By Elizabeth Button
This article is republished with permission from Consultancy Africa Intelligence (CAI). For more information, see Consultancy Africa Intelligence.
Malala Yousafzai, who was shot in the face by Taliban gunmen in October 2012 for claiming her right to education, celebrated her sixteenth birthday on 12 July 2013. Together with hundreds of education activists at the United Nations (UN) headquarters in New York, Yousafazi campaigned for concerted global efforts to ensure that every young person has the opportunity to fulfil their potential through access to a quality education.(2)
Beyond the limelight, numerous reports have surfaced of young women in the United Republic of Tanzania being married off too young, working as child labourers, or getting expelled from school due to pregnancy.(3) Many of these young women, who should still be in school, would have been close to finishing primary school or intending to go to secondary school. But at the critical transition point – both in terms of progressing beyond elementary education and going through puberty – they are denied access to further learning opportunities. Moreover, with little or no social or economic support, they are left on their own, vulnerable to further human rights violations.
This CAI paper examines relevant international, regional, and domestic Tanzanian laws on access to education, as well as women’s rights regarding marriage. It seeks to prompt discussion by identifying ambiguities where young women are inadequately protected and are exposed to exclusion and discrimination. This paper suggests that Tanzanian law must guarantee young women access to education as a basic right, or risk exacerbating what could be the next looming human rights crisis: a bottleneck at secondary education, where young women are shut out.
Legal logistics (4)
Under the Universal Declaration of Human Rights (UDHR) it is established that everybody has the right to education, especially in the fundamental stages (meaning education at a foundational and primary school level).(5) Moreover, that education shall be focused “…to the full development of the human personality and to strengthening respect for human rights…” as well as promoting “…understanding, tolerance and friendship among all nations, racial or religious groups.”(6) The International Covenant on Economic and Social Rights (ICESCR) further specifies that fundamental education shall be available to all, especially for those who have not completed a full primary education. It also requires that secondary education shall be made generally available and accessible to all.(7) These are rights that signatory states actively work towards realising, particularly through legislative measures, without discrimination of any kind.(8)
The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides that women shall have equal educational rights to men, for example, on conditions of access and opportunities, including Continuing Education Programmes.(9) The Convention on the Rights of the Child (CRC), which defines a child as any human being under the age of 18 years, re-emphasises educational pledges made under the UDHR and ICESCR.(10) It is also states that a child’s parents, culture, and national values shall be respected.(11)
Tanzania has also ratified the African Union’s African Charter on Human and Peoples’ Rights (ACHPR), which reaffirms the right to education.(12) Guidelines to the ACHPR, still in drafting, ensure that pregnant girls should have the opportunity to continue their education and that working children should be kept away from the worst forms of child labour through incentives that keep them in school.(13)
The Constitution of Tanzania, currently under review, affirms that every person has the right to education and that the Tanzanian Government shall endeavour to provide equal opportunities to education.(14) But these stipulations do not fall under the Basic Rights and Duties section of the Constitution.(15) Subsequent acts guarantee compulsory enrolment in primary education between the ages of 7 and 13, set the minimum age of employment at 14 years and the age at which females can enter into marriage at 15 years (14 under ‘special circumstances’).(16) Tanzania does not appear to have a clear policy on girls being allowed in school during or after pregnancy.(17)
Access to education ambiguities
The UDHR, which remains the main reference point for all other human rights frameworks, assumes fundamental education to be sufficient in enabling the full development of a human personality. However, what was considered ‘fundamental’ in 1948 has surely changed in the past 65 years that have been witness to Tanzanian independence, the diversification of complex economic systems, and the spread of HIV/AIDS.
By further defining the right to education as universal access to free primary schools (defined as such in both the ICESCR and the Tanzanian Constitution), the scope of what constitutes fundamental education has become even narrower. This has been encouraged by international development sector practice, for example through the Millennium Development Goals, which tend to adopt exclusive approaches to achieving targets, such as increasing the number of children enrolled (note, this does not measure retention or drop-out rate) in primary school by 2015.(18) This is not intended to belittle the tremendous work that international development does but to show that, in terms of appreciating the context in which human rights coverage must be extended, it can be limiting.
Of course, understanding, tolerance and friendship between people of different nations, races and religious groups should be encouraged through education. But what the UDHR and subsequent frameworks fail to understand is that societies are divided in more ways than nation, race, and religion. There are, for example, divides between rich and poor, men and women, urban and rural, educated and uneducated, old and young. When it comes to interpreting the law, these divisions can force contradictions. For example, when a 13 year-old girl is forced into an early marriage and out of school, it is a breach of her human right to education, her right to a full primary school education, and is clearly illegal under Tanzanian law. However, there remains an ambiguity since, even under the CRC, parents and their cultural values must be respected. This is based on the premise that people under the age of 18 years are ‘minors’ in legal terms and must be represented through an adult guardian.(19) Yet, under Tanzanian law, it is not clear what the protocol should be when a guardian forces harmful practices upon a child, or where the boundaries between individual and collective, or statutory and customary, cultural rights fall.
Part of the ambiguity lies in whether an adolescent female, especially one that is pregnant, is legally considered a child or an adult woman. According to the CRC, a child is someone under the age of 18 years and yet, under Tanzanian law, females can consent to marriage (generally considered a rite of passage to adulthood, with childbirth an affirmation of that status) at the age of 15. Thus, there is added confusion over whether a young woman is guaranteed the right to access further education because she is a woman (a gender equality perspective) or a child (a child protection perspective). This begs the question of how she is legally protected if she does not fully fit into either of those categories. In any case, to deny a young woman access because she is pregnant is a clear form of discrimination. And it does not promote an understanding of tolerance and friendship.
Another element to consider is Tanzania’s dualist legal system whereby a distinction is made between national and international law.(20) Though the Tanzanian Government is obligated to adhere to the international treaties that it has signed, international law does not apply in Tanzanian courts.(21) It may have some leverage in a hearing, but unless statutes have been incorporated into Tanzanian national law, international law does not count.(22) It is therefore the case that a young pregnant woman may be entitled to stay in school under the ACHPR, but up to now there is no such provision in the Tanzanian Constitution.
For the majority of young women in Tanzania, especially in rural agricultural areas, the reality of living in an environment of widespread poverty is of immediate concern. The abstraction of the law, often being debated by older men in far away urban centres, is not. However, among law makers, and throughout higher education institutions, it is accepted that the law, rather than being considered as something static, is ‘alive’ and can be altered and revised through democratic processes.(23) Moreover, laws do not just automatically change things: they must be exercised in courts to hold people accountable and to bring about change.(24)
Tanzanian society has strong patriarchal elements and, as with much of the African continent, this trickles down into the education system.(25) Young women grow up being told that they are subordinate to men. They become burdened with time-consuming chores and watch their male peers receive preferential access to education.(26) Without knowledge of their rights to equality, and with few social support structures through which to form sustainable advocacy movements (for example, a school), it is hard for young women to challenge the patriarchal status quo. Moreover, doing so can be met with strong repercussions such as gender-based violence. It is ironic to note that Tanzania – a country that values education, as evidenced by the reverence with which its first president, Julius Nyerere, continues to be accredited the title Mwalimu (meaning ‘Teacher’ in Kiswahili) – should fall short of assuring access to education to its female population.
This makes the issue of young women being able to represent themselves in court all the more important. Having already considered the legal ambiguities of Tanzania’s dualist legal system – the discrepancies between international and domestic jurisdiction on access to education – another point to reflect on is how young women are able to have their cases heard, if they cannot represent themselves and lack the knowledge and tools to access the courts. This situation, which is further exacerbated when a young woman cannot go to a school, clearly denies her the right to participate in democratic law-making and impedes her ability to reach her full potential, not just in education, but as an equal citizen of Tanzania.
The denial of education to girls, relating to situations of early marriage and pregnancy, is by no means unique to Tanzania.(27) Education is essential to breaking cycles of poverty since it opens the door to improved health, earning opportunities and material well-being.(28) A woman who is forced to marry early is more likely to remain poor because she is denied the economic opportunities that a full education gives. And she is more likely to become infected with HIV/AIDS because she lacks the knowledge or power to refuse harmful sexual practices.(29) Educated and healthy people increase the quality of the human capital which is essential to Sub-Saharan Africa’s economic growth and development, and economists warn of an impending crisis for Africa if the education situation is not adequately addressed.(30)
From a development perspective, the Tanzanian Government should be commended for the steps it has taken to address some of the challenges of poverty. For example, the government has made more credit facilities available by urging private financial institutions to give credit to women in order to enhance women’s economic capacity.(31) However, this is much like treating the symptom rather than the cause as to why women are lacking in economic power in the first place.
The Tanzanian Government must consolidate these achievements by giving young women adequate legal coverage to access (and re-access) education, as stipulated in its commitments in the ICESCR. The most urgent amendment should be to place education under the Basic Rights and Duties section of the Tanzanian Constitution. The government should also take heed of its neighbours, Malawi, Uganda and Zambia, all of whose governments have policies that allow young women to return to school after giving birth.(32) The government should also increase the age at which young women can get married under ‘special circumstances’ up from 14 – a measure advocated by Tanzanian women’s rights groups.(33) Greater efforts must be made to empower more young women to participate in the law-making process. One strategy would be to raise the profiles of Tanzanian female education activists and role models – both regionally and at the international level. Only then can the young Tanzanian women who listened to Yousafzai speak at the UN, live to see the pledges made to them fulfilled.
(1) Elizabeth Button has an interest in African history with a focus on East and North East Africa, and the Kiswahili language. She is currently working at Camfed International in Cambridge, United Kingdom. Contact Elizabeth through Consultancy Africa Intelligence’s Rights in Focus Unit (firstname.lastname@example.org). Edited by Kate Morgan.
(2) Plan website, http://www.plan-uk.org.
(3) Makoye, K., ‘Factbox: Facts and figures on child marriage in Tanzania’, Thomas Reuters Foundation, 7 June 2013, http://www.trust.org; Sauti Moja website, http://www.sautimoja.org; Save the children website,http://resourcecentre.savethechildren.se.
(4) For a comprehensive overview of the legal situation on education in Africa see Baker, T., ‘Litigating the right to education in Tanzania: Legal, political, and social considerations and potential applications’, Hakielimu, February 2011, http://hakielimu.org.
(5) ‘Universal Declaration of Human Rights’, 10 December 1948, United Nations General Assembly: New York, http://www.un.org.
(7) ‘International Covenant on Economic, Social and Cultural Rights’, 3 January 1976, United Nations General Assembly: New York, http://www.ohchr.org.
(9) ‘Convention on the Elimination of All Forms of Discrimination against Women,’ 18 December 1979, United Nations General Assembly: New York, http://www.un.org.
(10) ‘Convention on the Rights of the Child’, 20 November 1989, United Nations General Assembly: New York, http://www.ohchr.org.
(12) ‘Draft Principles and Guidelines on Economic, Social and Cultural Rights in the African Charter on Human and Peoples’ Rights,’ 24 October 2011, African Commission on Human and Peoples’ Rights: Nairobi, http://www.achpr.org.
(14) ‘The Constitution of the United Republic of Tanzania’, 1998, United Republic of Tanzania: Dar es Salaam, http://www.judiciary.go.tz.
(16) ‘The National Education Act’, 1978, United Republic of Tanzania: Dar es Salaam,http://polis.parliament.go.tz; ‘The Employment Act no. 11 of 2005’, 2005, United Republic of Tanzania: Dar es Salaam, http://www.ilo.org; ‘The Law of the Marriage Act’, 1971, United Republic of Tanzania: Dar es Salaam, http://tanzanet.org.
(17) Forum for African women educationalists website, http://www.fawe.org.
(18) United Nations website, http://www.un.org.
(19) Saiboko, A., ‘Child marriage blamed for gender inequality’, 24 April 2013, Tanzania Daily News,http://www.dailynews.co.tz.
(20) Baker, T., ‘Litigating the right to education in Tanzania: Legal, political, and social considerations and potential applications’, Hakielimu, February 2011, http://hakielimu.org.
(23) Right to education website, http://www.right-to-education.org.
(24) Baker, T., ‘Litigating the right to education in Tanzania: Legal, political, and social considerations and potential applications’, Hakielimu, February 2011, http://hakielimu.org.
(25) Athman, S., ‘Patriarchal system in transition’, The African, 2 September 2012,http://www.theafrican.co.tz.
(27) Plan website, http://www.plan-uk.org.
(28) Green, D., 2012. From poverty to power: How active citizens and effective states can change the World. Practical Action Publishing: Oxford.
(29) Girls not brides website, http://www.girlsnotbrides.org.
(30) ‘Education crisis clouds outlook for African economies’, The Oxford Analytica Daily Brief, 15 July 2013,https://www.oxan.com.
(31) Tanzanian Government website, http://www.tanzania.go.tz.
(32) Forum for African women educationalists website, http://www.fawe.org.
(33) Makoye, K., ‘Child marriage in Tanzania: Cash for parents, problems for girls’, Thomas Reuters Foundation, 7 June 2013, http://www.trust.org.