CHILDREN AND THE LAW

BY SOLICITOR KATURA

CHILDREN AND THE LAW

PREPARED BY SOLICITOR KATURA KATURA

HISTORICAL BACKGROUND OF CHILDREN RIGHTS.

Human Rights - The term human rights came into common use only after World War II. It was
made current by the United Nations Universal Declaration of Human Rights, published in 1948. As
a term human rights replaced natural rights, a very old concept, and the related phrase rights of man,
which did not necessarily include the rights of women.

Children law - The United Nations (UN) Convention on the Rights of the Child (CRC) was a by-
product of international commitments to human rights, but its history lies in the complex and
contradictory developments of the twentieth century, when elevated expectations regarding the
welfare of children confronted the realities of war. In the late nineteenth century, material
conditions and reform efforts redefined the lives of children in the Western world and created new
sentiments about childhood and investments in children’s progress. World Wars I and II exposed
children’s acute vulnerability and the myth of inevitable progress. After each of these wars, defining
what was owed to children and how best to meet their needs was part of larger international
negotiations regarding power and prestige. Throughout this period there was growing role of
nongovernmental organizations (NGOs) affected what would become a re-articulation of child
welfare and protection and a more active commitment to children’s rights.

MONIST AND DUALIST

Monist – This is where by a country signs a treaty and what is signed in that treaty is going to be
applied as it is without any agreement within the country itself.
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Dualist – This is where by a country signs a treaty but the country which signed that treaty has an
opportunity to bring it back to its citizen by making it as a Bill through its parliament to discuss
whether to agree or disagree.

When we talk about children Rights it means we talk about the following:-

1. International Laws - Is the set of rules generally regarded and accepted as binding in
relations between states and between nations.1 It serves as a framework for the practice of
stable and organized international relations. 2 International law differs from state-based legal
systems in that it is primarily applicable to countries rather than to private citizens.

2. International treaties - A treaty is an agreement under international law entered into by

actors in international law, namely sovereign states and international organizations. A treaty
may also be known as an (international) agreement, protocol, covenant, convention, pact, or
exchange of letters, among other terms.

3. Regional treaties - Most relevant to economic, social and cultural rights. - American
Convention on Human Rights (1969) - Additional Protocol to the American Convention on
Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San
Salvador) (1988).

QUESTION.1
How do we deal with Children Right in International Level and
Municipal level??

At international level there are some conventions like:-

A) The United Nations Convention on the Rights of the Child (UNCRC) - This is a legally-

1 Bentham, Jeremy (1789), An Introduction to the Principles of Morals and Legislation

2 Slomanson, William (2011). Fundamental Perspectives on International Law. Boston, USA: Wadsworth. pp. 4–
5.
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binding international agreement setting out the civil, political, economic, social and cultural rights
of every child, regardless of their race, religion or abilities. The UNCRC consists of 54 articles that
set out children’s rights and how governments should work together to make them available to all
children.

Since it was adopted by the United Nations in November 1989, 194 countries have signed up to
the UNCRC, with only two countries in the world still to ratify. All countries that sign up to the
UNCRC are bound by international law to ensure it is implemented. This is monitored by the
Committee on the Rights of the Child.

B) African charter on the rights and welfare of the child - Recognizing that the child, due to the
needs of his physical and mental development requires particular care with regard to health,
physical, mental, moral and social development, and requires legal protection in conditions of
freedom, dignity and security,

QUESTION.2
Why Africans came with their own convention a year after the
convention of 1989?

This is because of cultural differences.

Relevant case
REBECA GYUMI V. A.G LMA (2016).

LANDMARK JUDGEMENT ON UNCONSTITUTIONALITY OF SECTION 13 and 17 of

the LAW OF MARRIAGE ACT [CAP 29 R.E. 2002]
THE HIGH COURT OF TANZANIA has recently ruled out Provisions of Section(s) 13 and 17 of
the LAW OF MARRIAGE ACT [CAP 29 R.E. 2002] as unfavorable to the girl child. Further to
this and under the powers vested to it under Article 30(5) and Section 13 (2) of the Basic Rights and
Duties Enforcement Act have directed the Government through the Attorney General to correct the
complained anomalies in Section 13 and 17 of the Law of Marriage Act respectively and in lieu
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thereof put 18 years as the eligible age of Marriage for both Girls and Boys.

KEY IMPORTANCE OF CHILDREN RIGHT

1. Non-discrimination -Discrimination is the act of treating an individual or a group of people

in an illegal or unfavorable manner on the grounds of race, colour, sex, nationality,
language, religion or social origin. Discrimination towards any person is a serious violation
of human rights. Children have a right to nondiscrimination. This means that all children
should not be the victims of discriminatory acts based on race, skin colour, sex, language,
religion, political or other opinion, national, ethnic or social origin, wealth, handicap, etc.
2. Best interest of a child -is a child rights principle, which derives from Article 3 of the UN
Convention on the Rights of the Child, which says that “in all actions concerning children,
whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a
primary consideration”. Assessing the best interests of a child means to evaluate and balance
“all the elements necessary to make a decision in a specific situation for a specific individual
child or group of children”.
3. Child welfare.
4. Views of the child.

BASIC OR GENERAL PRINCIPLES OF CONVENTION OF THE

RIGHTS OF THE CHILD.

The Charter confers the following basic rights on all children across the world:-

I - DEFINITION OF THE CHILD

1. CRC - Article 1 - For the purposes of the present Convention, a child means every human
being below the age of eighteen years unless under the law applicable to the child,
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majority is attained earlier.3

2. The African Charter - Article 2 - A child means every human being below the age of 18
years.4
3. Children Act of Zanzibar - Section 2 - “Child” means a person below the age of 18 years.5

II – NON-DISCRIMINATION.

1. CRC - Article 2 - States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of any kind,
irrespective of the child's or his or her parent's or legal guardian's race, colour, sex,
language, religion, political or other opinion, national, ethnic or social origin, property,
disability, birth or other status.
2. The African Charter - Article 3 - Every child should be allowed to enjoy the rights and
freedoms in this Charter, regardless of his or her race, ethnic group, color, sex, language,
religion, political or other opinion, national and social origin, fortune, birth or other status
3. Children Act of Zanzibar - Section 6.(1) - A child shall have a right to live free from any
discrimination.

III – BEST INTERESTS OF THE CHILD.

1. CRC - Article 3 - In all actions concerning children, whether undertaken by public or

private social welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration.
2. The African Charter - Article 4 - If children can voice their opinions, then those opinions
should be heard and taken into consideration during legal and administrative proceedings.
3. Children Act of Zanzibar - Section 3 - This Act shall be interpreted and applied so that in
all matters concerning the care, protection and well being of the child, the best interests
of the child concerned shall be the paramount consideration.

RELEVANT CASE

3 Convention on the Rights of the Child

4 The African Charter on the Rights and Welfare of the Child
5 Children Act of Zanzibar.
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FESTINA KIBUTU v. MBAYA NGAJIMBA6

Headnote
Marriage between the appellant and the respondent was declared null and void because the
respondent was incompetent to marry under the provisions of section 38 (c) and (e) of the Law of
Marriage Act, 1971. When the marriage was annulled the appellant was five months pregnant. She
then gave birth to a baby girl. When the child was two years old the respondent instituted
proceedings for the custody of the child. The Primary Court awarded him custody of the child. On
appeal by the appellant to the District Court the decision of the Primary Court was overruled.
Custody was given to the appellant until the child reached the age of seven years. The court ordered
the respondent to pay Shs.50/= a month towards the maintenance of the child.

When the child reached the age of seven years the respondent sought to be given custody of the
child. The case was before a Primary Court which heard both the parties and also heard the child
who expressed that she wished to live with the appellant. Custody of the child was given to the
respondent. The appellant's appeal to the District Court was not entertained.
She appealed to the High Court challenging the award of custody of the child to the respondent.
She also attacked the maintenance award as being too low.

Held:- (i) the wishes of a child of tender age should not be permitted to subvert the whole law of
the family or to prevail against the desire and authority of a parent unless the welfare of the child
cannot otherwise be secured;
(ii) under the circumstances of this case it was not in the best interest of the child to have given
custody to the respondent which would have adversely affected her educationally and
psychologically.

Case Information
For the reasons given above the appeal is allowed. The judgment and decree of the district court is
set aside. It is ordered that the appellant should have custody of the child and respondent should
pay Shs. 250/= per month as maintenance for 10 years from 1977 as her cost of maintaining the
child. She is also granted costs of this appeal and the court below.

6 1985 TLR 44 (HC)

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Appeal allowed.

IV – SURVIVAL & DEVELOPMENT OF THE CHILD.

1. CRC - Article 6 - (1) States Parties recognize that every child has the inherent right to life.
(2) States Parties shall ensure to the maximum extent possible the survival and development
of the child.
2. The African Charter - Article 5 - Every child has a right to live.
3. Children Act of Zanzibar - Section 10 (1) - A child shall have the right to good conditions
of living necessary for his development, including:- (a) nutritious food; (b) shelter; (c)
appropriate clothing; (d) appropriate care and protection, which involves adequate medical
care and immunization; (e) education, including religious education; and (f) sport.

RELEVANT CASE
MARIAM TUMBO v HAROLD TUMBO7
Headnote
The parties to this proceeding were married under Christian rites in 1958 and have seven issues of
the marriage. The petitioner sought dissolution of marriage alleging adultery, cruelty and desertion.
She also prayed for custody of the youngest five children and for the division of assets. The
respondent has cross-petitioned for divorce, alleging cruelty and desertion. He also prayed for
custody of the youngest three children.

Held:- (i) it is settled that where one spouse behaves in such a manner that the other is virtually
compelled to leave, the former may in law be the deserter; it is imperative for there to be conduct
which amounts to dismissal from the consortium;
(ii) in matters of custody the welfare of the infant is of paramount consideration, but where the
infant is of an age to express an independent opinion, the court is obliged to have regard to his or
her wishes;

V – REGISTRATION, NAME, NATIONALITY, CARE.

7 1983 TLR 293 (HC)

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1. CRC - Article 7 (1) - The child shall be registered immediately after birth and shall have
the right from birth to a name, the right to acquire a nationality, and as far as possible,
the right to know and be cared for by his or her parents.
2. The African Charter - Article 6 - Every child has the right to be named and registered at
birth.
3. Children Act of Zanzibar - Section 7 (1) & (2) - (1) A child shall, from birth, have a right
to a name, and to be granted a nationality of his parents in accordance with applicable laws.
(2) A person shall not unlawfully deprive a child of the right to a name and nationality.

VI – FAMILY RELATIONS & PRESERVATION OF IDENTITY

1. CRC - Article 8 (1) - 1) States Parties undertake to respect the right of the child to preserve
his or her identity, including nationality, name and family relations as recognized by
law without unlawful interference.
2. The African Charter - Article 18 - Families are the natural unit and basis for society, and
should enjoy special protection.
3. Children Act of Zanzibar - Section 9 (1) - (1) A child shall be entitled to live with his
parents, guardians or family and to grow up in a caring and peaceful environment.

VII – RESPECT FOR THE VIEWS OF THE CHILD

1. CRC - Article 12 (1) & (2) - 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.
2. The African Charter - Article 7 - Every child who is capable of communicating his or her
own views should be allowed to express his or her opinions freely.
3. Children Act of Zanzibar - Section 5 - Every child that is of such an age, maturity and
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stage of development as to be able to participate in any matter concerning him, will have
the right to participate in an appropriate way and views expressed by the child will be
given due consideration.

VIII – PROTECTION OF PRIVACY

1. CRC - Article 16 (1) & (2) - 1) No child shall be subjected to arbitrary or unlawful
interference with his or her privacy, family, home or correspondence, nor to unlawful
attacks on his or her honour and reputation. 2) The child has the right to the protection of the
law against such interference or attacks
2. The African Charter - Article 10 - Children should be protected from all forms of torture,
inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or
maltreatment including sexual abuse.
3. Children Act of Zanzibar - Section

TYPES OF CHILD ABUSE

1. Physical Child Abuse - This is an injury resulting from physical aggression. Even if the
injury was not intended, the act is considered physical abuse. The injury from physical child
abuse may be the result of:
 Beating, slapping, or hitting.
 Pushing, shaking, kicking, or throwing.
 Pinching, biting, choking, or hair-pulling.
 Burning with cigarettes, scalding water, or other hot objects.
 Severe physical punishment.

2. Sexual Abuse Of A Child - This is any sexual act between an adult and a child, including
penetration, intercourse, incest, rape, oral sex, and sodomy. Regardless of the child's
behavior or reactions, it is the responsibility of the adult not to engage in sexual acts with
children. Sexual abuse is never the child's fault. Other examples of Abuse include:
 Fondling - Touching or kissing a child's genitals, making a child fondle an adult's
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genitals.
 Violations of bodily privacy - Forcing a child to undress, spying on a child in the
bathroom or bedroom.
 Exposing children to adult sexuality - Performing sexual acts in front of a child,
exposing genitals, telling "dirty" stories, showing pornography to a child.
 Commercial exploitation - Sexual exploitation through child prostitution or child
pornography.

3. Emotional Abuse - It’s sometimes called psychological abuse and can seriously damage a
child’s emotional health and development. Emotional abuse can involve deliberately trying
to scare or humiliate a child or isolating or ignoring them.

4. Neglect Abuse - This is the ongoing failure to meet a child's basic needs and is the most
common form of child abuse. A child may be left hungry or dirty, without adequate
clothing, shelter, supervision, medical or health care. A child may be put in danger or not
protected from physical or emotional harm.

RIGHT OF THE CHILDREN OF DISABILITY

Disability – This is a physical or mental condition that limits a person's movements, senses, or
activities. Some combination of these that results in restrictions on an individual's ability to
participate in what is considered "normal" in their everyday society. A disability may be present
from birth or occur during a person's lifetime.

TYPES OF DISABILITIES

1. Physical disability - is a limitation on a person's physical functioning, mobility, dexterity or

stamina.8 Other physical disabilities include impairments which limit other facets of daily
living, such as respiratory disorders, blindness, epilepsy and sleep disorders.

8 "Archived copy". Archived from the original on July 24, 2013. Retrieved January 8, 2014.
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2. Mental disability - also called a mental illness9 or psychiatric disorder, is a diagnosis by a

mental health professional of a behavioral or mental pattern that may cause suffering or a
poor ability to function in life. The causes of mental disorders are often unclear. Theories
may incorporate findings from a range of fields. Mental disorders are usually defined by a
combination of how a person behaves, feels, perceives, or thinks. This may be associated
with particular regions or functions of the brain, often in a social context. A mental disorder
is one aspect of mental health. Cultural and religious beliefs, as well as social norms, should
be taken into account when making a diagnosis.

CAUSES OF DISABILITY.

Many disabilities in babies are caused by harmful conditions of women's lives. If women can get
enough nutritious food to eat, can protect themselves from work with toxic chemicals, and can get
good health care, including care at the time of childbirth, then many disabilities could be prevented.
Some of them are follows:-

1. Poverty and malnutrition.

Poverty is one of the biggest causes of disability. Poor people are most vulnerable to disability
because they are forced to live and work in unsafe environments with poor sanitation, crowded
living conditions, and with little access to education, clean water, or enough good food. This makes
diseases such as tuberculosis and polio--and the severe disabilities they cause much more common
because diseases get passed from one person to another more easily.

2. War
In wars, more civilians than soldiers are killed or disabled, and most of them are women and
children. Explosions cause people to become deaf, blind, and lose their limbs, as well as causing
other injuries. Their mental health is also badly affected by the violence. The destruction of homes,
schools, health centers, and means of livelihood that results from conflicts and wars leads to
increased disability, poverty, and disease.

3. Nuclear accidents

9 "Mental Disorders", Medline Plus, U.S. National Library of Medicine, 15 Sep 2014, retrieved 10 Jun 2016
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Many people have suffered after being exposed to massive amounts of radiation. This happened
after accidents in nuclear power plants at Three Mile Island in the USA in 1979, and at Chernobyl
in the Ukraine in 1986. And it also happened when the USA dropped nuclear bombs on Japan in
1945. These incidents caused widespread destruction and death from exposure to radiation.

The people who survived these accidents and bombing attacks have suffered mainly from cancers
either tumors in various parts of the body, In communities where these nuclear incidents happened,
there has also been an increase in the number of children born with learning difficulties, such as
Down syndrome.

4. Poor access to health care.

Good health care can prevent many disabilities. Difficult labor and birth can cause a baby to be born
with a disability such as cerebral palsy. Trained birth attendants who can identify risks and handle
emergencies can prevent babies from being born with many disabilities. Immunization can also
prevent many disabilities. But many times vaccines are not available, or people who are poor or live
far from cities cannot afford them, or there are not enough for everyone

5. Illnesses
Syphilis, herpes, and HIV can be passed from a mother to her baby and can cause birth defects. So
women need to be tested and treated for sexually transmitted infections to protect the baby
developing in the womb.

6. Medicines and injections

Giving injections with an unclean needle or syringe is a common cause of infection and can pass the
germs that cause serious diseases such as HIV/AIDS or hepatitis. Unclean injections are also a
common cause of infection that can lead to paralysis or spinal cord injury or death. Also, some
injected medicines can cause dangerous
allergic reactions, poisoning, and deafness to a baby in the mother's womb.

7. Dangerous work conditions

Men and Women who work long hours without enough rest are likely to have accidents. Women
who work in factories, mines or on agricultural plantations can be exposed to dangerous machinery,
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tools, or chemicals. Accidents, overwork and exposure to chemicals can all cause disability.

8. Accidents
Many Men, women and children get disabling injuries at home by burns from cooking fires, falls,
road accidents, and breathing or drinking toxic chemicals. Workplace accidents, especially in less
regulated sectors such as construction, agriculture, mining, and smaller businesses, are a common
source of disability.

9. Inherited disabilities
When close blood relatives such as brothers and sisters, first cousins, or parents and children have
children together, the children are much more likely to have disabilities. Some disabilities are
known to be inherited, such as spinal muscular atrophy and muscular dystrophy (diseases of the
muscle and of the nerve cells that carry signals from the brain to the muscle, making the muscles of
the body get weaker and weaker and slowly stop working). Women who already have one or more
children with an inherited disability are more likely to give birth to another child with the same
problem. Children born to mothers 40 years of age or older are more likely to have Down
syndrome.

CHILDREN AND THE FAMILY

POSITION OF CRC & AFRICAN CHARTER ON CHILDREN WITHIN AND OUTSIDE

THE FAMILY.

That there should be no difference between the child within the family and the child outside the
family. This means we need to establish different facilities to all these children like SOS (Serve
Out Soul) which may help us to ensure equal rights of the children.

CLASSIFICATION OF CHILDREN RIGHTS

1. Guiding principles Or Generalized rights - The guiding principles of the Convention include
1. Non-discrimination
2. The best interests of the child.
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3. The child welfare.

4. The views of the child or the right to participate.

2. Protection rights- These rights include protection from all forms of child abuse, neglect,
exploitation and cruelty, the children should not be involved in sexual issues like pornographies,
including the right to special protection in times of war and protection from abuse in the criminal
justice system.

3. Fair treatment and Participation rights - Children are entitled to the freedom to express
opinions and to have a say in matters affecting their social, economic, religious, cultural and
political life. Participation rights include the right to express opinions and be heard, the right to
information and freedom of association.  Engaging these rights as they mature helps children bring
about the realization of all their rights and prepares them for an active role in society.

4. Act independently – Children should be given a time to manage themselves though parents are
supposed to eye on them.

RIGHTS OF CHILDREN VERSUS RIGHT OF PARENTS.

What is an Optional Protocol?

Very often, human rights treaties are followed by "Optional Protocols" which may either provide
for procedures with regard to the treaty or address a substantive area related to the treaty. Optional
Protocols to human rights treaties are treaties in their own right, and are open to signature, accession
or ratification by countries who are party to the main treaty.

OPTIONAL PROTOCOLS OF THE RIGHTS OF THE CHILDREN.

1. Optional Protocol to the Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography. It was adopted and opened for signature, ratification and
accession by General Assembly resolution of 25th May 2000 entered into force on 18th January
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2002.

2. Optional Protocol to the Convention on the Rights of the Child on the involvement
of children in armed conflict. It was adopted and opened for signature, ratification and accession by
General Assembly resolution of 25th May 2000 entry into force 12th February 2002.

3. Optional Protocol to the Convention on the Rights of the Child on a communications procedure.
It was adopted and opened for signature, ratification and accession by General Assembly resolution
of 19th December 2011 entered into force on 14th April 2014.

QUESTIONS

1. With the aid of decided case or illustration discuss the principle of

the best interest??

Answer:
Principle of the best interest of the child
‘best interests of the child’ to justify actions that in reality have violated the rights of the child.
Corporal punishment has been defended with the argument that it teaches children necessary limits
and is therefore for their own good in the long run:-
1. Adopted children have been prevented from knowing their biological family ‘in their own
interests’.
2. Children of indigenous peoples have been forcefully removed from their families and placed
in boarding schools so that they could be introduced to ‘civilization’, again in the name of
their ‘best interests’.
3. The right of the child to express her or his views and to have them taken into account or
right to be heard.
4. Legal representation: When the best interests of a child are formally decided by a court or
other competent body, the child is entitled to legal representation, legal information and
defence, including for children applying for asylum or special protection as victims of
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crime.
5. Right to appeal: Best interests’ determinations are subject to legal remedies. Children need
to have access and support, such as legal assistance and representation, to appeal a decision.
During the appeal procedure the implementation is suspended. For decisions concerning
transfer or return of a child to another county, sufficient time must be available between the
decision and the execution of the decision, to enable the child to hand in an appeal or request
a review of the decision.
6. Matters related to health, education and vulnerability are important factors;
7. The child’s right to be brought up or raised up by her or his parents.

Relevant case:
FESTINA KIBUTU v. MBAYA NGAJIMBA

2. Give comments on the judgment of the court of Tanzania that 18

years should be a proper age for boys and girls.

Relevant case
REBECA GYUMI V. A.G LMA (2016).

LANDMARK JUDGEMENT ON UNCONSTITUTIONALITY OF SECTION 13 and 17 of

the LAW OF MARRIAGE ACT [CAP 29 R.E. 2002]
THE HIGH COURT OF TANZANIA has recently ruled out Provisions of Section(s) 13 and 17 of
the LAW OF MARRIAGE ACT [CAP 29 R.E. 2002] as unfavorable to the girl child. Further to
this and under the powers vested to it under Article 30(5) and Section 13 (2) of the Basic Rights and
Duties Enforcement Act have directed the Government through the Attorney General to correct the
complained anomalies in Section 13 and 17 of the Law of Marriage Act respectively and in lieu
thereof put 18 years as the eligible age of Marriage for both Girls and Boys.

3. Contrast and compare CRC and African Chater.

1. Non-discrimination
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2. Best interest of a child

3. Child welfare
4. Views of the child
5. Culturalism and universalism.
6. Child soldiers.
7. Children born outside wedlock
8. Right of abortion.

4. Do you accept with the statement which says child rights are human
right therefore no need for children law and international treaties for
children.

5. Discuss the concept of child abuse.

Abuse refers to (usually deliberate) acts of commission while neglect refers to acts of omission.
Child maltreatment includes both acts of commission and acts of omission on the part of parents or
caregivers that cause actual or threatened harm to a child

(WHO) defines child abuse and child maltreatment as "all forms of physical and/or emotional ill-
treatment, sexual abuse, neglect or negligent treatment or commercial or other exploitation,
resulting in actual or potential harm to the child's health, survival, development or dignity in the
context of a relationship of responsibility, trust or power."

Types of child abuse

1. physical abuse is physical punishment "in intent, form, and effect". - involves hitting
('smacking', 'slapping', 'spanking') children, with the hand or with an implement – whip, stick, belt,
shoe, wooden spoon, etc. But it can also involve, for example, kicking, shaking or throwing
children, scratching, pinching, biting, pulling hair or boxing ears, forcing children to stay in
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uncomfortable positions, burning, scalding or forced ingestion (for example, washing children's
mouths out with soap or forcing them to swallow hot spices). Most nations with child abuse laws
deem the deliberate infliction of serious injuries, or actions that place the child at obvious risk of
serious injury or death, to be illegal bruises, scratches, burns, broken bones, lacerations, as well as
repeated "mishaps," and rough treatment that could cause physical injury, can be physical abuse.
Multiple injuries or fractures at different stages of healing can raise suspicion of abuse.

2.Sexual abuse - The term use to covers any behavior by an adult or older adolescent towards a
child to stimulate any of the involved sexually.

3. Psychological abuse (also referred to as psychological violence, emotional abuse or mental

abuse) is a form of abuse, characterized by a person subjecting, or exposing, another person to
behavior that may result in psychological trauma, including anxiety, chronic depression, or post-
traumatic stress disorder. Such abuse is often associated with situations of power imbalance, such as
abusive relationships, bullying, gaslighting and abuse in the workplace

psychological aggression" in three different categories:

1. Verbal aggression (e.g., saying something that upsets or annoys someone else);
2. Dominant behaviors (e.g., preventing someone from contacting their family);
3. Jealous behaviors (e.g., accusing a partner of maintaining other parallel relations).

4. Child neglect - is the failure of a parent or other person with responsibility for the child, to
provide needed food, clothing, shelter, medical care, or supervision to the degree that the child's
health, safety or well-being may be threatened with harm. Neglect is also a lack of attention from
the people surrounding a child, and the non-provision of the relevant and adequate necessities for
the child's survival, which would be a lacking in attention, love, and nurture.

Neglectful acts can be divided into six sub-categories:

 Supervisory Neglect: characterized by the absence of a parent or guardian which can lead to
physical harm, sexual abuse or criminal behavior;
 Physical Neglect: characterized by the failure to provide the basic physical necessities, such
as a safe and clean home;
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 Medical Neglect: characterized by the lack of providing medical care;

 Emotional Neglect: characterized by a lack of nurturance, encouragement and support;
 Educational Neglect: characterized by the caregivers lack to provide an education and
additional resources to actively participate in the school system; and
 Abandonment: when the parent or guardian leaves a child alone for a long period of time
without a babysitter.

6. Discuss and suggest the solution to children problems in Zanzibar.

CHILDREN PROBLEMS IN ZANZIBAR

Violence against children has been a pernicious and critical global problem. In Tanzania, as in
many African countries, women’s and children’s rights are affected by some traditions which
discriminate against them in matters of inheritance, property ownership, gender-based violence,
sexual harassment, child labour and general exploitation etc.

1. Abandoning children.

The problem of abandoning children has persisted due separation of parents, death of parents,
poverty, early marriages, transfer of parents, urban migration to look for better jobs. Abandoning
children is against International Convention on the Rights of Child. (CRC 1989) articles. 3, 5, 9, 18
and 19 which require State parties to ensure protection, care and well being of a child.10

Also the Revolutionary Government of Zanzibar has put in place rules and regulations that protect
children. According to Zanzibar marriage act of 1985, article 13 of the penal code and article 191 of
Zanzibar laws state clearly that parents are legally responsible for the protecting and guiding
children in a good manner.

The Government has set programmes such as MKUKUTA and MKUZA to alleviate poverty, which
is among causes of violations of children's rights. The Government also cooperates with CSOs in
protecting and preserving rights of street children, orphans and victims of HIV/AIDS.

10 Burn H. Weston, Child Labour and Human Rights, Lynne Rienner Publishers Inc. 2005 Colorado USA.
 CHILDREN AND THE LAW
BY SOLICITOR KATURA

2. Lack of health services to children

International Convention on the Rights of Child (CRC 1989) article 6 requires the following:
a) “State Parties recognize that every child has the inherent right to life.”
b) “State Parties shall ensure to the maximum extent possible the survival and development of the
child”

Right to life is connected with the duties of parents and Government in ensuring the well -being of a
child. Basically parents are responsible to upbringing their children in a good manner. Government
should reduce mortality rate for children, combat diseases and ensure provision of sufficient food,
clean and safe water and prohibit death sentences to children. Therefore poor health services are
against CRC.

It is known that children suffer from different diseases such as Malaria that causes death before
reaching adulthood. Article 24 of CRC states that, “State Parties recognize the right of the child to
the enjoyment of the highest attainable standard of health and to facilities for the treatment.”

In ACRWC and the Constitution of Revolutionary Government of Zanzibar it is stated that right to
health is a fundamental right to a child. This has been incorporated in the Maternal Child Health
Programmes under the policy of Survival, Protection and Development of the Zanzibar Child of
2001 and the Women and Development Policy of 2001. The Commission recommends cooperation
between parents, doctors, public health workers, and Government in fulfilling their duties. There are
effects caused by poor health services such as to be stunted, poor psychological and physical
development etc.11

3. Lack of freedom of expression and participation

Children in Zanzibar are complaining that they are not respected, not ensured right to express their
views and participation. To be denied these rights is against African Charter on the Rights and

11 Jyotsana Tiwari, Child abuse and Human rights, Isha Boaks D-43 Prithviraj Road, 2004 Adash New Dilhi
India
 CHILDREN AND THE LAW
BY SOLICITOR KATURA

Welfare of the Child (ACRWC).

International Convention on the Rights of the Child (1989) insists on the right to be heard and
participate in decision making on matters concerning their lives. It is insisted that a child should be
heard and his/her views respected in Courts and other places in all issues, which affect him/her in
one way or another. Children should be given an opportunity to
express their views because it is their fundamental right.12
• Freedom of speech and expression
• Globalisation and Technological advancement
• Role of Media
• Choice of Programs

4. Poor education services.

There are different reasons that cause children to be denied their right to education. Such reasons
include poverty among parents, un-conducive learning environment leads to truancy, pregnancies to
school children and repeating classes. The findings has revealed that truancy in schools has been
contributed by the following:
a) Parents force their children to engage in activities that will earn the income of the family
b) Deficiency of desks for children to sit on
c) Teachers being discouraged and demoralized due to indiscipline of pupils, no measures taken by
Ministry of Education Zanzibar
d) Punishment and harassment by teachers, some parents and commuter buses
e) Lack of facilities for disabled children in ordinary schools.

In general all these hinder the efforts of Revolutionary Government of Zanzibar of providing quality
education to all children. Zanzibar education Act No 4 of 1993 was enacted for the purpose of
eliminating illiteracy and brings about development and that the Revolutionary Government of
Zanzibar committed to provide primary and secondary education for every child.

12 Reuha Wazirand Nico Van Oudenhaven, Child sexual Abuse, what can Government Do, Burn H. Weston,
Child Labour and Human Rights, Lynne Rienner Publishers Inc. 2005 Colorado USA.Kluwer Law
International, 1998, The Hague Netherland
 CHILDREN AND THE LAW
BY SOLICITOR KATURA

Poor education services is against CRC, ACRWC, and other International conventions such as
Education for All (EFA), Millennium Development Goal (MDGs), and MKUZA insist that
education is a fundamental right to every child. For that case the Commission recommend that
teachers and parents should have closer cooperation in preparing education programmes that aim at
developing children so as to reduce drop out rate and remove school contributions if possible. The
programme of giving children second chance to resume classes is a good example to be followed.
More effort is needed to disseminate public education on importance of education so that children
remain in classes.13

5. Punishment to children.

Children's rights had have been violated by parents or guardians by giving them heavy punishment
including canning, being denied food, burning, and extreme beating, all these brutalities are against
human rights and children's rights as well. Torture and punishment administered to children is
against CRC and the laws of the land. Articles 19 and 34 of CRC states that, State Parties shall
protect children from all forms of physical or mental violence, maltreatment, injury or abuse.

In Zanzibar these are stipulated in penal code article 13 of 1986. In this context it is wise to educate
the community to abstain brutality to children. It is recommended that punishment administered by
parents to children should not violate the laws of the land and should take into consideration the
kind of offence.14

6. Sexual abuse.

Sexual abuses such as raping and defiling are becoming common and increasing in the community.
Though there are laws which prohibit these abuses, the acts seems to increase. In this regard there is
a need to find out an alternative means to prevent these abuses starting at family level; also
Government and religious leaders are in good position to criticize these sexual abuses which are
becoming chronic in the community.

13 Save the Children, Give children the chance for a lifetime 2007, Zanzibar (Unpublished)
14 Revolutionary Government of Zanzibar, Policy on the Survival, Protection and Development of the Child,
2001 (Zanzibar)
 CHILDREN AND THE LAW
BY SOLICITOR KATURA

Article 19 of CRC provides for protection of a child in all forms sexual abuse such as raping and
defilement. Zanzibar penal code of 1986 article 13 explains that raping, sexual abuse, or a sexual
affair with a child without his/her consent is a criminal offence. According to article 145 B (1) of
Zanzibar Penal code sexual abuse is a criminal offence. Article 125 explains that to have sexual
intercourse with a girl or a boy is a criminal offence and the offender is sentenced to serve 30 years
in jail.

The findings from adults said that girls are protected so that they may not be ''spoiled''. If this habit
is maintained then Zanzibar will be a good example in protecting girl child against sexual abuse.
Sexual abuse for boys has been mentioned in the questionnaires, which seems that they exist. Early
strategies are needed especially in taking legal measures against the offenders in order to prohibit
and criminalize such abuses.15

Also is recommended that law enforcement organ such as Police and Courts should be careful when
dealing with cases concerning raping, defiling and sodomizing children so that the public can have
confidence on them and the Government in general.

7. Early marriages and pregnancies.

Right to survival, protection, development and participation need to be protected. As per research
result, forced marriages after being caught committing adultery and early marriages are common
issues in Zanzibar. In line with CRC and ACRWC article 21(2), the Policy on the Survival,
Protection and Development of the Child, 2001 (Zanzibar) highlights the effects facing children
who marry early and become pregnant before maturity age. Also Zanzibar Education Act of 1982,
which criminalize child/pupil/students marriages. Any thing that leads to the denial of the child
rights is violation.

Forcing a child to marry is the violation of the International Conventions and the laws of the land.
The General public have the duty to protect children; they should not force to do things without

15 Revolutionary Government Zanzibar, Report on the Implementation of Rights of African Child 16, June
2007 (Unpublished)
 CHILDREN AND THE LAW
BY SOLICITOR KATURA

their consent. When a girl child becomes pregnant she looses her fundamental rights. Although it
may indicate that children involve themselves in an unprotected sex while they are at tender age and
put them at risk of contracting sexually transmitted diseases such as HIV/AIDS etc.16

There is a need to set strategies with stakeholders’ i.e parents, teachers, NGOs, Government
institution, religious leader and UNICEF in finding appropriate means to eradicate the problem
basing on Zanzibar customs It is important to all stakeholders dealing children's rights to remind
parents to observe International Conventions and laws of the land in protecting children's rights.

8. Drugs.

It is recommended that children should not be involved in business activities, because by doing so
children become attracted and tempted to use drugs such as marijuana and other kinds of drugs.
Also when children join adults in doing some activities together they imitate their behaviors
including the use of drugs. General public is obliged to protect children from being affected by the
use of drugs and have effects such as mental disorder, carelessness, drop out from school, become
street children and also endanger their lives.17

THANK YOU
SOLICITOR KATURA.

16 Stephen Porker, Philip Aliston and John Seymour, Children Rights and the law, Oxford University Press
1992, USA
17 UNICEF – Update of the Analysis of Women and Children in Zanzibar, 2006 Zanzibar (Unpublished)