Author Njeri K Omesa
This brief is written with thanks to Miendert Shaap of Amani Centre who brought the proposed amendments to the Education Act to the attention of child rights activists in Tanzania through his piece published on Linkedin.
Tanzania has been in the spotlight recently with celebrations of a historical decision by the High Court banning child marriage. A Bill supplement dated 20th May 2016 provides for amendments to various Tanzanian laws. This commentary looks at some of these proposed amendments in relation to the rights of children. Specifically, it considers the Education Act, the Law of the Child Act, and the Evidence Act. These amendments provide an advocacy opportunity for civil society actors in engaging with law makers to ensure the laws enacted keep the best interest of every child as their central consideration at all times.
My own reading is that these amendments have both positive and negative implications for children’s rights. For instance, the prohibition on marrying school boys or girls is positive, but it also limits the protection of those children who are not enrolled in school. The amendment of the Law of the Child Act provides for better protection of minors in conflict with the law, but continues to permit the use of corporal punishment, which is inherently counter to the child’s right to dignity.
COMMENTARY ON AMENDMENTS TO THE EDUCATION ACT (CAP 353)
The amendment prohibits any person from marrying or impregnating a primary or secondary school girl or boy and sends out a strong message that child marriage is unacceptable. This amendment makes any person who is found guilty of impregnating a primary or secondary school girl liable to serve a term of 30 years in prison. It also makes it an offence to encourage or permit a schoolboy or girl to marry while they are pursuing their education.
Although this is a positive development, as Tanzania has one of the highest rates of child marriage in the world, child rights actors in Tanzania feel that there are gaps in the Law because it does not protect children who are not in school. Many children are driven to live on the streets due to violence and exploitation that they experience at home or in schools. These children face multiple risks and receive little or no protection from the law or social services. These amendments are also silent in cases when the girl child is blocked from completing her education after she has fallen pregnant.
COMMENTARY ON AMENDMENTS TO THE EVIDENCE ACT (CAP 6)
An amendment to section 127 of the Evidence Act (CAP 6) takes into consideration that evidence given by a child of tender age in any criminal proceedings need not be corroborated. It provides a basis for the evidence of children to be accepted without taking an oath or making an affirmation. This is a positive development as in many cases, the previous provision requiring that the evidence of a child be supported by other material has hindered the prosecution of those who violate the rights of children.
COMMENTARY ON AMENDMENTS TO THE LAW OF THE CHILD ACT (CAP 13)
Amendments to the section 100 of Law of the Child Act provides that a juvenile court can seek the opinion and recommendation of the social welfare officer during the proceedings as well as before passing sentence on the minor accused of a crime. The amendments of section 103 by substituting police officer for public prosecutor corrects an error in the previous wording and refines the trial process as the office of the public prosecutor is the department charged with the institution of proceedings. It further provides that matters before the juvenile court must be disposed of on the same day. It also allows for adjournment of the matter to another day and release of the minor on bail. If upheld, the speedy disposal of matters before the juvenile court will reduce the lengthy trial period for children in conflict with the law that is characterized by multiple mentions. However, the requirement for bail can be tricky, especially in the case of children living on the streets who have no property that can be attached as part of the bail.
It amends section 119 by stressing that not withstanding any provisions in any written laws, a child shall not be sentenced to imprisonment. However, it goes further to allow for corporal punishment as one of the alternative punishments that can be imposed where a child is found guilty and convicted of any offence that could be otherwise punishable by imprisonment. We feel that this provision is in contravention of the rights of the child as corporal punishment is a degrading and inhumane treatment because it causes deliberate pain or discomfort in response to undesired behavior. Effective juvenile justice interventions must have the objective of rehabilitation and rehabilitation of the juvenile offender rather than focusing on deterrence and punishment.
The amendment to section 158 make the performance of female genital mutilation on a child an offence and any person found in contravention is liable to a fine of not less than two million shillings or imprisonment for a term of 5 to 15 years or both.