THE STATE AND FAMILY
Introduction
In this post today we will try to evaluate the relationship between the state and family. We do this by conceptualizing the state and family as partners but also the state as a watchdog, ready to intervene in the family to protect weaker family members. We consider the extent to which the state meets its obligations to the family. The question of what is meant by family is considered especially in the light of changing family forms and family relationships. The lecture examines the growth of non-conventional family forms and family relationships. It wonders whether and to what extent our family law has coped well with these transformations. The question of changing family relationships is considered in terms of the development in science and technology and its impact on family law.
Functions of Family law: Reflections
We began in this course with an analysis of the four functions of family law noting thatthe idea of conceptualizing family law in terms of what it does, rather than merely what it is, enables the student to think more clearly about the subject and to develop an analytical framework that seeks to evaluate the extent to which the law does or fails to perform those functions. We do this with the understanding that law does not work alone. The law works in partnership with other non-state bodies which at times may hinder or enable it to perform its functions. We return to the four functions of family law with the benefit of hindsight to consider briefly whether the analytical framework suggested at the beginning of the course has enabled us to capture the essence of family law as a subject of study.
We ask ourselves the extent to which family law plays a constitutive role and whether it shares this function with religious bodies and non-state institutions including customary law. Looking at the constitutive function, studies have shown that a large number of marriages are contracted under customary law and many are not registered with the State. Similarly, the law of adoption is also rarely utilized by Tanzanians. The number of children being looked after by relatives is far greater than those who have been formally adopted. Indeed, as noted above, even the LCA has sanctioned the practice of taking care of children in accordance with “any traditional arrangement” s 9(4) LCA. This means the law recognizes the continuation of the old child care practices. The fact that the 1942 law of child adoption had never been popular with many African communities is widely known (Rwezaura & Wanitzek 1988). Hence, the introduction of open adoption by the LCA seeks to encourage Tanzanian relatives to create a formal relationship between them and the children of their relatives. The idea of having both open adoption and traditional forms of child care may appear flexible and convenient but it seems to defeat the whole object of state regulation of alternative family care and child protection.
Turning to the regulatory role of family law we should note that extra-judicial divorces are common in Tanzania. Parties see the need to approach state courts when a former husband wishes to claim refund of marriage payment (bridewealth) or to claim children taken away by the mother or those born during the couple’s separation. In parts of Tanzania where marriage does not involve substantial property transfers, there are many couples living apart in the false belief that they are legally divorced. Indeed, some women do “remarry” on the assumption they are free to do so when in law they are still married to their “former” husbands. In this context the law fails to oversee the termination of marriage and to effectively regulate post-divorce issues such as division of matrimonial assets and allocation of custody of children. Needless to add, the provisions of the law relating to judicial separation are not utilized by such couples.
The protective role of the law is also weakened by parties who do not seek the assistance of state courts when they face matrimonial disputes. Research has revealed several factors that deter married couples, especially the wives, from using state courts to resolve their family disputes (Rwezaura 1999 UCT).These include lack of knowledge of available remedies; the high cost of litigation; social pressure against taking family disputes into the public arena. Thus no matter how well drafted a piece of legislation may be, it will not perform its job if parties cannot pursue their remedies in appropriate state organs.
It needs to be pointed out also that there are significant gaps in the protective framework of family law. For example, we noted in Post Eight that despite the high rates of domestic violence, Tanzania does not have a special legislation on domestic violence. In many jurisdictions, domestic violence is viewed as a human rights issue because of its gendered nature. Again we noted that the LMA lacks provisions governing the property rights of co-wives at the time of divorce. [1]The protective role of family law is also weak in relation to children of the family. As noted in Post Eleven upon separation or divorce the court has power to order child custody and maintenance. But very few, usually fathers, ever pay child support.[2] This has sometimes discouraged mothers from seeking custody of their minor children because they do not want their children to starve or fail to complete their education due to financial difficulties. Unlike other jurisdictions, Tanzania does not have special mechanism for the enforcement of child support obligations.[3]
Tanzania also faces the problem of child marriages. Although section 13 of LMA provides a minimum age for marriage at 18 years for males, the minimum age for girls is set at 15 years. In a sense the LMA unknowingly encourages child marriages thus violating several human rights of the child. The lower age of marriage is favoured by many parents, especially in the rural areas where it is customary for girls to marry at a young age. This is why female children are withdrawn from school to get married to men chosen by their parents or guardians (see Elizabeth Saya, Haki za Watoto na Utata wa Sheria ya Ndoa 1971, Nipashe, 11 March 2014 p 8).[4]
Family and the State as Partners
The Universal Declaration of Human Rights (UDHR, 1948) states that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State (Art 16). The International Covenant on Civil and Political Rights (Art 23 ICCPR, 1966) makes the same point. Tanzania is a party to the ICCPR and subscribes to the values contained in the UDHR (Art 9(f) URT Const 1997).[5] Hence, the protection of the family is an international treaty obligation which Tanzania is required to honour. The question is what makes a family so important as to deserve protection? This is primarily because the family performs the task of bearing and nurturing the next generation. This function is so important to the state such that without the family the state would be expected to bring up all its children. But as we all recognise the state is ill-fitted to perform these important tasks alone and hence it has to form a partnership with the family.
The vision of the Tanzania Child Development Policy (CDP 2ndEd, 2008) is to have a nation of healthy, educated and well behaved children who have the capacity to play an effective role in nation building. It spells out the responsibilities of the child, the parents, the community, the government and its institutions, in the planning, co-ordinating and implementation of all child related programmes (para 41(vii) p 19). The CDP further stresses that both parents have joint responsibility in bringing up and ensuring the growth and development of their children.
The State has specific obligations towards the family and these fall primarily in the sphere of social welfare, family health, education and economic support to the family. For example, in respect of formal education, Tanzania has made primary school education free and compulsory. The state subsidises secondary school education and vocational training. No doubt many of these functions fall outside the scope of family law. It is clear from the content of the CDP that it anticipates, and is indeed built on the assumption, that the state and the family will work in partnership to achieve the vision stated above
It must be stressed however, that when we speak of family we do not necessarily mean the conventional family of husband, wife (or wives) and children. We have to bear in mind the fact that the family is changing and new family forms are emerging. Moreover, we have to recognise that there are children who have no families to belong to. In such cases the state has to take the place of parents to these children. Within the context of alternative family care, the state is expected to oversee the process and to ensure that these children are assigned to suitable families. Thus in cases where a child has no family to act as the ultimate parent, i.e. parens patriae.
The provisions of Part III of the LCA are intended to ensure that children who are in need of care are given protection by the State. The definition of a child in need of care is found in s 16 LCA. It includes, a child who is an orphan or is abandoned, has been neglected or ill-treated parents, is destitute or under the care of a destitute parent, is wandering, begging, or having no home or settled place to live. Also a child exposed to immoral or criminal conduct or influence including prostitution or being a victim of human trafficking falls in the above category. Sadly, the gap between section 16 LCA and actual practice is very wide indeed. We have in our cities a large population of children living on the streets or begging alongside their destitute parents. Children in need of care and protection are supposed to receive various forms of assistance from the State so that they may lead a decent and productive life. Unfortunately, many of these children do not get the expected assistance from the state and this poses a huge challenge, not only for the State but the entire nation.
State as Watchdog and Family Protector
Although the State and family are correctly viewed as partners in the care and upbringing of children, the State also plays the role of a watchdog and protector of family members during times of crisis. In its role as watchdog, the state has power and responsibility, for example, to intervene in the family to ensure that children are not abused by parents. For example, s 95 LCA states that it shall be the duty any member of the community who has evidence or information that a child’s rights are being infringed to report this to a local .government authority of the area. Upon such a report being made, the social welfare officer has power to summon the child’s parent to discuss the matter and to make appropriate decisions. Where the parent refuses to comply with the decision of the Social Welfare Officer, the matter shall be referred to a court of law which shall hear and adjudicate upon the matter. In any case according to s 95 (5) LCA, any person who infringes the rights of the child as provided under sections 95(1) and 14 LCA commits a criminal offence and is liable upon conviction to serious punishment.
In cases of domestic violence, the State intervenes to stop spouses from hurting one another. This may be done by the use of criminal law, but also the LMA. We have noted in Post Eight the shortcomings of our law against domestic violence,(as gender based violence), has become a human rights issue. In cases of separation or divorce, the state has to determine whether or not the parties’ marriage has broken down irreparably and to terminate it. Before terminating the marriage, the state attempts to mediate, and where mediation fails, the marriage has to be dissolved. In this connection the state oversees the entire process of division of assets and custody of minor children. These post-divorce matters are often contentious and if not properly handled can lead to acrimony and bitterness between the couple. Such bitterness has the effect of weakening the couple’s ability to co-operate in the upbringing of their minor children. Thus the state has to ensure there is fairness in the division of matrimonial assets and to protect the weaker family members. It has also to decide issues of child custody bearing in mind the best interest of the child as a paramount consideration.
Changing Family Forms and Family Relationships
Before embarking on this discussion we need to consider the meaning of the terms family and family forms. The conventional term ‘family’ when qualified by the word ‘nuclear’ refers to a small unit consisting of a man and his wife and their minor children. And when the term ‘family’ is qualified by the words ‘extended’ it includes a larger group of individuals consisting of relatives of different generations including, not only husband, wife (or co-wives) and children (minors and adults) but also grandparents, cousins, nephews and their children. Thus the common understanding of the term family among African people is that it includes members who share a common descent including their spouses.[6]
The term family form on the other hand relates to the structure and composition of the family. For example, we are familiar with the extended family and the nuclear family as types of family forms. But there are also single parent families, arising from divorce, separation or death of one spouse. There are also child headed families and families headed by relatives such as grandparents. There are families where the couple is not legally married but simply cohabiting as in de facto unions. All these non-conventional family forms have implications for family law. Hence, students should be aware of their existence and the extent to which they operate within or outside the framework of family law. Moreover, students should recall our discussion regarding the effect of social change on family law. Here again we note that the rise of some of these family forms is to a large extent connected with economic and social transformation. It is also a result of demographic changes and the effect of HIV/AIDS which has caused unprecedented loss of lives and left many children without parents to care for them. Students need to evaluate the extent to which our family law has coped well with these transformations.
Finally, the development of science and technology has also significantly impacted on family law and thus given rise to changes in the relationship between family members. For example, the legal provision regarding proof of parentage by DNA testing is a recent thing in Tanzania. Its implications are yet to be fully appreciated. For example, s36 (1)LCA provides for compulsory medical examination of a man who is alleged to be the biological father of a child. And where a court makes an order for medical tests and the alleged father refuses to comply, such refusal is an offence punishable by fine or imprisonment. It is arguable that this provision would be challenged in due course as a human rights violation.[7]
Another development in science and technology which has not been legally provided for in our law is the legal status of children born as a result of scientifically assisted reproduction. There are four known forms of scientifically assisted conception The first is artificial insemination by donor (AID); second, is in vitro fertilization (including embryo transfer) using a donor’s egg or sperm; and third, is surrogacy where a woman other than a wife agrees to have another couple’s embryo implanted into her womb to be carried to full term with the intention of handing over the baby to the couple. In all the three forms of scientifically assisted birth, there are questions of parentage which Tanzania law does not address. This is unlike other jurisdictions where the law has provided answers to these questions. Such silence is not in the child’s best interests given that scientifically assisted birth takes place in Tanzania and there are children born as a result of such procedure.
Perhaps more controversial is the question of legal recognition of same sex partnerships and whether family forms arising from such relationships would be legally recognized in Tanzania in the near future. Basing on available evidence there are no indications that same-sex partnerships or family forms would gain legal recognition any time soon.[8]
Summary and Conclusions
This final Lecture has tried to wrap up the entire module using four major themes. Each of the themes seeks to draw together its various parts while also underlining the connections in the topics covered. It is hoped that the approach will enable students to see the module as a whole and therefore to enhance their understanding of this course. The first theme relates to the functions of family law. As noted in Lecture One, by asking ourselves what family law does, we are in good position not only to understand family law itself but also to evaluate its effectiveness in performing what it purports to do. Some of the weaknesses of Tanzania family law have been noted in the final lecture. However, room has also been left open for further evaluation of its effectiveness and students are encouraged to maintain a culture of assessment and evaluation.
The second theme is the operational relationship between the State and the Family. This lecture has put forward an argument that the state and family are partners. Indeed the work of the state and that of the family are inter-linked. The state enacts laws to promote family welfare and to regulate family relations. It enacts minimum standards for child care and upbringing, including compulsory vaccination and school attendance. It builds schools and hospitals including day-care centers and kindergartens. The state sets up entire ministries, departments and directorates and district councils dedicated to the welfare of families. The family, for its part, needs to work together with the state in order to achieve the various developmental goals set for the family.
The third theme is the role of the State as watchdog and protector of weaker family members. Whereas it is widely recognized that the family is autonomous and that state intervention should be slow and measured, it is nonetheless unavoidable for the state not to intervene. The state intervenes primarily to protect the weaker family members from various forms of harm. The most common forms of intervention, as noted above, relates to prevention of abuse of wives and children. As we have noted, in the context of Tanzania family law the state’s role as protector of weaker family members fall below the required standards.
The fourth and final theme concerns the changing family forms and family relationships and the extent to which the law is able to maintain regulatory and leadership role. Here again, as noted in the final lecture, it seems the speed of change in our societies is far greater than the law’s capacity to lead by directing such change and by regulating social relations. The result is that a number of areas of social life are left out of the law’s empire, so to speak. For example, the absence of the rules relating to the status of children born as a result of medically assisted conception does not mean that such medical practice will cease. It is to be hoped that rather than lagging behind social change the law will lead the way and show leadership in various spheres of family law.
[1]See Bart Rwezaura, ‘Tanzania: Building a New Family Law out of a plural legal system’ University of Louisville Journal of Family Law (1995) 523, 530. See also Rachel Howland & Ashley Koenen, Divorce and Polygamy in Tanzania (Social Justice Paper 15 http: ecommons. Iuce.edu/social_justice 15)
[2]As noted by Sisya J in Ahmed Ismail v Juma Rajab 1985 TLR 204 (HC), “The tendency among young men of today to ignore their offspring living with their mothers, and away from themselves, is a fact too notorious to escape judicial notice of this Court.”
[3]See for example the Child Support Act 1991 (England and Wales) and subsequent amendments.
[4]The Ministry of Community Development Gender and Children recommended (in CDP 2nd Ed 2008) that the Law of Marriage Act be amended to raise the minimum age of marriage for girls to 18 years but this recommendation has not been acted upon (Sera ya Maendeeo ya Mtoto Tanzania 2ndEd para 49 pp 25-26). Indeed the opportunity to amend the law was lost ten years later in 2009 when the Law of the Child Act was enacted clearly providing under s 4 that “ a person below the age of eighteen years shall be known as a child.”
[5] See also CRC Art 19 and 24.
[6]See Armstrong A et al “Uncovering Reality: Excavating Women’s Rights in the African Family (1993) 7 International Journal of Law, Policy and the Family 314, at
[7]See Probert 2003 at p 195 and Re (A Minor) (Paternity: Refusal of Blood Test) [1994]2 FLR 463 and the Family Law Act s 21(1)
[8] For an overview of the global gay rights movement, see B Rwezaura, “To be or Not to be :Recognition of same-sex Partnerships I Hong Kong” Hong Kong Law Journal Vol 34, No 3, 557, (2004).
