Competence and Compellability of Juvenile Witness in Tanzania

Law & Practice

By

Asherry Magalla

And

Marko Mokiwa
 Copyright Statement

No part of this publication may be reproduced or transmitted in any form or

by any means, electronic or mechanical, including photocopying, recording,
or any information storage and retrieval system, without permission in
writing from the publisher. Details on how to seek permission, further
information about the Publisher’s permissions and other arrangements can
be obtained through his email, asherryb.p.magalla@gmail.com or
marko.mokiwa@gmail.com
This paper and the individual contributions contained in it are protected
under copyright by the Publisher (other than as may be noted herein).
Copyright © 2017 Asherry Magalla & Marko Mokiwa. All rights
reserved

i
 Dedication

To My Son, Ryan Asherry Magalla

ii
 Acknowledgement

I acknowledge G.O.D. because I wouldn’t have everything and every

person surrounds me without HIM.

iii
Table of Contents
Copyright Statement......................................................................................................... i

Dedication ........................................................................................................................ii

Acknowledgement ........................................................................................................... iii

Table of Contents ................................................................................................................................... iii

Part I................................................................................................................................ 1

1.0 Introduction ........................................................................................................................................ 1

1.1 Competence and Compellability of Juvenile Witness ........................................................... 2

1.2 Conclusion........................................................................................................................................ 14

Part II............................................................................................................................. 15

The Assessment of Procedures on Competence, Compellability and Admissibility of

Juvenile Witness ........................................................................................................... 15

2.0 Introduction ...................................................................................................................................... 15

2.1 The Juvenile System in Tanzania ............................................................................................. 15

2.2 Admissibility of Juvenile Witness and the Administration of the Juvenile System in
Tanzania................................................................................................................................................... 16

2.3 The Juvenile Criminal Justice System and Witness Admissibility ................................... 17

2.3.1 Arrest, Police Custody and Detention .................................................................................. 17

2.3.2 Pre-trial Proceedings ............................................................................................................... 18

2.3.3 Trial ................................................................................................................................................. 18

2.3.4 Pre-sentencing .......................................................................................................................... 20

2.3.5 Juvenile Sentencing Structures.............................................................................................. 21

2.4 International Instruments ............................................................................................................. 22

2.4.1 Applicable International Human Rights Instruments ...................................................... 22

2.4.1.1 United Nations Convention on the Rights of the Child, 1989 .................................... 23

iv
2.4.1.2 The African Charter on the Rights and Welfare of the Child, 1990 ......................... 23

2.4.1.3 International Covenant on Civil and Political Rights, 1966 ........................................ 24

2.4.1.4 African Charter on Human and People`s Rights, 1981 ............................................... 25

2.5 Comparison between the Convention on the Rights of the Child and the African
Charter on the Rights and Welfare of the Child Regarding Provisions on Juvenile
System ...................................................................................................................................................... 25

2.6 Conclusion........................................................................................................................................ 29

Bibliography .................................................................................................................. 32

Text Books ............................................................................................................................................... 32

Journal and Articles ....................................................................................................... 33

Internet Sources ............................................................................................................ 34

World Wide Websites ........................................................................................................................... 34

Reports.......................................................................................................................... 34

Physical Report ...................................................................................................................................... 34

v
 Part I

Competence and Compellability of Juvenile Witness in Tanzania

Law & Practice

By
Digitally signed by Asherry


Magalla

Asherry Magalla DN: cn=Asherry Magalla

Asherry gn=Asherry Magalla c=Tanzania,

United Republic Of l=TZ
o=Independent Researcher
And ou=Independent Researcher

Magalla e=magallajr@gmail.com
Reason: I am the author of this

Marko Mokiwa document

Location: Dar Es
Salaam-Tanzania
Date: 2017-04-06 13:23+03:00

1.0 Introduction
In recent years, court system in Tanzania has been challenged by the increasing of

juvenile witnesses within court system of which this made it not only a very serious

problem on our society but also has put the court system under spotlight as to the way

on how its handling these juvenile witnesses.

The question is whether section 127(1) of the law of evidence act provided that, ―Every

person shall be competent to testify unless the court considers that he is incapable of

understanding the questions put to him or of giving rational answers to those questions

by reason of tender age, extreme old age, disease (whether of body or mind) or any


LL.B Degree Holder at the University of Iringa (Formerly known as Tumaini University Iringa
University College) 2009-2012, Masters Holder in Information, Communication and Technology
Law at the University of Iringa 2012-2013.Article and Legal Papers Author at academicians
websites. Book writer at Lambert Academic Publishing Company in German and DL2A – Buluu
Publishing Company in France. Contact details, magallajr@gmail.com.

LL.B Degree Holder at the University of Bagamoyo 2015-2016, Magistrate at Magistrate Court
of Kinondoni at Dar Es Salaam. Contact details marko.mokiwa@gmail.com.
1
other similar cause‖1 is observed. Under this section it provides the competent of a

person to testify before the court of law which is our key of our discussion basing on

juvenile witnesses and this is the aim and purposes of the discussion.

This discussion examines the nature and scope of administration of juvenile witnesses,

competency and compellability in justice in Tanzania by identifying the gap between the

law and practice. In so doing, this paper will be confined the admissibility of it surveying

appropriate local and international legal standards in the administration of juvenile

justice and how they are implemented in Tanzania.

1.1 Competence and Compellability of Juvenile Witness

There is very limited literature on competence and compellability of juvenile witness.

Despite the wide range of journals, articles, and textbooks relating to the The

Competency, compellability and admissibility of juvenile witnesses in Tanzania; there is

no clear single text books which could be relied upon by the author on the said subject

matter. As we about to discover from different sources, being authors, instruments of

law and case law, there is a general view that collaboration is a required element in

making juvenile evidence compellable and admissible.

JOHAN PRINSLOO, in his review on child psychology, author Johan Promsloo stated

that ―a Child development and memory are of relevance to court testimony. There

appears to be scant research pertaining to the competency of children as witnesses in

criminal proceedings. However, there is concern in both the legal and psychological

circles about the impact of the criminal justice system on child witnesses and victims.

1
The law of evidence Act 1967 R.E. 2002 s.127(1)
2
Interdisciplinary corroboration between the legal and socio-psychological domains is

important to supporting the rights of children as witnesses‖2.

CASHMORE, JUDY; BUSSEY, KAY Authors Cashmore and Bussey, addressed the

concerns about the difficulties faced by child witnesses in the legal system, which later

led to two major areas of reform in the Australian legal system, ―the relaxation of

competence and corroboration requirements, and the introduction of special procedures

and physical facilities to reduce the emotional pressures of testifying. Although the

implementation of these measures depends largely on judicial discretion, little is known

about judicial perceptions of child witnesses and about judicial acceptance of these

measures. Fifty magistrates and judges in New South Wales, Australia were asked via

interview or questionnaire about their beliefs, concerns, and practices related to child

witnesses. There was considerable variability in their views about the competence of

child witnesses and the need for special protective measures in court for these

witnesses. There were, however, more consensuses about those aspects of children's

ability to testify that give rise to judicial concerns about their competence. Children's

honesty was not at issue; they were generally regarded as being at least as honest as

adults, if not more so. They were, however, perceived as highly suggestible and

susceptible to the influence of others and prone to fantasy. These findings are

consistent with the findings of other studies, and provide a basis for judicial education in

relation to child witnesses‖. 3

2
Journal of Psychology in Africa;2010, Vol. 20 Issue 1, p125
3
Law & Human Behavior (Springer Science & Business Media B.V.);Jun1996, Vol. 20 Issue 3,
p313
3
ANNE GRAFFAM WALKER addresses the issue of competency of a witness during

court proceedings. She observes, ―When the competency of a witness is issues in a

court case, two of the tests that must be met are the capacity to understand the

questions propounded and the ability to make intelligent answers. There is no reciprocal

test that a questioner must meet, however, that measures his or her competency to ask

intelligent, easily understood, and unambiguous questions. For an adult witness, poorly

worded questions may simply be a nuisance, but for a child, they may be a potentially

serious source of miscommunication. In this analysis of the transcripts of one child's

testimony, some aspects of this problem are exposed by means of a linguistic analysis

of the questions asked and answers given. Three chief sources of communicative

mischief are shown to be;

(a) Age-inappropriate vocabulary,

(b) Complex syntax, and

(c) General ambiguity.

The child's legal competency is examined from the perspective of her linguistic and

costive competence, and some questions are raised about the criteria for determining

competency‖. 4

SHANKS, LAURIE Similarly, Laurie Shanks address and evaluates the same in his

article on juvenile witnesses, he evaluates the testimony of young children and the

inadequacy of the traditional hearing which is used to determine the competency of

children to testify. In addressing this, the article emphasizes the development of a

4
Law and Human Behavior Vol. 17, No. 1, Law, Psychology, and Children (Feb., 1993), pp. 59-
81
4
rational method for determining the ability of a child competency for reliable testimony. It

addresses the impact of improper questioning of children during the investigation of

alleged sexual abuse. It suggests expansion of the competency hearing, appointment of

a law guardian and an expert witness for fair trial and well-being of both children and the

accused. It informs that the factors must be noted in the competency hearing including

child's level of developmental maturity, ability to relate a series of events, and capacity

to distinguish reality from fantasy. 5

GILLESPIE, ALISDAIR A6 This thesis intends to critically examine how a child victim of

abuse is dealt with during a Crown Court trial. In trials for child abuse the victim would

normally be the main prosecution witness, and so undoubtedly would be called to give

evidence. However there has been substantial research conducted which has proved

that the child abuse causes the victim significant physical and psychological damage,

and this has led to a call for special protection to be given to victims during court

proceedings. Through analysing the main processes in a Crown Court trial, this thesis

will demonstrate that the criminal justice system has already provided special measures

to help child victims of abuse, but that these measures do not offer enough protection.

The thesis will critically examine recent legislative amendments, together with proposals

from established academics designed to improve the situation, to test whether they

would be helpful to a child victim, and whether they are feasible alternatives. Where the

conclusion is reached that either existing measures or new proposals would not help the

child, the thesis will propose possible alternative schemes. When talking about a Crown

5
Cleveland State Law Review;2010, Vol. 58 Issue 3, p575
6
Gillespie, Alisdair A. (2000) Child victims in the crown court. Masters thesis, Durham
University.
5
Court trial, the right of the defendant to due process must also be given prominent

attention. Throughout this thesis, it will be demonstrated that quite often new measures

designed to help a child victim may interfere with the defendant's rights. Where this

happens, an analysis of human rights laws will take place to examine whether the

measure remains viable, or whether as a result of the fundamental right to a fair trial,

the rights of the defendant must come first. This tension between the right of the

defendant and the right and needs of the child victim can be seen throughout the thesis,

and it necessarily limits the final solutions to the problems child victims face.

CHRISTINA S. MAGANGA7 This work has been built upon the administration of

juvenile justice in Tanzania. Within the title, the objective has been to examine the

nature and scope of administration of Juvenile Justice in Tanzania by identifying the gap

between the law and practice. Much emphasis has also been put to international

standards for the administration of juvenile justice. The formulation of this topic has

been prompted on the fat that Tanzania is undergoing changes whereby more

emphasis is put on human rights including the rights of children. Although some

Tanzanian laws and international standards on Administration
 of juvenile justice

provide guidance for the children’s rights, the practice of courts and other state organs

defeat the purpose.

PIENAAR, PETRUS JACOB JOHANNES. This investigation examined certain

problems and dilemmas in the juvenile court. Three problem areas were included: The

accusatorial - inquisitorial view as the main approach in the juvenile justice system. The

7
Christina s maganga,2005 Administration of Juvenile Justice In Tanzania A study of its
compatibility with International Norms and Standards, Lund University
6
rehabilitative - retributive approach and its application to juvenile offenders.

(Magistrates' sentencing objectives and their application to juvenile offenders.) The

possibility of the application of the pre-trial judicial investigation in the juvenile court. In

addition, a number of items were simultaneously included in the investigation and,

where applicable, are included in this report. The research questionnaires were

delivered by hand to a number of magistrates in the Eastern Cape, Orange Free State

and Transvaal. 8

TANZANIA WOMEN LAWYERS ASSOCIATION (TAWLA) convened a seminar in Dar

es Salaam on 26th July, 2003 where it was observed that, ―in order to improve the

situation of children in our courts in Tanzania, the best interest of the child should

always be made the primary consideration by all who have any dealing with child

delinquency.‖

Chief Justice Francis Nyalali, (as he then was), while opening a seminar for Magistrates

at The British Council Hall on 26th November 1996 said that;

―All of us, who are interested in justice for children and young persons and in the

prosperity of the country, must come up with ideas to improve the law relevant to

children and young offenders. I have expressed some of my own ideas particularly

concerning the criminal liability of parents and guardians recognition of a few defenses

8
Pienaar, Petrus Jacob Johannes,1993, Juvenile courts: problems and dilemmas, University of
Zululand institutional repositor
7
for children and young offenders, who are included or conducted into crime by adults,

including parents and guardians‖.9

10
BIRGIT L. AND THOMAS M. identified the basic rights of delinquent juveniles within

the criminal justice system. They approached the issue in a more humane way of

dealing with children in conflict with law. Their work aimed at ―minimizing the

dehumanizing effects of the law to juveniles in criminal adjudication process‖.

In our opinion is that, there is a need for the establishment of more juvenile court

system, and with appropriate implementation which is completely separate from the

adult criminal court system and that, instead of insisting on punitive measures against

juvenile delinquents, rehabilitation of these youngsters be guiding principle in the

administration of juvenile justice.

BERMA K. GOLDEWIJK AND BAS DE .G. FOREMAN11 they relate human rights to

basic human needs. To them, human rights concepts embody human dignity,

fundamental freedom and basic entitlements. They intimate that, violation of people’s

needs must be understood fundamentally as humiliation and dehumanization resulting

from the deprivation of these rights.

Here deprivation occurs against juvenile offenders when, many countries do not follow

the international standards concerning the rights of children especially here in Africa.

9
Clement J. and Nkonya C., ―Introducing Diversion in the Administration of Juvenile in
Tanzania‖ a journal in Tanzania Lawyer, Central Printing Works Ltd, Dar es Salaam, June 2005
issue.
10
Birgit L and Thomas M., (Eds.), ―Partners in Progress, Human Rights Reform and
Implementation‖, Danish Centre for Human Right, Copenhagen, 2002.
11
Goldewijk B and Foreman B., ―Where Needs Meet Rights: Economic, Social and Cultural
Rights in New Perspective‖, Wcc Publications, Geneva, 1999, pg 54
8
This gives us light in our study that many countries in Africa failed to fully comply with

the obligations imposed upon it by the UN Convention on Rights of the Children, which

include proper administration of juvenile justice system.

DANIEL, D. NDANDA NSEREKO12 stated that, ―in promoting human rights, the must

be observance of the law, particularly law that is consonant with the principles of

juvenile rights, is essential to the continued existence of civil society and to the societal

harmony.‖

Here is to say that, law prohibits the instruments of the law and order such as police to

oppress juveniles, to invade their rights, to perpetrate injustice, to spread terror, and to

instill fear among the juveniles.

The one way to promote human rights towards the juvenile is to give them their legal

rights. That, if a child is in conflict with the law, then he should be taken to a proper

court to face his trial, whereby he will be taken to a juvenile court13.

CLEMENT MASHAMBA AND KALEB LAMECK14 stated that, ―human rights are there

to ensure that human beings are respected and the dignity of the most vulnerable

people or group of people is actively and positively protected‖. Because of their age,

12
―Police, Human Rights and the Constitution: An Africa Perspective.‖ Human Rights Quartely,
1993. Pg.465.
13
Section 98 of the Law of the Child Act No. 21 of 2009 states, ―juvenile court have the power
to hear and determine criminal charges against a child, and applications relating to child care,
maintenance and protection‖.
14
Tanzania Gender Networking Program (TGNP), ―Economic, Social and Cultural rights for
sustainable livelihood in Tanzania,‖ Gender Festival Organization, Dar es Salaam, 10th - 13th
September, 2001.
9
juveniles are vulnerable to abuse, neglect and exploited and there is a need to be

protected against such threats.

In our opinion we can see that, in keeping with the objective of diverting juveniles away

from the criminal manners and directing them towards the community, special measures

for prevention of juvenile delinquency must be developed. Example of these measures

is for the parent to play their roles, as to give children care and special treatments which

are to give needs to the children and guidance.

JUSTICE MUNUO15 in the work, it was observed that,‖ there is the importance of

isolating Juvenile Offenders from adult criminals during trials as explained in the Law of

the Child Act16. The Lady Justice insists on the use of the remand homes which have

basically been established for Juveniles who are below the age of 16 years with a view

of protecting these juvenile offenders from being dragged into criminality by associating

with and learning bad habits from older criminals in the ordinary lockups, remands and

prisons‖.

In our opinion is that, many Juvenile Justice Personnel, particularly police, probation

officers, prosecutors, magistrates and prison officers are ignorant of the basic principles

of Juvenile Justice. This fact makes them give decisions or do acts, which violates the

15
Penal Institutions in Tanzania Law Reform Bulletin vol. 1 Number 1 & 2, 19877 ISSN 0856-
289X In the issue.
16
Section 102 of the Law of the Child Act No.21 of 2009 states, ―the police shall make
arrangements for preventing, so far as practicable, a child while in custody, from associating
with an adult charged with an offense unless he is a relative‖.
10
basic rights of juvenile offenders. For example, Children in prisons are kept together

with adults during the day, and during the night, the children sleep in the corridors17

ADAM STEPHENSON18 insisted that, ―juvenile courts have specific court rules and

states, making an argument that an adult criminal or other civil decision controls on

similar facts should be made with caution. Experience and review of the cases indicates

that the Arizona juvenile court process provides the juvenile judge with flexibility in

tailoring a solution to enable him or her to best help a juvenile. This flexibility stands in

contrast with the rigid sentencing guide-lines imposed by the legislature in the adult

system and is a reflection of the juvenile court`s goal of reformation and restitution

rather than retribution‖.

In our opinion is that, the aim of establishing juvenile courts is to grant juveniles legal

right and administer justice towards the juvenile, this in our country (Tanzania) is yet to

be developed. That these juvenile courts are supposed to act as, ―parens patriae”19,

wise parents, dispensing personalized, individual justice to needy children who seek

guidance and understanding rather than to act as a controlling agency to punish and

inflict fear to the youths.

17
Refer interview with Legal Human Rights Commissions and the Deputy Commissioner of
Prisons, at the Tanzania Prisons Department Headquarters in Dar es Salaam in the year 2006.
Available at www.humanrightsiniative.org/publications/police/tanzania_country_report_2006.
Retrieved on 29th/April/2014
18
Adam Stephenson, ―Arizona Juvenile Law Legal Research: Resources and Strategies‖,
(2009)
19
(guardian of the child)
11
GAINES K. MILLER20stated that, ―law professor Barry C. Feld thinks that juvenile court

has become obsolete and should be abolished, he believes that, the increasing of the

procedural formality and overriding punitive philosophy of the juvenile court has

transformed the juvenile court from its original model as a social service agency into a

deficient second rate criminal court that provides young people with neither positive

treatment nor criminal procedural justice‖.

In our opinion is that, in operation of juvenile court system in Tanzania has enshrined

the provisions under the Law of the Child Act. States if a child is charged in homicide

cases21 or in cases charged jointly between a child and an adult22, then the case is tried

in an ordinary court. But this do defeat the purpose of the juvenile courts, and

establishment of juvenile courts will have no meaning if in some circumstances a child is

charged in an ordinary court.

In essence, the juvenile justice proceedings must be distinguished from adult system of

criminal justice, and these differences should be evident in the adjudication process and

disposition of juvenile trial.

20
Miller G, ―Criminal Justice in action‖, Wadsworth Thomson Learning, United States, 2000. Pg
575
21
Section 103(2) of the Law of the Child Act No.21 of 2009 states, ―where a child is brought
before the juvenile court for any offence other than homicide, the case shall be disposed by the
court on that day‖.
22
Section 100(1) of the Law of the Child Act No.21 of 2009 states, ―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‖.

12
JUSTICE Y. V. CHANDRACHUD23 stated that, ―where a minor along with others was

being tried for murder by a Sessions Court, the High Court intervened, separated the

trial of minor from the rest, released him on bail and directed his case to be sent to the

juvenile court of the area.24

In our opinion, the case in Tanzania is quite different from India because the law of the

child25 in Tanzania elaborates that, when a child involves with an adult in the same

crime, then both of them will be charged jointly and tried in the same ordinary court.

This trying of a child in an ordinary court raises the question of what is the purpose of

establishing the juvenile courts while the children are tried in an ordinary court same as

adults. Here we can see the status of Tanzania do hinder the administration of justice

towards a child because the child is not provided legal rights to be tried in their

appropriate court which is juvenile court so established for juvenile crimes.

JAY S. ALBANESE26 stated that, ―because of their age, juveniles are treated

separately from adults in the justice process. Police departments often have officers

who deal exclusively with juveniles. Every state has a separate juvenile court system

that deal exclusively with youths. In addition, every state has separate facilities for the

incarceration of juvenile offenders. The legal status of juveniles also differs significantly

from that of adults in the criminal justice system. For example, cases involving motor

23
Chandrachud Y, and Manohar V, ―Ratalnlal & Dhirajlal, The Code of Criminal Procedure‖, 17 th
Edition, India, Wadhwa and Company Law Publishers, 2004. Pg 45.
24
Daljit Singh v. State of Punjab, 1992 CrLJ 1051 (P&H).
25
Section 100(1) of the Law of the Child Act No.21 of 2009 states, ―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‖.
26
Albanese J, ―Criminal justice‖, juvenile justice, 2nd Edition, Virginia Common Wealth
University, United States, 2002. Pg 505.
13
vehicle theft are handled quite different depending on the age of the offender. That, for

an adult the official charge would be motor vehicle theft, but in the case of the juvenile

the charge would be simply delinquency.‖

In our opinion is that, the children should be treated totally differently in the crimes

involving both adults and juveniles. Juveniles who break the law are actually victims of

improper care and treatment at home. This is to say juveniles who violates the law, it is

a sign that their parents could not or would not take care of them adequately and it is up

to the juvenile court to step up and act in the best interest of the child and thus to

prevent future misbehavior.

JOEL SAMAHA27 stated that; ―the juvenile court is a far more complex instrument than

outsiders imagine. It is law, and it is social work; it is the good parent and also the stern

parent; it is both formal and informal. It is concerned not only with the delinquent, but

also with the battered child, the runaway and many others.‖

In our opinion is that the author in this book tried to dig deep and see the complexity of

the work done by the juvenile courts. That, the court is there to trial cases of juvenile

providing them with justice but also the court play another role to the juvenile offender

as a parent, and the parent known role is to provide for its children rights and discipline,

which same applies to juvenile offenders and juvenile courts.

27
Samaha J, ―Criminal Justice, Juvenile Justice‖, 7th Edition, Thomson Wadsworth, United
States, 2006. Pg 540.
14
JOSEPH J. SENNA AND LARRY J. SIEGEL28 explained that; ―Today’s juvenile court

system embodies both rehabilitative and legalistic orientations; although the purpose of

the court is therapeutic, rather than punitive, children under its jurisdiction must be

accorded their constitutional rights. The administrative structure of the court revolves

around a diverse group of actors like a juvenile judge, the probation staff, social

workers, prosecutors, and defense attorneys. Thus, juvenile court functions socio

legally. It seeks to promote the rehabilitation of the child within the framework of

procedural due process‖.

In our opinion is that; a child until to be taken to juvenile court for a crime, that mean

he/she have committed an offence to be a juvenile offender. The juvenile court

jurisdiction is based on the nature of child’s action, that, if an action committed by a

child is a crime, then this conduct normally falls under juvenile court as the guardian of

the young offender to face justice. That, the purpose of the court is therapeutic and to

provide constitutional rights towards the child, and sometimes act as a punitive body of

law for deterrence.

CATHERINE WOOD,29 explained that; the Right to Diversion using the Convention of

the Rights to Turn Juvenile Justice Rights into reality. The author found that, diversion is

mandatory under international law. Diversion here “means the process of total removal

of children in conflict with the law from formal criminal justice process”. Advice was

given to the government in respective region, to have a serious look on the need for the

28
Senna J. and Siegel L., ―Introduction to Criminal Justice‖, Juvenile justice, 6 th Edition, West
Publishing Company, 1993. Pg. 663.
29
Catherine Wood, ―Diversion in South Africa: A review of policy and practice‖, 1990-2003,
Institute of Security Studies, 2003. Pg 29.
15
full swing operation of Juvenile Courts as a necessary component in their judicial

systems in order to try to solve the problem of Juvenile Delinquency.

1.2 Conclusion
Under international human rights law, young offenders have a right to properly

functioning diversion system. This directs us in our study to advice the government that,

diversion as an inter-sectorial system can be introduced, and it`s various programs

implemented, in Tanzania even without any specific law providing for it. It can also be

implemented, even without external support, although it is important to learn from other

countries such as South Africa, Malawi and Namibia, which has experience in

implementing various diversion programs.

16
 Part II

The Assessment of Procedures on Competence, Compellability and

Admissibility of Juvenile Witness

2.0 Introduction
There is a common observation of rights, on both domestic and international level that

all children have heightened vulnerability whether in detention from the position of an

accused or as a defence witness, they are entitled to enjoy all their legal and human

rights granted to adults but also entitled to additional services and protection in order to

ensure justice. This chapter provides assessment and analysis of the process and

procedures used by the legal system to establish competence, compellability and

admissibility of juvenile witness, including assessment of social services and the police

and court officials, on juvenile witness from both an accused and defendant position,

from arrest and detention, police handling to pre-trial, during the trial and pre-

sentencing. Further, the chapter will examine the rights of a juvenile witness, the

domestic and international instruments applicable, Tanzanian ratified human rights

instruments applicable.

2.1 The Juvenile System in Tanzania

The state of the juvenile justice system in Tanzania is that there are various

components to the system with separate ministerial mandates. For instance, children’s

welfare and protection is dealt with by the Ministry of Labour and Youths Development

and Ministry of Community. With this, come different instruments and laws to be

administered by autonomous courts.

17
There are tiers in the court system in Tanzania consisting of a court of appeal, a high

court and subordinate courts known as magistrates courts30 and ward tribunals.31 that

establishes juvenile courts. All trials that are to be heard at the level of district and

primary magistrate courts which concern persons under the age of twelve and under

sixteen years, with exception of cases where the child is charged jointly with an adult,

are to be heard under the juvenile court as established by The Child Act.32

Cases where there is a joint hearing, and the child is heard with an adult, the normal

procedures and processes of juvenile hearings are not implemented for instance, the

child’s age is not taken into account, nor is the hearing held in camera. In this instance

the juvenile will have to go through the same trial process as the adult.

2.2 Admissibility of Juvenile Witness and the Administration of the Juvenile

System in Tanzania
There are several laws, both penal and civil statutes that are specifically related to or

protect the interest of the children in Tanzania. Under the penal point of view it is the

Child Act which, apart from defining who is a child and a young person it provides the

procedure in which the juvenile justice should be administered upon the suspect and

convict who is a child or juvenile.

In this part therefore, the Child Act would be mostly referred to for the purpose of

examining how the juvenile justice is carried out or at least how it ought to be

administered in Tanzania. The idea is to describe the juvenile justice system functions
30
Established by Magistrates Courts Act, No2 of 1984

31
Established by ward Tribunals, Act No.7 of 1985

32
Section 2 of the CAP 13; G.N.No.640 of 1964 gives power to Chief Justice to extend
jurisdiction the high court when hearing juvenile cases

18
as practiced in the light of the domestic legislation.

As is well known the administration of juvenile criminal justice in the modern state is a

function of the state stemming from its assumption of sovereignty and exercised by

specialised agencies. In Tanzania too, the law presumes this to hold true and assigns

the task to essentially four bodies, the police, prosecutor, social welfare and the court.

The respective role of each body may be summarised as the investigation, prosecution,

counselling and disposition. The administration of juvenile criminal justice thus involves

all these bodies and their functions in relation to a juvenile criminal case. In analysing

the administration of juvenile criminal justice, as it relates to children in conflict with the

law, it would be useful to broadly categorise the major actions that are involved in this

process. These are commencement of the criminal proceedings and investigation

(including arrest, detention, age ascertainment, trial and sentence). Each of the sub-

section below presents the observations made during the assessment in relation to

each of these categories, after a description of the nature of offences in which children

actually are involved or suspected to be involved.

2.3 The Juvenile Criminal Justice System and Witness Admissibility

The juvenile criminal justice system is governed under the Children’s and Young

Person’s Act. And for the proceedings to be admissible, the presiding magistrate must

be satisfied that all the procedure and process are followed and water tight.

2.3.1 Arrest, Police Custody and Detention

Any child under the criminal justice system facing interrogation should be interrogated

under a friendly atmosphere free from intimidation and torture, under a child friendly

19
atmosphere, as the law demands. On arrest, the child must be kept away from any adult

suspects while on remand.

In the majority of cases, the first contact which a young adult offender makes with

authority is through the police. More attention and emphasis is being paid in the their

handling, because it is believed that it may play a decisive role as regards the offender’s

future33. Generally, the first role of the police in dealing with the young offender is that of

detection, investigation and arrest34.

Questioning and arresting juveniles presents special problems to police officers. There

are numerous shortfalls in the system suggesting, for starters, upon arrest, there are no

specific cell for children to hold them separate from adults, therefore police forces are

forced to place arrested children in female cells for their safety. It is only once they

reach the trial stage that children facilities are available.

Looking at the case of Haley v Ohio35, there were numerous issues the court had to

consider. It, the Court, stated, in considering whether a juvenile’s statement is voluntary,

the length of time in questioning, the child’s age, the time of day or night of questioning,

whether the child was fed and allowed to rest, and the overall police attitude toward the

child’s right are all extremely important factors. It is therefore vitally important that the

police are provided with the necessary resources, in order to not only enforce and

implement the law but also, in doing so, the right processes are followed.

To make a legal arrest, an officer must have probable cause to believe that an offence

33
United Nations Publications, The young adult offender, pg 52

34
Cliford E. Simmons & M.S, Gordon, Juvenile Justice in America. Pg 275
35
Haley v Ohio
20
took place and that the suspect is the guilty party. Probable cause is usually defined as

falling somewhere between a mere suspicious and absolute certainty. Post arrest,

where a juvenile is not granted bail, the law only provides for the procedure on the

detention of the juvenile after arrest and does not allow the juvenile to be detained in the

police station unless there is a reason to do so.

2.3.2 Pre-trial Proceedings

Pre-trial proceedings are normally held in order for the presiding magistrate to decide

issues of law before trial. With Juvenile witnesses, they are normally held to determine

whether the child is fully capable of giving evidence and whether the evidence given can

be admissible. Citizen witnesses are usually not called to testify at these hearings

however, the presiding magistrate may involve social services and other institutions in

addition to speaking to with the child concerned in order to make a determination, as we

have previously seen the the above case of Haley v Ohio. 36

2.3.3 Trial
Most juvenile trials are held before a magistrate, and in camera. A juvenile offender has

the same legal protections during trial as an adult charged with a similar crime. The

presiding magistrate will make a determination that the petition is "proven" or "not

proven." If the magistrate finds that the petition has been proven, the case proceeds to

a disposition hearing.

Where a case cannot be decided during the pre-trial stage, it will be brought for trial in

the juvenile court. An adjudication hearing is held to determine the merits of the petition

36
Ibid
21
claiming that a child is able to absorb the proceedings or in need of court supervision.

The magistrate is required to make a finding based on the evidence and arrive at a

judgment. The adjudication hearing is comparable to an adult trial. Rules of evidence in

adult criminal proceedings are generally applicable in juvenile court, and the standard of

proof used—beyond a reasonable doubt—is similar to that used in adult trials. Upon

interviewing Tanzania Women Lawyers Association (TAWLA) and the investigating

officer of Commission for Human Rights and Good Governance, there was evidence the

child witness were not been given counsel during pre-trial nor trial hence putting the

requirement for compellability in jeopardy. Should the presiding magistrate fail to be

convinced that procedures have not been followed, he will order procedures be followed

in order for Him to reach the judgment.

Most juvenile codes vary with regard to the basic requirements of due process and

fairness. Most juvenile courts have bifurcated hearings—that is, separate hearings for

adjudication and disposition (sentencing). At disposition hearings, evidence can be

submitted that reflects non legal factors, such as the child’s home life.

The juvenile law provides specific rules of procedure. These laws require that a written

petition be submitted to the court, ensure the right of a child to have an attorney, provide

that the adjudication proceedings be recorded, allow the petition to be amended, and

provide that a child’s plea be accepted. Where the child admits to the facts of the

petition, the court generally seeks assurance that the plea is voluntary. If plea

bargaining is used, prosecutors, defense counsel, and trial magistrate take steps to

ensure the fairness of such negotiations.

22
At the end of the adjudication hearing, most juvenile court statutes require the

magistrate to make a factual finding on the legal issues and evidence. In the criminal

court, this finding is normally a prelude to reaching a verdict. In the juvenile court,

however, the finding itself is the verdict—the case is resolved in one of three ways:

(a) The juvenile court magistrate makes a finding off act that the child or juvenile is

not competent or in need of supervision. 


(b) The juvenile court magistrate makes a finding off act that the juvenile is

competent or in need of supervision. 


(c) The juvenile court magistrate dismisses the case because of in sufficient or faulty

evidence. In some jurisdictions, informal alternatives are used, such as filing the

case with no further consequences or continuing the case without a finding for a

period of time such as six months. If the juvenile does not get into further

difficulty during that time, the case is dismissed. These alternatives involve no

determination of delinquency or noncriminal behavior. Because of the philosophy

of the juvenile court that emphasizes rehabilitation over punishment, a

delinquency finding is not the same thing as a criminal conviction. The disabilities

associated with conviction, such as disqualifications for employment or being

barred from military service, do not apply in an adjudication of delinquency.

2.3.4 Pre-sentencing
The Predisposition Report After the child has admitted to the allegations, or the

allegations have been proved in a trial, the magistrate normally orders the probation

department to complete a predisposition report. The predisposition report, which is

23
similar to the presentence report of the adult justice system, has a number of purposes:

(a) It helps the magistrate decide which disposition is best for the child.

(b) It aids the juvenile probation officer in developing treatment programs where


 the child is in need of counseling or community supervision.

(c) It helps the court develop a body of knowledge about the child that can aid others

in treating the child. Statutes make the predisposition report mandatory. Other

jurisdictions require the report only when there is a probability that the child will

be institutionalized. Some appellate courts have reversed orders institutionalizing

children where the juvenile court did not use a predisposition report in reaching

its decision. Access to predisposition reports is an important legal issue. In the

final section of the predisposition report, the probation department recommends

a disposition to the presiding magistrate. This is a critical aspect of the report

because it has been estimated that the court follows more than 90 percent of all

probation-department recommendations.

2.3.5 Juvenile Sentencing Structures

Upon sentencing, the presiding For most of the juvenile court’s history, disposition was

based on the presumed needs of the child. Although critics have challenged the

motivations of early reformers in championing rehabilitation, there is little questioning

that the rhetoric of the juvenile court has promoted that ideal. Tanzania has adopted this

ideal in their sentencing efforts, and juvenile courts usually insist that the purpose of

disposition must be rehabilitation and not punishment. Consequently, it is common for

juvenile courts to require magistrates to justify their sentencing decisions if it means that

24
juveniles are to be incarcerated in a residential treatment center: they must set forth in

writing the reasons for the placement, address the danger the child poses to society,

and explain why a less restrictive alternative has not been used.

2.4 International Instruments

The assessment in this part bases on the international instruments relating to juvenile

proceedings, which have been mention in the introduction. These international

instruments have provided for the procedures, authorities and even institutions specific

for children, this can be seen under Article 40(3) of the CRC 37 which requires states to

promote the establishment of procedures, authorities and institutions specifically

applicable to children alleged as, accused of, or recognized as having infringed the

criminal law. This requirement applies to the entirety of the juvenile justice system from

the initial contact with the juvenile justice system until all involvement with the system

ends.

As stated by the CRC Committee, ―[c]children differ from adults in their physical and

psychological development, and their emotional and educational needs. Such

differences constitute the basis for the lesser culpability of children in conflict with the

law.‖38 Children, owing to their age and stage of development, are inherently more

vulnerable than adults. They require specialized interventions, with specially trained

staff to respond to their unique needs.

37
United Nations Convention on the Rights of the Child, 1989.
38
UN Committee on the Rights of the Child, General Comment No. 10: Children’s rights in
juvenile justice, CRC/C/GC/10, 25 April 2007, para. 10.
25
2.4.1 Applicable International Human Rights Instruments
The mechanism relevant and ratified in Tanzania including the International Covenant

on Civil and Political Rights,39 Convention on the Rights of the Child,40 African Charter

on Human and People`s Rights41. African Charter on Rights and Welfare of the Child

signed in 1998 and ratified in 2003.

2.4.1.1 United Nations Convention on the Rights of the Child, 1989

The United Nations Convention on the Rights of the Child was unanimously adopted by

the United Nations General Assembly on 20th November 1989.42 The Convention has

become in a relatively short period of the time, the single most important international

instrument on the rights of the child. Partly because of its widespread ratification,43 it

has been made the primary international legal instrument on the rights of a child.

The standards of the convention are binding upon states, which have signed and ratified

it. The legal obligation to the state parties to the Convention on the Rights of a child is to

take actions to implement the provisions of the convention. Each state party is expected

to send a report after two years and then every five years to the committee on the rights

of the child, which acts as an international monitoring body on the Convention. The

pressure of the United Nations scrutiny has galvanized many state parties to enact

legislations and adopt legal measures.

39
Adopted by the United Nations General Assembly on 16th December and came into force from
23rd March 1976.
40
Adopted in 20th July 2009.
41
Adopted in 27th June 1981 and came into force in 21st October 1986.
42
General Assembly Resolution 44/25 of 20 November 1989, entered into force on 2
September 1990.
43
As of March 2003, it has been ratified by all members in the world except the two; the United
State of America which has signed but not ratified and Somalia which had no recognized
government able to ratify it.
26
Therefore, there is a need to review and reform laws, policies, programs, measures,

practice and related mechanism in practice into conformity with the obligation under

them to protect human rights.

2.4.1.2 The African Charter on the Rights and Welfare of the Child, 1990
The African Charter on the rights and Welfare of the Child was adopted by the

Organization of African Union in July 1990 and entered into force in 1998. It is the first

regional binding instrument that identifies the child as possessor of certain rights and

makes it possible for the child to assert those rights in domestic, judicial or

administrative proceedings.

The obligations of the state parties created under the Charter are firstly; to recognize

the rights, freedom duties enshrined in this Charter and to undertake the necessary

steps in accordance with their constitutional process and with the provisions of the

present Charter. Secondly, to adopt such legislative or other measures as may be

necessary for giving effect to the provisions of this charter.44 Due to the ratification of

the charter recently by Tanzania on February 2003, it is the obligation of the

government to promote and protect such rights.

2.4.1.3 International Covenant on Civil and Political Rights, 1966

This international Covenant in accordance with the principles proclaimed in the Charter

of the United Nations, recognizes inherent dignity, equal and inalienable rights of all

members of the human family being a foundation of freedom, justice and peace in the

world. It recognize the ideal of free human being enjoying civil and political freedom and

44
Article 1 of the African Charter on the rights and Welfare of the Child, 1990.
27
freedom from fear and want which can be achieved only if conditions are created

whereby everyone may enjoy his civil and political rights as well as economic, social

and cultural rights.

The Covenant in its Articles specifically provides for certain rights to juveniles,

especially in criminal proceedings. For example in cases of adjudication of justice a

juvenile person shall be separated from adults and brought as speedily as possible. 45

Such shows the Covenant recognize the right of the juvenile to be treated different from

an adult in any situation including when they are jointly accused. This goes further up to

the determination of the case by the juvenile offender that any judgment rendered in a

criminal case or in a suit at law shall be made public except where the interest of

juvenile persons otherwise requires or the proceedings concern matrimonial disputes or

the guardianship of children.46

Further the Covenant denies the death punishment to people below the age of eighteen

years, which in accordance to the Law of the Child Act will be a juvenile. Hence a death

penalty shall not be imposed to them (juveniles).47 The child also will have without any

discrimination as to race, color, sex, language religion, national or social origin, property

or birth, the right to such measures of protection as required by his status as a minor, on

the part of his family, society and the states.48

45
Article 10 (2) (b) of the International Covenant on Civil and political Rights, 1966.
46
Article 14 (1) of the International Covenant on Civil and political Rights, 1966.
47
Article 6 (5) of the International Covenant on Civil and political Rights, 1966.
48
Article 24 (1) of the International Covenant on Civil and political Rights, 1966.
28
2.4.1.4 African Charter on Human and People`s Rights, 1981
The Charter provides for various rights and freedom citizens should acquire in their

states, these are very important to be considered by states and contrary to that it will be

infringing international accepted rights. Further the Charter provide less about children`s

rights separately from normal rights, since they should be treated differently.

Article 18 (3)49 provides for elimination of discrimination and assurance of protection of

the rights of a child which are stipulated in International declarations and conventions.

Generally, the Charter has only provided for a child on that single provision, although all

other rights a child has been included him being a citizen just like other adults. Example

in Article 750 provides for right to be heard to every individual by competent institutions

responsible for adjudication of justice.

2.5 Comparison between the Convention on the Rights of the Child and the
African Charter on the Rights and Welfare of the Child Regarding Provisions on
Juvenile System
The African Charter was concluded and adopted after the Convention on the Rights of

the Child. First and foremost regarding to the enforcement, the charter entrusts the

functions of promotion and protection of its provisions to the Committee of Experts on

the Rights and Welfare of the Child51 this committee has wider powers than CRC`s, 52

not only does it has power to examine state reports, it has also power to receive

individual and interstate communications,53 and to conduct investigations.54 In case of

49
African Charter on Human and People`s Rights, 1981.
50
African Charter on Human and People`s Rights, 1981.
51
Article 32 of The African Charter on the rights and Welfare of the Child, 1990.
52
United Nations on Convention on the Rights of the Child.
53
Article 44 of The African Charter on the rights and Welfare of the Child, 1990.
29
violations of rights, any person, group or non-governmental organization recognized by

AU may lodge the Communication to the Committee.

In contrast, the only mandatory monitoring procedure provided for the implementation of

the rights provided in the Convention is state reporting.55 Nonetheless, this mechanism

is far from being effective, because of the failure of states to regularly report to the

committee on the right of the child. It is unfortunate that the committee on the rights of

the child cannot deal with individual complaints of violation of protected rights, a

procedure that would have given the committee a better opportunity to develop and

further elaborate the relevant Articles dealing with the administration of juvenile justice

and other provisions through its case law.56

Further, the definition of the concept of childhood, and therefore the persons to whom

the rights of African charter apply, is contained in Article 2. It is one of the most

advanced features of the charter that this definition, which is crucial for the proper

application of the Charter`s provisions, is very clear and does not allow for any

limitation. Every person under the age of 18 is regarded as a juvenile falling within the

scope of the Charter. The Charter protection is therefore more comprehensive and

inclusive. Whereas the United Convention restricts its application by including the

phrase ―unless the majority is attained earlier‖ unlike the United Convention, the Charter

applies to every person below the age of 18.

54
Article 45 The African Charter on the rights and Welfare of the Child, 1990.
55
Article 44 of the United Nations Convention on the Rights of the Child, 1989.
56
Articles 37, 39 and 40 of United Nations Convention on the Rights of the Child, 1989.
30
The best interest principle which is a fundamental principle that governs disputes

affecting children, with regards to human rights of juvenile, are underpinned by this

principle57, and must be interpreted in conjunction with this principle. Article 4 58 provides

that, in all actions concerning the child undertaken by any person or authority, the best

interest of the child shall be primary consideration. The Charter follows the Convention

on the Rights of the Child in codifying this principle.59 It, however, goes a step ahead of

the Convention on the Rights of the Child by stating that the best interest of the juvenile

must be the primary consideration in all actions concerning the juvenile. This offers

better protection for juveniles in prosecution since the best interest principle under the

Charter is overriding consideration. In contrast, the Convention on the Rights of the

Child regards the principle as a primary consideration meaning that other considerations

as equally determined.60

The most striking feature of the Charter in the field of juvenile justice is the omission of

the guarantee for the juveniles` liberty, the Charter does not guarantee for the child`s

liberty. While the Convention proclaims in its Article 37(b)61 that, “no child shall be

deprived of his or her liberty unlawfully or arbitrary.” The Charter is absolutely silent on

this point and does not repeat the provision or its substantive content in any of its

Articles. One may argue that the omission of such right in the Charter creates chances

of a child being deprived of his or her liberty unlawfully or arbitrarily.

57
The Best Interest Principle is the one which takes into account the low age of criminal
responsibility and suggests the necessity to look at the impact of criminalization on the child`s
future development.
58
African Charter on the Rights and Welfare of the Child, 1990.
59
Article 20 of African Charter on the Rights and Welfare of the Child, 1990.
60
Article 3 of the United Nations Convention on the Rights of the Child, 1989.
61
United Nations Convention on the Rights of the Child, 1989.
31
Moreover, Article 37 (a) and (b) of the Convention provides that arrest, detention, or

imprisonment of a child shall be used only as a last resort and for the shortest

appropriate period of time and life imprisonment without the possibility of release is

prohibited with regard to children. This is retrogressive considering that other

international human rights instruments expressly contains these provisions, 62 and

importance of protecting children from the adverse effects of criminal proceedings and

sanctions.

Despite omission of certain rights in the Charter, it still breaks new ground for the

protection of children’s rights in many aspects. First, the Charter requires that a criminal

case against a child must be determined as ―speedily as possible‖ which is much

stronger than the phrase used in the Convention on the Rights of the Child ―without

delay,‖ that under Article 40 (2) (b) (iii)63 every child alleged as or accused of having

infringed a penal law must be guaranteed to have the matter determined without delay

by a competent, independent and impartial authority or judicial body. This entails a pace

that is over and above that applicable to adults.

Besides the difference between the Convention and the Charter, there are however

similarities in guaranteeing certain rights of children. Notably, the right to have legal and

other appropriate assistance in the preparation and presentation of his or her defense,

the formulation of this right in the Charter is not qualified in any way and finds no

comparison in any other human rights instruments. African states will implement these

rights then they will have to develop standards for emulating the legal instruments.

62
For example Articles 37(b) and 40(3) (b) of the CRC and Article 11 of the Beijing Rules.
63
United Nations Convention on the Rights of the Child, 1989.
32
Another similarity is the right to have free assistance of an interpreter if he or she cannot

understand the language of the court and right to privacy, this can be seen under Article

40 (2) (b) (vi) and (vii).64

Like the Convention, the Charter is predicted on four cardinal principles which are

meant to help the interpretation of the Charter as a whole and thereby guide National

Programs of implementation. These principles are Non-discrimination,65 Best interest of

the child,66 Right to life67 and development and views of the child.68

The most important right found in both the Convention and the Charter is the right of

children to be separated from adults in detention or imprisonment. Article 17(2) (b)69

provides for the separation of imprisoned or detained children from imprisoned or

detained adults. Unlike Article 37(c),70 the Convention does not allow for the exceptions

where it would be for the best interest of the child to remain with adults. This could be

interpreted in the way that, even in cases where a child has been imprisoned and has

family members serving a sentence in the same prison, it would not be allowed to

confine them together.

Therefore, both instruments prohibit inhuman or degrading treatment or punishment of

children, such may include combining both a child and an adult together before, during

or after the trial for any reason whatsoever. It is important to know that no justification or

64
United Nations Convention on the Rights of the Child, 1989.
65
Article 3 of the African Charter on the Rights and Welfare of the Child, 1990.
66
Article 4 of the African Charter on the Rights and Welfare of the Child, 1990.
67
On survival and development, which provides for the right to life under Article 5 of the African
Charter on the Rights and Welfare of the Child, 1990.
68
Article 5 (2) of the African Charter on the Rights and Welfare of the Child, 1990.
69
African Charter on the Rights and Welfare of the Child, 1990.
70
United Nations Convention on the Rights of the Child, 1989.
33
extenuating circumstances that the precise provisions of the Charter contains, in

relation to juvenile justice as concerned in Article 17 71 that Every child accused or found

guilty of having broken the law should receive special treatment, and no child who is

imprisoned or should be tortured or otherwise mistreated. The charter is largely’ based

on blueprint of the Convention.

2.6 Conclusion
The juvenile justice system clearly has implementation challenges in the processes it

uses to determine whether a child is not only competent in giving evidence but the

evidence given is compellable and admissible. Institutionally, the interaction between

the child and from police to social services and the court system has shown to be

challenged with resources to enable these institutions to enforce and implement the law

as required. For instance, from Human Rights perspective, the rights of a child are

withdrawn when a child is being prosecuted with an adult. This in turn causes various

problems, one being the accused child or child witness is not able to give evidence

freely, from fear and intimidation. At the same time the presiding magistrate or judge is

required to both implement the relevant laws in relation to the child’s age and also take

into account that the laws and procedures in previous institutional contact have been

addressed. This tends to highlight conflict within the law and procedural implementation.

Similarly, where a child suspect is arrested, there are no resources within the police

forces to accommodate the child and ensure that the law is fulfilled. Lack of holding

cells within police stations for children is one clear example.

71
African Charter on the Rights and Welfare of the Child, 1990.
34
A number of other laws govern different aspects of the criminal justice system. These

laws regulate criminal justice institutions (the police service,72 prosecution service73 and

judiciary74); establish and regulate Courts;75 govern sentencing;76 and regulate the

provision of legal aid.77 However these laws have left an important part of juvenile

proceedings in criminal offences, as they should provide separate procedures or should

include special provisions relating to juvenile offenders differently from adults offenders,

as their treatment in criminal justice should be different and separate from those of

adults

A number of other international instruments apply to children in conflict with the law.

These include the UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh

Guidelines) 1990, the UN Standard Minimum Rules on the Administration of Juvenile

Justice (Beijing Rules) 1985, the UN Rules for the Protection of Juveniles Deprived of

their Liberty (Havana Rules) 1990, and the Vienna Guidelines for Action on Children in

the Criminal Justice System 1997. While, in contrast to the Convention on the Rights of

the Child, these instruments are binding on Governments when ratified, they do

evidence an international commitment to abide by their provisions, and they elaborate

72
Police Force and Auxiliary Services Act Cap 322.
73
National Prosecution Service Act 2008; Office of the Attorney General (Discharge of Duties)
Act 2005.
74
Judicial Service Act 2005; However, it should be noted that the Judicial Services Act, 2005, is
likely to be repealed or amended by the Judicial Administration Act, 2010 which has been
passed by Parliament.
75
Judicature and Application of Laws Act 1966 (jurisdiction of the High Court), Appellate
Jurisdiction Act 1979 (which governs appeals to the Court of Appeal), Magistrates’ Court Act
1984 (establishment, constitution and jurisdiction of the Magistrates’ Courts), and Evidence Act
1967 (regulates the submission of evidence in criminal proceedings, other than in Primary
Courts).
76
Community Service Act 2004; Probation of Offenders Act 1947.
77
Legal Aid (Criminal Proceedings) Act 1992.
35
the obligations of Governments set out in the Convention on the Rights of the Child to

create a child rights compliant juvenile justice system, and ensure that the rights of

children in conflict with the law are protected.78

Other international instruments that apply to all persons in the criminal justice system

when they are arrested, tried, sentenced and detained, will also apply to children. The

International Covenant on Civil and Political Rights (ICCPR), is a key instrument, and

contains rights to fair trial, prohibitions on illegal and arbitrary detention, provisions on

treatment in detention and a prohibition on torture and cruel, inhuman or degrading

treatment or punishment.79

78
Anderson., K, ―Analysis of the Situation of Children in Conflict with the Law in Tanzania‖,
Coram Children`s Legal Center, United Kingdom, January 2012. PG. 41.
79
Article 10(b) and (c), of the ICCPR which provide that: ―accused juvenile persons shall be
separated from adults and brought as speedily as possible for adjudication‖ and ―juvenile
offenders shall be segregated from adults and be accorded treatment appropriate to their age
and legal status.‖
36
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40