The National Network of Organizations Working with Children
THE NON- GOVERNMENT ORGANISATIONS’ REPORT ON THE
IMPLEMENTATION OF THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD
IN TANZANIA
December, 2005
Presented by:
The National Network of Organizations Working with Children (NNOC)
P.O. Box 80232 Dar es Salaam Tel/fax. +255 22 2667505, 0741212178,
email:
Acknowledgements
This report is a product of numerous efforts imbued together. It began in August 2003 when NNOC members were developing their four year (2004 – 2007) strategic plan, NNOC is grateful for the inspiration and support of these efforts which are the sources and the roots of this report.
NNOC is also grateful to Kimanga Women and Health Development Center (KIWOHEDE); kuleana Centre for Children’s Rights; Legal and Human Rights Centre (LHRC); National Organization for Legal Assistance (nola); Save the Children (UK); St Alban’s Street Children’s Society; Tanzanian Women Lawyers Association (TAWLA); Women’s Legal Aid Centre (WLAC); and Youth Culture and Information Center. These organizations were deeply immersed in the entire process from pulling ideas and minds together, collecting and sharing data through to evolvement of this report.
For the development and production of this report NNOC feels a deep sense of gratitude to:
i.)Its Steering Committee members and the coordinator who together worked tirelessly to make sure this activity suffices.
ii.)Its forty four members countrywide and especially Mkombozi Street Children’s Center for their interest and insights in sharing their, time, practical experiences, lessons learned editorial suggestions, and feedback in the process of writing this report.
iii.)UNICEF for its financial and technical support.
iv.)Ms. Rehema Kerefu for her time, skill, and carefulness in writing this report.
v.)Children, who by the virtue of working with and for them have taught us lessons in which the value and power of writing this report emerged,
NNOC is also grateful to Plan International, UNICEF and the CRC committee to finance the traveling to Geneva of five delegates to present this report in the Pre session.
It is not that easy to name every effort and individual who played an active role in the development and production of this report but NNOC sincerely extends it’s gratitude to all those in one way or another made the contribution in the accomplishment of this report.
Table of contents
Acknowledgements......
Acronyms......
Executive Summary......
Cluster 1 - General Measures of Implementation......
1.Legislation
NGO report on the situation......
Recommendations......
2. Coordination......
NGO report on the situation:......
Recommendations:......
3. Data Collection
NGO report on the situation:......
Recommendations:......
4. Independent Monitoring Mechanisms
NGO report on the situation:......
Recommendations:......
5. Allocation of Budgetary Resources:
NGO report on the situation:......
Recommendations:......
6. Dissemination of The Convention
NGO report on the situation:......
Recommendations:......
Cluster II - Definition of The Child
NGO report on the situation:......
Recommendations:......
Cluster III - General Principles
1. Non - Discrimination
NGO report on the situation:......
Recommendations:......
2.Best Interest of The Child
NGO report on the situation:......
Recommendations:......
3. Right to Life, Survival and Development......
NGO report on the situation:......
Recommendations:......
4.Respect For The Views of The Child
NGO report on the situation:......
Recommendations:......
Cluster IV - Civil Rights And Freedoms......
1. Birth Registration
1.2 NGO report on the situation:......
Recommendations:......
2. Police Brutality: Covered Under Section 8.4 Juvenile Justice
3. Corporal Punishment
NGO report on the situation:......
Recommendations:......
Cluster V - Family Environment And Alternative Care
1. Children Deprived of Their Family Environment (Adoption and Foster)
NGO report on the situation......
Recommendation......
Cluster Vi - Basic Health And Welfare
1. The Right to Health and Access to Health Service
NGO report on the situation:......
Recommendations:......
2. Female Genital Mutilation
NGO report on the situation:......
Recommendations:......
3. Children With Disabilities
NGO report on the situation:......
Recommendations:......
4. Right to an Adequate Standard of Living
NGO report on the situation:......
Recommendations:......
Cluster VII - Education, Leisure And Cultural Activities
1. Right to and Aims of Education
NGO report on the situation:......
Recommendations:......
2. Leisure And Cultural Activities
NGO report on the situation......
Recommendation......
Cluster VIII - Special Protection Measures
1. Refugees, Asylum - Seeking Children and Unaccompanied Children
NGO report on the situation:......
Recommendations:......
2. Economic Exploitation
NGO report on the situation:......
Recommendations:......
3. Sexual Exploitation And Sexual Abuse......
NGO report on the situation:......
Recommendations:......
4. Administration of Juvenile Justice & Police Brutality......
NGO report on the situation:......
Recommendations:......
References
Acronyms
ACRWCAfrican Charter on the Rights and Welfare of the Child
ARV’sAntiretroviral
CHFCommunity Health Fund
CRCConvention on the Rights of the Child
CYPChildren and Young people
DEDDistrict Executive Director
ESDPEducation Sector Development Plan
ETPEducation and Training Policy
FGM Female Genital Mutilation
LGALocal Government Authorities
JCURTJunior Council of the United Republic of Tanzania
IMCAIntegrated Management of Childhood Illness Programme
IECInformation Education Communications
ITNInsecticide Treated Nets
MCDGC Ministry of Community Development, Gender and Children
MoECMinistry of Education and Culture
NSGRPNational Strategy for Growth and Reduction of Poverty “MKUKUTA”
NNOCNational Network of Organizations Working with Children
OVCOrphans and Vulnerable Children
PEDP Primary Education Development Plan
SEDPSecondary Education Development Plan
SOSPASexual Offences Provisions Act
TSED Tanzanian Social Economic Database
Tshs.Tanzanian Shillings (currency)
UNICEF United Nations Children’s Fund
URT United Republic of Tanzania
VCTVoluntary Counselling and Testing
Executive Summary
In a society where more than 50% of the population are children and young people, the upholding of children’s rights should be a national priority, since it is a vital means through which individual and national development will be achieved. This NGO report details on the progress and level of implementation of the CRC in Tanzania and how the whole process had and is affecting children and young people in both human and child rights.
The United Republic of Tanzania (URT) is a common law country, and thus bears a dualistic legal system whereby international and domestic law are regarded as different but interconnected systems. This means Tanzania is obliged by international law to translate certain international instruments into domestic legislation. Despite such obligation, Tanzania has in fact not undertaken this process of translation particularly with respect to juvenile justice; therefore, international instruments cannot be cited at court. The important point here is that, irrespective of Tanzania’s failure to translate international law into domestic legislation, the obligation still stands that the court must safeguard and apply the letter and the spirit of international instruments that have been signed, acceded or ratified by the Government of Tanzania.
Since among the objectives of the National Network of Organizations Working with Children, (NNOC) is to monitor, document and share effects of policies and practices on children, the NGO report is among many o0f the activities in fulfilling this objective.
In response to the government report presented to the CRC Committee on August 2004. The report consist of eight clusters: i.) General measures of implementation; ii.) Definition of a child iii.)General Principles iv.)Civil Rights and Freedoms; v.)Family Environment and alternative care; vi.)Basic Health and Welfare vii.)Education, leisure and cultural activities and viii.)Special protection measures. These clusters have been discussed and presented in threefold featuring:
1The review of the CRC recommendations, measures taken to harmonize the law, policy and practice with the principles and standards of CRC, the real situation from the ground and the recommendation from the civil society.
2An independent assessment of the progress and complexity stumble upon in the implementation of the CRC.
3The additions of missing data presented by the government report to support a candid assessment the implementation of the CRC.
Generation of this Report
This report draws its legitimacy from the forty four NNOC member Organizations participated in the preparations of the same. Also NNOC hired one consultant with a range of experienced in childcare and protection, knowledgeable on government processes, the legislative and policy framework and community based involvement and interventions. The consultant worked closely with NNOC in the compilation and preparation of this report.
Before the development of this report, there were different consultations with NNOC member organizations and other key stakeholders. Literature review was also conducted through looking at the government policy documents, laws, reports by the government and other agencies, NGOs studies, programmes and national strategic plans. The information collected was assessed and analyzed to produce the draft report, which was discussed with NNOC members, and final report was generated.
Cluster 1 - General measures of Implementation
1.Legislation
The CRC Committee requested the Tanzanian government to reinforce its efforts to ensure that domestic laws, including Islamic and Customary Law, fully conform to the provisions and principles of the Convention on the Rights of the Child. The committee also encouraged the state party to consider adopting a comprehensive children’s code, which would include the principles of the Convention, with a view to enhancing a right-based approach.
1.1 The Government reported that it has undertaken several measures to ensure that domestic laws, Islamic and Customary Laws conform to the principles of the CRC
The state has been in the process of enacting a single Children’s Legislation. This process started in 1994 when the Law Reform Commission submitted its report on the study of laws relating to children.
1.2 NGO Report on the Situation
The Government solicited a range of inputs and views from Civil Society in the drafting of a single Children’s Act. Civil Society keenly acted this upon, with ‘ideal’ statute that is in line with the CRC submitted by NNOC. Since then communication between the Parliamentary Draftsman and Civil Society has been limited and opaque. The process of finalising the legislation appears to have stalled with the publishing of a White Paper, but it is hard to gain accurate or clear information about the situation. The process of developing this legislation has now taken 11 years since the initial review of laws. To date no Children’s Statute is in place. While children are suffering from contradictory and discriminatory laws. Many existing children legislations are outdated, inadequate and do not cater for the needs of children. For example: The main child governing legislation - the Children and Young Persons Ordinance Cap 13- dates back to the colonial period (1937), when British colonial authorities enacted laws to sustain the emerging colonial system (and not to foster the welfare of vulnerable children). This means that the Children and Young Persons Ordinance was established and enacted 52 years before principles of juvenile justice were first articulated and enshrined by the primary child protection body, the UNCRC.
On the other hand the Affiliation Ordinance Cap 278, which provides for the maintenance of the children born outside of the wedlock, was adopted in 1949 during colonial times. Section 5 of this legislation gives power to the Court to issue maintenance order to a person alleged to be a putative father of a child born out of wedlock. It provides for a monthly maintenance of that child to be Tshs. 100/= equivalent to 0.083 USD. The amount, which is not adequate to care and maintain the said child. The same Legislation provides for the cessation of the maintenance order that, the putative father can maintain the child until he/she reaches the age of 16 years old or upon application the magistrate may order cessation when the child is 14 years. It is true that at these ages the child is still a school going child hence need the assistance from his father. Generally this law does not carter for the current changing economic condition and has contributed to generate street children, as parents are not held legally responsible for their children maintenance.
The Law of Marriage Act 1971 is another legislation impacting on children rights. Section 13 of this law provides for the minimum age of the parties to marriage. The male must have the apparent age (not necessarily actual) of eighteen years (18) and a girl fifteen years (15). Under the same section, the court is given a discretion, on application, to give leave to marriage where both parties have attained the age of fourteen (14). Section 17 provides for requirement of consent of parents or guardian or court where the girl has not attained the apparent age of eighteen (18).
From the above, it is very clear that this law allows children to be married through consent/will of their parents, guardian or court. Therefore, it expose children to sexual activity and sexual abuses at an early age It also imposes a burden on children to become parents at a tender age, hence giving them difficulties in maintaining children and becoming responsible parents. The law does not protect the children from HIV and STDs vulnerability because the minimum stipulated age for a girl child and that of a boy child (under special circumstances) fall within the ambit of the age of a minor. There is also no mechanism to check discretion of the court in granting leave or consent to marriage.
Likewise, it is problematic that Tanzania maintains the Removal of Undesirable Persons Ordinance and (certain provisions of) the Criminal Procedure Act - both of which were found by Nyalali Commission of Inquiry to be “repressive legislation”. Indeed, national legislation that is uninformed by current principles of human and child rights is not socially relevant or appropriate, and actually contradicts currently recognised humanitarian principles by propagating practices such as the arrest of street children for loitering and vagrancy”. Where domestic law protects children it is often incorrectly and inconsistently enforced for example in the case of Republic VS Mohamed Abdullah 1999, the Magu District Court in Mwanza region misconceived the criminal liability of the 9 years old child and held him criminally liable and sentenced him to life imprisonment , The facts of the case are as follows:
“Mohamed Abdullah was on the 15th June 1999 charged with the offence of rape contrary to section 130(1) and 2(e) and section 131(2)(a) of the penal code as repealed and replaced by the Sexual Offences Special Provision Act, 1998. At that time Mohamed was aged 9 years old and living with his parents at Nyalikungu village in Magu district.. The incidence occurred on April 1999 at or around 11.35a.m when Mohamed was to have unlawfully procured sexual intercourse with one girl aged 5years old, while in the course of child playing chores. Sometimes later, when the girl returned home, her mother examined her daughter and discovered that someone had raped her. She subsequently reported the incident at Magu police station where she was eventually given police form (PF 3) that enabled her daughter to be treated at the Magu district government hospital. Upon that information the police set out to arrest Mohammed and later file the case at Magu District Court before Hon. DMF Kamalano. He convicted the boy on his own plea of guilty, and sentenced him to life imprisonment at Butimba jail in Mwanza”
The sentence draws attention to the media, human rights activists and the public in general. The civil societies made a follow up to the zonal office of the attorney general and procured the high court revision order that quashed the prejudicial decision. This case illustrate that there are magistrates who lack skills and trainings of handling juvenile justice cases.
In the cases of arrest and detention of children, laws, regulation and procedures are not properly adhered. This was evidenced by Arusha Street child rounds ups where by it was observed that street children have been detained for over a month in September 2001, for several weeks in May 2005 and for a night on August 26, 2005.It is remarkable also that in each of these round-ups, the children were detained together with adults in direct contravention of Section 5 of the Children and Young Persons Ordinance. It was also reported in the Freedom of House report that “…Arrest and pre-trial detention laws are often ignored. Prison conditions are harsh, and police abuses are …common.”
The lack of a unified Children’s Act continues to be exacerbated by the existence and routine practices of customary and Islamic laws. For example, the customary laws of inheritance discriminate girls and boys in the rights to inherit. Girls are grade three heirs against boys who are grades one and two. Under the same law girls are not allowed to inherit clan land and all other immovable properties and what they can inherit as grade three heirs is very small compared to what boys get. Under Islamic law of inheritance daughters are ordained to inherit half of what their brothers inherit.