ERICA MURPHY

Tanzania has one of the highest child marriage rates in the world. According to the UN Population Fund, 37% of girls are married by age eighteen. In Tanzania, as in many other countries, child marriage usually means the end of a girls’ education. Girls are forced to drop-out of school or else don’t progress to secondary school. Underage pregnancy, which usually follows child marriage, also forces girls out-of-school (one-in-six girls get pregnant between the ages of fifteen and nineteen) and in some regions of Tanzania girls are expelled for being pregnant.

There are many strategies civil society can use to analyse, understand, and address this extremely complex issue, but one way that is often overlooked or dismissed is the human rights-based approach. This is understandable; there is a misconception that human rights law is complicated and technical. But the potential value in applying a human rights-based approach to monitoring and advocacy work is huge. By engaging with the legal obligations that flow from States’ commitment to human rights law, advocates are better equipped to hold duty-bearers to account.

This post illustrates such benefits through the example of human rights-based indicators for the right to education that have been developed by the Right to Education Project (RTE). In particular, it looks at the Right to Education Monitoring Guide (‘Guide’) and the Right to Education Indicators Selection Tool (‘Tool’) and their usefulness/relevance in the case of out-of-school girls in Tanzania.

A Human Rights-Based Approach to Education Monitoring and Advocacy

RTE has long advocated that human rights should be at the heart of education monitoring and advocacy. This is because education is a human right, not a privilege States can grant at will. Every country has ratified at least one human rights treaty guaranteeing the right to education and the majority of countries guarantee the right to education in their constitutions.

This commitment means that almost all States are legally bound to make the right to education a reality for all. By using human rights law we can monitor implementation, identify violations, and hold States to account for the commitments they have made.

Indicators, derived from human rights law, allows us to gather relevant, revealing, and credible evidence, not just to understand who is and isn’t enjoying the right to education but also to assess what States have done or are doing to make that a reality. Data that shows that the State is failing to live up to its commitments is an extremely powerful way to hold States to account. We can ask questions such as ‘why do your laws discriminate against girls?’ and have the evidence to back-up our claims.

 The Guide and Tool

Driven by this approach, we have developed an interactive guide to monitoring the right to education and accompanying tool for selecting human rights indicators. The Right to Education Monitoring Guide is a seven step guide to applying the human rights-based approach. It shows users how to use the Tool, how to select relevant indicators for each step, how to collect, benchmark, and interpret that data, and how to put all the data together to show a violation.

The Indicators Selection Tool allows users to select right to education indicators from our bank of over 150 indicators based on the issue the user wants to monitor.

The Guide and Tool are intended to demystify and simplify the human rights monitoring process and to encourage all those engaging in education advocacy to use human rights mechanisms to pursue change. You don’t need to be a lawyer to use human rights law!

 

 Analysing Education and Child Marriage in Tanzania from a Human Rights Perspective

When applying the Guide and Tool to the case of Tanzania as described above, we can start from the claim that child marriage prevents girls from going to school. So the first step in our analysis is to back-up this claim with evidence.

The first substantive step of the Guide shows users how to identify deprivations and inequalities in the enjoyment of the right to education. For instance, a question to ask would be: do girls enjoy the same level of access to education as boys?

To measure this, users are introduced to outcome indicators. Outcome indicators measure enjoyment of the right to education from the perspective of the right-holder, that is, the impact of States’ efforts to implement the right to education.

For girls’ education in Tanzania, we want to select outcome indicators that show whether girls’ access to education is adversely affected.

Deciding which indicators to use isn’t always obvious. That is why we developed the Tool. By inputting the criteria relevant to the issue you are monitoring you are left with only relevant indicators.

In this case of girls’ education, we can make the following selections: ‘girls’, ‘secondary education’, ‘outcome indicators, and ‘access to education’. This leaves eight indicators.

Taking one indicator suggested by the Tool, out-of-school rate at the secondary level, data shows that 47% of girls aren’t in school compared to 38% of boys. These figures suggest that girls don’t enjoy the same level of access to secondary education as boys. The Guide then shows users how to find and benchmark data, and finally how to interpret that data in line with States’ obligations. The obligation to ensure non-discrimination in access to education is an immediate and core obligation of the State – and the data suggests Tanzania may not be in compliance with its human rights obligations.

With outcome indicators, it is important to ensure that the data is broken down by groups. Data that shows enjoyment by the population as a whole but not of marginalised groups hides possible discrimination. Without disaggregated data, we can’t identify problems, which means they can’t be addressed, further marginalising these groups.

However, it is important to note that unequal levels of enjoyment do not prove a violation, nor do they tell us much about the reasons why the inequality exists. The next step, then, is to ascertain whether the identified inequality is a result of absent, inadequate or ineffective laws and policies, or a lack of implementation. For Tanzania, we want to identify the main applicable legal and policy standards and how they intersect with legal and policy drivers of high rates of child marriage.

The next step shows users how to assess 1) the commitment of States to the right to education and 2) the measures taken to make that commitment a reality.

Commitment to the right to education requires the adoption of laws and policies and is measured using structural indicators. Structural indicators measure the commitment of a State to the right to education and can be used to assess the extent to which a State’s domestic law complies with international human rights law. An absence of commitment means that there is no will or endeavour to implement the right to education.

Using the Tanzania example, we need to assess the commitment of the country to guaranteeing the right to education of girls and if there institutional obstacles to effective implementation. The Tool suggests, amongst others, two important indicators:

• Coverage of the right to education in the Constitution or other forms of superior law

Tanzania’s Constitution does not have an enforceable right to education clause nor does it specifically protect girls’ right to education. This shows that legal commitment at the national level is an issue.

• Is there legislation prohibiting child marriage?

The Penal Code (amended by the Law of the Child Act (2009)) sets the minimum age of marriage of girls and boys at eighteen, however the Law of Marriage Act (1971) sets the minimum age of marriage at eighteen for boys and fifteen (with parental permission) and fourteen (with permission from a court) for girls. The Law of the Child Act also amends the Law of Marriage Act but fails to amend the specific provision on the minimum age of marriage for girls, as it did for the Penal Code. This absurd situation creates an inconsistency in the laws.

This may seem a problem for our study, but the Guide provides guidance on conducting a basic legal analysis of data for structural indicators, including how to analyse incongruities in international and domestic laws.

Whilst most States do commit to the right to education, the efforts they actually make to transform this commitment into reality must be assessed. This is measured using process indicators. They can be used to assess the quality, appropriateness, effectiveness, and efficiency of education laws and policies, and their implementation.

The Tool gives nine process indicators, including indicators to assess programmes to address drop-outs including re-entry programmes and the financial burden on households in sending children to school.

The process indicator that complements the indicator on child marriage legislation is: Incidents of child marriage. As aforementioned, that figure is 37% for girls under the age of eighteen. Here it is also important (but out of the scope of this piece) to look at other legal and policy drivers which may contribute to a high prevalence of child marriage, particularly the strength of right to education laws and policies regarding free education, girls’ access to education, and the quality of education. The relationship between child marriage and access to education isn’t necessarily one way – lack of quality, cost, and access may actually have the effect of pushing girls into marriage.

The Guide then goes through how to collect, benchmark, and interpret process indicator data in line with the content of the right to education.

By linking outcome data with structural and process data, we can see, simplistically put, that there is inequality in girls’ enjoyment of the right to education (47% of girls are out-of-school compared to 38% of boys) because the Constitution doesn’t expressly protect the right to education of girls and minimum age legislation for child marriage is inconsistent, which means it cannot be enforced, contributing to a child marriage prevalence rate of 37% of girls married by the age of eighteen.

To complete our analysis, there are three additional steps:

• Assessing the resources allocated to implementing the right to education: This step makes the link between policy failures and implementation gaps observed in the previous steps and inadequate financing. It is clear that States can’t meet their human rights obligations without resources. Using the Tanzania example, guaranteeing non-discrimination in access to education is a minimum core and immediate obligation of States. A lack of resources cannot be used as a justification for inaction; in fact, resources must be prioritised when it comes to minimum core obligations.
• Determining whether education laws and policies are developed and implemented in line with human rights principles of transparency, participation, and accountability. For example, what accountability mechanisms exist to ensure that discrimination does not occur in schools? Are girls and women able to participate in the policy-making cycle to ensure that laws and policies address their needs? Are there remedial mechanisms available for girls expelled for being pregnant or getting married?
• The final step provides advice on how to draft your report for human rights advocacy purposes as well as on human rights advocacy strategies such as, for instance, parallel reporting and taking cases to judicial and quasi-judicial mechanisms.

Accountability NOW!

Tanzania is not alone. Every single country faces education issues and civil society plays a vital role in supporting States to understand these issues. However, in some cases the State itself may be responsible for certain problems. In these instances, it is the role of civil society to hold the State to account for its failure to protect the right to education.

In order to hold States to account we need evidence. Good evidence is hard to ignore and the importance of monitoring is in the quality of evidence that is produced. A human rights-based approach is key in this process.

We hope that the Guide and Tool will help you to make the most robust argument possible in order to ensure that States live up to their commitment to the right to education.

Please contact us if you would like support in monitoring.

Post Scriptum: On 8^th July 2016, in a case brought by the Msichana Initiative, the Tanzanian High Court ruled that provisions of the Marriage Act that set the minimum age of marriage at eighteen for boys and fourteen for girls are unconstitutional because they violate the right to equality and non-discrimination. The Court ordered that the Marriage Act be amended and the minimum age of marriage for both sexes be set at eighteen.

Whilst this decision is an important victory, it won’t mean an immediate end to child marriage. The Tanzanian government must now ensure it complies with the Court Order, ensure that the amended Act is properly enforced, and implement policies and measures to ensure that married and/or pregnant girls are not subject to discrimination in education especially regarding access. It must ensure that its recent circular expanding free education to the secondary level is accompanied by adequate funding to ensure that quality is not compromised (low quality education incentivises drop-outs).

Through monitoring, civil society must push the Tanzanian government to make sure that the ban on child marriage is properly and effectively implemented, and identify any lack of implementation of policies and programmes, as well as any policy gaps.  Further, the Tanzanian government must monitor girls’ right to education in order to ensure it policies and programmes are well targeted and to assess the impact of these policies and programmes.

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MEET THE AUTHOR

Erica Murphy is Project Officer at the Right to Education Project: erica.murphy@right-to-education.org

RTE is a collaborative initiative between ActionAid, Amnesty International, Human Rights Watch, Global Campaign for Education, and Save the Children. RTE promotes mobilisation and accountability on the right to education, and seeks to build bridges across the human rights, education, and development disciplines. For more information, see: www.right-to-education.org