Earlier this month, the Daily News — a government-controlled newspaper in Tanzania — ran a short, front-page article titled “Worrying Rise of Juvenile Sexual Offenders.” According to the report, 33 boys in Rukwa, one of Tanzania’s administrative regions, were arraigned in juvenile court between 2019 and the beginning of this year for charges including rape and “engaging in unnatural offences.”
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In early 2020, according to the article, the juvenile court in Rukwa found five boys guilty of raping and impregnating several schoolgirls and ordered the boys’ conditional discharge. Essentially, the court allowed the boys to go with neither a prison sentence nor a criminal record, on the condition that they do not commit another crime within a specified period of time. The schoolgirls, the victims of these crimes, received only one mention in the article, which reduced them to a faceless group.
So what of the victims? What is their lot?
In too many cases in Tanzania, the girl victims of rape who become pregnant are handed a life sentence of discrimination and stigmatization. A girl under 18 is a minor by law, and sexual intercourse with her is statutory rape. Paradoxically, Tanzanian parents can legally consent to the marriage of a 15-year-old daughter and, in doing so, gain a bride price for giving away their child. As a result, 30% of girls enrolled in secondary school drop out in their first four years due to pregnancy, marriage, or “truancy” — a euphemism for pregnant girls too ashamed to provide the school with reasons for their failure to attend. By the sixth year of secondary school, only 5% of girls who had been enrolled in the first year remain, compared with 10.4% of boys.
The law in Tanzania prohibits abortions for pregnant women, and since it does not define “woman,” most assume this also applies to girls as well — even those who are raped. This assumption is not surprising, given Tanzanian President John Pombe Magufuli’s description of child rape victims as women who should be confined to child rearing. A 13-year-old victim of rape will have no choice but to carry a resultant pregnancy to term, unless nature intervenes and she miscarries.
Despite victims’ constitutional right to equality before the law, Magufuli has ordered the permanent expulsion of pregnant girls from public schools. His order is founded on a misconceived perception that such schoolgirls, if allowed back to class after giving birth, are a contagion that will break the moral fiber of our society by corrupting the innocent and chaste girls in our schools.
At the risk of pointing out the obvious, the girls neither raped nor impregnated themselves. If the aim of the ban is to uphold moral norms and protect our “chaste” schoolgirls, wouldn’t the expulsion of boy rapists from public schools, rather than the raped girls, be a better option? The government of Tanzania, it seems, thinks not.
The legal burden of looking after a baby born of rape rests on the girl, except in cases where the child is given up for adoption or the male perpetrator is aged 18-plus. Unlike the law on abortion, which is ambiguous in its definition of “woman,” the law on parental responsibility is unequivocal in its definition of “man.” So, the raped girl carries the shame and financial burden of a crime she did not commit, which changes the entire course of her educational career and trajectory of her life.
In an attempt to mitigate the obvious harm of the policy to exclude pregnant girls from mainstream education, the government of Tanzania has now proposed the introduction of an “alternative education pathway” for pregnant schoolgirls, which it hopes will be funded by a World Bank loan that is set for approval by the institution’s board at the end of this month.
It goes without saying that segregating raped girls from their peers on the basis of pregnancy is, in principle, discriminatory.
Beyond that, the alternative education pathway is not equal to mainstream education provided in public schools. In a decision against Sierra Leone, the Community Court of Justice of the Economic Community of West African States decided that the government’s establishment of separate schools for pregnant girls — which subjected the girls to a curriculum different from that taught in public schools — was discriminatory and a violation of their right to equal education.
Even if the proposed alternative education pathway provided an educational program for pregnant schoolgirls equal to that provided in public schools, it would amount to a violation of their rights. I can do no better than to cite the words of Chief Justice Earl Warren of the U.S. Supreme Court in the case of Brown v. Board of Education, who wrote that “in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.”
In a country with a student-to-teacher ratio of 77 to 1 in primary public schools and a need to build tens of thousands of new classrooms to accommodate additional students, diverting resources to an alternative education pathway for the purpose of segregating pregnant schoolgirls from mainstream education is, in my view, a misuse of public funds for no purpose other than discrimination based on a girl’s fertility.