Contents

 

Problem Statement

 

Proposal

 

Obstacles

 

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Other CLAN Documents

 

Juvenile Justice in Kampala

 

Hayanga and Company Advocates: Annual Report, February-October 1998

 

Report submitted to ANPPCAN, 1998: On the Need for CLAN

 

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Other Projects

 

Popular Participation Towards Combating Child Labour

 

Child Rights and Child Protection

 

Creating a National System of Local Referral Networks

 

Children's Legal Action Network (CLAN)

 

Community Organized Training (COT)

 

Girl Child Basic Education Programme

 

Home-Based Day Care Centre

 

Riziki Women's Rehabilitation Centre

 

Children in Situations of Armed Conflict

 

ANPPCAN - Fredskorpset: Exchange of Personnel

 

The Nairobi Child Protection Initiative
 

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Juvenile Justice in Kampala:

A Proposal Drafted for Presentation to Uganda Law Society


Problem Statement

Dedicated child-rights agencies have raised the standard of juvenile justice in Kampala. Nevertheless, many imprisoned children still face state prosecution without adequate legal assistance. Several distressing facts deserve attention.

State-funded lawyers defend children accused of capital crimes. Children imprisoned for lesser charges receive the attention of a social worker or probation officer. Social workers, however, are untrained in courtroom litigation. Unfortunately, this denial of experienced counsel eliminates any potential for a fair hearing.

Fair hearings are also compromised by understaffed judiciaries. The allocation of one social worker per court burdens even the most energetic civil servants with overwhelming caseloads. As a result, children often face trials without representation. PT Kakama of Save the Children-UK notes that, "Probation and Welfare staff are insufficiently resourced to effectively carry out their duties and the available Magistrates are too few to meet the full establishment of Family and Children’s Courts recently designated" (Kakama, PT. "Juvenile Justice in Uganda: Past and Present Perspectives." Published for internal use by STC-UK, Kampala, Uganda).

These shortages generate unavoidable courtroom delays. Capital cases, in particular, take months in their transfer from the Family and Children’s Courts to the High Courts. Similarly, arrested children might wait for weeks before entering their first plea. And since the district registrar distributes case assignments after the first hearing, lagging trial procedures leave children imprisoned without assistance for months on end.

Statistics highlight the more pernicious effects of courtroom delays. Most disturbingly, children are held well beyond their period of legal remand. From March 99-00, 29% of all capital suspects in Naguru Remand Home failed to receive court committals before the six month deadline. Of these children, 71% were retained illegally in the home, while 29% were released in accordance with the law. Interviews with Naguru staff, however, revealed that many of the released children were later re-arrested under more serious, often fabricated charges (Research conducted by David Kovara, ANPPCAN-Uganda, April 00).

Conditions at the Naguru Remand Home, in fact, reflect inevitable symptoms of remand extension: overcrowded rooms, food and clothing shortages, poor health conditions, and the illegal transfer of children to adult prisons.

Concerned advocates therefore face three inescapable conclusions. Children accused of capital and non-capital offences are routinely detained for exorbitant periods of time. Alternatively, suspects might be released without facing allegations in court. Finally, children who do appear for trial are denied adequate representation.

Proposal (top)
Four separate pieces of legislation, in fact, attempt to provide special protection to children, as follows:

The Children Statute 1996

—Part IV, Section 17:

"The child shall have a right to legal representation."

—Part II, Section 4, Guiding Principle 4:

"A child shall have the right to exercise, in addition to all the rights stated in this Schedule and this Statute, all the rights set out in the UN Convention on the Rights of the Child and OAU Charter on the Rights and Welfare of the African child."

The UN Convention on the Rights and Welfare of the Child, Article 40, Section 2(b):

"Every child alleged as of or accused of having infringed the penal law has at least the following guarantees:

  1. to be presumed innocent until proven guilty according to law;

  2. to be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defense;

  3. to have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance…"

The African Charter on the Rights and Welfare of the Child, Article XVII:

"State Parties to the present Charter shall in particular: ensure that every child accused of infringing the penal law shall be afforded legal and other appropriate assistance in the preparation and presentation of his defense."

Constitution of the Republic of Uganda, Chapter Four, Section 32 (1):

"Notwithstanding anything in this Constitution, the State shall take affirmative action in favour of groups marginalised on the basis of gender, age, disability or any other reason created by history, tradition or custom, for the purpose of redressing imbalances which exist against them."


Although these pieces of legislation champion the protection of vulnerable children, they have not been fully implemented. The Attorney General’s office of Uganda, however, is uniquely positioned to redress this imbalance, given its jurisdiction over Children Statute amendments. And it is no stretch to argue that the Uganda Law Society enjoys a well-earned influence over Attorney General decisions. If the Society agrees that accused children deserve adequate legal representation, might it consider endorsing a petition to the Attorney General’s office? The following proposals seem most urgent:

1. State-funded lawyers and probation officers must be assigned by the courts before the child’s initial hearing. This will enhance the pre-trial process of investigation and questioning. It will also permit advocates to intervene for children held beyond the legal remand period outlined by the Children Statute, which stipulates that children accused of capital offences must receive a hearing before six months and a trial before twelve, and that all other children must receive a trial within three months (See the Children Statute of 1996, Part X, Section 100 and 101).

2. Grade I magistrates must sit in the Family and Children's Courts (FCC’s). Section 94 and section 101 of the Children Statute might then be amended to give the FCC’s jurisdiction over capital cases. They currently read as follows:

The Children Statute 1996, Part X, Section 94:

"The FCC has the power to try all criminal cases against a child except those cases punishable with death, for example, murder, defilement or robbing a person with a deadly weapon such as a gun; cases where a child commits an offence with another person over eighteen years of age.

The Children Statute 1996, Part X, Section 101:

   "1) Where it appears to a court other than a Family and    Children Court, that a person charged before it with an offences is a child, the court shall remit the case to a Family and Children Court.

   2) Subsection (1) of this section does not apply where a child is charged with an offence punishable by death or the child is jointly charged with an adult."

Amending these provisions to permit Grade I magistrates in the FCC’s will eliminate delays associated with transferring a child's case from the FCC’s to the high courts.

3. Part IV of the Children Statue should include an amendment providing all children accused of a crime in the Kampala district with either a state-funded lawyer or a social worker. I have restricted this to the Kampala district because of the functional systems are in place elsewhere in Kenya. PT Kakama of Save the Children-UK, in fact, confirms that courts outside of Kampala are generally operational. The CHAIN-Link program at Masaka prison, for example, refuses to detain children regardless of the circumstances (Kakama, interview).

Implementation of this amendment would then require two simple steps. First, the FCC’s must open a file with the registrar’s office. Second, the registrar must expand its pool of state-recruited advocates. In response to the latter, administrators at the Legal Aid Clinic suggest their own law students might defend accused juveniles as a component of their legal education. In addition, Uganda is authorized to require six months of civil service from all law university graduates. Finally, UNICEF may allot funds for juvenile justice in its new country programme for the years 2001-2005 (Please refer to Makubuya and Kovara, draft UNICEF Country Programme 2001-2005: A Case for a Rights Based Approach to Programming, published for internal use). Considering these untapped resources, the State is well-empowered to offer widespread legal assistance to its most vulnerable community.

Unfortunately, advocacy organizations cannot mobilize funding until the Attorney General approves Children Statute modifications. Ms. Robin Namusisi of the Legal Aid Project confirmed in a personal interview that protection groups will be prepared to locate funds, itemize government spending, and pressure the Ministry of Justice only after permissive legislation is in place. The effects of his signature, however, will be immediate. If the above blueprint is followed, a call for better representation will not only relieve the burden shouldered by ill-prepared probation officers, but will also expose law students to the relevancy of social justice.

Obstacles to Implementation (top)
Critics of these proposals have voiced two objections.

First, constitutional revisions demand long parliamentary debates. Is it practical to request three separate amendments to judicial practice? In fact, the amendments proposed are not constitutional in nature. They modify instead the Children Statute of 1996 and need only the approval of the Attorney General. The petition of a large body of lawyers expedites this process.

Critics argue further that the State struggles to pay for adult legal defence. Are financial resources available for children? Contrary to popular opinion, the majority of imprisoned adults needing state-funded aid have in fact been adequately assisted. Both Ms. Diana Musoke of the Uganda Law Society and Her Worship Lydia Mugambe of the Buganda Road Courts supported this conclusion in a personal interview.

Furthermore, statutory representation for children eases the financial burden of overcrowded remand homes. Finally, private lawyers have been historically willing to assist children without inflated financial incentives. Mr. Jacob Oulanyah, for example, of Mao, Owor, Oulanyah and Co. Advocates, revealed that firms do not generally refuse child-oriented state-briefs (Oulanyah, interview). Recalling the availability of law students and graduates, the State must concede that funding constraints might be legitimately overcome.

One final note deserves mention. Sceptics inevitably describe Uganda’s penchant for delaying practical reform. But even if social gears turn slowly, advocates should not refrain from overseeing the legislative embodiment of fundamental human privileges. Above all, the Uganda Law Society must be thanked for its commitment to this principle. It also deserves thanks for receiving this letter, which closes with a simple observation. Neighboring countries, particularly Kenya, are currently revising their child-related legislation. Uganda’s position as an east African leader insures that it will be analyzed, if not mimicked. Have we set a responsible example? We are confident that Society members will continue to prioritize this question.

 

 

 

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