No doubt many readers of the recent statement made by Mbeya Regional Commissioner Abbas Kandoro (“RC orders arrest, trial of pregnant girls,” The Guardian, 1/11/11;“Tukiwatenga wanafunzi wanaopata mimba tutakuza tatizo,” Nipashe, 1/11/11; “Kandoro aagiza wanafunzi watakaopata mimba wakamatwe,” Nipashe 1/11/11; “Wanafunzi wajawazito kuwajibishwa,” Uhuru, 1/11/11) concerning schoolgirl pregnancies found themselves wondering if what was being advocated would indeed be the best approach to decreasing the number of young pregnancies and keeping more girls in school.
Kandoro realized that many of those who are impregnating schoolgirls have not been legally accountable as often times the pregnant girls, their parents, their families, and their communities hide the identity of the perpetrator either willingly or because they have been bribed. According to the above articles, in order to address this, Kandoro instructed district authorities in Mbeya to draft a by-law allowing police to arrest, detain, and interrogate pregnant schoolgirls until they provide the names of those who impregnated them.
While this approach raises significant concerns, HakiElimu would first of all like to commend Abbas Kandoro for recognizing the severity of the problem, the current legal failure to address it, and the need to take strong, formal action. This is indeed an issue that will not be rectified if things are allowed to continue as they are.
However, when providing recommendations for actions to be taken, the full implications of these actions must be explored. In this case:
1) This type of detention is illegal. What the Regional Commissioner is advocating is called “unlawful detention.” Article 15 of the Constitution protects innocent citizens from being arrested, imprisoned, confined, or detained. Citizens cannot be detained simply because they may have information about a crime. If you have information about a bank robbery (but did not contribute to the robbery itself), you can be interrogated but not arrested and detained. If your house is robbed and you know who did it, you reserve the right to press charges or not—the police cannot arrest you and detain you until you reveal the name of the robber. In the same way, pregnant schoolgirls are in all cases either innocent or themselves victims of a crime—in no circumstance is it a crime in Tanzania for a girl (even a schoolgirl) or woman to become pregnant although there are circumstances, such as rape, in which the pregnancy is a result of a crime committed against the girl or woman. It is against the law for the police to detain innocent people or the victims of crimes themselves.
2) District by-laws cannot create a new criminal offense that is not found in the Tanzanian penal code. District authorities cannot instruct the police to begin arresting and detaining people who have not committed crimes.
3) Lockups are no place for pregnant schoolgirls. On top of it being illegal to detain them in lockup for interrogation purposes, lockups are very harsh environments for anyone, especially pregnant women and girls, many who may be under the age of 18, who need special care and who can easily be adversely affected by distress.
The Regional Commissioner is correct that action needs to be taken to address the issue of schoolgirl pregnancies, but this action should not only be permitted by the laws of this country but should also create the most positive impact on those affected. As such, HakiElimu strongly suggests the following:
1) Ensure the judicial system is holding accountable those offenders who are already known. As often discussed in the media and heard in various social circles, there are allegedly numerous cases of known offenders recorded at police stations and courts which have not been effectively handled, many times due to offenders bribing these institutions. According to the Education Act, 1978 as amended by the Law of the Child Act, 2009, the punishment for impregnating a primary or secondary school student can be imprisonment for three years. According to the Penal Code, the punishment for rape, which includes sex with a girl under the age of 18 even with her consent, can be imprisonment for life. However, instead of seeing jail sentences many offenders are set free. This problem needs to be addressed before simply identifying more offenders. More effective would be to follow the approach of then-District Commissioner of Karagwe, Fabian Masawe, (now Kagera Regional Commissioner) who re-pursued offenders who were in police and court records but who did not stand trial.
2) Conduct ethics education at the community level. If district authorities have the capacity and energy to institute and implement a by-law to arrest all pregnant schoolgirls, they should focus those efforts instead toward providing towns and villages with ethics education not only on how to deal with under-aged sex, cross-generational sex, rape, and bribe-giving and bribe-taking but moreover on how parents and community members can contribute to restoring ethics that have apparently been lost and forgotten.
3) Sufficiently teach reproductive health in primary and secondary schools. Although it is in the curriculum, it is sometimes taught superficially or purely biologically without addressing some of the difficult social aspects of the topic. Reproductive health needs to be taught comprehensively so that boys and girls understand not only how sex works but also the risk of pregnancy and disease and their consequences.
4) Pregnant girls need education not lockup. Instead of detention, pregnant girls should be granted the right to education. The Government needs to ensure that these girls are supported to exercise their right to basic education and that a conducive environment exists for young mothers to continue with their education after delivery. No evidence exists demonstrating positive societal benefits from excluding pregnant girls and young mothers from education. Headmasters and head teachers of schools who have expelled pregnant girls acknowledge that they have never benefited from this act. Instead they concede that they were playing a part in violating girls’ rights. Sadly, their actions drive girls and their newborn children into poverty and perpetuates both the individual and societal poverty cycles as a whole. All children have the right to receive an education. This statement can be found in domestic legislation such as the Constitution, the Education Act, and the Law of the Child Act, as well as national programs such as the Primary and Secondary Education Development Programmes. This declaration is also part of international covenants to which Tanzania has agreed, such as the Universal Declaration of Human Rights, the Convention on the Rights of the Child, and the African Charter on Human and Peoples’ Rights. Pregnant girls and young mothers need to have their education rights upheld; only then Tanzania will see the positive effects it will have.
While there is a felt need to address and resolve the issue of schoolgirl pregnancies immediately, we also need to keep in mind that the lasting solution is education itself.
Elizabeth Missokia
Executive Director
HakiElimu
Source: HakiElimu Facebook Page
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