UNIVERSITY CRISIES

TV PROGRAM PAMBANUA 19/11/2008 CHANNEL TEN

DIALOGUE ON CURRENT UNIVERSITY STUDENT UNREST IN TANZANIA PUBLIC UNIVERSITIES REASONS AND THE WAY FORWAD .

BY ONESMO P.OLENGURUMWA PRESIDENT UNIVERSITY OF DAR ES SALAAM HUMAN RIGHTS ASSOCIATION.
PART ONE
The reason behind un endless university students strikes can be categorized into 2 groups.
Before all the public should know that students have basic claims as provided by the constitutions of Tanzania Article 11.and other relevant laws

The first category relates to crises originating from principal demands or complaints directed to the University, for example the ‘Akivaga crisis’ of 1971whose source was the undemocratic way the University was run.

Second category of the causes of crises in universities, especially Tanzanian public universities, is the declining capacity and growing unwillingness of the state to finance universities.
A reactionary, obsolete and/or irrelevant curriculum, bad and unfair examination rules and systems; shortage of learning facilities like space, books and desks; shortage of competent staff; lack of research funds, and others, are the day to day questions that lay the foundations for student unrest.
These factors have been unfairly misrepresented by the state and the state-controlled media, which always depicts students as greedy and unreasonable in their demands.

The second category can be seen as major cause of current university crises due to an abrupt and poorly established loans board for higher learning institutions. , Building viable student loan programs is difficult in countries with high and variable inflation, low data-gathering capacity and high unemployment rates even for college graduates. We can therefore say that Tanzania adopting the high leaning institutions in 1999 was a grace offence to majority of Tanzania students who are poor.2004 the High learning education loans board Act was enacted without proper research on how it can be implemented without harming the poor.

Students claim against the way the disbarments of loans are conducted.

The board has no good ways of testing economic status of students, therefore due to means testing program many students who are eligible for loans have lost that right or they get it not fully as it is provided by section 17 of the loans Act when reads mutandis mutandis with its 2005 regulations and the constitutions.

The constitutions of Tanzanian Article 11(3) provides that the government shall endeavor to ensure that there are equal and adequate opportunities to all people to enable them to acquire education and vocational training at all level of schools and learning institutions. Therefore classifying students by giving others sufficient loans and giving others inadequate loans is unconstitutional and it infringes the rights of students from poor families access to education,
Many students have been given loans inadequately and this is the basis of their claims.
This introduction describes current research on student loans by the International Institute for Educational Planning (IIEP) and the World Bank, and draws on the conclusions of a series of Educational Forums on student loans organized by IIEP, to conclude that student loans are feasible, and can generate additional resources for higher education, but only if loan programmes are well designed and efficiently managed.
In Tanzania the repayment proportion of loans has not been very significant in most cases The element which contributes to the lack of financial viability of student loan programs is the low level of managerial efficiency, especially in public agencies, which results in high administrative costs.
According to the Act 2004 and it’s regulations of 2005 Eligible student for loans, beginning must attain the following criteria:-
Be a Tanzanian (as defined in the Act)
Have been Admitted to an accredited (recognized) Institutions as a candidate for a First Degree or Advanced Diploma.
Make a written application in the prescribed form which when approved by the Board shall form the basis of the loan contract, to be known as the Student Loan Agreement between the applicant and the Board.
Be a person who is not fully funded by other organizations or sources.
Students pursuing approved undergraduate degrees or advanced diploma courses on full time basis at recognized institutions in Tanzania.
Be a continuing student who has passed the examinations necessary to enable him to advance to the following year or stage of study.
Overseas undergraduate students under bilateral arrangements/ agreements between the Government of the United Republic of Tanzania and other Governments.
The Needy students must be
v is an orphan
v is disabled or has disabled poor parents
v is from a poor single parent family
v is from marginalized and disadvantaged groups
v is from a low income threshold family earning national minimum wage or below.

The Board may before granting a loan to an applicant must seek and consider confidential appraisal report of the applicant from: sections 7 ,8, 9 and sections 10 of the 2005 high learning educations loans regulations
(a) village secretary of the village in which the applicant comes from;
(b) faith based Organization in which the applicant is a member; or
(c) a secondary school or college in which an applicant attended.
(3) Where it is proved by the Board that an applicant-
(a) is poor or disadvantaged person; and
(b) has been granted an admission letter by a higher education Institution,

.
.
Experience from other countries shows that there is good and efficiency system of granting loans to students. Student loan programs are funded from any one of the following sources:
government, the students, companies in the productive sectors, alumni and philanthropists,
and international agencies.

Venezuela, works in partnership with a commercial bank responsible for the financial evaluation of applicants, loan disbursement and collection. A similar arrangement operates in Jamaica, involving a larger number of domestic and foreign banks. In Canada and Poland, the government is only responsible for program design, interest rate subsidy, and provision of guarantees against
default. The capital used to offer loans to the students is raised by the commercial banks
themselves.

PART TWO

THE WAY FORWARD
.
v Students need to be aware of the existence and availability of the program. Second, they must understand clearly what is involved in a loan (eligibility criteria, grace period, repayment obligations, , etc) in terms of responsibilities and obligations as Article 18 (d) of constitutions.
v A good information and marketing strategy to promote the student loan program and
Ensure widespread awareness among eligible students and institutions;
v Transparent eligibility criteria to ensure that any subsidy element be targeted to the most
deserving students (academically and socially); ;
v Efficient collection mechanisms, including an appropriate legal framework, to minimize
default;
v Because the country is still poor in data collection and gathering, therefore all students in public university should be given 100%
v Means testing has proved failure ,it should therefore be stopped.
v Efficient institutional management of all key processes (evaluation and selection of
beneficiaries, academic monitoring, loan collection, financial management), based on an
adequate computerized management information system; and
v A stable management team.
v The most straightforward approach consists of requiring official income tax data to
check the family background of applicants
v of the view that, together with universities themselves, the government should play its role in finding permanent solutions aimed at pre-empting and/or preventing such crises. It should not play the role of a spectator

PETS REPORTS NGORONGORO

NGORONGORO PUBLIC EXPENDITURE TRACKING SYSTEM COMMITTEE (PETS)

NGORONGORO PETS REPORT. SEPTEMBER 2008


ONESMO OLENGURUMWA NGORONGORO PETS COMMITTEE CHAIRMAN AND FEMA SAIDEYA RECEIVING A CERTIFACATE OF RECOGNITION FOR THEIR EXAMPLARY WORK FROM USA AMBASSADOR M.GREEN
APPRECIATION

Ngorongoro PETS Committee sends our gratefulness to PINGO’S for their exemplary work to see PETS activities in Ngorongoro are effectively done, We thank Ngorongoro district council Chairman and district executive director for their mutual support to see PETS activities are well done ,we as well cast our thanksgiving to PACT Tanzania for the great role they played to see public expenditure tracking is funded and sponsored.




ONESMO OLENGURUMWA NGORONGORO PETS COMMITTEE CHAIRMAN AND FEMA SAIDEYA RECEIVING A CERTIFACATE OF RECOGNITION FOR THEIR EXAMPLARY WORK FROM USA AMBASSADOR M.GREEN















INTRODUCTION.
Ngorongoro PETS committee was formed on July 2008 encompassed with 12 members. Before that PETS members were well trained on how to conduct PETS and after training they worked as a team together with the citizens to track where the problems lies and look the way forward . The committee managed to conduct Public Expenditure tracking survey/system (PETS) through five(5) wards include Digodigo, Soit sambu, Orgosorok, Arash and Pinyiny out of 14 wards.
The committee conducted PETS in three areas mainly livestock, education and natural resources’
.
FINDINGS.
Ngorongoro PETS committee have realized that the district is lugging behind in terms of development despite the fact that there are vey rich in natural resources. It is vey unfortunate that Citizens are suffering and is only few individuals who are enjoying the fruits of the whole district.
The committee managed to conduct PETS to all five wards mentioned and came out with the following
The district has various sources of income being money from central government , taxes, fains from wildlife as well as natural resources, that divides the district sources income into 2 sources of income:

(i) External sources
(ii) Own sources

The committee successfully managed to pass through the district budget for 2006-2007, 2007-2008 and discovered that the recurrent budget is 80% while the development budget for the district is only 20% . The committee suggested that it should at least be 50% equally .

In education sector the committee found various programs for development like TASAF, MMEM, MESS as well as community contribution. Through this programs the committee realized that to a large extent those programs were not properly implemented. A good example at Enguserosambu village can be noted, TASAF meant to build a house for primary school teachers, but surprisingly they did not finish building the house claiming that the money allocated was over, and there is no money to finish the building. When conducting PETS the committee realized that there was a linkage of money at district as well as at the village level. The only money used to build the house is 70%, then where are the 30% ?. the committee also discoved that the village school committees in Ngorongoro need knowledge (capacity building) which will enable them to manage their duties.

According to the District Education Officer he told PETS committee that the district lacks 400 school primary teachers. And he insisted that, this is a big problem.

Another problem is of capitation grants. The committee noted that money for capitation grant is less useful to schools. The policy states on papers that every child should get 10 USD but this is not what is practiced on the ground. Teachers even complained that the money for capitation in most cases is not released on time. And not given according to the number of pupils found at that particular school.

There was a problem in public procurement and tendering process. This is a very serious problem in Ngorongoro and the committee observed various cases where some intelligent people use these processes to enrich themselves and leave behind various programs incomplete.
The committee managed to find out that livestock services offered to livestocks are not offered on time and some time not offered to other places like Loliondo village and Sakala village. Villagers complain that services are not offered at the rain season instead are offered at summer time where the livestock have nothing to feed.Hence the vaccination turns out to be a disease to death to most of livestocks.
No education of modern livestock keeping system is offered to people in Ngorongoro .
We managed to track the maintenance of the Enguserosambu village cattle dip and found out that the money said to be used 300,000/= was not equivalent to what observed, when valuing the money and activities done it is only small percent of the money was used for maintenance even the heads of the departments admitted that the constructor who was given the tender was not a constructor.
We found that the district is rich of natural resources but not benefiting from these resources. Per year the district can collect only 350 million from various sources as owns sources from wildlife and natural resources.
This is very tiny amount of collection of revenue regarding that the district is rich of resources. The Ngorongoro conservation Authority can collect per year up to 30 billion from wildlife and tourism but sympathetically the district council is given 175 million as the distribution and contribution for development of people living in Ngorongoro district. The district had to be given 250 million but they said 75 million was not released due to tax payment. This is puzzle to people in the district. This shows that there is no proper distribution of public funds.
The 20% of money collected from natural resources had to be sent to villages but this is not done even to one village.
The Engaresero gate collects up to 65 million per year but the village does not benefit, even the 20% is not returned in due time and if returned they don’t follow the 20% requirement.
The villagers complained that they started practicing the program of Opportunity and Obstacle for Development(O and O.D) by having by-laws to improve village own resources but the District council up to day refused to approve the by-laws to enable the village to benefit from tourists who seem to visit the lake Natron freely.
We as well managed to find that many of the village finance committees like Ololosokwan village finance committee lack knowledge on money management despite the fact that they collect huge amount of money. Ololosokwan collects 184 million per year from various tourist companies. The village manage to use the many collected for development programs like sending and paying for their school fees many student from the village, the village currently sponsoring 10 university student and 122 secondary students.
We then recommend that the village committees to be empowered on how to manage their duties and enable them to use public fund with great care and lastly make the other government officials accountable.
We recommend the development programs money to be exposed to all people before any implementation.
There should be equal distribution of money collected from natural resources.
School teachers working in hard condition in Ngorongoro and other public servants to be provided with incentives to enable them to sustain their livelihood.
Pupils should be provided with lunch because we found many of them skip that meal due to long distance between schools and their homes.
The district council should collaborate with villages to advertise the resources we have in Ngorongoro like the like Natron, mount Lengai and flamingoes.
The district budget should be put in a simple way and exposed to all notice boards to increase transparency in the use of public fund.
ONESMO OLENGURUMWA PETS CHAIRMAN NGORONGORO

HISTORIA YA NGURUMWA

HISTORIA FUPI YA ONESMO OLENGURUMWA

ONESMO PAUL OLE NGURUMWA ni kijana wa mzee Paul Ngurumwa, amezaliwa mwaka 1980 katika kijiij cha Sakala wilayani Ngorongoro, kwa sasa ana umri wa miaka 28 ,ameoa na ana mtoto mmoja wa kiume , makazi yake yapo katika kijiji cha Sakala. Amesoma shule ya msingi Sakala ,elimu ya secondary ordinary level amesoma katika seminary ya Roman Arusha na badaye akamalizia elimu ya advanced secondary Dakawa Morogoro mwaka 2004.Safari yake ya elimu iliendelea pale alipofaulu na kuchaguliwa kusomea fani ya sheria katika chuo kikuu cha Dar es salaam kwa mkopo wa serikali.Hadi hivi sasa ni mwanafunzi wa sheria mwaka wa mwisho na anategemea kuhitimu degree ya kwanza mwakani mwezi wa tano.

WASIFU WA NDANI
Ni kijana mcha Mungu na mwenye misimamo na mitazamo ya kidini katika mambo mbalimbali.Ni mwanaharakati wa haki za binadamu na mwanafunzi alieyejikita katika sheria na masuala ya haki za binadamuna na za kimataifa.Ana misimamo thabiti pale anapoona haki za binadamu zinapovunjwa.Anauwezo mkubwa wa kusimamia kile anachohamini kama ni sahihi vile anapenda kukosolewa.Ana moyo wa kujituma na kujitoa kwa ajili ya maslahi ya umma, hana ubinafsi na anajali utu wa binadamu: akiamini binadamu wote ni sawa.Ni mkweli na muwazi.Anajiamini na ni mbunifu.Siasa zake ni za kiliberali na anapingana na ubeberu wa kimaghararibi pamoja na ubaguzi wa kiukoo.kikabila,kidini,kirangi,kimajimbo,nk.

WASIFU WA KIUNGOZI NA SHUGHULI MBALIMBALI
Onesmo ni kijana wa mzee alieyekuwa kiongozi aliyeheshimika katika jamii yake ya kimasai na hata nje ya jamii.(laiguanani).Toka utotoni wake alionekana akiwa mzuri katika kuongoza wenzake.Ni kiongozi aliyeonesha umahiri wa uongozi hasa alipoanza maisha ya shule.Aliwahi kuwa kaka mkuu katika shule ya msingi na vile vile aliweza kuchaguliwa na wenzake katika elimu ya sekondari na kuwa Rais wa serikali ya wanafunzi katika Dakawa High school. Pia aliaminiwa na kupewa dhamana ya kuwa mwenyekiti wa umoja wa wanafunzi wa kikatoliki hapohapo Dakawa na hatimaye alitunikiwa cheti cha kiongozi bora.Vile vile, kipindi cha masomo yake aliweza kutunukiwa tuzo mbalimbali,kwa mfano, alipokuwa kidato cha kwanza na cha pili alipewa tuzo za utendaji kazi bora (self –reliance awards) na mwanafunzi aliyeacha historia kwa kufanya vizuri kitaluuma wakati huo.

Kabla ya kujiunga na chuo Onesmo alijitolea kufundisha shule ya secondary Emanyata kwa mwaka mmoja na huko nako aliaminika na utendaji wake unakumbukwa.

Talanta yake ya uongozi kamwe haikuweza kufichika hata alipofika chuo kikikuu kwa mwaka uleule wa kwanza aliweza kuchaguliwa na kuwa katibu mkuu msaidizi wa chama cha wanasheria chuo kikuu cha Dar es salaam.Na baadaye umoja wa wanafunzi wakifugaji kule Dar es salaam OSOTWA walimwamini na kumchagua kuwa mwenyekiti wao.Hapa napo hakukawia kuonyesha umahiri wake katika uongozi wake hasa alipobuni lile suala la kuanzisha kampeni ya kuwasaidia walinzi wa jamii ya kifugaji waliojaa mijini.

Hadi wakati huu yeye ni Rais wa chama cha kutetea haki za binadamu chuo kikuu cha Dar es salaam(University of Dar es salaam Human Rights Association) na mapema tu alipopewa dhamana hiyo chama hiki kimeanza kuwika.Vile kwa kutumia falsafa ya ‘‘ panda mlima huku ukiwavuta na wenzako na sio panda kwanza ndipo uwarushie kamba” ameweza kupewa dhamana ya kusimamia kamati ya ufuatiliaji wa fedha za umma(puplic expenditure tracking survey-PETS) Wilaya Ngorongoro kama Mwenyekiti wa kamati hiyo iliyoundwa na PINGOS.Hapa napo umakini wake ulijiweka wazi pale kazi na taarifa ya Wilaya Ngorongoro ilipotunukiwa cheti cha utambuzi wa kazi bora na Balozi wa Marekani kupitia shirika la Pact Tanzania.Hata hivyo akishirikiana na wenzake walifanikiwa kuunda umoja wa wanataaluma mbalimbali Wilayani Ngorongoro(NDUSA) ambapo Rais wake wa muda ni Ndg.Fema Saideya(Mkazi wa Digodigo) na yeye (Onesmo) ni makamu, kama chombo kitakachotumika kuwaunganisha wanachi na wasomi wa wilaya katika harakati za kupambana na umaskini,rushwa na ukiukwaji wa haki za binadamu wilaya hapa na utawala bora.

Ni mwandishi na mtafiti mzuri na amekuwa akifuatilia mambo mbalimali kama vile ukiukwaji wa haki za binadamu na kutoa kweye vyombo vya habari akiamini kuwa njia mojawapo ya kumaliza udhalimu ni kuweka mambo wazi.

MAHUSIANO
Popote pale anapopita imekuwa ni rahisi kwa yeye kujenga mahusiano mazuri kotokana na karama aliyonayo ya kuweza kuishi na watu wa kada mbalimbali.Uhusiano wake mzuri mara nyingi umekuwa ukigeuka kuwa msaada kwa jumuiya au watu anawaongoza.Mfano kwa kushirikiana na Marafiki za watu wa jamii za Kifugaji pamoja na wengine kutoka Sweden wamefikia hatua ya kuanzisha shirika lisilo la kiserikali(TANZANIA MOBILE ORGANIZATION FOR SOCIO-ECONOMIC RIGHTS AND INTREPRENEURSHIP AMONG INDIGENOUS(TAMOSEREKI) litakalokuwa likitoa huduma za kijasiria mali katika jamii za wamasai,amang’ati,wabarbeig,wasonjo,wairaq nk ili kutoa ajira kwa mwananchi wa rika mbalimbali.

“MAENDELEO HULETWA NA WATU,ARDHI,SIASA SAFI NA UONGOZI BORA”
MWL NYERERE.

HISTORIA YA NGURUMWA

HISTORIA FUPI YA ONESMO OLENGURUMWA

ONESMO PAUL OLE NGURUMWA ni kijana wa mzee Paul Ngurumwa, amezaliwa mwaka 1980 katika kijiij cha Sakala wilayani Ngorongoro, kwa sasa ana umri wa miaka 28 ,ameoa na ana mtoto mmoja wa kiume , makazi yake yapo katika kijiji cha Sakala. Amesoma shule ya msingi Sakala ,elimu ya secondary ordinary level amesoma katika seminary ya Roman Arusha na badaye akamalizia elimu ya advanced secondary Dakawa Morogoro mwaka 2004.Safari yake ya elimu iliendelea pale alipofaulu na kuchaguliwa kusomea fani ya sheria katika chuo kikuu cha Dar es salaam kwa mkopo wa serikali.Hadi hivi sasa ni mwanafunzi wa sheria mwaka wa mwisho na anategemea kuhitimu degree ya kwanza mwakani mwezi wa tano.

WASIFU WA NDANI
Ni kijana mcha Mungu na mwenye misimamo na mitazamo ya kidini katika mambo mbalimbali.Ni mwanaharakati wa haki za binadamu na mwanafunzi alieyejikita katika sheria na masuala ya haki za binadamuna na za kimataifa.Ana misimamo thabiti pale anapoona haki za binadamu zinapovunjwa.Anauwezo mkubwa wa kusimamia kile anachohamini kama ni sahihi vile anapenda kukosolewa.Ana moyo wa kujituma na kujitoa kwa ajili ya maslahi ya umma, hana ubinafsi na anajali utu wa binadamu: akiamini binadamu wote ni sawa.Ni mkweli na muwazi.Anajiamini na ni mbunifu.Siasa zake ni za kiliberali na anapingana na ubeberu wa kimaghararibi pamoja na ubaguzi wa kiukoo.kikabila,kidini,kirangi,kimajimbo,nk.

WASIFU WA KIUNGOZI NA SHUGHULI MBALIMBALI
Onesmo ni kijana wa mzee alieyekuwa kiongozi aliyeheshimika katika jamii yake ya kimasai na hata nje ya jamii.(laiguanani).Toka utotoni wake alionekana akiwa mzuri katika kuongoza wenzake.Ni kiongozi aliyeonesha umahiri wa uongozi hasa alipoanza maisha ya shule.Aliwahi kuwa kaka mkuu katika shule ya msingi na vile vile aliweza kuchaguliwa na wenzake katika elimu ya sekondari na kuwa Rais wa serikali ya wanafunzi katika Dakawa High school. Pia aliaminiwa na kupewa dhamana ya kuwa mwenyekiti wa umoja wa wanafunzi wa kikatoliki hapohapo Dakawa na hatimaye alitunikiwa cheti cha kiongozi bora.Vile vile, kipindi cha masomo yake aliweza kutunukiwa tuzo mbalimbali,kwa mfano, alipokuwa kidato cha kwanza na cha pili alipewa tuzo za utendaji kazi bora (self –reliance awards) na mwanafunzi aliyeacha historia kwa kufanya vizuri kitaluuma wakati huo.

Kabla ya kujiunga na chuo Onesmo alijitolea kufundisha shule ya secondary Emanyata kwa mwaka mmoja na huko nako aliaminika na utendaji wake unakumbukwa.

Talanta yake ya uongozi kamwe haikuweza kufichika hata alipofika chuo kikikuu kwa mwaka uleule wa kwanza aliweza kuchaguliwa na kuwa katibu mkuu msaidizi wa chama cha wanasheria chuo kikuu cha Dar es salaam.Na baadaye umoja wa wanafunzi wakifugaji kule Dar es salaam OSOTWA walimwamini na kumchagua kuwa mwenyekiti wao.Hapa napo hakukawia kuonyesha umahiri wake katika uongozi wake hasa alipobuni lile suala la kuanzisha kampeni ya kuwasaidia walinzi wa jamii ya kifugaji waliojaa mijini.

Hadi wakati huu yeye ni Rais wa chama cha kutetea haki za binadamu chuo kikuu cha Dar es salaam(University of Dar es salaam Human Rights Association) na mapema tu alipopewa dhamana hiyo chama hiki kimeanza kuwika.Vile kwa kutumia falsafa ya ‘‘ panda mlima huku ukiwavuta na wenzako na sio panda kwanza ndipo uwarushie kamba” ameweza kupewa dhamana ya kusimamia kamati ya ufuatiliaji wa fedha za umma(puplic expenditure tracking survey-PETS) Wilaya Ngorongoro kama Mwenyekiti wa kamati hiyo iliyoundwa na PINGOS.Hapa napo umakini wake ulijiweka wazi pale kazi na taarifa ya Wilaya Ngorongoro ilipotunukiwa cheti cha utambuzi wa kazi bora na Balozi wa Marekani kupitia shirika la Pact Tanzania.Hata hivyo akishirikiana na wenzake walifanikiwa kuunda umoja wa wanataaluma mbalimbali Wilayani Ngorongoro(NDUSA) ambapo Rais wake wa muda ni Ndg.Fema Saideya(Mkazi wa Digodigo) na yeye (Onesmo) ni makamu, kama chombo kitakachotumika kuwaunganisha wanachi na wasomi wa wilaya katika harakati za kupambana na umaskini,rushwa na ukiukwaji wa haki za binadamu wilaya hapa na utawala bora.

Ni mwandishi na mtafiti mzuri na amekuwa akifuatilia mambo mbalimali kama vile ukiukwaji wa haki za binadamu na kutoa kweye vyombo vya habari akiamini kuwa njia mojawapo ya kumaliza udhalimu ni kuweka mambo wazi.

MAHUSIANO
Popote pale anapopita imekuwa ni rahisi kwa yeye kujenga mahusiano mazuri kotokana na karama aliyonayo ya kuweza kuishi na watu wa kada mbalimbali.Uhusiano wake mzuri mara nyingi umekuwa ukigeuka kuwa msaada kwa jumuiya au watu anawaongoza.Mfano kwa kushirikiana na Marafiki za watu wa jamii za Kifugaji pamoja na wengine kutoka Sweden wamefikia hatua ya kuanzisha shirika lisilo la kiserikali(TANZANIA MOBILE ORGANIZATION FOR SOCIO-ECONOMIC RIGHTS AND INTREPRENEURSHIP AMONG INDIGENOUS(TAMOSEREKI) litakalokuwa likitoa huduma za kijasiria mali katika jamii za wamasai,amang’ati,wabarbeig,wasonjo,wairaq nk ili kutoa ajira kwa mwananchi wa rika mbalimbali.

“MAENDELEO HULETWA NA WATU,ARDHI,SIASA SAFI NA UONGOZI BORA”
MWL NYERERE.

NDUSA

NGORONGORO DISTRICT UNIVERSITY STUDENTS ASSOCIATION[NDUSA]

PART ONE,
PREAMBLE,NAMEOFASSOCIATION,VISION,MISSION,OBJECTIVES AND INTERPRETATION.

PART TWO
STRUCTURE /MANAGEMENT OF NDUSA.

ORGANS,MEMBERSHIP ,RIGHTS AND DUTIES.

PART THREE
MEETINGS AND QURUMS

GENERAL MEETING AND ORDINARY MEETINGS

PART FOUR
FUND AND RESOURCES,AMENDMENTS,DISPUTES AND LIABILITIES.




















NGORONGORO DISTRICT UNIVERSITY STUDENT ASSOCIATION (NDUSA)


PART ONE


PREAMBLE
WHERE AS , The constitution of United Republic of Tanzania guarantees the right to join or form any association for the purpose of forming common voice for furthering public interest or any other interest

CONSIDERING THAT, the district is lugging behind in terms of development despite the fact that we are rich in natural resources

NOW THEREFORE WE, Elites of Ngorongoro district have common goals to exercise our constitutional rights to transform the community by impacting the knowledge we have into real practice by creating a society that respect people’s rights and good governance.


IN FUTHERANCE OF THE ABOVÉ ,NDUSA seeks to have a united elites of Ngorongoro district,whose their togetherness shall be a tool for fast tracking development in Ngorongoro district by creating a self reliant , a free society whose people can control their economy by being involved into public expenditure and exercise sovereignty over their natural resources.





















ARTICLE 1:
1.INTERPRETATIONS
NDUSA Means Ngorongoro District University Students Association including undergraduates and alumnae.

AGM means annual general meeting .

NGO’S means Non governmental organization

NPC means Ngorongoro pastoralist council .






ARTICLE 2
2.NAME OF THE ASSOCIATION
The name of the association shall be called Ngorongoro District University Students Association (NDUSA).

ARTICLE 3
3.OFFICE
The registered office of NDUSA shall be located at Loliondo.
ARTICLE 4
4.VISION
NDUSA seeks to have a united elites of Ngorongoro district,whose their togetherness shall be a tool for fast tracking development in Ngorongoro district.

ARTICLE 5
5.MISSION
NDUSA shall create a united forum of elites in Ngorongoro out of which through advocacy, laws and policy analysis/lobbying and community participation in all matters affecting their livelihood a free, self reliant and prosperous district whose people control their economy,respect and promote principles of human rights and ensuring that Tanzanians exercise permanent sovereignty over their natural resources will be born.



ARTICLE 6
6.AIMS AND OBJECTIVES OF NDUSA
In furtherance of the above Vision and Mission, NDUSA shall endeavour to achieve the following aims and objectives:
6.I) NDUSA to a large extent seek to unite all university alumni and undergraduates to form a single and vibrant district forum for district development and integrity.
(6.2) To see a large number of indigenous communities in Ngorongoro understands and attain the knowledge of their socio-economic rights and civic rights as provided by constitutions and related international instruments.
(6.3) To create a spiral network between elites in Ngorongoro, NGO’S and Government that aims to provide transparency and efficiency in all development programs within the district purposes.
(6.4) To open up floor for discussion between elites and community in general.
(6.5) NDUSA in collaboration with NGO’S, District council and community shall conduct public expenditure tracking survey/system(PETS) to ensure good governance and proper collection,allocation and proper use of resources within the district.
(6.6) NDUSA as group of elites shall as well advocate and lobbying for good laws and national policies that favour the nature of people living in Ngorongoro.



ARTICLE 7
7.0 FUNCTIONS
7.1.To provide a forum for discussions, debates and reflections on policy and development issues to members, academics, public officials and members of the business community, as well as members of civil societies such as CBO’s and NGO’s and the public in general;

7.2. Regarding that most of indigenous societies are living in or around areas rich of natural resources like national parks and mining centres, we shall use our best endeavour to educate them to benefit from tourism and natural resources around them.
7.3. We shall conduct various researches on indigenous life styles and their economics to reveal the main obstacles to sustainable development and entrepreneurship skills among indigenous.























PART TWO
STRUCTURE AND MANAGEMENT OF NDUSA
ARTICLE 8


8.0 ORGANS
1. Annual General Meeting (AGM)
2. Boards of directors
3. The Management
ARTICLE 9
8.1 FUNCTIONS OF EACH ORGAN.
1. Annual General Meeting (AGM)
(a) The Annual General Meeting (AGM) shall be the supreme organ of NDUSA consisting of all registered and paying members;
(b) The AGM shall meet at least once a year in ordinary sessions;
(c) An Extraordinary Session of the AGM may be held at the request of one tenth of members or may be called at the initiative of the Management 3 months after AGM ;
(d) The functions of the AGM shall include:
· Election of Members of the Board of directors;
· Amendment of the Constitution;
· Dissolution of NDUSA;
· Adoption of internal Rules and Regulations of NDUSA made by the Management ;
· Receiving from the Management and discussing the Annual Audited Financial Report;
· Submitting to the Board of Directors the budget of NDUSA for the forthcoming financial year;
Acting as the final authority on all issues pertaining to the Constitution, the Rules and Regulations and their implementation.
ARTICLE 10
2.Board of Directors
Ø To undertake oversight role over Management, control and direct its performance of the organization’ s mission
Ø To attend board and annual general meeting
Ø To fundraise for organizations and approve the annual budget
Ø To link the organization with various donors, partners from Tanzania and outside the Tanzania
Ø To offer advisory duty to NDUSA

ARTICLE 11

3.The Management
The Management shall be responsible for the day to day management of NDUSA. It shall consist of the following officers:
Ø The president
Ø Vice president
Ø General secretary
Ø Assistant secretary
Ø Finance Manager
Ø Projects Manager
Ø Transport and publicity officer
Ø Chief advisers
Ø Coordinator
(A)PRESIDENT
There shall be a president of NDUSA whose main duty will the be the senior leader of NDUSA in supervising and ensuring the peaceful existence of NDUSA.
The president call
(A) General Secretary
Ø To supervise day to day activities of the organization
Ø To call any ordinary annual meeting of members
Ø To be the signatory of accounts of NDUSA


(B) Finance Manager.
The Finance manager shall have the following duties
· Oversee the financial management of NDUSA
· Fundraise and execute the NDUSA sustainability
· Oversee keeping of all financial records of NDUSA;
· Oversee compilation of annual financial reports;
· Oversee all the banking of NDUSA funds.
(c)PROJECTS MANAGER
Supervise all projects of the organization.
To prepare business plans of all the projects to be carried by NDUSA but subject for approval by the Board of Directors.
·



( D)TRANSPORT AND PUBLICITY OFFICER



Ø To coordinate information system of NDUSA

Ø To publish books, journals, periodicals, monographs, newsletters, review papers and working papers so as to disseminate findings to the larger district, national and international community; and
Ø To establish a data bank that will be accessible to national and international researchers on policy and development issues.
Ø To prepare the budget for transport.
Ø To supervise` transport system.

ARTICLE 12

9.0 MEMBERSHIP

A. CATEGORY OF MEMBERS
(i) Any person who has attained the age of twenty one (21) years who subscribes to the objectives and purposes of NDUSA and he/she is an elites living in Ngorongoro may be eligible for membership of NDUSA;
(ii) There shall be four categories of members, namely Founder Members, Ordinary Members, Honorary Members and Associate Members;
(iii) The Founder Members shall be life members;
(iv) Ordinary Members shall be included at the expansion of the organization.
(v) Honorary Membership may be extended to any Tanzanian citizen or anybody from outside Tanzania who has made notable contribution towards the promotion of the objectives of NDUSA;
(vi) Associate Members may be individuals or institutions such as NGO’s, district council ,NPC etc.


B. RIGHTS OF MEMBERS
NDUSA Members with exception associate members shall have the following rights:
(i) Save for a institutional member, to elect and or be elected as NDUSA leader;
(ii) To attend and participate in the deliberations of Annual General Meetings and other meetings of other organs of NDUSA to which he/she is a member;
(iii) To raise any pertinent issue connected with the business or affairs of NDUSA for discussion or consideration by a relevant organ of NDUSA;
(iv) Subject to the prescribed procedure, to have access to the books, copies or extracts from the accounts of the organisation for inspection or self-information;
(v) To receive any pro bono publications, posters and artefacts of NDUSA; and
(vi) To be heard by an impartial body when charged of any allegation of contravention of NDUSA Constitution or rules.


C. OBLIGATIONS OF MEMBERS
All members, irrespective of the category of membership, have the obligation to discharge their individual and collective responsibilities as prescribed in the Constitution and Rules of NDUSA.

D. TERMINATION of Membership
A member shall cease to be a member of NDUSA upon occurrence of any of the following:
(i) Resignation;
(ii) Expulsion;
(iii) Death;


ARTICLE 13


1O.0 MEETINGS AND QUORUM FOR MEETINGS
(i) All NDUSA general meetings shall be presided over by the President of NDUSA .
(ii) The quorum of any general meeting shall, with the exception of meetings held for the purpose of changing the Constitution, be one half of members who gave notice of attendance of the general meeting.
(iii) The quorum of a general meeting deliberating upon and changing the Constitution of NDUSA shall be two thirds of NDUSA fee paying members ;
(iv) The quorum for the meetings of all organs of the organisation shall be one third of its members
(v) Decisions of the organs of TAMOSEREKI shall be by half of those present and voting. For the purpose of any decision, every member shall have one vote, but in case of a tie, the chairperson shall have a casting vote.

A. Annual general meeting (AGM).
The annual general meeting of NDUSA shall be held on a date decided by the last annual general meeting JULY each year provided that there shall be held a mandatory general meeting in every calendar year;
The annual general meetings shall deliberate, inter alia, on the following agenda:
· The accounts of NDUSA, financial reports and any other matter, which shall be duly submitted to the meeting;
· Election of Board Members of NDUSA from among the members in the event of a position(s) falling vacant;
· Amendment of the Constitution and rules of NDUSA ;
· Approval and taking cognizance of appointments and disciplinary measures taken by the Management upon senior officers and staff of NDUSA.

B. ORDINARY MEETINGS
NDUSA may hold an extraordinary or a special meeting to deliberate on a specific matter whose importance and urgency cannot wait or be scheduled for the annual general meeting provided that; If the meeting is called at the instance of the PRESIDENT or the Board of directors, it shall be called by way of a seven days notice given in writing or published through the media specifying the place, day, time and the agenda of the meeting.
















PART FOUR
ARTICLE 14
11.00 FUND AND RESOURCES
· NDUSA shall mainly depend on contributions paid by its members as the entrance fees and subscription fees as its source of fund
· NDUSA shall depend on contribution, from various donors, private institutions, government and international institutions as it’s source of funds.

1I.01 AMENDMENTS OF COSTITUTION OF NDUSA
Ø NDUSA constitution can be amended only if the quorum of the meeting reaches ¾ of fee paying members of organisation
In all cases, notice for any proposed amendment shall be communicated to each member at least twenty one (21) days prior to the date of the meeting; The Management shall have the power to make and amend the by-laws.

11.02 DISPUTES
Ø All disputes arising from and among members of NDUSA in respect of any matter relating and relevant to the work and objectives of NDUSA shall be referred to Board of directors.

TAMOSEREKI

7. AIMS AND OBJECTIVESIn furtherance of the above Mission, TAMOSEREKI shall endeavour to achieve the following aims and objectives:
· TAMOSEREKI seek to see a large number of indigenous communities in Tanzania understands and attain the knowledge of their socio-economic rights as provided by constitutions and related international instruments.
· Open up trading floor among indigenous and between them and medium enterprises to market their ideas and investment opportunities by transforming their informal sectors to formal sectors
· To achieve a sustainable development and developing economics within family business by realizing the role of both spouses in economic development and encourage female involvement in business and wealthy succession.
· To achieve a spiral network between indigenous entrepreneurs and big business enterprises and investors.
· To achieve a highly motivated society with the knowledge of getting credits and loans from banks for entrepreneurial activities without fear.
· To achieve the society highly knowledgeable on how they can use their natural resources, like land to access loans from banks

ARTICLE EIGHT
8. FUNCTIONS
1. We shall provide education to indigenous peoples on their socio-economics rights for instance the right to own land, property and natural resources for their economics development
2. In collaboration with University of Dar Es Salaam entrepreneurship centre (UDEC) we shall provide education to indigenous on capacity building creativity in business and develop entrepreneurship skills.
3. We shall conduct various researches on indigenous life styles and their economics to reveal the main obstacles to sustainable development and entrepreneurship skills among indigenous.
4. To educate them on how to develop their capital by generating profit and invest in various economics sectors.
5. To assist them to develop a good relationship with banks for money storage and access loans from the banks.
6. To provide free interest loans to those entrepreneurship groups which lack capital for investment
7. To enable the indigenous people use their potentials like cultural activities as the source of capital for business activities
8. To develop a network and become joint link between big enterprise/investors (External and Internal and indigenous peoples for economic development.
9. We shall offer free consultancy to indigenous business oriented groups and train them how to prepare business plan and project write ups.
10. To find for them good and accessible markets for their products and the way they can market their products.
11. Regarding that most of indigenous societies are living in or around areas reach of natural resources like national parks and mining centres, we shall use our best endeavour to educate them to benefit from tourism and natural resources around them.
12. To provide a forum for discussions, debates and reflections on policy and development issues to members, academics, public officials and members of the business community, as well as members of civil societies such as CBO’s and NGO’s and the public in general;
13. To undertake studies and disseminate information that will promote socio economic rights and entrepreneurial knowledge among indigenous marginalized societies in Tanzania.

NAME:The name of the NGO’S shall be: TANZANIA MOBILE ORGANIZATION FOR SOCIO-ECONOMICS RIGHTS AND ENTREPRENEURSHIP AMONG INDIGENOUS. Herein to be called TAMOSEREKI.
.


4. STATUS :TAMOSEREKI is a voluntary, non-governmental and not for profit sharing organisation whose members shall endeavour to achieve the vision and mission set herein under for the benefit and best interests of Tanzanians.
5. VISION :To have a free, economically independent and highly developed indigenous communities based on principles of socio-economics rights, creativity, capacity building and entrepreneurship.


4. MISSION.
(i) TAMOSEKI shall create a strong culture of entrepreneurship among indigenous communities in Tanzania. Supporting them with high capital, educating them their socio-economics rights, business mentoring, Building a free, self reliant and prosperous nation whose people control their economy and ensuring that Tanzanians exercise permanent sovereignty over their natural resources.

5.AIMS AND OBJECTIVES In furtherance of the above Mission, TAMOSEREKI shall endeavour to achieve the following aims and objectives:
· TAMOSEREKI seek to see a large number of indigenous communities in Tanzania understands and attain the knowledge of their socio-economic rights as provided by constitutions and related international instruments.
· Open up trading floor among indigenous and between them and medium enterprises to market their ideas and investment opportunities by transforming their informal sectors to formal sectors
· To achieve a sustainable development and developing economics within family business by realizing the role of both spouses in economic development and encourage female involvement in business and wealthy succession.
· To achieve a spiral network between indigenous entrepreneurs and big business enterprises and investors.
· To achieve a highly motivated society with the knowledge of getting credits and loans from banks for entrepreneurial activities without fear.
· To achieve the society highly knowledgeable on how they can use their natural resources ,like land to access loans from banks


FUNCTIONS
1 We shall provide education to indigenous peoples on their socio-economics rights for instance the right to own land, property and natural resources for their economic development
2.In collaboration with UDEC we shall provide education to indigenous on capacity building creativity in business and develop entrepreneurship skills.
3 We shall conduct various research on indigenous life styles and their economics to reveal the main obstacles to sustainable development and entrepreneurship skills among indigenous.
4.To educate them on how to develop their capital by generating profit and invest in various economics sectors.
5.To assist them to develop agood relationships with banks for money storage and access loans from the banks.
6.To provide free interest loans to those entrepreneurship groups which lack capital for investment.
7.To enable the indigenous people use their potentials like cultural activities as the source of capital for business activities.
8.To develop a network and become joint link between big enterprise/investors (External and Internal and indigenous peoples for economic development.
9.we shall offer free consultancy to indigenous business oriented groups and how to prepare business plans.
10.To find for them good and accessible markets for their products and the way they can market their products.
11.Regarding that most of them Are living in or around areas reach of natural resources like national parks and mining centres. We shall use our best endeavour to educate them to benefit from tourism and natural resources around them. wait more......

XENOPPHOBIA IN SOUTH AFRICA,TAMOSEREKI

COMING UP NEXT.
1.XENOPHOBIA IN SOUTH AFRICA article to include my comments as president of UDSM human right association UDHRA
2. .TAMOSEREKI IS a Tanzania Mobile Organization for socio-economic rights and entrepreneurship knowledge among indigenous. ( student initiative ) including students from Sweden and USA.To be registered soon.

TEEN MOTHERS IN TANZANIA AND SCHOOL DROP OUT

T”MANKIND OWES TO THE CHILD THE BEST IT HAS TO GIVE”
PREGNANT AND PARENTING SCHOOL’S GIRLS IN TANZANIA.THEIR RIGHTS AND WELFARE.
1.0 INTRODUCTION
My article will specifically address xxxxx teenage mothers and school drop outs in Tanzania . The Education Act, denies students to proceed with their education after delivery . Expulsion of a pregnant girl from school denies her right to development and also limits her opportunities. The practice of expelling pregnant girls from school happens almost all over the world but currently some of the countries like Malawi, South Africa and Australia have tried to come up with xxxxx policies xxxxx accepting pregnant xxx teenage mothers.

Currently there is a strong debate on when childhood starts and when it xxxx ends. Various laws have defined who is a child according to field of life (context), age of marriage, labour,contracts and rules of evidence. The International convention talks about the rights of a child of 1989 (CRC) and define a child to be below eighteen years

Therefore the question, who is a child, has not yet been answered is a great factor behind child maltitreament and discrimination. It is a truism that a child by reason of his physical and mental immaturity, needs special safeguards and care from the community at large and from the statutory regime in Tanzania

Child survival starts at the point when the mother becomes pregnant. The survival of the unborn child depends on the health and nutritional status of the mother and the environment in which she lives . In addition ,the survival of the child after birth is dependent on it receiving all the basic needs xxxxxfood, healthcare and protection from the parents so that it can grow to be a productive part of the community .


Teenage pregnancy is defined in the United States as an under aged girl becoming pregnant. This term refers to women who have not reached the age of legal adulthood, which varies across the world, who become pregnant. However, in the United Kingdom, there is a legal definition whereby a woman is considered to be a pregnant teenager if she becomes pregnant before 18 years of age.

xx As a social issue the impact of teenage pregnancy in developed countries include lower educational levels, higher rates of poverty, and other poorer "life outcomes" in children of teenage mothers. Teenage pregnancy in developing countries is usually outside of marriage, and carries a social stigma in many communities and cultures. For these reasons, there have been many studies and campaigns which attempt to uncover the causes and limit the numberx of teenage pregnancies. In other countries and cultures, particularly in the developing world, teenage pregnancy is usually within marriage .

Studies reveal that pregnant adolescents often face domestic physical violence. Furthermore, parents , partners, and the community within which they live psychologically violate them. Often pregnant adolescents are treated inhumanely and overworked with household chores andxx inadequate food . ManyAdolescents experiencexx stigma and as a result have unsafe abortions.

2. O IMPACT OF EXPULSION FROM SCHOOL

• Teenage mothers are likely not to finish school
• They are less likely to get a job xxx
Young motherhood in a developing country can affect employment and social class. More than three thirds of teenage mothers receive no xxx form of child support, vastly increasing the likelihood of turning to the government for assistance The correlation between early childbearing and failure to complete school reduces career opportunities for many young women. Additionally nearly, 50% of all adolescent mothers sought social assistance within the first five years of their child's life.
One-fourth of adolescent mothers will have a second child within 24 months of the first. The factors that determine which are more likely to have a closely spaced repeat birth include marriage and education: the likelihood decreases with the level of education of the young woman – or her parents – and increases if she gets married.
• Likely to become single parents
• children are at riskx of poor health ,and becoming teenage mothers themselves, thus repeating the cycle.
Early motherhood can affect the psychosocial development of the infant. The occurrence of developmental disabilities and behavioral issues is increased in children born to teen mothers. One study suggested that adolescent mothers are less likely to stimulate their infant through affectionate behaviors such as touch, smiling, and verbal communication, or to be sensitive and accepting toward his or her needs. Another found that those who had more social support were less likely to show anger toward their children or to rely upon punishment.
.

• Failure to finish matrix is a major cost to our society and economy. therefore we need to retain xxx pregnant girls in school until they matriculate so that they are able to contribute to economic growth and transformation.
• Increase rate of unemployed among women in our country.
• Put teenage mothers and their children into high riskx of being affected with HIV.
• Increase of prostitutions in town and cities.
• Carrying out an abortion
People talk a lot in the village and it can becomex a problem, causing or leading to an abortion which may lead to death. This happens if one was impregnated while still studying and the man responsible has denied the pregnancy
• They can’t see the father of the child Some are victims of men who have established homes and cannot afford the public shame of having had relations with an adolescent. Therefore, they will not take responsibility.
• Involve into early marriage.
Bad psychological and social consequences due to negative attitudes and harsh treatment they receive from community.
• High mortality rate
Complications of pregnancy and childbirth are the leading cause of mortality among women between the ages of 15 and 19 in such areas. The highest rate of teenage pregnancy in the world is in sub-Saharan Africa, where women tend to marry at an early age.
.




3.O RECOMMENDATIONS
Pregnant adolescents lack basic needs like shelter, food and security. They also face relational problems with families, partners and the community. There is, therefore, a need to sensitize the community and school personnel about adolescent reproductive health issues. In addition, adolescent friendly services need to be established/strengthened.
Few studies have examined the relationship between early marriage adolescent pregnancy and leaving school.

Two recent population council studies investigate the links between the phenomenon in diverse African settings. Studies looked at several countries in Francophone Africa and in South Africa . xx Periodical journal December 2007, underlies pregnant related school drop outs .South Africa still enrolls pregnant girls and young mothers says Kelly Hillman, the country also supports poor mothers. Australia needs to be our role model on the issues relating to pregnant and parenting students. Australia is rich of good policies on adolescent school mothers.
If xx a girl becomes pregnant while at school the proper solution is not to expel her from school but to suspend her for a period of time for the welfare of the mother and the child. The young mother should be allowed to resume her studies at a later date. .According to CRC preamble, a child should be prepared to live an individual life in the spirit of peace, dignity, tolerance, freedom, equality and solidarity. .
This is very confussing what you are saying in this entire paragraph I am not sure hereIn 1989 Tanzania ratified the convention affecting the rights of children, a State therefore required to make implementation of these rights of the child in accordance with its domestic laws and other relevant international instruments in this field, being dual system Tanzania needs to enact a law specifically to deal with the right and welfare of a child in Tanzania.
“States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. “
Therefore inacting a law that expels pregnant girls from school after a teenage pregnant is totally contrary to the principles on the rights and welfare of the child as provided by CRC .These are

•
• Principle of non-discrimination
• Principle of child survival and development
• Participation
• Best interest of a child
“states Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”
.”Such protective measures should, as appropriate, include effective procedures or the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. “
Therefore the state is required to ensure the rights of every child to include a standard of living adequate for the child, physical, mental, spiritual, moral and social development. Preventing a teenage mother from resumeing her studies is like subjecting her to physical and mental violence. This has been experienced in countries where xx school girls have been expelled from school after teenage pregnancy and when they are at home the community treaty them harshly, accusing them, with no body to comfort them even the responsible fathers of the of pregnant deney them. This has not only been experienced in our country but in other countries like Kenya ,Malawi, Francophone Africa ,Australia and Uganda. This is an experience of pregnant girls from Wakiso Uganda
According to CRC the right to education is clearly stated as follows:
1. States Parties recognize the rights of children to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and available free to all;
(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity by every appropriate means;
(d) Make educational and vocational information and guidance available and accessible to all children;
(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.
2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention.
3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries
Therefore when you read the above article 28 of CRC you can note that the State is committing a great blunder by not having policies regulating the welfare of teenage mothers in relation with their educational rights.28(2) requires a state take punishment in consistent with the child human dignity,
African charter on the right and welfare of a child (1990) provides that a child have the right of survival and development . Expelling a girl from school can endangering her life and life of her child too. The constitution of United Republic of Tanzania article 11(3) also speaks of the right of every child to education
1959 the United Nation General Assembly proclaimed the rights of children by setting ten principles aimed at ensuring that a child may have a happy childhood and enjoy xx his /her own good and good of the society .Principle 7 of 1959 declaration states that a child is entitled to receive an education ,which shall be free and compulsory ,she shall be given an education which will promote her general culture and enable him /her on the basis of equal opportunity to develop her abilities, her individual judgments and her sense of moral and social responsibility and ultimately become a useful member of the society
When writing my recommendations on how to promote, protect the rights and welfare of parenting and pregnant school girlsx I rewarded great attention to the economic level of the individual and the economic level of the country. The great proportion of families affected by this problem of teen motherhood are often faced with great poverty. Therefore, in this regard I suggest suspension xx be the best punishment for pregnant school girls. To supplement my recommendation I put forward the following ideas to be used strategically in suspending pregnant school girls, xxx without infringing on any of their rights..



Optional one
• Pursuant to education system in Tanzania and biological condition of teenage mother, the duration for suspension should be clearly set as to when to start and when to end. The time of commencing suspension and time of recommencing studies are very crucial to the welfare of both morther and her child.
• xxx I recommend that a girl start her suspension when she is six months pregnant or below. This would enable her to have a longer time to care for the infant before she resumes her studies.
• xx I recommend the duration of the suspension be one year out of school.. 3 months at home before delivery and 7 months after delivery.
Optional two
The following recommendation is based on psychological justifications, that pregnant or teenage mothers are habitually psychologically affected xxx after exclusion from school. Even if they resume studies at the same school, they won’t match up well with studies. To cure this I recommend the followingx:
• The whole community should recognize this problem and stop treating them inhumanly .They need to be given great care, love and courage at the family level. xxxxx.
• Suspended pregnant girls should not be returned to the same school to avoid harassment from fellow students
• The country or community based organization should take measures if possible to build independent primary and secondary schools at least one in each zone of our country deliberately to accommodate pregnant and parenting school’s girls.
• To have antidiscrimination policies for schools and the community which pregnant and parenting schoolx girls belong.
• The country education system should also copy some the systems of Queensland xxx Australia stated by its policy of 1999 on parenting students, including flexibility in school policies and practices relating to curriculum design, teaching and learning strategies , assessment ,classroom attendance, and dress code
• Education systems, schools, and school staff have a responsibility to ensure that all steps are taken to maximize the opportunity for pregnant students and young mothers to complete secondary education.
I therefore call up on the ministry of community development, gender and children in collaboration with Tanzania govevernment to see the importance of having an independent policy and law dealing with the rights and welfare of pregnant and parenting school’s girls. We need to have various campaigns through out the entire countryxx to raise awareness among Tanzania’s and to encourage partnerships between education systems, schools and other government and community agencies to increase the rate of school completion among pregnant students and young mothers.













REFERENCES
STATUTES
General Declaration on the Right of the child of 1924
Universal Declaration on Human Right of 1948
ILO Convention no:138 on Minimum Age for Employment and Marriages
Declaration on the Right OF the Child of 1959
International convention on Economic, Social and Cultural right of 1966.
Africa Charter on human and People’s right of 1981
Convention on the Right of a Child of 1989
Constitution of united Republic of Tanzania of 1977 as it has been amended from time to time.
National education act no: 25 of 1978 as amended from time to time
National Education Expulsion and Exclusion of school regulation GN no:130 of 1979
OTHER REFERENCES
Tanzania Law Reform Commission Report of 1994 on the Law Relating to Right and development of a child in Tanzania
Makaramba Robert .”we owe child the best” The Children Rights in Tanzania .

CHILD RIGHT IN TANZANIA

ARTICLE .THE ROLE OF TANZANIA LAW REFORM COMMISSION IN PROTECTING AND PROMOTING THE RIGHTS OF CHILDREN IN TANZANIA.

BY ONESMO PAUL OLENGURUMWA HUMAN RIGHTS ACTIVIST.

1.0.INTRODUCTION

The role of Tanzania law reform commission in protecting, promoting and enforcing the rights and welfare of children in Tanzania.

The commission has been established by section 3 of the law reform act of 1980 chapter 171 No:11.The main task of the commission according to part 2 is to examine and reform the laws. It is composed of chairman and other six commissioners. Part 3 provides powers and procedures, it may form a committee by section 9(1) to examine the laws, making report by article 14 incorporate recommendations.

The law reform commission examined many laws including legislation touching the right of child in Tanzania .To respond the question I traced the 2 reports by the law reform commission These are Re-inquiry and report on law of marriage act 1971 and the 1994 report by commission on the law relating to children in Tanzania.

This report addresses itself on the need to reform the Law Relating to Children in
Tanzania. It is a result of concerted efforts of the Law Reform Commission of Tanzania in conjunction with various government departments, the UNICEF, the Ford Foundation as well as other interested persons and institutions.

2,0. OBSERVATIONS

There were already general indications and fears that the present law and practice relating to children's problems in various socio-economic circumstance had been over-taken by the ever changing circumstances. Out of this general concern, the Commission set-up a Working Group for the purpose of examining the problem in Tanzania in view of the existing legal provisions and similar experiences elsewhere. The commission has no power enforce the rights of children. The following specific areas were critically examined in view of their relevancy and importance.

• Definition of a child

• Provision relating to care, maintenance and custody of a child.

• Juvenile Justice system as it deals with juvenile delinquents and other children

• Child abduction
• Provisions on child labor abuse

• Provisions on successions and inheritance as they relate to children rights and welfare.

The commission has only power to examine and reform laws by recommending those changes to government. By doing so then commission protect and promote the right of children in Tanzania.

The above provisions of laws were found to be the main source of child abuse and violations of their rights For instance the definition of a child has been in controversy ever since. The different definition of the term of child in various enactments have resulted in
depriving certain categories of children of their rights and protection under the law.
Under the general statutes with regard to identity, citizenship, age of majority and other
general statutory schemes, the child is defined as one below eighteen years of age in consonance
with the International Conventions and standards

Tanzania with plural legal system also define a child contextually ,customary law has its definition ,Islamic religion, common law, Tanzania legislations define a child differently. In civil statutes, certain definitions of the child tend to deprive the individual so defined
of certain rights and protection. Examples have been cited to include the definition of a child
where a married women of fifteen years is excluded, or definitions of an adult where again such a
married person is excluded.

3.0 RECOMMENDATIONS
3.01.The commission report recommendation on child definition

Marriage age should be raised so that it goes with the rights and benefits conferred
to persons of the age of majority. It is noted that the Commission's recommendation s for the Law of Marriage Act 1971, include the raising of the marriageable age from 15 to 21 years.

The twelve years to sixteen years range of childhood (which invites criminal
responsibility), as defined in Cap. 13 is in line with expert thinking on child psychology and
development in early childhood. However, the present range is rather to strict while there is a
whole transition period towards maturity covering about four years, i.e. from twelve to sixteen
years. Examples from the neighboring countries and some of the Commonwealth indicate that
the age range of children and young person starts from fourteen years of age upwards. The definition of a child and young person should be changed so that child is defined to
mean a person below 14 years and a young person to mean a person of 14 years and above but
below eighteen years.

3.02.The commission also made observation on care and maintenance of child and recommended as follows :

The role of the social Welfare Officers should be expanded so that complaints concerning
maintenance and inadequate care of children are adequately handled. Apart from the role
played by the Marriage Conciliation Boards, counseling by a social welfare officer should be
expressed in the form of a certificate or award binding the parties, and upon breach of the same
such award should be enforced by a court of law as a decree by the aggrieved party.
Legal Protection of Physical Home of the Child

Affiliation Ordinance, Cap. 278

The amount of Tshs. 100/= required to be paid by putative fathers is inadequate in view
of the high costs of living today. The amount payable by putative fathers should at least be 1/8 of putative father's gross. salary or six hundred shillings (600/=) where income cannot be assessed.

Putative fathers should be made responsible even when the marital status of the mother
changes that is when she gets married.

On application for variation of maintenance order, section 5(4) of the Affiliation
Ordinance should be amended so that the report of the Social Welfare officer is made a
Requirement to be taken into consideration. If the application is for the decrease of the amount
erroneously ordered to be paid, such decrease should not affect the amount payable so that it
becomes less that 1/8 of the putative father's gross salary or six hundred shillings where the
income of the putative father cannot be assessed.

A part from section of the Penal Code, there should be additional provisions on general
duty for the provisions of necessaries of life and continuing duty for the parents and guardians of
disabled children or those children in special circumstances which require continued care.

3.03.Recommendations on education

Ways of involving the Community into childcare should be innovated,
developed and fostered.

A scheme should be devised to assist parents who are unable to give uniforms to
their children. Such scheme should be devised both at the local government
level and at the national level.

It should be the basic requirement that school attending children must be
provided with food at school even if this will mean that parents take the
responsibility of paying more.

Pregnant girls should be permitted to resume school one year after delivery.

Day care centers and facilities should be expanded at places of work, in towns
and especially in rural areas.

The Children's Home Act should provide a specific definition and criterion
under which a child might be described as abandoned and in need of care and
specific procedures, be developed for declaring a child abandoned and as such in
need of care.
The state should put more efforts in identifying abandoned children and
providing institutions of care.

Cap. 13 should be amended so as to provide for situations under which and
abandoned - child may be identified and a separate procedure should be
provided for declaring a child as abandoned as well as a more elaborate
procedure for registration and admission to relevant institutions

3.04. Recommendation on Juvenile offenders.

The need to protect children and young persons from suffering physical and
other forms of abuse and neglect is the responsibility of the Community as whole


Intervention in the lives of children and young persons and their families should
take the least disruptive form which is appropriate and that wherever possible,
decisions affecting children and young persons and their families should be
made on the basis of agreement by those affected.

Parents and guardians and others having the care of children and Young Persons
should so far as possible be consulted when decisions are made.

Cultural interests should be protected. Decisions affecting children should be reviewed on a regular basis.

As wide a range as possible of powers to deal with children and young persons
should be available to the Courts when matters affecting children and young
persons come before the Courts.

Young persons who offend the law should be dealt with in a special court
composed of specially trained magistrates and personnel to deal with relevant
cases Distinction between Provisions for Protection
Of Children and Disciplining of Children


It is therefore recommended that the two sets of procedures should be distinguished and
appear different parts of the piece of legislation. The part on protection should be clearly
provided to protect children and it should not appear as if needing protection is an offence in
itself. This is what seems to be the case with the present S.25 of the CYPO, Cap. 13. The part
related to the procedure followed in cases where children have committed an offence, would be
distinct from the one on protection in as much as it will provide for apprehension, bail, detention
pending appearance before the court, etc.

It is recommended that the Commissioner for Social Welfare should be in close contract
with respective prison centers and should be given powers to exercise correction institutional
care in Children in institutions as well as in prisons

3.05. Recommendation on adoption of a child

Under section 4(a) of the Adoption Ordinance, an adoption order shall not be made
except with the consent of every person who is a parent or guardian of the infant or who is liable
by virtue of any order or agreement to contribute to the maintenance of the infant then the commission recommended that so as to ascertain that the consent given by parents, relatives custodian, guardian or guardians and item, is in conformity with the spirit of the Ordinance, the advice of the Commissioner for Social Welfare is necessary. It is therefore recommended that the Commissioner for Social Welfare should be involved in counseling such parents before giving
such consent for adoption.

3.06. Recommendation on child labour
The community should make efforts to identify what type of work the children are doing
and identify relevant costs and risk factors involved. The information on control
measures and on health care of children exposed to risks should be disseminated for
educative purposes.

Once the community is aware of the effects of child labor, steps should be taken to
provide educational opportunities for working children and disseminate information to
parents and employers on health hazards to which children are subjected to.

Issues which relate to appropriate Ministries should be seriously tackled by respective
Ministries; for example, registration of working children, inspection of areas where the Ministry
of Labour should deal with children work and enforcement of child labour laws. However, the
Ministry of Education and the Ministry of Health, among others, should work hand in hand with
the Ministry for Labour. Apart from labour inspectors, social welfare officers should work hand
in hand in the inspection and enforcement of laws against child labour.


3.07. Recommendation on inheritance and succession

Most indigenous Africa families follow matrilineal system of inheritance and family
property is divided to members of the male members of the family leaving the female members
with a minimum share or empty handed.There should be no distinction in inheritance on the basis of sex in relation to property. This takes into account equality between children regardless of sex.

The practice of legitimization should be harmonized under general Affiliation
proceedings and once paternity is legally declared the right to inheritance for the child born out
of wedlock should be equal as for all children of the deceased without distinction.

Eventually the law reform commission managed among other to examine the above laws and ultimately gave recommendations to be acted up on for protection and promotion of children’s rights and welfare in Tanzania. It is a truism that a child by reason of his physical and mental immaturity, needs special safeguards and care from the community at large and from the statutory regime in Tanzania




































4.0. REFERENCES

Tanzania law Reform act on 1980 cap 171 No: 11

Tanzania law Reform Commission Report of 1994 on the law Regulating the Development and the Rights and Welfare of Children in Tanzania.
Convention on the Right of a Child of 1989
Makaramba Robert.” We owe child the best “Children Rights in Tanzania.
Re Inquiry and Report on law of Marriage act of 1971 by Tanzania law Reform Commission.

THE AFRICAN COURT ON HUMAN AND PEOPLES’ RIGHTS


IN THE MATTER BETWEEN


THE NGO “KIBUNIANS FOR JUSTICE” (KIJU)
AND
THE STATE OF KIBUNIA



MEMORIAL FOR THE APPLICANT










Summary of the Applicant’s allegations and submissions
1. The admissibility of the application
The Applicant submits that the decision as to the admissibility of the application rests with the African Court. The Applicant prays that the Court find the application to be admissible.

2. Corruption within the public health service
The Applicant alleges that the Respondent, by failing to prosecute nurses allegedly guilty of corruption, violated the complainant’s right to development, and failed to observe its concomitant obligations

3. The lack of a comprehensive HIV/AIDS treatment programme
The Applicant alleges that the ongoing failure of the Respondent State to provide a comprehensive HIV/AIDS treatment program, which necessarily includes the free provision of anti-retroviral (ARV) medication, constitutes a failure on the part of the Respondent State to comply with its obligations in respect of the rights of that portion of its population presently infected with the disease.

4. The customary rule of primogeniture
The Applicant alleges that the operation of the customary rule of primogeniture involved discrimination against the complainant on the grounds of gender or sex and, furthermore, that the continued recognition afforded to the rule by the Respondent constitutes a breach by the Respondent of its concomitant obligations towards the complainant.

5. Admission to a state orphanage / child care institution
The Applicant alleges that the Respondent’s refusal to admit the complainant to a state orphanage or child care institution constitutes a violation of her rights and non-compliance on the part of the Respondent state with its concomitant obligations.
1. THE ADMISSIBILITY OF THE APPLICATION

1.1 The Court’s power to rule on admissibility
1.1.1 In the light of Article 6(1) of the Protocol establishing the Court,[1] the Court has the primary responsibility to rule on admissibility. While the relationship between the Court and the Commission is one of “complementarity,” burdening the Commission with the responsibility of deciding on the admissibility of disputes[2] submitted directly to the Court in terms of Article 34(6) of the Protocol would hamper the efficient and timely resolution of disputes. Furthermore, it is critical to the success and effectiveness of the Court for it to be perceived as independent from the Commission.[3]
1.1.2 It is thus submitted that the Court should exercise the discretion conferred upon it in terms of Rule 81(a).

1.2. The admissibility of the matter
1.2.1 The Applicant NGO is entitled to bring an application to the Court on behalf of an individual complainant.[4]
1.2.2 The Court has subject-matter jurisdiction over the matter as its jurisdiction extends to actions brought before it in terms of any instrument, including international human rights treaties, which have been ratified by the state party concerned (ie the Respondent).[5]
1.2.3 The Applicant NGO has observer status before the Commission.[6]
1.2.4 The Respondent state has made the declaration, required in Article 34(6), accepting the competence of the Court to receive cases under Article 5(3).
1.2.5 Article 6(2) of the Protocol provides that “[t]he Court shall rule on the admissibility of cases taking into account the provisions of Article 56 of the Charter,” of which only Articles 56(2), (5) and (7) need be discussed.[7]
- Sub-article (2) refers to both substantive and formal compatibility.[8] The substantive compatibility of an application to the Commission is judged according to its merits.[9] According to the Commission’s Guidelines,[10] a communication is admissible where it alleges a violation of one or more of the rights enshrined in the Charter. It is submitted that the present application complies with this requirement.
- The Applicant has exhausted all available local remedies by taking its dispute to Kibunia’s Constitutional Court, its highest court.
- The application complies with sub-article (7) as the Applicants only relied on the Kibunian Constitution in the Kibunian Constitutional Court.
1.2.6 In light of the word “may” in Article 5(3), the Court may refuse an NGO or an individual direct access to the Court even if the above requirements are satisfied.[11] While one of the important purposes of international adjudicatory bodies is to provide justice to individuals,[12] this should not be regarded as the primary function of the African Court,[13] which should only hear those cases which would allow it to expound on the African Charter and thus guide the development of the domestic law and policy of African nations.[14] It is submitted that the Applicant’s case will allow the Court to comply with its proper mandate in this regard.

2. CORRUPTION WITHIN THE PUBLIC HEALTH SERVICE

2.1 Admissibility
As corruption is a serious problem facing the Continent, the consideration of this issue by the Court will be of importance to African states. It is thus prayed that the Court entitle the Applicant to present argument on this issue.[15]

2.2 The alleged corruption
The alleged corruption consists in the refusal on the part of certain nurses employed at state-run health centres and clinics to provide anti-retroviral medication to expectant mothers free of charge, as required in terms of official government policy, and/or the acceptance by such nurses of payment for such medication. It is submitted that these acts are classifiable as instances of corruption in terms of Article 4(1)(a), (c) or (g) of the AU Convention on the Prevention and Combating of Corruption.[16]

2.3 The right to development and the problem of corruption.
2.3.1 The right to development[17] is the inalienable human right, vested in the individual, to social, cultural, economic and political development.[18] States are under a duty to ensure the exercise of the right[19] and to implement national policies which give effect to the right to development and are to ensure, inter alia, equal access for all to basic resources and health care.[20] State Parties to the Convention on Corruption are bound to promote social justice to ensure balanced socio-economic development, and to condemn and reject acts of corruption.[21]
2.3.2 It is thus submitted that the existence of corruption within the public health service of Kibunia constitutes a violation of the complainant’s right to development, as it undermines the progressive social, economic and political development of her country. The Respondent has thus failed in its obligation to the complainant to ensure the progressive development of the country and “the exercise of the right to development,” and to implement measures designed to eliminate corruption. The criminalisation of acts of corruption, in itself, is not enough to ensure compliance with the duty imposed upon States. If the Kibunian police are unable to prosecute offenders, a dedicated anti-corruption agency should be tasked with the problem, as contemplated by Article 5(3) of the above Convention.


3. THE LACK OF A COMPREHENSIVE HIV/AIDS TREATMENT PROGRAMME

3.1 Admissibility
Anybody, or any NGO, either acting on their own behalf or on behalf of someone else, and thus regardless of whether they are the direct victim of the complaint, may submit an application to the Court.[22] While petitions to the Inter-American Commission on Human Rights must mention “concrete, individually identified and distinguished victims,”[23] petitions on behalf of groups of victims have been admitted when the group was “specific and defined and the individuals composing it could be identified,” as, for example, in the case of members of a defined community.[24] It is submitted that there is nothing preventing the African Court from admitting class actions brought in the abstract, and that this is in accordance with its proper function and mandate. Alternatively, it is submitted that the group on whose behalf the action is brought is sufficiently identified, its existence is beyond doubt, and the identities of particular members of the group can easily be established.

3.2 The Respondent state’s obligations
3.2.1 Article 16(1) of the African Charter provides that “Every individual shall have the right to enjoy the best attainable state of physical and mental health,” while Article 16(2) imposes a positive obligation on the Respondent to “take the necessary measures to protect the health of [its] people and to ensure that they receive medical attention when they are sick.”
3.2.2 In accordance with the African Court’s intended role, Article 16 of the Charter must be interpreted so as to allow for:
- the direct enforcement of the right enshrined in Article 16(1), and for
- the evaluation of the measures undertaken by states to give effect to such right, as contemplated in Article 16(2).
3.2.3 In the light of the South African Constitutional Court’s judgement in Government of the Republic of South Africa v Grootboom,[25] in which it was held that the reasonableness of legislative and other measures adopted by the state in discharging its obligations can be evaluated by a court,[26] the key to the justiciability of socio-economic rights is the standard of reasonableness. Furthermore, the state is only obliged to take steps, within its available resources, to achieve the progressive realisation of the right; thus in Soobramoney v Minister of Health (KwaZulu-Natal),[27] the Constitutional Court held that an unqualified obligation to realise the socio-economic rights contained in ss26 and 27 of the Constitution would not, in the light of the state’s lack of resources, be capable of being fulfilled.[28] In Minister of Health v Treatment Action Campaign[29] the Constitutional Court emphasised that s27(1) of the Constitution, which enshrines the right to health,[30] cannot be read in isolation from s27(2), and does not give rise to a self-standing and independent right enforceable irrespective of the considerations mentioned in the latter section. It should be noted that the jurisprudence of the South African Constitutional Court is of considerable persuasive authority to the African Court.[31]
3.2.4 Thus, it must be determined whether the Respondent’s ongoing failure to provide ARV medication to its AIDS-affected population is unreasonable bearing in mind its available resources and the imperative that the right to the best attainable state of health be progressively realised.

3.3 International intellectual property law and the ability of developing countries to obtain generic ARV medication
Under the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), WTO members have to provide patent protection for pharmaceuticals, and are thus not permitted to allow the manufacture, within their countries, of cheaper generic drugs.[32] However, Article 31 of TRIPS provides for the issuing of compulsory licences which allow the manufacture of a patented product without the consent of the patent holder, provided the conditions set out in sub-articles (a) to (l) are met. At the Doha Ministerial Conference in November 2001, WTO member governments issued the Declaration on the TRIPS Agreement and Public Health,[33] in which it was recognised that Article 31(f) of TRIPS, by limiting use of a product manufactured under compulsory licence to the domestic market of the government which has issued the licence, prevents countries capable of manufacturing a generic pharmaceutical under compulsory licence from exporting it to developing countries unable to manufacture it for themselves, such as Kibunia.[34] However, exporting countries’[35] obligations in this regard have subsequently been waived in terms of the Decision of the General Council of 30 August 2003,[36] and thus these countries are now able to manufacture generic drugs under compulsory licence and export them to an “eligible importing member,” provided that both countries have issued compulsory licences.[37] Furthermore, the importing country’s obligation[38] to pay the patentee for the issue of the compulsory licence is also waived.

3.4 The Respondent’s breach of its obligations in the light of the present lack of a comprehensive treatment programme
3.4.1 While the Respondent state would, prior to the above Decision, have been bound by Article 31(h) and thus would have been unable to import generics even from developing countries not bound by TRIPS, such as India or Brazil, it is submitted that it is now open to the Respondent to:
- immediately grant a compulsory licence for the use of the generic ARVs by the government in an HIV/AIDS treatment programme, in accordance with Article 31(b) of TRIPS;
- make a notification to the Council for TRIPS of its intention to use the above system as an importer, containing the information specified in Para 2(a)(i-iii) of the above Decision;
- enter into an arrangement with an eligible exporting member to secure the importation of the required quantities of the medication.
3.4.2 While it may be unlikely that the Respondent will be able to import the drugs for free, bearing in mind the fact that the exporting country’s obligations under Article 31(h) are not waived, the Respondent state has acted unreasonably in failing to at least take the preliminary steps above.
3.4.3 While the establishment of adequate health care delivery infrastructure is obviously vital to the establishment of a truly comprehensive treatment program, and is also important in preventing the development of viral drug resistance, the development of such infrastructure must be progressive, proceeding in conjunction with the progressive and phased roll-out of ARVs, and in this way will proceed within the limits of the Respondent’s resources. It should also be recognised that the need to provide developing countries with funds to develop their health care systems has been recognised by the World Bank, amongst others.[39] The apparent inaction of the Respondent in even attempting to obtain such funding constitutes a violation of its obligations as detailed above. Furthermore, the WHO has stated that the minimisation of drug resistance (which is the inevitable result of any treatment programme) will not be promoted by stalling the introduction of ARVs in developing countries,[40] and that combined-dose ARV treatments remain effective despite the development of drug resistance.[41]





4. THE CUSTOMARY RULE OF PRIMOGENITURE

4.1 Admissibility
While this aspect of the application is framed as the individual complaint of an individual victim, the complainant’s situation is representative of the vast majority of women and girls throughout the continent who are subject to the customary practice of primogeniture. Hearing this matter would thus allow the Court to fulfil its proper function as described above.[42]

4.2 The rule of primogeniture
In terms of the principle of primogeniture, women and girls are not entitled to inherit, as heirs are only sought amongst the male descendants of the deceased, failing which they are sought amongst his other male relatives.

4.3 The right to equality and the prohibition of discrimination
4.3.1 The rule of primogeniture, by discriminating between potential heirs on the grounds of sex or gender, violates the complainant’s right to equality.[43] Furthermore, the practice violates the complainant’s right to inherit an equitable share of her parent’s property.[44]
4.3.2 It is thus submitted that the Respondent is in breach of the following obligations:
- The obligation to ensure the elimination of all forms of discrimination against women;[45] “women” being defined to include girls.[46] It is submitted that the practice of primogeniture constitutes “discrimination against women” as defined in CEDAW and the African Women’s Protocol.[47]
- The obligation to “modify the social and cultural patterns of conduct of women and men” with a view to eliminating harmful and prejudicial traditional practices,[48] and the obligation to prohibit, condemn, and to take all necessary legislative and other measures to eliminate harmful practices.[49] It is submitted that the practice of primogeniture qualifies as a “harmful practice” in terms of the African Women’s Protocol.[50]
- The obligation to recognise the particular problems faced by, and to eliminate discrimination against, women living in rural settings.[51]
- The obligation to take all appropriate measures to eliminate discrimination against women in the context of marriage, and, in particular, to ensure the same rights and responsibilities for men and women during marriage and at its dissolution[52] and in respect of property.[53]
4.3.3 It has been argued that the discrimination resulting from the practice is justified by the fact that the heir only acquires the rights of control and administration of the property of the deceased subject to obligations as head of the family, which include the duties of maintenance and support. However, with the decay of the extended family system, a weakening of such obligations becomes inevitable.[54] Where the heir no longer observes these obligations, there can be no justification for the existence of the practice, as expressly pointed out by the High Court of South Africa in Mthembu v Letsela [55]

4.4 The right to human dignity
The practice of primogeniture violates the complainant’s right to human dignity,[56] by implying that women and children are incapable of administering private property. Thus, the Respondent is in breach of its obligation to implement measures to prohibit the “degradation” of women[57] and to ensure the protection of women’s rights to respect for their dignity.[58]

4.5 The right to cultural life and cultural practices
While the Respondent is under an obligation to promote and protect the community’s morals and traditional values,[59] the complainant has the right to cultural development,[60] which would involve the progressive realisation of equality in her culture. Thus, the African Women’s Protocol, in making provision for the right to sustainable development, obliges State Parties to, inter alia, promote women’s access to productive resources and guarantee their right to property.[61] The recognition afforded to the practice of primogeniture by the Respondent violates the complainant’s “right to live in a positive cultural context” and to participate in the “determination of cultural policies”[62] and the State is thus in breach of its obligations to ensure such participation.[63]

4.6 The rights of the child
Primogeniture violates the guiding principle that in all actions concerning the child, the best interests of the child shall be “the” or “a” primary consideration,[64] as the practice results in a person unknown to the child being, at least in theory, responsible for such child. It is clear that having ownership of the house and cattle would give Caroline and her sister far greater security. Studies have shown that orphans are often left with nowhere to stay after their parents’ property is appropriated by their fathers’ relatives and they are told to leave.[65] In this way the practice also violates her rights to enjoy the highest attainable standard of health[66] and to education.[67]

4.7 The legal validity of primogeniture in terms of the South African Constitution
In the matter of Bhe and others v The Magistrate, Khayelitsha and others[68], the Cape Provincial Division of the High Court made an order[69] on 25 September 2003 declaring certain legislative provisions recognising the principle of primogeniture to be constitutionally invalid. It appears from the Applicants’ heads of argument[70] that the matter was decided with reference to the same rights discussed above. The Constitutional Court’s decision whether to confirm the CPD’s order of invalidity is still pending.[71]

4.8 The competence of the African Court to make the declaration sought
It has been argued that it is not within the proper competency of a court to inquire into the acceptability of a customary practice such as primogeniture, as any proposed reform of the customary law is best undertaken by the legislature after public consultation.[72] While this argument may be valid in respect of national courts, the African Court stands in a different relationship to the legislatures of the countries subject to its jurisdiction; as a supra-national court, it is not subject to the doctrine of separation of powers between the executive and the judiciary.

5. ADMISSION TO A STATE ORPHANAGE / CHILD CARE INSTITUTION

5.1 Admissibility
It is submitted that this aspect of the application should be regarded as admissible, bearing in mind the significance of the decision of the court for the formulation and implementation of national policy relating to AIDS orphans.

5.2 Relevant observations concerning the position of the complainant
This argument must proceed on the basis that Caroline, if refused admission to a state orphanage, and thus if made to return to her extended family, is likely to run away to the city again, where she will be forced to resort to either prostitution[73] (and thus be exposed to the risk of contracting HIV) or theft in order to survive. Studies have shown that orphans (and especially orphans who have lost their parents to AIDS) are often neglected, abused or left with nowhere to stay after their parents’ property is appropriated by their fathers’ relatives, or are forced to engage in hazardous labour to earn their keep. Furthermore, it has been shown that even where orphans are supported by a guardian, there is the possibility that he will abuse them or force them to engage in hazardous labour in order to earn their keep. [74]

5.3 The “best interests” principle and the Respondent’s obligations
In all actions concerning the child, the child’s best interests are “the” or “a” primary consideration.[75] The child has a right to have his or her best interests taken into consideration.[76] In determining the child’s best interests, the child’s own views must be taken into consideration.[77] While this does not mean that the child’s own views are necessarily decisive,[78] it should not be forgotten that children are in the best position to tell those responsible for their care what is most important to them.[79] Caroline’s obvious refusal to live with her extended “family” indicates that she has been deprived of the family environment of happiness, love and understanding to which she is entitled. While parents, guardians or “other persons responsible for the child” have the primary responsibility to care for the child,[80] the State is under an obligation to ensure that the child receives such care[81] and is furthermore under an obligation to care for children who have been deprived of a family environment.[82] Furthermore, she is entitled to “special care and assistance”[83] and “alternative family care,” which includes “placement in suitable institutions for the care of children.”[84]


6. THE RELIEF SOUGHT
The Applicant prays for a declaratory order upholding the above allegations; alternatively, the Applicant prays for an order granting such relief as the Court may deem appropriate.[85]






TABLE OF AUTHORITIES
African Charter on Human and Peoples’ Rights

African Charter on the Rights and Welfare of the Child

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

AU Convention on the Prevention and Combating of Corruption

Constitution of the Republic of South Africa Act 108 of 1996

Convention on the Elimination of All Forms of Discrimination Against Women

Convention on the Rights of the Child

Decision of the General Council of the WTO of 30 August 2003 concerning the Implementation of paragraph 6 of the Doha Declaration on the TRIPS Agreement and public health

Doha Declaration on the TRIPS Agreement and public health

UN Declaration on the Right to Development (UN General Assembly Resolution 41/128)

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa

Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights
____________________________________________________________________________________________

Bowman, Cynthia Grant and Kuenyehia, Akua Women and Law in Sub-Saharan Africa. Accra: Sedco Publishing, 2003

Collins, Tara and Pearson, Senator Landon “What does the “best interests of the child” mean?” Discussion Paper of the Senate of Canada, Office of the Personal Representative of the Prime Minister to the UN Special Session on Children. http://www.sen.parl.gc.ca/lpearson/htmfiles/hill/17_htm_files/ Committee-e/Tara-ABestInterests.pdf

De Waal J, Currie I and Erasmus, G The Bill of Rights Handbook Landsdowne: Juta, 2001

“Guidelines for Submission of Communications” Information Sheet 2, Published by the Secretariat of the African Commission; http://www.achpr.org/english/information_sheets/ACHPR inf. sheet no.2.doc

Harrington, Julia “The African Court on Human and Peoples’ Rights” In Evans, Malcolm, and Murray, Rachel, eds. The African Charter on Human and Peoples’ Rights: The System in Practice, 1986-2000. Cambridge: CUP, 2002

Human Rights Watch “In the Shadow of Death: HIV/AIDS and Children’s Rights in Kenya.” (2001) Human Rights Watch, Children’s Division June 2001, Vol. 13, No. 4(A) report available from http://www.hrw.org/reports/2001/kenya/kenya0701.PDF

“Joint statement issued regarding principles for fixed-dose combination drug products.” http://www.hhs.gov/news/press/2004pres/20040408b.html

Mutua, Makau “The African Human Rights System: A Critical Evaluation” 28. UN Development Program: http://hdr.undp.org/docs/publications/background_papers/MUTUA.PDF

Piron, Laure-Hélène “The Right to Development: A Review of the Current State of the Debate for the Department for International Development – Annexes.” http://www.odi.org.uk/pppg/publications\papers_reports\dfid\issues\rights\right_to_dev_Annex.pdf

Sengupta, Arjun “Development Cooperation and the Right to Development.” (2003) . Paper prepared for the François-Xavier Bagnoud Center for Health and Human Rights, Harvard School of Public Health.. http://www.hsph.harvard.edu/fxbcenter/FXBC_WP12--Sengupta.pdf

South African Law Commission Discussion Paper 93. http://www.law.wits.ac.za/salc/discussn/paper93sum.html

Summary of Discussion Paper 93, Project 90, August 2000; http://wwwserver.law.wits.ac.za/salc/discussn/paper93sum.html

Summary of a meeting of international HIV/AIDS experts convened by the World Health Organisation and the Global HIV/AIDS Program of the World Bank held in June 2003. Available online at http://www1.worldbank.org/hiv_aids/index.asp

“Surmounting Challenges: Procurement of Antiretroviral Medicines in Low- and Middle-Income Countries. The Experience of Medecins Sans Frontires.” Medecins Sans Frontieres, World Health Organization and the UNAIDS Secretariat 2003. http://www.accessmed-msf.org/documents/procurementreport.pdf

Thomas, Nigel & O’Kane, Claire “When children’s wishes and feelings clash with their ‘best interests.’” In The International Journal of Children’s Rights 6: 137-154, 1998, p. 137.

Udombana, Nsongurua J. “The African Regional Human Rights Court: Modelling its Rules of Procedure” (2002) 107 www.humanrights.dk/upload/application/b61a7401/ udombana_-_african_human_rights_court.pdf



Bhe and others v The Magistrate, Khayelitsha and others; unreported judgement of the CPD. Case 9489/02

Eprahim v Pastory, High Court of Tanzania at Mwanza, (PC) Civil Appeal No 70 of 1989

Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC)

Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC)

Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC)

Mthembu v Letsela 1997 (2) SA 936 (T)

Sir Dawda K. Jawara v. The Gambia Communication 147/95 and 149/96.

Soobramoney v Minister of Health (KwaZulu-Natal) 1998 (1) SA 765 (CC)

IACHR, Case 12.404. Report Nº 51/02 (Peru)

IACHR Petition 453/01 Report Nº 92/03 (Venezuela)


[1] Art. 6(1) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights [ “the Protocol Establishing the Court”], states that “The Court, when deciding on the admissibility of a case instituted under article 5 (3) of this Protocol, may request the opinion of the Commission which shall give it as soon as possible.”
[2] see Harrington (2002) 332
[3] Mutua 31
[4] The African Commission’s “Guidelines for the Submission of Communications”
[5] Article 3 of the Protocol
[6] as required by Art.5(3)
[7] For present purposes it may surely be assumed that the other subsections have been complied with.
[8] Udombana (2002) 104.
[9] Ibid., Sir Dawda K. Jawara v. The Gambia Communication 147/95 and 149/96.
[10] Fn 4 supra
[11] Mutua op cit 32
[12] Ibid.
[13] Ibid.
[14] Ibid., 33
[15] see para 1.2.4 supra
[16] hereinafter referred to as the “Convention on Corruption.”
[17] Art.22 of the African Charter
[18] UN Declaration on the Right to Development Art.1(1); Sengupta (2003) 3.
[19] African Charter Art.22(2)
[20] Arts.2(3), (3), and (8) of the Declaration
[21] Arts.3(4), (5)
[22] African Commission’s “Guidelines for the Submission of Communications,” Mutua op cit 17
[23] IACHR, Case 12.404. Report Nº 51/02 (Peru) quoted in IACHR Petition 453/01 Report Nº 92/03 (Venezuela)
[24] IACHR Petition 453/01 Report Nº 92/03 (Venezuela) para 59
[25] 2001 (1) SA 46 (CC)
[26] paras 41-42
[27] 1998 (1) SA 765 (CC)
[28] para 11
[29] 2002 (5) SA 721 (CC)
[30] see fn38 supra
[31] Mutua op cit 34
[32] Kibunia, as a member of the WTO classified as a developing country, was required to apply these (and the other) provisions of the TRIPS Agreement from 1 January 2000 (Article 65(2)); while the drug Nivirapine has been patented in Kibunia, it is unclear which other drugs have been patented. It will be assumed that all other brand-name ARVs (including fixed-dose combination ARVs) have been patented. Alternatively, all references to generic ARVs must be interpreted as references to generic Nivirapine.
[33] WT/MIN(01)/DEC/2
[34] Para6 of the Decision
[35] ie., those which are bound by TRIPS
[36] Available online : http://www.wto.org/english/tratop_e/trips_e/implem_para6_e.htm
[37] Para 2.
[38] In terms of Art.31(h) of TRIPS
[39] WHO and World Bank meeting of HIV/AIDS experts, June 2003.
[40] Ibid.
[41] Ibid.
[42] Para 1.2.4
[43] African Charter Art2; African Charter on the Rights and Welfare of the Child (ACRWC) Art3. In Eprahim v Pastory, High Court of Tanzania at Mwanza, (PC) Civil Appeal No 70 of 1989, it was held, with reference to the African Charter, CEDAW and the Universal Declaration of Human Rights, that primogeniture constituted discrimination against women and was thus inconsistent with the Tanzanian Constitution. (Bowman and Kuenyehia (2003) 167)
[44] Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the “African Women’s Protocol”) Art21(2)
[45] African Charter Art18(3); Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Art 2(a) to (f); African Women’s Protocol Art. 2
[46] African Women’s Protocol Art. 1(k)
[47] Arts. 1 and 1(f) respectively
[48] CEDAW Art. 5(a); African Women’s Protocol Art 2(2).
[49] African Women’s Protocol Art.5
[50] Art. 1(g)
[51] CEDAW Art. 14
[52] CEDAW Art. 16(1)(c); African Women’s Protocol Art.6
[53] CEDAW Art. 16(1)(h); African Women’s Protocol Art 6(j). The complainant, although not vested with these particular rights, would have inherited from her mother had her mother not been prevented from inheriting by the practice.
[54] South African Law Commission Discussion Paper 93, Project 90 August 2000. p25
[55] 1997 (2) SA 936 (T) at 946D.
[56] African Charter Art5; African Women’s Protocol Art 3(1)
[57] African Women’s Protocol Art3(3)
[58] African Women’s Protocol Art3(4)
[59] African Charter 17(3)
[60] African Charter 22(1)
[61] Article 19(c)
[62] African Women’s Protocol 17(1)
[63] African Women’s Protocol 17(2)
[64] ACRWC Art.4; CRC Articles Art.3 respectively
[65] Human Rights Watch “In the Shadow of Death: HIV/AIDS and Human Rights in Kenya” 2001
[66] ACRWC, Art.14; African Charter, Art.16; CRC, Art.24
[67] African Charter, Art.17; ACRWC, Art.11; CRC, Art.28
[68] The judgement has not been reported.
[69] CPD order 307
[70] available online: http://www.wlce.co.za/cus_law_lit.php
[71] CCT49/03; Hearing date 2 March 2004
[72] As supported in Mthembu (supra), and by the SALC in its Discussion Paper 93 supra.
[73] The HRW study (fn68 supra) notes examples of 9-year-old girls being forced into prostitution (p15).
[74] HRW study, p18
[75] ACRWC Art.4; CRC Articles Art.3 respectively
[76] Minister of Welfare and Population Development v Fitzpatrick and Others 2000 (3) SA 422 (CC) para 17.
[77] ACRWC Art.4(2); CRC Art.12
[78] Thomas and O’Kane (1998) 137 in Collins and Pearson.
[79] Ibid., 152 in Collins and Pearson 5
[80] CRC Art.18(1), ACRWC Art.20
[81] CRC Art 3(2);
[82] CRC Art 20(1)
[83] ACRWC Art25(1); CRC Art 20
[84] ACRWC Art25(2)
[85] In terms of Art.27(1) of the Protocol