Working on child friendly justice in Tanzania Professor Carolyn Hamilton 1

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1 European responses to global children s rights issues: exchanging knowledge and building capacity European Progress in Achieving Child Friendly Justice 4 February 2014, Brussels Introduction Working on child friendly justice in Tanzania Professor Carolyn Hamilton 1 Coram Children s Legal Centre has been working as consultants to UNICEF Tanzania for the last 3 years on reform of juvenile justice and access to justice. Tanzania passed a Law of the Child Act in 2009, which came into force in This Act covers juvenile criminal proceedings, child protection, custody and access to children, children s homes, child labour and provisions relating to children s residential institutions and day-care. The Act was drafted at some speed and was not preceded by research on the functioning of the juvenile justice system. Before deciding what approach should be taken to assist the government in implementing the Act, two pieces of research were undertaken. The first was to analyse how the juvenile justice system was working in practice. The report Analysis of the Situation of Children in Conflict with the Law in Tanzania was published in The second report was an Assessment of Access to Justice for Children under the Age of 18 in Tanzania, which was also published in Both of these reports can be accessed on (international programmes and then research and publications). Both reports were based on quantitative and qualitative evidence collected across the country. In both cases, research was conducted across 9 local authority districts, covering both urban and rural areas. Juvenile retention centres and prisons holding juveniles were visited and over 300 children participated in the research, either through focus group sessions or through individual interviews. The main findings of the juvenile justice survey were:. 1 Professor Emeritus, University of Essex, Fellow, Human Rights Centre, University of Essex, Director of Research and International Programmes, Coram Children s Legal Centre. 1

2 There were no designated police units or officers to deal specifically with children in conflict with the law; The law did not provide for specialist prosecutors or prosecution units to carry out the investigation and prosecution of cases involving child suspects; There were a lack of juvenile retention homes in Tanzania, and only one Approved School to cater for children from all regions in Tanzania, as a result of which remanded children and convicted children were kept in adult prisons. They were separated to a degree but not entirely and the facilities did not meet international standards; Children who had not committed an offence, but had been 'misbehaving, for instance, truanting, loitering on the street or vagrant were processed through the criminal justice system and detained; Arrest, detention and imprisonment of children was not being used as a last resort; Children were held in police detention for prolonged periods of time and over the 24 hours permitted under domestic law; A high percentage of children reported forced or attempted forced confessions; Nearly all of the children who were interviewed were not aware of their rights to contact their relatives when detained or their right to a legal representative; There was no system of pre-trial diversion; Some children reported that parents and family were denied access to Court hearings; Corporal punishment was being imposed on child offenders. Addition findings in the Access to Justice survey were: That although the Law of the Child Act provides for the establishment of juvenile courts, only one Court had been established because of the lack of Juvenile Court Rules governing the structure, establishment, staffing and procedures to operate in the Juvenile Court; Children did not have access to legal advice or legal representation at any time during the justice process and faced almost insuperable difficulties in presenting their case. This led to long periods of pre-trial detention for minor offences The juvenile justice system was used to protect children in the absence of a child protection system; Judges, prosecutors, police, social welfare officers and detention centre staff were unaware of the Law of the Child Act, which has not yet been translated into English and had not received training on working with children; There was a lack of human and financial resources in the justice system, including too few lawyers; 2

3 Although free legal aid is available in some areas of the country, it is predominantly to provide legal advice on civil issues, and particularly land and inheritance disputes and maintenance for children. There are endemic delays and inefficiencies in the system, and there is a lack of responsibility for making the system work. Faced with these reports, the government and UNICEF had to make decisions on what aspects of juvenile justice to address, when and how. After discussion it was decided to take a multi-faceted approach rather than focus on one element of a juvenile justice system. Tackling a programme of change of this size will clearly take some years, which made it desirable to introduce some pilot programmes to determine how they would work in a Tanzanian context and their likely efficacy and cost. There are multiple aspects to the reforms, which include: Strategy development The two research reports were treated as consultation reports, and a number of workshops were held around the country with juvenile justice stakeholders to discuss the findings and to develop a consensus for reform. Out of those consultations a 5 year child justice strategy was drafted and was accepted and adopted by the Government in November 2013 (available on the CCLC website). The development of specialist police units Gender and Children s Desks were established around the country. These Desks are staffed by dedicated police officers. Initially, they focused on assisting child victims and witnesses, but agreement was reached that they would also deal with child offenders. New Standard Operating Procedures were drafted as well as a new training programme, including how to interview and some basic child protection training. Training courses were delivered in Additionally a joint working protocol between police and the Child Welfare Departments has been drafted, and is awaiting agreement. Development of secondary legislation to enable implementation of the Law of the Child Act Seven different pieces of secondary legislation were drafted and gazetted in The Juvenile Court Rules have been developed with the Chief Justice s Technical Committee over the course of Once completed they were sent to the Court of Appeal Judicial Committee, and have been amended and are ready to be submitted to the Attorney General s Office for gazetting. Development of the Rules is probably the most important part of the process of implementing a juvenile justice system. They are child friendly and follow the CRC and the Child Friendly Justice Guidelines. However, there were limitations when drafting the Rules: clearly, Rules can only implement the Law of the Child Act. They cannot amend the Act and they cannot fill in gaps where there is no reference to the issue in the Act. One of the outcomes of the drafting process, was that 3

4 it was agreed that in 2014, the Technical Committee (including UNICEF and CCLC) should draft amendments to the Law of the Child Act (which has a number of mistakes and omissions) and also draft Practice Directions for the Chief Justice. The Law of the Child Act requires that all children should be tried in a juvenile court (other than for offences where the High Court has originating jurisdiction). It also provides that the proceedings in a juvenile court should be closed, should be inquisitorial and not adversarial and should be informal. The Rules on the criminal provisions of the Law of the Child Act were the most difficult to progress. The reason for the difficulty was the continued application of the Criminal Procedure Law and the rules of evidence. The Act does not define what is meant by inquisitorial in this context. Neither does it contain any provision defining informal. There have, however, been significant changes to existing procedures, which address the findings of the Access to Justice Report and the Assessment of Juvenile Justice Report. Thus, the issue of delays, multiple hearings, the layout of the court, the right of the child to sit next to the parent or representative during the proceedings, unnecessary pre-trial detention, placement in adult prisons for remandees, provision of information for accused children and sentencing etc have all been addressed. Development of the Juvenile Courts At present there is only one Juvenile Court in Tanzania. However, this Court was not functioning in a manner that was discernably different from any other district court. A further juvenile court will be started in two other districts in 2014, and hopefully more will follow once the Juvenile Court rules have been gazetted. Establishing the Court is not so much a physical and financial problem as a human resource problem. In order to function it is necessary to have at least one, and preferably two, dedicated magistrates in each court. The magistrates, prosecutors, defence lawyers, social welfare officers, detention centre staff and the court administrative staff all have to be trained not only on the law but on practice. This requires coaching as well as training. The existing Juvenile Court is now working far better but there are still issues to be addressed. Legal Aid The total lack of any legal advice or representation for children in the criminal justice system was a major problem. The only children who are entitled to legal aid under the law are those charged with a capital offence (which is commuted to a term of imprisonment at the President s pleasure with respect to children). It was clear that the lack of legal aid had multiple disadvantages for the child, but was also allowing procedural abuses to occur. A particular issue is that the police or prosecution service tend to charge first and seek evidence later. The child is then detained for a long period of time while investigations are undertaken. In many cases, no evidence is produced, and the case is adjourned until it is dismissed for want of prosecution and the child released. Legal aid was seen as essential if any change in this practice was to be achieved. 4

5 A pilot project was set up to provide legal aid to all children in one retention home and two prisons and to as many children on bail to appear in front of the Juvenile Court as could be managed. It was agreed that if there were too many cases, then those on bail who had parents who could help them, would receive legal advice but not representation. The project (run by WLAC) had one advocate (qualified to represent in court) and two paralegals (both law graduates). In the first seven months they took 105 cases. They visited the remand centres every week and were present at the juvenile court for every sitting. Overall the pilot was a success, and almost 40% of juvenile cases were dismissed. However, the pilot threw up some unexpected issues: all the lawyers required a great deal of training and coaching as none had experience of criminal law work. Not only did the advocates require training and coaching, but so too did the prosecutors and the magistrate. The project was resource heavy but all the stakeholders were keen to get it working and goodwill has taken this a long way. Half way through the year a second advocate was appointed and the pilot was able to take more children s cases at more courts. A second real problem was that none of the lawyers were used to file management. Nor were they experienced in taking evidence from their clients. This was important for us to provide empirical data on time taken, cost, successful outcomes etc. it required significant amounts of training. A third issue was that the children on remand tend to lie about who they are and where they are from, making defence work problematic. Diversion programme The juvenile justice assessment revealed that there were no diversion programmes available in Tanzania. A pilot was introduced (also in Dar es Salaam) using two different NGOs in two different districts. They both take children referred by the police, prosecutors, social welfare officers and the Courts. Both NGOs had to work hard to get referrals to their family focused programmes, but they are doing well. UNICEF made provision for residential accommodation but it has been difficult to get referrals. Child supporters Child supporters are appropriate adults and are called by the police whenever a child is apprehended. They are present when a child is questioned and can discuss with the police, if appropriate, whether the child should be diverted to the diversion programme. The child supporters are community volunteers, who receive training. This has operated as a pilot in the Temeke area where the diversion pilot is located and has worked well. Judicial Training All magistrates taking criminal cases will, in the long run, need to be trained. The training has been developed and agreed, and a cohort of judges and magistrates have 5

6 received a 5 day training programme. This cohort will act as trainers themselves and take the training across a number of districts in Child protection system development Last but by no means least, Coram CCLC have been working with UNICEF to develop the child protection system. In all cases where a child is apprehended or charged, social welfare must be informed. In addition, all children in the criminal justice system who are without parental care or present seeking refuge must be provided with assistance and accommodation by the relevant social welfare department. Child Protection Regulations have been drafted together with the Juvenile Court Rules to ensure that the two instruments are coordinated and work together. These will be gazetted in The Rules also allow trials to be stopped and the child referred to social welfare if the child does not understand the proceedings. 6

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