Q&A – 8 April 2013
Child custody battle
I am a woman living for gain in Dar es Salaam. Two years ago I gave birth to a baby girl whose biological father is a teacher based in Mwanza. Eight month after giving birth to this child I had to travel outside the country for a venture. I left my baby with her grandmother (her father’s mother) living in Morogoro. After my return to Tanzania I went to take my child but the grandmother has completely refused to allow me take my child. The answer she always give is that the said child according to their traditions cannot live with me unless I am married. Personally I am not interested in getting married since I have had a bad experience before. What should I do?
HL, Mikocheni
Legally a child has a right of living with his/her own parent(s). This right is clearly provided for under the Law of the Child Act, Act No 21 of 2009. Equally in the same sagacity as a parent/ mother you are also entitled to have custody of your child.
If the grandmother is not willing to allow you taking your child we advise you to make an application in Court for an order of custody of the child. Under the Law of the Child Act there is a rebuttable presumption that it is in the best interest of a child below the age of seven years to be with his mother but in deciding whether that presumption applies to the facts of any particular case, the Court shall have regard to the undesirability of disturbing the life of the child by changes of custody.
So long as there are no such disturbing factors for positive upbringing of your child, we think the Court will act on such presumption and order custody of the child to you as the mother.
The traditions that the grandmother is talking about should not stop you from getting custody of the child. You remain the biological mother of the child and unless there are other reasons that you have not shared with us, you should be able to get custody.
Furthermore, marriage as an institution is a relationship where parties have to enter out of their own free will. Therefore the fact that you are not married to your child’s father cannot outweigh your right of custody. Your lawyer can guide you further.
Surety’s obligations in a criminal case
Four months ago my young brother agreed to stand as a surety for his friend who is charged of stealing huge sums of money, the property of his employer. The accused has jumped bail conditions and run away. Consequently the trial Magistrate has issued a warrant of arrest against my brother to appear in Court on the next date set for the case. My brother is at the moment outside the country. What is likely to happen on that day? I have phoned and informed him about this and he seems to be taking things very lightly and responded that on the day his friend was granted bail, he was simply asked by the Court to furnish a bond of Tshs 50million cash or deposit in Court a title deed of immovable property of value equivalent to such sum or more and that my brother did deposit a title of his house worth Tsh 500M situated in Dar es Salaam. I am informed that my brother can be ordered to go to jail if on the day of hearing he will fail to account for the whereabouts of his friend who is the accused. Please guide me.
PO, Dar
It is true that a Court can make an order for imprisonment against a person who stands as a surety in favour of a person being charged with any criminal offence. The Court may also forfeit his properties if the person admitted on bail fails to appear when he is required to. Based on the facts you have given us, unless your brother can explain to the satisfaction of the Court that he has taken all reasonable steps to secure the attendance of the accused but in vain or that at the time of taking surety he was not informed of his obligations, we cannot see any other means your brother can escape from being held liable for this non-appearance of the accused person in Court on the date set.
The law requires that before a surety formally accepts the obligations imposed upon him or her, the Court should explain and make sure that he understands the obligations he undertakes and is actually prepared to undertake them. The Court shall also warn him consequences which include imprisonment if the accused fails to appear when required.
In your case your brother can only get away from being held liable if Court records will show that the above procedure was not followed. Should the Court records not be in his favour and your brother fails to establish to the satisfaction of the Court that he had taken all reasonable steps to secure the attendance of the accused, for example that he reported to a nearest police station when he learnt that the accused was about to abscond, the Court may order him to go to jail or the forfeiture of his property. Once Court orders for forfeiture, the surety becomes a debtor of the Republic for the property or sum which he undertook to pay in case the accused does not appear on the date set.
Considering the seriousness of the matter we advise you to look for the assistance of a lawyer.