CHILD PROTECTION- LEGAL, POLICY AND INSTITUTIONAL FRAMEWORK.

1. NYOTA WATOTO CONSULTACY FIRM ( NWCF ) CHILD PROTECTION- LEGAL, POLICY AND INSTITUTIONAL FRAMEWORK. By Advocate Stella Derrick Mdawah – NWCF Managing Director & Children Consultant

2. Why this training manual? Introduction • The aim of the training manual is to elaborate the legal, policy and institutional framework protecting children at the international and national level. • Policies, regulations and guidelines as well as structures are important for ensuring that children are adequately protected.

3. Child protection at international Level •  Children enjoy protection by way of general human rights provisions, and their relevance should not be underestimated. For instance the Universal Declaration of Human Rights, as the most prominent and fundamental UN human rights document provides in its Article 25 that childhood is entitled to special care and assistance. • Furthermore, the UN International Covenant on Civil and Political Rights, a legally binding document which came into force in 1978, contains provisions specifically referring to children.

4. Continue...... • The Human Rights Committee (the body responsible for monitoring the implementation of the Covenant) has emphasized that, the rights provided for in Article 24 are not the only ones that the Covenant recognizes for children and that, as individuals, children benefit from all of the civil rights enunciated in the Covenant”.

5. Continue..... • The International Covenant /treaty/ agreement on Economic, Social and Cultural Rights contains several child-specific provisions, with a focus on the right to education and protection from economic and social exploitation.

6. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS • The declaration was adopted in 10th December 1948. It establishes the principles of freedom, peace and equality to all man-kind. This was the first children’s rights instrument adopted by the UN General Assembly. These principles must be observed by all member states more especially through the respect of rule of law. • Rule of Law means Equality before the law(no one is above the Law/ supremacy of the law/ predominance of the law.), Separation of power and good governance

7. CONVENTION ON THE RIGHTS OF THE CHILD (20th November 1989) This Convention consists of 54 Articles, incorporating the full range of human rights – • civil, cultural, economic, political and social – and creates the international foundation for the protection and promotion of human rights and fundamental freedoms of all persons under the age of 18. (minor/child). • The Convention represents widespread recognition that children should be fully prepared to live an individual life in society, and be raised in the spirit of peace, dignity, tolerance, freedom, equality and solidarity.

8. Continue..... This convention is founded on the following principles, which build the foundation for all children’s rights: • • The right to equality: No child may be discriminated against on the basis of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. • • The best interest of the child 28 has to has to prevail: Whenever decisions are being taken which have an impact on children, the best interest of the child must be considered as A primary consideration.

9. Continue...... • • The right to life and development: Every Member State has to ensure, to the maximum extent possible, the survival and development of the child by, inter alia, providing access to health care and education, and by protecting the child from economic and social exploitation. • • Respect for children’s own views: Children should be respected and taken seriously, and they should be involved in decision-making processes according to their age and maturity.  • The CRC follows a holistic approach to children’s rights, recognizing that the rights anchored/ protected in the Convention are indivisible and interrelated, and that equal importance must be attached to each and every right contained therein.

10. Continue..... • Some of the rights under the CRC relate to family environment and alternative care, covering the Convention’s Articles 5, 9–11, 18(1) and (2), 19–21, 25, 27(4) and 39.This cluster addresses the fields of parental guidance; parental responsibilities; separationfrom parents; family reunification; recovery of maintenance for the child; childrendeprived of a family environment; adoption; illicit transfer and non-return; and abuseand neglect including physical and psychological recovery and social reintegration.

11. Continue.... • Likewise, there is a group of rights that contain special protection measures as laid down in Articles 22, 30, 32–36, 37(b)–(d), 38, 39 and 40. Special protection measures are provided for, among others, children in situations of emergency; refugee children; children in armed conflicts, including physical and psychological recovery and social reintegration; children in conflict with the law with regard to the administration of juvenile justice; children deprived of their liberty, including any form of detention, imprisonment or placement in custodial settings; children in situations of exploitation, including child labour; and children belonging to minority or indigenous groups. • It requires all member states to take measures aiming at combating abuse, neglect and exploitation of children

12. Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography • The protocol ensure that provisions protecting children from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development are adequately addressed.

13. Continue.... • In furtherance of the Convention on the Rights of the Child and the implementation of its provisions, especially articles 1, 11, 21, 32, 33, 34, 35 and 36, the optional protocol extends measures that states need to take in order to guarantee the protection of the child from the sale of children, child prostitution and child pornography; international traffic in children for the purpose of the sale of children, child prostitution and child pornography; practice of sex tourism, to which children are especially vulnerable; vulnerable groups, including girl children, are at greater risk of sexual exploitation and that girl children are disproportionately represented among the sexually exploited

14. Continue... • The protocol emphasizes that the elimination of the sale of children, child prostitution and child pornography will be facilitated by adopting a holistic approach, addressing the contributing factors, including underdevelopment, poverty, economic disparities/ equalities, inequitable socio-economic structure, lack of education, urban-rural migration, gender discrimination, irresponsible adult sexual behaviour, harmful traditional practices, armed conflicts and trafficking in children. it highlights the importance of raising public awareness are in reducing consumer demand for the sale of children, child prostitution and child pornography.

15. Continue... • This is an important addition to the CRC in that it is aimed at specifically protecting children from entering into armed conflict or participating in armed hostilities. It lays emphasis on the role of the state in taking measures that will ensure that children are not recruited into the army. The protocol provides for a minimum age into entry into armed forces to be 18 years. It reinforces the need to protect all children from armed conflict.

16. AFRICAN CHARTER ON THE RIGHTS AND WELFARE OF THE CHILD • The Charter aims to complement/ balance the CRC and additionally addresses issues of particular importance to children in Africa.The Charter was adopted in view of the critical situation in which most African children find themselves in terms of their socioeconomic, cultural, traditional and developmental circumstances, natural disasters, armed conflicts, exploitation and hunger

17. Continue... • The Charter points out that child require particular care and legal protection, and that they deserve freedom, dignity and security due to their physical and mental development. Thus, the Charter, clearly and without limitation, defines a child as any person under the age of 18, it completely outlaws the recruitment and use of child soldiers, it sets the minimum age for marriage at the age of 18; and it includes internally displaced children with regard to the protection of child refugees. In this sense the African Charter goes further than the CRC.

18. ILO Conventions on Child Labour • Convention on the Worst Forms of Child Labour 182 of 1999 and the Convention on Minimum Age of Employment 138 of 1973 define a child to be a person under the age of 18 years. • Convention 138 contains child-protective provisions. For example, it encourages States Parties to specify a minimum age for employment, and it emphasizes that the interests of children are paramount.

19. Convention on Elimination of All Forms of Discrimination Against Women • Convention on Elimination of All forms of Discrimination Against women addresses issues of violence and discrimination facing women and girl children and calls for the absolute elimination of all conditions that put women and children at risk from abuse and violence. • Worst forms of child labour are categorized into two groups, the unconditional worst forms, these are the types of child labour that cannot under any circumstance be tolerated, for example child prostitution, recruitment of children in armed conflict, engaging children in illicit activities (e.g. sale of drugs) and forced labour

20. UN Guidelines for the Appropriate Use and Conditions of Alternative Care of Children The guideline highlights the importance of a child growing up in a family. The family is the core and central unit for caring for a child. It emphasizes that all efforts should be made to ensure that children remain in or return to the care of their parents and if not possible, then close family members. • The responsibility of the state is to ensure that families are capacitated to provide care. It provides conditions for alternative care • The child should be as close as possible to the habitual place of residence for ease of contact and potential re integration with family

21. Continue... • The home must be stable and ensure that the child gets the basic needs, safety and continuous attachment to the caregivers • Children should be treated with dignity and respect and must not under any circumstances be abused in any way • Removing children from their family should be seen as a measure of last resort and poverty should not be a sufficient ground for removal of a child from their homes. Removal should also be in the best interest of the child.

22. Child Protection at National level National Policy and Legal Framework. The Legal Framework The Constitution of the United Republic of Tanzania • The constitution of the United Republic of Tanzania upholds principles of human rights and justice. The Constitution provides for the age of a child to be under 18 years and for all citizens of Tanzania to be guaranteed basic rights, including children. it prohibits discrimination based on gender, age, race and ethnicity

23. The Law of the Child Act (2009) • It is important to remember that international treaties do not become law in Tanzania unless they have been ratified / approved by the Parliament and domesticated into national law. • Most of these laws have been domesticated. The current Law of the Child Act reflects key principles outlined in international instruments, particularly the CRC; the SOSPA (Sexual Offences Provision Act) outlines principles stated in the CEDAW. • This is a new law that safeguards and ensures the protection and welfare of the children. The Act lays down the definition of the child to be a person under 18 years of age

24. Continue... • This automatically forces other statutes dealing with children to conform to this new Act since is considered to be the Parent Act dealing with children’s rights. Provisions of the Act are based on the principle of the best interests of the child as emphasized by the CRC. However, the LCA goes further than the CRC, stating that the best interests of the child is THE primary consideration in all actions concerning a child whether undertaken by public or private social welfare institutions, courts or administrative bodies.

25. Continue... • The Act covers the right not to be discriminated, the right to a name and nationality and the right to grow up with parents. Other rights provided for in the Act include the right to life, the right to dignity, the right to be respected, the right to leisure, the right to liberty, the right to health, the right to education and the right to shelter to be provided by his parents. It also provides safeguards and protection of the child from entering into discotheques, bars and night clubs. Also the roles of Social Welfare Officers are outlined, in relation to care and protection and in respect of children in contact and in conflict with the law.

26. continue...... The Key Policies • Since mid 1990’s, Tanzania has developed national and sectoral policies to promote the welfare of children. Tanzania has also ratified most major international human rights instruments on children. These include the UN Convention on the Rights of Child(CRC) which was ratified on 10th July, 1991,(include the 2 optional protocols) the African Charter on the Rights and Welfare of Children(ACRWC) which was ratified on 9th May 2003 and the UN Convention on the Elimination of All forms of Discrimination Against Women(CEDAW) which was ratified on 21st August 1985.

27. Child Protection Policy • While some policies are specifically child focused like the Child development and the Education and Training policies, there others which are of a more general nature like the Health policy, Food and Nutrition and Community Development policies although they are addressing issues that are of major importance to children.

28. Continue... • When considering policy, it is important to bear in mind that children’s issues are broad and interlinked and therefore important to identify all policies that have a bearing on children’s health and welfare. • It should be noted that, the realization and enjoyment of children’s rights entail fulfilment of all rights , which are provided for in the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child. These rights are normally categorized into four basic Rights clusters. ; Right to Development, Right to Protection, Right to Participation and Right to Survival.

29. CHILD DEVELOPMENT POLICY, 2008 • The policy aims at promoting child survival, development, participation and life. A child is defined as a person below the age of eighteen years. It highlights the need to protect children living in difficult circumstances, such as orphans, children with disabilities, street children, children affected by natural disasters. • The Ministry concerning gender and children has a five year strategic plan (2006-2011) which among other things, aims at promoting and protecting rights of children, women and men as well as achieving quality and equity.

30. EDUCATION AND TRAINING POLICY, 1995 • One of the aims is to enable children out of formal school system to improve the quality of their life through a variety of relevant educational and training programmes. • Policy states that Government shall promote, strengthen, coordinate and integrate non formal education with formal education and training systems. The Education Act of Tanzania provides for the development of the system of Education based on the national policy on education and other national plans and priorities.

31. Continue... • The act provides that every citizen of the United Republic of Tanzania is entitled to receive the level of education as his ability may permit him/her. In case a parent fails to enroll his/her child to primary school commits an offence. • The Primary School (Compulsory Enrolment and Attendance) Rules provides for measures to be taken in case a parent fails to enroll his child or when a parent or any other persons in any circumstances cause a child to not attend school.

32. NATIONAL ACTION PLAN ON MOST VULNERABLE CHILDREN (MVC) 2007 -2011 • The MVC is a breakthrough document that highlight government’s plan of reaching the MVC. It contains details in numbers per region of the MVCs and how they will be supported. • The plan focuses on six main areas being, policy and service delivery environment, household and child level care, protection and security, psychosocial support, measuring the process and resource mobilization.

33. Ministry of Labour, employment and youth development coordinates the Labour policy, national employment policy, trade unions, human, informal sector, youth development policy, employment and youth self-reliance projects, vocational training youth organizations, probation and repatriation of destitute youths. they are also in charge of the national strategy on child labour. the employment and labour relations act, 2004 provides for protection of the child against labour exploitation (section 5). the act stipulates that no person shall employ a child under the age of fourteen years. NATIONAL EMPLOYMENT POLICY AND EMPLOYMENT AND LABOUR RELATIONS ACT, 2004

34. NATIONAL MULTISECTORAL SOCIAL PROTECTION FRAMEWORK • The National Multisectoral Social Protection Framework (draft 2008) is the overall national strategy for addressing the development needs of those who are generally considered poor or at risk from falling into poverty as well as those who live in extreme levels of poverty. • The framework has outlined specific extremely vulnerable groups as a target for support. Strategies to be used in addressing the social protection needs of children include scaling up of successful state and non state actors community based care and support programmes for MVC; increased access to social services, vocational training, and grants/financial support (e.g. cash transfer, child grants, social scheme)

35. NATIONAL POVERTY REDUCTION STRATEGY PAPER (MKUKUTA) • MKUKUTA Cluster II focuses on achieving two broad outcomes, namely: (i) improved quality of life and social wellbeing, particularly of the poorest and most vulnerable groups (MVC) in the population; and (ii) reduced inequalities (e.g., in education, survival, and health) across geographic areas, income, age, gender and other categories. • MKUKUTA II focus focuses on how to deliver quality social services (education, survival, health and nutrition, clean and safe water, sanitation, decent shelter and a safe and sustainable environment) for the poor and most vulnerable

36. Continue..... • Goal 6 aims at providing adequate social protection and rights to the vulnerable and needy groups. in meeting the goal, MKUKUTA will focus on social protection interventions for orphans and vulnerable children; people with disabilities; the elderly; people living with HIV and long term illnesses; vulnerable women and youth; former inmates and people disabled by accidents, wars and conflicts

37. Child Protection -Institutional Framework/Support • There are several institutions responsible for children’s rights and welfare in Tanzania. This unit elaborates on the structures from national levels to community levels. Each of the structures has a specific role in terms of protecting children, however they are interdependent.

38. Ministry of Health and Social Welfare Children’s Homes, Remand Homes, Approved School, Drop in Centers • The Department of Social Welfare, which was established in 1967, is a department within the Ministry of Health and Social Welfare. Its primary function is to lead and coordinate the efforts of the government to provide for the social welfare needs of the most vulnerable and marginalized populations. • The government has specific institutions that aim at protecting children. Institutions under the governance of the Ministry of Health and Social Welfare, particularly the department of social Welfare include the following:

39. Continue... • Day Care Centre's In Tanzania, child care services are provided through two structures - Day Care Centre's and Children’s Homes. The former prepare children aged 2-6 for primary education, and are registered and monitored by the Commissioner of Social Welfare who is responsible for establishing standards and monitoring performance. Children’s Homes Children’s Homes are established by Law of the Child Act. Under the law Section 2 “Children home” means any premises other than an approved school, where five or more children being orphans or children whose relatives or guardians are unable or unwilling to care for them are received to be cared for and maintained, either gratuitously or for payment, for a period of longer than seven days by a person who is not a relative or guardian of the children.

40. Continue.. • Remand homes On the mainland of Tanzania there are only five remand homes which have a capacity of 215 children at a time. Because of low capacity, children often end up in police lock-up or in remand with adults despite legal requirements that they should be separate premises. Approved School/ the correction centre provide reformative and reintegration programmes to prepare for reintegrate into society when discharged. They provide counseling, life skills and vocational training.

41. Ministry of Community Development, Gender and Children • The ministry responsible for overall policy on children in Tanzania is the Ministry of Community Development, Gender and Children. • The main distinguishing factor between this Ministry (department of children) and the Department of social Welfare is the fact that this Ministry is vested with the mandate to address issues affecting children in general while the department of Social Welfare is vested with the mandate to focus on vulnerable children or children vulnerable to abuse, exploitation and neglect. • The Ministry of Community Development, Gender and Children has formed a Task Force to address issues of violence against women and children.

42. Ministry of Education and Vocational Training • The Ministry of Education has the responsibility of coordinating, reviewing and recommending strategies on basic education • The government is also expanding vocational schools to reach every district in order to absorb children who are missed out in the enrolment for secondary education; implementation of this plan is yet to materialize / happen.

43. The Judiciary • The Judiciary is the body in Tanzania that is mandated to adjudicate cases and administer law. It is established from central to lower levels of governance. The Court of Appeal is the top appellate court, the High court is a court of appeal for matters emanating from lower courts, but it is also a court of first instance when an issues requires the audience of High Court judges. • Many of the cases involving children are dealt with by Magistrates Courts or Primary Courts. These are district based courts, the Magistrate and District courts are based at the district level while Primary Courts are based in villages. At village levels, there are also tribunals mandated to deal with specific issues, such as land. These are not mandated to deal with child abuse or neglect.

44. Continue... • There is only one Juvenile Court in Tanzania. However, this court is based in Dar es salaam and therefore cannot hear all cases involving Juveniles occurring in all parts of the country. • The Law of the Child Act allows the Chief Justice to designate any premises used by a primary court to be a Juvenile Court. This is why such cases are heard by Magistrates/Primary Courts, but in an environment that provides juveniles with the same rights and conditions.

45. Ministry of Home Affairs - The Police • The Tanzania Police Force has formed Tanzania Police Female Network on violence against women and children. The police is an important department in ensuring that children are protected, particularly children that come in contact with the law. The police are located in all districts in Tanzania, but they are not located in all villages. • Currently, in some of the police stations, there gender desks whose main function is to hear cases brought in by women and children or cases.

46. Commission for Human Rights and Good Governance (formal) • The Commission for Human Rights and Good Governance is responsible for monitoring human rights issues including rights of children. • The Commission has a children’s desk that deals with children’s rights. • The commission has procedures for conducting research, public hearings, complaint handling procedures and other processes that aim at ensuring that rights of citizens in Tanzania are realized and protected. One of the function of the commission is to promote within the country the protection and the preservation of human rights and of duties to the society in accordance with the Constitution and the laws of the land; In line with that, the commission has established a directorate of children to ensure that children issues are being sensitively dealt with.

47. District and Community Based Structures Local Level Committees: • There a number of committees at district, ward and village levels. The main role of these committees is to protect children and therefore it is important to link all work aiming at protecting children to these structures. Some of these structures have been formalized and others are not formalized. The child protection structures have just been established through an informal but integrated process involving all the key departments dealing with children at district levels. Child Protection Structures have been established in a few districts in Tanzania and therefore are not operational countrywide.

48. District Child Protection Unit (informal) • The child protection unit is based at the district level and its main role is to monitor, supervise and guide all work concerning abused children. • The Unit is made up of different actors from different departments at district level (mainly community development, social welfare and any other) working together to address child abuse and exploitation. • The Unit is supported by a Child Protection Team that is broader and multisectoral. The team meets once every quarter to discuss progress on various issues regarding child protection.

49. Child Labour Committees (informal) • These are committees that are established to monitor child labour in districts and villages. Most of them are usually district based, but in some of the districts, they have child labour committees at village level. • The level of implementation of this committees is at the District/Ward/Village

50. MVCC (informal) • At the community level, MVC committees have been established; these committees follow up on various activities aimed at protecting vulnerable children. They are also responsible for compiling data on MVC, advocating for the rights of children, preparing plans and budgets and links with schools to enhance access to education for MVC and link them to health facilities. • The level of implementation of this committees is at the Village