LEGAL PROTECTION OF A CHILD IN CONFLICT WITH THE LAW IN TANZANIA: CONSTITUTIONAL AND PROCEDURAL RIGHTS
Jaba Shadrack, Assistant Lecturer, Department of Public law, UDSM - School of law
Every person, including a child who is arrested for allegedly committing an offence has;
• The right to remain silent. It include also the right not to be compelled to make any confession or admission that could be used in evidence against him/her, Sections 52(1), 53(c)(i) of CPA, RE: 2008.
• The right to be informed promptly of the charges by the police/communication of the charge (i.e. the police must, as soon as possible after arrest, explain the nature of the allegations in a language and manner that the child can understand), Sections 23(1)(2) & 53(b) of CPA, RE: 2009. The Juvenile Court is also duty bound to explain to the child, in simple language, the particulars of the alleged offence (Section 105 of the LCA, 2009).
• The right to prompt notification of parents and guardians after arresting a child (A parent or guardian should be notified immediately after the child is apprehended or, if this is impossible, "within the shortest possible time thereafter"), section 56(1) of CPA). This includes also the right of a child to communicate with parent, relative, friend, lawyer after being arrested under sections 53(c)(ii), & 54(1) of CPA.
• Right to be separated from adult offenders: Separation from adults during transportation (or transportation with supervision), and in police custody/detention/prisons/facilities (see, Section 102 of the LCA).
• The right to be released on bail (or his recognisance) with or without surety (Sections 101, 104, 111(2), 116, 125, 131 of LCA).
• The right to be brought before a Court of law as soon as (reasonably) possible, sections 32(1) & 33, 118 of the CPA. However, section 103(1) of the LCA requires a child to be brought to Court only after investigation is complete].
• The Right to legal assistance: to have the assistance of a lawyer/advocate or next of kin (legal representation): Once arrested or detained, a child is to be advised immediately his/her right to counsel (Section 99(1)(f) of LCA).
• The right to be heard or to show cause (audi alteram partem): the child shall have a right to give an account and express an opinion (Article 13(6)(a) of the URT Constitution, Sections 99(1)(h)(2)(a)(b), 106 and 110 of LCA).
• The right to informal procedures/ proceedings (Sections 99(1)(c), 103(2) of LCA). See, also section 187 of CPA).
• The Right to Privacy: trials in camera [Section 99(1)(b)(2) of LCA], trial/proceedings to be conducted/held in a different building or room from that which the ordinary proceedings of the court are conducted [Mukamambogo v. R. (1971) HCD 63; Sections 98(3), 100(2)(3) of LCA], law reports should not have names of minors (this is not the case in Tanzania), no criminal records or disregard of such records (destruction after trial). Again, Sections 33(1)(2) & 158(1)(d) of LCA prohibit publication (or cause to be published) any information (or photograph) which is prejudicial to the best interest of a child without court's order. See, also Article 16(1)(2) of the URT Constitution.
NOTE: Sections 59(6)-(10) of CPA which establish the Criminal Records Office is silent as to the exclusion of children criminal records from the police database.
• The right to free assistance of an interpreter (not expressly provided under Tanzanian laws)
• A right of a parent, guardians or a next of kin to be present during trial (parent presence in the Juvenile Court) as per Sections 99(e) & 112 of LCA.
• The right to appeal: the right to appeal shall be explained to the child (Article 13(6)(a) of the URT Constitution, Section 99(1)(g) of LCA).
• The right to be tried in a Juvenile Court, section 100(2) of the LCA which provides that;
"Where in the course of any proceedings in a court it appears to the court that the person charged or to whom the proceedings relate is a child, the court shall stay the proceedings and commit the child to the Juvenile Court".
However, where a child is charged jointly with an adult person (either as accessory after the fact, or abettor), Section 100(1) of the LCA, by implication, requires not to be committed to a Juvenile Court. The said provision read as;
The Juvenile Court when hearing a charge against a child shall, if practicable, unless the child is charged jointly with any other person not being a child, sit in a different building or room from that which the ordinary proceedings of the court are held.
In that regard, as Maganga, C.S. (2005; p.14) says, a child or young person will also have his or her case tried in an adult court. The trial will not take into account the juvenile's age, for example the trial will not be held in camera. The juvenile will go through the same trial process as the adult co-defendant. However, the judge will take into account the juvenile's age when passing sentences.
NOTE: Again, Section 100(1) of LCA violates the privacy principle as it waives the right of a child to be tried in a Juvenile Court where charged jointly with an adult offender.
• The right of not to be incarcerated/imprisoned (sections 116, 119(1) & 120(1) of LCA). Again, the law requires a juvenile offender to be remanded to the care of the Commissioner for social welfare or fit person or institution, not in prison or police custody (section 104(1) of the LCA).
• The right to be protected from torture, inhuman and degrading punishment or treatment: minimum force should be used in dealing with children (Section 13 of LCA, Article 13(6)(e) of URT Constitution, 1977, section 55(1) of CPA).
• The right to give evidence or testify or act as a public witness in Court where a child is a victim of an alleged offence, subject to the law (Sections, 115(1)-(4) of LCA, and 127(1)-(8) of the Evidence Act, RE: 2007).
• The right to be presumed innocent until charged and convicted as such by the Court of law, Article 13(6)(b) and 15(2)(a)(b) of the URT Constitution.
• The police officer should confirm the age of the child. Likewise, the court is also obligated to make an inquiry as to the age of the child (section 113(1) of the LCA).
- Protection of child's rights and dignity in all activities pertaining to criminal investigations and process, restraint/detention, or in the execution of a sentence (see, Article 13(6)(d) of the URT Constitution.
CPA, the Criminal Procedure Act, RE: 2008.
LCA, the Law of the Child Act, No. 21 of 2009
RE, Revised Edition
URT Constitution, the Constitution of the United Republic of Tanzania, 1977, **as revised from time to time).
NB: Follow me at: www.scribd.com/jabashadrack/