AN EXAMINATION OF THE LAW AND PRACTICES RELATING TO CHILD MAINTENANCE IN MTWARA
STELLA
MARIS MTWARA UNIVERSITY COLLEGE
(A
Constituent College of Saint Augustine University of Tanzania)
FACULTY OF LAW
AN EXAMINATION OF THE LAW AND PRACTICES RELATING TO CHILD
MAINTENANCE IN MTWARA
A DISSERTATION IN PARTIAL FULFILLMENT OF THE REQUIREMENTS
FOR THE AWARD OF THE DEGREE OF BACHELOR OF LAWS OF STELLA MARIS MTWARA
UNIVERSITY
2019
The undersigned certifies that he has read and hereby recommends for
acceptance on behalf of the Stella Maris Mtwara University College, a Research
Paper Titled, An Examination of The Law and Practices Relating to Child
Maintenance in Mtwara.
_________________________________
MR
IGNATUS BARONGO
(SUPERVISOR)
Date____________________
Declaration
I, Mabina,Mariam E. , declare that this proposal is my own original work and that it has not been presented and will not be presented to any University for similar or any other degree award.
Signature
___________________________Date____________________
Supervisor Declaration
I certify that
this research attachment is submitted to the administration of Stella Maris University,
in partial fulfillment of the bachelor degree in law program. Is a record of
independent research work carried out by Mariam Ernest Mabina under my
guidance. This has not been previously submitted for the award of bachelor
degree or any other academic award.
Signature………………………………………Date…………………………………………….
All
right reserved no part of this paper may be printed, reproduced, stored in
retrieval system or transmitted in any form or by any means including photocopy
or storing it in any medium by an electronic means and whether or not
accidentally to some other use of this work, without the written permission of
the Deputy Vice Chancellor for Academic Affairs of Stella Maris Mtwara
University College, on behalf of the author and the university.
With much respect
I would like to express my hereafter thanks to all those whose viable
contribution helped me to complete this work. It is not possible to mention
them all, but there are some of them who played a great role to the completion
of this work.
First of all I
would like to extend my sincere thanks to almighty God who grated me with
vitality and health in helping me conduct my field under a pleasurable
environment.
Secondly, I would
like to thank Mr. Barongo for his material support. Without him nothing of
importance would have been done.
Lastly, I wish to
thank my parents and other relatives for their superior support.
DEDICTION
This work is dedicated to my beloved guardians for
their honorable and material support.
Table
of Statutes
Tanzania Statutes
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
The
Constitution of United Republic Of Tanzania of 1977.
The Basic Rights and Duties
Enforcement Act No.33 of 1994.
The
Criminal Procedure Act [Cap 20 R.E 2002]
The Corporal Punishment Act [Cap 17 R.E 2002]
International Statutes
African Charter on Human and Peoples' Rights (The Banjul Charter) Of 1981.
The Universal Declaration of Human
Rights of 1948.
The
Convention on the Rights of the Child of 1989.
The African Charter on the Rights and Welfare of the Child of 1990.
Chiku
Lidah V. Adam Omari High Court of Tanzania-Singida, (PC) Civil Appeal No.
34/1991 (Unreported)
Faulkner V. Sutton (1927)1Q.B 207
Minister
For Immigration and Ethics Affairs V. Ah Hin Teoh (1995) HCA. 20.
Mokamambogo
V. Republic(1971)HCD. 63
R
V. Mohamed Abdallah Criminal Case No. 118/1999, Magu District Court,
(Unreported).
R.
V. Khamis s/o Nyerere Criminal Case No. 306/2010, Tarime District Court,
(Unreported).
R. V. Rhobi s/o Turuka @ Mwita &2
Others Criminal Case No. 495/2010, Tarime District Court, (Unreported).
Ramesh Rajput V. Mrs. Sunanda Rajput
(1988) T.L.R 96
Table of Abbreviations
ACERWC African Committee of Experts in the
Rights and Welfare of the Child
ACHPR African Commission on Human and Peoples'
Rights
CEDAW Convention on the
Elimination of All Forms of Discrimination Against Women
CURT Constitution of United Republic Of
Tanzania
ICC International
Criminal Court
ICCPR International Covenant on Civil and Political
Rights
ICCPR International Covenant on Civil and Political
Rights
ICESCR International Covenant on Economic, Social and
Cultural Rights
ILO
International
Labour Organization
LHRC Legal and Human Right
Centre
OAU Organization of African Unity
U.N United Nation
UNICEF United National Children’s Fund
U.S United State
U.S.A. United State of America
Contents
1.7 Research
Methodology and Design
CHAPTER
ONE
GENERAL INTRODUCTION
1.0 Introduction
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 human. At the same time children are different from adult human
beings and it is reasonable to think that they are special. What makes them
special is this combination of their humanity and their youth. 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. The basic rights of children are; the survival
rights, development rights, protection rights, participation rights, and the
right not to be discriminated against[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 characteristics of a very young
person[4].The
term child can simply mean a young person or an offspring of the parents.
On
the other hand children’s rights can be defined as the opportunity for children to participate in political and legal
decisions that affect them; in a broad sense, the rights of children to live
free from hunger, abuse, neglect, and other inhumane conditions[5].Rights
of children can also be defined as those rights which are inherent in them and
are to be enjoyed only by them[6]
Generally rights of children can be said as the perceived human rights of
children with particular attention to the rights of special protection and care
affordable to the young . However there are some researchers who argue that,
the notion of children’s rights is still not well defined, with at least one
proposing that there is no singularly accepted definition or theory of the
rights held by children.
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 Tanzania for
instance there are some efforts which have been done to suit the need of
protecting children’s rights. However these efforts are not sufficient that is
why there are still serious violations of children’s rights in the society.
This
chapter therefore tries to give a brief background of the problem regarding to
the rights of the child, then the statement of the problem will be put forward
which will be followed by the review of literatures which led the researcher to
this problem researched, then the objectives of this research followed by the
hypotheses under which this research based, then the scope of this study, its
significance, the methods which were used in conducting this research and
lastly the limitations encountered during research conduction.
The
efforts of maintain and 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,
another effort was the Convention on Slavery and Slave Trade, 1926, also the ILO adopted
numerous instruments against the exploitation of child labour and for
protection of working children, not only that but in 1924 League of Nations
adopted the Declaration of 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 outcomes[7].
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[8].
Tanzania as a member of the U.N has ratified this Convention in 1991[9].
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 few[10].
Not only that but also Tanzania recognizes the 16th day of June
every year as the African Child Day[11].
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 standards 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(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) and
other laws of the like. Also Tanzania made a policy called the Child
Development Policy of 1996. All these aimed at promoting and protecting
children’s rights in Tanzania.
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. The main argued
causes of this problem were that, there was no single national legal regime on
children’s rights. This led to many contradictions among those laws hence made
the legal protection of children to be disorganized and put the children at
risk[12].
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 scheme[13].
There also existed the problem of poor legal enforcement and lack of effective
administration on children’s rights[14].
For
example in the case of R V. Mohamed
Abdallah[15] 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[16].
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[17].
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[18].
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[19].
Also in the case of Chiku Lidah V. Adam
Omari it happened that the father disowned his own child after birth[20]
Currently,
Tanzania has single legislation which deals with the rights of children. This
is the Law of the Child Act, 2009. This Act[21],
to some extent, covers many aspects of children’s rights as envisaged by the
CRC and other international and regional instruments. Despite this legislation
the violations of children’s rights still persist in Tanzania.
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 maintain and protecting 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.[22]
1.3. Objectives of the Study.
1. 3.1Main 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, maintain 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. 3. 2 Specific Objectives
For the fulfillment of the researcher to
attain his Bachelor of Laws Degree (L.L.B) at St August University of Tanzania.
To identify the factors which contribute
to the persistence of children’s rights’ violations in Mtwara
To establish circumstances under which
the legislature can amend the existing law of the child and other relevant
legislations.
To make a way through so as Tanzania to
become a best child friendly country.
1.4. Hypothesis
The
research based on the assumptions that; the Law of the Child Act[23]
No.21 of 2009 is weak so as to maintain children’s rights hence violations of
these rights in Tanzania, and that, some of the customs in the society and
ignorance of this new law and the other relevant laws to the law enforcement
agencies, parents, children themselves and the society in general are the major
causes on failure to protect and promote children’s rights in Tanzania.
1.5 Scope of the Study
The
researcher in this study has mainly focused his 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 Mtwara District for
the reason that this area seemed to be very unfriendly to the children.
1.6
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[24],
and thus it is very important to protect this big segment of our society. This
study will also help the other researchers to observe this problem and
therefore conduct researches in order to develop the law and thus help in the
maintenance of children’s rights in Tanzania. Not only that but also the
research will be useful in identifying the gaps in the new law of the child in
Tanzania, this will help the government and the legislature to review the law
of the child and other relevant laws so as to safeguard well the rights and
standards of children in Tanzania. And this will help in making Tanzania to be
child friendly country.
1.7 Research
Methodology
and Design
1.7.1 Research Design
This
research employed a case study design, which aimed at finding out and analyzing
whether the new Act of the child satisfies the need of promoting and protecting
the required rights and standards of children in Tanzania, Mtwara District
being the case. The case study design has been selected because of the reasons
that, it saves time and costs (research time was short and the researcher’s fund
was insufficient), it adopted several methods of data collection, and it
enables the researcher to have a deep and thorough study from different aspects
of phenomenon.
Mtwara
District was chosen as a study area because it seemed to be unfriendly to children’s
rights due to the persistence of social problems like tribal disputes, female
genital mutilations, domestic violence, robberies, breach of marriages and
others alike.
1.7.2 Sampling Techniques
The
research included the purposive and random sampling techniques. The researcher
selected the specialized or experienced in this problem, these include the
court officials, parents/guardians, teachers, police and prison officers;
school children, non-school children, religious leaders and other stake holders
1.7.3 Data Collection Methodology
As
the research was qualitative one, therefore the methods applied included;
interviews, questionnaires, observation and also the documentary reviews.
1.7.4 Interviews.
Under
this study the researcher had face-to-face discussions (interviews) with the
respondents in which he was able to clarify the points which were not
understood by the interviewees. Unstructured interviews were the ones preferred
because they allowed a greater flexibility in the questioning process and
therefore the researcher was able to get the concrete and relevant information
which in turn helped him in getting good and fruitful results.
1.7.5
Questionnaires.
Both
open-ended and closed-ended questionnaires were used and supplied to the
respondents. This was an advantageous method because it covered a large area of
study in Mtwara District; also the respondents had adequate time to give their
answers.
1.7.6
Observation
The
researcher sometimes used to observe the respondents and collect the relevant
data. This was because there happened some of the respondents who were not
able/cooperative in answering the questions in interviews or questionnaires.
1.7.7
Documentary Review.
In
this study the researcher has visited some relevant documents like statutes,
case laws, books, journals, articles, internet materials and other
publications. These documents helped him in getting the useful data in this
study, and these were obtained from the libraries of Stella Maris University,
Center, Mtwara District Court, Mtwara Urban Primary Court, and other agencies
which deal with children issues.
1.7.8 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 organizing the compressed assembly of information
that permits conclusion drawing), and the verification of data used in this
research.
CHAPTER TWO
THEORETICAL FRAMEWORK
2.0.
Introduction
This
chapter tries to put the issue of children’s rights into context, by starting
giving the historical background of children’s rights in the world, and its
intrusion to Africa and Tanzania. In particular rights of children will be
traced national by looking mechanisms dealing with those 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[25].
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 U.S.A. This organization devoted for the
abolition of child labour and it managed to pass the law which was later struck
down by the Supreme Court for violating child’s right to contract for his work[26].
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."[27]. The 1927 publication of “The Child's Right to Respect” written by Janusz Korczak 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[28]. 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[29].
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 Eglantyne Jebb, 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 League of Nations in 1924 as the Geneva Declaration of the Rights of the Child and with some additions and amendments by the UN in 1959[30].
The other very memorable efforts are those which were done by the League of Nations of 1919. This body was at the negotiations over the Treaty of Versailles following the end of the First World War. Its goals included disarmament, preventing war through collective security, settling disputes between countries through negotiation and diplomacy, and improving global welfare[31]. In its Charter it has a mandate to promote many of the rights, for this the League did some efforts to protect children’s rights as among the human rights.
The
first effort the League did was to make the Convention Prohibiting Trafficking
in Women and Children, 1921 this 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 Eglantyne Jebb 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[32].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[33].
The League of
Nations was dissolved on 18 April 1946 and its mission was transferred to the
United Nations. The United Nations
is an international organization which has originated after the Second World
War. Since then its aims and activities have expanded to make it the
international body. The idea for the future United Nations as an international
organization emerged in declarations signed at the wartime. On June 26, 1945,
50 nations represented at the conference which was taking place in San
Francisco signed the United Nations’ Charter. The Charter came into existence
on October 24, 1945 after ratification of the Charter by the five permanent members of the
Security Council. The UN has also made several efforts to protect children’s
rights.
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. But only municipal laws are going to be discussed hereunder.
2.2.2. The
Constitution of United Republic of Tanzania of 1977.
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[34].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 Constitution provides
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 Tanzania. However the Constitution is too general, that is, it does
not mention the child directly.
2.2.3. 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.
2.2.4.
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 Tanzania has the law governing the issues of marriages and
families thereto. Under this there are several provisions which relate to
rights and welfare of children. In the Law of Marriage Act the term child have
been only be defined to mean child includes an adopted child[35] the interpretation of child in the Marriage
Act its very poor on the concept that it fails to provide the wide meaning on
whose is a child.
Also the law
provide for the minimum age of marriage under section 13[36]
that “no person shall marry who, being male, has not attained the apparent age
of eighteen years or being female has not attained the apparent age of fifteen
years” according to this section the family law should be amended cause the age
which they have specified for a person to get marriage its very law cause at
the community they are still regarded as minor.
Also under
Section 108(c) of the Law of
Marriage Act[37]
vests the duty to the court when hearing a petition for a decree of separation
or divorce to inquire into the arrangements made or proposed as regards the
maintenance and custody of the infant children of the marriage and to satisfy
itself that such arrangements are in the best interests of the children. Also
the Act insists to the court when deciding for the custody of children the
paramount consideration must be placed the paramount consideration shall be the
welfare of the infant[38].
2.2.5. 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, Tanzania has always been urged to enact a single and comprehensive children’s statute that would contain principles in the CRC and ACRWC. So recently, the state has pledged to abide to this proposal, and after the long journey it has enacted the single law of the child which has been framed to domesticate the international and regional instruments on the rights of the child, the new Act contains many aspects as provided under the CRC and ACRWC. It is argued that this new law has a broad range of coverage regarding rights and welfare of the children in Tanzania; however it seems to have some weaknesses (this will be discussed later).
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[39], the rights and duties of the child[40], the duties and rights of the parents[41], it lays down the system for justice when the child comes into contact with the legal system as the offender[42], a witness or victim, and provides for the protection for children who do not have families to be adopted or out in care[43], and many more protection concerning children’s rights.
2.2.5 The Penal Code [CAP 16 R.E. 2002]
The Act tries to come up with the issue of child and it somehow protect the children from criminal liability under section 15 of the Act[44] provide for the immature age that a person under the age of ten years is not criminally responsible for any act or omission but when at the time of doing the act he had capacity to know that he ought not to d the act. Also a male person under the age of twelve years is presumed to be incapable of having sexual intercourse. Despite of that the law did not elaborate on the meaning of child or children.
2.2.6 Employment and Labour Relation Act
2004
The acts define a child to mean a person under the age of 14 years; provided that for the employment in hazardous sectors, a child means a person under the age of 18 years. Also the law definitely under PART II Sub – Part A it stipulate the child labour it covers more about children and how they have been protected against child labour, first it prohibit a child of 14 years should not be employed but only to do a light work[45].Also the Act provide for some places which the child is not supposed to be employed to include in a mine, factory or as crew on a ship or in any other worksite.
2.2.7 The Law of Contract Act Chapter 345
The Contract Act did not define the term child but it rather point out the capacity of the person to enter into a contract under section 11 of the Act[46] stipulate the persons who are competent to contract who is of the age of majority according to the law to which he is subjected, and who is of sound mind, and is not disqualified from contract by any law to which he is subject. But the child of the age of 18 years and below is not competent to enter into a contract.
Not only that under section 211 of the Act[47] provided that a person who is a minor according to the law to which he is subject is not competent to be a partner in a firm. Under this section it eliminate the minor meaning a child from being a partner in a firm
2.2.6. Other Laws Relating to Rights of
Children in Tanzania.
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. Tanzania also has made the Child Development Policy of 1996 which puts forward the directives on the way forward on the development on the rights and welfare of the children in Tanzania.
2.2.7. 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.
FINDINGS
3.0 Introduction
In this chapter the researcher presents and
makes analysis of the data collected from different respondents such as judges
and Magistrates. Also, the researcher has collected the data from the members
of the Bar such as advocates in Mtwara region. The judges and magistrate have
been very important to this research because they deal directly in interpreting
the laws to the courts of law assisted by the Advocates. Therefore their
responds are very important in this research. The researcher preferred to use of qualitative
data analysis. The qualitative analysis involved factual and legal regime in
the country and its adequacy in regulating the protection and promotion of
children right in Tanzania.
3.1 Range of Protection Provided the Child Act of 2009
This part deals with the analysis of the Law of the Child Act[48] so as to ascertain the protection which is provided by this Act[49] 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 maintain children’s rights in Tanzania.
The first and foremost thing to
be observed from the Act[50]
is the Long Title of the Act[51]
which provides for the objectives of the Act[52],
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[53]
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[54] 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 which are Law of Marriage Act[55] defines a child to include an adopted child, under the Employment and Labour Relations Act[56] defines a child to means a person under the age of 14 years; provided that for the employment in hazardous sectors, child means under the age of 18 years. This hindered the maintenance, protection and promotion of children’s rights in Tanzania because children were treated differently from different laws and aspects. The current definition of a child goes hand in hand with those provided under several regional and international conventions dealing with children’s rights[57].
The Act[58] has clearly provided for the very important principle of “the best interest of the child” in all matters concerning children. Section 4(2)[59] 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[60]. 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[61] 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 [62].The Act[63] also provides for an offence to contravene those rights of the child, under Section 14 of the Act[64] 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[65] 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[67] 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[68]. Also Sections 18 and 19[69] 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[70].
The Act provides for foster care placement of the child[71]; 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 [72]. 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)[73], and international adoption[74]. 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 [75];. 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[76] 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[77]. 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[78] 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 the best interest of that apprentice[79]. Any dispute arising out of the apprenticeship agreement has to be referred to the Labour Officer of the District concerned[80].
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[81]. 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[82]. Also Section 95 of the Act[83] 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[84] 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[85]. Also under Section 33 the Act[86] 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, anyone 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[87] 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[88].
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[89] provides for the meaning of approved residential homes or institutions to include; children’s homes, retention homes, approved schools, crisis centers 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.[90]
Section 137(1) of the Act[91] 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 less than one hundred thousand shillings for each day on which the offence continues[92].
The other forms of institutionalized care which is provided by the Act[93] are through day-care centers (early childhood development centers 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[94].
The institutionalized care includes that from the prison authorities, Section 144 of the Act[95] 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[96] provide for the supervisions and inspections over the day-care centers and crèches, upon fulfilling this duty the District Social Welfare Officers have to keep and maintain registers of the registered day-care centers 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[97].
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[98]. Also Section 152 of the Act[99] 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[100] 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[101] 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 Centers 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[102]. 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 [103] The Education Act[104], the Employment and Labour Institutions Act[105], the Penal Code[106] and the Criminal Procedure Act[107]. 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[108] 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[109] 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[110].
Section 5 of the Employment and Labour Relations Act[111] 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[112]. Also Section 194 of the new Child Act[113] amends Section 188 by adding to its Subsection (2) which emphasizes on protection of the names and identities of children in criminal proceedings. Lastly the Act[114] 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 Mtwara 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[115]
provides for a wide coverage o matters concerning children’s rights in
From the structure of the Act[117] 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[118]. 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[119] 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[120] 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[121]; 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 Tanzania then the Act[122] itself lacks some amount of constitutional mandate. It is also argued that the most important norm for protection of children’s rights is the Constitution as there is usually the principle of constitutional supremacy thus in those states where these rights have been put into the constitutions provide for a framework for vindication of children’s rights[123].
The research has found that if
the Constitution could be having specific provision(s) then it could support
the Act[124]
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[126] (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[127] 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[128] 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 up the ongoing oppression and mistreatments of minors in Tanzania[129].
Also the Act[130]
does not have any direct and express provision(s) which puts a direct
obligation for the central government (the state) towards the issues of maintence,
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[132],
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[135]. 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 Tanzania primary and secondary education is free and compulsory as a short term plan, meanwhile there are suggestions to make secondary to be free and compulsory as a long term plan[136].
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[137].
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[138]. 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[139] 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[140]. 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[141]. 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[142].
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[143], the Penal Code[144], and the Criminal Procedure Act[145]. All the stated laws above are in one way or another recognize corporal punishment to 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[146].
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[147].
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[151].
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 well as undertaking of researches[152].
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 Mtwara 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
Mtwara is poor to the extent that it cannot help in improving the standards of
protection because more than 66% of the respondents said it is not good.
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[154], 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 Mtwara District 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 Mtwara is poor in some aspects hence to some extent fail to enforce the new law of the child. Many of the reported cases at Mtwara 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 cannot 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 cannot 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 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 in 2018 there were 158 cases concerning students being pregnant which are from primary and secondary school reported at Mtwara Police but most of this cases were closed by the police due the failure to gather sufficient evidence on such cases. Also from those cases which were brought to the court cases were pending before the court, cases were acquitted, cases were convicted, and cases were dismissed due to various reasons including; failure to prove prima facie cases ,or withdrawal by the prosecution[155].
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[156].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[157]. From this the researcher is of the view that, a person cannot 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 . Also the research has found that there is a tendency by the police officers in Mtwara 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, was alleged to have committed theft on 15th June, 2018 at Mtwara District, this child was brought before the court by the police despite the fact that investigation of this case to be incomplete[158]. This case was still pending before the court until September when this research was conducted[159]. This case was still pending before the court until September when this research was conducted.
Therefore from the above situations and facts it can be clearly observed that the police in Mtwara 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 Cases and 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[160]. 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 means 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 Mtwara 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 lose 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 Mtwara Resident Magistrate Court since 2018 were still pending before the court due to insufficient evidence. The other side of the court’s failure in enforcing the new law of the child can be observed when the courts in Mtwara 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[161].
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[162].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[163]. 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[164].
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 Mtwara District fail to observe some of these provisions, hence poor enforcement o the new law of the child. For instance the courts in Mtwara 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 Mtwara remand prison when they fail to get bail.
Not only that but also the researcher had an opportunity to visit the Mtwara District Resident Magistrate Court and the Mtwara 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[165].
Also the researcher through his visit to Mtwara Urban Primary Court he had 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, 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 Mtwara 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 Mtwara 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[166], 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[167]. 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[168] 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 Mtwara region. 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[169].Therefore because of not having juvenile remand facilities in Mtwara District then the child offenders are sent in prohibition for a month(s).
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 Mtwara 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.
3.2.4 Approach of the social 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[170]. 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[171], 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[172].Not only that but the social welfare officers must be present during all the proceedings in the juvenile courts[173].
As the case to the other law enforcers the social welfare officers in conducting their duties they 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 Mtwara Social Welfare Office where he has found that there are some weaknesses regarding enforcing the new law of the child.
The research has also found that at the office there was no many cases concern 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 Mtwara 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[174].
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 Mtwara 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 Mtwara 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 Mtwara 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.
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 was at least aware of the new law and this was after the researcher
to have explained to them. It 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.
From this it can clearly be seen that, it is not easy for the children at Mtwara 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[175], whilst tradition is the past customs and usages that influence or govern present acts or practices[176]. 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 Mtwara 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 atMtwara District (this is shown in Table I).
One among the very common customs existing at Mtwara District which is mainly practiced by forcing or allowing the child girls to enter into early marriages, this is done so as to get dowries which in most cases. 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 Paralegal Mtwara Branch, he told the researcher that on this practice of early marriages they get a lot cases on child abuse.
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.
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 Tanzania and in Mtwara in particular. This research has found that this law has some weaknesses hence contributes to child abuse in Mtwara.
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. However the researcher after conducting a thorough analysis on the new law he has found several weaknesses.
3.3.4 Other Factors.
Despite of the afore mentioned
factors to be the most contributing factors on violation of children’s rights
in Mtwara 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 be 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 Mtwara 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 Mtwara. This means that there are some of the persons who infringe or fail to maintain, promote and protect children’s rights despite of them to be aware of the same for the reason of neglect.
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 cannot 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 Mtwara 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.
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
3.5 Conclusion.
The researcher has found that maintenance, 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 itself 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. Therefore, it seems that the aim of the legislature is much hindered.
CONCLUSION AND RECOMMENDATIONS
4.1 Conclusion.
Protection, promotion and
maintenance of children’s rights under human rights passed a very long process
until they are today; the process started before the establishment of the League
of Nations and the U.N. However under the U.N these rights seemed to have a
special consideration under which several international and regional
instruments have been made regarding the same.
Tanzania has ratified many of these instruments and made many efforts in adopting for the same. However for many years in Tanzania the issue of children’s rights faced several problems, among them were multiple laws governing these rights; this led to much confusion on interpretation and enforcement of those laws hence detrimental Tanzanian children. For that the parliament passed the Law of the Child Act in 2009 to accommodate all matters regarding children’s rights and welfare in Tanzanian, it also amend and repeal some of the laws which seemed to be inconsistent. This was done generally for the purpose of going in line with the international and regional instruments regarding children’s rights, also to increase protection and promotion of these rights and standards.
Despite of the expectations that the law would curb the abuse to children in Tanzania, violations still persist in the society. This was the essence of this study which was conducted at Mtwara District and revealed that the law provides for an exhaustive protection despite of some weaknesses as shown in previous chapter. The foremost problem observed is poor enforcement, this is due to many reasons such as ignorance of the law by the public, customs and traditions, lack of resources and political will, poverty, neglect of the law, weaknesses of the law enforcers as well as of the law itself.
4.2 Recommendations
In order to stabilize the law
and to improve promotion and protection of rights and welfare of children in
Tanzania the research has the following recommendations:-
(i) Inclusion of the Article(s)
in the Constitution of United Republic of
Tanzania 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 Tanzania.
(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 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.
REFERENCE
BOOKS
I.G, Shivji, etal
(2004) Constitutional and Legal System of
Tanzania: A Civic Sourcebook,
C.J, Mashamba etal, (2009) Tanzania Human Rights Report of 2008
C.J, Mashamba
etal,(2003) Report on the Findings of the
Research on Administration of Juvenile Justice,
C.P, Maina etal,(2010) Tanzania Human Rights Report of 2009,
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
J. Marenga &
I. Nchimbi (2009). “Child Care and
Protection in Tanzania:
STATUTES
Tanzania Statutes
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
The Constitution of United Republic Of Tanzania of 1977.
The
Basic Rights and Duties Enforcement Act No.33 of 1994.
The
Criminal Procedure Act [Cap 20 R.E 2002]
The Corporal Punishment Act [Cap 17
R.E 2002]
G.N No. 294 of 2002.
International Statutes
African Charter on Human and Peoples' Rights (The Banjul Charter) Of 1981.
The Universal
Declaration of Human Rights of 1948.
The
Convention on the Rights of the Child of 1989.
The African Charter on the Rights and Welfare of the Child of 1990.
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
CASES
Faulkner
V. Sutton (1927)1Q.B 207
Minister
For Immigration and Ethics Affairs V. Ah Hin Teoh (1995) HCA. 20.
Mokamambogo
V. Republic(1971)HCD. 63
Ramesh
Rajput V. Mrs. Sunanda Rajput (1988) T.L.R 96
JOURNALS
Policy
Statement No.20 of the Child Development Policy, 1996
ELECTRONIC SOURCES
www.Law.JustAnswer.com
www.unicef.org/infobycountry/tz
http:// wwww. the citizen. co. tz/news/4-national news.
Dear
Respondent
I
am Mariam Mabina .E. a Law Candidate at Stella Maris Mtwara
University College (A constituent of
Saint Augustine University of Tanzania)Undertaking bachelor of Law Degree
(LL.B), currently I am conducting a research titled " An Examination of The Law And Practices Relating To Child
Maintenance In Tanzania." A case study at Mtwara
It is a pleasant request for your
assistance, as success and positive end of this research depends on your
assistance. Understanding the nature of your duties and the day today
activities may I request out your limited time to respond to the set of the
questions below at the best of your knowledge. Be informed, all the revealed
information are only limited in the fulfillment of the research and shall only
be used for academic purposes.
Thanks
in Advance.
PART
A: PARTICULARS OF THE RESIPONDENT
a.
Name..........................................................
b. Gender: Male [ ] or female [ ] put a tick [V] in the appropriate
box
c.
Age.............................................................
d.
Occupation..................................................
e. Marital
Status..............................................
f.
Address.......................................................
PART
B: SAMPLE OF QUESTIONNAIRES
From item (i-ix) put a
tick to the appropriate box [V] and answer accordingly.
(i) Do you know
anything about the child maintenance? Yes [
] or No [ ] If Yes to what
extend do you know
......................................................................................................................................................................................................................................................................................................................
(ii) Do you think there
is protection of children right in Tanzania?
Yes [ ] or No [ ] if Yes why and If No why,
..............................................................................................................................................................................................................................................................................................................
(iii) Is there
violation of children right in Tanzania [
] or No [ ] if Yes, if Yes How
and Why?
........................................................................................................................................................................................................................................................................................................................
(iv) Do you know any
law regulating the children maintenance in Tanzania? Yes [ ] or No
[ ] if yes, which law/s are they?
...............................................................................................................................................................................................................................................................................................................
(v) Are you satisfied
with the way those laws are interpreted?
Yes [ ] or No [ ] if No Why?
............................................................................................................................................................................................................................................................................................................
(vi)Are the rules laid
down to interpret the children maintenance sufficient to the contemporary
political system Yes [ ] or No [ ]
(vii)What do you think
the problem which they still face
children while there is a law governing them
.............................................................................................................................................................................................................................................................................................................
(viii).What is your
comment/s on the effectiveness of the law regulating the children maintenance
in Tanzania ?
..........................................................................................................................................................................................................................................................................................................................................................................................................................................................................
(ix) What do you think
will be the most appropriate way/s on avoiding the violation of children right
............................................................................................................................................................................................................................................................................................................................................................................................................................................................................
APPENDIX
B
PART
A: PARTICULARS OF THE RESIPONDENT
a.
Name..........................................................
b.
Gender: Male [ ] or female [ ] put a tick [V] in the appropriate
box
c.
Age.............................................................
d.
Occupation..................................................
e.
Marital Status..............................................
f.
Address.......................................................
PART C: SAMPLE OF INTERVIEW QUESTIONS
From
item (i-vii) Put the tick in the box and answer accordingly.
(i). How long did you work in your Career
(Circle the appropriate answer)
(a) Less than 10 years (b) More than 10 but
less than 20years (c) More than 20 Years
(ii). Are there any challenges facing you
while performing your duties in connecting with your career? Yes [ ] or No [
] If yes, please mention them
........................................................................................................................................................................................................................................................................................................................
(iii).
Do the politicians have the hands on your daily legal duties? Yes [ ] or No [
] If any, what are they?
………………………………………………………………………………………………………
............................................................................................................................................................
(iv).
Are there any laws/rules regulating children maintenance? Yes [ ] or No [
] If yes, what are they?
...................................................................................................................................................
............................................................................................................................................................
(v).
If the answer in roman (IV) above is affirmative, are the laws/rules regulating
the children maintenance? Yes [ ] or No
[ ] if No why?
................................................................................................................................................................................................................................................................................................................
(vi)
Do you get any difficulties in interpreting the law regulating the children
maintenance? Yes [ ] or No [ ] If Yes, How?
.........................................................................................................................................................................................................................................................................................................................................................................................................................................................................
(vii).What
is your comment/s on the effectiveness of the law regulating the children
maintenance..........................................................................................................................................................................................................................................................................................................................................................................................................................................................................
Thanks for your great
response and assistance.
[1] Policy Statement No.20 of the Child Development Policy, 1996
[2] (1927)1Q.B 207
[3] Section 4 of the Child Act No. 21/2010 and Article 1 of the CRC,1989
[4] www.Law.JustAnswer.com
[5] www.Law.JustAnswer.com
[6] I.G, Shivji, etal (2004) Constitutional and Legal System of Tanzania: A Civic
Sourcebook, pg.159
[7] I.G, Shivji
etal (2004)op.cit, pp.161.
[8] I.G, Shivji, etal (2004) Constitutional and Legal System of Tanzania: A Civic Sourcebook, pg. 162
[9] I.G, Shivji, etal (2004) Constitutional and Legal System of Tanzania: A Civic Sourcebook,
pg 162
[10] C.J, Mashamba etal, (2009) Tanzania Human Rights Report of 2008, pp.191-192.
[11] I.G, Shivji etal (2004) op.cit, pg 166
[12] I.G, Shivji, etal (2004) Constitutional and Legal System of Tanzania: A Civic Sourcebook, pg.167.
[13] I.G, Shivji, etal (2004) Constitutional and Legal System of Tanzania: A Civic Sourcebook, pg.167
[14] A.M, Mukaine (2009) “Children’s Right to Education: A
Case Study of Kyela District”, pg.7.
[15] Criminal Case No. 118/1999, Magu District Court, (Unreported).
[16] C.J, Mashamba etal,(2003) Report on the Findings of
the Research on Administration of Juvenile Justice,pg.16.
[17] C.P, Maina etal,(2010) Tanzania Human Rights Report of
2009,pg.85.
[18] C.P, Maina etal,(2010) Tanzania Human Rights Report of
2009,pg pg.89.
[19] C.J, Mashamba etal (2009) op.cit, pg.97
[20] High Court of Tanzania-Singida, (PC) Civil Appeal No.
34/1991 (Unreported)
[21] The Child Law Act No.21 of 2009
[22] www.unicef.org/infobycountry/tz.
[23] No.21 of 2009
[24] C.P, Maina etal, (2010) pg.3
[25] http://www.google.co.tz/books/children’s rights-history
[26]. http://www.google.co.tz/books/children’s rights-history
[27] http://www.google.co.tz/books/children’s rights-history
[28] http://www.google.co.tz/books/children’s rights-history
[29] I.G Shivji, etal (2004) op.cit, pg 160.
[30] http://www.google.co.tz/books/children’s rights-history
[31] http://www.google.co.tz/books/human rights-history
[32]. http://www.google.co.tz/books/human rights-history
[33] Principles 1-5 of the Declaration of the Rights of the Child of 1924
[34]
Article 139(2) of The Constitution of United
Republic of Tanzania of 1977.
[35] Section 2 of the Law of Marriage Act [CAP 29 R.E 2002]
[36]The Law of Marriage Act [CAP 29 R.E 2002]
[37] Law of Marriage Act No. 69 of 1971.
[38] Section 125(2) of the Law of Marriage Act, 1971
[39] Section 4 of Law of the Child Act, 2009
[40] PART II of Law of the Child Act, 2009
[41] PART V of Law of the Child Act, 2009
[42] PART IX of Law of the Child Act, 2009
[43] PART V I of Law of the Child Act,2010
[44] The Penal Code [CAP 16 R.E. 2002 ]
[45] Section 5 (2) of the ELRA 2004
[46] The Law of Contract Act [CAP 345 R.E 2002 ]
[47] The Law of Contract Act [CAP 345 R.E 2002 ]
[48] NO.21 of 2009
[49] The Child Act NO.21 of 2009
[50] The Child Act NO.21 of 2009
[51] The Child Act NO.21 of 2009
[52] The Child Act NO.21 of 2009
[53] The Child Act NO.21 of 2009
[54] The Child Act NO.21 of 2009 `
[55] 1971 [ CAP 29 R.E. 2002 ]
[56] NO.6 of 2004 section 4
[57] Article 2 of ACRWC and Article 1 of the CRC.
[58] The Child Act NO.21 of 2009
[59] The Child Act NO.21 of 2009
[60] 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.
[61] 1989
[62] Sections 5,6,7,8,9,10,11,12, 13 and 26 of the Law of the Child Act, 2009.
[63] The Child Act NO.21 of 2009
[64]The Child Act NO.21 of 2009
[65] The Child Act NO.21 of 2009
[66] The Child Act NO.21 of 2009 Section 15.
[67] The Child Act NO.21 of 2009
[68] The Child Act NO.21 of 2009Section 17.
[69] The Child Act NO.21 of 2009
[70]The Child Act NO.21 of 2009 Section 23.
[71] The Child Act NO.21 of 2009Sections 27(1), and 53.
[72] The Child Act NO.21 of 2009 Sections 36(4) and 41.
[73] The Child Act NO.21 of 2009 Section 54 (3).
[74]The Child Act NO.21 of 2009 Section 74.
[75] The Child Act NO.21 of 2009 Sections 34 and 35.
[76] The Child Act NO.21 of 2009
[77] The Child Act NO.21 of 2009 Sections 77, and 83.
[78] The Child Act NO.21 of 2009
[79] The Child Act NO.21 of 2009 Section 89.
[80] The Child Act NO.21 of 2009 Section 93.
[81] The Child Act NO.21 of 2009Section 94.
[82] The Child Act NO.21 of 2009Sections 94 (7) and 96.
[83] The Child Act NO.21 of 2009
[84] The Child Act NO.21 of 2009
[85] The Child Act NO.21 of 2009 Sections 99 and 101.
[86] The Child Act NO.21 of 2009
[87] The Child Act NO.21 of 2009
[88] The Child Act NO.21 of 2009 Sections 104,116,118 and 119.
[89] The Child Act NO.21 of 2009
[90] The Child Act NO.21 of 2009 Sections 132,133,134,135 and 136.
[91] The Child Act NO.21 of 2009
[92] The Child Act NO.21 of 2009 Sections 138 and 146.
[93] The Child Act NO.21 of 2009
[94] The Child Act NO.21 of 2009 Sections 3,147 and 149(2)&,(3)&(4).
[95] The Child Act NO.21 of 2009
[96] The Child Act NO.21 of 2009
[97] The Child Act NO.21 of 2009, Section 151.
[98] The Child Act NO.21 of 2009 Sections 152,153 and 157.
[99] The Child Act NO.21 of 2009
[100] The Child Act NO.21 of 2009
[101] The Child Act NO.21 of 2009
[102] The Child Act NO.21 of 2009
[103] [Cap 29 R.E 2002],
[104] [Cap 353 R.E 2002]
[105][Cap 366 R.E 2002]
[106] [Cap 16 R.E 2002]
[107] [Cap 20 R.E 2002]
[108] [Cap 353 R.E 2002]
[109] [Cap 353 R.E 2002]
[110] The Child Act NO.21 of 2009 Sections 168 and 169.
[111] [Cap 366 R.E 2002]
[112] The Child Act NO.21 of 2009, Section 174.
[113] The Child Act NO.21 of 2009
[114] The Child Act NO.21 of 2009
[115] The Child Act NO.21 of 2009
[116] The Child Act NO.21 of 2009
[117] The Child Act NO.21 of 2009
[118] 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.
[119] The Child Act NO.21 of 2009
[120] The Child Act NO.21 of 2009
[121] 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.60.
[122]The Child Act NO.21 of 2009
[123]
C.J. Mashamba (2009). “Domestication of international children’s rights norms
in
[124] The Child Act NO.21 of 2009
[125] J.S Nielsen (2006) op.cit, pg.58.
[126] The Child Act NO.21 of 2009
[127] The Child Act NO.21 of 2009
[128] The Child Act NO.21 of 2009
[129] http:// wwww. the citizen. co. tz/news/4-national news.
[130] The Child Act NO.21 of 2009
[131] Article1(1) of ACRWC and Article 4 of CRC.
[132] 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.
[133] 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].
[134] Articles 17(2) (c)(iii) of the ACRWC and Articles 20,37(d) and 40 (2)(b)(iii)of the CRC.
[135] Section 8 (1) of the Law of the Child Act, 2009.
[136] C.J Mashamba (2010) Introduction to Family Law in Tanzania, pg.126.
[137]
C.J. Mashamba (2009). “Domestication of international children’s rights norms
in
[138] Cap 433 R.E 2002.
[139] The Child Act NO.21 of 2009
[140] Paragraph 11 of the General Comment No. 8/2006 of the U.N Committee on Rights of the Child.
[141] Section 60 of the Education Act [Cap 353 R.E 2002]
[142] G.N No. 294 of 2002.
[143] Cap 17 R.E 2002.
[144] Cap 20 R.E 2002.
[145] Cap 16 R.E 2002.
[146] Sections 2, 7 and 8 of the Corporal Punishment Act [Cap 17 R.E 2002]
[147] 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.
[148] http://en. wikipedia.org./wiki/ombudsman
[149] http://en. wikipedia.org./wiki/ombudsman
[150]Article 129 of the CURT,1977 [Cap 2 R.E 2002]
[151] 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
[152] 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 137.
[153] Section 119 of the Law of the Child Act, 2009.
[154] Section 27 of the Police Force and Auxiliary Services Act [Cap 322 R.E 2002]
[155] Sections 98, 224 and 230 of the Criminal Procedure Act
[Cap 20 R.E 2002]
[156] Section 94 (7) of the Law of the Child Act of 2009.
[157] Law of the Child Act of 2009 Section 103(1).
[158]Mtwara Police Investigation Report No.2060/2018.
[159] R. V. Khamis
s/o Nyerere Criminal Case No. 306/2018, Mtwara Primary Court, (Unreported).
[160] Article 107A (1) and (2) of the CURT, 1977.
[161] Sections 97, 98, 99 and 100 of the Law of the Child
Act,2009.
[162] Law of the Child Act, 2009 Section 103 (1) and (2).
[163] Law of the Child Act, 2009 Section 104.
[164] Law of the Child Act, 2009 Section 119.
[165] (1971)HCD. 63
[166] Section 104 of the Law of the Child Act, 2009.
[167] Law of the Child Act, 2009, Section 119.
[168] Law of the Child Act, 2009
[169] 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.
[170] Section 94 (1) and (2) of the Law of the Child Act,
2009.
[171] Law of the Child Act, 2009 , Sections 18-19.
[172] Law of the Child Act, 2009 , Section 94(3),(4),(5),(6)
and (7).
[173] Law of the Child Act, 2009 Section 99(1)(d).
[174] J. Marenga& I. Nchimbi (2009). “Child Care and
Protection in Tanzania: Comparing the CRC and the Newly Enacted Law of the
Child Act (2009)” In: C.J Mashamba, etal (eds) Justice Review, Vol. 8
No. 2, pg.69.
[175]B.Garner (2004) Black’s Law Dictionary, 8thedn;
pg.413.
[176]; B.Garner (2004) Black’s Law Dictionary, 8thedn; pg. 1534.
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