Zanzibar’s Children’s Act is a pioneering comprehensive child rights law covering custody, foster parentage, and guardianship, as well as the roles and responsibilities of professionals and institutions in providing services for children, dealing with children in need of care and protection and those in conflict with the law. The Act lays the foundation for a coordinated child-protection system while also implementing a range of obligations under regional and international conventions on the rights of the child. It serves as a promising model both for its drafting process which involved a pioneering community-level child participation process and its provisions which have led to a marked societal change in attitudes towards children and their rights.
- This Act implements a range of obligations under regional and international conventions on the rights of the child and streamlines Zanzibar’s own child rights legislation.
- A unique feature of the process was the far reaching child consultation process, led by the Government of Zanzibar in partnership with UNICEF, working with Save the Children which involved an innovative programme of community-level child participation. The consultation occurred in all districts and provided children with an understanding of the content of the Children’s Act and an opportunity to make critical suggestions on issues that affect their lives.
- Despite scarce resources a number of impressive formal institutions responsible for child protection and child participation have been introduced including: a specialised Children’s Court system; over 200 Children’s Councils, a National Children’s Advisory Board and Police Gender and Children’s Desks with specially trained officers.
The arrangement between mainland Tanzania and the islands of Zanzibar, one akin to a federal arrangement, requires that the two regions enact separate laws on children’s issues. The Tanzanian Constitution created a union of two jurisdictions with their own branches of government; the Government of the United Republic of Tanzania and the Revolutionary Government of Zanzibar. The Zanzibar Children’s Act follows the enactment of a comprehensive child rights law by the Government of the United Republic of Tanzania: the Law of the Child Act 2009. This Act implemented several obligations under regional and international conventions on the rights of the child to which Tanzania is party, including: the UN Convention on the Rights of the Child, and its Optional Protocols on the Sale of Children, Child Prostitution, and Child Pornography; and on the Involvement of Children in Armed Conflict; as well as the African Charter on the Rights and Welfare of the Child.
These two statutes bring Tanzania close to fully domesticating its obligations under international law that are relevant for children’s rights. Other related Act’s include:
- The Tanzanian Water Act (2006) (applicable in Zanzibar), commits the State Party to provide clean and safe water to its people, including children.
- The Tanzanian Employment Act (2005) (applicable in Zanzibar), protects children from child labour and the worst forms of child labour.
- The Tanzanian Anti-Trafficking in Persons Act (2008) (applicable in Zanzibar), prohibits any form of traffic in persons, including children, within or outside the State.
In 2009, Tanzania was one of the first countries in Africa to undertake A National Study on Violence against Children which showed that 6% of females and 9% of males in Zanzibar experienced sexual abuse as children and almost three-quarters of both girls and boys have experienced physical violence prior to the age of 18. Almost half of the population are considered to be living in poverty with serious impacts for children’s well-being.
To combat these problems and streamline national child rights legislation a pioneering comprehensive children’s rights law was introduced in Zanzibar in 2011. Zanzibar’s Children’s Act lays the foundation for a coordinated child-protection system to effectively respond to cases of violence and abuse, and to better promote and protect the rights of children in conflict with the law. The Children’s Act enshrines in Zanzibar law key principles of the UN Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child (ACRWC).
The Act contains a number of home grown adaptations and novelties (including the clear recognition of the Islamic faith which 98 % of citizens adhere) while containing best practice provisions shaped by law reform in nearby countries in Southern and Eastern Africa.
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Sustainable use of natural resources
- Funding remains a challenge according to the Ministry of Empowerment, Social Welfare, Youth, Women and Children who are in charge of implementation. However, the government does allocate specific funding for children, have provided infrastructure (e.g. a building for the new Children’s Court) and has contributed in terms of recruitment of new staff.
- In addition, both on the Tanzanian mainland and Zanzibar, other cross-cutting ministries such as those responsible for education, health, sports, home affairs and local government authorities do allocate budgets for issues relating to children’s welfare, a fact that resulted in it being ranked (in 2010) the first country amongst African governments to allocate budgets for children.
Equity and poverty eradication
- A child rights based approach was adopted based on the best-interests of the child, with all children as beneficiaries, regardless of their social status, religion, age, etc.
- The policy and particularly the consultation process were deliberated framed in a way that could be understood by children. During the training and consultation phase Save the Children helped to ensure all of the issues were simplified for children created dedicated communication tools for the children, including peer to peer learning.
- The Act domesticates Zanzibar’s obligations under the CRC and international law that are relevant for children’s rights.
- Tanzania has made a significant effort to improve the scientific knowledge base around child rights including being the first country in Africa to undertake A National Study on Violence against Children measuring all forms of violence (sexual, physical and emotional) amongst girls and boys and giving national estimates of the prevalence of violence.
Public participation, access to information and justice
- The Law benefitted from an extensive community-level consultation process involving a wide variety of actors from civil society, the media, as well as community, religious and government.
- A meaningful and inclusive child consultation programme also aimed to provide young Zanzibaris with an understanding of the content of the Children’s Act and the legislative reform process, and provided them an opportunity to make critical suggestions on issues that affect their lives.
- Over 500 children drawn from the 100 shehias (village level administrations) from all districts and geographical areas took part in the consultations (stratified in gender, age and vulnerable groups including those with HIV and disabilities and including minority Christian and Hindu children). The children were consulted through focus groups, peer-to-peer awareness-raising and information-sharing activities.
Good governance and human security
- The lack of a comprehensive monitoring and evaluation mechanism needs to be taken into account. However, according to the CRC 2013 Tanzania country report (CRC/C/TZA/3-5) the governance situation for children’s affairs is greatly improved in Tanzania and Zanzibar, in compliance with CRC Committee recommendations.
- A ‘child protection coordination mechanism’ has been established to oversee the implementation of the law which includes representatives from the relevant government ministries (Education, Social Welfare, Health etc.), civil society groups, police, court and legal service representatives.
- A number of other key structures and mechanisms to ensure the law’s enactment in Zanzibar have been introduced, including: the establishment of Child Protection Units; the specialised Children’s Court; Gender and Children’s desks at police stations, etc.
Integration and interrelationship
- The policy approach was comprehensive, cross-sectoral and directly aimed at mainstreaming child rights. Three overarching themes guided the consultation process in Zanzibar (namely child protection, non-discrimination and participation). The Act has been hailed as a regional good practice example.
Common but differentiated responsibilities
- The Act was pioneering and innovative in its consultation procedure, adaptations to local cultural and religious practices and innovative in its institutional context.
Violence against young women, men and children is increasingly recognized as an important human rights, health, and social challenge in Tanzania and the semi-autonomous island region of Zanzibar. In 2009, the National Study on Violence against Children for the first time measured all forms of violence (sexual, physical and emotional) amongst girls and boys giving national estimates of the prevalence of violence. The results from this national study showed the magnitude and nature of violence against children with 1 in 10 boys and over 1 in 20 girls experience childhood sexual abuse (around half of Tanzania’s population are under the age of 18). Almost three-quarters of both girls and boys have experienced physical violence prior to the age of 18. Child poverty levels on the island were also shown to be high, and child labour common especially during harvest times and the main tourist season. Child prostitution, often catering to sex tourists, was also shown to be a significant problem. The unprecedented numbers of orphans and vulnerable children resulting from the AIDS pandemic, combined with the weakening of family and community care structures increase the risks of violence and exploitation faced by children.
This situation was not helped by the fact that the development of child-relevant law in Zanzibar before 2011 had been haphazard with relevant provisions scattered in different codes (in e.g. the Employment Act 2005, the Criminal Procedure Act 2004, the Education Act 1982 etc.) with differing legal definitions of a child. In addition prior the Children’s Act (2011), the legislative framework for the protection of children in Zanzibar did not conform to the necessary standards as required under international law. The United Republic of Tanzania had ratified the United Nations Charter on the Rights of the Child (CRC), with no reservations, in 1991. The Zanzibar Revolutionary Government as the executive body responsible for introducing legislation on the islands had a duty to draft and implement a comprehensive Children’s Act to give full force to the provisions of the UN CRC.
To confront these problems and streamline national child rights legislation Dr. Ali Mohamed Shein, the President of Zanzibar, signed into law a comprehensive children’s rights act on August 25, 2011.
The act was developed over the period 2009-2011 in a pioneering and broad national consultative process led by the Ministry of Labour, Youth, Women and Children (now the Ministry of Empowerment, Social Welfare, Youth, Women and Children). A wide variety of actors from civil society and the media, as well as community, religious and government leaders, worked together to ensure that the law would reflect the specific needs and protection requirements of children in Zanzibar. Working with a ‘zero draft’ based on examples drawn from legislation in other countries in the region – including mainland Tanzania, South Africa, Malawi and Botswana – a series of workshops were held with government departments, civil society organisations, professional organisations (e.g. the Zanzibar Women Lawyers Association), national bodies (e.g. concerned with disability and with HIV), and members of the judiciary and High Court.
A dedicated one day workshop was convened with religious leaders and Islamic scholars in order to probe the intersections between Islam and children’s rights which led to the understanding that children’s rights feature prominently in Islam. This workshop has been cited as crucial to paving the way for the passing of the Act.
The Children’s Act 2011 laid the foundation for a coordinated child-protection system for Zanzibar, aiming to effectively outlaw and respond to cases of violence and abuse, to better promote and protect the rights of children, including those in conflict with the law, to streamline child-relevant law in Zanzibar and conform to its obligations under international law.
The Act comprises 139 substantive sections divided into eight parts. The Act commences with the domestic application of the most important children’s rights derived from the international and regional treaties, tailored to the needs and requirements of the Zanzibari community. These include the best interests of the child principle, which ‘in all matters concerning the care, protection and well-being of the child’ is paramount, the principle of non-discrimination and child participation for example through Children’s Council’s.
The Act contains provisions relating to birth registration, custody, guardianship, access and maintenance, foster care and adoption, children and health services, and children in residential establishments. It also establishes clear procedures, and outlines the roles and responsibilities of national institutions and professionals, in providing child-protection services and responding to cases of children in need of care and protection.
The formulated rights, provisions and implementation mechanisms include:
- The establishment of a child’s right to good conditions of living necessary for development including nutrition, education (including religious education), shelter, appropriate clothing, and appropriate care and protection which are the duty of parents to secure within available resources (Section 10).
- The criminalisation of child abuse by any person having care of custody of a child (section 15(b)).
- The first foundation for a child care and protection system (section 19 (1)) when a child could be regarded as being in need of care and protection, including where a child is orphaned or abandoned or lives or works on the streets.
- The development of child friendly procedures and a specialised children‘s court system (Section 18) with the provision of those with special knowledge in child welfare or child psychology, or who have been actively involved in health, education or welfare activities pertaining to children.
- Detailed provisions concerning children in conflict with the law, setting a minimum age of criminal responsibility at 12 years (but retaining a rebuttable presumption for children aged between 12 and 14 years). In addition comprehensive diversion options to avoid incarceration of children, modelled on the South African legislation, include options for an apology, a caution, community service or for victim offender mediation.
- Where a matter involving a child has not been diverted, section 27 spells out the sentencing regime available to judicial officers; again providing an array of options. These include dismissing the charges after advice to the child, participation in group counselling, discharging the child into the care of parents/guardians or charitable institution, supervision or probation (not exceeding 3 years) and community service.
- Sentence orders also ensure that the child will not have a permanent criminal record against him or her. In full compliance with international law, both corporal punishment as a judicial sanction and the death penalty are outlawed.
Despite scarce financial resources and the need for ongoing efforts towards full implementation, Zanzibar’s Children’s Act has already contributed to a number of impressive outcomes. The Government of Zanzibar, with the support of UNICEF and the European Union, have developed a 5 year Child Justice Reform Strategy 2013–18 with a view to fully operationalise the Children’s Act. Achievements in the implementation of the national strategy to date include support to several formal institutions responsible for child protection and participation.
A dedicated and specialised Children’s Court in Stonetown with separate, child friendly facilities was established in 2013 while two further regional Children’s Courts are set to open in early 2016. The Children’s Courts provide children with the support and security that they need when they make their appearance in court either as victims, witnesses or offenders. A training curriculum for justice professionals in effectively dealing with children’s cases has also been developed. By 2015 all regional magistrates, court staff and prosecutors have received basic training on dealing with children’s cases under the new legislation.
Child Protection Committees have been established to coordinate the delivery of services to children in need of care and protection in all 10 districts in Zanzibar.
At the heart of the police’s response in operationalising the Children’s Act is the establishment of Police Gender and Children’s Desks (PGCDS). At least 2 Specialist Police Gender and Children’s Desk Officers have been designated in every Police Station in Zanzibar. All designated PGCD Officers have received training to better assist victims of abuse.
Over 200 Children’s Councils and a National Children’s Advisory Board are raising awareness on children’s rights and creating channels for child participation and reporting on child rights violations. Many schools are now piloting alternatives to the still widespread use of corporal punishment. All public primary schools in Zanzibar now have at least one teacher who has been trained on the use of ‘positive’ forms of discipline.
The broad participatory process involving children and families in every district, with wide support from many stakeholders, including the organised legal profession and government officials, has led to a marked societal change in attitudes towards children and raised awareness of children’s rights in Zanzibar. Violence against children and child sexual abuse are now on the agenda in the media, among decision makers and in communities assisted by a national campaign to address violence against women and children in Zanzibar.
The laws consultation process also led to the first invitation extended to children (through the new Children’s Councils) to participate in a session of the parliament. The positive results of these successful experiences have led many of the legislative bodies to increase child participation and a similar model is being used to gain input from children in the drafting process of a new Zanzibar Constitution.
5000 children (mainly boys) have been assisted to return to school from harmful work.
The Act certainly contains a number of home grown adaptations and novelties (including the clear recognition of the Islamic faith to which most citizens adhere) while containing best practice provisions shaped by law reform in nearby countries in Southern and Eastern Africa. Overall, it is clear that the legislation sets a solid framework for child rights and for children in conflict with the law that is appropriate to the economic and prevailing socio-political conditions in Zanzibar.
Zanzibar’s Children’s Act is an exemplary model for child rights legislation with respect to both its drafting process and its actual provisions. It transposes the UN-CRC’s holistic approach into local legislation, and notably includes outstanding provisions on juvenile justice and child participation. Given the limited resources available to this model is promising in terms of transferability, particularly for other similarly developing countries. In addition, the Children’s Act is a useful pioneering example of child rights compliant legislation for a jurisdiction in which the majority of the population are Muslim and where Muslim personal laws apply to family matters in the private sphere.