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Uganda |
JUSTICE
Juvenile Justice administrators in Uganda
evaluate their performance and
challenges
Domestic child abuse, as well as the appalling state of juvenile justice administration in Uganda, have become major human rights concerns. Uganda’s Justice and Constitutional Affairs Minister, Joash Mayanja Nkangi, says Uganda has witnessed of late increased violation of children’s rights in the home, especially by women, leading to the killing or maiming of children for various reasons, including simple theft of domestic items such as sugar and money.
The Minister of State for Gender, Labour and Social Development, Mary Nsangi Kakembo, says that although there is an outcry about the violation of children’s rights in state-run detention centres, gross abuses are inflicted on children in the family which ought to be the starting point in protecting childrens’ rights.
The Commissioner in charge of Youth and Children Affairs in the Ministry of Gender, Labour and Social Development, Kassiano Wadri, says the overall aim of the Childrens Statutes enacted by Parliament in 1995, and assented to by President Yoweri Museveni on 1 April 1996 is the improved care and protection of children, so as to enable them to develop fully in a conducive environment that appreciates their worth as distinct entities and not mere appendages of their parents and guardians (as is the cultural belief in Uganda’s patrilineal society). The Statute promotes a balance between justice and childrens welfare, and identifies the roles and responsibilities of parents and the State in responding to the needs of children who break the law. It places emphasis on helping juvenile delinquents, first of all in an informal setting at a community level, and finally the use of incarceration as a last resort.
P.T.Kakama of the Save the Children Fund says there are about four million vulnerable children in Ug-anda who live in circumstances defined as difficult. It is also estimated between 1.6 and 2.4 million children are orphans.
Juvenile justice system
However, after four years of implementation of the Childrens Statute, the state of juvenile justice is still appalling. The Statute established the Family and Children Court as a specialized court, with the idea that children should be treated with special care, based on the theory that children should be protected by society, and that child law breakers are in need of care and guidance. The main intention is not to impose criminal punishment for wrong-doing, but to reform the child.
If confinement is necessary as a last resort, child offenders should not be placed in institutions with adult criminals. It is the intention of the Childrens Statute, that cases concerning children should be handled expeditiously and without unnecessary delay.
The Family and Childrens Court has powers to hear and determine criminal cases against a child, except those which carry the maximum death sentence such as murder, defilement and rape, or where a child has been jointly charged with an adult. It operates informally and paternally; the proceedings are held in camera and are as informally as possible; the procedure is by inquiry rather than by exposing the child to adversarial procedures. The magistrate presiding sits at the same table with the child, the child’s parent or guardian, the child’s legal representative (if any), the complainant or prosecutor, and the probation and social welfare officer. Evidence is not given from the witness box, and the magistrate presiding may impose any other safety precautions as may be necessary.
On 3 April, 1998, the Chief Justice of Uganda indicated the time had come to set up the Family and Childrens Courts, and during that year they were established in all districts of Uganda. Magistrate Margaret Ssengooba who presides over the Family and Children Court at Mwanga II Road in Kampala district, the first court to become functional, says that from 1998 to October 2000, 456 criminal cases were registered in her court. During this period, cases of children in need of care and protection totalled 106. The various applications for orders such as Care Orders, Maintenance Orders and Custody Orders for this period were 70. This court had previously operated as the country’s only juvenile Court, with a full-time magistrate since 1973.
Punishment or care?
The Statute also provides for the detention of child offenders in remand homes for juveniles, but children continue to be held in adult jails. There are only three operational but over-crowded remand homes for juvenile delinquents located in Kampala, Fort Portal and Mbale, where conditions are unfavourable for a child’s well-being. As required by the Statute, many local governments have not yet identified places to serve as remand homes for their districts.
Daudi Aliobe, Assistant Commissioner of Prisons, in charge of Welfare and Rehabilitation, says that officers in charge of prisons, have been reminding magistrates that it is unlawful to detain juveniles in adult prisons, and have complained of the presence of juveniles in their facilities. He says they have even sent the juveniles back to the magistrates for detention in appropriate places. «Where prison warders suspect that an inmate could be a juvenile, in spite of police reports, the young person is held apart». Police officers have been accused of inflating the ages of juveniles so that they can be tried as adults and held in adult jails. But it is also true that police, prison, and probation and welfare officers, as well as prosecutors have found it very hard to verify the correct age of juvenile suspects. The whole situation is complicated by the fact that some of them are street children who have no families or refuse to declare their families.
Keeping children out of court
Minister Mayanja Nkangi says police officers are not properly utilizing their power according to the Statute. They have not adequately exercised their wide powers to keep children out of court. They could use other means such as a police caution or a police bond or by referring the cases to Local Council officials for informal settlement.
Dr. Masamba Sita, Research and Policy Development Advisor at the United Nations African Institute for the Prevention of Crime and the Treatment of Offenders (UNAFRI), says there is over-recourse to the penal style of social control (punitive logic), which leads to the neglect of the compensatory, conciliatory, and therapeutic styles. He says the Ugandan Parliament has provided an instrument, which if properly used, could offer the use of other styles of social control in matters relating to children. «The Statute provides that village local councils may, notwithstanding any penalty prescribed by the Penal Code in respect of certain offenses, make an order for any of the following reliefs in respect of a child against whom the offence is proved: Reconciliation, compensation, restitution, apology, or caution,» says Dr. Masamba.
Present difficulties
Although the Children Statute provides that children should be granted bail on their own cognizance, the facility of bail has continued to be stringent in some courts and thus continues to elude juvenile offenders. It is complicated in part by the conservative attitudes of prosecutors, but also because some of the juveniles have no fixed home addresses since they are street children with no families.
But perhaps one of the biggest dilemmas in the administration of juvenile justice is the Law of Defilement (i.e. having sexual intercourse with an under-age person). In Uganda, this Law is not clearly defined. A study carried out by UNICEF/Save the Children Fund, indicates that 19% of juveniles on remand in Naguru Remand Home, were on defilement charges, only second to those on theft charges (27%). Out of a total of 17 places visited which included police stations, prisons and Local Councils, the highest number of juvenile offenders had been arrested on defilement charges. It is clear that much has to be done in Uganda, to clarify this legal situation, in so far as juvenile offenders are concerned.
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