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.
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.
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.
3.01.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
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
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.