Theoretical Contexts and Concepts of Juvenile Justice System (Tanzania)

© JABA SHADRACK (Assistant Lecturer), Department of Public Law, School of Law - University of Dar es Salaam, Tanzania

Outline:

Course orientation: Introductory remarks

Definition of terms and concepts

The age that differentiates the 'child' from a 'juvenile'

• Juvenile as an offender or a victim
  

Course orientation: Introductory remarks

This course provides an understanding of juvenile delinquency, including the origins, causes, and development of delinquent behaviour. It outlines the problems facing modern juveniles and compares adult and juvenile justice systems. The topics covers range from intervention, apprehension, referral and preventive techniques, to chemical dependency, mental illness and compulsive and habitual offenders. The course also addresses the problems in police handling of juveniles and the function of juvenile courts and attendant procedures. Again, the course intertwines the theme of juvenile justice with modern theories and approaches toward juveniles as enshrined in international and regional legal instruments and related model or umbrella principles. Finally, the course ignites a discussion on control and preventive measures on juvenile delinquency.

Definition of terms and concepts:

What is juvenile justice (system)?

Before understanding the concept, 'juvenile justice (system)', it is better to start by clarifying the term, 'juvenile'. Literally, the word 'juvenile' means 'a child', 'young person', 'pre-adult', teenager', 'puerile', 'pubescent', 'adolescent', or 'minor'. However, to criminologists, the term 'juvenile' entails;

• A person below the age at which ordinary criminal prosecution is possible.
  
• A child or young person who, under the respective legal system, may be dealt with for an offence in a manner which is different from an adult. (Rule 2(2)(a)
  of UN Standard Minimum Rules for the Administration of Juvenile Justice
  [Beijing rules], 1985).
  

Therefore, from the term 'juvenile', other concepts emerges such as 'youthful offender', 'juvenile offender', 'juvenile delinquent', 'young offender', 'child offender', 'incorrigible', 'delinquent child', which altogether means;

• A child or young person who is alleged to have committed or who has been found to have committed an offence. (Rule 2(2)(c) of Beijing rules, 1985).
  
  • A minor who intentionally and constantly engages in anti-social behaviour;
    
  • A minor who does something that would be a crime if committed by an adult. (P. 271 of the Black Law Dictionary, 9^th Ed., 2009; and p. 70 of the Webster's New World Dictionary, 2006).
    
  • A minor below a specified age who tends to commit crimes or otherwise engages in immoral or disobedient behaviour, and therefore needs treatment or supervision. [P. 131 of the Essential Law Dictionary (Sphinx Dictionaries), 1^st Ed., 2008].
    

Regardless the long list of names for juvenile offender/s, it is important to use child-sensitive words such as, 'children in conflict with the law', 'children in actual conflict with the law', 'children in perceived conflict with the law', and 'children in need of care and protection'. Also, it is advised to use words like, 'child', 'street-involved children', 'adolescent', and 'young person', instead of using words like 'minor', 'teenager', 'juvenile', 'child criminal', 'youthful offender', 'street children', 'children of the street', 'children on the street', 'street-living children', 'homeless children', 'street-working children', 'market children' and 'juvenile delinquent', which have stigmatising effect. Again, offences committed by juveniles may be referred to as 'deviant behaviour', 'delinquency', 'anti-social behaviour', and not words like 'offence', 'crimes', 'delict', 'misdemeanour', 'felony'. The reason for being selective in terminologies in dealing with children is to avoid negative or prejudicial connotations which some words tend to have. Besides, some words tend to detract from the reality that individuals involved are first and foremost children and adolescent.

After understanding the term 'juvenile', let us now discuss the meaning of 'juvenile justice (system)'. Juvenile justice (system) may be defined as;

• Procedural and substantive law, judicial and extra-judicial measures, institutions erected to deal with children in conflict with the law.
  
• A set or a range of institutional and legal protective or correctional measures and treatments adopted against a child in conflict with the law.
  

According to Marie Wernham (2004), the term juvenile justice system entails treatment/handling of children in conflict with the law, the need to address the root causes of offending behaviour and implement measures to prevent such behaviour. The juvenile justice has two major strands/elements;

• Prevention (preventive system/mechanism); to ensure that children do not come into conflict with the law, and they are not subjected to the mainstream criminal justice system.
  
• Protection (protective system/mechanism); under this strand,
  the focus is on children who are already in conflict with the law. The main target here is to protect juveniles from human rights violations, to deter them from re-offending, promote their rehabilitation and reintegration.
  

Why is it difficult to define the term Juvenile Justice System?

In addressing the above
problem, Marie Wernham (2004) argues as follow;

• There is no [a] single 'system' but a complex mixture and overlap between many different systems i.e. police, social welfare, probation department, prisons, judiciary, lawyers, government departments and agencies, organizations, and etc. thus, it becomes difficult to single out exact institution we are referring to.
  
• Separate 'system' for treatment of juveniles exist in theory, in practice juveniles are often still processed through the adult criminal justice system.
  
• The term 'juvenile' is criticised by human rights activists for its negative connotation/stigmatising label.
  

Summary:

Juvenile justice system is made up of the legislation, processes, institutions, and personnel involved in the treatment of children accused of committing a criminal offence. In some literature, the term juvenile justice system is also referred to as 'juvenile criminal justice system', 'child justice' or 'administration of juvenile justice' or simply, 'juvenile justice'.

The age that differentiates the 'child' from a 'juvenile':

The term 'child' is defined under section 4(1) of the Law of the Child Act (No. 21 0f 2009) to mean, any person below the age of eighteen (18) years/under the age of majority (see, also section 2 of the Age of Majority Act, Cap. 43). The same position is reiterated under Article 2 of the African Charter on the Rights and Welfare of the Child (1990), and Article 1 of the UN Convention on the Rights of the Child (1989). Under the 'common law', a child is any person who is under fourteen (14) years of age. In Canada, under section 2(1) of the Children's Law Act (1997), a 'child' is any person under 18 years, and who has never married. On the other hand, a juvenile is any child who can be subjected to a criminal justice system or any person with the age of criminal responsibility. For example, in Tanzania, section 15(1) of the Penal Code (Cap. 16) provides for children who cannot be criminally liable (in different circumstances) as follows;

(1) A person under the age of ten years is not criminally responsible for any act or omission.

(2) A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

(3) A male person under the age of twelve years is presumed to be incapable of having sexual intercourse. **(doli incapax).

Therefore, in Tanzanian context, a juvenile is a child between ten (10) to eighteen (18) years. In that regard, the term 'juvenile' becomes a subset of a term 'child'. It is true to say that juveniles are subjects of juvenile justice system, but not all children are as such.

Quiz:

What justice system applies when a juvenile is charged together with someone else aged 18 and above.

• Juvenile as an Offender or a Victim
  

At this juncture, it suffices to note that juvenile justice system is designed to deal with children who are in conflict with the law (juvenile offenders), and those who have been affected or injured by criminal acts of others (juvenile victim).    

Juvenile as an offender:

This means a situation where a child is actually a perpetrator of an offence, therefore may come into contact with the juvenile/criminal justice system. Offences committed by juveniles are in most cases directed to members of the peer age groups, especially those which involve the use of violence in their commission. However, this assumption should not be taken as a general rule, since in certain circumstances even adults have also became victims, especially where a juvenile engages into criminality for survival. Generally, children are likely to commit offences such as pick-pocketing, assault, simple theft, drug abuse, fighting, and status offences (e.g. chronic/persistent truancy, running away, being incorrigible, violating curfew laws, possessing alcohol/tobacco, and etc.). Therefore, if a child finds himself/herself in any of the above circumstances becomes a law-breaker and therefore a subject of juvenile justice system.

Juvenile/child as a victim:

Let me start by defining the term, 'victim'. The
UN Convention on Justice and Support for Victims of Crime and Abuse of Power (Draft Convention, 08/02/2010) under Article 1(1)(2) define and explain the term 'victim' to mean;

(1)….natural persons who, individually or collectively, have suffered harm including physical or mental injury, emotional suffering or economic loss or violations of fundamental rights in relation to victimizations identified under scope.

(2) A person is a victim regardless of whether the crime is reported to the police, regardless of whether a perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term 'victims' also includes, where appropriate, the immediate family or dependants of the direct victims and persons who have suffered in intervening to assist victims in distress or to prevent victimization.

In short one may say; a victim of a crime is an identifiable person who has been harmed individually and directly by the perpetrator, rather than by a society as a whole.

In relation to a juvenile/child victim, it denotes a child and adolescent, under the age of 18, who is a victim of a crime, or witnesses to crime regardless of his or her role in the offence or in the prosecution of the alleged offender or groups of offenders. Generally, offenders in juvenile/child victimization are likely to be family members (siblings, parents), neighbours, acquaintances (school mates, teachers, and friends) law-enforcers (police, private security personnel) and strangers. In most cases juveniles/children are victims of offences such as rape, sexual assaults, simple and aggravated physical assault, defilement, commercial and sexual exploitation (illegal prostitution, child labour and trafficking in children), abduction (and kidnapping), child pornography, exposure to sexual materials via internet, unnatural offences, indecency, incest, child stealing, theft, neglect, cruelty, desertion, burglary, murder, robbery, and etc.

Refer:

Sections
129A-138, 138A-143, 154, 156, 158, 160, 166, 167, 169-169A, 218, 219, 225, 229, 240-256, chapter xxix, xxx and etc., of
the Penal Code, Cap. 16.

Factors related to juvenile/child victimization:

• Individual characteristics: e.g. age, gender, race, lifestyle, friendship patterns, orphan, homeless (destitute) and etc.
  
• Family characteristics: e.g. family structure (extended family, single-parent families), income, level of supervision, and etc.
  
• Community characteristics: e.g. crime and poverty levels, age profile of the community's population, unemployment level, education level, location, and etc.
  

Unlike adults, children are more likely to be victims of crime especially those which are violent in nature. Crimes committed either against children or witnessed by them have a direct impact on psychological development of a child. Thus, an understanding of childhood victimization and its trends may lead to a better understanding of juvenile offending.

Quiz:

"In every offence committed by a juvenile, there is a hand of an adult person, either directly or indirectly". Critically discuss the above statement.   

References:

Akonaay, F. (2011) The Administration of Juvenile Criminal Justice in Tanzania Mainland: A Critical Analysis of The Efficacy of The Law of The Child Act (2009), LL.B Dissertation submitted to the University of Mzumbe.

Badenhorst, C. (2006) Criminal Capacity of Children. Ph.D. Thesis submitted to the University of South Africa.

Centre for Child law (2008) Justice for child victims and witnesses of crime. Faculty of law, University of Pretoria, PULP.

Snyder, H.N. & Sickmund, M. (2006)
Juvenile Offenders and Victims: 2006 National Report.
Washington, DC: U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention.

Wernham,
M. (2004) An Outside Chance: Street Children and Juvenile Justice – An International Perspective. Consortium for Street Children, London.