It is unjust to deny child accident victims a payout

Monday August 17 2020

kids

Children playing at a school. PHOTO | FILE 

JEAN NEPOMUSCENE MUGENGANGABO
By JEAN NEPOMUSCENE MUGENGANGABO
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In recent years ago, children rights have obviously improved as the government put up special measures and institutions to improve children rights, such as enacting a specific Act relating to the protection of children; establishment of the National Children Commission and the National Children Summit.

Also, many civil society organisations have been created or enhanced just to promote children welfare.

However, the number of children defilements and teen pregnancies with pregnancies a record estimated 17,600 per year between 2016 and 2019.

The shock probably led enforcers and promoters of children’s rights to put more emphasis in combatting and campaigning against such a “disease” that the Government recently put up a sex offender registry to track the offenders.

This distracted them from other issues relating to the rights of children such as compensation to children involved in accidents.

Parliament passed a Child Protection Act in 2011, providing that “a child who is a victim of an accident shall be compensated for (a) moral loss (b) pecuniary loss; and (c) bodily injury and aesthetic damage”.

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But that Act had not set criteria to base on while determining such compensation; rather, it delegated such competence to a presidential order, which was unfortunately not in place until that very Act was repealed in 2018.

The absence of a presidential order did not really imply a legal vacuum because the Civil Proceedings Act allows the judge to fill out the loopholes in laws by adjudicating the cases in accordance with the rules they would establish as legislators, relying on precedent, customs, general principles of law and doctrine.

However, practice proved to the contrary because in cases of children aged under 16 were victims of road traffic accidents, judges declined to order insurers to compensate children or their families for pecuniary loss.

They argued that the presidential order, which was supposed to set the compensation rates was non-existent, or basing on the pre-existing legal framework relating to compensation for corporal injury/death caused by road traffic accidents, which excluded victims aged below 16 at the accident or consolidation date.

Had the deciders in such cases borne in mind that in principle a newer law derogates from an older one, and that a special law derogates from a general one, they would have otherwise ruled considering that the Children Protection Act was not only newer but also specific in relation to the pre-existing legal frameworks.

Children talented in fields such as sports and the arts from which they gain income ,support their families economically.

In addition, in the African cultural context where children support their parents or even grandparents with household activities, frees and makes them available for other activities, including economic ones, it would be unfair to conclude that a child’s injury/death does not cause any economic loss to the victims or their relatives.

Unfortunately, the issue of children compensation deteriorated in 2018 when the Parliament passed a new Child Protection Act in which provisions relating to the “compensation of a child who is victim of an accident” were completely removed.

In my view, this contravened the provisions of the Constitution according to which “a child has the right to specific mechanisms of protection depending on his or her age and living conditions”

As parliament revises the insurance legal framework, it should also reconsider compensation for economic loss caused by accidents irrespective of age.

Jean Nepomuscene Mugengangabo is a corporate commercial lawyer, and a Partner at Landmark Advocates, in Kigali, Rwanda.

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