Why Africa court dismissed case on schoolgirl mothers

Arusha. The African Court on Human and People’s Rights (AfCHPR) recently dismissed a case seeking to allow parenting girls in public schools, citing several reasons for the decision.

The application by a local NGO said exclusion of pregnant and parenting schoolgirls was a violation of human rights.

The much awaited ruling was made here last week by Justices Blaise Tchikaya and Justice Rafaa Ben Achour during the Court session.

It was filed by Tike Mwambipile, a Tanzanian female, and Equality Now, an NGO with observer status before the African Commission on Human and People’s Rights.

The applicants said the ban excluding pregnant and parenting girl students from schools violates their right to education.

It also violates non-discrimination guaranteed in the African Charter on Human and People’s Rights and other human rights instruments ratified by Tanzania.

The respondent state (Tanzania) had initially raised three objections on the admissibility of the application, one of them on exhaustion of the local remedies.

The other objection relates to the contention that similar applications were already pending before the African Committee of Experts on the Rights and Welfare of the Child (ACERWC).

The other concerns the question whether the application, Tike Mwambipile and Equality Now vs Tanzania government, was filed within a reasonable time

Regarding the admissibility of the case, the Court noted that the respondent state (Tanzania) avers that the applicable admissibility rule in the instant matter is that of res subjudice.

However, the Court noted from the record that the ACERWC had already adopted its decision No. 002/2022 in Communication No:0012/Com/001/2019 in the matter between the Legal and Human Rights Centre (LHRC).

The matter has also been raised before the Centre for Reproductive Rights (on behalf of Tanzanian girls) against the Tanzania government during its 39th Ordinary Session held from 21 March to 1 April 2022.

The Court was, therefore, of the view that the issue at hand is no longer a question of res sub judice, but rather it had to consider whether the matter has been settled in accordance with the principles invoked in Article 56(7) of the Charter.

Concerning the issue of whether the matter had already been settled, the Court considered three criteria.

These are the identity of the parties, the similarity of the subject-matter of the applications and whether a first decision on merits exists.

The Court found that these cumulative criteria have been fulfilled and,therefore, held that the admissibility requirement under Article 56(7) of the Charter had not been met.

The Court further recalled that the conditions of admissibility of an application filed before it are cumulative, such that if one condition is not fulfilled then the application becomes inadmissible.

The Court, therefore, dismissed the Application without needing to examine the other objections to admissibility raised by the Respondent State and the other admissibility requirements set out under Article 56 of the Charter and Rule 50 of the Rules.

The Court ordered each Party to bear its own costs.

The government announced in 2017 that parenting schoolgirls can rejoin school after delivery, a move which raised heated debate within and outside the country.