PART 1X, X and XI OF THE LAW OF THE CHILD ACT NO. 21 OF 2009: THE JUVENILE JUSTICE SYSTEM IN TANZANIA

Jaba Shadrack, UDSM - School of Law

It is now an international norm that institutions dealing with the child in conflict with the law should be separated from mainstream justice systems. Tanzania, just like her counterparties has endeavoured to implement this standard by erecting distinct institutions and law to deal with children in conflict with the law. Notably, the establishment of the Juvenile Court and of course the enactment of the Law of the Child Act, No. 21/2009 (LCA) which is embodied with rights and duties of a child as well as institutions to deal with children's welfare. Currently, there is a move to establish the Family Division in the High Court of Tanzania.

WHY SEPARATE LAW AND INSTITUTIONS FOR JUVENILES?

Reasonably, children in conflict with the law are not subjected to the mainstream justice systems for the following reasons;

(1) The international and regional conventions, treaties, and UN umbrella principles (human rights legal instruments) obligate member states to erect or set separate law, standards, and institutions for children;

(2) The assumption that children can easily be rehabilitated or reformed, thus not to be mixed up with adult offenders in adjudicative processes or after being sentenced;

(3) Children belong to vulnerable group/age factor (i.e. they are immature), thus not in a position to appreciate the consequences of their action;

(4) The best interest of the child doctrine requires special treatment of the child;

(5) Psychological factors: to avoid stigmatization or traumatising a child;

(6) The need of specialty (specialisation) and expertise in handling juvenile offenders;

(7) To avoid abuse of a child, if mixed with adults;

(8) Nature of the offences committed by children are not as grievous or serious as those committed by adults;

(9) To ensure privacy and a child to participate freely in the proceedings without fear or feeling shy;

(10) Not to expose children to habitual offenders (or recidivists): to protect children from negative influences of adult criminals;

(11) Children need special protection and care compared to adults; and

(12) To ensure informality during trials: to avoid legal and procedural technicalities.

INSTITUTIONS FOR JUVENILE OFFENDERS UNDER THE LAW OF THE CHILD ACT, 2009

A: The Juvenile Court

Establishment:

The LCA establish the Juvenile Court as a distinct Court from existing ones [section 97(1)] presided over by the Resident Magistrate [section 97(3)]. The LCA again allows the Chief Justice to designate any premises used by the Primary Court to be a Juvenile Court [section 97(2)]. Currently, there is only one building designated as Juvenile Court in Tanzania (namely, Kisutu Magistrate Court).

Territorial jurisdiction:

The LCA is silent on this aspect. The problem here is how to deal with juvenile offenders in regions or districts where there are no designated Juvenile Courts? Does the Primary Court, District Court, and Resident Magistrate Court enjoy original or concurrent jurisdiction as the Juvenile Court in dealing with Juvenile offenders? If not, do juveniles who commit crimes in upcountry areas (outside Dar es Salaam) brought to Kisutu's Juvenile Court for trial?

The above questions can be well addressed by looking at the practice before the enactment of the Law of the Child Act, No. 21 of 2009. For instance, the Children and Young Persons Act (RE: 2002) solved the issue of territorial jurisdiction by conferring powers to the Chief justice to extend jurisdiction of Juvenile Courts to Primary Courts. The specific provision provided as follows;

Section 43   

(1) The Chief Justice may, by order published in the Gazette, extend any provisions of this Act which relate to district courts or to primary courts or to any primary court or category of primary courts.

(2) Where the Chief Justice extends the provisions referred in subsection (1) to any primary court, he may, by the rules, modify any of the provisions of this Act relating to procedure, appeals or revision in order to bring the same into conformity with the provisions in that behalf contained in the Magistrates' Courts Act.

In the exercise of such powers, the Chief Justice promulgated "the Children and Young Persons (Extension of Ordinance to Primary Courts) Order (G.N. No. 640 of 1964)" which under Order 2 extended the mandate of Juvenile Courts to all Primary Courts in Mainland Tanzania, the specific provision read as;

2. All the provisions of the Children and Young Persons Ordinance which relate to district courts are hereby extended to all primary courts.

The issue now is whether the G.N. 640/1964 is still in enforce and thus applicable under the circumstance? The answer to this issue is in affirmative. This is because, though Section 160(1)(d) of LCA repeals and replace the Children and Young Persons Act (supra), G.N. 640/1964 is retained by Subsection 2(d) of Section 160 which, inter alia, provides that;

(2) Notwithstanding the repeal of the laws set out in subsection (l)-

(d) all orders, notices, by- laws, directives given or anything given or made by a person authorized as such by an officer so authorized to give or make orders, notices, by-laws, directives given under the repealed Acts shall he deemed to have been made under this Act and shall remain in force and have effect until amended or withdrawn under this Act.

Jurisdiction as to the Subject matter: Civil and Criminal

Section 97(1) of LCA provides for the objectives of the Juvenile Court, that is, to hear and determine matters relating to children. Particularly, section 98(1)(2) of the LCA requires the Juvenile Court to hear and determine criminal charges against a child; and applications relating to child care, maintenance and protection. Besides, it shall also have jurisdiction and exercise powers conferred upon it by any other written law. However, the LCA does not list or state categorically criminal charges to be brought before the Juvenile Court.

Procedures in the Juvenile Court:

Generally, the LCA under section 99(1) empowers the Chief justice to make rules to govern proceedings involving a child. Though such rules are yet to be made, the LCA provide some general guidelines on how to deal with a child in conflict with the law (see, sections 99-120).

B: Approved Schools (sections 121-132, Part X of the LCA):

These are institutions run by the state to which children in conflict with the law are committed by the Court for correction and rehabilitation [section 22(2), 120(1) of LCA] e.g. Mbeya approved school. They are deemed under the law as a legal custody [section 126 of LCA]. The approved schools are established by the order of the Minister responsible for social welfare, who has also power to declare any school or institution to be an approved school, and elect the management of such institution [sections 121(1)(2) of LCA]. Section 127 requires a child not to be detained beyond the date upon which he attains the age of eighteen years.

C: Institutionalised Care (sections 133-151, Part XI of the LCA):

They include; children's home; a retention home; an approved school; a crisis centre; and approved residential homes, orphanage centres, day-care centres, crèches (nursery school) and etc., established and run by the state, or licenced/registered 'private' individuals/institutions. These institutions act as educational and rehabilitation centres, children homes or legal custody.

D: Others:

Includes; the Ministries, the police force, court personnel, advocates, social welfare officers, prosecutors, and etc.

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