no conditions attached to this principle which could dilute its scope, reach or standard
of application.’80
70. The Committee notes that the determination of the best interests of the child requires
an in-depth consideration of the multiple competing elements and interests of each
child concerned. The best interests of the child are three-fold in that it is a substantive
right, an interpretative principle, and a rule of procedure.81 The principle of the best
interest of the child should guide the interpretation of all the rights in the Charter.82 As
a rule of procedure, article 4(2) of the Charter pertains in this instance to the expulsion
of a pupil from school as an administrative proceeding and requires that a child
implicated in such proceedings must be allowed to have their views heard. This is a
core component of the best interests of the child as a procedural rule, which- at a
minimum- requires the consideration of the impact on the child concerned before
making decisions which affect them.83 It follows that a child forced to have a pregnancy
test and then expelled as a result is rendered extremely vulnerable to further violations
of their civil, economic, social, and cultural rights.
71. Considering the practice of forcing schoolgirls to undergo mandatory pregnancy
testing in schools, it is trite that any form of testing that a child is forced to undergo
cannot be in that child’s best interests. From the evidence provided in the affidavits
and the Complainant’s submissions on the merits, it is shown that no efforts were
made to obtain the views of nor to provide information to the girls before these
mandatory pregnancy tests were conducted. Children- when in situations where their
health and well-being are implicated- 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.’84 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 has 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, this practice is a violation of this provision at every point in the process
through which mandatory pregnancy testing is undertaken, including the events before
and after the test. The entire practice should thus be eliminated.
72. In addition, the practices of expelling girls from school due to pregnancy or marriage,
and subsequently denying these girls re-entry to school are also contended as being
a violation of article 4 of the ACRWC. Article 4 of Tanzania’s Education Regulations
(Expulsion and Exclusion of Pupils from Schools) of 2002 stipulates:
‘Article 4: expulsion of a pupil from a school may be ordered where—
a) the persistent and deliberate misbehaviour of the pupil is such as to endanger the general
80 ACERWC, General Comment No. 5, para 4.2.
81 UNCRC, General Comment No. 14, para 6.
82
ACERWC Communication No. 007/Com/003/2015, Minority Rights Group International and SOSEsclaves on behalf of Said Ould Salem and Yarg Ould Salem V. The Republic of Mauritania, para 66.
83 UNCRC, General Comment No. 14 para 6(c).
84 UNCRC, General Comment No. 14, para 77.
JN
29