• Background of the case

Education stands as one of the most direct pathways to human capital development of any given country. However, in Tanzania, there exists a law and practice that mandates public school girls to undergo pregnancy testing and subsequently expels them upon confirmation of pregnancy. This law and practice have denied girls their right to education and hinder their pursuit of the highest attainable standard of living.

Against this backdrop, on April 23, 2020 the Center for Strategic Litigation alongside Inclusive Development for Citizens, instituted a case in the East African Court of Justice(“The EACJ”) challenging the Education (Expulsion and Exclusion of Pupils from Schools) Regulations, G.N. No. 295 of 2002 (“The Regulations”), specifically targeting Regulations 4(b), c) and 7(b), which serves as the legal basis for expulsion and exclusion of pregnant schoolgirls from schools. Additionally,  the two organisations contested the practice of expelling pregnant schoolgirls from school.

  • Understanding the jurisdiction of the EACJ

The EACJ is mandated with a mission to foster regional integration by ensuring adherence to justice, rule of law and fundamental rights and freedoms. This objective is achieved through the interpretation, application and enforcement of  the Treaty establishing the East African Community (hereinafter referred to as the “EAC Treaty”)  and other related laws. Furthermore, the EAC Treaty imposes an obligation on member states including Tanzania to observe principles of good governance, rule of law and protection of human rights outlined in the African Charter on Human and People’s Rights.

To this end, the EACJ possesses jurisdiction to adjudicate the case at hand as the Government of the United Republic of Tanzania stands accused of violating the EAC Treaty.

  • Grounds upon which the case was brought to court

The case was instituted on various grounds, each serving as the foundation for its filing. These grounds encompass the following;

  • The existence of the law and practice of expelling pregnant girls from schools is discriminatory to the extent that it disproportionately affects girls more than boys which is a violation of the EAC Treaty specifically Articles 6 (d), 7 (2) and 8 (1) (c ) and subsequently Articles 2 and 3 of the African Charter on human and people’s rights hereinafter referred to as “The African Charter”.
  1. The existence of the law and practice of expelling pregnant girls from schools constitute a violation of the right to education of the pregnant girls violates the EAC Treaty and subsequently Article 17 of the African Charter.
  2. The practice of subjecting girls to mandatory pregnancy testing subjects girls to severe humiliation amounting to inhuman and degrading treatment and violation of the adolescent girls’ right to privacy and dignity contrary to Article 6(d) of the EAC Treaty and Articles 4 and 5 of the African Charter.
  3. The action of Government officials calling upon all heads of schools to publicly announce and shame any girl who becomes pregnant requiring them to be reported to the police for further action, such actions amount to inhuman and degrading treatment contrary to Article 6(d) of the EAC Treaty and Article 5 of the African Charter for those that are subjected to the policy.
  4. The enactment of the Regulations and the provisions therein especially Regulation 4(b), (c ), and 7 (b) violate Articles 6(d), 7(2) and 8(1)(c) of the EAC Treaty and Articles 2,3,5 and 17 of the African Charter.
  • Evidentiary Considerations
  • Presence of the enacted law

The Government of the United Republic of Tanzania enacted the Education (Expulsion and Exclusion of Pupils from Schools) Regulations which allow for the expulsion of  pregnant girls from public education institutions.  Specifically, Regulation 4 (b) permits expulsion for offenses against morality including engaging in sexual relations. However, the Partner State lacks clear policies on sexual and reproductive health for the adolescent pupils and infrastructure to protect the girl child against sexual exploitation and abuse, contradicting Articles 6(d), 7(2) and 8 (1) (c) of the Treaty. Additionally, Regulation 4(d) allows expulsion for entering into wedlock.

Moreover, Regulation 7(b) permits expulsion if a pupil’s physical or mental health is deemed undesirable for school admission, often leading to the expulsion of pregnant girls based on their perceived physical health, which  constitutes discrimination and denies their right to education, in violation of the aforementioned treaty provision.

  • Presidential declaration that pregnant girls should be expelled from school.

In 2017, the late Dr. John Pombe Magufuli, the former president of the United Republic of Tanzania, made a public declaration advocating for the expulsion of pregnant students from public schools. He argued that allowing them to remain in school would promote sexual activity among other girls, suggesting instead that young mothers should pursue vocational or alternative forms of training.

In line with the resident’s directive, on February 29th, 2020, the District Commissioner, at a gathering in Dodoma Municipality, made a statement directing all heads of schools and education officers to conduct mandatory pregnancy tests on schoolgirls every three months. Echoing the president’s stance, on June 25th, 2017, the then Home Affairs Minister, Mwigulu Nchemba, threatened to deregister organisations challenging the president’s ban on schooling for pregnant girls and teen mothers.

It’s important to note that prior to the president’s statements on June 22, 2017, the Ministry of Education and Vocational Training had been in the process of a policy change through developing Guidelines to facilitate the continuation of studies for  pregnant school girls. After the statement, the realisation of these guidelines became a myth.

  • School dropouts in Tanzania

Tanzania has a troubled history concerning the right to education for women and girls. At the time of filing the case, over 55,000 school girls had been forced to drop out of school or were expelled due to pregnancy, with an additional 5,500 pregnant students estimated to cease attending school annually by the World Bank.

Unfortunately, these expulsions often coincide  with arrest and detention of pregnant school girls and their parents or guardians. In January 2018, a regional commissioner advocated  for the arrest of  pregnant students to serve as witnesses against the men responsible for their pregnancies, resulting in the unjust arrest of 5 students and their parents without any formal charges. This action, though unprosecuted, was inhuman and degrading.

Following the case filing, a 2022 report by the Controller and Auditor General (CAG) of Tanzania revealed that at least 42,954 school girls dropped out of school between July 2021 and June 2022 due to pregnancy.

Notably, in November of 2021, President Samia Suhulu Hassan lifted the ban on expelling pregnant girls from school; however, The Education (Expulsion and Exclusion of Pupils from Schools) Regulations remain in force. Furthermore, many adolescent girls lack the necessary information on  sexuality, family planning, and reproductive health, while others are coerced into sex and require protection and access to health services and support, yet sexuality and reproduction are often not included in the national school curricula, this leaves the girls uninformed thereby being prone to sexual allure of adult male in the society or people of influence in the life of an adolescent girl such as teachers.

  • Alleged Human Rights violations by the Government

A number of human rights have been violated by the Government of the United Republic of Tanzania and these include the following. It should be noted that the violations against which the case was filed in court are not only the text and spirit of the EAC Treaty but also other international and national laws.

The Right to Education

  • The Constitution of the United Republic of Tanzania of 1977 as amended from time to time provides under Article 11 that every person has the right to access education in a field of their choice up to the highest level according to their merits and ability.
  • Article 14 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa provides for the right to education on reproductive and health rights for women and girls in Africa.
  • Article 17 of the African Charter on Human and Peoples Rights provides for the right to education of every individual.

Freedom from inhuman and degrading treatment

  • Article 4 of the African Charter on Human and Peoples Rights provides that every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.
  • Article 5 provides that every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his or her legal status.

The right to equality

  • Articles 12  and 13 of the Constitution of the United Republic of Tanzania provides that all human beings are born free and equal and are entitled to recognition and respect for their dignity.
  • Article 2 of the African Charter on Human and Peoples Rights provides for the right to equality without distinction of any kind such as sex among others.
  • Article 3 of the African Charter on Human and Peoples Rights further provides for every individual’s right to equality before the law.
  • Article 3 of the African Charter on the Rights and Welfare of the Child provides for equality for all children before the law.

Right to privacy

  • Article 16 (1) of the Constitution of the United Republic of Tanzania provides that every person is entitled to respect and protection of his person, the privacy of his own person, his family and of his matrimonial life, and respect and protection of his residence and private communications.
  • Article 10 of the African Charter on the Rights and Welfare of the Child provides that no child shall be subject to arbitrary or unlawful interference with his or her privacy.

Reliefs sought in court

We expect the following reliefs from the court:

  1. A declaration that the policy introduced through the Statement of the District Commissioner and any actions or inactions emanating from it violate the right to equality and non-discrimination, right to privacy and respect of dignity inherent to a human being and the right to education of adolescent school girls and thereby violating the aforementioned provisions of the EAC Treaty.
  2. A declaration that the Statement by the District Commissioner of 29.02.2020 which derives its legal basis from the provisions of the Education (Expulsion and Exclusion of Pupils from Schools) Regulations, G.N. NO. 295 of 2002. Regulations 4(b), (c) and 7(b) are unlawful, discriminatory, and do not serve a legitimate aim and do not satisfy the 3 part cumulative test for permissible restrictions.
  3. A declaration that the statement by the District Commissioner and its accompanying actions whenever implemented constitute a violation of the right to Education of the pregnant young girls who are unfortunately on the receiving end of its effects.
  4. A declaration that the statement by the District Commissioner and its accompanying actions whenever implemented is a blatant violation of the totality of the spirit of the EAC Treaty and African Charter rendering the rights protected therein illusory.
  5. An order directing the Respondent with immediate effect to ceaseimplementation of measures that force educational facilities, authorities or any other related persons to introduce and implement any policies that emanate from the Education (Expulsion and Exclusion of Pupils from Schools) Regulations, G.N. No. 295 of 2002. Regulations 4(b), (c) and 7(b) which have the effect of banning or expelling pregnant girls from schools and prohibited from ever going back after giving birth.
  6. An order directing the Government of the United Republic of Tanzania to develop strategies, programmes and nationwide campaigns that focus on addressing the issue of teenage pregnancies through public education and awareness on sexuality and reproductive health rights.
  7. An order that the Government of the United Republic of Tanzania to integrate sexual and reproductive health into school curricula as increased knowledge on family planning and contraceptives will support efforts to address the high rate of teenage pregnancy.
  8. An order that the Government of the United Republic of Tanzania adopt and or implement the Guidelines on How to Enable Pregnant School Girls to Continue with their studies.

Status of the case

In 2023, the Center for Strategic Litigation made submissions in the case and is currently awaiting a court date for the judgement. Furthermore, President Samia Suluhu Hassan, in a remarkable departure from historical norms, announced in November 2021 the lifting of the ban on expelling pregnant girls from schools. However, it should be noted that the ongoing case remains crucial since some of the reliefs sought by the applicants have not yet been satisfied by the Government of the United Republic of Tanzania.

Furthermore, President Samia Suluhu Hassan, in a remarkable departure from historical norms, announced in November 2021 the lifting of the ban on expelling pregnant girls from schools. However, it should be noted that the ongoing case remains crucial since some of the reliefs sought by the applicants have not yet been satisfied by the Government of the United Republic of Tanzania.