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Tanzania - Dar Es Salaam[1] [print]

Last edited: November 2005

 

 

Summary and Analysis

 

Although Tanzania has signed and ratified both the United Nations Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC), it has not yet changed its laws to give practical effect to its obligations under these treaties.[2]  Tanzania enacted all of its legislation that covers the rights of children prior to its ratification of the CRC.  Since ratifying the CRC, the state has been working to finish drafting one comprehensive national law on children; the strength of that effort and the actual progress made, however, is questionable.[3]  At this point, Tanzanian law – and practice under that law – is not comprehensive of the protections envisaged by the CRC. 

 

Under Tanzanian law as it currently stands, there is an almost total absence of legal representation for children in matters affecting them; although a handful of NGOs have attempted in recent years to provide legal representation to children in courts of law, there are no legal provisions mandating it outside of the adoption context.[4]  With regard to abuse and neglect, although the Penal Code and the Affiliation Ordinance create parental duties and corresponding sanctions against parents who fail or neglect to take care of their children,[5] such parental duties are subject to a theory of punishment that punishes the parent/guardian without regard to the welfare of the child.[6]  For example, the Penal Code does not provide for an intermediate assessment of inquiry through which the causes of neglect can be determined and a proper solution – taking into account the well being of the child – sought.[7]  Indeed, there appear to be no formal child protection proceedings defined or provided for under Tanzanian law. 

 

The Law Reform Commission of Tanzania has recommended that that the provisions of the Penal Code on neglect and desertion of children be transferred to an appropriate chapter preferably under the Children and Young Persons Ordinance (Cap. 13) to be entitled, “Offences against Children and Young Person,” and a mechanism be set there under which remedial measures geared to protect the child may be undertaken before the full force of penal sanctions can be released against a parent;[8] the Commission has further recommended that the Children's Homes Regulation Act, which governs the maintenance and operation of homes for neglected and abandoned children, develop criteria under which a child might be described as abandoned in need or care and specific procedures for declaring a child as such.[9]  Child advocates have further recommended that child abuse should be defined in the law and that definition should comprise any form of harm to a child's well being.[10]

 

Currently, Tanzania does not have a foster care system, and efforts to establish an effective foster care program have been insufficient. Legal advocates for children have recommended that a foster care system be created, and that the views of the child be considered when deciding on a foster care placement if the child has the capacity to express an informed opinion.[11]  When placing a child under guardianship, legal advocates for children have recommended that the court appoint a guardian ad litem to represent the child in court, preferably a social welfare officer, as it would be best if the child would not have to come to the court.[12] 

 

It is the duty of the court to appoint a guardian ad litem for a child only in adoption proceedings.  Under the Adoption Ordinance, it is the duty of the court to appoint a guardian ad litem versed with the facts that can help the court arrive at a fair decision; the guardian ad litem is required to furnish such information to the court with a view to safeguard the interests of the child.[13]  By law, the guardian ad litem can be a parent or relative, and in practice, the Law Commission of Tanzania has found that, except in cases where the Commissioner for Social Welfare acts as guardian ad litem, those appointed have been private individuals suggested to the court by applicants themselves, raising serious question about the partiality of these parties.[14]  Cases of adoption in the country are rather few considering that most children in need of care have the preferred option of being placed within the extended system of African life.[15]

 

Related Sources of Law (In Order of Authority)

 

Statutes

 

Law of Marriage Act, 1971 (No. 5 of 1971)[16]

 

PART VI: MATRIMONIAL PROCEEDINGS

 

(f) Petitions and Determination

 

108. It shall be the duty of a court hearing a petition for a decree of separation or divorce—

(c) to inquire into the arrangements made or proposed as regards the maintenance and custody of the infant children, if any, of the marriage and to satisfy itself that such arrangements are in the best interests of the children…

 

(h) Custody and Maintenance of Children

 

125. …(2) In deciding in whose custody an infant should, [sic] be placed the paramount consideration shall be the welfare of the infant and, subject to this, the court shall have regard—

(a) to the wishes of the parents of the infant; and

(b) to the wishes of the infant, where he or she is of an age to express an independent opinion; and

(c) to the customs of the community to which the parties belong.

 

(3) There shall be a rebuttable presumption that it is for the good of an infant below the age of seven years to be with his or her mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of an infant by changes of custody.

 

(4) Where there are two or more children of a marriage, the court shall not be bound to place both or all in the custody of the same person but shall consider the welfare of each independently.

 

134.  The court may at any time and from time to time vary the terms of any agreement relating to the custody or maintenance of an infant, whether made before or after the commencement of this Act, notwithstanding any provision to the contrary in any such agreement, where it is satisfied that it is reasonable and in the interest of the welfare of the infant so to do.

 

136. (1) When considering any question relating to the custody or maintenance of any infant, the court shall, whenever it is practicable, take the advice of some person, whether or not a public officer, who is trained or experienced in child welfare but shall not be bound to follow such advice.

(2) No proceeding shall be invalid by reason only of non-compliance with the provisions of subsection (1).

 

International Law

 

United Nations Convention on the Rights of the Child (CRC)(1989)[17]

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 

Regional Agreements

 

African Charter on the Rights and Welfare of the Child (ACRWC)(1990)[18]

Article 4: Best interests of the child

2. In all judicial or administrative proceedings affecting a child who is capable of communicating his/her own views, an opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate laws.

 

Article 7: Freedom of Expression

Every child who is capable of communicating his or her own views shall be assured the rights to express his opinions freely in all matters and to disseminate his opinions subject to such restrictions as are prescribed by laws.

 

Local Contact Information

 

Robert Vincent Makaramba

Commissioner/Advocate of the High Court
The Commission for Human Rights and Good Governance
8 Luhtuli Street
P.O. Box 2643
Dar es Salaam, Tanzania
Tel: (office) +255-22-2135747-8
Fax: +255-22-211281
E-mail: makaramba@yahoo.com

 



Endnotes

[1] This page is also available as a .pdf Document, and Word Document.

[2] J. Clement Mashamba, National Organization for Legal Assistance, Using the law to protect children's rights in Tanzania: An unfinished business 3 (2004), available at

http://64.233.167.104/search?q=cache:5KDHxBsFozQJ:www.ksl.edu.np/cpanel

/pics/nolapublication.pdf+tanzania+%22adoption+ordinance%22+%22guardian+ad+litem%22&hl=en;  see also email from Robert Makaramba, Commissioner/Advocate of the High Court to Theresa Sgobba, law student, Yale Law School (Oct. 31, 2005, 04:03:01 EST) (on file with Yale Law School).

[3] See NGO Report on Tanzania to the Committee on the Convention on the Rights of the Child, Nov. 15, 2000, at 6, available at http://www.crin.org/docs/resources/treaties/crc.27/Tanzania.pdf, and as .pdf Document.

[4] Id. at 6; email from Robert Makaramba to Theresa Sgobba, supra note 1.

[5] Law Reform Commission of Tanzania, Report of the Commission on the Law Relating to Children in Tanzania 49-59 (1994), available at http://lrct-tz.org/pdf/watoto.pdf, and also as .pdf Document.

[6] Id. at 58-59.

[7] Id.

[8] Id. at 59.

[9] J. Clement Mashamba, Institutional Care and Support to Orphaned and Vulnerable Children in Tanzania: A Legal and Human Rights Perspective, in National Organization for Legal Assistance, Using the law to protect children's rights in Tanzania: An unfinished business 17 (2004), supra note 1.

[10] Id. at 80.

[11] Id.

[12] Id. at 82.

[13] Law Reform Commission of Tanzania, supra note 4, at 25-26.

[14] Id. at 26.

[15] Email from Robert Makaramba, Commissioner/Advocate of the High Court to Theresa Sgobba, law student, Yale Law School (Oct. 30, 2005, 21:30:15 EST)(on file with Yale Law School).

[16] The Law of Marriage Act (1971), available as .pdf Document.

[17] United Nations Convention on the Rights of the Child, A/RES/44/25 (1989), entered into force Sept. 2, 1990, available at http://www.ohchr.org/english/law/crc.htm.

[18] African Charter on the Rights and Welfare of the Child, CAB/LEG/24.9/49 (1990), entered into force Nov. 29, 1999, available at http://www.africa-union.org/.

 

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