The African Committee of Experts on the Rights and Welfare of the Child holds that forced pregnancy testing, expulsion of pregnant girls, and their illegal detention is cruel, inhuman, and degrading treatment and subjects them to further trauma especially if they are survivors of sexual violence
March 13, 2023
The African Committee of Experts on the Rights and Welfare of the Child holds that forced pregnancy testing, expulsion of pregnant girls, and their illegal detention is cruel, inhuman, and degrading treatment and subjects them to further trauma especially if they are survivors of sexual violence
Legal and Human Rights Centre and Centre for Reproductive Rights (on behalf of Tanzanian girls) v United Republic of Tanzania
African Committee of Experts on the Rights and Welfare of the Child
Joseph N, CP; Anne M, VCP; Aboubekrine EJ, RC; Sidikou AM; Aver G, Hermine GK, Moushira K, Robert DN, Theophane MX, Karoonawtee C, Wilson AA, MsC
Reported by Faith Wanjiku and Bonface Nyamweya
Constitutional law-Bill of rights- right against cruel, inhuman and degrading treatment – where the complainants had been subjected to forced pregnancy testing and expulsion from schools in events they were found pregnant or married- whether practices of mandatory pregnancy testing and expulsion and illegal detention of pregnant girls who were sometimes also survivors of sexual violence amounted to cruel, inhuman and degrading treatment- African Charter on the Rights and Welfare of the Child, 1999, articles 3 and 16; Maputo Protocol, 2003, 1(f).
Constitutional law- Bill of Rights-right to education- where the complainants had been subjected to forced pregnancy testing and expulsion from schools in events they were found pregnant or married- whether the expulsion of pregnant and married girls from schools with no chance of re-entry violated article 11 of the Charter on the right to education- African Charter on the Rights and Welfare of the Child, 1999, article 11.
Criminal law- offences- sexual violence-margin of appreciation doctrine in relation to sexual violence- where the complainants had been subjected to forced pregnancy testing and expulsion from schools in events they were found pregnant or married- whether mandatory testing and expulsion of pregnant and married girls could be justified by the doctrine of margin of appreciation- what was the meaning and scope of the margin of appreciation doctrine in relation to sexual violence- African Charter on the Rights and Welfare of the Child, 1999, articles 3 and 16; Maputo Protocol, 2003, 1(f).
Criminal law- offences – sexual violence – where the complainants had been subjected to forced pregnancy testing and expulsion from schools in events they were found pregnant or married- whether the applicants were entitled to any remedies resulting from the mandatory testing and expulsion from school.
The complainants alleged that primary and secondary school girls were subjected to forced pregnancy testing and expulsion from schools in events where they were found pregnant or married. Mandatory pregnancy testing was practiced in almost all public schools subjecting girls as young as 11 years of age to pregnancy testing. The testing did not follow any standard and sometimes painful methods, such as poking, were applied to check for pregnancy by school personnel. Pregnancy testing was undertaken without the consent of the girls and most often the results were not communicated to the girls but rather shared with school staff without the consent of the girls. Girls were also required to take a pregnancy test when they enrolled in schools. The sexual reproductive health services available in the respondent state were not youth-friendly; hence, girls were not encouraged to access such services even when available. Lack of information and services on sexual reproductive health resulted in unwanted and unplanned pregnancy of girls who were then forced to leave their education due to pregnancy. It was also increasing the number of unsafe abortions among adolescent girls, which was also exacerbated by the restrictive abortion law of the respondent state, hence the communication.
i. Whether practices of mandatory pregnancy testing and expulsion and illegal detention of pregnant girls who were sometimes also survivors of sexual violence amounted to cruel, inhuman and degrading treatment.
ii. Whether the expulsion of pregnant and married girls from schools with no chance of re-entry violated article 11 of the Charter on the right to education.
iii. Whether mandatory testing and expulsion of pregnant and married girls could be justified by the doctrine of margin of appreciation.
iv. What was the meaning and scope of the margin of appreciation doctrine in relation to sexual violence?
v. Whether the applicants were entitled to any remedies resulting from the mandatory testing and expulsion from school.
Relevant provisions of law
African Charter on the Rights and Welfare of the Child, 1999
Article 3-Non Discrimination
Every child shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in this Charter irrespective of the child’s or his/her parents’ or legal guardians’ race, ethnic group, colour, sex, language, religion, political or other opinion, national and social origin, fortune, birth or other status.
Article 11(5) and (6)-Education
5. State Parties to the present Charter shall take all appropriate measures to ensure that a child who is subjected to schools or parental discipline shall be treated with humanity and with respect for the inherent dignity of the child and in conformity with the present Charter.
6. State Parties to the present Charter shall take all appropriate measures to ensure that children who become pregnant before completing their education shall have an opportunity to continue their education on the basis of their individual ability.
Article 16-Protection Against Child Abuse and Torture
1. State Parties to the present Charter shall take specific legislative, administrative, social and educational measures to protect the child from all forms of torture, inhuman or degrading treatment and especially physical or mental injury or abuse, neglect or maltreatment including sexual abuse, while in the care of the child.
2. Protective measures under this Article shall include effective procedures for the establishment of special monitoring units to provide necessary support for the child and for those who have the care of the child, as well as other forms of prevention and for identification, reporting referral investigation, treatment, and follow-up of instances of child abuse and neglect.
Maputo Protocol, 2003
1(f) Discrimination against women means any distinction, exclusion or restriction or any differential treatment based on sex and whose objectives or effects compromise or destroy the recognition, enjoyment or the exercise by women, regardless of their marital status, of human rights and fundamental freedoms in all spheres of life.
- The state was responsible for acts that violated article 16 of African Charter on the Rights and Welfare of the Child, 1999 (the Charter) on protection against child abuse and torture which were perpetrated by private actors where the state had not acted to prevent or investigate such acts, so long as it could be shown that representatives of the state knew or had reasonable grounds about the occurrence of such acts.
- The enforcement of pregnancy testing and expulsion had been employed throughout schools as part of the state’s efforts to discourage children from having sexual relations. Whereas the respondent state alleged that it was not aware the illegal detention of pregnant girls had been occurring, it had been widely reported on and brought to the state’s attention by the complainant and its national human rights institution. The police acted on behalf of and were employed by the state and its alleged conduct was, therefore, a matter of state responsibility. The state thus had reasonable grounds to believe those illegal detentions were occurring and had an obligation in exercise of its responsibilities to investigate that matter.
- The African Commission endorsed the definition of cruel, inhuman, and degrading treatment as a treatment that caused mental or physical harm. Gender-based violence was a form of cruel, inhuman and degrading treatment and included physical and psychological acts committed against victims without their consent or under coercive circumstances. The Committee acknowledged the psychological harm and physical pain experienced by girls forced to undergo pregnancy tests as well as the humiliating manner in which many girls were subsequently expelled amounts to practices that were cruel, inhuman, and degrading treatment.
- The respondent state had not respected its obligation to provide children with legal protection in conditions of freedom, dignity and security as far as it had failed to; properly investigate suspected illegal detentions, and to prevent such illegal detentions from occurring.
- Sexual violence was itself a form of cruel, inhuman, and degrading treatment and a violation of article 16 of the Charter. Subjecting girls who were survivors of sexual violence to illegal detention was thus a continuation of the cruel, inhuman, and degrading treatment they had already suffered. The forced pregnancy testing, expulsion of the pregnant girls, and their illegal detention was cruel, inhuman, and degrading treatment and subjected them to further trauma if those girls were survivors of sexual violence. The respondent state had violated article 16 of the Charter in all instances.
- The right to education was an inherent right of all children, recognized under the African Charter on the Rights and Welfare of the Child (ACRWC) and other international and regional instruments. Article 11 of the Charter provided for the right to education of all children, and it set out the aim of education, states’ obligation towards the realization of children’s right to education as well as special measures that should be undertaken to support certain groups such as girls and gifted children.
- Article 11(6) of the Charter provided that states parties to the present Charter should have all appropriate measures to ensure that children who become pregnant before completing their education should have an opportunity to continue with their education based on their individual ability. The Committee noted that article 11(5) and (6) of the Charter provided for education for all with no condition being attached. The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (the Maputo Protocol) indicated that the promotion of the enrolment and retention of girls in education and prevention of any exclusion from education, which amounted to discrimination in education was the JN 18 obligation of states in fulfilling the right to education.
- States were required to take measures such as reviewing laws and policies that facilitated the expulsion of pregnant girls and ensure there were no restrictions on their return following childbirth. The Committee and the African Commission on Human and Peoples’ Rights had stipulated that States had to undertake measures to encourage pregnant girls to continue with their education and, more specifically ensure that there was retention and re-entry of pregnant and married girls, and where they were unable to return to schools, to provide them with alternative education programs. The UN Committee on the Rights of the Child (UNCRC) had also provided that expulsion of girls from school based on pregnancy was a discriminatory act which should be prohibited and that adolescent mothers should be provided with an opportunity to continue with their education.
- The responsibility of states in realizing the right to education included the obligation to promote, respect, protect and fulfil education. The obligation of states to respect the right to education entailed that states should not interfere with the right to education of girls, rather they should provide enabling policies, allocate budgets and fulfil the right to education of girls. The education that was being provided by states should be provided with respect for human rights and fundamental principles set out in human rights instruments. Schools should be free from any kind of violence, abuse, and deprivation of rights. Any pre-condition set to access education that was not in line with human rights standards was a violation of the right to education as inherently the right to education was provided for every child.
- The respondent state’s argument that its policy on pregnant and married girls being carried out was in line with article 11(2)(c) of the Charter which stipulated that education should be geared toward the preservation of African morals was not founded within the general principles of the Charter. Article 11(2)(c) vividly highlighted that only positive African morals, values and cultures should be strengthened through education. Positive African morals, values, and cultures were premised on tolerance, consultation and dialogue and were not to be interpreted to include practices harming the child and violating the Charter.
- Article 11(2)(c) of the Charter needed to be read in line with the whole context of article 11 whose aim was to accord all children the right to education and which also provided specific support to pregnant girls to continue their education under article 11(6). Article 11(2)(c) should also be read in line with the general principles of the Charter which included among others, the best interests of the child, and the principle of non-discrimination. The argument of the respondent state that sexual relations among children was not an African value and that the policy aimed to discourage sexual relations was not acceptable. The fact that no distinction was made among children who fell pregnant due to sexual abuse and exploitation was a manifestation that the policy’s intent was not mainly aimed at discouraging sexual relations. The promotion of a certain value could not be achieved by establishing rules and policies that were not in conformity with the Charter.
- The terminology of mandatory testing contained the same meaning as forced since the girls had no option of refusing the test to access education. The Committee was of the view that no proof was required as to an increase in drop-out of school to establish that forced pregnancy testing was a violation of the right to education. Any form of unlawful requirement to access and continue education and any violation of children’s rights that occurred in schools and curtails education was, in and by itself, a violation of the right to education. Forced or mandatory pregnancy testing to access education was a pre-condition that was not aimed at fostering education, rather it violated the right to dignity, freedom from torture and the right to privacy of children. The Committee found that mandatory pregnancy testing was a violation of article 11 of the Charter.
- The doctrine of the margin of appreciation was provided for in the preamble to the European Convention on Human Rights (the Convention) as introduced by protocol 15 which amended the preamble to the Convention. The provisions required parties to the Convention to follow the principle of subsidiarity, to exercise their primary responsibility to secure the rights and freedoms in the Convention and the Protocols thereto, to engage in a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights. The margin of appreciation doctrine allowed states leverage in the fulfilment of their obligations under the human rights instrument in a manner that did not defeat the promotion and protection of the rights of an individual.
- The doctrine of the margin of appreciation entailed that states should have the discretion to interpret and apply some of the elements of the provisions of the European Convention on Human Rights in fulfilling their obligations therein. Article 10(2) of the Convention provided for a margin of appreciation for states in ensuring the right to freedom of expression as it provided for certain ground for the limitation of the right and certain conditions for the enjoyment of the right. It alluded to the fact that the margin of appreciation did not accord states unlimited power of appreciation but rather it was understood and implemented along with the European supervision. Any margin of appreciation that states had had to be applied for a legitimate aim and only if it was necessary for a democratic society.
- The Convention was the basis or the floor as the unqualified minimum guarantee of human rights which a state was not able to go below, an area which lay above the basis or floor, within which the state could elect to exercise discretion on condition that its decision was above the floor. The state party could exercise its margin of appreciation as long as it was not violating its obligations or the rights under the Charter.
- Elements of article 11 of the Charter in general and article 11(1) in particular left no room for limitation or condition in the application of the rights provided, hence the argument of the respondent state on the application of the margin of appreciation went against the protected right of education under the African Children’s Charter. Article 11 (3)(d)(e) and 11(6), provided clear obligations by requiring state to take special measures in respect of girls and prevent drop-out of school as well as to support girls who fell pregnant while in school.
- The respondent state had introduced policies and practices which excluded pregnant and married girls from public schools and had introduced mandatory pregnancy testing in schools the outcome of which results in expulsion with no re-entry. Those policies and practices were not contested by the respondent state but rather defended on the grounds of morality. No argument of morality or margin of appreciation could justify a policy and practice which was against the explicit provisions of the Charter. The Committee did not accept the justification of the respondent state based on the doctrine of margin of appreciation.
- The expulsion and the prohibition of re-entry of pregnant and married girls was another form of the perpetuation of the negative societal attitude towards the same group of girls including stigmatization and segregation that was deeply entrenched in most African communities. Education should be used as a tool to address such negative attitudes and not perpetuate or conform to such attitudes. Providing education to such disadvantaged groups should have been part of the education strategy of the state party by providing them with the necessary support and affirmative action to overcome the disproportionate impact of their situations. The respondent state acted in violation of article 11 of the Charter through its policy of expulsion of pregnant and married girls from schools as well as introducing a condition of mandatory/forced pregnancy testing to be enrolled in schools. The re-entry policy of the respondent state was a violation of the right to education which required the states to make education accessible to all.
- The prevention of sexual relations among adolescents was not an internationally recognized obligation of the State. Countries in Africa had different ages for sexual consent ranging from 12 to 18 years. Consensual and non-exploitative sexual relations among adolescents should be decriminalized. The exclusion of pregnant and married girls from schools with no opportunity for re-entry created a vicious cycle of gender-based discrimination as those girls would be excluded from the benefits of education.
- Education was not only a substantive right, but the enjoyment of the right to education also facilitated the realization of other rights of children and the elimination of discrimination against girls. Article 1(f) of the Maputo Protocol provided that discrimination against women included any form of discrimination against women from the enjoyment of their rights regardless of their marital status. The expulsion of pregnant and married girls with no re-entry amounted to discrimination based on sex, marital status, and health status (pregnancy) within the meaning of article 3 of the Charter, and further entrenched gender-based discrimination.
- Mandatory pregnancy testing was differential treatment on the ground of sex and interfered with the right to education, the right to privacy, and the health of girls among others. The mandatory pregnancy testing presumed that all girls who fell pregnant had committed an immoral act which was a perpetuation of structural gender-based discrimination which subjected girls to scrutiny on their sexuality although they were victims of sexual abuse. Mandatory pregnancy testing also amounted to discrimination. The detention of pregnant girls was discrimination based on their gender, age, and health status (pregnancy) as they were being targeted on those grounds while having committed no crime.
- Article 21 of the Charter did not provide for a definition of harmful practices, it rather provided certain grounds for the prohibition of harmful practices. It stated that any practice that affected the welfare, dignity, development health, and life of the child and was discriminatory on prohibited grounds should be eliminated. Article 21(2) explicitly prohibited child marriage and betrothal of children. The Committee, in further elaborating article 21(1) of the Charter, adopted the definition of harmful practices provided by the Committee on the Rights of the Child and the Committee on the Elimination of Discrimination Against Women. The two Committees had identified 4 criteria for defining harmful practices if:
- They constituted a denial of the dignity and/or integrity of the individual and a violation of their human rights;
- They constituted discrimination limiting the capacity of girls to fully participate in society;
- They were practices that were prescribed and/or kept in place by social norms that perpetuated male dominance and inequality of women and children, on the basis of sex, gender, age and other intersecting factors; or
- They were imposed on women and children by family members, community members or society at large regardless of the victim’s lack of or inability to consent.
- The mandatory pregnancy testing of girls and their expulsion from school when found pregnant or married impaired the enjoyment of their rights under the Charter and that such practice was discriminatory within the ambit of article 3 of the Charter and violated the right to dignity, freedom from torture, and the right to privacy of girls, among others. The Committee stressed that schoolgirls who were married and fell pregnant were victims of a larger pattern of gender-based discrimination which the respondent state was required to address by taking the necessary safeguards through law and practice as well as providing redress to victims.
- The failure of state parties to ensure compliance with the minimum age of marriage set at 18 was a violation of article 21 of the Charter. The policy and the practice of the respondent state subject victims to secondary victimization and hinder the apprehension of perpetrators of sexual violence by shifting the blame on the victims.
- When children in situations where their health and well-being were implicated, they should be provided with adequate and appropriate information to understand the situation and all the relevant aspects concerning their interests, and be allowed, when possible, to give their consent in an informed manner. The complainants further submitted that the procedure was painful and traumatic for some girls, including some of the deponents of the affidavits. The practice of mandatory pregnancy testing had also been shown to involve publicly announcing results- in cases where the child was found to be pregnant- to shame the child concerned. Beyond mandatory testing being a clear violation of article 4 of the Charter, that practice was a violation of that provision at every point in the process through which mandatory pregnancy testing was undertaken, including the events before and after the test. The entire practice should thus be eliminated.
The Committee recommended for the respondent state to:
i. Immediately prohibit mandatory pregnancy testing in schools and health facilities and publicly announce the prohibition;
ii. Review the Education (Expulsion and Exclusion of Pupils from School) Regulations, 2002 G.N. No. 295 of 2002 and in doing so remove wedlock as a ground of expulsion and provide an indication that the moral ground of expulsion should be interpreted narrowly and should not apply in cases of pregnancy of schoolgirls;
iii. Undertake concrete steps to prevent the expulsion of pregnant and married girls from schools including by providing laws and policies on the same;
iv. Remove any policy of non-re-entry of schoolgirls including girls who had dropped out of school due to pregnancy or wedlock;
v. Immediately re-admit schoolgirls who had been expelled due to pregnancy and wedlock and provide special support programmes to compensate for the lost years and ensure better learning outcomes for the returned girls;
vi. Provide clear guidance to school administrators that girls who dropped out of school due to pregnancy or wedlock with their preference were allowed to come back to school with no preconditions;
vii. Investigate the cases of detention of pregnant girls and immediately release detained pregnant girls who were being interrogated to reveal who impregnated them and stop such kinds of illegal arrests of pregnant girls;
viii. Provide sexuality education for adolescent children and provide child friendly sexual reproductive and health services;
ix. Undertake extensive sensitization of teachers, health care providers, police and other actors with regards to the protection that should be accorded to pregnant and married girls;
x. Undertake proactive measures towards the elimination of child marriage and other harmful practices that affected girls including by taking measures to address the underlying factors such as gender-based discrimination, poverty, and negative customary and societal norms;
xi. Create a conducive reporting and referral mechanism for survivors of sexual violence including child marriage, and provide psychosocial support, rehabilitation and reintegration services for the survivors;
xii. Investigate and prosecute perpetrators of sexual violence and child marriage;
xiii. Take action against any actors who conducted forced pregnancy testing of any kind, or who discriminate against girls on the grounds of their pregnancy or marital statuses such as expulsion and detention;
xiv. Provide special support to pregnant and married girls to continue their education in a school of their choice and based on their consent.
xv. Report to the Committee on all measures taken to implement the decision of the Committee within 180 days from the date of receipt of the Committee’s decision.
Relevance to the Kenyan jurisprudence
Matters solved by the African Committee of Experts on the Rights and Welfare of the Child are relevant to Kenya because article 3 of the Treaty Establishing the East AfricanCommunity, 1999, makes Kenya a member of the Community when it highlights that:
The members of the Community, in this Treaty referred to as the Partner States, shall be the Republic of Kenya, the Republic of Uganda and the United Republic of Tanzania and any other country granted membership to the Community under this article. Sexual based violence is basically any offence perpetuated on a person based on their gender. It is important to highlight that:
In a patriarchal society like Kenya, SGBV is fueled by patriarchal beliefs, mindsets and myths that impact the response at all levels. These have the potential of colouring evaluation and decision making by professionals in the justice sector including prosecutors. The beliefs include and not limited to perceiving certain persons as deserving to be violated, shifting the blame to the victim because of their choice of dress, venue, time, profession or company; excusing certain violations in the name of culture, among others.
The Constitution of Kenya in article 28 talks of human dignity and in article 29(d)(f) prohibit inhumane treatment. Article 31 talks about right to privacy. The Sexual Offence Act in section 46 (a) notes that:
The Minister shall – (a) prepare a national policy framework to guide the implementation, and administration of this Act in order to secure acceptable and uniform treatment of all sexual related offences including treatment and care of victims of sexual offences.
In the case of CKW v Attorney General & DPP Petition No. 6 of 2013  eKLR, the court decried criminalization of discretional teenage sex. The court in C.K. (A Child) & 11 Others v. Commissioner of Police/ Inspector-General of the National Police Service & 2 Others stressed on the responsibility of the state to investigate and prosecute Sexual Gender Based Violence cases.
Therefore, this case is relevant to the Kenyan jurisprudence because it expands the scope on the privacy, dignity and right to education of female persons in relation to sexual gender based violence as it holds that the forced pregnancy testing, expulsion of the pregnant girls, and their illegal detention is cruel, inhuman, and degrading treatment and subjects them to further trauma if these girls are survivors of sexual violence. UNODC, ‘Handbook on Effective Prosecution Responses to Violence Against Women and Girls’ Criminal Justice HandBook Series (2014).