will have the obligation to assist them and protect them to guarantee their harmonious and integral development and the full exercise of their fundamental rights, in accordance with this Constitution and the laws. Bolivia: Article 60. It is the duty of the State, society and the family to guarantee the priority of the best interests of the child or adolescent, which includes the preeminence of his or her rights, the priority of receiving protection and aid in any circumstance, priority in the attention of public and private services, and access to prompt and appropriate administration of justice, and the assistance of specialized personnel. NB: Article 60 of the Bolivian Constitution is actually contained within an entire section, Section V: Rights of Children, Adolescents and Youth. Venezuela: Article 78. Children and adolescents are full legal persons and shall be protected by specialized courts, organs and legislation, which shall respect, guarantee and develop the contents of this Constitution, the law, the Convention on Children's Rights and any other international treaty that may have been executed and ratified by the Republic in this field. The State, families and society shall guarantee full protection as an absolute priority, taking into account their best interest in actions and decisions concerning them. The State shall promote their progressive incorporation into active citizenship, and shall create a national guidance system for the overall protection of children and adolescents. Venezuela therefore also includes components for child participation, with The State shall promote their progressive incorporation into active citizenship. The Dominican Republic contains a similar provision (Art. 56(3)), whereby, Adolescents are active participants within the development process. The State, with the joint participation of families and society, will create opportunities to stimulate their productive transition into adulthood. Another model for compliance with CRC may be found in Argentina, where the Convention was incorporated into the constitution with the following statement, in the full force of [its] provisions, [it has] constitutional hierarchy, [does] not repeal any section of the First Part of this Constitution and [is] to be understood as complementing the rights and guarantees recognized [in the Constitution] (Chapter II, Section 75, Art. 22); this umbrella statement does not enumerate the rights specific to children. Nicaragua employed similar language in Article 71 of its constitution: Childhood enjoys special protection and all the rights that this status may require; for that reason, the International Convention on Rights of Children is fully applicable in Nicaragua. For Cuba (Art. 40), Haiti (Art. 261) the incorporation of CRC is limited to language along the lines of Children and youth benefit from particular protection on the part of the State and the society or The law ensures protection for all children. 12

13 Lessons for UNICEF Chile: Ingredients for constitutional reform are: institutionalization, stewardship/coordination, decentralization, participation, independent enforcement mechanism, budget and sustainability. Norms across Latin America for language used to specify children s rights and protection in constitutions include: 1. enumerating children s rights and specifying their absolute priority and prevalence over other rights; 2. affirming rights listed in CRC as complementing rights already granted in the constitution (generally detailing rights for all persons, and not specifically for children and youth); 3. including a blanket statement that children benefit from particular State protection. 13

14 2. COMPARATIVE CASE STUDIES 2.1. Brazil It would be interesting to examine how Brazil was able to reach laws which were later described by former UNICEF Director James Grant as "the best child protection legislation in the world", (Mickelson, 2002). In fact, these laws were the result of the adoption of a constitutional clause proclaiming the rights of the child and adolescent in 1989 and a subsequent Child and Adolescent Statute (ECA) in And all of that was possible because of the UNICEF supported national social movement focused on the rights of the child that emerged around In the following paragraphs, we are going to examine the successful process that made child rights constitutional in Brazil, with an emphasis on its two most important aspects: social mobilization and child participation Step One: Meeting of the National Movement of Street Children: One of the most severe social problems in the country was street children. One of the most significant reactions to this situation was led by the National Movement of Street Boys and Girls, an organization created in 1985 and composed of 200 NGOs working on behalf of Brazil s street children. The movement held its first meeting in May 1986 in Brasilia with the participation of 500 street children delegates who talked about the conditions that had driven them to the streets and articulated their concerns as well as their demands. This event, which received a very important coverage by the media, represented a first step towards social mobilization and the participation of children in reforms affecting their circumstances Step Two: Drafting Constitutional Amendments As the country was drafting a new Constitution, it was the perfect opportunity to include the rights of children in the new legal system. Accordingly, representatives from government ministries and a wide variety of NGOs, including the National Movement of Street Children, formed the National Commission on the Child and the Constitution whose aim was to draft a constitutional clause on children's rights. UNICEF worked with the Committee and supported it on several levels, by providing a secretariat and technical assistance, recruiting private sector support and helping widen the network of groups and organizations involved. Drafts of the amendments were submitted with petitions signed by more than 200,000 adults and 1,300,000 children (Swift, 1991) and mass gatherings of children in many parts of Brazil in support of the draft. As a result, it became the chapter on the rights of children and adolescents (Article 227) in the Constitution which was voted on November 20, Step Three: Implementing Legislation for the Child and Adolescent Statute Right after the triumph of constitutional protection for children and adolescents, advocates started working on a legislation that would put the constitutional principles into action. To do so, many NGOs formed an organization known as the National Forum of Non-governmental Organizations for the Protection of Children and Adolescents, with UNICEF playing a facilitator role as before. The Forum held thousands of meetings with jurists, educators, social workers, militants of the popular movement, priests and other religious people who all participated in the writing of the new legislation. Children were involved in this process on two levels. On one hand, they were able to discuss the project at a regional level and to send representatives to add their inputs on a state level (Swift, 1991). On the other hand, they pushed for the new legislation s acceptance through demonstrations, their most important one 14

15 being in Brasilia. Reports say that 5,000 children met in Brasilia, some of whom invaded the Congress and presented their demands while there was a session going on. Also, an intensive widespread campaign took place in support of the statute. According to Swift (1991), it included writing letters to congressmen, petitions, an exhibition in Congress of children s drawings, a campaign in which artists, film, television and sports stars spoke out in favor of the statute, and a campaign to secure the backing of businessmen and entrepreneurs. As a result, On July 13, 1990, the Statute of the Child and Adolescent was approved by both houses of the National Congress. Lessons for UNICEF Chile: Participation of the private sector: advertising industry, media organizations, pediatric society, etc. Information systems which permit communities to follow the effects of their efforts in reaching their goal in order to maintain mobilization of communities Repetitive demonstrations and gatherings of children all over the country Petitions signed by children in support of the new legislations Appointing children delegates on a regional level Having the children articulate their own concerns and demands directly to the politicians or through the medias Direct participation of the children in writing the laws through the delegates 2.2. Colombia Process for changing the law according the Convention on the Rights of the Child In 1989 Colombia was progressing on the definition of a special legislation for persons younger than 18 years of age, in order to have the right for being part of State programs designed to protect this population group. Nevertheless, with the signing of the Convention of the Rights of the Child (CRC) the same year, this new definition wasn t enough. It was necessary to ensure the integral protection of the children (which became a legal imperative); this means that the State must ensure the good exercise and guarantee of their rights (the ones recognized to everyone), protecting them in a special way in cases of infringement of the law; the reestablishment of their rights in case of infringement of the law and the establishment and implementation of public policies which aim to improve living conditions of children and adolescents. Thus, since this year there were made 3 different efforts to change the law according to the CRC statements. In 2 of them UNICEF had an active role: : Led by the Ministry of Justice a commission was formed in order to make the redaction of the new code. This text was abandoned by petition of the civil society due to the minor participation of these organizations on the project : the office of the Defender of the People, organized an inter-agency working group in order to articulate a new juvenile criminal system with technical and financial support from UNICEF. The text was concerted by 14 public and private entities of the 15

16 national order but in 2001 when the commentaries collection stage was finished the Ministry of Justice reformed the text and presented it to the Congress without the consensus of the participant entities, as a consequence they asked the Parliament to withdraw the project immediately. 3. a) 2002: the third effort was lead by a group conformed by civil society institutions, academy and UN System Agencies (UNICEF included) called Alianza por un politica publica de Infancia which was joined by State entities included the ICBF (entity in charge of childhood protection in Colombia), the Ministry of Social Protection, the Ministry of the Interior and Justice and the National Police. After a long consultation process among all the participant entities, 5 parliamentarians presented a new project of law as a parliamentary initiative. b) 2004: The project was presented on the First Commission of the Senate but due to its extension, its nature as statutory law and the 8 mandatories debates to be held to its approval, the Congress suggested the withdraw of the document, and proposed to present it the next year because the time wasn t enough. c) 2005: Alianza por la Niñez Colombiana with a group of parliamentarians made a new law project. The process was made during 8 months trough regional worktables in order to have more inputs and complete the project. It was passed with the sign of 40 representative of the low chamber in June 2006, 5 representative of the high chamber august 2006 and sanctioned by the President on November , as Ley 1098 : Código de Infancia y Adolescencia de 2006 Main achievements of the new law: Defines the objectives and principles of the public policies on childhood and adolescence and establishes the President, the Governors and the Mayors as the responsible authorities for accomplish the law. Determines the obligation of having a differential public policy for childhood and adolescence which articulates the Municipal Councils, the National Assembly and the National Congress in order to have financial resources for its implementation. Creates the National Council of Social Policy (Concejo Nacional de Politica Social) as the organ responsible for design the public policy on chilhood and adolescence, guarantee the budget and dictate lines of action. Orders that in every department and municipality should be held the Social Policy Council (Concejo de Politica Social ) led by the governor or the mayor in order to tracking the progress on the application of the different public policies related to children and adolescents. Determines the Colombian Institute of Family Wellbeing (Institute Colombiano de Bienestar Familiar) as the coordinator of the National System of the Family Wellbeing in order to improve coordination System of protection of children and adolescents The National System of the Family Wellbeing (Sistema Colombiano de Bienestar Familiar SNBF) is the group of agencies of the three branches (executive, legislative and judicial), the international cooperation and the civil society, which are designed to protect children and adolescents in national, regional and local level. This system was created in 1979 but reinforced and reorganized in 2006 with the new law. Objectives: Strengthening the articulation of the state agencies in order to guarantee the integral protection of children and adolescents. 16

17 Promote the construction, the implementation and the following up of the public policies on childhood and adolescence in all the Colombian territory. Fix the childhood and the adolescents public policies as a social, political, technical and financial priority of the State. Improve the participation of social movements on the topic of childhood and adolescents Evaluation and monitoring the development of public policies for children and adolescents in order to guarantee their rights. Lessons for UNICEF Chile: Advocacy lessons Strengthening the joint work with governmental institutions Coordination among civil society and international organizations Strengthening alliances with parliamentarians interested on the subject Gathering regional inputs Public policy lessons Importance of the existence of a coordination agency for implementing the public policies on childhood and adolescence in the national, the regional and the local level. Strengthening the responsibility of national, regional and local authorities on childhood and adolescent s public policies through the law Iceland As it is happening at the moment, Iceland is a very interesting case study in terms of child participation in revising the Constitution. The project is, firstly, based on the principle that the people the real people, not the elite should be responsible of writing the Constitution of any democratic country. Secondly, the project is, according to the Icelandic National Committee for UNICEF s report, a way of putting into action UNICEF and the civil society s goal of ensuring child participation in the development [ ] of state policies, programs or other initiatives concerning the fights against sexual abuse or exploitation of children The Young People s Constitution UNICEF Iceland, in cooperation with the civil society, launched a participation project called The Young People s Constitution, whose aim is to make sure that the voices of children and young people are being heard and taken into account during the revision of the Constitution. The project focuses on two main aspects: education/information and participation. a. Education/ information To ensure that the children know their rights as well as how the Constitution works the team produced a number of explanatory short animated films about the main parts of the constitution; the videos are aimed at 13 to 18 year-old kids. Also, a website for the project has been launched: functions as a child-friendly educational and informational site on Icelandic Constitution. And to advertise it, postcards which encourage the youth to check the site and share their opinions on the Constitution have been sent to schools. 17

18 b. Participation As a preparation for the child participation project, 23 municipal youth councils were formed throughout the country. Then, in April 2014, delegates from all municipal youth councils met in Reykjavik to watch videos about the Constitution and discuss the different themes. As a result to the forum, a final report was prepared to be presented to the constitutional council and the parliament. The report includes conclusions from the youth forum and ideas and suggestions that were children sent to the project s website. Lessons for UNICEF Chile: Creating municipal youth councils that would represent children throughout the country; Producing child-friendly animated films to explain how the Constitution works; Developing a child-friendly website about the Constitution with a suggestions option through which children can send their input. 18

19 3. YOUTH PARTICIPATION AND CONSTITUTIONAL REFORM IN CHILE In this final section we will examine how UNICEF Chile can increase the participation of youth in the process of Constitutional Reform. First we will address some challenges and prerequisites for youth participation. Secondly we suggest some actions that UNICEF Chile can undertake in order to get children and adolescents involved in the process of constitutional reform, in which we will briefly discuss efforts already made by the National Council for Children. In the third and fourth paragraph we propose a methodology for workshops UNICEF can give to children and adolescents and how these workshops can contribute to improved participation. Eventually we also suggest a possible way of direct participation Challenges in participation of children and adolescents in public policy As we have mentioned earlier, Chile is the only country in Latin-America that does not have an institutional framework that recognizes children and adolescents as subjects of rights. As a result the institutional space for them to participate and influence public policy is very little and fragmented, rather than integrated (UNICEF 2014:6). Children and adolescents have to shift from being passive beneficiaries of laws and policies to being active participants in the whole cycle of policymaking, that is to say in the process of drafting, implementation, monitoring and evaluation of results (UNICEF 2014:8, 23). In this section we will examine some main barriers that impede inclusive youth participation, both from the part of adults and youth themselves, and briefly examine youth participation in public policy in Chile at present. We believe that UNICEF Chile could facilitate the engagement of youth in public policy and the process of constitutional reform specifically Requirements for youth participation for adults and youth As youth participation in public policy is not yet obvious, efforts must be made by both adults and youth to increase their share in policy-making. On the one hand it is fundamental that adults recognize the value and importance of youths contributions. Furthermore, youth participation must not be seen as something that threatens their authority, but rather as beneficial to both parties as policies can better respond to actual needs. This however often requires a change of mentality among adults (UNICEF 2014:26-27). Besides a positive stance towards youth participation, adults must also actively create space for youth to participate. Moreover, when youth are able to participate, adults must also make sure that information is comprehensible and that they listen to their contributions (UNICEF 2014:22). An often heard complaint is that when adolescents or students participate, they still feel like their voices are not being heard (UNICEF 2014:14). On the other hand, children and adolescents need self-esteem, respect towards others and awareness of their social environment in order to make sensible contributions Actively promoting the participation of disadvantaged groups Another important issue to keep in mind when promoting youth participation in public policy is the diversity of children and adolescents. Firstly, children must be seen as different from adolescents in their needs, interests, competences and experiences (UNICEF 2014:19). Among youth within those two categories however there is also a vast diversity. It is of fundamental importance to pay attention to disadvantaged groups or groups that have different needs and experiences. We want to briefly consider three groups that need special 19