CHAPTER ONEGENERAL INTRODUCTION1.0 IntroductionUnborn means not yet born (an unborn child), or never to be brought in to being[footnoteRef:1], not yet delivered; still existing in the mothers womb.[footnoteRef:2] The unborn child means the developing young in the uterus, specifically the unborn offspring in the postembryonic period, in humans from nine weeks after fertilization until birth.[footnoteRef:3] This chapter covers Background of the study, Statement of the problem, Objective of the study, Research question, Scope of the study, Research design, Significance of the study and Literature review. [1: The Concise Oxford Dictionary, 9th edition, The foremost authority on current English.] [2: www.thefreedictionary.com/_/dict.aspx?...] [3: Medical-dictionary.thefreedictionary.com]

1.1 Background of the StudyThe law provide for the protection of the child rights including the right to life. However it does not provide clearly as to who is a child and when does the life begin, hence this becomes a big controversial when one want to define the term child. In this regard some of the law shows that life begins before birth. The American Convention on Human Rights[footnoteRef:4] provides that the right to life begins after conception; hence the right to life of unborn child is recognized in the said convention. In Tanzania the Penal Code[footnoteRef:5] criminalizes abortion or miscarriage hence this is impliedly shows that the unborn child is recognized by law. Due to this regards this research paper intends to examine the law of the child towards the protection of unborn child in Tanzania. To explore the protection of unborn child in the international human rights instrument in which Tanzania is a part and has been ratified to be part of the local laws as per The Constitution[footnoteRef:6]of the United Republic of Tanzania. It also intend to examine the controversial in defining as to who is a child, however under the Constitution[footnoteRef:7]of Tanzania a child is regarded to be a person from zero to eighteen years, the Law of the Child Act[footnoteRef:8] defines a child to mean a person below the age of eighteen years. [4: Article 4] [5: Cap 16 RE 2002.] [6: Article 63(3)(e) of 1977 as amended Time to Time] [7: Ibid] [8: No.21 of 2009]

The concise Oxford Dictionary[footnoteRef:9] defines child to mean a young human being below the age of puberty or ones son or daughter (at any age). This proves the confusion when trying to define the term child, hence it become difficult to know whether unborn child is included in the definition or not regardless of its inclusion in Tanzania Penal Code.[footnoteRef:10] [9: 9thedd, 1995] [10: Cap 16 RE 2002]

Despite the recognition of unborn child in the Tanzanian Penal Code the same is still facing greet challenge.1.2 Statement of the ProblemIt is the Constitutional right that every person has the right to live and to the protection of his life.[footnoteRef:11] However the same Constitution does not clearly provide when that life begins to be protected. Bad enough the Law of the Child Act[footnoteRef:12] provides only that a child shall have a right to life[footnoteRef:13] but it does not clearly provide for protection of the life of unborn child and also it does not provide when that life begins. This contradicts the reader when thinking as to whether that protection starts before birth or after birth of that child. In other hand the Penal Code under sections 150[footnoteRef:14] and 151[footnoteRef:15] tries to solve this by criminalizing any attempt to procure abortion or miscarriage and any person who is unlawfully violating these provisions is guilty of an offence. Furthermore the Penal Code[footnoteRef:16] provides that any person who destroy the life of a child capable of being born alive is to be imprisoned for life. Also it provides that if a woman had a pregnant of 28 weeks or more that shall be prima facie evidence that she has a pregnant of a child capable of being born alive. As the concern is on the legal protection of unborn child, this section is important because it require the right to life of unborn child to be protected. However this provisions value some of the unborn child than the other by categorizing them in to period below seven months and that of seven months and above. Moreover, absence of the Constitutional provision protecting unborn child may lead to the violation of the same. [11: The Constitution of Tanzania 1977 as amended Time to Time.] [12: Act no.21 of 2009, s.16] [13: Section 4(1)] [14: Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever is guilty of an offence and is liable to imprisonment for fourteen years.] [15: A woman being with child who with intent to procure her own miscarriage unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatsoever, or permits any such thing or means to be administered or applied to her, is guilty of an offence and is liable to imprisonment for seven years.] [16: Cap 16, RE 2002, S.219(1)]

1.3 Objectives of the Study1.3.1 General ObjectiveTo examine legal protection of the life of unborn child.1.3.2 Specific Objectives To examine as to whether unborn child has the right to life or not. To examine how the Law of the Child Act recognizes the rights of unborn child. To speculate the recognition of the right to life of unborn child under the Constitution.

1.4 Research QuestionDoes the rights of unborn child protected in Tanzania?1.5 Scope of the StudyThe study covered the Constitution of the United Republic of Tanzania 1977, The Law of the Child Act 2009, The Penal Code Cap 16, and the International Human Right Instruments.1.6 Research DesignThe research used one method which is library research through which the information has been obtained.1.6.1 Sampling Design The study has been conducted through Mario Mgulunde Learning Resource Centre, American Corner and the Human rights Centre all being the Libraries of St. Augustine University of Tanzania.1.6.2 Data CollectionThe data is only secondary data. 1.6.2.1 Secondary DataThis involved documentary review, publications, Articles, Journals, Books and other available researches.

1.6.3 Data AnalysisThis involved the examination of data collected from the documentary review, publications, Articles, Journals, and other research works.1.7 Significance of the Study The study intends to emphasize the government to incorporate the provision for the protection of unborn child in the coming Constitution. The study helps the general community of St Augustine University to protect the life of unborn child. The study also intends to give exposure to lawyers to think deeply about the protection of unborn child.

CHAPTER TWOTHE SCIENTIFIC VIEW AND THE LEGAL PROTECTION OF THE UNBORN CHILD2.1 IntroductionThis chapter shows how the scientists view the unborn child and the scientific stages through which the unborn child passes during its development in its mothers womb. Also the chapter looks as to how the International, Regional Human Rights instruments and Domestic laws protect the unborn child. 2.2 Scientific View of UnbornUnborn is the developing young in the Uterus, specifically the unborn offspring in the postembryonic period in humans from nine weeks after fertilization until birth.[footnoteRef:17] Human development begins after the union of male and female gametes or germ cells during a process known as fertilization (conception). Fertilization is a sequence of events that begins with the contact of a sperm (spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the haploid nuclei of the sperm and ovum) and the mingling of their chromosomes to form a new cell. This fertilized ovum, known as zygote, is a large diploid cell that is the beginning, or primodium, of a human being.[footnoteRef:18] [17: Medical-dictionary.thefreedictionary.com] [18: Moore, Keith L., (1988) Essentials of human embryology. Toronto: B.C. Decker inc, p.2 ]

2.3 Stages on the Development of UnbornA fetus passes through seven stages of development during the 42 weeks of pregnancy. During those 42 weeks, the mother experiences the development, too, as her body changes. Many permanent features form during the first two weeks of the babys development after conception. Furthermore, human development is divided in to trimesters which include first, second and third trimesters.[footnoteRef:19] [19: Raven H.P & Johnson B.G, (2002); Biology, 6th edition, Mc Graw Hill, Washington University, pg 1215.]

2.3.1 ZygoteAfter conception, when sperm fertilizes the egg, the babys formation starts as a singular cell called a zygote. The zygote is microscopic and contains the entire DNA blue print information regarding the cellular makeup of the child.[footnoteRef:20] [20: Tanzania Institute of Education, (2007), Biology form 3 & 4 students book, Pearson Longman, Tanzania. Pg 115]

2.3.2 Cellular DivisionThe next stage in fetal development has the name of blastocyst. The tiny zygote begins to divide again and again, forming new structures and a protective membrane to cover itself. The vill invade a portion of the uterus and become deeply embedded in it. The portion of the uterus which is invaded by the vill and the thickened portion of the chorion together form a structure called placenta.[footnoteRef:21] The blastocyst implants itself in the placenta and beginning another stage of development of the baby. [21: Ibid]

2.3.3 EmbryoAfter the blastocyst has implanted itself within the womb, new cellular divisions occur. The womb works to nourish the small baby, now called the embryo. The developing embryo is connected to the placenta by a cord called the umbilical cord. The umblical cord caries two arteries and a vein of the embryos circulatory system. While embedded in the uterus the embryo undergoes further development,[footnoteRef:22] it continues to divide itself in to its distinguishable external features. [22: Tanzania Institute of Education, (2007), Biology form 3 & 4 students book, Pearson Longman, Tanzania. Pg 115]

2.3.4 The Gestational PeriodThis occurs between two to eight weeks after conception, during which time continued development of major organs occurs within the baby. At about eight weeks from the time of fertilization the embryo will have formed the body characteristics of human. From this stage onwards the embryo is referred to as foetus. The foetus remains in the uterus for about 280 days (9 months).[footnoteRef:23] [23: Ibid Pg 115-116]

2.3.5 First TrimesterA blastocyst in to the mothers endometrium and the formation of body organs begins during the third and forth weeks.[footnoteRef:24] During the 26th week, the beginning of the second stage of the trimester occurs. The baby continues to develop and the mother notices a change in her appearance. The baby becomes active during this stage of development. [24: Raven H.P & Johnson B.G, (2002); Biology, 6th edition, Mc Graw Hill, Washington University, pg 1215.]

2.3.6 The Second and Third TrimestersAll of the major organs of the body formed during the first trimester and so further growth and development take place during this time.[footnoteRef:25] [25: Ibid]

The baby has the ability to open its eyes in the 28th week of development; this begins the last trimester of the babys development in the womb. The babys developmental age is now well over six months. The baby continues to grow throughout the 42 weeks, developing the final distinguishable features from its individual DNA makeup. The babys major systems form and continue to become ready for entry in to the world.2.4 International, Regional and Domestic Legal Protection of the Unborn ChildThis deals with the speculation of the International Human Rights instruments with regards to the legal protection of the unborn. In the paragraphs below, several important international and regional legal instruments are investigated in order to determine the legal protection of the unborn under international law. The basis of this study is to show that there is no substantial legal provisions with regard to the protection of unborn exist in the international human rights instruments and also the domestic laws does not provide for the same. Hereunder are the observation of protection of the unborn from international level, regional level and, at the domestic level.2.4.1 International Legal Protection of Unborn ChildThis based on the several important international human rights instruments which provides for the protection of the right to life. The observation made to the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and, Convention on the Rights of the Child (CRC), with regard to the protection of the unborn.2.4.1.1 Universal Declaration of Human Rights The Universal Declaration of Human Rights[footnoteRef:26] was adopted by the UN General Assembly at Paris in the year 1948. The preamble provides for equal and inalienable rights of all members of the human family. It also provides that, everyone has the right to life.[footnoteRef:27] However the preamble is not a part of the law so the rights provided in the preamble cannot be enforced. Furthermore the word everyone was not defined hence it is unsure whether it includes the unborn or not. [26: 1948] [27: Article 3]

2.4.1.2 International Covenant on Civil and Political RightsThis Covenant was adopted by the UN General Assembly in 1966 and came into force on 23rd March 1976. The international supervision of the Covenant is entrusted to the Human RightsCommittee (HRC)[footnoteRef:28], a body of eighteen experts elected for a term of two years.[footnoteRef:29] One hundred and sixty countries are signatories to this covenant. The covenant provides that, every human being has an inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life, sentence of death shall not be carried out on pregnant woman[footnoteRef:30], and every child shall have without any discrimination the right to such measures of protection.[footnoteRef:31] But also this covenant does not clearly provide for the protection of the unborn. [28: Article 40] [29: Article 39] [30: Article 6(1) and (5)] [31: Article 24]

2.4.1.3 Convention on the Rights of the ChildThe Convention on the rights of the child was adopted in 1989 and came in to effect in 1990 with the Committee on the Rights of the Child (CROC) as monitoring body. It followed the 1979 International Year of the Child on the fact that children have been prime victims of human rights violations. The Convention on the Rights of the Child indicated international acceptance on the protection of the rights of children. The Convention has been ratified by many states within a very short period of time and also it came into operation seven months after its adoption. Article 1 defines a child as every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier. With regard to the unborn, reference is made to the preamble in the Declaration of the Rights of the Child, stating that the child, by reason of his physical and mental immaturity, needs special safeguard and care, including appropriate legal protection before and after birth. However it should be noted that the same cannot be enforced because a preamble is not part of the law.2.4.2 The Protection of Unborn Child Under the Regional Level The United States of America, Africa and Europe have adopted their own conventions to abide with the universal human rights conventions in protecting and enforcing human rights in their continents. These conventions are European Convention on Human Rights, American Convention on Human Rights and, African Charter on Human and Peoples Rights. 2.4.2.1 European Convention on Human RightsThe European Convention on Human Rights was signed by the Council of Europe on 4th November 1950 in Rome and came into force on 3rd September 1953. The member states of this convention are 47 as to 1st January 2008. Under its Article 1 the convention requires the contracting states to secure rights and freedom to everyone. On the other hand the same convention recognizes the right to life as it provides that; Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a courtfor which this penalty is provided by law.[footnoteRef:32] However the word everyone in Article 2 of this convention is not defined, hence it is uncertain as to whether the unborn is included or not. The convention does not provide for prohibition of abortion hence, the unborn is probably not included in Article 2. In this Convention the great emphasis is on the right to life and rights of human beings in general. [32: Article 2]

2.4.2.1 American Convention on Human RightsThe Convention adopted by the Inter American Specialized Conference on Human Rights on 22nd November 1969 and entered in to force in 18th July 1978. The signatories to the Convention reaffirm to consolidate to ensure liberty and social justice based on respect for the essential rights of man. The American Convention on Human Rights under its Article 4 (1) states that every person has the right to have his life respected; this right shall be protected by law and from the moment of conception. No one shall be arbitrarily deprived of his life. Under sub article 5 the convention states that, capital punishment shall not be imposed upon persons who, at the time when the crime was committed, were under 18 years of age or over 70 years of age, nor shall it be applied to pregnant women. In this Convention reference is made with regard to protection of the unborn. The word Every person is not defined but the unborn has been given the right to life and protected from the moment of conception. The Article also provides that the death sentence shall not be imposed to a pregnant woman. Hence by protecting the woman, the life of unborn child is also protected. The Convention[footnoteRef:33] through this provision it nullify the decision in the case of Roe v. Wade.[footnoteRef:34] In this case Jane Roe was an unmarried and pregnant Texas resident in 1970. Texas law made it a crime to abort a fetus unless on medical advice for the purpose of saving the life of the mother. Roe filed suit against Wade, the district attorney of Dallas County, contesting the statute on the grounds that it violated the guarantee of personal liberty and the right to privacy implicitly guaranteed in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. In deciding for Roe, the Supreme Court invalidated any state laws that prohibited first trimester abortions. [33: American Convention on Human Rights 1978] [34: 410 U.S. 113 (1973),]

The Court held that, in regard to abortions during the first trimester, the decision must be left to the judgment of the pregnant womans doctor. In regard to second trimester pregnancies, states may promote their interests in the mothers health by regulating abortion procedures related to the health of the mother. Regarding third trimester pregnancies, states may promote their interests in the potentiality of human life by regulating or even prohibiting abortion, except when necessary to preserve the life or health of the mother. 2.4.2.2 African Charter on Human and Peoples RightsThis Convention has been adopted by the 18th Assembly of the Organization of African Unity Nairobi on 27th June 1981 and entered in to force on 21st October 1986. It was established for the purpose of protecting human and peoples rights in African Continent, and the Charter is vested on supervision of African Commission on Human and Peoples Rights.[footnoteRef:35] The Charter provides that; Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right;[footnoteRef:36] every individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.[footnoteRef:37] The word every human being is not defined hence it is difficult to know whether the right to life of the unborn is included in the Charter or not. [35: John Dugard, International law: A South African perspective, 336.] [36: Article 4] [37: Article 5]

2.4.3 Domestic Legal Protection of the UnbornThe Universal Declaration of Human Rights does not provide for the legal protection of the unborn and this implies that the same is reserved for the domestic laws to provide anything concerning the unborn child. The study based on the observation of the Constitution of Tanzania, The Penal Code and, The Law of the Child Act in order to see if the unborn child is protected to those laws or not. 2.4.3.1 The Constitution of the United Republic of Tanzania 1977This Constitution was enacted in 1977 under which in 1984 the Human right (Basic Rights) was included in it and it is found in Part III in which through this part there was the enactment of the Basic Rights and Duties Enforcement Act so as to emphasize the protection of basic human rights. One of the basic rights which are contained in the Constitution of Tanzania is the right to life as it is provided that every person has the right to live and to the protection of his life by the society.[footnoteRef:38] However it is unknown whether the word every person includes the unborn child or not because there is no provision which defines the same. [38: Article 14]

2.4.3.2 The Penal Code Cap 16This code defines the offences and its punishment. The code deals with the criminal offences in which some of the offences are punishable by more than one year imprisonment and others are punishable by fine and or, imprisonment for the period less than one year imprisonment. Abortion is among of the offences which is punishable by the period of more than one year imprisonment under this code as it provides that Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever is guilty of an offence and is liable to imprisonment for fourteen years[footnoteRef:39] and also A woman being with child who with intent to procure her own miscarriage unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatsoever, or permits any such thing or means to be administered or applied to her, is guilty of an offence and is liable to imprisonment for seven years.[footnoteRef:40] The code plays a big role in protecting the life of unborn child through criminalization of abortion in Tanzania. However the same seems like it makes discrimination (it makes the one to be more important than the other) as it categorized the unborn in to the period below seven months and that of seven months and above. [39: Section 150] [40: Section 151]

2.4.3.3 The Law of the Child Act, No 21 of 2009This Act provide for reform and consolidation of laws relating to children, to stipulate rights of the child and to promote, protect and maintain the welfare of a child with a view to giving effect to international and regional conventions on the rights of the child; to provide for affiliation, foster care, adoption and custody of the child; to further regulate employment and apprenticeship; to make provisions with respect to a child. The Act has mandate to promote, protection and maintenance of the welfare and the rights of the child in Tanzania mainland only.[footnoteRef:41] The Act provides that a person below the age of eighteen years shall be known as a child.[footnoteRef:42] A child shall have a right to live free from any discrimination[footnoteRef:43] and also a child shall have a right to life and dignity.[footnoteRef:44] However the Act did not provide for the protection of unborn child but it provide for the child care and protection[footnoteRef:45] and also it provide for the right to life but it is unknown whether the unborn is included or not. [41: Section 2] [42: Section 4(1)] [43: Section 5(1)] [44: Section 9(1)] [45: Section 16]

2.5 Conclusion It has been established that the United Nations is silent on the legal protection of the unborn; hence this may be the denial of the right to life of unborn child under the international instruments. Although the issue of abortion is mentioned, the unborn is not expressly given legal protection in international instruments because there is no convention or declaration which expressly gives a position on the legal protection of the unborn. The only convention that expressly and directly provide for the right to life of the unborn is the American Convention on Human Right. In other instruments it is unclear whether the provisions that provide for the protection of the right to life include that of the unborn or not. As far as it is known that in all international instruments on human rights, there is no place where the term unborn child is defined, nor has there been any interpretation of the term unborn, it indicates that there is no explicit protection of the right to life of the unborn. Furthermore, the regional commissions and the courts of human rights do not declared categorically that the right to life of the unborn child has to be protected. Therefore, this shows that it is left to the free decision of the states, and due to this fact some states protect certain rights of the unborn while others deny them. This is the result of the absence of the universal convention which protects the rights of the unborn.

CHAPTER THREERESEARCH FINDING AND ANALYSIS3.1 IntroductionThis chapter shows the findings and the analysis of the data which has been obtained by the researcher throughout his study. In analyzing the data, the researcher deals with the provisions of the law in order to show that there is or there is no legal protection of the unborn child.3.2 The Constitutional Protection of the Unborn ChildThe Constitutional as a mother law of any Country through which other laws owe its legitimacy, has to provide for the protection of unborn so that other laws may abide with it. In an observation by the researcher it has been found that the Constitution has not put forward the issue of unborn. The observation conducted in the Constitution of the United Republic of Tanzania[footnoteRef:46] made the researcher to discover that the unborn is not protected in it because it only provides that Every person has the right to live and to the protection of his life by the society in accordance with the law[footnoteRef:47] in which the word every person was not defined in this constitution so it is uncertain when looking to the protection of the unborn child. The Concise Oxford Dictionary[footnoteRef:48] interpreted the word every person to mean everyone, everybody or each one. The failure to provide the meaning of the word every person in the constitution shows the weakness of the constitution with regard to the protection of the unborn child because anyone may interpret this word as he thinks fit. There is no clear provision which shows that the word every person includes the unborn child or not. The researcher conducted further observation in the Draft Constitution[footnoteRef:49] of Tanzania which provides for the rights of the child[footnoteRef:50], in which Article 50(3) defines a child to mean any person below the age of eighteen years.[footnoteRef:51] The draft constitution sets only the upper limit of a child but it does not provide for the lower limit of a child, hence the protection of the unborn child is uncertain. Therefore this made the researcher to discover that even the coming Constitution does not have a clear provision which provide for the protection of the unborn child and this shows that the unborn child is not valued in Tanzania. The researcher also made observation to the Constitution of Kenya[footnoteRef:52] in which he discovered that the same has put some emphasis to the unborn child as it provides that Every person has the right to life[footnoteRef:53] and continues to provide that the life of a person begins at conception[footnoteRef:54]. Through the word from conception, the unborn child is protected. Furthermore to emphasize the protection of unborn child, the Constitution of Kenya[footnoteRef:55] provides that Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other law.[footnoteRef:56] This Constitution shows that other laws have to abide with it in protecting the rights of the unborn. However the phrase if permitted by any other law my lead to the enactment of the laws which deny the protection of the unborn child. On further observation the researcher discovered that the Constitution of the Republic of Uganda [footnoteRef:57] fall in the same feet as that of Kenya by providing that No person has the right to terminate the life of an unborn child except as may be authorized by law.[footnoteRef:58] Therefore the phrase as may be authorized by law is a loophole which may lead to the enactment of the laws which authorizes the violation of the rights of unborn child. Furthermore the Constitution of Burundi[footnoteRef:59] does not recognize the protection of the unborn child, it only provides that Every woman, every man has the right to life[footnoteRef:60] this shows that it only put emphasis to the born child and not to the unborn because of the word every man and every woman. Last but not least, the Constitution of Rwanda[footnoteRef:61] also is not certain with regard to the protection of unborn child because it only provides that Every person has the right to life. No person shall be arbitrarily deprived of life[footnoteRef:62], the word every person is not defined in that constitution hence the protection of unborn child in this constitution is uncertain. Therefore the researcher found that the Constitutions failed to have a clear provision and clear provisions which provide for the protection of the unborn child. The use of the word every person without further interpretation of that word so that any person may be able to understand the meaning of it makes people to conclude that the constitution does not provide for the protection of the unborn child save for the Constitution of Kenya and Uganda in which the same left a room for the other laws to deny the protection of the unborn child. [46: 1977 as amended Time to Time] [47: Article 14] [48: Ninth edition, the foremost authority on current English pg 467] [49: Katiba pendekezwa 2014] [50: Article 50] [51: Kwa madhumuni ya ibara hii mtoto maana yake ni mtu mwenye umri wa chini ya miaka kumi na nane] [52: 2010] [53: Article 26(1)] [54: Article 26(2)] [55: 2010] [56: Article 26(4)] [57: 1995] [58: Article 22(2)] [59: 2005] [60: Article 24] [61: 2010] [62: Article 12]

3.3 The Law of the Child Act and the UnbornThe child Act[footnoteRef:63] is the code which provides the rights of the children and it has to ensure that childrens are protected through that law. It has to provide clearly for the protection of the rights of the child because it is the one which is vested with power to regulate the rights and obligations of the child. The researcher observed The Law of the Child Act[footnoteRef:64] which have mandate to provide for the protection of the children rights and discovered that the protection of unborn child is uncertain because it provides that any person below the age of eighteen years shall be known as a child.[footnoteRef:65] This Act sets only the upper limit of a person to be regarded as a child but it does not provide the lower limit of a child. Therefore it is not clear with regard to the protection of the unborn child because it does not provide the time through which a child begins to be protected. Furthermore in accordance with the right to life it provides only that A child shall have a right to live free from any discrimination[footnoteRef:66] but it is not clear with regard to the inclusion of unborn child. This may imply that the unborn child is not protected even in the law which deals with the rights of the child. Furthermore the researcher observed the Iceland Child Protection Act[footnoteRef:67] in which it provides only that children have a right to protection and care. Their rights shall be maintained in accordance with their age and maturity.[footnoteRef:68] Also under its Article 3 it provides that a child is a person below the age of 18 years[footnoteRef:69], hence the researcher discovered that this law also is not certain with regard to the protection of unborn child because it sets only the upper limit of a child. [63: Act No 21 of 2009] [64: No 21 of 2009] [65: Section 4(1)] [66: Section 5(1)] [67: http://eng.velferdarraduneyti.is/acts-of-...] [68: Article 1 of Act No.80/2002 as amended by Act No.62/2006, No.88/2008, No.52/2009, No.162/2010, No.80/2011, No.85/2011, No.126/2011, No.138/2011, and No.58/2012.] [69: Ibid]

The researcher also observed the Penal Code[footnoteRef:70] in which the same does not put clearly when does the unborn start to be protected and also it categorizes the unborn by providing different punishment to the person who violates the rights of unborn in to imprisonment for fourteen years[footnoteRef:71] and, life imprisonment[footnoteRef:72], this categorization proves the absence of clear protection of the unborn child because some of them are seems to be more important than others. [70: Cap 16 RE 2002] [71: Section 150 provides that Any person who, with intent to procure miscarriage of a woman, whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever is guilty of an offence and is liable to imprisonment for fourteen years] [72: Section 219(1) Any person who, with intent to destroy the life of a child capable of being born alive, by any willful act causes the child to die before it has an existence independent of its mother, shall be guilty of child destruction and shall be liable on conviction to imprisonment for life]

3.4 The Born Child Versus the UnbornIn this issue the researcher observed that more emphasis is vested to the born child because most of the laws provide for the protection of the born child and not the unborn child. The observation has been made to the Constitution of the United Republic of Tanzania[footnoteRef:73] in which it requires the life of every person to be protected by the society in accordance with the law.[footnoteRef:74] There is no definition of the word every person but the born child can not be excluded from this protection. However in the other hand it is difficult to include the unborn child because there is no interpretation of the word every person. Not only that but also in the Draft Constitution[footnoteRef:75] it provides that a child is a person below the age of eighteen years[footnoteRef:76], in which the same does not provide the clear protection of the unborn child but it directly protect the born child by providing that Every child has the right to: have a name and citizenship; express his views, be heard and be protected against spite, cruelty and dehumanization; play and get an education; be kept in a good environment, for those who break the law; a balanced diet, shelter and medical services; participate in activities related to his age; care and protection from his parents, guardians or an authority of the land, without being discriminated against on the bases race, nationality, language, political ideology, origin, property, parents, religion, gender or any other kind of status[footnoteRef:77]. This protection is basically to the born child and it did not include the unborn. Also the researcher has made observation to the Law of the Child Act[footnoteRef:78] in which it provides that any person below the age of eighteen years shall be known as a child. The best interest of a child shall be the primary consideration in all actions concerning a child whether undertaken by public or private social welfare institutions, court or administrative bodies.[footnoteRef:79] A child shall have a right to live free from any discrimination.[footnoteRef:80] Hence the researcher discovered that emphasis of protection is to the born child because it provides the upper limit of a child but it failed to provide the beginning of that child. Further observation was made to the Training manual[footnoteRef:81] which states that the term protection means protection from violence, abuse and exploitation child protection addresses every childs right not to be subject to harm. Child protection covers a wide range of important, diverse and urgent issue; such as child prostitution, violence in home or in schools. This directly shows that the protection refers to the born child only. [73: 1977 as amended Time to Time] [74: Article 14] [75: 2014.] [76: 50(3)] [77: Article 50(1)(a-g)] [78: No.21 of 2009] [79: Section 4(1-2)] [80: Section 5(1)] [81: Participants Training Manual, (2010), Published by the National Organization for Legal Assistance(nola) pg.26]

3.5 The Protection of Unborn Child Under the International Human Right InstrumentsHuman Rights Law deals with the rights of the people. It has to insure that individual rights are not violated by any means. As far as Human Rights Law deals with the rights of the people, and any person before existing independently he was an unborn. Therefore human rights law has to insure that the rights of the unborn child are protected. However this becomes vise versa because even the human right instruments does not provide clearly about the protection of the unborn child. This has been observed in the Universal Declaration of Human Rights (UDHR)[footnoteRef:82] in which it provides that Everyone has the right to life, liberty and security of person.[footnoteRef:83] The researcher also observed the International Covenant on Civil and Political Rights (ICCPR)[footnoteRef:84] which provides that Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.[footnoteRef:85] Through this, the researcher discovered that it is difficult to say that the unborn child is protected in these instruments because there is no definition of the word everyone and every human being in these instruments. Therefore the protection of the unborn child in the UDHR and ICCPR is uncertain. However the ICCPR provides that sentence of death shall not be carried out on pregnant women.[footnoteRef:86] By prohibit carrying out sentence of death to the pregnant women is impliedly protecting the unborn child. More observation has been made to the Convention on the Rights of the Child (CRC)[footnoteRef:87] in which it provides that a child is every human being below the age of eighteen years unless under the law applicable to the child majority is attained earlier.[footnoteRef:88] This shows that even the convention on the rights of the child is not clear with regard to the protection of the unborn child because it provides only the upper limit of a child. The question will arise as to what is the lower limit of a child. Therefore the failure to provide the lower limit of a child made the researcher to say that the CRC does not provide for the protection of the unborn child. Further observation has been conducted in the European Convention on Human Rights (ECHR)[footnoteRef:89] through which the researcher observed that the protection of unborn child in this convention is uncertain because it only provides that Everyones right to life shall be protected by law.[footnoteRef:90] The word Everyones was not defined therefore it is not clear whether the unborn child is included in this convention or not. The researcher also observed the African Charter on Human and Peoples Rights (ACHPR) [footnoteRef:91] which provides that Every human being shall be entitled to respect for his life and the integrity of his person.[footnoteRef:92] The researcher discovered that this charter does not provide the meaning of every human being hence there is no clear protection of the unborn child. [82: 1948] [83: Article 3] [84: 1966] [85: Article 6(1)] [86: Article 6(5)] [87: 1989] [88: Article 1] [89: 1953] [90: Article 2] [91: 1981] [92: Article 4]

However on the other hand, the American Convention on Human Rights (ACHR)[footnoteRef:93] is the only human right instrument which recognizes the unborn child by providing that Every person has the right to have his life respected. This right shall be protected by lawfrom the moment of conception.[footnoteRef:94] This convention provide clearly for the protection of the unborn child by providing that the life of a person shall be protected from the moment of conception. In his book, RAPHAEL Kamuli[footnoteRef:95] supported the American Convention on Human Rights by saying that Article 4 of the American Convention on Human Rights requires the right to life to be protected in general from the moment of conception. Furthermore, in his book CHRIS Mania Peter[footnoteRef:96] provides that One of the most controversial issues relating to the rights of the child is the definition of the child Some people define a child from the time of conception or sometimes thereafter. This controversial arises due to the absence of the laws which provides for the protection of the unborn child. [93: 1978] [94: Article 4(1)] [95: Human Rights Law (2012); Global, African and Tanzanian Perspectives p42] [96: Human Rights in Tanzania(2000), Selected Cases and Materials p33 ]

Generally the researcher discovered that even the Human Rights Instruments does not provide clearly the protection of the unborn child save for American Convention on Human Rights.

3.6 Protection of the Women Versus Protection of the Unborn Child It is clear that there will be no unborn if the life of the mother is not protected. However in order to insure that women does not violate the rights of the unborn child without justifiable reasons the law should not leave any loophole which can be used by women to terminate the life of unborn child. Through this study the researcher finds out that the law left a room which can be used by women to terminate the life of unborn child without reasonable grounds. The observation conducted by the researcher in the Constitution of Burundi[footnoteRef:97] proves this as it provides that every woman has the right to life.[footnoteRef:98] Also in further observation the Constitution of Uganda[footnoteRef:99] fall in the same feet by providing that No person has the right to terminate the life of an unborn child except as may be authorized by law[footnoteRef:100] this gives chance to the pregnant women to terminate the unborn children. The researcher also found that the Constitution of Kenya[footnoteRef:101] left a room for the pregnant woman to terminate the life of an unborn child without reasonable grounds as it provides that Abortion is not permitted unless in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law[footnoteRef:102] so the provision that if permitted by any other written law gives room to women to use other laws to terminate the unborn children. Finally the researcher observed the case of Roe v. Wade[footnoteRef:103] in which he discovered that the interest of the women is protected than the unborn child. In this case it was held that In regard to abortions during the first trimester, the decision must be left to the judgment of the pregnant womans doctor. In regard to second trimester pregnancies, state may promote their interests in the mothers health by regulating abortion procedures related to the health of the mother. [97: 2005] [98: Article 24] [99: 1995 ] [100: Article 22(2)] [101: 2010] [102: Article 26(4)] [103: 410 U.S. 113 (1973)]

3.7 Conclusion Through observation the researcher discovered that, there is no clear provision of the law which provide for the protection of unborn child. The failure of the laws to provide the meaning of the word every person, everyone and every human being led those provisions to be not clear with regard to the protection of the unborn child. Hence the violation of the rights of unborn child is due to the absence of the clear legal provision which provide for the protection of the unborn child.

CHAPTER FOURCONCLUSION AND RECOMENDATIONS4.1 ConclusionIn concluding I can say that there is no life at all if the unborn child is not protected because everyone in the world was previously unborn. Therefore the unborn should be protected so as to ensure continuity of one generation after the other. However this becomes vice versa because in the whole study the researcher discovered that the life of unborn is not clearly protected because most of the laws do not have clear provisions providing for the protection of the unborn child. The laws may be only useful to the protection of the already born child because it has the upper limit of a child but it does not provide the lower limit of a child hence it may not be certain to say that there is a legal protection of the unborn child. Moreover in protection of life, the words used are everyone, every person, and every human being has the right to life. In order to make it clear to anyone who read this law it is important to define the word every human being, every person and, everyone so as to be clearly understood as to what it means and who is included to it but wonderful enough there is no any interpretation of these words.Furthermore those laws which tried to provide for the protection of the unborn child left a room for other laws to provide for termination of the life of unborn child. Therefore through that loophole the pregnant women may use other laws to terminate the life of unborn children. Due to that now it is possible to say that there is no law which is clear and certain with regard to the protection of the unborn child. The absence of legal provisions which is clearly and certainly providing for the protection of the unborn child made the society not to care for the life of the unborn. 4.2 RecommendationsThe recommendations have been addressed to different parts to include; the Legislature as a law making board, the Judiciary as a law interpreter and, the community at large because each part has something to do with regard to the protection of the unborn child. 4.2.1 To the LegislatureThe Legislative power is vested to the parliament of the United Republic of Tanzania as per Article 4(2). Of the Constitution[footnoteRef:104] Therefore; [104: United Republic of Tanzania 1977 as amended time to time]

The parliament should ensure that they enact laws which provide clearly the protection of the unborn child. The parliament should ensure that the coming Constitution contain the provision which provide for the protection of the unborn child. This is by ensuring that there is independent provision providing for the protection of the unborn child or at least the provision which provide for the right to life has to provide clearly the time in which the life begins. The parliament must ensure that the Constitution should left no loophole which may be used by other laws to authorize termination of the life of unborn child. If the proposed Constitution passed, the parliament should ensure that they make an amendment to it so as to include the provision which provide for the protection of unborn child.

4.2.2 To the Judiciary Judiciary has been vested with power to interpret the laws made by the parliament. This is to be done if there is a case with regard to the violation of a certain provision of the law. Therefore the Judiciary must ensure that when interpreting the law it has to interpret the law as it is. A person has to be punished if comes between the letters of the law. There is no need to have a personal consideration.4.2.3 To the Community at LargeIn order to increase the number of people in a community and ensure the continuity of a community there should be a procreation of children. There will be no children if the unborn child is not protected. Therefore the community should ensure that they protect the unborn child even if there is no clear provision of law which provide for protection of the same. This can be done through the following;i. The community should adhere to the cultural rules in order to protect the life of unborn child. Many Cultures are against termination of the life of unborn child. For example Islamic culture and generally African culture is against abortion. Therefore the community should ensure that it adhere to that requirement.ii. Religions prohibit termination of the life of unborn child; example Christian has always valued human life, including unborn human life. The Bible repeatedly refers to children before birth as simply very small/young children. It also provides that "It happened, when Elizabeth heard Mary's greeting, the baby leaped in her womb, and Elizabeth was filled with the Holy Spirit."[footnoteRef:105] TheDidacheor the Teaching of the Twelve Apostles states that: "You shall not kill the child in the womb or murder a new-born infant."[footnoteRef:106] Furthermore Islamic religion teaches that[footnoteRef:107] life begins at conception and is created by God. The unborn child has certain rights such as the right to care, protection and life. Abortion on any grounds is forbidden in the Islamic holy book. It is provided that "Do not kill or take a human life which God has declared to be sacred." [footnoteRef:108] Therefore the community should obey that prohibition so as to protect the life of unborn child. [105: Luke 1:41] [106: www.spuc.org.uk/youth/student_info_on_abortion/religion] [107: Ibid] [108: Quran; Chapter 6,verse 151]

BIBLIOGRAPHYBooksIBEGBU Jude (2000), Rights of the Unborn Child in International Law, Lewiston, Queenstown and LampeterJANE, Fortin E.S (1988), Legal protection of the unborn child, Modern Law Review, Vol.51KAMULI,Raphael(2012), Human Rights Law; Global, African and Tanzanian Perspectives,Mwanza Tanzania, Inland PressMAINA, Chris P (1997), Human Rights in Tanzania: Selected Cases and Materials, Rudiger KopppeRAVEN,Peter & JOHNSON,George (2002), Biology, 6th Ed, Mc Grawhill,Washington University, ArticlesLEE, Muthoga G (1989), The rights of a Child, Child Abuse and Neglect, Kenya womens Association, NairobiMOORE, Keith L (1988), Essentials of human embryology, Toronto: B.C, Decker incInternethttp://www.thefreedictionary.com/_/dict.aspx?... accessed in October 2014http://www.Medical-dictionary.thefreedictionary.com... accessed in February 2015 http://eng.velferdarraduneyti.is/acts-of-... accessed in february 2015 http://www.spuc.org.uk/youth/student_info_on_abortion/religion...accessed in march 2015

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