Diversion in Uganda

Benyam D. Mezmur

Uganda embarked on child law review process as early as 1990 and in 1997, the Children’s Act of 1996 commenced operation. At present the Children’s Act is the principal law that deals with children’s affairs and their protection. The Act was aimed at consolidating all laws relating to child care, protection and maintenance.

A major part of the Children’s Act relates to children in conflict with the law. It sought to establish institutions that can ensure easy access to justice by children and deal with children in conflict with the law. It provides for the Family and Children Courts and remand homes. The Act makes extensive provision for the age of criminal responsibility, arrest, bail, trial, sentencing, detention and rehabilitation of child offenders. The Act heavily draws from the CRC, ACRWC and other international standards on children in conflict with the law.¹

Juvenile crime in Uganda
Generally Uganda is not a country with a high crime rate. The Second Periodic Report of the Government to the UN Committee on the Rights of the Child indicates that children are mainly charged with minor offences. Theft is the predominant offence committed by children while defilement constitutes the principal major offence. Therefore, the majority of children, who enter the judicial system have been charged with minor offences which are, in the main, related to the environmental context in which they live. The Periodic Report also notes that it is difficult to know the exact magnitude of offences committed by children due to the problem of poor record-keeping, especially at the village level.

The role players in diversion
In Uganda, diversion occurs mainly through the discretion afforded to various officials: namely village courts (under the Local Council Courts), the police, and family and children’s courts.² The practice of diversion for children in conflict with the law supports the main thinking behind the Children’s Act. This is because the central thrust of the Children’s Act is that children in conflict with the law, whose offences are not serious, should wherever possible be dealt with and assisted in their communities by Local Council Courts that exist at village, parish and sub-county level, rather than being taken to the Family and Children Court at the district or sub-county level.

One of the most innovative support systems from which children in conflict with the law have benefited is the appointment of Fit Persons and Mediators. The formal role of Fit Persons is set out in 91(9) of the Children’s Act: specifically it is person who can closely supervise or offer accommodation to a child, where a parent/guardian are unable to, instead of the child being remanded in custody.

Community Development Assistants based at the sub-county level also play a significant role in the reintegration of children in conflict with the law. Their training of Fit Persons and Mediators, Local Councils and Community Based Organizations, their counseling of children and assisting children in Family and Children’s Courts and Local Council Courts are all of critical importance for children in conflict with the law. Community Development Assistants also support the work of the District Probation and Social Welfare Officers who are responsible for the care and protection of children, which includes marital disputes affecting children, child abandonment, disability, abuse and children in conflict with the law.

Diversion: A focus on Local Council Courts
The main diversion for children in conflict with the law is conducted under the auspices of the community or village court system, insofar as the law provides for local councils with judicial power over a number of criminal offences. It is the Constitution of the Republic of Uganda that provides for the creation of Local Councils as part of the decentralisation of power. Local Councils are the lowest units with administrative, legislative, and judicial powers on behalf of central governments. It is also the structure closest to the people through the village council.

Initially introduced as Resistance Committee Courts, Local Council Courts were based on the ideas of popular justice and popular democracy. They are intended to address the problems associated with the cumbersome court system and also attempt to bring justice nearer to the people. The people participate in electing the members of the Committees, which constitute these courts, and they are designed to resolve local disputes quickly and at minimum cost. At first these courts were used in resolving adult disputes. However, the Children’s Act built on the structure and many of the principles of the Local Councils and adapted them so they could also hear the cases of children in conflict with the law in a way that was compliant with the CRC and ACRWC and other international standards concerning justice for children.

Of the Local Council Courts, the village court is by far the most active as it is designated by the Act as the court of first instance for a number of minor, but common charges, such as theft, affray, assault and criminal trespass. Therefore a significant number of cases involving children in conflict with the law are entertained at the village courts within the Local Council Courts. The Local Council Courts at the parish and sub-county are largely for appeals from the village court. The Local Council Courts cannot incarcerate or order corporal punishment. The disposals they are permitted include compensation, restitution, apology, caution and a 6 month guidance order. There are also some that order the performance of community service. It is also noteworthy that Local Council Courts use Mediators and Fit Persons to try and resolve cases involving children in conflict with the law, rather than bringing them to the Village Local Council Courts. Thus, one of the advantages of the Children’s Act is that Fit Persons and Mediators settle children’s cases and this way children avoid earning the bad name they would have if their cases had been dealt with by the police. Interestingly, Fit Persons are usually women, mainly in their 50s and 60s. Some investigation of a prospective Fit Person’s suitability to provide care and protection for children is carried out before any appointment. Community Development Assistants also have a role to play in handling cases involving children in conflict with the law, particularly during diversion and rehabilitation and reintegration back into their community.

One of the main reasons why the work of the Local Council Courts in handling children in conflict with the law could be characterised as a good practice is because it involves the community. It supports the recognition of the paramount importance of parents, families and the communities in the socialisation and upbringing of children. It also is commendable as it assists in the earliest reunification of children with their families and communities. The Local Councils have been able to use alternative punishments like compensation, apology and restitution. This has in return helped increase the acceptability of non-custodial sentences among surrounding communities.

The advantage of Local Council Courts in dealing with children in conflict with the law is not only limited to the above points. It also has benefits in the use of local language, speed, accessibility, being more empowering to the poor, more understandable and, for this reason, lawyers are not allowed to participate as that would complicate the proceedings. The courts operate in an informal manner, which makes the proceedings non-intimidating for the child involved. They could also be convened any time, which offers some degree of flexibility.

Room for improvement
Admittedly, there is room for improvement in handling diversions in the Local Council Courts. Some of the challenges experienced include the fact that members of the Court having no access to key reference materials, officials are sometimes not aware of the rights of children, there has been bias against women and children, poor bookkeeping practices have occurred, and the fact that the members of the public are unaware of their rights in the Local Council Courts.

One of the ways of addressing these gaps is training. Accordingly the training of Local Councils has been a priority. Civil society including the Legal Aid Clinic of Kampala, Save the Children and Defence for Children International have provided training for Local Councils, and they are already showing positive impact on the way Local Council Courts are dealing with children in conflict with the law.

Conclusion
In Uganda, subjecting children to the formal legal system, apart from being in violation of the CRC and ACRWC, can have serious negative implications for the rights of children in conflict with the law. This is partly because there is concern, particularly from the UN Committee, at the lack of magistrates, lack of remand homes for children in conflict with the law, and the conditions in such institutions. A concept paper on the Children’s Act by the Uganda Law Reform Commission states that the implementation of the Act is undermined by, among others, inadequate human and financial resources in the established institutions and the negative attitudes of the society on matters of children’s rights.

The Local Council Courts have managed to significantly minimize the high influx of children’s cases of petty crime into the formal legal system. Currently, Local Council Courts have taken an active role and, both from what justice personnel say and from data collected, it seems fewer cases are now going to the police and to the district courts than before. Indeed, the involvement of the community in the different capacities noted above is a clear case of the common African adage that “it takes a village to raise a child”.

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1  In preparing this article the author wishes to acknowledge the following research report as providing background reading: Some impacts of the Children’s Act in Uganda, 1996-2005: A comparative study and evaluation of the impact of the Children’s Act in relation to children in conflict with the law in eight districts of Uganda (January-February 2005), compiled by John Parry-Wiliams, August 2005.

2  J. Gallinetti “Diversion” in J. Sloth-Nielsen and J. Gallinetti, Child justice in Africa: a Guide to Good Practice (2004) 67.

This feature: Mezmur, B.D. (2007). Diversion in Uganda: It takes a village to raise a child. Article 40, 9(1)