Text reviewed by Lynn Gertiser
Sexual and reproductive health is included in the Constitution of Tanzania through the following articles:
- 9. The state authority and all its agencies are obliged to direct their policies and programs towards ensuring (a) human dignity and other human rights f) that human dignity is preserved and upheld in accordance with the spirit of the Universal Declaration of Human Rights, (g) that the Government and all its agencies accord equal opportunities to all citizens, men and women alike without regard to their colour, tribe, religion, or station in life; (h) that all forms of injustice, intimidation, discrimination, and corruption are eradicated..
- 12. (2) Every person is entitled to recognition and respect for his dignity.
- 13. (1) All persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law. (4) No person shall be discriminated against by any person or any authority acting under any law (5) For the purposes of this Article the expression “discriminate” means to satisfy the needs, rights or other requirements of different persons on the basis of, inter alia, their sex. (6) To ensure equality before the law, the state authority shall make procedures which are appropriate or which take into account the following principles, namely: (a) when the rights and duties of any person are being determined by the court or any other agency, that person shall be entitled to a fair hearing and to the right of appeal or other legal remedy against the decision of the court or of the other agency concerned.
- 13. 6. (e) No person shall be subjected to torture or inhuman or degrading punishment or treatment.
- 29.(1) Every person in the United Republic has the right to enjoy fundamental human rights and to enjoy the benefits accruing from the fulfillment by every person of this duty to society, as stipulated under Article 12 to 28 of this Part of this Chapter of the Constitution.
- 64. (5) Without prejudice to the application of the Constitution of Zanzibar in accordance with this Constitution shall have the force of law in the whole of the United Republic; the Constitution shall prevail.
Sexual and reproductive rights implementation
- Abortion: Under the Penal Code, the protection of woman’s life is the only explicit legal ground for abortion, having regard to the woman's state at the time and to all the circumstances of the case (Art. 230). A woman found guilty of procuring an abortion by herself may be sentenced to imprisonment for seven years (Art. 151), the performer of the abortion procedure may be imprisoned for 14 years (Art. 150) and a person who supplies or procures for any person anything whatsoever to procure an abortion may face a three year sentence (Art. 152). However, the jurisprudence has accepted the exceptions based on woman’s mental and physical health. In accordance with the National Action Plan to Combat FGM (2001-2015) Tanzanian Government has expressed its commitment to improve the situation. Tanzania has ratified the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (Maputo Protocol) (2003) which requires Tanzania to take all appropriate measures to protect, inter alia, the reproductive rights of women by authorising medical abortion in cases of sexual assault, rape, incest, and where the continued pregnancy endangers the mental and physical health of the woman or the life of the woman (Art. 14, 2. (c)). The implementation of the Maputo Protocol would mean the amendment of national law.
- Female Genital Mutilation (FGM) is illegal to girls under the age of 18 in Tanzania and a person who performs the operation commits the offence of cruelty to children (Sexual Offences Special Provisions Act (1998), 169 A.(1). In accordance with the National Plan of Action to Combat FGM (2001-2015) Tanzanian Government has expressed its commitment to take measures to stop this harmful practice. A person may be sentenced to imprisonment for fifteen years or fine of up to three hundred thousand Tanzanian Shillings or both fine and imprisonment (169 A.(2)). However, these cultural practices still continue in some families and tribes. Maputo Protocol requires the creation of public awareness of this harmful practice and the prohibition of all forms of female FGM.
- Polygamy is authorized in Tanzania (Law of Marriage Act, Art. 10) in a manner that a man may have one or more spouses.
- Sexual minorities: There is no provision of law in Tanzania prohibiting discrimination based on sexual orientation. Sexual conduct between adult men is illegal and a person may be sentenced to imprisonment from 15 years to life imprisonment (Penal Code, Art. 154, 155 and 157).
- Violence against women: No spouse has any right to inflict corporal punishment on his or her spouse (Law of Marriage, Art. 66.) There is no specific provision under the Penal Code against domestic violence. In accordance with the National Plan of Action for the Prevention and Eradication of Violence Against Women and Children (2001 - 2015) the Tanzanian Government has expressed its commitment to improve the situation by increasing the number of violence against women sensitised police and social workers (p. 29). The Sexual Offence Special Provisions Act criminalizes various forms of gender-based violence including rape, sexual assault and harassment, FGM, and sex trafficking (Art. 130). The perpetrator may be sentenced to imprisonment for 30 years (fine and compensation). However, marital rape is not explicitly criminalized.
- HIV/AIDS: The cultural practice of widow inheritance and polygamy in Tanzania contributes to the spread of HIV/AIDS. As the Penal Code does not recognize the offence of marital rape, it may have effects on the spread of HIV/AIDS. The HIV and AIDS (Prevention and Control) Act (2008) prohibits discrimination against a person who is HIV positive and establishes medical standards for confidentiality to protect persons living with HIV/AIDS (Part VII). It also criminalizes the intentional transmission of HIV to another person. The transmitter may be sentenced to imprisonment from five to 10 years.
- Child Marriage: With the consent of the parents or guardians and without consent for orphaned girls without guardians, the minimum age for marriage is 15 years and 18 years for the boys (Law of Marriage Act, Art. 13 (1)). The national courts have discretion in some specific situations to allow the marriage for a girl at the age of 14 (Art. 13(2)). Additionally, a marriage of Muslim and Hindu girls at the age of 12 is not on offence if the marriage is not consummated until the girl reaches the age of 15 (Penal Code, Art 138 (6)).
Tanzania has ratified several conventions and international declarations that prohibit acts of violence against women, such as:
- Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW) was ratified by Tanzania in 1985.
- Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (OP CEDAW) was ratified by Tanzania in 2006.
- Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children was ratified by Tanzania in 2006.
- African Charter on Human and Peoples' Rights (ACHPR) was ratified by Tanzania in 1984.
- Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa (PACHPRRWA) was ratified by Tanzania in 2007.
Tanzania has set up policies, strategies and programs aiming to improve women’s human rights, such as:
- National Strategy for Gender Development, 2005
- National Strategy for Growth and Reduction of Poverty, 2005
- National Plan of Action to combat FGM, 2001 - 2015
- National Plan of Action For the Prevention and Eradication of Violence Against Women and Children, 2001 – 2015
Sexual and reproductive rights challenges
Numerous health care challenges persist in Tanzania, especially in relation to the reproductive and sexual rights. Although many important conventions have been ratified, and laws, policies, strategies and programs are in place, there are plenty of issues to be dealt and resolved. Some of the problems are:
- Women’s ignorance of their rights
- Women lack adequate access to information and services necessary to enjoy reproductive and sexual health
- Common cultural practices in the country
- Child marriage
- Sexual and gender-based violence