JUVENILE JUSTICE IN ZANZIBAR: SOME TIPS ON THE CHILDREN’S ACT, 2011

By Jaba Shadrack, UDSM – School of Law

Historical overview:

Since Zanzibar is a former territory of the Oman sultanate, it is very hard to disregard the influence of Islamic law and other Arabic traditions in dealing with young offenders. Before the British colonialism in Zanzibar, the Islamic law (Muhammadan law/sharia), Kadhi's/Quadis' Court, and religious leaders such as sheha, kadhi, and imams were common institutions in relation to juvenile justice system. Again, there were no special institutions or personnel for juvenile offenders. Even though, the Islamic law (Quran), customs and traditions allowed leniency in the treatment of juvenile offenders.

After the coming of British colonialist, Islamic law and related institutions co-existed with English justice systems especially, Muslim principles regarding the care and custody of minors. At the beginning of British regime in Zanzibar, there were no, strictly speaking, separate institutions for juveniles. In 1935, the British adopted the Juvenile Offenders Decree (JOD), which introduced Juvenile Court constituted like English Juvenile Court where women were allowed to sit in the panel. Later the JOD was repealed, thus The Children and Young Persons Decree (CYPD), Cap 58 was introduced in 1952. The CYPD which is the product of English Act (i.e. the Children and Young Persons Act 1933) established provisions for protection of persons under the age of sixteen years and for the procedure at trial of such persons on criminal charges. Again, the CYPD established Juvenile Courts (as a distinct tribunal) at the level of Regional Magistrate Courts for the purpose of hearing and conducting all trials against persons below 18 years of age except in cases where children are jointly charged with adults.

Changes:

In 2007, Zanzibar started a processes to reform laws governing children rights, the task which was accomplished in 2011 where the Children and Young Persons Decree, 1952 was repealed and replaced by the Children's Act, 2011.

Highlights on the Children's Act, 2011:

The Children's Act contains an entire chapter (chapter 5) dedicated on children in conflict with the law.

The Act's provisions include the following aspects:

• Provisions on arrest with the aim to ensure that children are only arrested for serious offences or where they are caught in the act or if compelling reasons exist for the arrest of a child who has committed a less serious offence;
  
• In order to strengthen the due process rights of a child, it is required that a child be brought to Court within 48 hours after arrest;
  
• Diversion measures by way of police cautioning;
• Diversion by the prosecutor and at court (a Children's and Family Court to be established in terms of the new law);
  
• Provision on release from pre-trial custody or where this is not possible, detention in a children's remand home or place of safety;
  
• The introduction of assessment for any child who has been arrested for the alleged commission of an offence, to be effected by a probation officer or a district social welfare officer;
  
• A requirement that the court shall obtain such information as to the child's general conduct, home surroundings, school record and medical history as may enable it to deal with the case in the best interests of the child and may put to him or her any question arising out of such information; and
  
• By introducing restrictions on sentencing (including a prohibition on court-imposed corporal punishment), such as limiting a sentence of deprivation of liberty in an Offender Re-education Institution (prison) to a child only if he or she has attained the age of sixteen years and has committed an offence listed in Schedule 2 (a list of serious offences), or has committed repeatedly an offence listed in Schedule 1, as a last resort.
  

Other Salient Features of the Act:

Substantial compliance with international standards and African best practice is attained through the Act. Chapter 11 of the Act regulates the establishment and operation of approved schools for children with behavioural problems which might include children coming through the criminal justice system. However, these institutions need to be established and developed.

The need to distinguish petty offending from more serious behaviours warranting intervention remains acute and it is welcomed that alternatives to prison are provided for. At the same time there is a risk that institutionalisation in another form (approved schools) will take the place of prison for petty offenders. Hence, it is noticeable that the Act provides a remarkable array of non-custodial alternatives, which can assist a court in avoiding institutional options.

In contrast to South Africa, for instance, there are no civil society or welfare organisations directly concerned with services or programmes for children in conflict with the law. Hence, the diversion provisions rely rather on local peace-making possibilities than on referrals to formalised programme providers.

Conclusion:

The Zanzibar Children's Act 2011 illustrates the possibilities for law making to protect and provide for children in a resource scarce environment. Much more crucial are ingredients such as willing governments and structures/personnel committed to realising children's rights over time.

NB: Compiled by Jaba Shadrack (Materials from various Websites).