Sample reseach for facult of law
Sample reseach for facult of law
FACULTY OF LAW
AN ASSESMENT OF THE
EFFECTIVENESS OF THE LAWS IN ASPECTS ON
VIOLENCE AGAINST CHILDREN’S RIGHTS IN TANZANIA
BY
name.......................................
SUPERVISOR: ......................................................................
A RESEARCH PROPOSAL SUBMITTED FOR THE APPROVAL TO
CARRY OUT RESEARCH IN PARTIAL
FULFILLMENT OF THE REQUIREMENTS
FOR THE AWARD
OF THE BACHELOR DEGREE
OF LAW (LLB) OF THE ,............................UNIVERSITY.
CHAPTER ONE
1.0
Introduction
According to UN Convection on the right of the child in article 37 paragraph
d] defined Children are young human beings, as human
beings children evidently have a certain moral status. There are things that
should not be done to them for the simple reason that they are special. Therefore
every legal regime has a duty to protect children, this is due to the fact that
children by their nature are inexperienced and can easily be abused due to
their lack of verbal skills or necessary tools to protect themselves from the
superior power of the adults, or from socio-economic, political and other
conditions which are out of their control. Thus children’s rights are
recognized Under human rights discourse and they are promoted and protected
internationally and nationally.[1].
In order to deal with the rights of children there is a need to
define who is a child and what it means by the phrase “rights of children”. The
term child is always legally defined in terms of age; this was said by Scrutton J. in the case of Faulkner
V. Sutton, therefore different legislations have defined the term child
according to the age[2]
. A child means a person who has not attained the age of 18 years[3].A
child can also mean a young person of either sex especially one between infancy
and youth; hence, one who exhibits the behavior of a very young person[4].
There are various international and national efforts to promote and
protect these rights. Internationally there are various conventions and other
relevant instruments which address children’s rights and standards. In
1.1 Background to the
Problem
The efforts of protecting
children’s rights have a long history. However the legislative efforts can be
traced when the League of Nations passed the Convention on Prohibiting
Trafficking in Women and Children of 1921,7another effort was the
Convention on Slavery and Slave Trade, 1926,8alsothe
ILO adopted numerous instruments against the exploitation of child labour and
for protection of working children, not only that but in 19249
League of Nations adopted the Declaration o f Rights of the Child-the Geneva
Convention. This was the first non binding comprehensive international
instrument on children’s rights. This Declaration reflected a concern with the
rights of children afflicted by the devastation of the First World War of 1918
and its outcomes10.
In 1959 the U.N adopted the United Nations’ Declaration of the
Rights of the Child. But this was
not legally binding. It was until 1989 when the U.N made the Convention on the
Rights of the Child which focuses specifically on children as human beings that
are entitled to certain rights. This was the first comprehensive international
instrument giving independent human rights to children by putting them in the
standards and it is universally binding on the states which ratified it[5].
Tanzania as a member of the U.N has ratified this Convention in 199111.
It has also ratified various international and regional instruments relating to
protection and promotion of children’s rights and standards. These include the
Universal Declaration of Human Rights, Declaration on the Protection of Women
and Children in Emergency and Armed Conflict, the U.N Convention on the
Elimination of All Forms of Racial Discrimination, the International Covenant
on Civil and Political Rights, the International Covenant on Economic, Social
and Cultural Rights, the African Charter on Human and Peoples Rights, the
African Charter on the Rights and Welfare of Children, to mention the few12.
Not only that but also Tanzania recognizes the 16th day of June
every year as the African Child Day11.
According to Article 4 of the CRC all states parties shall make
appropriate legislative, administrative, and other measures to implement the
rights recognized in that Convention. Due to this and other authorities
Tanzania has been enacting and also amending its national laws so as to suit
the demands on protecting and promoting children’s rights and stalndards as
provided by international and regional instruments. These laws include the Law
of Marriage Act,1971[Cap. 29 R.E 2002], the Education Act,1978[Cap. 353 R.E
2002], the Penal Code[Cap.16 R.E 2002], the Criminal Procedure Act,1985[Cap. 2O
R.E 2002], the Employment and Labour Relations Act No.6 of 2004, the Law of the
Child Act of 2009 [6](this
law has replaced the Affiliation Act, the Adoption Act, the Day Care Centers
Act, the Children and Young Persons Act and the Children Home(Regulations)Act) .
Also
When these laws are enacted and amended, and the policies are made
the society believes that this will end violations of children’s rights. But
this is contrary because violations still persist in the society. . This led to
many contradictions among those laws hence made the legal protection of
children to be disorganized and put the children at risk11. There
was also a problem on the legal definition of the term “child.” Under customary
and Islamic legal systems a child was defined in relation to the age of
majority (puberty) while the other statutes defined a child according to
particular purposes and contexts of each legislative scheme12..
For example in the case of R
V. Mohamed Abdallah11 a child boy of 9 years of age was
sentenced for life imprisonment in jail after being found guilty of an offence
of raping his fellow child girl of 5 years.
This sentence led to many criticisms from media and human rights activists,
hence the High Court-Mwanza Registry decided to review it and set the decision
of the District Court aside. However by
the time the decision of the High Court was made the boy had already served one
month in jail[7].
According to the LHRC media survey conducted in 2009, the violations
of rights of the child took the lead from all other kinds of violations[8].
An example of these violations was that occurred in Mbeya Region where a
13-year child was killed by unknown persons after her head was chopped off and
thrown it into River Meta[9].
Not only that but also the African Child Policy Forum on its 2008 report has ranked Tanzania to be
23rd in Africa to protect children’s rights and it was said that
Tanzania was the least child friendly country in East Africa[10].
Also in the case of ChikuLidah V. Adam
Omariit happened that the father disowned his own child after birth.
1.2 Statement of the
Problem
Despite of having the new law governing children’s rights in
Tanzania, the law seems to be unsatisfactory in protecting and promoting them according
to the standards set by the CRC and the other regional and international
instruments. The new law of the child does not seem to comprise all the aspects
of children. For example the Act does not address discrimination regarding the
legal age of marriage which remains 15 years for girls and 18 years for boys
and it also does not abolish corporal punishment.[11]
Not only that but also it seems that the violations of children’s
rights still exist in our society despite having the new law. For instance in
our current society right now there still the bad mindset to treat children
badly, example early marriage and forced marriage, female genital mutilation.
This still exists in our society.
Therefore, due to this prevailing problem of violating children’s
rights in Tanzania there was a need to conduct this research so as to become a
tool for examining the weaknesses on the new law of the child and to make the
Act suit the requirement of protecting and promoting children’s rights and
hence reach the required standards in accordance to the international and
regional instruments. Thus this research was so important to be conducted.
1. 3 Literature Review
Many writers and reports were present relating to the research
subject. Those writings were somehow helpful, although they have some
weaknesses here and there. It was the intention of the researcher to point out
some of the weaknesses of those works and suggest how this current research
came to cover the loopholes.
Mashamba C.J., etal.,[12] reported that, protection of children’s rights at the national
level had no a special body because there were several laws which dealt with children’s
rights. many legislations dealing with child’s rights, according to the
authors, there were many contradictions regarding those rights due to different
contexts which were in different legislations dealing with children in
Makaramba, R[13], observed that,
Mukaine, A. M[14], argued that, in order for the children’s rights (especially the
right of education) to be protected in Tanzania the legislature should amend
and acquire a definition of a child to be not exceeding the age of 18 years
within the international definition of a child. In his work the author had a
belief that if the definition of a child would be any person under the age of
18 then the right of the child to education would be well protected. The
definition of a child is now settled by the new law of the child but still the
right of education to the child is still curtailed in our society. Therefore
the author was criticized on the ground that, he only dealt with the right to
education, the current researcher deals with all the rights of the child as
provided under the new law of the child. Not only that but also the author
carried his study at Kyela District-Mbeya Region while the current research was
conducted at Tarime District-Mara Region.
Manyanda, F and Baru, R[15], argued that there is a need for the government to enact the new
statute which will embody all children’s rights, to provide an agreeable
definition of a child, that could make the legal machinery more effective in
preventing child abuse (child sexual abuse).The authors seem to have written on
the situation when Tanzania had not been enacted a statute which embodies all
children’s rights and when the definition of who was the child was unsettled by
the law. Therefore at this time it could
be argued that the authors’ argument seems not to hold water. Not only that but
also it can be argued that, despite of having the new statute which embodies
all child’s rights but its effectiveness is still questionable in preventing
child abuse in Tanzania.
shivji I.G observe that in tanzania there is no single national
legal regime on children right he argue further that the legislation related to
children rights defined a child according to a particular purpose and contexts
as a result a person may be considered a child in one context and not in
other,thus the depriving certain categories of children their right and
protection under the national law .the author had view that ,those different
laws brought a vey serious problem by the laws themselves.the dispute on the definition
of the child has now been solved under the new child law in which a child is
defined as a person under the age of 18years.however despite of having a single
definition of child under the new laws but violation of their right are still
in our society and there was where the author stood to be criticized by the
current researcher.
1.4.0 General objectives
Types of objectives
1. 4. 1 Main Objective
The main objective of this study was to have a critical analysis and
examine the effectiveness of the new law of the child in Tanzania in promoting
and protecting children’s rights as the intention of the legislature as well as
to the extent envisaged by the international and regional instruments.
1. 4. 2 Specific Objectives
i.
For the fulfillment of the
researcher to attain his Bachelor of Laws Degree (L.L.B) at Tumaini University
Makumira.
ii.
To identify the factors which
contribute to the persistence of children’s rights’ violations in Tanzania.
iii.
To establish circumstances
under which the legislature can amend the existing law of the child and other
relevant legislations..
iv.
To make a way through so as
Research
question
i.
whether
there should be amend the law of child act for the purpose of making a new law
that used to abolish the violation of child especially in Tanzania society
ii.
whether
the Geneva convection of right of the child requires new changes for make some
fundamental right that assist child for the better life
1.6 Scope of the Study
in this study has mainly
focused the attention on children’s rights with reference to the new law of the
child, this was because the law seemed to be incomprehensive to protect
children, and the problem of violating children’s rights still persists in our
society.The area of study was Monduli District in Arusha Region mainly in
maasai society for the reason that this area seemed to be very unfriendly to
the children due to the prevalence of female genital mutilation practices and
early marriages[16],tribal
disputes, domestic violence[17],
and other problems alike
1. 7 Significance of the
Study
The study will make the society be aware of children’s rights and
hence protect and promote them, this is due to the fact that children
constitute a half of the Tanzanian population[18],
and thus it is very important to protect this big segment of our society. This
study will helps the other researcher to
observe this problem and conduct information order to develop the law and thus helps in the
promotion and protection of children’s rights in
1.8.0 Research Methodology
1.8.4 Methodology of Data Analysis
The data collected. were qualitatively analyzed through the
concurrent flow activities which were data reduction [the process of selecting
,focusing, abstracting and transforming the data and writing summaries to
reduce data]data display [the process of organization the compressed assembly
of information that permits conclusion
drawing and verification of data used in
this research.
Data collection methods
For the purpose of this study,
collective of data will include both primary and secondary data
Primary data
This method will involve collecting data through literature material
from both traditional library where by the researcher will collect data through
published and unpublished resource materials include books ,published report
and websites. this method will enable the researcher to get more knowledge on
the problem to be researched and also to
know what has been addressed by the researcher that should not repeat the same thing.
Data collection instrument.
the researcher instrument that will be used in the study are the
various legal documents,law of marriage act cap 29 R,E 19771,Employment and
labour relation act no 6 of 2004,penal code [cap 16 R;E2002,Education act
,1978[cap 353 R,E 2002,law of child act of 2009.the convection of right of the
child carry the main focus of study .and include generally principle and rule
that assist child by basing on fundamental principle of the right of the child.
Chapter Two
Historical Background of
the Rights of Children in Tanzania
2.0Introduction.
This chapter tries to put the issue of children’s rights into
context, And the chapter discussed historical background of children’s rights
in the world, and its intrusion to Africa and Tanzania in particular will be
traced, the international, regional and national mechanisms dealing with
children’s rights will then be put in perspective.
2.1 The Historical
Background of Children’s Rights in the World.
The historical background of children’s rights can be traced from a
long period of time. For example, in 1796 an English scholar known as Thomas
Spence published an Article titled “Rights
of Infants”. This was among the earliest English-language assertions of
the rights of children[19].
In 1853, Charles Brace formed the Children's
Aid Society which dealt with street children. Also in 1890 the National
Child Labour Committee was formed in
In 1905
American social worker, Florence Kelley published an Article titled “Some
Ethical Gains through Legislation”in
which he strongly argued for the establishment of a federal bureau focused on
children's issues and their right to childhood. This led to the U.S Congress to
create the U.S. Children's Bureau which was the first federal agency in the
world mandated to focus solely on the interests of a nation's youngest
citizens. Similarly in 1909 a Swedish author Ellen Key declared that a new era
had arrived, "the century of the child."[21].The
1927 publication of “The Child's Right
to Respect” written by JanuszKorczak
also supplemented the literature surrounding the field of children’s rights,
and today dozens of international organizations are working around the world to
promote children’s rights[22].
Not only that but also there are other early sources of children’s rights
advocacy which can be found in the classical
stories of mid-nineteenth century in Western Europe, also there were the well
known activities of “child savers”who established orphanages, schools for
handicapped children and created special juvenile justice procedures[23].
However, those
cited examples are relevant in the early history of children’s rights. But the
first identification of children as subjects of rights, rather than objects of
concern, is usually associated with the work of EglantyneJebb, the prime mover
behind both the Save the Children Movement and the International Peace Union.
The former organization, set up in 1919, was dedicated to child protection and
operated under a Declaration of Child Rights. This was the first global Charter
protecting the rights of children and it was taken over almost without
alteration by the
The other very
memorable efforts are those which were done by the
The first
effort the League did was to make the Convention Prohibiting Trafficking in
Women and Children, 1921this was among the step to protect children’s rights.
Another effort done by the League was in 1924 when it adopted the Declaration
of the Rights of the Child, 1924 which was known as the Geneva Convention. Also
the League made the Convention on Slavery and the Slave Trade of 1926. However it should be noted that,
among these instruments which have been made by the League of Nations the
Geneva Convention of 1924 was the first non-binding comprehensive instrument
which had international face on children’s rights, the Declaration of the Rights of the Child is the name given to a
series of related children's rights proclamations which were firstly drafted by
EglantyneJebb and adopted by the International Save the Children Union in 1923
and endorsed by the League of Nations General Assembly on 26 November, 1924 as
the world child welfare Charter. The instrument was purposely to reflect a
concern with the rights of children violated during the First World War of 1918
to 1919[26].The
Declaration had five principles which were that; the child to be given the
means requisite for its normal development both materially and spiritually, the
child that is hungry must be fed, the child that is sick must be nursed, the
child that is backward must be helped, the delinquent child must be reclaimed,
and the orphan and the waif must be sheltered and succored , the child must be
the first to receive relief in times of distress, the child must be put in a
position to earn a livelihood, and must be protected against every form of
exploitation the child must be brought up in the consciousness that its talents
must be devoted to the service of its fellow[27].
The
The efforts of
UN in protecting children’s rights can be observed from the provisions of its
Charter. For example Article 36 of the U.N Charter provides for the member
states to protect the children against all forms of exploitation which are
prejudicial to any aspects of the child’s welfare. Therefore from its
establishment the organization has made several instruments to protect
children’s rights.
2.2.0 Laws Governing Children’s Rights.
There are
various laws which have been made to protect children’s rights these include
international laws, regional laws and also municipal laws. These laws are going
to be discussed hereunder.
2.2.1.0 International Laws.
2.2.1.1 The
Universal Declaration of Human Rights of 1948.
This
declaration was adopted by the United Nations General Assembly on 10th,
December 1948 in
The first
paragraph recognizes human dignity of all people as the foundation of justice
and peace in the world, second paragraph observes that disregard and contempt
for human rights have resulted in barbarous acts which have outraged the
conscience of mankind and freedom, third paragraph states that people are not
compelled to rebellion against tyranny and human rights should be protected by
rule of law, the fourth paragraph relates human rights to the development of
friendly relations between nations, the fifth paragraph links the Declaration
back to the U.N Charter which reaffirms faith in fundamental human rights and
dignity and worth of human person, the sixth paragraph notes that all members
states have pledged themselves to cooperate with the U.N, the promotion and
observance of human rights and fundamental freedoms, the seventh paragraph
observes that "a common understanding" of rights and freedoms is of
"the greatest importance"[29].Not
only that but also the Declaration under Article 25(2) is specifically provides
for special care and assistance to be entitled to motherhood and childhood
and that all children to enjoy the same social protection.
The
Declaration was supplemented by two instruments; theInternational Covenant on
Economic, Social and Cultural Rights (ICESCR) which is
a multilateral treaty adopted by the U.N General Assembly in 1966, and came
into force from in 1976, it commits the member states to work towards the
granting of economic, social, and cultural rights to individuals, including
labour rights, right to health, right to education and the right to an adequate
standard of living, another supplement was theInternational Covenant on Civil and Political Rights (ICCPR) which is a multilateral treaty
adopted by the U.N General Assembly in 1966, and came into force in 1976, it
commits the parties to respect the civil and political rights of individuals,
including the right to life, freedom of religion, freedom of speech, freedom of
assembly, electoral rights and rights to due process and a fair trial[30].The
ICCPR is monitored by the Human Rights Committee which reviews regular reports
of the member states on how the rights are being implemented[31].
Not only the
aforementioned covenants but also the Universal Declaration of Human Rights,
1948 was supplemented by several optional protocols these include the Optional
Protocol to the International Covenant on Civil and Political Rights of 1966
which provides for procedures to lodge the complaints on violations of human
rights to the Human Rights Committee, another is theSecond Protocol to the
International Covenant on Civil and Political Rights of 1989which purposely
advocates for the abolition of the death penalty[32].
2.2.1.2 The
Universal Declaration of the Rights of the Child of 1959.
The United
Nations General Assembly adopted this declaration on 20th,
November1959 (this date has been adopted as the Universal Children's Day); this
was a much expanded version of the Declaration of the Rights of the Child of
1924, with ten principles in place of the original five principles of the
former instrument. The instrument was based on the principle that the mankind
owes to the child the best it has to give, this principle emphasizes on duties
to children. This Declaration it was a moral rather than a legally binding
document to the member states, therefore it was just as the proclamation of
recognizing the rights and entitlements to children[33].
2.2.1.3 The Convention on the Rights of the Child of
1989.
This is a human
rights treaty which sets out the children’s civil, political, economic, social,
and cultural rights. Its development can be traced back from 1924 within the
League of Nations, it was seriously been dealt from 1979 until it was presented
to the UN in 1989 and was formally came into force on 2nd, September
1990, it is the latest tool created by the U.N to advance the idea of
children’s rights in the world[34].
The impact of this new document differs from that of the UN’s Universal
Declaration of Human Rights 1959; it
differs significantly in the sense that the Convention has a staged
implementation process which begins with signing the document, and then
ratifying it throughout the member states, currently over 190 nations have both
signed and ratified the Convention[35].
This makes the CRC to be the most widely agreed document dealing with
children’s rights.
In its 54
Articles the Convention incorporates the whole phenomenon of human rights and
sets out the specific ways these should be ensured for children and young
people. The Convention has four principles and rules governing the protection
of children at the international level, these principles are relevant to the
implementation of each Article in the Convention[36],
these principles are; principle of non-discrimination: it requires the parties
to identify the most vulnerable and disadvantaged children in their borders and
take affirmative measures to protect their rights, principle of best interests
of the child: it is the primary and paramount in all actins and decisions
concerning children, principle of on the child as the subject of rights: it
requires that the child to participate in decision affecting both their present
and future lives survival and development, and the fourth principle is on
survival, protection and development: it calls for adequate living standards
and access to medical as well as educational services for children.
These
principles are adhered in many decisions and actions affecting children; this can
be supported by the Australian case of Minister
For Immigration and Ethics Affairs V. Ah HinTeoh in which Mason C.J and
Dean J. said that, a decision maker with an eye to the enshrined in the
Convention would be looking to the best interests of the children as the
primary consideration asking whether the force of any other considerations
outweigh it[37].
Also in the
case of Ramesh Rajput V. Mrs. Sunanda
Rajput in which the Court of Appeal of
It should be
noted that all nations that have ratified this Convention are bound to it by
international law, and the compliance is monitored by the U.N Committee on the
Rights of the Child which is composed of members from countries around the
world. To put emphasis on this the provisions of Article 2(1)of the Convention
binds all the states parties to respect and ensure the rights enshrined in the
Convention to each child within jurisdictions without any discrimination.
2.2.1.4 Other
Relevant International Instruments.
Despite of the
aforesaid instruments the U.N has made several instruments to strengthen the
race for children’s rights in the planet. These other instruments which are
relevant for child protection include; the Declaration on Protection of Women
and Children in Emergency and Armed Conflicts of 2000, the Optional Protocol on
the Involvement of Children in Armed Conflict of May 2000, the Optional
Protocol on the Sale of Children, Child Prostitution and Child Pornography of
2002, the U.N Convention on the Elimination of All Forms of Racial
Discrimination of 1965, the International Convention on the Protection of the
Rights of All Migrant Workers and Members of their Families of 1990, U.N
Declaration on Social and Legal Principles Relating to Foster Placement and
Adoption Nationally and Internationally of 1986, the U.N Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW)
of 1981, to mention the few.
It should be in
mind that the laws do not work without enforcement, for this the U.N has
formulated several organizations and institutions to enforce these laws. These
include the U.N agencies such as the International
Labour Organization (ILO)
which deals with labour issues include child labour,United Nations Children's Fund (UNICEF) which was created by the U.N to provide emergency food and
healthcare to children in countries that had been devastated by Second World
War, currently it provides long-term humanitarian and developmental assistance
to children, the International Criminal
Court (ICC) which is a
permanent tribunal that deals with treatment of individuals’ human rights and
humanitarian law, the U.N Human Rights
Council which has a mandate to investigate violations of human rights,
the Committee on Economic, Social and
Cultural Rights which monitors theInternational Covenant on Economic, Social and Cultural Rights and
makes general comments on ratifying countries’ performance, the Committee on the Rights of the Child which monitorsthe
CRC and makes comments on reports submitted by the member states[39],
to mention the few
2.2.2.0. Monitory Regional Laws.
The regional
laws which govern children’ rights can be grouped according to the continents
(regions) in the world, but for this purpose the paper dwells on examining the
institutional set up of African regional laws governing children’ rights and
the mechanism for their enforcement..
2.2.2.1 African Charter on Human and Peoples' Rights
(the Banjul Charter) of 1981.
This is the
region's principal human rights instrument which is under the auspice of
African Union. This is an international human rights instrument that is
intended to promote and protect human rights and basic freedoms in the African
continent. It emerged under African Union (formerly OAU), and the intention to
draw up the Charter was announced in 1979 and the Charter was unanimously
approved in 1981 and came into force on October 21, 1986 (to honour this day,
the 21st of October was declared as African Human Rights Day)[40]
Despite for the
Charter to deal with human rights in general it contains some provisions which
address specifically the rights of the child, for example Article 18(3)of the
Banjul Charter binds the member states of the AU to eliminate discrimination
against children and ensure protection of their rights as stipulated in
international declarations and conventions.
2.2.2.2 The
African Charter on the Rights and Welfare of the Child of 1990.
In 1990 the
Organization of African Unity (OAU) adopted the African Declaration on the
Rights and Welfare of the Child and later it adopted the African Charter on the
Rights and Welfare of the Childwhich
came into forcein November 29, 1999,it specifically deals with
the rights and welfare of the child. This Charter couches children’s rights and
welfare issues in familiar with African perspective, it allows for virtues of
children’s cultural heritage, historical background and values of African
civilization to be given priority. This was done purposely to domesticate the
U.N Convention on the Rights of the Child which to some extent was framed
according to western standards, and ignored the vital social-cultural and
economic realities of
The ACRWC has a potential to reverse
discriminatory practices that prevail in many parts of
2.2.2.3
Other Relevant Instruments Relating to Children’s Rights in
It is to be noted here that the
afore mentioned African laws governing children’s rights are the most
significant instruments on the rights of children, but there are many other
instruments which deal with rights of children in Africa, these include; the African
Charter Governing Specific Aspects of the Refugee Problems in Africa of 1969,
the Protocol to the African Charter on Human and Peoples’ Rights Protocol to
the Establishment of the African Court on Human and Peoples' Rights(Court's
Protocol) of 2004, the Protocol to the
African Charter on Human and Peoples’ Rights of
Women of 2003, to mention the few.
Also Africa has
several organizations and institutions which are useful to enforce the rights
of children in the continent, these include; the AU itself which was
established in 2001, its purposes include to secure Africa's democracy, human
rights, and a sustainable economy, especially by bringing an end to
intra-African conflicts, the African Commission on Human and Peoples' Rights
(ACHPR) which is a quasi-judicial organ of the AU tasked with promoting and
protecting human rights and peoples' rights throughout the continent as well as
interpreting theAfrican Charter on Human and Peoples' Rights and considering
individual complaints of violations of the Charter, however with the creation
of the African Court on Human and Peoples' Rights the Commission will have the
additional task of preparing cases for submission to the Court's jurisdiction,
another organization is the African Committee of Experts in the Rights and
Welfare of the Child (ACERWC) which has the mandate to ensure state parties
comply with their treaty obligation[45].
The African Court on Human and Peoples' Rights
which is a regional court that came into being on 2004, it has
jurisdiction over all cases and disputes submitted to it regarding the
interpretation and application of the African Charter on Human and Peoples'
Rights, the Protocol to the Charter on the Establishment of the African Court
on Human and Peoples' Rights and any other relevant human rights instrument
ratified by the A.U member states[46].
2.2.3.0Laws relating to Children’s Rights in
This means that
Therefore the following are the laws which govern rights of
children in
2.2.3.1 The Constitution of United
Human rights (including children’ rights) are promoted and
protected at national level by recognizing them in the Constitution this then
all other laws must conform to the dictates of the Constitution which is the
mother law of the land. In Tanzania the Constitution
was adopted on 25th April 1977, with major revisions in 1984 and the insertion
of a Bill of Rights in 1988, thus every law has to be
enacted in accordance to it[49].Under
the Bills of Rights which have been inserted in the Constitution provides for
rights and duties for every person in the society, the rights of the children
are also considered, for instance Article 13(1)of the Constitutionprovides for
every person (including children) to be protected and treated equally before
the law without any discrimination. For this it can be clearly seen that the
Constitution of United Republic of Tanzania recognizes the rights of children
in
2.2.3.2 The
Basic Rights and Duties Enforcement Act No.33 of 1994.
This Act
specifically provides for the procedures for enforcing the basic rights and
duties which are enshrined in the Constitution, this Act extends to both parts
of the United Republic of Tanzania. Under Section 4 of the Act provides for any
person who has locus standi that the fundamental rights or duties provided
under the Constitution has been violated or are likely to be contravened or are
being violated to petition the matter to the High Court for redress. Therefore
even children who have locus standi can petition for redress before the High
Court.
2.2.3.3 Law of Marriage Act No. 69 of 1971.
It is well know that
marriage and family are the most institutions which affect the lives of
children, so
2.2.3.4 The Law
of the Child Act No. 21 of 2009.
Regarding the
consideration of the reports submitted to the U.N Commission on the Rights of
the Child,
Under this new
Act there are most of the laws relating to, or affecting, children’s welfare
and rights have been repealed and replaced by the Act or amended to go together
with the current situation. For instance the laws which have been amended
include; the Law of Marriage Act[52],
the Education Act[53],
the Employment and Labour Relations Act[54],
the Penal Code[55],
and the Criminal Procedure Act[56].Also
the laws which were repealed and replaced by the Act include; the Affiliation
Act, the Adoption Act, the Day Care Centres Act, the Children and Young Persons
Act and the Children Home (Regulation) Act[57].
The Act has also provided for the most issues affecting children in Tanzania
such as the issues of defining a child as a person under the age of 18 years in
all aspects of child[58],
the rights and duties of the child[59],
the duties and rights of the parents[60],
it lays down the system for justice when the child comes into contact with the
legal system as the offender[61],
a witness or victim, and provides for the protection for children who do not
have families to be adopted or out in care[62],
and many more protection concerning children’s rights.
2.2.3.5 Other
Laws Relating to Rights of Children in
Having seen the afore cited laws governing the rights of children in
Tanzania, it is important to know that they are not alone, there are other
several laws which also touch the aspects of children in Tanzania. These laws
include; the Prisons Act of 1967 [Cap 58 R.E 2002], the Primary School
(Compulsory Enrolment and Attendance) Rules of 2002: Government Notice No. 280
of 2002, the Births and Registration Act of 1953 [Cap 108 R.E 2002], the Evidence
Act of 1967 [Cap 6 R.E 2002], and other laws the like.
2.2.4.0 Conclusion.
Therefore it is
important to understand that the struggle for children’s rights has a long
history in the world. This can be traced from the Western Europe then to Africa
and Tanzania in particular which now has a single law governing rights of
children in accordance to the international and regional instruments, this Act
has covered a lot on children albeit some of its weaknesses.
Chapter Three
Research
Findings, Data Analysis and Observations
3.0 Introduction.
This chapter
carries the core part of the undertaken research since it provides for the
research findings, it analyses the data collected from the field, and also it
gives some observations on the ascertainment on the protection and
enforceability of the new
3.1
This part deals
with the analysis of the Law of the Child Act so as to ascertain the protection
which is provided by this Act and lastly some of the weaknesses which have been
observed by this research. In conducting this analysis the researcher has decided
to select some of the provisions of this law to show how they reflect the need
of promoting and protecting children’s rights in
The first and
foremost thing to be observed from the Act is the Long Title of the Act which
provides for the objectives of the Act, that is to reform and consolidate the
laws relating to children in Tanzania, to stipulate rights of the child and to
promote, protect and maintain the welfare of the child in accordance with
regional and international conventions, and to provide for other related
matters. From this Long Title it can be observed that the Act aims at
accommodating the standards of promoting and protecting children’s rights as
envisaged by the regional and international conventions which
Another thing
which the Act has done is to provide for a clear and concise definition of who
is a child. Section 4 of the Act defines a child as a person who is below the
age of eighteen years. This is a very important step ahead because previously
there was much confusion on the definition of a child because there were
different definitions of child from different laws and contexts. This hindered
the protection and promotion of children’s rights in
The Act has
clearly provided for the very important principle of “the best interest of the
child” in all matters concerning children. Section 4(2) of the Act provides for
the best interest of the child to be a must primary consideration in all
actions concerning a child. This very principle connotes the yardstick by to
measure all actions, laws and policies affecting children[64].
The principle has been provided in the instruments concerning children’s
rights, for instance Article 3(1) of the Convention on Right of the Child
provides for the best interest of the child to be a primary consideration I all
actions concerning children.
Rights of the
child are clearly stipulated in the new law, the Act includes the right to live
free from any discrimination, the right to name and nationality, the rights to
grow up with parents or guardians, the right to be maintained by the parents or
guardians, the right to life, dignity, respect, leisure, liberty, health,
education and shelter, the right to enjoy their parents’ properties, right to
give opinion and the right to protection from harmful employments, torture and
degrading treatment, and also the rights of the child after separation of the
parents [65].The
Act also provides for an offence to contravene those rights of the child, under
Section 14 of the Act any person who commits this offence is subject to either
to a fine not exceeding five million shillings or imprisonment for a term not
exceeding six months or both.
Not only the
rights of the child but also the Act provides for the general duties and
responsibilities of children which include; to work for their families,
community and nation, to respect and assist parents, guardians, superiors and
elders, to preserve and strengthen social and national cohesion, positive
cultural values of the community and the nation in general[66].
Under Section
16 the Act lays down circumstances under which a child can be said to be in
need of care and protection. The Act also makes an offence for the owners or
occupiers of discotheques, bars or night clubs to allow children into those
premises, and also persons to sell alcohol, cigarettes, drugs or any
intoxication to children; if one contravenes this he/she shall be fined for not
less than one million or to imprisonment for not exceeding twelve months or
both[67].
Also Sections 18 and 19 empowers the court to make care order or supervision
order in order to remove the child from any harmful situations or to prevent a
child from harmful situations, and these may made after the application of the
social officer and may be discharged for the best interests of the child[68].
The Act
provides for foster care placement of
the child[69];
foster care or fosterage means a temporary measure provided temporarily by the
family and individual who is not related to the child to give care and
protection to that child, and this other person will have all parental
responsibilities while he/she with that child [70].
Also the Act defines processes to ensure protection for children during
adoption processes, this includes; open adoption which(adoption of a child by a
relative)[71],
and international adoption[72].
The issue of adoption provides to children without families or with
irresponsible parents to have other parents who are ready to give care and
maintain them. These adopted children acquire all rights and responsibilities
to their adoptive parents.
The law allows
the court to make order to confirm the parentage of the child after application
by the child, parent or guardian, social welfare or any interested person, this
includes the conduction of DNA Test[73];.
This order to confirm the parentage helps the child to know his/her real
biological parents and that confirmed biological parents shall have all
responsibilities to the child in the same manner as to the child born in
wedlock.
Part VII of the
Act deals with matters concerning child employment, provides for the right of a
child to light work and it provides for the minimum age for engaging a child in
these works (14 years), it prohibits exploitative and forced labour, night
works, hazardous works or using children in sexual exploitation[74].
Section 81 of the Act also puts emphasis on the child to be paid a fair
remuneration equal to the work done.
Under Sections
87 and 88 of the Act a child has right to acquire vocational skills and
training in the form of apprenticeship at the minimum age of 14 years or after
completing primary school education. The craftsman is having some obligations
to the apprentice child these include; to train the child to his best, to be
responsible for any harm caused to the child in the course of training, to
provide a safe and healthy environment for apprentice, to prepare the child
morally to lead his independent life, and to protect he best interest of that
apprentice[75].
Any dispute arising out of the apprenticeship agreement has to be referred to
the Labour Officer of the District concerned[76].
The local
governments through the social welfare and other officers in the authorities
have the duty to safeguard and promote the welfare of the child within their
respective areas[77].
In performing their duties the social welfare officers have to be assisted by
the police officers in conducting investigations on all cases of breach or
violation of children’s rights[78].
Also Section 95 of the Act imposes a duty to every member of the community who
has evidence or information on violation of children’s right to report the
matters to the local governments through the social welfare officers.
The child law
also lays out the system for ensuring justice for children, whether they come
into contact with the legal system as offenders, witnesses or victims. Sections
97 and 98 of the Act provide for the establishment and the jurisdiction of the
juvenile courts respectively. The procedures in these courts shall be held in
camera, informal as possible not to subject children to adversarial procedures,
with the presence of relatives and social welfare officers who will help the
children in the conduct of their cases, and the children have right to be
represented by advocates, right to appeal, to express his or her opinions and to
get bail[79].
Also under Section 33 the Act prohibits to publish any information or
photograph that may lead to the identification of a child in any matter before
the court unless there is a court’s permission, any one who contravenes this is
liable to a fine between two to fifteen million shillings or imprisonment for a
term less than three years or both.
Under Section
103 of the Act the police officers have the duty not to bring children before
investigations of the cases against those children are completed unless the
offence require committal proceedings, also the courts have the duty to dispose
these cases on the same day brought to the courts unless for homicide cases.
Where the court remands or commits a child for the offence other than homicide
then the court may discharge that child conditionally or make other alternative
orders like to hand that child to the care of a fit person or institution and
this shall be regarded as a legal custody, or the child may be put into
probation orders or the parents of that child may be ordered to pay fine or
compensation for that offence[80].
Where the
offence committed by that child which if committed by an adult would have been
punishable by a custodial sentence then the court has to order that child to be
sent to custody at the approved school., however the approved school order has
to be made subject to the information from the patron of that school on the
availability of vacancy at that approved school[81],
and the order shall expire before three years lapse or until that child attains
the age of eighteen years, whichever is earlier[82].
The child has a right to appeal against the approved school order or any
sentence or order within fourteen days from the date it was made and the High
Court has authority to admit that appeal out of time if there is good cause for
that delay[83].
It should be
clear that these approved schools are to be established by the order or
declaration of the Minister Responsible for Social Welfare; these schools are
to be under the Boards which have the powers to visit the schools, inspect,
manage and inquire several matters relating to these schools[84].
Another thing
which the Act has provided is the issue of institutionalized care in approved
residential homes or institutions. Section 132(8) of the Act provides for the
meaning of approved residential homes or institutions to include; children’s
homes, retention homes, approved schools, crisis centres and any other
establishment designated by the Commissioner. The power to establish or approve
for the establishment, to supervise, to inspect and to monitor these
institutions is vested to the Commissioner of Social Welfare.[85]
Section 137(1)
of the Act provides for the children who are to be admitted into these
institutions, these include; children waiting for determination by the court
for care and protection, children who upon the determination of the social
welfare officer are suitable to be placed therein, or who are orphans and it is
proved that family care or fosterage are not available. While these children
are in these institutions the staffs of these institutions shall assume
parental responsibilities for these children and ensure that their rights are
protected and contravention of these duties amounts to an offence which is
punishable to a fine of two to ten million shillings or to a term not exceeding
one year or both, and in case of the continuing offence to a further fine not
les than one hundred thousand shillings for each day on which the offence
continues[86].
The other forms of institutionalized care
which is provided by the Act are through day-care centres (early childhood
development centres for receiving and looking after children under five years
of age for the day or a substantial part of the day with or without fee) and crèches
(early childhood development establishments for receiving and looking after
children under five years of age of a number which does not exceed ten during
the day or a substantial part of the day with or without fee),they are to be
operated upon application, approval and registration by the Commissioner of
Social Welfare[87].
The
institutionalized care includes that from the prison authorities, Section 144
of the Act provides for the duty to the prisons authorities to make sure that
child gets all the necessaries and care, and that they must inform the District
Social Welfare Officer about the child who is in prison with his mother and who
is no longer breastfeeding and that social welfare officer shall determine the
most suitable place for that child until his mother is discharged from
prison.
Sections 150
and 151 of the Act provide for the supervisions and inspections over the
day-care centres and crèches, upon fulfilling this duty the District Social
Welfare Officers have to keep and maintain registers of the registered day-care
centres and crèches together with their managers and owners. Where the
Commissioner of Social Welfare finds that the institutions do not operate to
the best interests of children then their licenses may be cancelled[88].
Not only that
but the Act also provides for miscellaneous provisions under Part XII in which
the Minister responsible for social welfare is empowered to make by-laws,
directives, regulations relating to matters of children’s affairs and
operations of the institutions which deal with children affairs[89].
Also Section 152 of the Act empowers the local government authorities with
consultation with the Minister to make by-laws on matters relating to
institutions dealing with children in their respective districts.
The Act under
Section 155 makes an offence for those institutions which deal with the
children to operate without having licenses, or to operate contrary to the Act,
or to obstruct or hinder the social welfare officer to inspect as empowered by
the Act. This offence is punishable to a fine of two to five million shillings,
or imprisonment for a term of one year, or both, and if there is continuance of
the offence then a further fine not exceeding one hundred thousand shillings
for each day on which the offence continues.
Under Section
158 the Act provides for general prohibitions which include; prohibitions on
female genital mutilations to children, publishing, showing or producing
photographs or picture of live or dead children with brutal violence or
pornographic posture or which are prejudicial to best interests of children,
prohibitions on using children in night performances, to force adopted or
children under fosterage to change their birth religions, to use children under
institutionalized care for begging or any personal gains, or misuse aids or
assistances intended for children. If any person contravenes any of these
prohibitions amount shall be punished to a fine not less than five hundred
thousand shillings or imprisonment for six months, or both.
Section 159 of
the Act provides for general penalty for contravening any provision of the Act
where there is no specific penalty provided; these are punishable to a fine not
exceeding fifty thousand shillings or imprisonment for six months, or both.
The Act under
Section 160 repels several laws which were dealing with children matters, these
include the Affiliation Act, Adoption Act, Day Care Centres Act, Children and
Young Persons Act, Children Home (Regulation) Act. However the Act recognizes
those persons empowered by those repealed laws, the licenses or permits issued
by those laws, rules, by-laws, orders, notices and directives made under them
and fees imposed or certificates issued by those repealed laws until they are
replaced or revoked or amended by the provisions of the Act. These repeals are
of utmost importance because before them there were are a lot of laws governing
children’s rights and welfare in Tanzania
hence brought a very serious confusion as far the right and welfare of
children were concerned.
The Act further
under Part XIII makes some consequential amendments on several laws which are
in one way or another concern with child matters, these laws include; the Law
of Marriage Act [Cap 29 R.E 2002], the Education Act [Cap 353 R.E 2002], the
Employment and Labour Institutions Act [Cap 366 R.E 202], the Penal Code [Cap
16 R.E 2002] and the Criminal Procedure Act [Cap 20 R.E 2002]. One of these
amendments concerns with the definition and the age of a child; the Act amends
the age of children to be eighteen years so as to adopt the internationally
recognized maximum age of a child.
Not only that
the Act makes other important amendments these include; it amends Section 35 of
the Education Act by making it mandatory to enroll to primary school a child of
seven years or above, also there is additional provision after Section 59 (that
is Section 59A) of the Education Act which puts an obligation to teachers,
craftsmen and trainers to report evidence or concerns of child abuse to the
social welfare officers, and that they must ensure that the best interest of
pupil is of a paramount consideration[90].
Section 5 of
the Employment and Labour Relations Act is amended by putting a duty to
employers in ensuring that lawfully employed children are protected against
discrimination or acts which have negative effects to children. Section 15 of
the Penal Code is added with Subsection (4) which puts it clear that any person
under the age of twelve years who has committed an offence must be dealt with under
the new Child Act[91]. Also Section 194 of the new Child Act amends
Section 188 by adding to it Subsection (2) which emphasizes on protection of
the names and identities of children in criminal proceedings. Lastly the Act
provides for the Schedule which contains a form of entry in Adopted Children
Register which is kept by the Registrar General of Births and Deaths.
It should be
noted here that the new law of the child of Tanzania has provided for many
provisions and made several amendments into the afore stated laws which are
very beneficial to children but the researcher has decided to choose some of
these provisions and amendments so as to substantiate the fact that the new law
of the child has provided for a wide coverage on protecting and promoting children’s
rights and welfare in Tanzania and in Tarime District in particular. These
provisions and amendments are intended to reflect the standards which are
envisaged under the international and regional instruments dealing with
children’s rights which
Despite of the
fact that the Act provides for a wide coverage o matters concerning children’s
rights in
From the
structure of the Act there are some mistakes which the research has found, for
instance there are some of the provisions of the Act have been put together in
a particular Parts despite of having different subject matters for which these
Parts have been enacted[92].
For example Section 9(3) and (4) is put under Part II which deals with rights
and welfare of the child, but these provisions provide for parentage matters
which basically are found under Part V of the Act which deals with parentage,
custody, access and maintenance of a child.
Section 33
which is put under Part IV of the Act which deals with foster care placement
provides for the prohibition to publish any information or photograph that ay
lead to the identification of a child in any matter before the court, these
provisions could better be put under Part IX which specifically deals with a
child in conflict with law.
Another problem
from the structure of the Act is repetition of similar provisions, for instance
the provisions of Section 146(2) under Part XI and Section 155 under Part XII
provide for similar wordings about the penalty for operating or continuing to
operate a day care centre or crèche, or for obstructing or hinders a social
welfare officer to conduct inspection into those institutions. It is the view
of the researcher that Section 155 has to be removed and remain with only
Section 146 (2) under Part XI of the Act which specifically deals with
institutionalized care.
From the
context of the Act this research has found that the Act is weak in the
following aspects. The first thing which has been observed is lack of
constitutional mandate[93];
in Tanzania the protection of children’s rights is not expressly and directly
provided under the Constitution of United Republic of Tanzania rather than the
protection is provided under the ambit of general basic rights and duties
through Part III of the Constitution which contains the Bill of Rights.
From that it
can be said that, because the Constitution is the mother law of the country
from which each and every law shall derive its mandate and there is no any
specific provision from the Constitution which specifically provides for
protection of children’s rights in
The research
has found that if the Constitution could be having specific provision(s) then
it could support the Act to a greater extent and could help other institutions
to enforce children’s rights through the Constitution itself as well as from
the specific Act itself. For example the Constitutions of Burkina Faso,
The language
used in the Act (English language) also has been observed to be a problem. It
should be noted that most of the Tanzanians especially children themselves,
parents/guardians as well the law enforcers are not familiar with the English
language but are familiar with Swahili language thus it becomes very much
difficult for them to understand the language used in the Act hence fail to
understand the context and the aim of this law.
It has been
observed that there is no any direct provision(s) in the Act which puts a
direct and express duty for the government of neither to translate the law into
Swahili nor to make efforts for it to be known to the general public such as to
be put into school curriculum, to provide education to the public in form of
public meetings, seminars and the like. This issue of the language was one of
the aspects which were proposed by the forum of youths and children of Tanzania
when accounting for some changes to be made on the Bill of the Law of the Child
Act which was to be discussed at the parliament in 2009, also there are some
cries by children’s rights activists who argue to the government to translate
the Act into Swahili so as to increase awareness in order to end u the on going
oppression and mistreatments of minors in Tanzania[96].
Also the Act
does not have any direct and express provision(s) which puts a direct
obligation for the central government (the state) towards the issues of
promotion and protection of children’s rights but rather this obligation has
been put to some extent to the local government authorities which in fact are
subordinate and less powerful than the central government. The issue of not
putting a direct obligation to the state seems to contravene the provisions of
the international and regional instruments which
For instance
the Act does not put an obligation to the state to provide legal assistance to
children who are in conflict with the law and that the law does not provide for
clear provisions regarding the establishment of juvenile courts around and
across the country[98],
and that the law does not specify for the special qualifications of the
Magistrates who are to preside in these juvenile courts. In the matter of legal
assistance in
The Act also
does not put a direct duty to the government to ensure that children enjoy
their rights to food, education, shelter, clothing, medical care, liberty and
right to play; this obligation has been put only to the parents, guardians or
other persons having custody of children[101].
This is contrary to the provisions of the international instruments, for
instance Articles 11(3) and 28 of the ACRWC and CRC respectively which require
the state parties to recognize the child’s right to education and make primary
education compulsory, accessible and free to all, and make secondary and
vocational education accessible to every child. Currently in
Another weakness of the Act is that, the law
does not abolish discrimination regarding the legal age of marriage between
girls and boys. Despite of the Act to amend some of the provisions from the law
governing marriage matters but it does not amend Section 13 of the Law of
Marriage Act which provides for a legal age of marriage for a girl to be 14 or
15 and 18 for a boy. This provision seems to provide for inequitable treatment
between girls and boys in the same country, this is against Article 2 of the
CRC which does not allow unequal treatments to of children the same member
state.
From this
weakness it can also be clearly seen that the Act still encourages early
marriages to child girls the act which has been proved to be very harmful to
children socially and medically. Socially, they may loose chances to carry on
with their studies and also loose love and care from their parents, another
problem is mistreatments which these young wives get from their husbands who in
most cases are older than them and are polygamous; medically in the sense that,
during these marriages they may be impregnated then problems may come when they
are to get birth, this may cause them to be deformed and they may also die due
to their tender ages[103].
Also allowing
early marriage seems to contravene the principle of contract law. As it is well
known that marriage contract has to bear all the requirements of a legal
contract including capacity to enter into a contract. Section 11(1) of the Law
of Contract Act a person under 18 years of age is not competent to enter into a
contract[104].
For that it can be observed that, failure for the Act to abolish early
marriages to girl children as provided by the law of marriage goes contrary to
the essential requirement of entering into a contract, which is capacity.
The research
has found that the Act does not in fact abolish corporal punishment. Section
13(1) of the Act prohibits any person to subject a child into torture, inhuman
punishment or degrading treatment which dehumanizes or injures physical or
mental well being of the child. For that it can be said that the Act outlaws
corporal punishment. However sub-section (2) of the same provision provides for
a lee way for the administration of corporal punishment if it can be argued
that such punishment is reasonable and of acceptable degree and the child in
question understands the purpose of that punishment. Here is where the problem
comes, because the determination of capacity to understand the purpose of
punishment is a subjective process making this provision subject to multiple
interpretations. Thus the section leaves final interpretation of what is ‘an
acceptable correction’ to courts of law, this seems to impede a total abolition
of corporal punishment. It can therefore be concluded that the Act does not
absolutely abolish corporal punishment for children.
Not only that
but also the research has found that, despite of the Act to repeal and amend
several laws relating to children’s rights in Tanzania it has failed to repeal
or amend some of the laws which provide for corporal punishments in schools and
penal systems. The U.N Committee on Rights of the Child defines ‘corporal
punishment’ to mean, any punishment in which physical force is used and
intended to cause some degree of pain or discomfort, however light[105].
There are laws and provisions which still authorize corporal punishment in
schools as well as in penal systems, for instance the Act has repealed some of
the provisions in the Education Act but left the provision which allows the
Minister Responsible for Education to make regulations relating to the administration
of corporal punishment in schools[106].
For instance from this power the Minister has made the Education (Corporal
Punishment) Regulations, under which Regulation 3(1) allows corporal punishment
to be administered in schools for serious breach of school discipline or for
grave offences[107].
On part of the
penal system the law has not amended the laws or provisions which relate to the
administration of corporal punishment; these include the Corporal Punishment
Act[108],
the Penal Code[109],
and the Criminal Procedure Act[110].
All the stated laws above are in one way or another recognize corporal
punishment o be administered in penal systems, this affects even the children
who are found guilty for offences in courts of law. For the Corporal Punishment
Act defines a juvenile as a person under the age of 16 years, it allows for a
child to be administered with 12 and the punishment may be administered in the
open court, and on determination of child’s is by looking to his appearance[111].
It has been
observed that these laws are contrary to the provisions of the Convention on
the Rights of the Child which under Article 37 (a) which prohibits children to
be subjected to torture or other inhuman or degrading treatment or punishment,
these include corporal punishment. Also the administration of corporal
punishment in schools is contrary to Article 28 (2) of the Convention of the
Rights of the Child requires the state parties to make sure that appropriate
measures are ensured that school discipline is administered in the manner
consistent with the child’s human dignity and in conformity with the
Convention.
The Act does
not include in its interpretation part the definition of the very important
principle on protection and promotion of children’s rights; that is the “best
interests of the child” principle, neither does its definition or guidelines of
application appear in sections of the law apart from being referred throughout
the law. This will likely bring abuse and/or misinterpretation as it happened on
other phrases of similar like “public interest” in acquisition of land and
administrative affairs[112].
Another notable
weakness of the Act is that, it does establish an independent institution
(ombudsman) to deal with Children’s rights in
The research
has found that having the institutions which deal with the human rights of
‘everyone’ tends to be inadequate in protecting children’s human rights in our
societies. Thus in the modern world of today the idea of having an independent
institution to deal with children’s human rights is of utmost importance.
Examples of the countries with ombudsmen for children include; Australia,
Austria, Belgium, Canada, Denmark, Finland, Germany, Guatemala, Iceland,
Hungary, Israel, New Zealand, Norway, Peru, Portugal, Russian Federation,
Sweden, Ukraine, to mention the few[116].
These
institutions have the duties which include; promotion of the full
implementation of the international instruments and children’s laws,
improvement of public attitudes to children, influencing law, policy and
practice which will affect children’s human rights, promotion for proper coordination
of governments for children at all levels, ensuring that reports and policy
proposals on children are assessed and given proper consideration, promotion of
effective use of children’s resources, provision of channels for children’s
views, encouraging the governments and public to give proper respect to
children’s views, collection of and publication of data on the recognition and
enjoyment of children’s rights, encouraging the governments to collect and
publish adequate data, promotion of awareness of the children’s rights among
children themselves and adults, respond to individual problems or complaints
from children or their representatives, supporting children in initiating legal action on behalf of
children, review children access to justice and the effectiveness of all forms
of advocacy and complaint systems, make investigations as ell as undertaking
of researches[117].
For that the research
has found that there is a need for the Act to establish an independent body to
deal with children’s human rights in
3.2 Enforceability of the Law of the Child Act, 2009.
While
conducting this research the researcher has found that enforceability of the
new Law of the Child Act to be ineffective. Enforceability here involves the
courts of law, the police department, the prisons department, the local
authorities and the social welfare office in particular. This ineffective
enforcement of the law leads to violations of children’s rights to persist in
Tarime District to date despite of the legislature to enact a comprehensive
child law which was aimed at increasing the standards and protection of
children all over the country.
From this the
researcher has found that, from 45 respondents who have been interviewed on the
extent of enforcement of the new child law at the area 15(33%) said it is good,
20(44%) said it is least, and 10(22%) responded that it is worst. Thus it can
be clearly observed that the extent of enforcement of the new law of the child
at Tarime is poor to the extent that it can not help in improving the standards
of protection because more than 66% of the respondents said it is not good,
this is shown in Column 4 of Table I. The evaluation on the poor enforcement by
the police, judiciary, prisons and the social welfare office is shown
hereunder.
3.2.1 Approach of the Police on Cases of Child Abuse.
As it is well known
that the function of the Police among other things is to enforce law and order[119],
thus the police is very important machinery in enforcing the new law of the
child hence children’s rights and standards will be well protected. The
research has found that despite of having the police in Tarime District (now it
is the Tarime Special Police Zone) but the enforcement of the new law of the
child is still poor. Thus there is a need to look onto the police approach on
child abuse cases.
When the Police
have discovered the commission of a crime or they have received a report on the
commission of any offence from several sources then they have the duty to
investigate on the matter, arrest the accused person(s) and bring that accused
to the court of law and prosecute that person on that offence. In prosecution
of criminal cases the prosecution has to prove the cases beyond reasonable
doubt, failure of which the accused will be acquitted by the court. Thus the
police must be good in discovering offences, receiving complaints,
investigating cases and also in prosecuting them. It should be noted that these
very cases which the police have to deal with include the child abuse cases.
Thus in order to enforce well the new law of the child and the other laws then
the police must be good on the aforementioned aspects
The research
has found that the police at Tarime is poor in some aspects hence to some
extent fail to enforce the new law of the child. Many of the reported cases at
Tarime Police are closed when they are under investigation due failure to
collect sufficient evidence which is caused in most cases by the weakness of
the police to rely much in building the cases from the complaints who are
normally the parents or guardians who fail to cooperate with the police during
investigation, or the parents may decide to settle the case at home. Sometimes
they base their investigations from the victims (children) who in most cases
are too young and can not cooperate well with the police during investigation
of the cases.
When the police
fail to get sufficient evidence to the cases then they decide to close such a
case, or sometimes they decide to bring that case to the court with
insufficient evidence in order that they please the public or the
complainants/victims, or else they decide to bring the cases to the court
because they have already arrested the suspects and they can not put them in
the police custody for a long period. These tendencies in most cases lead to
the police to fail prosecuting the cases which have insufficient evidence as a
result most of the accused persons are left free by the court. The police are
also sometimes fail to arrest the suspects of these cases due to some of these
people to disappear from their places (some even go hide to their relatives in Republic
of Kenya because at this area there are tribal intersections), some are not
arrested due poor tactics of arrest used by the police, or sometimes due to the
reasons put by the police such as lack of transport to go for arrests at those
remote areas
For example
from 1st January, 2010 to 25th September, 2010 there were
40 cases reported at Tarime Police amounted to 40, from them only 12 suspects
were arrested, 24(60%) cases were sent to the court, 12(30%) cases were still
under investigation, and 4(10%) cases were closed by ye police due the failure
to gather sufficient evidence on such cases (this is shown in Table III). Also
from those cases which were brought to the court 10(41.6%) cases were pending
before the court, 2(8.3%) cases were acquitted, 4(16.6%) cases were convicted,
and 8(33.2%) cases were dismissed due to various reasons including; failure to
prove prima facie cases ,or withdrawal by the prosecution[120],
( this is shown in Table IV).
It should be
noted that, the despite of the police to have the general duty to enforce the
laws, the police have been given the particular duty by the new law of the
child, together with the social welfare officers; they have to investigate all
matters of breaches or violations of children’s rights[121].Not
only that but the Act requires that the police officers shall not bring a child
to the court unless they have completed their investigations unless the cases
require committal proceedings[122].
From this the researcher is of the view that, a person can not be able to
enforce the law which he or she is not aware of it, this means that the police
officers in order to enforce well this new law of the child give them the duty
to investigate child abuse cases, they must be acquainted with the law itself.
This research
has found that among the police officers there are some who are not aware of
the new law of the child. Among 5 police officers who were interviewed all were
aware of the presence of children’s rights that must be protected, but on the
knowledge on the new law of the child only 4(8o%) responded that they are
familiar with the new law however this was after the researcher gave more
explanation about it (this is shown in Table I).Also the research has found
that there is a tendency by the police officers in Tarime to bring the child
offenders to the court before completing investigation even if these cases do
not require committal proceedings.
For example a
boy of 15 years, a student of
Therefore from
the above situations and facts it can be clearly observed that the police in
Tarime lack from some important things which are crucial on protecting the
standards and rights of children in the district, thus they fail to accomplish
well their duty as law enforcers.
3.2.2 Court’s Treatment to Child Abuse Casesand the
Child Offenders.
Courts of law
are the very important machinery in enforcement of laws, courts have been given
power to dispense justice in the United Republic of Tanzania, in dispensing
justice the courts of law are to be abiding by the existing laws, and they are
not to delay cases without justifiable causes[125].
That is to say, courts of law like the police are the important machinery in
enforcing the laws including the new law of the child.
When conducting
their duties the courts of law in most the time they contact with children’s
rights, this happens either during the time when courts deal with the cases in
which the children are the victims of such incidents (when rights of the
children have been violated), or when the children are themselves in conflict
with the laws, this men that when the children are themselves the infringers of
others’ rights. Under all these circumstances the courts have to adhere with the
laws and make sure that rights of children are protected. In achieving this
objectives must be familiar with the existing laws and new laws, they have to
deal with these cases without unnecessary delays, and they have to dispose
these cases according to the laws applicable, this include the procedures and
also the penalties when one has been convicted.
This research
has found that in Tarime to some extent there court’s failure in enforcing the
new law of the child. This can be observed firstly when courts deal with cases
in which children rights have been violated. One of the failures which have
been noted is delay of cases; this also involves the cases on child abuse. This
tendency of delaying cases has effects on these cases, for example in most of
these cases the children (victims) themselves are the witnesses then it may
happen that, because the case has delayed for a long period before trial this
may cause these children to loose memory of very crucial matters to the cases
then may lead to many cases to be not proved. The other problem which can be
caused by delay of cases in courts is that, the parents/guardians of the
victims or the victims themselves may be tired on the prolonged and delayed
cases and decide to settle the matters with accused persons out of court
system.
For example a
number of cases which were brought to
The other side
of the court’s failure in enforcing the new law of the child can be observed
when the courts in Tarime when dealing with the child offenders. The courts
have the duty to deal with the cases involve children as offenders in a special
treatment, this includes at the time of receiving these cases, procedures to be
used in these cases, and also the mode of disposing them. This duty has been
given by the law to the courts, for example the courts which have jurisdiction
to entertain cases involving child offenders are the juvenile courts which are
the designated premises used by the Primary Courts and are to be presided by
the Resident Magistrates, and they must be separated from the buildings which
are ordinarily used for cases involving adults, and they are to heard in
camera, except where the children are charged together with adults[127].
The juvenile
courts are bound not to receive cases from the police which involve children as
offenders unless the investigations of such cases have already been completed,
and if such cases are brought to the courts then the law requires that they are
to be disposed on that day which they have been brought to the courts[128].The
courts are also required to remand these child offenders if they have not been
released on bail to the care of fit persons or other institutions rather than
remands which are in prisons and these are deemed to be legal custodies[129].
The law also prohibits for the child offenders who have been convicted of the
offences which are punishable with imprisonments not to be sentenced to
imprisonment, they have to be given alternative punishments such as care of fit
persons or institutions like the children remand facilities[130].
The above mentioned
are some of the provisions which give to courts the duty to enforce the new law
of the child in order to promote and protect the standards and rights of
children. However the research has found that the courts in Tarime District
fail to observe some of these provisions, hence poor enforcement o the new law
of the child. For instance the courts in Tarime do receive cases from the
police which involve children as offenders and which do not require committal
proceedings despite of investigations on these cases to be incomplete. This
tendency leads to some of the cases to take long due to unfinished
investigations, also some of the child offenders to be sent to Tarime remand
prison when they fail to get bail.
For example in
one case three children who were aged 14,13 and 15 respectively were charged
for having been found in unlawful possession and cultivation of narcotics
contrary to Section 12(d) of the Prevention of Illicit Trafficking in Drugs Act[131].
This case was received by the court despite for the law to require complete
investigation; it was conducted in public and at the ordinary building of the
Tarime Resident Magistrate Court together with other cases which involved
adults, these children were then been sent to the Tarime Remand Prisons after
they failed to get bail[132].
Not only that
but also the researcher had an opportunity to visit the Tarime District
Resident Magistrate Court and the Tarime Urban Primary Court where he found
that the situation was not good in dealing with the juvenile cases, there was
no any separate building or area where juvenile cases were conducted
separately, and in most cases they were mixed together with cases involving
adults. This is contrary to the provisions of the law as it was also been
discussed in the case of Mokamambogo V.
Republic in which the accused child’s case was conducted in the ordinary
courtroom and there was no indication that it was impracticable to sit in a
different place, the court held that, the court should sit in a different
building or room from that in which the ordinary sittings of the court are held[133].
Also the researcher through his visit to
Tarime Urban Primary Court he ad opportunity to observe that, some of the court
officials failed even to give even simple explanations on some basic issues
about the new law of the child when asked by the researcher[134],
there were others who refused even to fill in the questionnaires given by the
researcher. It is the view of the researcher that these failures were due to
lack of knowledge on the new law of the child. Not only that but the new
statute on the law of the child was not available at the court, therefore it is
hard to enforce the law which they have no enough knowledge and which is not
available to them.
Therefore from
the above situations and facts it can be clearly seen that the courts in Tarime
District have some weaknesses in fulfilling the duties which they have been
empowered by the new law of the child. This then makes the enforcement of the
law by the courts in Tarime to some extent to be poor, thus endanger the
protection of the standards and rights of children in the district and they
fail to accomplish well their duty as law enforcers in the area
3.2.3 Prison’s Treatment to Children in Custody.
Prisons
department is one of the important institutions in law enforcement, it deals
with the keeping of persons who are not already been convicted (remand persons
whose cases are pending before the courts) and also those who have been
convicted for imprisonments so as to serve their sentences. However in
conducting their duties the prison officers must adhere to the existing laws,
for that they are duty bound to be familiar with the law they use to enforce.
The law
requires that, when the court remands a child or when it commits a child for
trial to the High Court then the court has to order for that child to be handed
over to the Commissioner of Social Welfare or to a fit person or an institution
which will be named in the same order[135],
also the law requires that the same procedure to be applied even where the
child is convicted for any offence, but not to be sent to prisons[136].
Not only that but also the Act provides for the protection of a child who is
accompanied with her mother who is sent to prisons, Section 144 of the Act
provides for the duty to the prisons authorities to make sure that child gets
all the necessaries and care, and that they must inform the District Social
Welfare Officer about the child who is in prison with his mother and who is no
longer breastfeeding and that social welfare officer shall determine the most
suitable place for that child until his mother is discharged from prison.
The research
has found that there is no any juvenile remand home in the whole Mara region
and in Tarime in particular. There are only six detention facilities in
Tanzania which include; five remand homes situated at Daresalaam, Tanga, Moshi,
Arusha and Mbeya, and one Approved School at Mbeya[137].Therefore
because of not having juvenile remand facilities in Tarime District then the
child offenders are kept into ordinary adult prison where the researcher
observed that they are not being separated from the adult inmates. This makes
them to face a lot of problems which include; sleeping on crowded dirty rooms
and toilets, no safe drinking water, abuse from their inmates[138],
the children also face the problem of insufficient food and which has poor
quality.
The research
also has found that there are some of the prison officers are not aware of the
new law of the child; this brings the doubt if they can really enforce the law
which is alien to them. For instance among the 5 prison officers at Tarime
Prison Department who were interviewed only 2(40%) of them had knowledge on the
new law of the child while 3(60%) of them had no knowledge on the new law but
they were familiar with the presence of the rights accrued to the children
(this is shown in Table I).
3.2.4 Approach of theSocial Welfare Office/ Local Authority on Issues
of Child Abuse.
The local
authorities through the social welfare officers have the duty to safeguard and
protect children in their areas[139].
These officers have a lot of duties with the safeguarding and protecting
children’s rights and welfare in their jurisdictions, these include; the duty
to apply for the court orders to remove or prevent the children from the
harmful situations[140],
to counsel the children, parents, guardians and relatives, to assist the needy
children, to keep the registers of the most vulnerable children, and in
collaboration with the police to investigate child abuse cases, to find the
parents of the abandoned or lost children[141].Not
only that but the social welfare officers must be present during all the
proceedings in the juvenile courts[142].
As the case to the other law enforcers the
social welfare officers in conducting their duties the must adhere to the
existing laws, and therefore are also being duty bound to be familiar with the
law which they are to enforce. When conducting this research the researcher had
an opportunity to visit the Tarime Social Welfare Office where he has found
that there are some weaknesses regarding enforcing the new law of the child.
When
interviewing the Social Welfare Officer In-Charge of the District about his
knowledge on the new law of the child he responded that he heard the news about
it but he had never seen such a law. However he was aware on the rights of the
child as per his experience and the pre-existed laws relating to children’s
rights. Therefore it has been observed that the officer is not even aware on
some of the duties which he has to fulfill in accordance with the new law of
the child in safeguarding and promoting children’s rights and welfare. The
research has also found that at the office there was no any such register of
the most vulnerable children at the area, and that despite of the cases which
involved child offenders to be conducted in ordinary courts the officers were
at least to be present in such cases, but there was no any officer during these
proceedings.
Therefore, the
Tarime Social Welfare Office as the case in many Social Welfare Offices in the
country it is not much useful in promoting and safeguarding children’s rights
and welfare, the role of most of these offices comes only where there are
conflicts in the family, or where the children have been found by the police or
any other institution or by the community and thus there are the needs of the
social welfare offices[143].
3.3 Factors affecting protection and enforcement of
the new law of the child.
This research has found that the infringements
of the children’s rights do still persist in our country and in Tarime in
particular and that there are certain factors which cause this to happen. These
factors have been found from the answers given by 45 respondents who were
interviewed at Tarime during the research conduction, observations of the
researcher and also from other secondary sources of data.
3.3.1 Ignorance of the new Law Child.
This research
has found that ignorance of the new law of the child to be one among the
factors which cause the persistence of children’s rights violation in Tarime
District; this has been found as the leading factor. For instance among 45
respondents who were interviewed 19(42%) of them said that this is one of the
causes of child abuse in the area. Also from the 45 respondents interviewed
which included parents/guardians, teachers, court officials, religious leaders,
police officers, prisons officers, children as well as other stake holders;
only 21(46.6%) had knowledge on the new law of the child, however all the
respondents were aware of the rights of accrued to children generally[144].
The matter is
worse enough because children are the ones who lead in not knowing this new law
which came to maximize their standards and welfare, only 3(30%) children among
10 who were interviewed were at least aware of the new law and this was after
the researcher to have explained to them. I t may be argued that the
parents/guardians and teachers of these children are the ones who are at a
better position to impact the knowledge on the new law of the child to these
children. But it has been found by this research that among the group of 10
respondents which included parents/guardians and teachers, only 5(50%) of them
seemed to be aware of the new law of the child. This problem was also been
found in other groups such as the police officers, prison officers, court
officials, local government officers, and other stake holders as it is shown in
Table I.
From this it
can clearly be seen that, it is not easy for the children at Tarime to claim
after their rights have been infringed because of the ignorance in some very
crucial matters regarding their rights provided under the new law of the child
and they will not be aware of their duties which are also been provided under
the same law. For the parents/guardians, teachers and other stake holders it
seems also to be harder for them to help the children when they are abused or
for them not to abuse the rights of the children. Also the hardships can be
brought by ignorance of the new law of the child to the law enforcers in
protecting and promoting the rights and standards of children as provided under
the new law of the child.
3.3.2 Customs and Traditions.
Custom can be
defined as a practice that by its common adoption and long, unvarying habit has
come to have a force of law[145],
whilst tradition is the past customs and usages that influence or govern
present acts or practices[146].
Custom may also be defined as the practice which has been followed in a
particular locality in such circumstances that it is to be accepted as part of
the style of living in that locality. Therefore it can be argued that there are
those customs which are legally recognized (which are consistent with the law)
and also there are those customs which the law does not recognize them but they
have been practiced for a long time and have been accepted by the people of
such community and some of them are binding to those people at those are
The research
has found that there are some of the prevailing customs and traditions which
are also among the factors which contribute to the violations of children’s
rights in Tarime District, this factor has ranked the second among the factors
which seem to contribute in child abuse at the area. Taking the answers given
by 45 respondents interviewed 14(31.1%) said that customs and traditions do
contribute in child abuse at Tarime District (this is shown in Table I).
One among the
very common customs existing at Tarime District which is mainly practiced by
the Kurya tribe (most of them follow tribal religions) and Luo tribes is the
practice of forcing or allowing the child girls to enter into early marriages[147],
this is done so as to get dowries which in most cases are the cattle (a person
having cattle is considered to have a very valuable property and brings
prestige in these societies). These practices of child girls’ early marriages
bring a lot of problems to them socially as well as medically. For example when
interviewing the Officer In-charge of the Legal and Human Rights Centre-Tarime
Branch, he told the researcher that on this practice of early marriages they
get a lot cases on child abuse. One example he said is that of one Rhobi d/o
Thomas a child who was forced by her parents at the age of 16 years as a result
this old husband decided to cut the ears of his wife when he was drunk[148].
Another
practice is that of polygamy, the researcher observed that this practice makes
some of the persons to have many children whom they are not able to satisfy
them with the basic needs, thus they sometimes decide to desert them without
parental assistance. This makes these children to become street children and
some are employed in mining areas like Nyamongo, Gibaso, Ochuna and others the
like.
In Tarime there
is also the practice of conducting localcircumcision to male children and
female genital mutilations, commonly known as “esaro”, this practice is mainly
conducted by the Kurya tribe under which girls who have not yet undergone FGM
are called “wasagane”, those who deliberately refuse to undergo FGM are called
“irikunene” or “rikunene” which in Kurya language means a long clitoris, while
those who have undergone FGM are called “wasamba”. The research has found that
these names given to those girls who have not gone FGM are regarded as abusive
in Kurya tribe thus tend to contempt them and affect them psychologically thus
many decide to undergo FGM, and it was observed that this practice is
associated with reduction of sexual arousal, identity, religious beliefs,
preservation of virginity and chastity in women, attracting marriages, as well
as cleanliness. Women and girls who comply with norms gain respect and admiration
in the society.
However the
research has found that this habit has decreased to some extent and when
practiced is done very secretly, this is due to the existing law against
cruelty to children[149],
and the cries from stake holders. These practices do subject children to
injuries, pains and health problems because they are locally conducted (even
without medical treatments). Thus these are some of the accepted and common
practices in Tarime which contribute in child abuse, some of tem are against
the law and some are not against the law but they do affect the protection and
promotion of children’s rights as envisaged by the new law of the child.
3.3.3 Weakness of the new Law of the Child.
The new Law of
the Child Act of 2009 has some weaknesses such that it has failed to cover some
of the critical matters with regard to the standards and welfare of children in
Among the 45
interviewed respondents who were asked on whether weakness of new law to be the
cause of child abuse in the area 6(13.3%) responded positively. On the question
as to whether the new law satisfies the need of protecting and promoting
children’s rights 19(42%) respondents said it does not satisfy, 19(42%) said it
satisfies and 7(15%) said they do not know, but most of them failed to give
explanations on what aspect(s) that the law is weak or unsatisfactory (this is
shown in Table I). However the researcher after conducting a thorough analysis
on the new law he has found several weaknesses (they have been discussed in
Part 3.1.2 of this Chapter)
3.3.4 Weakness of the Law enforcers.
Law enforcers
in Tarime District have some weaknesses the research has found. This factor has
taken the fourth chance among the factors contributing child abuse in Tarime.
Among the 45 respondents interviewed 10(22%) of them said that law enforcers
are among the leading violators of children’s rights in the area, also on the
question as to whether the weakness of law enforcers is among the factors
contributing violations 5(11%) said the weakness of law enforcers is among the
factors contributing children’s rights in Tarime (this is shown in Table I).
Among the
reasons which make the law enforcers to be weak in enforcing the new law of the
child which the research has found include; ignorance of the new law itself,
lack of facilities to conduct their duties, inflexibility (rigidity), and
others the like (the detailed facts which show the weaknesses of the law
enforcers in Tarime in enforcing the new law of the child in the area have been
given in Part 3.1 of this Chapter.)
3.3.5 Other Factors.
Despite of the
afore mentioned factors to be the most contributing factors on violation of
children’s rights in Tarime but there are other factors which also contribute
to violations, however these factors in one or another relate the above mentioned
factors. From the 45 interviewees 5(11%) gave the other factors which are
different from the previous ones however they seem to relate, thus the
researcher decided not to ignore them. These factors are provided hereunder.
Poverty; can
simply e defined as the act of someone to have got no enough means to sustain
his or her living. This has been found to be one of the factors contributing
child abuse in Tarime District. For example there are some of the parents/
guardians are poor so thecan not manage to provide necessaries to their
families, the research has observed that this problem causes children not to go
to school; they do not get necessaries for their lives and also causes some of
the marriages to break. Thus after the breach of marriages the children are the
most ones to suffer. Not only that but also the research has found that poverty
also make some of the poor parents to cause their young daughters to be married
so as to get dowries which can help them to sustain their living.
Neglect of the
law; the research has found that this as among the factors contributing child
abuse in Tarime. This means that there are some of the persons who infringe or
fail to promote and protect children’s rights despite of them to be aware of
the same for the reason of neglect. For example when interviewing the Officer
In-charge of the Legal and Human Rights Centre-Tarime Branch, he told the
researcher that to some extent there is an issue of neglect to some the
government officials such the Village/ Ward Executive Officers, and others the
like to neglect the child abuses even they are committed on their presence.
The research
has also found that some of the neglects are done due to the misconceptions of
some of the people that children are the subordinate persons in the society so
they can have no say or they can not by themselves claim when their rights are
violated because they are weak and are not even aware of them. The researcher
has also observed neglect of children’s rights by the parents/guardians as well
as teachers by making corporal punishments to children for the reason of
disciplining them.
Another factor
which the research has observed that contributes to child abuse in Tarime is
the tendency of solving disputes locally. In the area it has been observed that
there is a tendency of solving disputes (which include child abuse disputes)
locally, these may include either between the parents/guardians of the
victimized child and the violators and/or his parents/guardians. This means
parties/parents may decide to solve the maters at home. These disputes are also
been solved by the traditionally organized tribunals commonly known as
“litongo” which do solve disputes by local means and give penalties such fines,
seizure and others the like which in most cases are in terms of cattle which
they call them “nzagu”
The research
has observed that many of these people prefer to solve these disputes locally
due to various reasons which include; dissatisfaction with the service provided
by the law enforcers, delay of cases and legal technicalities in the courts of
law (most of them are in need of easier and faster resolutions and remedies
such as fines and dowries), there are those others who decide to solve these
disputes locally due to ignorance of the proper forums to send these claims.
Thus due to these and other reasons some of the people decide to solve child
abuse cases by local means.
Lack of
political will was found also as another factor which contributes to children’
rights violations. Political will is that state of the political authorities to
be ready to do something with all efforts. Lack of political will was observed
on the government’s commitment to make the infrastructures which could help in
enforcement of the new law of the child. For instance the government does not
make any efforts on building the juvenile courts or on restructuring the
ordinary courts so as to accommodate the proceedings for juveniles, also the
government does not make efforts on building children’s detention facilities in
every district or region. If there was a political will then these facilities
could be built as it was done in secondary schools in every ward in
3.4 Conclusion.
The researcher has found that protecting and
promoting children’s rights is a very crucial thing in our society, this was
also the aim envisaged by the legislature when enacting the new law of the
child. However the research has found that this aim faces several obstacles
such as the law it self to have some weaknesses despite of its wide protection
which it provides, there are also some weaknesses on part of the law enforcers.
Other factors include; ignorance or neglect of the new law of the child, some
of the violative customs and traditions prevailing in the society, solving
disputes locally, poverty and others the like. Therefore, it seems that the aim
of the legislature is much hindered.
Chapter Four
Conclusion and Recommendations
4.1 Conclusion.
Protection,
promotion and recognition of children’s rights under human rights passed a very
long process until they are today; the process started before the establishment
of the
Despite of the
expectations that the law would curb the abuse to children in
4.2 Recommendations
In order to
stabilize the law and to improve promotion and protection of rights and welfare
of children in
(i) Inclusion
of the Article(s) in the CURT,1977 specifically recognizing rights and welfare
of the child, and that the Constitution has to establish an independent body to
monitor children’s human rights in
(ii) Amendment
of the Law of the Child Act, 2009 to accommodate the following; to give a clear
definition of the principle “best interests of the child”, to establish or
recognize an independent body to monitor children’s rights, to translate the
Act into Swahili language, to repeal and/or amend the laws to be in line with
the standards provided by the Act such as the Corporal Punishment Act [Cap17
R.E 2002], the Penal Code [Cap 16 R.E 2002], the Criminal Procedure Act [Cap 20
R.E 2002] and the Law of Marriage Act [Cap 29 R.E 2002], absolute abolition of
corporal punishment to state clearly the minimum age for marriage to be 18
years. Also the structural defects of the Act are to be corrected.
These
amendments have to provide for total obligation to the government in protection
and promotion of children’s rights by providing free legal assistance to
children in conflict with law, to
provide free education for all children, to provide social services and basic
needs for children and their families, to increase awareness to general public
on children’s rights, to provide facilities, resources and training to the law
enforcement agencies, to establish many juvenile courts, remand and alternative
care facilities in every district.
(iii)
Increasing the political will on part of the government by making special
schemes in promoting and protecting children’s rights. An example of the
political will by the government was done in promoting primary and secondary
education through MMES and MMEM Schemes which led to many schools to be built
and many teachers to be employed. This can be done also in building juvenile
courts, remand and alternative care facilities in the country as well as
training to law enforcers and other stake holders.
(iv) The
general community has to accept changes; this means that, it has to change and
recognize that children are having their rights which must be respected, the community
has to obey and respect the laws in general, the community has not to solve
cases on child abuse locally, and that the community has to eliminate some of
the customs and traditions which are inconsistent with the promotion and
protection of the rights and welfare of children.
[1] Policy Statement No.20 of the Child Development Policy, 1996
[2] (1927)1Q.B 207
[4] www.Law.JustAnswer.com
7 League of
Nations passed the Convention on Prohibiting Trafficking in Women and Children
of 1921
8Convention
on Slavery and Slave Trade
9 league
of nation adopted the declaration of right of the child the geneva convention
1924
10 the first world war 1918
[7]C.J, Mashambaetal,(2003) Report on the Findings of the Research
on Administration of Juvenile Justice,pg.16.
[8] C.P, Mainaetal,(2010)
[9]ibid, pg.89.
[10] C.J, Mashambaetal (2009) op.cit, pg.97
[11] www.unicef.org/infobycountry/tz.
[12](2008), Tanzania Human Rights Report, LHRC.
[13](1997) Children’s Rights in Tanzania.
[14] (2009) “Children’s Rights to Education: A Case Study of Kyela
District”.
[15] (1997) “Child Sexual Abuse Prevention; Evaluation of the Law and
Practice: A Case Study of DSM”.
[19] http://www.google.co.tz/books/children’s rights-history
[20] ibid.
[21] ibid.
[22] ibid
[23] I.G Shivji, etal (2004) op.cit, pg 160.
[24] http://www.google.co.tz/books/children’s rights-history
[25] http://www.google.co.tz/books/human rights-history
[26] ibid.
[27] Principles 1-5 of the Declaration of the Rights of the Child of
1924
[28] http://www.google.co.tz/udhr -history
[29] Preamble of the Universal Declaration of Human Rights of 1948
[30] I.G, Shivjietal (2004) op.cit, pp.81-82
[31] ibid, pg. 81
[32] ibid, pp.81-82
[33] I.G, Shivjietal (2004) lo.cit
[34] ibid, pg. 162
[35]http://www.en.wikipedia.org/united nations.
[36] I.G, Shivjietal (2004) op.cit, pp. 162-165
[37](1995) HCA. 20.
[38](1988) T.L.R 96.
[39] J.S Nielsen (2006)Children’s Rights in Africa , pp.24-25
[40]http://www.unicef.org/sowc07/docs
[41]J.S Nielsen (2006) op.cit, pg. 35
[42]Article 1(1) of the ACRWC.
[43] ibid, Articles 3, 4 and 5.
[44] ibid, Article 2.
[45]J.S Nielsen (2006) pg. 35
[46]ibid, pg 14.
[47] C.J, Mashambaetal,(2009) loc.cit.
[48] Refer to the Child Development Policy of 1996.
[49] ibid, Article 139(2)
[50] Section 125(2) of the Law of Marriage Act, 1971
[51] Preamble of the Law of the Child Act of 2009
[52] Cap 29 R.E 2002 is amended under Sections 161-166 of the Law of the
Child Act, 2009.
[53] Cap 353 R.E 2002 is amended under Sections 167-170 of the Law of
the Child Act, 2009.
[54] Act No.6 of 2004 is amended under Sections 171-172 of the Law of
the Child Act, 2009
[55] Cap 16 R.E 2002 is amended under Sections 173-192 of the Law of the
Child Act, 2009
[56] Cap 20 R.E 2002 is amended under Sections 193-194 of the Law of the
Child Act, 2009.
[57] Repealed under Section 160
(1) (a)-(e) of the Law of the Child Act, 2009.
[58] Section 4 of Law of the
Child Act, 2009
[59] PART II of Law of the Child Act, 2009
[60] PART V of Law of the Child Act, 2009
[61] PART IX of Law of the Child Act, 2009
[62] PART V I of Law of the Child Act,2010
[63]Article 2 of ACRWC and Article 1 of the CRC.
[64]B.D Mezmur (2009). “The African Children’s Charter Versus the CRC: A
Zero-Sum Game” In: C.J Mashamba, etal (eds) Justice Review, Vol. 8 No.
2, pg.35.
[65] Sections 5,6,7,8,9,10,11,12, 13 and 26 of the Law of the Child Act,
2009.
[66] ibid, Section 15.
[67] ibid, Section 17.
[68] ibid, Section 23.
[69] ibid, Sections 27(1),52 and 53.
[70]ibid, Sections 36(4) and 41.
[71]ibid,Section 54 (3).
[72]ibid,Section 74.
[73] ibid, Sections 34 and 35.
[74] ibid, Sections 77,78,79,80,82 and 83.
[75] ibid, Section 89.
[76] ibid, Section 93.
[77] ibid, Section 94.
[78]ibid, Sections 94 (7) and 96.
[79] ibid, Sections 99 and 101.
[80] ibid, Sections 104,116,118 and 119.
[81] ibid, Section 120.
[82]ibid, Section 124(4).
[83] ibid, Section 130.
[84] ibid, Sections 121,122 and 123.
[85] ibid, Sections 132,133,134,135 and 136.
[86] ibid, Sections 138 and 146.
[87] ibid, Sections 3,147 and 149(2),(3)&(4).
[88] ibid, Section 151.
[89] ibid, Sections 152,153 and 157.
[90] ibid, Sections 168 and 169.
[91]ibid , Section 174.
[92]E. Machibya (2009). “Duties and Responsibilities of the child under
the Law of the Child Act(2009): The opened arms for children?” In: C.J
Mashamba, etal (eds) Justice Review, Vol. 8 No. 2, pg.53.
[93]ibid, pg.60.
[94] C.J. Mashamba (2009). “Domestication of international children’s
rights norms in
[95]J.S Nielsen (2006)op.cit, pg.58.
[96]http://wwww.the citizen. co. tz/news/4-national news.
[97]Article1(1) of ACRWC and Article 4 of CRC.
[98] C.J. Mashamba (2009). “A child in conflict with the law under the
Tanzanian Law of the Child Act (2009): Accused or victim of circumstances? ”
In: C.J Mashamba, etal (eds) Justice Review, Vol. 8 No. 2, pg.208.
[99] Section 310 of the Criminal Procedure Act [Cap 20 R.E 2002] and
Section 3 of the Legal Aid Criminal Proceedings Act[Cap 21 R.E 2002].
[100]Articles 17(2)(c)(iii) of the ACRWC and Articles 20,37(d) and 40
(2)(b)(iii)of the CRC.
[101]Section 8 (1) of the Law of the Child Act, 2009.
[102] C.J Mashamba (2010) Introduction to Family Law in Tanzania,pg.126.
[103] C.J. Mashamba (2009). “Domestication of international children’s
rights norms in Tanzania” op.cit, pg14.
[104] Cap 433 R.E 2002.
[105]Paragraph 11 of the General Comment No.8/2006 of the U.N Committee
on Rights of the Child.
[106] Section 60 of the Education Act [Cap 353 R.E 2002]
[107] G.N No. 294 of 2002.
[108] Cap 17 R.E 2002.
[109] Cap 20 R.E 2002.
[110] Cap 16 R.E 2002.
[111] Sections 2, 7 and 8 of the Corporal Punishment Act [Cap 17 R.E
2002]
[112] K.L Gamaya (2009). “Revisiting the principles of Parentage, Custody
and Maintenance under the Law of the Child Act (2009)” In: C.J Mashamba, etal
(eds) Justice Review, Vol. 8 No. 2, pg. 105.
[113]http://en. wikipedia.org./wiki/ombudsman
[114] ibid.
[115]Article 129 of the CURT,1977 [Cap 2 R.E 2002]
[116]P. Newell (2000) “The Place of Children’s rights in Human Rights and
Ombudsman System” In:K. Hossain (ed) Human Rights Commissions and Ombudsman
Offices: National Experiences Throughout the World; pg.142
[117]ibid, pg.137.
[118]Section 119 of the Law of the Child Act, 2009.
[119] Section 27 of the Police Force and Auxiliary Services Act [Cap 322
R.E 2002]
[120]Sections 98, 224 and 230 of the Criminal Procedure Act [Cap 20 R.E
2002]
[121]Section 94(7) of the Law of the Child Act of 2009.
[122]ibid, Section 103(1).
[123]Tarime Police Investigation Report No.2060/2010.
[124] R. V. Khamis s/o Nyerere
Criminal Case No. 306/2010, Tarime District Court, (Unreported).
[125] Article 107A (1) and (2) of the CURT,1977.
[126] Data for this is presented in Table IV.
[127] Sections 97,98, 99 and 100 of the Law of the Child Act,2009.
[128] ibid, Section 103 (1) and (2).
[129] ibid, Section 104.
[130] ibid, Section 119.
[131] Cap. 95 R.E 2002.
[132] R. V. Rhobi s/o Turuka@ Mwita&2 Others Criminal Case No.
495/2010, Tarime District Court, (Unreported).
[133] (1971)HCD. 63
[134] Refer to Column 3 of Table I
of this report.
[135]Section 104 of the Law of the Child Act, 2009.
[136] ibid, Section 119.
[137] C.J. Mashamba (2009). “A child in conflict with the law under the
Tanzanian Law of the Child Act (2009): Accused or victim of circumstances?”
op.cit, pg.175.
[138] I.G Shivji,etal (2004) opcit, pg.195.
[139] Section 94 (1) and (2) of the Law of the Child Act ,2009.
[140] ibid, Sections 18-19.
[141] ibid, Section 94(3),(4),(5),(6) and (7).
[142] ibid, Section 99(1)(d).
[143] J. Marenga&
[144] Data for this is presented in Table I.
[145]B.Garner(2004) Black’s Law Dictionary, 8thedn; pg.413.
[146]ibid;pg. 1534.
[147] A. Rhobi “FGM, Early
Marriages Lead Tarime Girls into Health Problems” loc.cit.
[148] This girl has now started studies at
[149] Section 169A of the Penal Code [Cap 16 R.E 2002].
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