CASES ON THE ADMINISTRATION OF JUVENILE JUSTICE IN TANZANIA

Compiled by Jaba Shadrack

• Emmanuel Kibona v. R (1995) TLR 241
  

Sentencing Juveniles - Ascertainment of age of juveniles

After being convicted of robbery with violence appellants were sentenced by the trial Court under the Minimum Sentences Act, 1972. On appeal they argued that they were juveniles and as such ought not to have been sentenced under the Minimum Sentences Act, 1972. The appeal court considered the propriety of the sentence in light of the age of the appellants. A medical report had said that all the appellants were adults. The appellant's challenged the assessment of their ages by the medical doctor. Their parents submitted, inter alia, baptismal certificates to enable the court assess the ages of the appellants.

Held:

(i) Evidence of a parent is better than that of a medical doctor as regards that parent's child's age;

(ii) Where age cannot be assessed accurately the benefit of doubt must be given to the accused;

(iii) In this case the appellants are given the benefit of doubt.

 

• Marcela Barthazar v. Hussein Rajab (1986) TLR 8 (HC)
  

Compensation order - Compensation in respect of convicted juveniles

In the course of a fight between two school children one of them was wounded. The child who wounded the other was convicted of unlawful wounding and ordered to pay compensation to the wounded child.

Held: (i) A compensation order in respect of convicted juveniles may in an appropriate case only be made against a parent or guardian of the child or young person. It cannot be made against the juvenile.

    (ii) A parent or guardian against whom a compensation order in respect of a convicted juvenile is made must be given an opportunity to be heard.

• Mkombozi Centre for Street Children, East African Law Society and Legal and Human Rights Centre v. Attorney General, Miscellaneous Civil Case No. 24 of 2007, High Court of Tanzania at Arusha (unreported)
  

Vagrancy laws

The petitioners were challenging the constitutionality of the Townships (Removal of Undesirable Persons) Act, the Destitute Persons Act, and some provisions of the Penal Code which criminalises status offence such as vagrancy and give the District Commissioner and other authorities powers to order removal of children from the streets contrary to Articles 15 and 17 of the Constitution of the United Republic of Tanzania of 1977, which prohibits arbitrary arrest and provide for the freedom of movement.

The Court held against the petitioners by arguing that the solution to the problem of street children lies in trying to address the root causes and not in the laws which are there to afford a balance between the interests of these groups and the rest of the members of the public on the other.

• Mukamambogo v. R. (1971) HCD 63
  

Juvenile Justice - Assumption of power by the Primary Court

The appellant was charged with and convicted of acts intended to cause grievous harm c/s 222(2) of the Penal Code and was sentenced to 12 months imprisonment. Apparently, the lower court assumed jurisdiction under section 6 of the children and Young Persons Ordinance which empowers a District Court to try and determinate any offence other than homicide in which the accused is a young person. There was nothing in the record to show that the proceedings were held in a place different from an ordinary court room, nor was there any indication that it was not practicable for the court to sit in a place different from an ordinary court room.

Held: (1) "In doing however it would appear that the court did not proceed as a juvenile court in accordance with the provisions for section 3(1) of that Ordinance. The section provides that, "A District Court when hearing charges against children or young persons shall, if practicable, unless the child or young person is charged jointly with any other person not being a child or young person, sit in a different building or room from that in which the ordinary sittings of the court are held." The appellant was a young person and was not on a joint charge with any adult. In order to comply with the above provision therefore the trial magistrate in hearing the case should, if practicable, have sat in a place different from an ordinary court room. It would appear also that this requirement was mandatory by reason of the word "shall used in the subsection quoted above." (2) Conviction quashed and sentence set aside, case remitted back for retrial before properly constituted Juvenile Court.

•   R. v. Asia Salum and Another (1986) TLR 12

Sentencing - Youthful offender - First offender - Considerations to take into account

The accused mother and her 17 year old son were convicted of assault causing actual bodily harm. The mother, a first offender, and her youthful son were each sentenced to twelve months' imprisonment. The record of the proceedings was called by the High Court for the purpose of satisfying itself as to the correctness, legality or propriety of, inter alia, the sentences imposed.

Held: (i) Where a first offender is concerned the emphasis should always be on the reformative aspect of punishment unless the offence is of such a serious nature that an exemplary punishment is required or unless the offence is so widespread that severe punishment is needed as a shock deterrent;

    (ii) First offenders should not, as a rule, be sent to prison where there is an opportunity to mix with and learn bad habits from more seasoned criminals;

    (iii) The sentence of 12 months imprisonment imposed on the first accused in the circumstances of this case was rather on the high side;

    (iv)Youthful offenders should not be sentenced to terms of imprisonment.

• R. v. Fidelis John (1988) TLR 165
  

Prohibition of imprisonment of young persons

The accused was convicted on his plea of guilty for escaping from lawful custody and was sentenced to six months imprisonment and six strokes of the cane. He was below the age of 16 years. On revision:

Held: (i) No young person below the age of 16 years should be sentenced to imprisonment if there are other methods of dealing with him;

    (ii) The trial court had no legal justification to sentence the accused to imprisonment.

Alternative punishments for juvenile offenders include probation under section 18, absolute discharge, repatriation or committal to an approved school under sections 23 and 24 of the said Ordinance.

The trial court had no legal justification to sentence the accused to 6 months imprisonment in the present case. The trial court ought to have resorted to the alternative forms of punishment provided for juvenile offenders. Accordingly the sentence of 6 months imprisonment is quashed and set aside. The accused is to be set at liberty forthwith unless otherwise held for other lawful cause. The 6 strokes of the cane imposed on the accused meet the justice of the case.

• R. v. John s/o Gilied (1984) TLR 273
  

Guiding principles when sentencing a child or a young person

The accused aged 15 years, was convicted of causing grievous bodily harm. The District court sentenced him to nine months' imprisonment plus twelve strokes corporal punishment. The case file was called for revision on the propriety of the imprisonment sentence.

Held: Before a trial magistrate sentences a young person to any term of imprisonment he should, by application of his judicial mind and for sound recorded reasons, have eliminated other methods of legally dealing with such young person as unsuitable.

"I do agree that the complainant suffered grievous harm, but the trial magistrate should not have been oblivious to the fact that the accused was also a first offender. And the said accused being a young person, the same trial magistrate, in coming to his decision to imprison him, he should have shown, why or how in view of the provisions of section 22 (2) of the Children and Young Persons Ordinance, Cap. 13, the other methods of dealing with him were unsuitable. This he did not. Having considered the case generally, I am of the view that imprisonment was not necessarily an inevitable course of action. I therefore set aside the imprisonment order, but confirm the corporal punishment awarded. The process to be initiated for the execution of such sentence subject of course to the provisions of Section 15 (1) of Corporal Punishment Ordinance Cap. 17 (i.e. the doctor has to certify the accused's physical fitness to undergo the same"). Per Katiti, J.

• R. v. Patrice Matata (1967) HCD 413
  

Probation order

In a previous action accused was sentence to five strokes of corporal punishment and placed on probation for 12 months. In the present action he was charged with failing to comply with the probation order.

Held: The purpose of probation is to release the prisoner without punishment where the court regards it expedient to do so taking into account the circumstances of the case and character of the accused. It is improper to impose a sentence in addition to an order of probation. The corporal punishment having been executed, the probation order was set aside, the present proceedings quashed and accused ordered to be set at liberty.

• R. v. Njama Zuberi (1985) TLR 241
  

Bail pending trial for murder where the accused is a child of tender years - Powers of the court

This was an application for bail pending trial for murder. The applicant/accused, a child of tender years was held in custody at Handeni, where there were no facilities for keeping juvenile offenders. The boy's parents were able and willing to look after him and to produce him in court as and whenever directed and the charge was likely to be reduced to manslaughter.

Held: It is necessary to remove him (a juvenile) from custody where he is likely to associate with adult offenders and other undesirable influence.

"In all the circumstances of this case I am of the considered view that it is necessary, in the interests of this accused, to remove him from custody where he is likely to associate with adult offenders and/or any other undesirable person. In the final result, in terms of powers conferred upon me by section 123(3) of the Criminal Procedure Code, I exercise my direction in favour of this accused and hereby direct that from now onwards the accused be released on a recognisance being entered into by his father with two reliable sureties, each in the sum of Shs.10,000/= It is ordered accordingly". Per Sisya, J.

• R. v. Bukuku [1995–1998] 1 EA 286 (HCT)
  

Boy aged 16 sentenced to imprisonment for burglary and stealing – Whether sentence appropriate – Factors to consider in imposing sentence on juvenile offenders.

Bukuku had been charged and convicted of burglary and stealing. He was convicted on his own plea of guilty. At the time of his conviction, he was aged 16. Because the Minimum Sentences Act does not apply to juveniles, the trial court decided to apply the provisions of the Children and Young Person Ordinance when sentencing Bukuku. He was sentenced to one year and six months' imprisonment respectively, in respect of the first and second counts. No appeal was preferred but the High Court suo moto decided to revise the sentence.

The Court invited the DPP to make known his views on the matter. The DPP contended that the sentence was lawful as it was within the jurisdiction of the subordinate courts pursuant to the provision of section 170(1)(a) of the Criminal Procedure Act and that the Children and Young Persons Act was misapplied because Bukuku was not a young person for purposes of that Act.

Held – Although Bukuku was not a young a person under section 12 of children and Young Person Act, he nevertheless was a juvenile for purposes of section 2 of the Minimum Sentences Act.

When considering what sentence is the most appropriate courts should not lose sight of the objective of juvenile justice. The juvenile justice system should be guided by the idea that rehabilitation not punishment is the proper method of handling deviant behaviour among youths. The youths lack the moral and judgmental maturity of older people hence they should be considered to be less deserving of legal culpability (Thompson v Oklahoma [1982] 487 US and Schall v Martin [1984] 467 US 255, 263 adopted).

The Court should also examine the personal characteristics of the accused, including his age, health, the background of his upbringing and whether the accused was a first offender. A custodial sentence was not the best punishment in the circumstances of Bukuku's case. Bukuku discharged from prison.

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