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Guidelines on Action for Children in the Justice System in Africa

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The Munyonyo Declaration on Child Justice in Africa

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A Global Conference on Child Justice in Africa

The issue of managing or dealing with children coming in conflict with the law has historically haunted nations, and Africa is no exception. Although there have already been important headways, much remains to be done in ensuring child justice in Africa.

Often the basic rights of children are not respected by national legal, social welfare and justice systems and security institutions. Justice standards that are designed for, and mainly fits adults seldom cater to their needs. In one word, their basic human rights of access to justice are footnoted in a predominately adult-oriented justice system.

Children come in contact with the justice system in many ways: they may be involved in civil proceedings (for example in family affairs); they may be dealt with by a Juvenile Justice System when they come in conflict with the law (and too often, even when they are not in conflict with the law since a Juvenile Justice System intervenes while a child is in need of care); they may be witnesses of crimes or, and, this is even more common, they may be victims of crimes. They may also be involved in administrative, social and other kind of proceedings.

Children in conflict with the law may be dealt with through the formal justice system or court system, by the welfare system, or, for minor offences, by an administrative system. Such systems may function within the context of the adult criminal justice system, or may operate largely outside the judicial system through committees, commissions or administrative panels. Whether the system contains a degree of specialisation for children – whether the system is based on courts, the welfare system, or an administrative system – it is frequently known as a juvenile justice system. It is to be noted that the term juvenile justice system has, in most recent legislative reforms, been replaced by a less stigmatising term, child justice system.

In countries that do not have any degree of specialisation, children in conflict with the law are dealt with in largely the same way as adults. But adult criminal justice systems and child justice systems may frequently use deprivation of liberty as the primary sentencing option. Both may also fail to consider the needs and best interests of the child and to address the root causes of conflict with the law. Indeed, whilst a country may operate ‘specialised procedures’ for children in conflict with the law, an effective child justice system requires that the varying needs of children be assessed, that children in conflict with the law are referred to appropriate services, and that they are offered care and assistance with reintegration into the community. Moreover, such a system should operate in a ‘child-friendly’ environment, using appropriate and simplified language and with the minimum possible employment of physical restraints.

But the problem arises when children come in contact with a justice system that is unresponsive to their needs, which not only deprives them of their liberty, but also accentuates their vulnerability to abuse, violence, exploitation, and health-related risks such as injury and HIV/AIDS infection. Such a system also isolates children from society, particularly where the child’s welfare, education and reintegration needs are not integrated into the formal justice system.

This is further compounded by the very little understanding children have of the justice system and their rights which makes it unlikely for them to challenge any mistreatments and abuse perpetrated within the system. Further, most institutions dealing with children in conflict with the law are notoriously child-unfriendly and their physical conditions are often in the grimmest of states.

Thus, there is an urgent need to develop new tools to help States to adapt their justice systems to the situation of children, to bring their procedures up to speed with international standards, and to properly implement them.

In 2005, the United National Economic and Social Council adopted The UN Guidelines on Justice in Matters Involving Child Victims and Witnesses of Crime (2005). On the 17 November 2010, the Committee of Ministers of the Council of Europe on child- friendly justice made a constructive headway with the adoption of Guidelines on Child-friendly Justice. Similar guidelines are, however, still lacking in Africa and most countries have to cope with their weak child justice structures, procedures and limited resources.

DCI and ACPF believe that there is an urgent need to develop new tools to help African States to adapt their justice systems to the situation of children, to implement existing standards as well as adapt procedures that exist elsewhere.

The Kampala Global Conference on Child Justice is aimed at bringing together justice actors globally and mobilising effective follow-up actions of national and international legislation policies and practices, with regard to implementing child friendly justice systems in Africa. The conference drew lessons from Europe, Latin America and Asia and foster learning for Africa.

By the end of the conference the development of the guidelines for the implementation of child-friendly justice in Africa was completed and a follow up programme to the conference was developed to ensure the endorsement of the guidelines by the African Committee of Experts on the Rights and Welfare of the Child. The guidelines were also approved and adopted by the African Committee of Experts on the Rights and Welfare of the Child.

 

Session Themes

The proposed themes for the different sessions of the conference are:

Child justice – Legal and policy frameworks

  • Child justice systems: global and African experiences
  • Diversion and restorative justice as alternatives to deprivation of liberty
  • Harmonisation of laws Africa
  • Children’s legal protection in Africa

1. Child Justice – International and Regional Legal and Policy Frameworks

With the exception of Somalia, which remains only a signatory, all African States have ratified the United Nations Convention on the Rights of the Child (1989) (CRC), which is one of the important instruments that lay down international standards in the area of child justice.

Article 37(b), the Convention requires states parties to ensure that:

No child shall be deprived of his/her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of the child shall be in conformity with the law and shall be used as a last resort and for the shortest appropriate period of time.

Furthermore, the African Charter on the Rights and Welfare of the Child (African Children’s Charter) offers complementary, and in some instances, higher, international standards on the rights of the child. The African Children’s Charter, under article 17(1) calls for a “special treatment” for a child accused or found guilty of having infringed penal law. Under article 17(3), the term special treatment is elaborated to include “the child’s reformation, reintegration into his family and social rehabilitation”. This is considered to have paved the way for the expansion of restorative practices and policies in the administration of child justice in Africa.

The UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) (although non-binding) are perhaps the most important guidelines to date for improving the quality of child justice around the world. According to Rule (5) (1), “the juvenile justice system shall emphasise the wellbeing of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence. Hence, this Rule calls for, and encourages, the avoidance of punitive sanctions. As a noteworthy move, these Rules have been incorporated into the Implementation Handbook for the Convention on the Rights of the Child in 1998.»

The United Nations has developed a new strategy to support the realisation of human rights, poverty reduction and the Millennium Development Goals, and made a contribution to the UN coherence agenda in the rule of law: the “justice for children approach “whose goal is: to ensure that children, defined by the Convention on the Rights of the Child as all persons under the age of eighteen, are better served and protected by justice systems, including the security and social welfare sectors. It specifically aims at ensuring full application of international norms and standards for all children who come into contact with justice and related systems as victims, witnesses and alleged offenders; or for other reasons where judicial, state administrative or non-state adjudicatory intervention is needed, for example regarding their care, custody or protection”.

2. Legislation on Child Justice in Africa

Though with varying degrees of sophistication, each African country has some sort of a juvenile justice system in place. In some countries, important international standards have found their way into domestic legislation. For instance, the UNCRC rule that detention should be a last resort and used only for “shortest appropriate period of time” has been included as a principle in the South African Constitution.

For a number of other African countries, ratification of the CRC and the African Children’s Charter provided a climate within which to re-examine child laws, particularly statutes pertaining to childcare and child protection. Thus statutory child law reforms have been instituted in countries such as Ghana, Kenya, Namibia, South Africa, Tanzania and Uganda including Children’s Acts and National Plans of Action.

For instance, the Kenyan Child Rights Act 2002 outlaws any form of imprisonment for children. Upon making a finding of guilt, a court may put the child on a probation programme; or commit the child to the care of an adult or a charitable institution; or to a rehabilitation school; or to counselling; or to an educational or vocational training institution; or to community service. It may also discharge the child or arrange a friendly settlement.

Some progress has been observed in some countries in speeding up the often drawn-out prosecutorial decision-making processes. One of the crucial characteristics of child justice systems in Africa is the length of time it takes to process trials, meaning that children often spend lengthy periods in poorly-maintained welfare facilities and prisons, awaiting the conclusion of their cases. A laudable example in this regard is the Ugandan “chain-linked” project, whose aim is to improve the efficiency of the criminal justice system and which made it possible for more trials involving accused children to “jump the queue”. South Africa also has a procedure which allows pre-screening soon after arrest with a view to speeding up the collation of as much social history and information as possible concerning the commission of the offence. This has allowed speedier prosecutorial decision-making on issues such as releasing children on bail or onto the care of parents, as well as diversion.

Finally, whilst many countries made very positive advances on the law and policy formulation front, most appeared to have had significant problems in implementing their legislative and policy provisions. In Sierra Leone, for example, a specialised juvenile court sits once a week, failing to meet the demands of the many children awaiting trial. The resultant backlog in the system meant that many children ‘break out’ of the remand home. Similarly, in both Uganda and Sierra Leone, young people have difficulty attending their court sessions due to problems of transportation to the court coupled with lack of operational procedures and guidelines in the Remand Homes. Other challenges related to this include lack of knowledge on how best to deal with children below the age of criminal responsibility, violence against children in the justice system, etc.

3.   Diversion and Restorative Justice as Alternatives to Feprivation of Liberty

The Beijing Rules and the Convention on the Rights of the Child stipulate that recourse to the deprivation of liberty as a sentence should be a last resort and should be utilized for the shortest possible time. The use of alternative sanctions for juvenile offenders is strongly encouraged. The ‘last resort’ principle as applied to sentencing means that the deprivation of liberty must not be imposed unless the objectives of the measure (principally rehabilitation) cannot, in the opinion of the judge, be achieved in a non-custodial setting.

Diversion is the act of steering children in conflict with the law away from the formal criminal justice system, and in particular, away from formal court processes.  Alongside alternatives to detention, diversion is an important component of restorative justice. The Committee reminds States Parties that utmost care must be taken to ensure that the child’s human rights and legal safeguards are fully respected and protected. Children in conflict with the law, including child recidivists, have the right to be treated in ways that promote their constructive reintegration into society (Art. 40 [1] of the CRC).

Restorative justice processes include mediation, conciliation and other measures that can act as alternatives to the judicial process. However such systems are mostly lacking in African child justice system with more than 90% of children going through the formal justice system.

The continent also boasts some good practices on diversion. To cite examples from some countries, Ghana’s Juvenile Justice Act provides for the use of a range of alternative sentencing as well as restorative justice approaches, including family group conferencing. The Act allows for the use by the police of (pre-trial) formal or informal cautions where “it is in the best interests of the juvenile to do so”.  The country’s Children’s Act establishes child justice panels to deal with minor criminal complaints against children. The panel is intended to assist with victim-offender mediation in minor offenses involving the child, the outcomes of which may include an apology, restitution or service to the community.

The Ugandan Child Rights Statute promotes the approach of ensuring that families and communities are fully involved and that the formal system is brought in as a last resort.

The Kenyan Child Rights Act provides for an array of options by means of which the court may deal with juvenile criminal proceedings, particularly in relation to alternative sentences.

A draft Bill in Lesotho (Lesotho Children’s Protection and Welfare Bill, 2004) has been prepared mainly drawing from the South African, Ugandan and Ghanaian child justice systems. The Bill provides for the establishment of a village child justice committee, comprising of the village chief and six other members elected by the community, which can convene an open village healing circle, or a victim-offender mediation. Victim-offender mediation aims, among others, “to afford the offender an opportunity to make apologies, provide information and develop reparative plans and gain insights for personal growth”.In 2006, it was reported that twenty-two principal village chiefs were trained in restorative justice. Lesotho’s model has been dubbed as “a commendable effort to blend present day restorative justice approaches [to child justice] with traditional structures”.

Diversion programmes are also operational in countries like Namibia, South Africa and Zambia. The South African system is perhaps the most advanced of all. The country’s Child Justice Act 2008 devotes a substantial chapter on the issue of diversion, whose objectives, according to the Act, include:

  • to promote reconciliation between the child and the person or community affected by the harm caused by the child (section (51) (g))
  • to prevent stigmatising the child and prevent the adverse consequences flowing and  from being subject to the criminal justice system ((section (51) (h));
  • to promote the dignity and well-being of the child, and the development of his or her sense of self-worth and ability to contribute to society ((section (51) (k)).

4.   Harmonisation of Children’s Laws in Africa

Every country in Africa, with the exception of Somalia, has ratified the United Nations Convention on the Rights of the Child (CRC). Additionally, 43 countries in the Continent have also ratified the African Charter on the Rights and Welfare of the Child, thus committing themselves to the principles that the provisions of these treaties are respected and observed in law and practice. The problem however is the extent to which international instruments are domesticated or harmonised with national laws.  There still remains a wide gap between international obligations and national actions, between law and practice. The lack of harmonised legislation that relates to children in many African countries is a key aspect of the problem. The absence of such a legal edifice makes implementation and advocacy complicated. This conference therefore will take forward efforts already made by ACPF and its partners to have stakeholders reflect on the existing legislations and policy frameworks.  The conference will discuss the need for African Governments to review and address existing discrepancies for the promotion and protection of children’s rights. 

5.   Children’s Legal Protection in Africa

Countries ensure the legal protection of their children through, among other things, constitutional provisions and by putting in place specific legislation to deal with the violations of children’s rights including criminal and civil codes and children’s statutes.

Although many countries have made a lot of progress in putting in place legislative and policy frameworks, enforcement has been deplorably inadequate. The latter was attributed to a litany of factors, including limited awareness on child rights on the part of law enforcement bodies; lack of proper facilities and low staff morale; lack of mechanisms and procedures for reporting abuse; lack of proper legal and psychosocial support services for child victims of abuse; and attitudinal problems especially when it comes to culturally-sensitive cases.

There are also issues related to discrepancies in the definition of a child in the various laws within a country or between those stipulated in international standards and those enshrined in domestic legislation. Needless to say, the legal protection to be accorded to children and the rights they enjoy depend largely on the way countries define a child. According to the CRC, the term child is defined as every human being below the age of eighteen years. However, there is a threat to children's protection in many parts of the continent due to the failure of some countries to have an overarching definition of a child and as a result of ambiguities surrounding minimum ages of related issues, such as marriage and sexual consent. For instance, there is no overarching definitive age of a child either in many countries’ constitutions or in their specific legislations.

Further, with regards to the minimum age for criminal responsibility, two-thirds of countries had set a minimum that is equal to or higher than the recommended minimum of 12.

Another formidable challenge is the issue surrounding the existence of multiple legal orders in any one country, including customary and formal laws governing human rights, including children’s rights and child justice, and not least, their usual incompatibility. This is more acute in the case of traditional practices such as FGC and early marriage which are often condoned by the customary legal order. This has resulted in the failure of national laws to adequately protect children against exploitation and harmful traditional practices.

Experiences and gaps with regards to legal protection of children in Africa as well as proposed way forwards are expected to be presented at this conference.

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