After Sierra Leone, it is time that Tanzania ends discriminatory education ban on pregnant girls

By Paras Ahuja and Rahul Garg

“Once you get pregnant… you are done…As long as I am the President… no pregnant girl would ever be allowed to return to school”[1]

This was a statement made by the President of Tanzania, John Magfuli, while addressing a rally in Chalinze, reaffirming the policy of expelling girls from schools once they become pregnant and never allowing them to return. Remarks laced in sexist attitudes, prejudicial narratives and discriminatory policy-trends are not uncommon for President Magfuli. The policy of banning pregnant girls and adolescent mothers from schooling, or from returning to schools even after pregnancy in Tanzania finds place in the Education (Expulsion and Exclusion of Pupils from Schools) Regulations, 2002;[2] and has continued since 1961.[3] In addition to the ban, it entails the imposition of intrusive, routinely forced pregnancy testing on girls to continue with disciplinary actions and expulsions, putting an end to their education.[4] Not only is this policy a gross human rights violation, but it also derogates from the right to equality, guaranteed by the Tanzanian Constitution; and violates the right to education and privacy based on the International Treaty commitments of Tanzania. A similar policy was recently overturned in Sierra Leone on 30th of March, 2020 – a clarion call to Tanzania.[5]

The Tanzanian policy has conveniently continued to punish the victims of sexual abuse, by expelling thousands of girls from schools. As per an official 2013 Report issued by the Centre for Reproductive Rights, during 2004-2011 alone, more than 55,000 Tanzanian girls were expelled from schools on account of pregnancy, for a crime they never committed.[6]About 8,000 girls still continue to be expelled every year.[7] What makes the policy even more prejudicial is the blatant disregard to the situational context of pregnancy; which often is sexual exploitation and rape. Various reports highlight the documented causes of teen pregnancies in Tanzania. There have been instances when headmasters, school teachers[8] and cousins[9] have raped young girls, leading to their expulsion from schools on account of getting pregnant. Transactional sex; exchange of sex for school fees, stationery, lunch or commute to school, is another reason which often leaves school girls pregnant.[10] Lack of awareness about sexuality, reproductive rights and sex education in schools only fosters this menace.[11] District authorities are particularly apathetic in the matter. Documents highlight that authorities have often ordered for arbitrary arrests of school girls instead of the perpetrators on account of immoral conduct, which they believe teenage pregnancy to be.[12]Authorities argue that arrests ensure that the girls are punished for their reckless conduct, deterring other young girls from engaging in such activities.[13] As we explain, this is a wanton disregard and defiance of not only logic, but also the rights of these girls.

As per Section 60(o) of the National Education Act, 1978 the Tanzanian Government has the power to frame regulations that prescribe conditions of expulsion and exclusion of pupils from schools on grounds of age, ‘discipline or health’.[14]Accordingly, the Education (Expulsion and Exclusion of Pupils from Schools) Regulations, 2002 exist to provide the specific instances for expulsion under ‘discipline’ and ‘health’. Regulation 4 therein provides for specific instances for expulsion on grounds of discipline, where the pupil has committed a criminal offence such as drug abuse, theft, prostitution or an offence against morality, or when the pupil enters into wedlock. The policy of expulsion of pregnant girls can be seen as rooted in the mistaken notion of pregnancy as an offence against morality. HakiElimu, a Non-Governmental Organization based in Tanzania, reports of a similar understanding.[15] Pregnancy outside wedlock is considered to be an immoral act in Tanzania, warranting expulsion of girls.[16] Interviews of various headmasters in Tanzania, taken by the Citizen Reporter in 2012, reveal the prevalent social notion that teen pregnancies are an immoral act which can negatively influence and corrupt other young girls.[17] The same notion also finds the unequivocal support of the President of Tanzania.[18]

Articles 12[19] and 13[20] of the Tanzanian Constitution provide for the Right to Equality. Article 13(2) bars any authority within Tanzania from making any provision which is either discriminatory of itself or in its effect. Furthermore, Article 13(5) prohibits discrimination along the grounds of color, nationality, sex, inter alia, such that a certain category of people are treated differently, or with restrictions or conditions. While interpreting Article 13(5), the Court of Appeal of Tanzanian the case of Ndyanabo v. Attorney General observed that differential treatment can be meted out to a certain class, provided such differentiation has a rational nexus to the object which is sought to be achieved by the provision.[21]The law has been correctly upheld in cases such as In Re: Constitution of the United Republic of Tanzania.[22] Regulation 4 purports to create a distinction between girls and boys, pregnant girls and non-pregnant ones, and also between married students and unmarried ones to achieve the object of morality, and therefore discipline under Section 60(o). However, the notion that a pregnant girl who attends school, negatively influences others to commit an immoral act, is wrong, especially since these girls are often victims of sexual assault themselves. This notion links itself to a presumed normalization of out-of-wedlock pregnancies, which lacks any authoritative basis. Moreover, even assuming pregnancy to be against the principles of morality, we argue that there is no reason why only a girl who gets pregnant should be expelled, while the boy who impregnates her is immune from expulsion or any analogous suspension, and therefore lacks any rational nexus with the object of morality/discipline. Merely the fact that pregnancy has a direct and visible impact on the girl and in the way her body manifests it vis-à-vis boys, does not warrant differential treatment based on morality as pregnancy is essentially a result of an act, which is equally attributable to both the genders. A similar reasoning was adopted by the Supreme Court of Bophuthatswana in Mfolo v. Minister of Education to be discriminatory and prejudicial to girls.[23]The courts of many other jurisdictions such as Botswana,[24] Peru,[25] Zimbabwe,[26] South Africa[27] and Chile[28] have already outlawed similar bans through judgments, stating them to be discriminatory.

The argument for expulsion of pregnant girls on the ground of discipline, even for reasons other than morality, is misplaced. The Constitutional Court of Columbia, while dealing with a similar policy in Crisanto Martinez v. Collegio Cuidad de Cali held that an instance such as pregnancy cannot be subjected to disciplinary treatment.[29] Even after assuming that it can be, the discriminatory treatment still fails the test of proportionality as has been laid down in the Tanzanian case of Legal and Human Rights Centre and Others v Attorney General.[30] The policy provides for a permanent expulsion of school girls that does not allow them to return to schools even after delivering the child. This is also evident in the statement of President Magfuli which confirms that pregnant girls are ‘never’ allowed[31] to return to schools. The lack of a re-entry policy at a later stage (post-delivery) and the consequential permanent expulsion of girls is disproportionate punishment to the incidence of pregnancy.

The policy also violates the right to education of pregnant girls. Right to education cannot form a ground of constitutional challenge before the courts in Tanzania, since it is a Directive Principle of Policy and not a fundamental protection as per Article 11(3) of the Constitution.[32] However, it must still be taken into account while forming any legislation and the subsequent policies framed within that legislation. The National Education Act, 1978 and the subsequent Education Regulations, 2002 do not take this policy element into account and clearly depart from the policy mandate. Even though the right to education is not a constitutional right, it still forms a part of the international obligations as well as the domestic law of Tanzania, and is a therefore still a legal right. Article 11(6) of the African Charter on the Rights and the Welfare of the Child provides explicitly in this regard.[33] It mandates states parties to have appropriate measures ensuring that children who become pregnant have an opportunity to continue with their education. Article 11(3)(e) specifically mandates states to take special measures to ensure an equal access to education for girls. Tanzania has also ratified the Convention on the Rights of the Child[34] and the International Covenant on Economic, Social and Cultural Rights[35], which recognize the right of every person to education, and mandate the states parties to ensure that education is equally available and accessible to every child, under Articles 28(1)(b) and 13(2), respectively. Additionally, within the African context, Tanzania is also a State Party to the African Charter on Human and Peoples’ Rights which recognizes the Right to Education under Article 17.[36] The right has also been incorporated into the domestic laws of Tanzania, through the Law of the Child Act, 2009.  The Act under Section 9(1), recognizes it to be a legal right, and under Section 8(2), prohibits any deprivation of the same.[37] Expulsion from schools on account of pregnancy puts an abrupt end to the education of girls. It deprives them of their dreams to pursue their careers and relegates them to a certain role, a blatant violation of their right to education.

The policy through its monthly pregnancy tests also violates the right to privacy of these young women. Regulation 7 of the Education Regulations, states that a student can be expelled if the physical or the mental health of the student makes it undesirable for them to be admitted to school. In order to assess the health of the student, routine pregnancy tests are conducted in schools. These tests involve groping and squeezing of the abdomens or breasts of girls,[38] or more formally conducting a urine test[39] to ascertain pregnancy. Right to privacy is constitutionally guaranteed under Article 16 of the Constitution.[40] In addition to being a constitutional right, the right to privacy is also an international obligation of Tanzania. Tanzania is a party to the African Charter on the Rights and the Welfare of the Child, Article 10 of which states that no child shall be subjected to arbitrary interference to their privacy; and to the International Covenant on Civil and Political Rights,[41] Article 17 of which provides for privacy Rights, both these instruments being ratified by Tanzania without any reservations. While judging the human rights violations of such bodily invasions in Sierra Leone, the Community Court of Justice of West African States, declared acts of groping the abdomens and breasts or conducting urine tests in an attempt to ascertain pregnancy to be violative of privacy rights.[42] Such acts amount to intrusions on the bodies of girls, against their will. They amount to attacks on their bodily autonomy and are a severe violation of the Constitution as well as of Tanzania’s international obligations.

Regulation 7, as mentioned earlier, allows for expulsion on the grounds of health. As per the policy, pregnancy is seen to be a physical and mental health situation which makes it undesirable for girls to stay in school, even when the girl is of an age where she can bear a child. Including it within the ambit of a health issue, that would make it ‘undesirable’ for girls to stay in schools regardless of the circumstances, is absurd. A similar reasoning was employed in Mfolo v Minister of Education, where the court maintained that a pregnant student poses no risk to any other student in school, nor is her own health and physical/mental condition such so to be prejudiced to an extent that warrants her suspension. Assuming that the health of the girls was to be affected to an extent which would negatively impact their education, this is by no means a justification for their permanent exclusion from school beyond the duration of the pregnancy. Any attempt to expel girls along the provisions of Regulation 7, is therefore manifestly arbitrary.

It is upsetting that in a world where we are being presented with impressive statistics, flashing graphs and numbers, showing a greater life expectancy, reduced poverty estimates and extensive freedoms, some claiming it to be the best century to be alive and human in, we are also witnessing flagrant human rights violations.[43] As with the policy in Tanzania, we argue that this discriminatory policy should be outlawed. Re-entry policies are a way out; where girls, once they’ve given birth, should be allowed to continue with their education, as has been done through comparable legislations in Zambia[44] and Zanzibar[45]. Right to Education should be included within the Basic Rights (Part III) of the Tanzanian Constitution so as to make them enforceable. Partial attempts at solving the problem as reflected in an official statement released on the 6th April, 2020 providing for discriminatory alternative education pathways for pregnant girls, instead of mainstream schooling, should be condemned.[46]

In addition to uplifting the ban, an open climate ensuring safe dialogue should exist so as to educate people to not stigmatize young girls, who are victims of sexual abuse. Even in situations where teen pregnancy is not the result of sexual assault, there should be a greater emphasis on sex education, awareness of reproductive rights, female health and contraceptives being integrated within the curriculum. The violations in Tanzania are massive human rights violations, of not one, but multiple rights, which is totally unacceptable and under acknowledged.

*This article was written by Paras Ahuja and Rahul Garg. Paras is a B.A., LL.B. (Hons.) student pursuing law at the National Law University, Jodhpur. Her research interests include human rights, constitutional law and feminism. Rahul is a B.A., LL.B. (Hons.) student pursuing law at the National Law University, Jodhpur. His research interests include gender studies, human rights and international humanitarian law.

[1]Rebecca Ratcliffe, “After getting pregnant, you are done”: no more school for Tanzania‘s mums-to-be, The Guardian (June 30, 2017), https://www.theguardian.com/global-development/2017/jun/30/tanzania-president-ban-pregnant-girls-from-school-john-magufuli.

[2]Education (Expulsion and Exclusion of Pupils from Schools) Regulations, 2002.

[3]NuzulackDausen, World Bank re-engages Tanzania on scrapped education plan,Reuters (Nov. 18, 2018), https://af.reuters.com/article/topNews/idAFKCN1NN07T-OZATP.

[4] Staff Reporter, Tanzania: 1.5 Million Adolescents Not in School, Human Rights Watch (Feb. 14, 2017, 2:01PM), https://www.hrw.org/news/2017/02/14/tanzania-15-million-adolescents-not-school.

[5]Kate Hodel, Sierra Leone lifts ban on pregnant girls going to school but shutdown expected, The Guardian (March 31, 2020), https://www.theguardian.com/global-development/2020/mar/31/sierra-leone-lifts-ban-on-pregnant-girls-going-to-school-but-shutdown-expected.

[6]Centre for Reproductive Rights, Forced Out: Mandatory Testing and the Expulsion of Pregnant Students in Tanzanian Schools, 71 (2006).

[7]HellenGithaiga, Tanzanian teen mothers will not be allowed back to school, The East African (June 22, 2017), https://www.theeastafrican.co.ke/news/ea/Teen-pregnancies-Tanzania-no-school-Magufuli/4552908-3982870-12w6f52z/index.html.

[8]AngesOdhiambo, Tanzania Policy of Kicking Pregnant Girls out of School is Shameful, Human Rights Watch (Feb. 15, 2017, 12:37 PM), https://www.hrw.org/news/2017/02/15/tanzania-policy-kicking-pregnant-girls-out-school-shameful.

[9]John Namkwahe, Tanzania: Teenage Pregnancy Threaten Girls’ Education, Gender Links for Equality and Justice (Feb. 21, 2020), https://genderlinks.org.za/news/tanzania-teenage-pregnancy-threaten-girls-education/.

[10]KitizoMakayo, Niti Bhalla, Tanzania slammed for ‘misguided’ arrest of pregnant schoolgirls, Reuters (Jan. 10, 2018, 11:22 PM), https://www.reuters.com/article/us-tanzania-schoolgirls-arrests/tanzania-slammed-for-misguided-arrest-of-pregnant-schoolgirls-idUSKBN1EZ2C2/.

[11]Human Rights Watch, “I Had a Dream to Finish School”, 80 (2017).

[12]Shola Lawal, Will Sierra Leone overturn its school ban on teenage mothers? Equal Times (Sept. 9, 2019), https://www.equaltimes.org/will-sierra-leone-overturn-its?lang=en#.Xr1tkGgzY2w/.

[13]Kate Hodel, Sierra Leone lifts ban on pregnant girls going to school but shutdown expected, The Guardian (March 31, 2020), https://www.theguardian.com/global-development/2020/mar/31/sierra-leone-lifts-ban-on-pregnant-girls-going-to-school-but-shutdown-expected.

[14]National Education Act, No. 25 of 1978.

[15]Haki Elimu, Litigating the Right to Education in Tanzania: Legal, Political, and Social Considerations and Potential Applications, Expulsion of Pregnant Students, 3 (2011).

[16]Erudmute Alber et. at, Generations in Africa, 289-295 (2008).

[17]SongawaSonga, SPECIAL REPORT: The case for keeping our girls in school,The Citizen Reporter (March 8, 2012), https://www.thecitizen.co.tz/magazine/woman/1843796-1816544-view-printVersion-em8wl3/index.html.

[18] John Aglionby, Tanzania’s enemies of the state: pregnant young women, Financial Times (Oct. 11, 2017), https://www.ft.com/content/c7507730-712c-11e7-93ff-99f383b09ff9.

[19]Tanzania Const. art. 12.

[20]Tanzania Const. art. 13.

[21]Ndyanabo v. Attorney General, [2002] TZCA 2.

[22]In Re: Constitution of the United Republic of Tanzania, [2006] TZHC 4.

[23]Mfolo v. Minister of Education, (1994) (1) BCLR 136 (B).

[24]Student Representative Council Appellant v.The Attorney General Of Botswana, [1995] BWCA 17

[25]Nidia Yesenia Baca Barturén v. Director de la Escuela Técnica Superior de la Policía de Chiclayo and Others, STC No 5527-2008-PHC/TC.

[26]Zimbabwe NGO Human Rights Forum v. Zimbabwe (2006), Communication No. 245/2002.

[27]Head of Department, Department Of Education, Free State Province v. Welkom High School, [2013] ZACC 25.

[28]CarabantesGalleguillos v. Chile, (2002) Petition 12.046, Inter-Am. C.H.R.

[29]Crisanto Arcangel Martinez y Maria Eglina Suarez Robayo v. Collegio Cuidad de Cali, Supreme Court of Colombia, No.T-177814, 11 November 1998 (10.4.1.3.2.)

[30]Legal and Human Rights Centre and Others v Attorney General, [2006] TZHC 1.

[31]Rebecca Ratcliffe, “After getting pregnant, you are done”: no more school for Tanzania ‘s mums-to-be, The Guardian (June 30, 2017), https://www.theguardian.com/global-development/2017/jun/30/tanzania-president-ban-pregnant-girls-from-school-john-magufuli.

[32]Tanzania Const. art.11(3).

[33]African Charter on the Rights and Welfare of the Child, July 11, 1990, CAB/LEG/24.9/49 (1990).

[34]Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3; 28 I.L.M. 1456 (1989).

[35]International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3; S. Exec. Doc. D, 95-2 (1978); S. Treaty Doc. No. 95-19; 6 I.L.M. 360 (1967)

[36]African Charter on Human and Peoples’ Rights, June 27, 1981, 1520 U.N.T.S. 217; 21 I.L.M. 58 (1982).

[37]Law of the Child Act, No. 21 of 2009.

[38] Staff Reporter, In Tanzania, getting impregnated also means getting expelled from school, The Economist (June 14, 2018),https://www.economist.com/middle-east-and-africa/2018/06/14/in-tanzania-getting-impregnated-also-means-getting-expelled-from-school.

[39]Staff Reporter,In Tanzania, getting impregnated also means getting expelled from school, The Economist (June 14, 2018), https://www.economist.com/middle-east-and-africa/2018/06/14/in-tanzania-getting-impregnated-also-means-getting-expelled-from-school.

[40]Tanzania Const. art. 16.

[41]International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171; S. Exec. Doc. E, 95-2 (1978); S. Treaty Doc. 95-20; 6 I.L.M. 368 (1967).

[42]Women Against Violence and Exploitation in Society v. Sierra Leone, ECW/CCJ/APP/22/18.

[43] Julias Probst, Seven Reasons why the world is improving, BBC (Jan. 11, 2019), http://www.bbc.com/future/article/20190111-seven-reasons-why-the-world-is-improving.

[44]National Policy on Education, Educating Our Future, 1996.

[45]Zanzibar Spinster and Single Parent Child Protection, No.4 of 2005.

[46]Staff Reporter, Tanzania: Q & A on Ban on Pregnant Girls and World Bank Education Loan, Human Rights Watch (Apr. 24, 2020, 1:00AM), https://www.hrw.org/news/2020/04/24/tanzania-q-ban-pregnant-girls-and-world-bank-education-loan.