TOPIC III

DOMESTIC INSTRUMENTS FOR CHILDREN’S

RIGHTS PROTECTION
CHILDREN RIGHTS IN TANZANIA
Children were protected by different laws but CRC is the main law which protects the right of a
child. In Tanzania children under matrimonial home they are protected under, the law of
marriage. Before enactment of Child law there were several that protect the rights of children.
Young person Act Cap … the Act stated that a child is a person who is not attaining 12 years.
The Adoption Act Cap 335 defines a child as an infant or person under the age of 21 years for
the purpose of adoption.
Foster care placement regulation
- The Constitution of the United Republic of Tanzania of 1977 as amended time to
time.
- The Law of Child Act Cap 13 R.E.2019
- Law of the Child (Juvenile Court Procedure) Rules, Gn No. 182 of 2016
- The Ant Trafficking in person Act of 2008
- The Evidence Act Cap 6 R.E, 2022
- The Criminal Procedure Act Cap 20 R.E,2022
- The Law of Marriage Act Cap 29 R.E, 2002
- The Penal Code Cap 16 R.E, 2022
- The Prevention and Combating of Corruption Act Cap 200 R.E,2002
- The persons with Disability Act No. 9 of 2010.
The Act under section 4 provides for underpinning principles on protection of rights to include,
respect to human dignity, non discrimination, participation and inclusion of persons with
disabilities, equality between men and women. This means that the law is there to protect the
right of disable persons including children with disabilities.
Section 27 of the same Act provides for the protection of child with disability that, the child with
disability shall have the right to be admitted in public and private schools hence the right to
education of a child is protected. S. 27(2) (3) and (4)
 - The Mental health Act of 2008
The Civil Procedure Code Cap 33 R.E.2019
ORDER XXXI1 Suits By or Against Minors and Persons of Unsound Mind Minor to sue by next
friend.
1. Every suit by a minor shall be instituted in his name by a person who
in such suit shall be called the next friend of the minor. Where suit is
instituted without next friend, plaint to be taken off the file.
2.- (1) Where a suit is instituted by or on behalf of a minor without a next
friend, the defendant may apply to have the plaint taken off the file with
costs to be paid by the advocate or other person by whom it was
presented. (2) Notice of such application shall be given to such person and
the court, after hearing his objections (if any), may make such order in
the matter as it thinks fit. Guardian for suit to be appointed by court for
minor defendant
3.-(1) where the defendant is a minor, the court, on being satisfied of the
fact of his minority, shall appoint a proper person to be guardian for the
suit for such minor.

The law of Evidence Act states that a child is a person below the age of 14 years. Section 127
(2).2 A person who is under age of 14 is regarded as a child of tender age.

Section 26 of the Written Laws (Miscellaneous Amendments) Act 3 has amended section 127 of
the Evidence Act4 (the Principal Act) as follows: “Section 127 of the Principal Act is amended
by- (a) Deleting subsections (2) and (3) and substituting for them the following: “(2) A child of
tender age may give evidence without taking an oath or making an affirmation but shall, before
giving evidence, promise to tell the truth to the court and not to tell any lies. The same is
provided under Section 115 of Cap 13 - a child witness - procedure to follow where a child
called as a witness does not understand the nature of an oath.

1
The Civil Procedure Code Cap 33 R.E.2019

2
The Law of Evidence Act Cap 6 R.E. 2022.
3
No. 2 of 2016
4
Cap 6 R.E 2002
Persons of Tender Years in Tanzania any person who is of or below the age of fourteen years is a
child of tender years section 127(5). 5 There is no precise or fixed rule in which children are
excluded from giving evidence on the presumption that they have no sufficient understanding.
Neither can any precise rule be laid down respecting the degree of intelligence and knowledge
which will render a child a competent witness. But admissibility of evidence of a child of tender
years depend upon the sense and reason entertained by virtue of the possibility of falsifying
evidence i.e. the possibility of not being able to tell between truth and untruth, right and wrong.

Usually according to section 127(2) it is for the court to decide whether a child of tender years is
able to testify or not. When a child of tender years appears as a witness before the court it is the
duty of the court to discover whether the child understands the nature of oath, if he does, then he
can be sworn or affirmed. If on the other hand it found out that the child does not understand the
nature of an oath, the court must satisfy itself that the child is of sufficient intelligence to justify
the receiving of his evidence and that he understands the duty of speaking the truth.

In the case of Elias Joakim v. R6 the appellant was convicted of house breaking and stealing,
basically on the evidence tendered by children of tender years. On appeal the court said:
• Competency of giving evidence in so far as the child of tender years is
concerned is not a matter of age but of understanding.
• Where a child of tender years gives evidence sworn after a successful voire
dire test, and that he understands the nature of an oath, his evidence so given
is as good as that of an adult and it is treated that way, and such evidence ma
only require corroboration, if it is accomplice evidence or is such evidence
which as a matter of practice or requirement of law, corroboration is
necessary.

The Primary school compulsory enrollment and Attendant Rules of 1979 define child as a
person attain the age of seven (7) years and not more than 13 years.

Tanzania demonstrated regular commitment to children’s rights protection and ratified the
Convention on the Right of the Child in 1991 and in 2009 passed a bill known as the Law of the
Child Act which effectively domesticated.

5
Ibid
6
[1992] T.L.R. 222.
The law of the child Act came to reform the above laws. The law defines a child as a person who
has not attained the age of 18 years the definition under the law of child Act incorporate the
minimum standard of provisions of CRC and International conventions. The UN Convention of
the Right of the Child provides the legal framework through which the rights of the country’s
children can be protected.

Also, its judicial system worked towards reinforcement of children’s rights over aging law. As a
matter of fact, child marriage was ruled by the Law of Marriages Act from 1971 that allowed
girls to marry at the age of 14 with the consent of the court or from the age of 15 with the
consent of their parents. But hope appeared in 2016 when Tanzanian High Court judgment ruled
these provisions unconstitutional and directed the government to raise the legal age of marriage
to 18 years for both girls and boys.

Tanzania stipulates the child rights protections and promotion with the view to give effects to the
international and regional convention.
Tanzania committed to the following conventions;
 Committed to CRC
 Committed to the African Charter
 Committed to International Labor Organization
 Committed to International Labour Organization Minimum age convention.
 Committed to United Nation standard minimum Rules for the administration of Juvenile
Justice (children in conflict of law)

Also Tanzania adheres to the principles under Convention on the Rights of a Child of 1989.
"Disabled child" means a child who is unable to fully take care of, or protect himself from
abuse, neglect, cruelty, exploitation or discrimination because of physical or mental disability;

In Tanzania human rights protection to a child is governed under the constitution of the united
republic of Tanzania of 1977 as amended time to time.
The constitution under Article 12-14 provides for the human rights whose rights which are
accessible to all human being including children.
The constitution being a mother law and supreme laws has set some parameters through which

every individual within the state has accessibility to enjoy human rights as enshrined under the

constitution and also provides the duty of the state and individual in general to protect and

respect the human rights. The constitution is a supreme to the extent that even other laws to be

valid must not be in conformity with the constitution. The supremacy of the constitution is well

articulated by the court that any laws enacted by the parliament must conform with the

constitutional requirement because the constitution is supreme over all laws of the land. This

position was held down in the case of LEONSI SILAYO NGALAI VERSUS

HONOURABLE JUSTICE ALFRED SALAKANA & ANOTHER7 where it was held that;

“…it is incorrect in law to construe any provision of legislation enacted by

parliament as having overriding authority over constitution of the United
Republic of Tanzania; it is elementary principle that the constitution is a
fundamental law which is inconsistence with it the provision of Article 64(5)
of the Constitution are confirmation of this principle…”8

This requirement is also provided under Article 64 (5) of the same law. 9 This means the
constitution is only supreme law of the state and no any other law will take precedent over the
constitution, any law that govern any matters if contravene/contradict the constitution such laws
will be declared null and void.
Also the same position was held down in the case of Julius Ishengoma Franciss Ndyanabo
Versus Attorney General10 the court of Appeal of Tanzania emphasis on the supremacy of the
constitution of the united republic of Tanzania that,

“…The constitution of the united republic of Tanzania is a living instrument,

having a soul and consciousness of its own. Court must therefore endeavor to

7
Civil Appeal No. 38 of 1996.
8
Article 64(5) of the Constitution of the United Republic of Tanzania of 1977 as amended time to time.
9
The Constitution of the United Republic of Tanzania of 1977 as amended time to time

10
Civil Appeal No. 64 of 2001
 avoid crippling it by construing it technically or in a narrow spirit. It must be
construed in a tune with lofty purposes for which its makers framed it…”

UNDERPINNING PRINCIPLES

These are underpinning principles which are mainly derived from the Conventions on the Rights
of the Child. They are said to be ‘underpinning’ because they are very important in all matters
affecting all children everywhere and at all times. In Tanzania, the principles have been
domesticated into the municipal laws and are reflected in the domestic legislation, policies and
guidelines surrounding child justice. It should be remembered that a child as a human being
enjoys all 1 It was opened for signature1989, Tanzania ratified on 10th June 1991, 2 It came into
force in 1999 in which Tanzania ratified on 16th March, 2003 3 CAP 13 R.E 2019 2 the basic
human rights as any other member of the society. However, recognizing the special position and
peculiar needs of a child, the law gives the child an additional treatment. Hence in this work we
shall focus on the special treatment of the child by the laws as opposed to the generalized
treatment of all human beings by the law. The following are the underpinning or overriding
principles of child justice as reflected in the LCA and its Regulations.

BEST INTEREST OF THE CHILD

Section 4 (2) of the LCA stipulates that: “The best interests of a child shall be a primary
consideration in all actions concerning a child whether undertaken by public or private social
welfare institutions, courts or administrative bodies”

This principle has been considered by courts in both criminal and civil cases. The following are
the cases which relate to the overriding principle of the best interest of the child.

Glory Thobias Salema v Allan Philemon Mbaga11

Key Issue Best interest of the child

Summary of the Case

The appellant applied for an order of custody in respect of one PAM in a juvenile court. The
juvenile court granted custody to the respondent on the ground that the child was already above
seven years of age and living with the respondent. On appeal to the High Court, the issue arose
as to whether or not the trial court had considered the best interest of the child.
11
(Civil Appeal No 46 of 2019) [2020] TZHC3794 ;( 13 November 2020)
Holding
(i). The law is well settled that in any event dealing with the child, the
primary consideration shall be on the best interests of the child.
(ii). The suggestion that the child has even changed the name is not a
governing factor to deny the respondent right to custody based on the
overriding principle of best interest of the child.
(iii). Under section 39 (2) of the LCA, if the views of the child have been
independently given, they’ must be taken into account by the court before
making the order of custody.

Sajjad Ibrahim Dharamsi & Ally Jawad Gulamabas v Shabir Gulamabas Nathan12,

Key Issues

(i). Consideration of international instruments in interpreting the provisions of the LCA

(ii). Natural parent automatic right to custody in the best interest of the child

(iii). Observance of the principle of the best interest of the child in all actions undertaken by the
state or individuals.

Summary of the Case

The appellant - a step father of the child aged 11 years appealed against an order of a juvenile
court which gave the respondent, the biological father of the child, the sole custody of the child.
The respondent who was an American married a Tanzanian woman who gave birth in the United
States in 2009 of the child subject of the custody proceedings. The child obtained the United
States’ nationality by virtue of birth but following the marriage breakdown, the child and his
mother returned to live in Tanzania since 2010 and never returned back to US. After returning
back to Tanzania, the mother of the child successfully filed for a divorce and she got married to
the first Appellant in 2014. The child had been living with his mother before her death and later
upon the death of the child’s mother, the child 4 continued to live with the first appellant as his
step father who had been taking care of him. The first appellant successfully applied for custody
orders over the child. Subsequently, the Respondent filed an application to set aside orders by the
juvenile court that had placed the child under the custody of the first appellant. The application
was successfully granted. The first appellant appealed to the High Court.

Holding

(i). In interpreting the provisions of the Law of the Child Act, the Court must
take into account the meanings and opinions expressed in the UN Convention
on the Rights of the Child to which Tanzania is a Signatory.
12
Civil Appeal No 42 of 2020 High Court at Dar Es Salaam (Unreported)
 (ii). According to section 4 (2) of the LCA, It shall be the primary consideration
of any public or private institution, court or an administrative body to take into
account the best interest of the Child in anything they are doing about children.

(iii). A child has the right to live with parents or guardians but he cannot live or
continue to live with parents or guardians if by living there he is subjected to
harm or serious abuse or it is not in his best interest.

(iv). In making the order for custody or access the court should consider the
best interests of the child. In doing so the views of the child if given
independently and the need for continuity of care, protection and control of the
child must be observed.

NON-DISCRIMINATION

The principle of non-discrimination seeks to guarantee that human rights are exercised without
discrimination of any kind. Section 5. -(1) of LCA states that a child shall have a right to live
free from any discrimination. (2) A person shall not discriminate against a child on the grounds
of gender, race, age, religion, language, political opinion, disability, health status, custom, ethnic
origin, rural or urban background, birth, socio-economic status, being a refugee or other status.
This being one of the overriding principles of the law of the child, has been considered by courts
in various decisions.

Elizabeth Mohamed v. Adolf John Mohamed 13, Key Issuediscussed is Discrimination by

naming a child born out of wedlock as “illegitimate”

Summary of the Case

After the death of JCM intestate, the Respondent who was his son begotten under a Christian
marriage was appointed as an administrator of his father’s estate. The appellant was one of the
two wives of JCM, the deceased, under customary marriage subsequent to the deceased’s
Christian first marriage. After several proceedings in a primary court, it was held that three
children of the appellant were entitled to inherit from their father’s estate.

13
Administration Appeal 14 of 2011, High Court of Tanzania at Mwanza (unreported)
The Respondent successfully appealed to a District Court where it was held that the three
children of the appellant born out of an adulterous association could not inherit from their
father’s estate. The appellant appealed to the High Court.

Holding it is discriminative and inhumane to call a child born of parents who are
not married to each other “illegitimate” which in essence means that he or she is
an unlawful child.

Judith Patrick Kyamba v. Tunsume Mwimbe and 3 Others 14, Key Issues were Children born
out of wedlock and inheritance of their fathers’ estate.

Summary of the Case

The petitioner asked the High Court to be granted letters of administration of her father’s estate
after dying intestate. The petitioner’s petition left out five children of the deceased who were
born out of the wedlock. At the hearing of the objection to the petition, the petitioner argued that
under the law illegitimate children have no right to inherit the deceased’s estate and cannot have
any legal interest over the deceased’s estate.

Holding

(i). It is barbaric and discriminatory to contend that “illegitimate children”

cannot inherit from their father’s estate in light of the provisions of Article 12
(1) of the Constitution of the United Republic of Tanzania of 1977 that
guarantees equality of all human beings and Article 13 (1) of that Constitution
which provides equality before the law.

(ii). Children born out of wedlock are biological children just like those born
within the matrimonial home who are entitled to equal shares of their common
father with fellow siblings.
(iii). Even if it were to be argued that the alleged children born out of wedlock
are of the majority age and so are not protected under section 4 (1) of the Law of
the Child Act, 2008, which defines a child to be a person below 18 years, it is the

14
Probate and Administration Cause 50 of 2016, High Court of Tanzania at Dar es Salaam (unreported)
 firm view of the court that the Tanzania Indian Succession Act, 1865, aims at
protection of all the biological children of the intestate born within or out of
wedlock.
(iv). Children born out of wedlock are innocent creatures and there is a
Kiswahili phraseology “Kitanda hakizai haramu” which literally means there
are no bastard children though there are bastard parents.
(v). A child is not culpable for its parent’s shortcomings nor can they choose the
situation they are born into since it is not a child’s fault to be born in the
situation.

Generally, it is prescribed that a child should be free from any discrimination regardless of his or
her economic status, gender, race, age, religion, language, political opinion, disability, health
status, custom, ethnic origin, rural or urban background, birth, socio-economic status, being a
refugee or any other status. In the case of Elizabeth Mohamed, it was held that naming a child
born out of wedlock as illegitimate is a discrimination. A similar position was taken in the case
of Judith Patrick Kyamba where the High Court held that children born out of wedlock are the
biological children just like those born within the matrimonial home. Thus, they have a right to
inherit from their biological father. Although in these cases children born out of wedlock were
above 18, the position of the law is the same like it is in respect of a child who is below 18. The
LCA recognises a child as a person below the age of 18. However, whenever it comes to
inheritance a biological child, regardless of the child’s age, has the right to inherit even if he or
she is above 18 years. It is further worth noting that the provisions of the Bill of Rights in the
Constitution can also be resorted to buttress the rights of the child in appropriate situations.

RIGHT TO PARTICIPATE AND BE HEARD

Sections 11 and 99 (1) of the LCA prescribe for the participation of children in judicial or
administrative proceedings affecting them. It also empowers children to be able to appoint an
impartial person to represent their views. Finally, the views of these children should be taken
into consideration, as they hold sufficient weight. Children should have the opportunity to take
part in sentencing procedures against their parent or primary caregiver and if necessary, should
be able to have a legal representative or guardian to give meaningful effect to their right to
participation. Similarly, children imprisoned with their parents or primary caregivers should have
the opportunity to take part in any administrative decision affecting them.

RIGHT TO BE MAINTAINED

The right to be maintained arises from the duty of a parent or guardian to maintain a child. The
maintenance may include the provision of necessary needs for survival and development of a
child. The case of Assah A. Mgonja deals with the duty of a father to maintain a child. This duty
is provided under Article 27(2) of the CRC, Article 20(1) of the ACRWC, section 129 of the
Law of Marriage Act, Cap 29 R.E 2019, section 8(1) and 41 of the LCA.
Assah A. Mgonja v Elieskia I. Mgonja15, Key Issues (i). The father’s duty to provide the needs
of children and the impediments of physical or mental health (ii). When the duty of the father to
maintain a child shifts.
Holding
(i) That, among the needs of children who are incapable of leading an independent life is the
need for adequate and suitable shelter. (ii) That the duty to provide for the needs of children lies
upon their father unless he is unable to do so, for reasons of physical or mental ill-health.
James Mapuga v. Jesca Ntonya16, Key Issues Duty to maintain a child where a child is in
custody of another person 15
Summary of the Case
the appellant was the father of a child aged three years. After the death of the mother of the child,
it was agreed in a family meeting that the Respondent (from maternal side of the child) should
remain with the child. The reasons for this decision were that the Respondent had milk to feed
the little child and the Appellant’s parents were old. After the child had attained the age of 6
years, the Respondent filed a suit at Dodoma Urban Primary Court claiming a total of TZS
500,000/= as compensation for maintaining the said child. The Primary Court granted the claim
but reduced it to TZS 250,000/=. The appellant was aggrieved by the decision of the Primary
Court and appealed to the District Court of Dodoma.
The District Court upheld the amount awarded by the Primary Court. The appellant was
aggrieved by the decision of the District Court and appealed to the High Court of Tanzania at

15
Civil Appeal 50 of 1993, High Court of Tanzania at Dar es Salaam (Unreported)
16
Civil Appeal 12 of 2006, High Court of Tanzania at Dodoma (unreported)
Dodoma. One of the issues on appeal before the High Court was whether the District Court erred
in law in not considering the fact that the Appellant was contributing some money and food for
the up-keeping of his child.
Holding
A man has a duty to maintain his children when they are in his custody or the
custody another person by providing them with accommodation, clothing, food
and education as may be reasonable having regard to his means and station in
life or paying the costs thereof as per section 129(1) of the of Law of the
Marriage Act, 1971.
Sajjad Ibrahim Dharamsi & Ally Jawad Gulamabas v Shabir Gulamabas Nathan 17, Key
Issues was the Duty of a father to maintain a child.
Holding
The trial court could have made some orders to the respondent father duty to
maintain his child in respect of costs of living such as health.

CIVIL APPLICATIONS IN RELATING TO CHILDREN

INTRODUCTION

The civil applications relating to children include parentage, custody, access and maintenance.
These applications are very important for survival and development of a child in terms of
physical and mental aspects. The determination of the above applications is governed by LCA
and its Rules. This chapter highlights procedural legal principles emanating from several decided
cases where a child is involved in civil proceedings.

PARENTAGE:

Parentage refers to the process of determining a child`s legal parents. This process is typically
found in paternity cases where the child`s biological father was an issue and for various reasons,
the identity of the father had to be established. Section 35 of Law of the Child Act, Cap 13 Re

17
(Civil Appeal No.42 of 2020) [2020] TZHC 3703; (30 October 2020)
2019 provides factors useful to establish paternity of a child. In most cases this application can as
well be accompanied with other application such as custody access or maintenance .

Denis Elias Nduhiye v. Lemina Wilbad18, Key Issues

(i). Use of DNA test to prove paternity/parentage

(ii). Legal obligation to prove the parentage

Summary of the Case

The Appellant and the Respondent were in a love relationship in which they were blessed with
two children a boy who was born in 2011 named Elia and a girl who was born 2013 named
Neema. ln 2013 they separated due to misunderstandings between them. The respondent filed an
application for a maintenance order of the second child. Before the trial court, there was a
dispute about the paternity of the second child. Although the trial Juvenile Court ordered a DNA
test, it was not carried out. After the parties had failed to carry out the DNA test, the trial court
held that the appellant had failed to rebut the allegation he was not the biological father of the
second child.

Consequently, the trial Juvenile Court ordered the appellant to pay TZS 50,000 per each month
as maintenance of the second child. Besides, the Court ordered payment of TZS 10, 000 each
month as custodian support. Dissatisfied with the decision of the trial Juvenile Court, the
appellant appealed to the High Court of Tanzania. The appellant challenged the two findings of
the trial Juvenile Court. Firstly, he argued that the burden of proof was wrongly shifted to him
instead of the respondent who was alleging that the appellant was the biological father of the
second child. Secondly, that, since the appellant was not the biological father the trial court erred
in ordering the maintenance and custodial support on the child in respect of whom he is not the
biological father

Holding

18
Juvenile Civil Appeal No. 1 of 2019, High Court of Tanzania at Kigoma (unreported) (Date of
the Decision: 16th March 2020)
(i). According to subsections (a) to (e) of section 35 of the Law of the Child Act, 2009, parentage
of a child is to be proved by: (i) marriage performed in accordance with the Law of Marriage Act
[Cap. 29 R.E. 2002];

(ii) The name of the parent entered in the Register of Births kept by the Registrar-General;

(iii) Performance of a customary ceremony by the father of the child;

(iv) Public acknowledgement of parentage; or

(v) DNA test results. (ii). It is settled law that who alleges the paternity of a child has legal
obligation to establish such fact.

Omari Mahita v. Rehema Shabani19, Key Issue Constructive refusal to undertake DNA test
Summary of the Case

In 2007, the respondent petitioned a District Court for a declaration that the appellant be declared
as the putative father of her male child. The trial court declared the appellant as the putative
father of the child and ordered the appellant to pay to the respondent TZS 100,000 per month and
compensation at the same monthly rate effective from 2003 until the date of judgment.

The appellant was aggrieved with the findings of the trial court and appealed to the High Court.
He argued, inter alia, that the trial court made an erroneous finding that he was the putative
father of the child on the basis of the respondent’s evidence because the appellant had refused to
undergo a DNA test. Another ground of appeal was that the monthly maintenance allowance of
TZS 100,000 was in violation of the stipulated amount under the provisions of the Affiliation Act
[Cap. 273 R.E. 2002]. Now repealed Holding

There is a constructive refusal to undertake a DNA test where a person resists the efforts to
report to the office of the Chief Government Chemists for undertaking the test. 2. Where there is
constructive refusal to undertake DNA test, the court may draw such conclusion as may be
appropriate in the circumstances

19
Civil Appeal 149 of 2009, High Court of Tanzania (unreported)
CUSTODY AND ACCESS

Section 98 (1) (b) of the Law of the Child Act 20, gives power to the Juvenile Court to hear and
determine among other things, applications for custody and access. Rule 3 of the Law of the
Child (Juvenile Court Procedure) Rules, 2016 When the Juvenile court is entertaining
applications for custody or access; it is required before the determination of application to give
details of the mediation services available. However, these applications can be determined in the
matrimonial proceedings whenever parties petition for divorce under the Law of Marriage Act 21.
These applications have been determined in the court of law and the following are cases relating
to custody and access. Glory Thobias Salema Vs Allan Philemon Mbaga 22 Key Issue Best
interest of the child.

Holding (i). The law is well settled that in any event dealing with a child the primary
consideration shall be on the best interests of the child. (ii). The argument that the child has
even changed the name is not a governing factor to deny the respondent right to custody based
on the overriding principle of best interest of the child. (iii). Under section 39 (2) of the LCA,
if the views have been independently given, they must be taken into account before making the
order of custody.

Rule 65 of the Law of the Child (Juvenile Court Procedure) Rules, 2016 70

Bharat Dayal Velji v. Chandni Vinesh Bharat 23 Key Issues (i) Best interest of the child (ii)
Unemployed mother can be given custody of a child Summary of the Case The respondent, was
married to VB in 2008 .Unfortunately, the couple could not stay long following the death of VB
in 2013. During their union they were blessed with two issues namely, Kritika Vinesh Dayal and
Rian Vinesh Dayal. Following the death of VB, the respondent successfully, applied for the
custody of her children in a juvenile court. The appellant, the father-in-law of the respondent and
a biological grandfather of the children in issue was dissatisfied with decision of the juvenile
court and so appealed to the High Court. On appeal, the appellant, contended, inter alia, that
since the appellant was the one providing maintenance of the children and the respondent was

20
Cap 13 R.E 2019
21
Cap 29 R.E 2019.
22
(Civil Appeal No 46 of 2019) [2020] TZHC 3794 ;( 13 November 2020)
23
(Civil Appeal No.45 of 2017) [2018] TZHC 45; (23 April 2018)
unemployed and had no means to support the children, the order of custody granting the
children’s custody to the respondent was not in the best interest of the children.

Holding: (i). The respondent who is the biological mother of the children is a
better person to be granted custody of her children compared to the appellant
who is the grandfather of the children. (ii). Best interest goes far beyond
financial ability but includes love, affection and care of which the mother is in
a better position to offer to her children against the whole world. (iii). Since the
children`s father is no longer alive and the children were still young, the only
close surviving relative is their mother. (iv). The appellant can still support the
children notwithstanding the facts that the custody of the children has been
granted to the respondent.

Stephen Mbeba v. Hassan Maulid Mohamed 24, Key Issues Guidance for mediation Summary
of the Case The applicant files an application for custody under rule 63(1) of the Law of the
Child (Juvenile Court Procedure) Rules, 2016. The Juvenile Court when considering the
application learnt the existence of rule 71(1) and (2) of the Law of the Child (Juvenile Court
Procedure) Rules, 2016. Rule 71 requires the Juvenile Court to enquire whether the parties have
seen a mediator and if not, to adjourn the hearing for a period of no more than 28 days, so that
parties may resolve issues through mediation. The Juvenile Court learnt further that the word
“mediator” has not been interpreted under the Law of the Child (Juvenile Court Procedure)
Rules, 2016 and the Law of Child Act, Cap. 13.

The Juvenile Magistrate was aware of the rule 65(6) of Law of the Child (Juvenile Court
Procedure) Rules, 2016 which provides that the procedure for issues and service of summons
shall be the procedure provided under Order V of the Civil Procedure Code [Cap 33 Re 2002].
Under the circumstances, the Magistrate in the Juvenile Court forwarded the case file to the High
Court for guidance. The High court called upon the parties advocate to advise it accordingly. The
advocate for the appellant advised the High Court on the contents of rule 16(1) (m) read together
with rule 69(2) (a) and (b) of the Law of the Child (Juvenile Court Procedure) Rules, 2016.
Those rules direct a Juvenile Court to state details of a mediation service that is available. The
rules direct the Juvenile Court to inform the parties that they will be required to attempt to settle
24
Juvenile Civil Revision No 2 of 2019, High Court of Tanzania at Dodoma (unreported)
their dispute through mediation before first hearing. For these reason, the advocate opined that
the trial magistrate should have referred the case file to a Magistrate In-charge of the Juvenile
Court for appointment of a mediator. He noticed that the provisions of rules 60(1)(2) and 99(10)
of the Law of the Child (Juvenile Court Procedure) Rules, 2016 authorized the use of the
provisions of the Civil Procedure Code [Cap 33 Re 2002] only on matters of service of notice,
summons, pleadings, applications to set aside care orders and freeing children for adoption rules.

On the other hand, the advocate for the respondent, advised the High Court on rules 71(1) (2)
and 16(1) (m) of the Law of the Child (Juvenile Court Procedure) Rules, 2016. He stated that the
presiding Magistrate in the Juvenile Court should encourage and facilitate the parties to consider
mediation and report back to the court. If the out of court mediation fall short, the Juvenile court
will proceed to hear the dispute accordingly. Holding (i). In the absence of a specific legal
guidance on mediation in either the Law of the Child Act, 2009, the Law of the Child (Juvenile
Court Procedure) Rules, 2016, or the Civil Procedure Code (Cap. 33); the Juvenile Court cannot
adopt and enforce the rules of procedure for mediation in the Civil Procedure Code. (ii). There is
no particular institution or person designated for mediation services, within the local jurisdiction
of the trial Juvenile Court.

APPLICATION FOR MAINTENANCE

A person may make an application to get an order of the court for maintenance if the person who
is eligible to maintain a child or contribute towards the welfare of a child failed to do so. In the
juvenile court, the application for maintenance can be made whether the parents contracted
marriage or not.

Veronica Agostino Shirati v. Issa Ramadhani Kisibo25, Key Issues

(i). Role of a Social Welfare Officer

(ii). Effect of lack of a social enquiry report

(iii). Ascertainment of other sources of income between parents apart from salary Summary of
the Case The appellant and respondent are biological parents of a child named SRK.

The appellant filed an application in a Juvenile Court praying for maintenance order of the said
child. She prayed the maintenance to the tune of TShs. 300,000/= per month. The Juvenile Court
25
(Civil Appeal No.9 of 2020) [2020] TZHC 814; (05 June 2020)
ordered the respondent to pay TShs. 60,000/= per month as maintenance of the child. From
March 2021, he was ordered to pay TShs. 80,000/= per month after completing a bank loan.
Dissatisfied with the order, she appealed to the High Court of Tanzania on the grounds that, inter
alia, the Juvenile Court did not involve a Social Welfare Officer during the proceedings and did
not ascertain other sources of income between parents apart from salary.

Holding

(i). Failure of a Juvenile Court to require a Social Welfare Officer to prepare a

social enquiry report before issuing a maintenance order cannot vitiate
maintenance proceedings.

(ii). The engagement of a Social Welfare Officer in a Juvenile Court to make an

enquiry is not mandatory under section 45 (1) of the Law of the Child Act [Cap.
13 R.E. 2019]. It depends on the circumstances of each case.

(iii). The court has to satisfy itself that legal factors/requirements to be taken
into account before making the maintenance order have been established.

(iv). The duty of a Social Welfare Officer in applications for maintenance

orders is to assess the ability of parents in maintaining and taking care of the
child; and ascertain the accuracy of any statements relating to the parents’
income and outgoings as well as liabilities.

(v). That, while an income accruing from the salary is an important

consideration in assessing the ability of parents in maintaining and taking care
of their child, other sources of income between the parents should be
established as well