ARBA MINCH UNIVERSITY

SCHOOL OF POST GRADUATE

SCHOOL OF LAW

Diversion of Child in Conflict with the Law in the Ethiopian Criminal Justice System: A Lesson
from the Experience of the Kenyan and New Zealand Legal frameworks.

A Thesis submitted in Partial Fulfillment of the Requirement for Degree of Master of Laws (LL.M) in
Human Rights and Justice Study.

By: Aklilu Desta Labiso

ID NO PSLS/002/2011

Advisor: Tamene Ena Heliso(LL.B,LL.M,Assi.Professor for criminal justice)

May, 2023

Arba Minch, Ethiopia

i
 Approval Sheet of Thesis

School of Post Graduate Studies

Arba Minch University

As thesis research advisor, I hereby certify that I have read and evaluated this thesis prepared under my
guidance by Aklilu Desta entitled 'Diversion of Child in Conflict with the Law in the Ethiopian Criminal
Justice System: A Lesson from the Experience of the Kenyan and New Zealand Legal frameworks'. I
recommend that it be submitted as fulfilling the thesis requirements.

Tamene Ena Heliso (Assi.Professor for criminal justice)----------------------------------

Advisor signature

As members of the board of examiners of the masters of laws (LL.M) thesis open defense examination,
we certify that we have read and evaluated the thesis prepared by Aklilu Desta and examined the
candidate. We recommend that the thesis be accepted as fulfilling the thesis requirements for the award of
degree of master s of law (LL.M) in human rights and justice study.

-------------------------- ---------------------------- -----------------------

Chairperson signature Date

------------------------- ------------------------------ ------------------------

Internal examiner signature Date

---------------------------- -------------------------------- ----------------------

External examiner signature Date

ii
 Declaration

I,AkliluDestaLabiso, hereby declare that this thesis as entitled ‘Diversion of Child in Conflict with the
Law in the Ethiopian Criminal Justice System: A Lesson from the Experience of the Kenyan and New
Zealand Legal frameworks’ to the best of my knowledge is my own original work which has not been
presented for any degree or examination in other university and the sources have been duly acknowledged
and cited as well.

Signature---------------------------------------- -------------------------------

Aklilu DestaLabiso Date

Signature ---------------------------------------- ---------------------------------

TameneEnaHeliso(Assi.Professor) Date

iii
 Dedication

This piece of work is heartily dedicated to my beloved Son and Daughter Ferdyawkal and Feteh
respectively. I also dedicate this book to my wife TsigeredaThomas for her care and support that she has
tirelessly offered me.

iv
 Acknowledgement

I would like to praise GOD Almighty for the uncountable eternal potential and continuous presence in my
work. Had it not been for your help, I could not be able to accomplish my work with little of my ability.
You are my strength and refuge forever.

Next, I wish to express my deep gratitude and sincere appreciation to my advisor Tamene Ena
Heliso(Assi.Professor) for his unreserved supervision, encouragement and continuous feedbacks from the
beginning to the end of the thesis. Had it not been for your professional guidance, constructive advice,
and critical comments, this work would not be able to be set in the current format.

I would like to express my deep appreciation and gratitude for south nation’s nationalities and people’s
regional state Supreme Court for the educational opportunity, material and moral support in the course of
this education and the research work as a whole.

My utmost gratitude goes to my wife TsigeredaThomas for her overall assistance and moral support from
the beginning to the end of my study.

v
 Abstract

The involvement of juveniles in the formal criminal justice system would make them subject to
attitudinal, psychological and other social trauma. With a view to avoid such stigmatization, various
countries across the globe have developed systems of juvenile diversion in their legal and policy
frameworks inter-alia. Diversion, which is also called the channeling of children away from formal
criminal justice system in to alternatives other than formal criminal proceedings, had already become
an integral aspect of all child rights based juvenile justice systems through the Child Rights Convention
and other binding and non-binding international and regional human rights instruments dealing with
juvenile offenders. This research entitled 'Diversion of Child in Conflict with Law in the Ethiopian
Criminal Justice System: A Lesson from Experience of the Kenyan and New Zealand Legal frameworks'
is aimed at drawing lessons from the experience of these purposively selected countries through a
doctrinal research methodology .Through this methodology a systematic analysis of statutory
provisions, cases and legal principles of those selected countries as a primary sources and secondary
sources such as books, journal articles and etc were consulted. The close scrutiny into the experience of
the Kenyan and New Zealand‘s legal and institutional frameworks regarding juvenile diversion has
revealed that they have a well-founded legal framework for the juvenile diversion starting from giving
the constitutional base to the matter up to the special juvenile diversion laws, namely, the Children Act,
national prosecution policy (ODDPP) which is meant for dealing with child offenders with various
diversion measures that expressly provide for giving due attention to best interest of the child, using
detention as a last resort for child in conflict with the law and the Family Group Conferencing schemes
other alternative dispute resolution measures as a diversion options. Moreover, they have fairly good
institutional set up in which various stakeholders including their respective roles and responsibilities
are provided in detail. The study has also disclosed that Ethiopian legal and institutional frameworks
regarding juvenile diversion is at infant stage in areas of special legal framework, institutional and
roles assignment, incorporation of core diversion principles, adoption of the various diversion options
even though Ethiopia has ratified the CRC and makes it part of domestic laws of the land. Finally, this
study has recommends for: inclusion of juvenile diversion to the constitutional framework, specifying
nature and types crime to which diversion is allowed or not under the draft code, adopting family group
conferencing and its structure and other alternative dispute resolution measures as diversion options,
enacting a separate juvenile justice act governing child offenders and having an express provision to the
centrality of juvenile diversion needs to be adopted in Ethiopian juvenile justice legislations as best
lessons for the Ethiopian juvenile diversion framework.
Key Words: Criminal Justice System, Juvenile Diversion, child in conflict with the law, Legal
framework, Ethiopia, Kenya and New Zealand.

vi
 Table of Contents

Approval Sheet of Thesis ............................................................................................................................................. ii

Declaration .................................................................................................................................................................. iii
Dedication ................................................................................................................................................................... iv
Acknowledgement ........................................................................................................................................................ v
Abstract ....................................................................................................................................................................... vi
Table of Contents ....................................................................................................................................................... vii
List of Abbreviations and Acronyms ........................................................................................................................... x
CHAPTER ONE: INTRODUCTION .......................................................................................................................... 1
1.1 Background to the Study .................................................................................................................................... 1
1.2 Statement of the Problem ................................................................................................................................... 5
1.3 Objectives of the study ....................................................................................................................................... 6
1.3.1 General Objectives .......................................................................................................... 6

1.3.2 Specific Objectives ......................................................................................................... 6

1.4. Research Questions ........................................................................................................................................... 7

1.4.1. General Research Question ............................................................................................ 7

1.4.2 Specific Research Questions ........................................................................................... 7

1.5 Significance of the study .................................................................................................................................... 7

1.6 Delimitations of the study .................................................................................................................................. 7
1.7. Limitation of the Study ...................................................................................................................................... 8
1.8 The Research Methodology ................................................................................................................................ 8
1.8.1 The Study Design ............................................................................................................ 8

1.8.2. Sources of Data Collection ............................................................................................ 8

1.8.3. Method of Analysis ........................................................................................................ 9

1.9. Organization of the Chapters ............................................................................................................................. 9

CHAPTER TWO: THE THEORETICAL AND LEGAL FOUNDATION FOR JUVENILE DIVERSION IN THE
CRIMINAL JUSTICE SYSTEM ...............................................................................................................................10
2.1 Introduction ......................................................................................................................................................10
2.2 The Conceptual and Theoretical Background of Juvenile Diversion ...............................................................11
2.2.1 The Conceptual Background......................................................................................... 11

2.2.3. Theoretical Foundations of Juvenile Diversion ........................................................... 12

2.2.4 Diversion from the Perspective of Juvenile Justice History ......................................... 14

vii
 2.5 Juvenile Diversion under the International and Regional Child Rights Conventions and Soft Laws ..............18
2.5.1 The Convention on the Rights of the child (CRC), 1989 ............................................. 18

2.5.2 The African Charter on the Rights and Welfare of the Child (ACRWC), 1990 ........... 19

2.5.3 Juvenile Diversion under the Non-Binding International and Regional Child Rights Instruments
................................................................................................................................................ 20

2.6 Diversion from the Perspective of Core Juvenile Justice Principles ................................................................25
2.6.1 Non-discrimination ....................................................................................................... 25

2.6.2 Best interests of the Child ............................................................................................. 25

2.6.3 Life, Survival and Development as well as Dignity ..................................................... 26

2.6.4 Diversion as first Resort and Detention as a Measure of Last Resort........................... 26

2.6.5 Principles of Child Participation and the Right to be heard.......................................... 27

2.7 Diversion in the Context of African Juvenile Justice Systems .........................................................................27

2.7.1 Juvenile Diversion under the Laws of some Selected African Countries in General ... 27

2.7.2 Juvenile Diversion in the New Zealand Juvenile Justice Systems ............................... 29

CHAPTER THREE: A LESSON FROM THE EXPERIENCE OF THE KENYAN AND NEW ZEALAND
LEGAL FRAMEWORKS FOR THE DIVERSION OF CHILDREN IN CONFLICT WITH THE LAW IN THE
ETHIOPIAN CRIMINAL JUSTICE SYSTEM .........................................................................................................34
3.1 Introduction ......................................................................................................................................................34
3.2 Juvenile Justice Laws and the Place for Diversion in Ethiopia, Kenya and New Zealand ..............................35
3.2.1 The Ethiopian Juvenile Justice Legal Framework at a Glance ..................................... 35

3.2.2. The Kenyan Juvenile Justice Laws and Juvenile Diversion .........................................................................42
3.2.3 The New Zealand Juvenile Justice Laws and Diversion ...............................................................................45
3.3Juvenile Diversion under the Laws of the Ethiopia, Kenya and New Zealand .................................................47
3.3.1. The Roles of Justice Organs and other Stake Holders in Diversion ............................ 48

3.3.3. Purpose and Minimum Requirements for Diversion ................................................... 64

3.3.4. Post-Diversion Procedures ........................................................................................... 67

3.3.5. Mechanisms of Legal Assistance as a precondition to Juvenile Diversion ................. 68

3.3.6. The Place of Diversion under the Juvenile Justice System.......................................... 69

3.3.7 The Need to Have a Specific and Separate Juvenile Diversion Laws .......................... 71

CHAPTER FOUR: CONCLUSION AND RECOMMENDATIONS .......................................................................72

4.1 Conclusion ........................................................................................................................................................72
viii
 4.2 Recommendations ............................................................................................................................................74
REFERENCES AND BIBLIOGRAPHY...................................................................................................................76

ix
 List of Abbreviations and Acronyms

ACRWC African Charter on Rights and Welfare of the Child

ACPF African Child Policy Forum

CBCC Community Based Correction Centers

CBCP Community Based Correction Program

CICL Child in Conflict with the Law

CPU Child Protection Units

CRBA Child Rights Based Approach

CYPFA Children, Young Persons, and Their Families Act 1989

CRC Convention on Rights of the Children

UDHR Universal Declaration of Human Rights

FDRE Federal Democratic Republic of Ethiopia

FSCE Forum for Sustainable Child Empowerment

KLRC& CLAN Kenya Law Reform Commission and the Children’s Legal Action Network

NGOS Non-Governmental Organizations

UN United Nations

UNICEF United Nations international child emergency fund

UNODC United Nation’s Office on Drugs and Crime

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 CHAPTER ONE: INTRODUCTION

1.1 Background to the Study

Children require special safeguards and care, including suitable legal assurance against all forms of
discrimination, abuse, mishandling, or disregard due to their physical and mental immaturity. 1 Over
the past centuries, a belief in the agreeability of assurance of children through rehabilitation thought
as to their vulnerability up on their expulsion from guardians and community, and their mental and
physiological contrasts from adults, necessitated the discussion by juvenile justice frameworks on the
need for special protection for juveniles on the basis of their age.2

Starting from the Universal Declaration of Human Rights (UDHR),3which began to entitle children
as creatures subject to extraordinary care and help,4since then, several other international agreements
recognized this protection as essential attribute of juvenile’s respect required from states parties to
ensure. Later on, a number of national criminal justice systems have incorporated rights of juveniles
within the criminal justice system. For example, the 1960s within the (US) the vocabulary of juvenile
justice that, diversion, an instrument of directing children in conflict with the law away from the
formal criminal justice system to non-judicial rehabilitative and re-integrative programming
mechanisms; 5 even though there's adequate evidence to prosecute them, 6 first found its base. 7
Afterward in 1985, four years before the coming to the appearance of the Child Right Convention
(CRC), the universal community laid the premise for the establishment of a mechanism for the
alternative (diversionary) measures to judicial proceedings within the ambit of juvenile justice
framework under the Beijing rules.8

Universally, it may be a well-established reality that most of those crimes committed by juveniles
fall within the category of minor offenses that require decriminalization or diversion where

1
United Nations Convention on the rights of the child, adopted and opened for signature, ratification and accession by
UN General Assembly Resolution 44/25 of 20 November 1989,and entered into force 2 Sep, 1990 ,para.9.
2
Safran.Brian j. “juvenile justice policy from the perspective of international human rights”, Cardozo Law Review
de.novo. (2012): 304.a
3
The Universal Declaration of Human Rights, adopted and proclaimed by the UN General Assembly Resolution 217A
(111) on 10th December, 1948.
4
Ibid Art.25(2)
5
Antoinette Vermooten, Juvenile sentence and intervention options in south Africa.MA Thesis University of Kwazulu-
Natal (2005): 25
6
Ibid.
7
Odongo Godfrey Odhiambo. The domestication of international law standards on the rights of the child with specific
reference to juvenile justice in the African context.Phd dissertation. University of western cape (2005) :194
8
United Nations standard minimum rules for the administration of juvenile justice(‘’The Beijing Rules’’), adopted by UN
General Assembly Resolution 40/33of 29 November 1985.
1
appropriate instead of resorting to formal criminal proceedings.9 To this end following Article 11 of
the Beijing Rules, the CRC had come up with a provision for dealing with children in conflict with
the law without resorting to judicial proceedings in appropriate and desirable circumstances
regarding the human rights and legal safeguards10 and entitled them for a treatment in a way reliable
with the advancement of their sense of respect and self-worth. In like manner, the CRC has given
for such measures to be undertaken taking into consideration their age, desirability of advancing
reintegration, and the child’s assuming a constructive role in society.11 The CRC, in this manner,
obliges states parties to take measures without resorting to judicial proceedings an integral part of
their juvenile justice system.12

Diversion provides benefits to many individuals and the community that addresses the needs of
crime victims, the offender, and the community. The benefits for victims may include: financial
restitution for their loss; a written or in-person apology; the opportunity to voice their views and
participate in a restorative justice process; learning about the circumstances surrounding the offense;
and knowledge of the effectiveness of Diversion in preventing future criminal behavior. It has also
benefit for offenders which include: avoiding a criminal conviction record; making amends to
victims and the community in a meaningful way; helping to decide how to repair the harm they’ve
done through this process, people can really learn from the experience and are less likely to get in
trouble with the law again.

In Ethiopia, where various forms of customary dispute resolution mechanism of mediation whose
characteristics fit with the restorative justice principles exist, the laws constituting juvenile justice
administration suffer from absence of provisions and options for diversion.

The 2004 Criminal Code of Ethiopia does not contain clear provisions that permit for application of
diversion measures to channel Children in conflict with the law (CICL) away from judicial
proceedings. However, the Criminal Code gives discretionary power to the court to choose on a case
by case basis and impose alternative measures for CICL between the age of 9 and 15 who are being
formally handled through the criminal justice system. Article 53 (2) of the Code particularly states
that these measures might not apply unless the criminal is convicted, making them only accessible at
the sentencing and punishment stage. At this stage the Criminal Code provides different alternatives
, namely, admission to a healing institution (article 158); supervised education (article 159);

9
Committee on the rights of child, General comment No.10-childrens rights in juvenile justice,
CRC/C/GC/10,2007,para.24.
10
Convention on the rights of the child, art .40.
11
Ibid , arts 37 and 40
12
Ibid, art, 40(3) (b).
2
condemn or censure (article 160); school or home arrest (article161); admission to corrective
institution (article 162); fines (article 167); and conditional release/ probation (article 168(3)). In
cases where the measures under article 158-162 fail to bring about the intended outcomes, the court
may sentence the young offender to one of the penalties set under article 167 and 168 (i.e. fines,
imprisonment in a correction institution). Thus, deprivation of liberty and fines should only be used
as measure of last resort.13

Ethiopia’s effort in being a signatory to the CRC, ACRWC and other different international norms,
rules, standards and guidelines governing juvenile justice, is an indicator of its adherence to protect
the rights of children through diversion both in legislation and practices. However, with regard to
diversion of juveniles, there is no law currently in force providing for the police, the prosecution or
courts that gives them power to make juveniles to have resort to those alternative measures out of the
formal criminal justice process.
A good progress in the criminal justice reform process in Ethiopian juvenile justice is the criminal
justice policy of 2011that first marked the recognition for juvenile diversion. It provided a level
ground for the recognition of different diversionary alternatives for children in conflict with the law
through subsequent laws. It is this policy that enabled Ethiopia to come up with the ongoing FDRE
Draft Criminal Procedure and evidence Code recently. Even though the FDRE Draft Criminal
Procedure and Evidence Code came up with different forms of mechanisms for juvenile diversion, it
still did not become effective.

Kenya is also a signatory to Convention on the Rights of the Child (CRC) and African Charter on the
Rights and welfare of the Child (ACRWC) to which Ethiopia adheres. Delivering of Juvenile Justice
in Kenya is secured on existing pertinent legislation among them being the Criminal Procedure
Code, the Penal Code, and other statutes which particularly touch on children.14 The organizations
implementing legislation include the Police, Courts, Probation, Office of Children’s Administrations,
Jails, and the Office of the Public Prosecution. Whereas juvenile justice has experienced tremendous
changes since the enactment of the Children’s Act in 2001, there's still a request for greater
adequacy within the way of progressing services by the magistrates , probation officers , children
officers, prison officers, and police officers, all who influence the predicament of children within
the justice process. The newly enacted children act no.29/2022 make provision for children rights,
parental responsibility, alternative care of children including guardianship, foster care placement and
adoption; to make provision for care and protection of children and children in conflict with the law.

13
Messele R. ‘Report on Diversion and Alternatives to Detention for Children in Conflict with the Law in Ethiopia’.
Addis Ababa, Ethiopia (unpublished report). (2011) : 11
14
Okech, Clement.”The juvenile justice in Kenya”.Growth, System and Structures. Resource Material Series No. 101:8
3
A vital element of New Zealand’s youth justice system is diversionary processes carried out on
different levels. The new system under the CYPFA underlines diversion from courts and custody,
and, while holding young persons responsible, facilitates the construction of responses that aim to
provide for the rehabilitation and reintegration of young people, support for their families, which
take into consideration the needs of victims.15

Under the current youth justice system set up under the CYPFA 1989, the great majority of young
offenders are dealt with outside the formal court system by way of diversion or an informal justice
process including extensive participation by the family, the community, and the victim.16

The CYPFA17 was passed to reform the law relating to children and young persons who require care
or assurance or who offend against the law. Accordingly, the new legislation set up a few special
goals and put a comprehensive set of common standards that administer both state intercession
within the lives of children and young people and the administration of the youth justice system’ into
statutory form. 18 Unlike the Ethiopian case, Kenya and New Zealand have gone in recognizing
different forms of diversions giving them a room under a comprehensive and separate juvenile
justice law.

Unlike Kenya and New Zealand, Ethiopia does not have a juvenile justice law in force that governs
juvenile diversion. But legal reform is on the way through a comprehensive draft criminal procedure
code. Most principles and mechanisms for juvenile diversion have been assessed under the FDRE
criminal justice policy and the draft criminal procedure and evidence code.

This research work believe that there are still various gaps under the juvenile diversion legal
framework in Ethiopia opted to take a lesson from the Kenyan and New Zealand juvenile justice
laws. With this in mind, the research work would like to pin those gaps that would appear through
sorts of dimensions.

From the experience of Kenya and New Zealand, therefore, it is possible to pin point how this
country treat children in conflict with the law in the juvenile justice system; how it programmed
juvenile diversion under the legislative framework; what will the Ethiopian legal progress through
the criminal justice policy of 2011 and the FDRE Criminal Procedure Code have gone in effectively

15
Ministry of Justice, http://www.justice.govt.nz/youth/aboutyj.html at 6 June 2006; Breakdown of data for the period
August 2000 to May 2001, gathered and evaluated by G Maxwell, J Robertson and T Anderson, Police Youth Diversion
– Final Report (2002), p. 42.
16
W Young, World Factbook of Criminal Justice Systems, http://www.ojp.usdoj.gov/ bjs/pub/ascii/wfbcjnew.txt at (9 Dec
ember 2006).
17
New Zealand.Children, Young Persons, and Their Families Act, 1989.
18
Gabrielle, Maxwell, et al, Achieving Effective Outcomes in Youth Justice: Final Report (Wellington: Prepared for the
Ministry of Social Development by the Institute of Criminology and Ministry of Justice, 2004).p-7
4
addressing diversion and what lessons would the legal framework of Kenya and New Zealand could
share for Ethiopia.

1.2 Statement of the Problem

Issues of encompassing diversion and program for children’s at risk or in conflict with the law,
requires for research with regard to regulation of, is an area of shortcoming in Africa as a whole. 19
Even the majority of countries in the African continent have a provision for diversion under their
juvenile justice laws; they have weakness in that they make juvenile diversion an option of first
resort. 20 In spite of the fact that the 1995 Federal Democratic Republic of Ethiopia’s (FDRE)
Constitution enshrines the advancement and assurance of child’s rights, national laws to secure the
rights of CICL are limited.21 Currently, the laws in force that govern juvenile justice matters in
Ethiopia allow the police to arrest children in conflict with the law and to bring them before the court
rather than to divert them in some appropriate circumstances like minor offences. They do not have a
room for diversionary options for juveniles at pretrial-stage of criminal proceedings.

Mechanism of juvenile rehabilitation adopted under the 2004 Criminal Code of FDRE22 are forms of
judicial non-custodial alternative remedial measures but not informal non-judicial and non-custodial
rehabilitation and reintegration mechanisms as diversion procedure needs. The Ethiopian criminal
justice system currently in force allows the police to arrest children in conflict with the law and to
automatically bring them before the court23 which does not provide any room for diversion by law
enforcement organ or the court but to admit and proceed the case in formal ways. Thus, as it is
clearly stipulated under article 52 of the 2004 Criminal Code of Ethiopia, a minor aged between 9
and 15 years, when found to be blameworthy of wrongdoing, either ordinary measures , namely,
admission to corrective institutions, supervised education, reprimand, and school or home arrest
could be taken or a penalty will be passed.24 The latter may incorporate fines and corporal discipline
will be passed. Juvenile court judges are not given a variety of choices, or the flexibility to tailor a
sentence to the individual child.25 Although the Ethiopia lacks a clear legal provision that requires
juvenile diversion, we used have a formal diversion programs being embraced in Ethiopia as
1919
Nielsen Julia Sloth and Mezmur ,Benyam D .”Surveying the research landscape to promote children’s legal rights in
an African context.” African Human Rights law journal 7, no, 2. (2007): 340
20
African child policy forum (ACPF), In the best interest of child, Harmonizing laws in eastern and southern Africa (
Addis Ababa. 2007): 5
21
KumnegerGirma. A child rights based approach to diversion in Ethiopia: An analysis of the community based
correction programs in Addis Ababa.MA thesis. International institute of social studies. The Hague, Netherlands. (2015):
3
22
Federal Democratic Republic of Ethiopia criminal code, proclamation No.414/2004,art.158-162
23
Criminal procedure code of empire of Ethiopia ,1961,art.172(1)
24
Save the Children: ‘Case Study Diversion of Children in Conflict with the Law in Community –Based Program
Centers’. (Ethiopia: Save the Children, 2005a) p-4.
25
Messele R. ‘Report on Diversion and Alternatives to Detention for Children in Conflict with the Law in Ethiopia’.p-11
5
community based correction programs (CBCP) that worked in few cities like Addis Ababa, Dire
Dawa, Bair Dar, Dessie and Adama through Non-Government Organizations (NGO’s ) efforts. The
overall role of the police, prosecution, the court and other stakeholders like probation officers, social
workers and NGOS and other community based dispute settling organs is not provided with a
specific role to issue formal or informal cautioning orders for diverting juveniles in the course of
investigation and prosecution.

The customary dispute resolution mechanisms, other restorative diversion mechanisms such as
Family Group Conferencing (FGC) in case the New Zealand are important tools in diverting CICL
existing in diverse socio-economic and geographical backgrounds. However, the legal coverage
given for these important mechanisms is limited. Addressing the ways to make diversion the central
theme of juvenile justice framework and child rights specific juvenile diversion options is also the
main concern of this research. Finally, though there is a positive move for juvenile diversion in the
FDRE draft criminal procedure and evidence code and the criminal justice policy of 2011, their
adequacy and areas that need a critical revision in light of lessons from the experience of the Kenyan
and New Zealand juvenile justice framework is addressed as another focus areas of this research.

1.3 Objectives of the study

1.3.1 General Objectives

The main objective of this study is to draw a lesson for the Ethiopian Criminal Justice System for the
diversion of child in conflict with the law from the experience of the Kenyan and New Zealand legal
frameworks.

1.3.2 Specific Objectives

This research was tried to address the following research objectives:

1. To assess the New Zealand's legal frameworks for diversion of the child in conflict with the
law;
2. To assess the Kenyan's legal frameworks for diversion of the child in conflict with the law;
3. To examine the extent that the FDRE draft criminal procedure code and the criminal justice
policy of 2011addresses the juvenile diversion in Ethiopia as it is required under various
human right instruments,
4. To draw the best lessons for the Ethiopian Criminal Justice system from the experience of
selected countries regarding various juvenile diversionary options.

6
 1.4. Research Questions

1.4.1. General Research Question

The general research question of this study was what are the best lessons that have to be taken to the
Ethiopian Criminal Justice System for the diversion of child in conflict with the law from the
experience of the Kenyan and New Zealand legal frameworks.

1.4.2 Specific Research Questions

This research was tried to address the following specific research questions:

1. What are the diversionary measures enshrined under the New Zealand's legal frameworks for
the child in conflict with the law?
2. What are the diversionary measures enshrined under the Kenyan's legal frameworks for the
child in conflict with the law?
3. To what extent do the FDRE draft criminal procedure code and the criminal justice policy of
2011addresses the juvenile diversion in Ethiopia as it is required under various human right
instruments?
4. What the best lessons that has to be taken for the Ethiopian Criminal Justice system from the
experience of the New Zealand and Kenyan juvenile diversionary options?

1.5 Significance of the study

The overall significance and contribution of this study are:-

 Contribute towards making child imprisonment a measure of last resort under Ethiopia criminal
justice system through adopting selected diversion models.
 Push policy and legal frameworks of Ethiopia to make diversion a central feature of juvenile justice
procedure in Ethiopia for rehabilitation and reintegration of juveniles into society rather than
prioritizing arrest, incarceration and pretrial detention.

1.6 Delimitations of the study

The study is delimited in its coverage to assess the Ethiopian Criminal justice system legal
framework for juvenile diversion thereby to pinpoint for those constraints, gaps and pitfalls under the
Ethiopian juvenile justice system in juvenile diversion. Laws and Literatures that provide practical
realities in diversion of juveniles in Ethiopia, Kenya and New Zealand will be employed in their
order of contribution for attaining the objectives of the study. This scope is clear from the title, not
need to restate.

7
1.7. Limitation of the Study

With regard to limitations, the shortage of works of literature tending to the legitimate viewpoints of
juvenile diversion in Ethiopia, in common, has gotten to be a potential challenge within the course of
conducting this research.

1.8 The Research Methodology

1.8.1 The Study Design

The study was conducted through a doctrinal legal research methodology involving a qualitative
research approach. This methodology aims to systematize, rectify and clarify the law on any
particular topic of legislation. The research approach basically involves through a doctrinal research
methodology the diversion mechanism of the Kenyan and New Zealand experiences were used to
take lessons for juvenile diversion in the Ethiopian criminal justice system. The experience was
basically made as to how far the best juvenile justice principles also called best juvenile diversion
practices incorporated in the country's criminal justice system legal and policy frameworks: namely,
having non-discriminatory, best intrest of child based,diversion as first resort and detention as a
measure of last resort and clearly recognize child participation and the right to be heard, use written
diversion agreements, and prevent future prosecution .26

In this study the Kenyan legal framework is selected because of having more or less a similar
economic and social status with Ethiopia as it shares long border lines with our country and also we
do have cultural relativeness especially with Oromo people and south omo zone at the southern
Ethiopia. Moreover, the country has a better legal and policy frameworks in the areas of juvenile
diversion that could be used as a good lesson. It is also true for the selection of the New Zealand’s
since it has relatively an adequate laws that directly address the issue of juvenile diversion, namely,
Children’s act from which a number of good lessons could be drawn even though the country is at a
better economic status compared to Ethiopia.

1.8.2. Sources of Data Collection

Primary Sources of Data-relevant international, regional and national legal instruments like CRC,
ACRWC, and the constitutions, other subordinate laws and policies of the Ethiopia, Kenya and New
Zealand were used as primary sources to analyze the legal constraints under the Ethiopian juvenile
diversion legal framework.

Jill F et al, ‘‘Best Practices in Youth Diversion’’ (2018) 13, https://theinstitute.umaryland.edu/media/ssw/institute/md-

26

center-documents/Youth-Diversion-Literature-Review. (accessed on 15 January 2022).

8
Secondary sources of data includes sources like books, journal articles, thesis and dissertations,
different works of UN bodies like UNODC, UNICEF and others like the works of save the children
and other governmental and non-governmental organizations, internet web sites, where necessary
will be supplied to constitute secondary sources of data.

1.8.3. Method of Analysis

Different data analytical tools were employed in the course of conducting the study. These tools
include those diversionary options recognized under the juvenile justice laws, the roles provided for
different stakeholders like the courts, law enforcement organs as well as other agencies and
organizations working in areas of diversion and provisions relating to the purpose, minimum
standards for diversion as well as post-diversion procedural mechanisms and provisions for legal
assistance on the appropriateness or otherwise of juvenile diversion was employed.

1.9. Organization of the Chapters

This research work has composed of five chapters that includes chapter one is about introducing the
background and research problems of juvenile diversion in Ethiopia. Those research questions and
objectives, significances of the research as well as methodologies employed for devising solutions to
the problems have also been part of this chapter. Chapter two addressed the conceptual and legal
foundation and the realities of juvenile diversion at the international; regional particularly in African
context and the diversion practices developed by de-facto in Ethiopia. Chapter three is a Lesson from
Experience of the Kenyan and New Zealand Legal frameworks to be adopted for juvenile diversion
in Ethiopian Criminal Justice system. Finally, chapter four provides conclusion and suggested
recommendations for Ethiopian criminal justice system.

9
CHAPTER TWO: THE THEORETICAL AND LEGAL FOUNDATION FOR
JUVENILE DIVERSION IN THE CRIMINAL JUSTICE SYSTEM

2.1 Introduction

Various mechanisms in making children out of the dock of formal criminal justice machinery have
been employed in different countries for centuries that trend back to the period of separate juvenile
court mechanism in US dating back to 1960’s. Even though such circumstance was taken as the
advent of juvenile diversion, the most essential factual evidence about diversion movement has been
the magnitude of its proliferation that it will address the constraints of juvenile court.27

Diversion in general is about the process, programs or mechanisms that would make” juveniles”, or
“children in conflict with the law” to have an informal non-judicial alternative forum which
considers their case at any stage of criminal proceedings aiming at avoiding the trauma sustained by
children as a result appearance in the formal court proceedings.

Juvenile justice system had passed through different models of juvenile justice. These models have
passed through the age old parenspatreae welfare model towards the contemporary diversion and
restorative justice models which focus more on rehabilitation and reintegration of children in conflict
with the law using alternative forum other than the formal criminal justice system. 28 Numerous
justifications in favor and against diversion were included in this chapter.

Juvenile justice is composed of trio of legal regimes designed to realize the respect for the rights of
children at international, regional and the national legal systems. To this end, juvenile diversion is
also the subject of these legal developments in the form of binding laws like Convention on the
rights of child( CRC), African charter on the rights and welfare of the child (ACRWC). and other
non-binding international instruments. Having this in mind, diversion is one of the basic aspects of
international juvenile justice principles that would be given primacy as further dealt with under this
chapter. As final matter, diversion under the African juvenile justice system was developed under
various juvenile justice jurisdictions in Africa. Ethiopia, among these African mechanisms was
currently developing juvenile diversion as subject of criminal justice reform. Nevertheless, having no
legal coverage, forms of diversion mechanisms called community based correction programs
(CBCP) have been practiced for longer in Ethiopia as would be discussed later in this chapter.

Lambert E,‘‘Diversion in the juvenile justice system:’’ What Has Been Wrought? Journal of Research in
27

crime and Deliquency (1981):34.

28
G Maxwell and A Morris, Family, Victims and Culture, Youth Justice in New Zealand (1993) :171.

10
2.2 The Conceptual and Theoretical Background of Juvenile Diversion

2.2.1 The Conceptual Background

Diversion, in a wide sense, alludes to options to prosecution for children and young individuals.29 It
may be a legal process of expelling children and young people from formal sanctions of the juvenile
justice system. 30 Diversion serves to move juvenile delinquency policy more to the community
oriented treatment programs. The essential objective of the diversion is to avoid children from being
criminally sentenced. It avoids direct consequences of formal court adjudication on children such as
ridiculous labeling, stigmatization, and recidivism. Juvenile diversion programs allow youths who
commit offenses to be directed away from formal juvenile justice system involvement. 31 Some
diversion programs are pretrial or predisposition, which implies that youths are diverted away from
system processing from the beginning; in any case, others begin only after formal adjudication or an
admission of guilt. In these cases, youths are diverted away from detainment or imprisonment but are
still formally processed.32

Diversion is predicated on the belief that formal system processing and/or imprisonment has
criminogenic impacts and that options such as decriminalization, deinstitutionalization, and diversion
are superior for long term youth improvement.33 Diversion programs are aiming to hold juveniles
responsible for their behavior without formal court involvement.34 As an alternative to traditional
processing, diversion programs are designed to reduce stigma, reduce coercive entry into the system
and unnecessary social control, reduce recidivism, provide youths with services they would not have
otherwise received, and connect them to broader community service alternatives. 35 Diversion
programs have to be implemented as a procedure to decrease the costs of formal court proceedings
by decreasing the burden on the juvenile court system and detention facilities.36 Diversion leads to a
decrease in the caseloads of prosecutors, judges, and juvenile probation officers. In addition,

29
Evans, R. (2008).Diversion.In B. Goldson (ed.), Dictionary of youth justice. Devon: WillanPublishing.Retrieved from
http://search.credoreference.com/content/entry/willanyouthj/diversion/0.
30
Heilbrun, K., Sevin Goldstein, N. E., & Redding, R. E. (Eds.).Juvenile delinquency: prevention, assessment, and
intervention. (New York: Oxford University Press, 2005) p,1–368
31
Bynum, Jack E., and William E. Thompson.Juvenile Delinquency: A Sociological Approach. 3rd Ed. Needham
Heights, Mass: Allyson and Bacon( 1996)
32
Models for Change. 2011. “Juvenile Diversion Guidebook.” Models for Change: Systems Reform in Juvenile Justice.
http://www.modelsforchange.net/publications/301
33
Bishop, Donna M., and Scott H. Decker. 2006. “Punishment and Control: Juvenile Justice Reform in the USA.” In J.
Junger-Tas and S. H. Decker (Eds.).International Handbook of Juvenile Justice. New York: Springer, 3–35.
34
Beck, Victoria Simpson, et al. “Juvenile Diversion: An Outcome Study of the Hamilton County, Ohio, Unofficial
Juvenile Community Courts.” Juvenile and Family Court Journal vol , 57 no 1 ( 2006. ): 1–10.
35
Philip W., Harris, et al. “Measuring Recidivism in Juvenile Corrections.” OJJDP Journal of Juvenile Justice ,vol 1
issue 1 (2011) :1–16.
36
Models for Change. 2011. “Juvenile Diversion Guidebook.” Models for Change: Systems Reform in Juvenile Justice.
http://www.modelsforchange.net/publications/301
11
diversion leads to a decrease in the number of youths sent to detainment offices. The cost of formally
handling youths through the system and housing them is frequently greater than the cost of numerous
diversion programs.37

2.2.3. Theoretical Foundations of Juvenile Diversion

The concept of diversion originally arose from two theoretical rationales. The first, labeling theory38
contends that handling certain youths through the juvenile justice system may do more hurt than
good since it accidentally stigmatizes and ostracizes them for having committed relatively minor acts
which will have been more suitably dealt with outside the formal system.39 A label of “deviant,”
“delinquent”, or “juvenile offender” can influence the way in which youths come to define
themselves and how society sees them, in this way affecting their future behaviors and dictating the
social roles they can accept.40

The second, differential association theory 41 recommends that the system included youths will
receive introverted states of mind and behaviors from their delinquent peers. Exposure to and
fraternization with more progressed delinquent youths and adults is thought to have a criminogenic
impact that increments the likelihood of youths reoffending.42 By decreasing youths’ presentation
and contact with the juvenile justice system, diversion programs point to play down the impacts of
labeling them as freaks and constrain their opportunities to associate with delinquent peers and
embrace introverted behaviors.

More recently, the developmental point of view in juvenile justice also recommends that most youths
mature out of offending behavior because it may be a short lived, normal part of youth. Adolescence
represents a period between childhood and adulthood characterized by experimentation and risk-

37
Petrosino, Anthony, Carolun Turpin-Petrosino, and Sarah Guckenburg. 2013. Formal System Processing of Juveniles:
Effects on Delinquency. No. 9 of Crime Prevention Research Review. Washington, D.C.: U.S. Department of Justice,
Office of Community Oriented Policing Services. http://www.ric-zai-inc.com/Publications/cops-w0692-pub.pdf
38
Howard S, Becker. Outsiders: Studies in the Sociology of Deviance. (New York: Free Press. 1963)
39
Richard J. Lundman, Prevention and Control of Juvenile Delinquency.2nd Ed (New York : Oxford University Press,
1993.) Malcolm W. Klein, “Labeling Theory and Delinquency Policy: An Experimental Test,” Criminal Justice and
Behavior 13(1) (1986): 47-49.
40
Andrew J. Dick, et al. “The Need for Theory in Assessing Peer Courts.” American Behavioral Scientist 47(2004)
:1448–61.
41
Cressy, Donald R. “Application and Verification of the Differential Association Theory,” Journal of Criminal Law,
Criminology, and Police Science 43 (1952):43–52, Sutherland, Edwin H. Criminology. 9th Ed. New York.: Lippincott
(1974)
42
Loeb, Roger C., Marie Waung, and Megan Sheeran.“Individual and Familial Variables for Predicting Successful
Completion of a Juvenile Justice Diversion Program,” Journal of Offender Rehabilitation 54, No 3 (2015):212-237,
Tustin, Lee, and Robert Lutes. “A Guide to the Youth Criminal Justice Act, 2006 Edition.” Markham, Ont.: Lexis Nexis
Canada, Inc.(2005)
12
taking behaviors, affectability to peers and other social impacts, and the improvement of individual
identity.43

For most youths, this period of exploration ceases as their individual identities are established, and
only a small percentage of youths persist in their offending behavior into adulthood.44 Consequently,
diversion programs focused on minimal intervention are consistent with the idea that the juvenile
justice system can facilitate a successful, pro-social transition to adulthood, while also holding
youth’s accountable for their antisocial behaviors.45
Diversion in its broadest definition could be inclusive of preventive programs with the aim of
protecting children from committing crimes. Diversion in this sense is defined as “strategies
developed in the youth justice system to prevent young people from committing crime or to ensure
that they avoid formal court action and custody if they are arrested and prosecuted”.46 Diversion
from this perspective could broadly cover a variety of programs, from school based crime prevention
programs through to community based programs be used as alternative to imprisonment. For our
particular case, the definition of could be inclusive of “programs and practices which are employed
for young people who have initial contact with the police, but are diverted from formal juvenile
justice processes before children’s court adjudication” 47 and the case referral from formal court
procedure towards informal justice system where there is sufficient evidence to convict the
juvenile.48

The concept of diversion as a form of channeling children away from the adult criminal justice
system only entered the vocabulary of juvenile justice as a result of the recommendations of the
juvenile’s task force of the (US) president’s crime commission in the 1960’s49, although the practice
of diversion existed before this period. Indeed, the very establishment in the late 19th century of a
separate court system for young people accused of crimes is considered as heralding the beginning of
juvenile diversion.50 It was the year 1974 US congress’s policy for implantation of diversion on the
basis of Federal fund that formally herald the beginning of juvenile diversion in the united states as a

43
Collins, W. Andrew, and Laurence Steinberg.(2006). “Adolescent Development in Interpersonal Context.” In N.
Eisenberg, W. Damon, and R.M. Lerner (eds.). Handbook of Child Psychology: Vol. 3, Social, Emotional, and
Personality Development.
44
Moffitt, Terrie E. “Adolescence-limited and life-course-persistent antisocial behavior: a developmental taxonomy,”
Psychological review 100(4), (1993): 674-701
45
Richard Bonnie et al.,Reforming Juvenile Justice: A Developmental Approach. (Washington, D.C.: National
Academies Press,2013)
46
Muncie, J. Youth and crime.A critical introduction.sage ,London:1999,p.305.
47
Odhiambo, ‘’The domestication of international law standards on the rights of the child with specific reference to
juvenile justice in the African context,’’:193
48
Ibid
49
Lambert, ‘’Diversion in the juvenile justice system,’’P-35.
50
Odhiambo, ‘’The domestication of international law standards on the rights of the child with specific reference to
juvenile justice in the African context,’’:194
13
formally operating informal juvenile justice framework having the goals and standards of the then
National Advisory Commission on criminal justice.51Nowadays, diversion is universally seen as an
integral aspect of the rehabilitative and re-integrative parts of each and every child justice system.52

Diversion does not necessarily require placing a child in a formal diversion program. The mechanism
could vary from one juvenile justice system to another depending on the appreciation of the services
available in the child’s community.53 For some, it could include: receiving a police caution, writing
an apology letter, participating in an alternative dispute resolution forum or being placed under
supervision and for others it may be placement of child in a formal diversion program the common
factor being the promotion of more humanitarian and less stigmatizing response to juveniles.54

Diversion could be justified by various merits it had over the formal criminal justice system. Studies
have shown that young people who are diverted away from the criminal justice system experience
lower level of recidivism compared to those who are dealt with by the courts. Thus, legal
intervention by the juvenile justice system may actually perpetuate youth offending and marginalize
young people by processing cases that could be better remedied in informal settings within the
community. 55 Importantly, diversionary programs and processes can assist in ameliorating the
problem of overburdened courts and are alternative to the highly cost and too often overcrowded and
ineffective juvenile correction system. Diversion encourages the accountability and responsibility of
the offender; aims to promote and restore healing of relationships and reparation of the harm
inflicted up on the victim and the community, and reintegrates the offender towards healing,
rehabilitation and social acceptance in the community.56

2.2.4 Diversion from the Perspective of Juvenile Justice History

2.2.4.1 Overview of Diversion from the point of Juvenile Justice Models

The current juvenile justice system is the result of the process of diverse theoretical foundations that
extend back to the classical typology of the “welfare model” and the” justice model” to the more

51
Lambert, ‘’Diversion in the juvenile justice system,’’P-36.
52
Odhiambo, ‘’The domestication of international law standards on the rights of the child with specific reference to
juvenile justice in the African context,’’:13
53
International NGO council on violence against children 2013.Creating a Non Violent Juvenile Justice System.Norway
.p.20
54
UNICEFF 2006.Profile of Existing Diversion Programs in Nigeria.P.6.
55
Jordan, L, and Farrel, J, 2012.Juvenile justice diversion in victoria: A blank canvas? Current issues crime, just. 24.p-
420
56
Ibid
14
recent forms of juvenile justice models such as the “participatory”, the “modified justice”, the “crime
control”, the” corporatist”, the “minimum intervention”, the “restorative justice” and the “neo-
correctionalist” models.57

The periods until the 18th century were characterized by the classical crime control approach in
which children and young persons were tried and punished as adults and crime could be considered
as an act committed through a rational act of free will resulting in the application of corporal
punishment and execution as common penalties.58 The early stage of juvenile justice is characterized
by the welfare principle. The “welfarist model” that is based on the doctrine of parenspatreae
believes in the state control of the best interest of the child as a just parent instead.59Welfarism did
not regard children as rational or self-determining agents and considers them as immature.60 The
protectionist attitude of such approach towards children limited the different due process rights of
children in the form of legal representation for instance, had subjected it to a criticism that it has to
be replaced by the justice model which is another juvenile justice approach.

Another juvenile justice approach called the” justice model “which deviates from taking children as
subject of rights believes on the accountability of the child for his/her action as a capable being.
Punishing children as just deserts by assessing the individual guilt of the juvenile offender is the
justice model’s ideology which makes children as object of rights.61The justice model that replaced
the protectionist paternalistic welfare model that obliges the state to be responsible for the best
interest of the immature and innocent child also failed due to its retributive tendency of resulting
from the principle of just deserts.

Apparent criticisms on the lack of success in preventing or reducing youth offending or their
rehabilitation of youth through the welfare and the justice models62, resulted in the emergence of
other juvenile justice models called the “diversion” and” restorative justice models”. Both models,

57
UNODC 2013.justice in matters involving children in conflict with the law,model law on juvenile justice and related
commentary.p.VI
58
Finckenauer, J, Juvenile Delinquency and Corrections: The Gap Between Theory and Practice.
(Florida:Vol.131.Accademic Press,1984) p.108
59
Odala, V.2011.The spectrum for child justice in the international human rights framework: from reclaiming the
delinquent child to restorative justice. Am. U. Int’l L, Rev, 27.p-562.
60
Odhiambo, ‘’the domestication of international law standards on the rights of the child with specific reference to
juvenile justice in the African context,’’24.
61
Odala, V.2011.The spectrum for child justice in the international human rights framework: from reclaiming the
delinquent child to restorative justice. Am. U. Int’l L,Rev,27.p-553.
62
Kate A, Restoring youth justice: new directions in domestic and international law and practice(London:2000).p-8
15
due to the independent operation of their principles alongside with the real juvenile justice models,
do not stand by themselves as independent juvenile justice models.63 It was the late 1980’s that
witnessed the advent of “diversion model” from the corporatist attitude which believes in reducing
conflict through centralization of policy, increased government intervention, and the co-operation of
various professional and interest groups. Diversion intends to provide an alternative way of thinking
in the administration of justice to CICL separate and different from the retributive tendencies of the
formal criminal justice system.64

2.2.4.2 Theoretical Arguments over the Diversion model a repetition

The diversion model was supported by two important theories, the labeling and the differential
association theories in contrast to the crime control and punishment approaches for young offenders.
Labeling theories suggests that formal response to delinquency can stigmatize justice involved youth,
which can lead to the adoption of delinquent self-identity.65 On the other hand such responses make
the society create crimes by marking certain acts as deviant and treating the offenders in such a
manner that could make them feel delinquent and criminal behavior.66 Through process such labeling
of youth as delinquent would create an expectation of continued anti-social behavior, which may in
turn limit access to conventional roles and opportunities in overall development.67They could then
ultimately engage in criminal offending at a higher rate than otherwise similar individuals who have
not been labeled “deviant” and due to this higher rate of offending they could develop more frequent
interaction with the criminal justice system.68

Another theory called the differential association theory implies that juvenile court involvement
leads to the adoption of attitudes favorable to crime and facilitates deviancy training.69Differential
association theory generally argues that “antisocial attitudes and behaviors are learned through the

63
Maxwell,G. and Morris, A. 1993.Family, victims and culture-youth justice in New Zealand.Wellington.p.169
64
Save the children UK, Philippines Program, 2005.Guidelines for a community based diversion and prevention program
for children in conflict with the law.p-8
65
Maddan,S and Marshal,I.2009.Labeling and symbolic interaction theories.21st century criminology: A reference
handbook.Thousandoaks,CA:sage.p 253.
66
Jordan, L, and Farrel, J.Juvenile justice diversion in victoria: A blank canvas? Current issues crime, just. 24(2012):420
67
Wilson, H and Hoge, R.The effect of youth diversion programs on recidivism: A meta analytic review.Criminal Justice
and Behavior 40, no.5 (2013): 498
68
Liberman, A,Kirk,D. and Kim.K.2014.Labeling effects of first juvenile arrests: secondary deviance and secondary
sanctioning.In press,criminology,p.4
69
Ray,J and childs, K. 2015. Juvenile diversion.In Marvin D.Krohn and Jodi Lane.The handbook of juvenile
delinquency and juvenile justice.Wiley handbooks in criminology and criminal justice.UK.P. 423.
16
social learning process caused by association with others (particularly peers) exhibiting such
attitudes and behaviors’ encourage their adoption in the youth”. 70 Diversion, therefore, has the
significance of avoiding such adoptive attitudes that would be learned from association with
criminals.

Due to their emergence from these theoretical frameworks, diversion strategies aim to redirect young
offenders away from the criminal justice system, primarily to avoid the traumatizing effects and
negative impacts associated with criminal proceedings.71

The above two theoretical justifications in favor of diversion are not without critics. An opponent
argument to diversion of juveniles called the theory of net widening argues that diversion can often
be a means for expanding the scope of more invasive measures of social control allowing those who
have committed relatively minor offences or who are first offenders, to experience negligible state
intervention which in turn, alleviates the pressure on an invariably overburdened criminal justice
system and the state can appear to be productive with minimal effort and expenditure.72

2.2.4.3 The Contemporary Trend on the Need for Juvenile Diversion

Even though the arguments raised so far have a valid theoretical base for their debate resulting from
different evidences suggested by studies, now a days, diversion has become an integral aspect of the
juvenile justice systems that constitutes the rights based perspective.73

The scope of juvenile diversion even was extended from the former limitation of only to minor
juvenile offences were appropriate to those other offences that were not minor in their character. To
this end, the committee on the rights of the child stated that, “the obligation of states parties to
promote measures for dealing with children in conflict with the law without resorting to judicial
proceedings applies with respect to, but is certainly not limited to, children who commit minor
offences, such as shoplifting or other property offences with limited damage, and first time child
offenders and statistics in many state parties indicate that a large part and often the majority of
offences committed by children fall in these categories”.74

70
Wilson, H and Hoge, R.The effect of youth diversion programs on recidivism: A Meta analytic review. Criminal Justice
and Behaviour40,no.5(2013):499
71
Jordan, L, and Farrel, J, 2012.Juvenile justice diversion in victoria: A blank canvas? Current issues crime, just.
24(2012):420
72
Wood, C.2003. Diversion in South Africa: A review of policy and practice, 1990-2003. Institute for security studies
papers 2003,p-2.
73
United Nations Convention on the rights of the child, Art. 40(3)(b).
74
Committee on the rights of child ,para .25.
17
Diversion has now been integrated into principles and norms constituting the international juvenile
justice under the CRC 75 and other international norms, principles and standards. Juvenile justice
systems which promote diversion therefore provide possibilities to respond to juveniles in an
effective manner by serving the best interest of the child and the society at large.76

2.5 Juvenile Diversion under the International and Regional Child Rights Conventions and
Soft Laws

2.5.1 The Convention on the Rights of the child (CRC), 1989

The CRC is an international child rights instrument covering a broader range of human rights of the
child in a comprehensive manner beyond being a child rights catalogue.77 It is an instrument with a
set of principles that should be included in a juvenile justice systems as well as specific due process
guarantees particularly under articles 37 and 40. Following the Beijing Rules, the CRC has made
diversion practices a binding feature of child justice systems.78Article 37 of CRC places obligation
on state parties to protect a child against inhuman or degrading treatment or punishment.
Furthermore it limits the detention or imprisonment of a child offender. It also promotes the child’s
reintegration in society.

Article 40 of the CRC provides that state parties need to recognize the right of every child alleged as,
accused of, or recognized as having infringed the penal law to be treated in a manner consistent with
the promotion of the child’s sense of dignity and worth which reinforces the child’s respect for the
human rights and fundamental freedoms of others. It takes into account the child’s age and the
desirability of promoting the child’s reintegration and the child’s assuming a constructive role in
society.

The Provisions contained within article 40 place an obligation on the government to ensure that all
children in contact with the juvenile justice system are ‘treated in a manner consistent with the
promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the
human rights and fundamental freedoms of others and which takes into account the child’s age and
the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in
society’ which is inclusive of the development of informal non-judicial diversionary measures. This
principle must be applied, observed and respected throughout the entire process of dealing with the
75
The principles of international juvenile justice under the CRC, for instance, include non-discrimination(art.12), the best
interest of child (art.3), rights to life, survival and development (art.6), right to be heard and finally the rights of the
child’s dignity(art.40(1).
76
United Nations Convention on the rights of the child, Art3.
77
African child policy forum (ACPF), In the best interest of child, harmonizing laws in eastern and southern Africa, p.14.
78
Odala, The spectrum for child justice in the international human rights framework: from reclaiming the delinquent child
to restorative justice .p-553.
18
child, from the first contact with law enforcement agencies all the way to the implementation of all
measures for dealing with the child. The convention obliges state parties would make measures for
dealing with children in conflict with the law without resorting to judicial proceedings as integral
part of their juvenile justice system, and ensure that children’s human rights and legal safeguards are
thereby fully respected and protected.79

Juvenile diversion as its core principle holds that rights based measures should be taken to divert
children away from the formal justice system into community based social rehabilitation and
reintegration mechanisms where ever possible and appropriate in calling for the avoidance of the
punitive and retributive character of formal criminal justice system in specific cases.80This is what
the provisions of CRC for the entitlement of juveniles to treatment in a manner consistent with the
promotion of a child’s sense of dignity and self-worth as well as treatment that takes into account the
child’s age and the desirability of promoting reintegration and the child’s assuming a constructive
role in society81 is based on.

The issue to decide on the exact nature and content of the measures for dealing with children in
conflict with the law without resorting to judicial proceedings, and to take the necessary legislative
and other measures for their implementation is left to the discretion of states under the CRC 82 and
utilizing the appropriate and accessible diversion measures for the respect of the rights of children
must be a priority agenda in appropriate cases. A child rights based approach( CRBA) to juvenile
justice under the CRC calls on states to takes rights based measures make children away from the
formal justice system into community centered social education and reintegration programs and
practices, wherever possible and appropriate.83 The CRC, therefore, acts as a vital a guide for states
to establish a workable mechanism to deal with juveniles at community level, without resorting to
judicial processes and avoid subsequent detention. Have you referred GC 24 of the Committee??

2.5.2 The African Charter on the Rights and Welfare of the Child (ACRWC), 1990

The charter84, which is the only comprehensive regional child rights instruments of its type covering
the whole spectrum of civil, political, economic, social and cultural rights of children in Africa

79
United Nations Convention on the rights of the child ,Art.40 (3)(b).
80
International NGO council on violence against children 2013.Creating a Non Violent Juvenile Justice System. Norway
.p.20
81
United Nations Convention on the rights of the child, Arts, 37 and 40.
82
Committee on the rights of child, ,para.27.
83
International NGO council on violence against children 2013.Creating a Non Violent Juvenile Justice System. Norway
.p.13
84
The African charter on the rights and welfare of the child (ACRWR), 1990,also available at, OAU
DOC.CAB/LEG/24.9/49 (1990).
19
following the CRC85, was adopted by the assembly of heads of state and government of the OAU in
1990 and entered into force later in 1999.

The charter in particular areas of child rights protection like prohibition of recruitment of children in
armed conflict, early child marriage or betrothal involving child, protection of refugees through its
recognition of internal displacement problem including its procedural recognition for organizing the
committee of independent experts, the treaty body responsible for the supervision and monitoring of
the implementation of the charter provisions prominence over its international counterpart, the
CRC.86

But the charter suffers from various weaknesses regarding juvenile justice. The charter was a
retrogressive in character as compared to the CRC and the UN standard minimum rules for the
administration of juvenile justice (the Beijing rules) due its complete ignorance of the diversionary
(alternative) measures of dealing with children in conflict with the law and the lack of provision
declaring detention of children a measure of last resort and for shortest period of time 87, to which the
international child rights regime adheres. Beyond this fact the charter in relation to juvenile justice
suffers from making the press and the public to be prohibited from child trial hearing under states
parties and limited coverage of all rights constituting juvenile justice administration,88specifically
those provided under the ICCPR.89

2.5.3 Juvenile Diversion under the Non-Binding International and Regional Child Rights
Instruments
The so called soft laws or non-binding legal instruments include those United Nations standard
minimum rules, guidelines and other subsidiary laws in the forms of declaration. These forms of
legal instruments do not have a binding effect on states and they simply provide guidance on a
particular legal issues.IN case of Africa, there is the Ouagadougou declaration and plan of action on
accelerating prisons and penal reforms in Africa, which is a declaration that came up with the
mechanisms of resort to alternatives to judicial proceedings (diversionary measures). It has an

85
African child policy forum (ACPF),In the best interest of child, Harmonizing laws in eastern and southern Africa, p.12
86
Olowu D, Protecting children rights in Africa: a critique of the African charter on the rights and welfare of the child.
International journal of the children’s rights 10.(2002)pp-127-136
87
Chirwa, D. The merits and demerits of the African charter on the rights and welfare of the child .The International
journal of the children’s rights 10, no 2 pp-157-177
88
Chirwa,D. The merits and demerits of the African charter on the rights and welfare of the child , pp-157-177
89
Those rights not provided under the charter to which the ICCPR has a better preference include, the right to self-
determination art.14 (3), prohibition against non-retroactive criminal law (art.15) and the rights of child victims for
compensation for miscarriage of justice (art.9(5) of ICCPR have been marked as certain areas of weaknesses under the
ACRWC which were better protected under the ICCPR.
20
objective of filling those lacunae existing in the African charter on the rights and welfare of the child
(ACRWC) that suffers from the lack of an express provision with regard to juvenile diversion.

2.5.3.1 The Beijing Rules, 1985

The standard minimum rules (the Beijing rules)90 are the reflections of the aims and the spirit of
juvenile justice in which desirable principles and practices for the administration of juvenile justice
have been set on the basis of diverse national settings. They represent internationally accepted
minimum conditions that make detentions of juveniles a measure of last resort through recourse to
alternative non-custodial and non-judicial measures at various stage of criminal justice.

With respect to diversion of juveniles rule 11 of these rules provided that “consideration shall be
given wherever appropriate to dealing with juvenile offenders without resorting to formal trial by a
competent authority. The law enforcement organs like the police, the prosecutions and other agencies
have to be provided with a discretionary power over juvenile diversion matters. The consent of the
juvenile, his parent or guardian shall be of a primary consideration in diversion of juveniles and a
complaint mechanism for the review of the case”91 up on finishing or otherwise of the diversion
procedures have to be set.

Under the Beijing rules, diversion need not be limited to non-serious offences and by taking into
account the merits of individual cases, first time juvenile offenders that commit serious offences
would be provided with opportunities to diversion in appropriate cases. Basically, diversion is an
optimal response to rehabilitation of juvenile offenders as an earliest possible opportunity where the
crime committed is of a minor character. In all cases where diversion is possible, juveniles should
not be pressured into consenting to diversion and there has to be a viable alternative to diversion in
the form of community based compensation and restitution, temporary supervision and guidance.

2.5.3.2 The Havana Rules, 1990

The rules also termed as (United Nations Rules for the Protection of Juveniles Deprived of their
Liberty) “JDL Rules” or the “Havana Rules” have got this nomenclature from their adoption by the
United Nations in Havana, Cuba, in 1990.The Havana rules are related with the treatment of
juveniles during deprivation of liberty as their primary concern. Even though their primary concern
is their application for juveniles deprived of their liberty, the guiding principle the Havana rules
depend on is making deprivation of liberty a measure of last resort.

90
United Nations standard minimum rules for the administration of juvenile justice (the Beijing rules), adopted by the
General Assembly on 29 Nov,1985(A/res/40/33)
91
United Nations standard minimum rules for the administration of juvenile justice (the Beijing rules), rule 11.
21
The principle of making imprisonment a measure last resort calls for resort to alternatives other than
incarceration for juvenile offenders in a manner that would enable juvenile justice systems to uphold
the rights and safety of juveniles respected and promote their physical and mental well-beings.92 The
Havana rules emphasize that “deprivation of liberty of juveniles should be a measure of last resort
and for the minimum necessary period limited to only exceptional circumstances as set forth under
these rules and the Beijing rules”.93 One of the basic themes of the Beijing rules being, for instance,
resort to alternatives to judicial proceedings(diversion), these rules have an indirect reference to
giving priority to such measures, wherever appropriate before recourse to any option subjecting
children in conflict with the law to deprivation of the liberty. Exhausting other non-judicial and non-
custodial remedies before resorting to deprivation of liberty is a guiding principle of the Havana
rules to be followed before resort measured of imprisonment.

2.5.3.3 The Riyadh Guidelines, 1990

The Riyadh guidelines94 are of a particular focus on prevention of juvenile involvement in criminal
activities through socialization process of children focusing on family roles, education, developing
community services programs, increased role of mass media and prioritizing the youth at social
policies. With respect to diversion of juveniles, the Riyadh guidelines provided that “law
enforcement and other relevant personnel of both sexes should be trained to respond to the special
needs of young persons and should be familiar with and use to the maximum extent possible,
programs and referral possibilities for the diversion of young persons from the justice system”.95

The establishment of formal social agencies of crime control should be a means to be utilized as a
last resort under these rules and the development of community based services and programs for the
prevention of juvenile delinquency, particularly where no agencies have yet been established must be
prioritized.96

As per the Riyadh guidelines, community based services and programs that provide appropriate
counseling and guidance to young persons among other matters, should be developed, or
strengthened where they exist.97The Riyadh guidelines are of the position that formal criminal justice
response to crime could be used as a last resort and using alternatives to formal social control

92
United Nations Rules for the protection of juveniles deprived of their liberty(the Havana rules),adopted by the General
Assembly on 14 Dec, 1990(A/RES/45/113)
93
United Nations Rules for the protection of juveniles deprived of their liberty (the Havana rules), rule 2.
94
United Nations Guidelines for the prevention of juvenile delinquency (the Riyadh guidelines), adopted by the General
assembly on 14 Dec, 1990(A/RES/45/112).
95
United Nations Guidelines for the prevention of juvenile delinquency (the Riyadh guidelines, para5
96
United Nations Guidelines for the prevention of juvenile delinquency (the Riyadh guidelines), Para6
97
United Nations Guidelines for the prevention of juvenile delinquency (the Riyadh guidelines) ,para32
22
institutions like diversion at an earliest possible opportunity is a viable response to crime prevention
beyond rehabilitation of offenders.

2.5.3.4 The Vienna Guidelines, 1997

The Vienna guidelines 98 are primary related with the measures for the implementation of the
“convention on the rights of the child” through taking different steps at national levels. They were
developed at the expert group meeting on the elaboration of a program of action to promote the
effective use and application of international standards and norms in juvenile justice, held at Vienna
from 23 to 25 Feb, 1997.

It is provided that under these guidelines that, “where possible, diversion or other alternative
initiatives to the formal criminal justice system should be developed to avoid recourse to the criminal
justice system for young persons”.99 In relation to this, it provided for taking measures of broad
range of alternative and educative measures before arrest, pre-trial, during trial and after trial stages
of criminal proceedings that prevent recidivism and promote the social rehabilitation of offenders as
well. Whenever appropriate, mechanisms for the informal resolutions of disputes in cases involving a
child offender in the form of mediation and restorative justice practices, in particular processes
involving victims and involving family of the juvenile to the extent that it works for the best interest
of the child be undertaken as per the guidelines.

To ensuring the compliance of alternative measures by states with the CRC, UN standards and norms
in the juvenile justice and other existing standards and norms in the crime prevention and criminal
justice such as the UN standard minimum rules for non-custodial measures (the Tokyo rules) with
special regard to ensuring respect for due process rules in applying such measures and for the
principle of minimum intervention.

2.5.3.5 The Tokyo Rules, 1990

The Tokyo rules are particularly related with the application of non-custodial measures at pre-trial,
trial or post trial stages of criminal proceedings. They are not specifically related to juvenile justice
administration like those other rules and Guidelines addresses so far under this section. This being
the case, specificity on non-custodial measures and all inclusive character of the rules regarding
offender may limit its relation with juvenile diversion matters to some extent. However, it has
98
Economic and social council resolution1997/30, Guidelines for action on children in the criminal justice system (the
Vienna guidelines), adopted by the economic and social council on 21 July, 1997.
99
Economic and social council resolution1997/30,Guidelines for action on children in the criminal justice system(the
Vienna guidelines), para.15
23
provisions for providing the police, prosecution or other agencies to be empowered to discharge the
offender in cases where the protection of society, crime prevention functions or the promotion of
respect for the rule of law prevail over pretrial detention.100 Such provisions for the police and the
prosecution to discharge the offender pretrial are paramount to diversion role for the police and the
prosecution at this stage. In case where the offender becomes a juvenile, the pretrial non-custodial
measures to be applied by the prosecution or the police amounts to juvenile diversion measure.

Basically, rules 2 and 5 focus on diversion in that they call for the states to focus on the need to
dealing with offenders in the community and avoiding as far as possible resort to formal proceedings
or trial by a court. These provisions, therefore, have a paramount importance regarding juvenile
diversion in case where juveniles are subjected to pretrial detention.

2.5.3.6 Basic Principles on the use of Restorative Justice Programs in Criminal Matters, 2002

Restorative justice is an informal justice process whereby harm inflicted upon the victim in particular
and the community as a whole would be redressed by holding the offender accountable in a manner
that involves the victim, the offender, social networks, justice agencies and the community as the
case may be.101 Restorative justice programs may be used at any stage of criminal justice system
provided that there is sufficient evidence to prosecute after securing the free and voluntary consent of
the victim and the offender.102 In case where restorative process failed, the case should be referred to
the formal criminal justice process. 103Almost all requirements of restorative justice processes have
resemblance with those requirements for diversion. Restorative justice processes serve as one of the
mechanisms for juvenile diversion in various nations.

2.5.3.7 The Ouagadougou Declaration and plan of Action on Accelerating prisons and penal
reform in Africa, 2002

The plan of action provides for the use of “alternatives to penal prosecution such as diversion in
cases of minor offenses with particular attention to young offenders and people with mental health or
addiction problems”. 104 The same provision gave recognition for the use of restorative justice
approaches as opposed to the formal justice system and the use of traditional justice on the other

100
United Nations standard minimum rules for non-custodial measures (the Tokyo rules), adopted by the General
Assembly on 14 Dec, 1990 (A/RES/45/110). Rule 5.1
101
UNODC 2006.Handbook on restorative justice programs, criminal justice handbook series.p.6
102
Economic and social council resolution 2002/12, Basic principles on the use of restorative justice programs in
criminal matters, adopted by the economic and social council on 24 July 2002, para.6-7.
103
Economic and social council resolution 2002/12, Basic principles on the use of restorative justice programs in
criminal matters, para.11
104
The Ouagadougou Declaration and plan of Action on Accelerating prisons and penal reform in Africa, 2002,para 1 of
the plan of action.These sorts offences which are to be decriminalized which the plan of action listed include, offences
such as being a rogue and vagabond, loitering, prostitution, failure to pay debts and disobedience to parents.
24
hand. Issues with respect to improving referral mechanisms between the formal and informal justice
mechanisms which is an important component of the diversion process was paid worth attention
under the plan of action including decriminalization of some offenses.105

2.6 Diversion from the Perspective of Core Juvenile Justice Principles

Juvenile justice system is a constituent of different basic and core principles that guide the manner as
to how children in conflict with the law be held under the system of judicial and informal
proceedings. The rationale behind these juvenile justice principles is to guarantee the protection for
the human rights of children for the mere fact that, children because of their age and level of maturity
need special protection and care by any organ undertaking juvenile justice matters. The principles
constitute the core component of the juvenile justice system under the CRC and other binding and
non-binding international and regional child rights instruments.

2.6.1 Non-discrimination
This principle stands for the protection of the rights of the juveniles from any form of biased and
unequal treatment resulting from the child’s or his or her parents or legal guardians, race, color,
gender, language, religion, political or other outlooks, national, ethnic or social origin or descent,
property, disability, medical situation, birth or other status. 106 Juvenile justice system are obliged
under international child rights framework to taking policy measures that avoid de-facto
discrimination and disparities as well as measures for the de-criminalization of certain behavioral
(status) offences 107 through implementing child protective measures that provide support and
assistance to vulnerable children, their parent and other care givers.

2.6.2 Best interests of the Child

One of the basic principles of juvenile justice among others within the ambit of the CRC is the
protection of the best interests of the child.108 The protection of best interests of the child means, for
instance, that the traditional objective of criminal justice (repression/retribution) must give way to
rehabilitation and restorative justice objectives in dealing with child offenders.109

Children by their very nature are subjected to physical, psychological, emotional and educational
limitations constituting a lesser culpability that necessitates a separate and special treatment as

105
Ibid.
106
Committee on the rights of child ,para.4(a)
107
These are offences of minor character that are the result of behavior or habitual aspect of a particular group of children
having a certain status, for instance, street children. This domain includes offences like vagrancy, truancy, runaways or
roaming the streets that are the result of certain psychological or socio-economic problems.
108
Principles of non-discrimination, dignity of the child, life and survival as well as principle of development stand on
the other end of the pillars constituting the international juvenile justice principles under the CRC.
109
Committee on the rights of the child, Para. 28
25
compared to adults. Because of these reality, the principle of the best interests of the child calls for
the juvenile justice system to focus on restoration, rehabilitation, and reintegration measures of
children towards the society by making them away from the traditional mode of repressive and
retributive character of criminal justice.110 The principle of best interest of the child calls for juvenile
justice system to prioritize non-judicial diversionary measures with regard to children in conflict
with the law than proceeding through the formal mechanism of criminal justice procedure where
appropriate and desirable.

2.6.3 Life, Survival and Development as well as Dignity

The CRC requires states parties to recognize that every child at all stages of its life and In all settings
has the inherent right to life and to ensure to the maximum extent possible the survival and
development of the child.111 In addition to this, it explicitly provides that neither capital punishment
nor life imprisonment without possibility of release shall be imposed for offences committed by
persons when below the age of 18. 112 Legislation providing for the right to development should
cover the manner in which institutions for the protection of the rights of children who come in
conflict with the law are to be operated and monitored, as this is the key to ensuring the child’s right
to development and survival. 113The CRC had provided for the states parties to recognize the right of
every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a
manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the
child’s respect for the human rights and fundamental freedoms of others and which takes into
account the child’s age and the desirability of promoting the child’s reintegration and the child
assuming a constructive role in society.114

2.6.4 Diversion as first Resort and Detention as a Measure of Last Resort

Diversion challenges the practice of retributive justice as a measure of first resort when it is based on
international instruments and adheres to restorative justice. As it encourages the accountability and
responsibility of the offender and reintegrates CICL to the community towards healing, rehabilitation
and social acceptance, it should be the standard rule and custodial measures should only be taken as
the last resort.115

110
Committee on the rights of the child , Para.4(b)
111
United Nations Convention on the rights of the child ,art.6
112
United Nations Convention on the rights of the child, art.37 (a).
113
Hamilton, C. Guidance for legislative reform on juvenile justice. (New-york: children’s legal center and United
Nations Children’s Fund (UNICEF), child protection section,2011),p.28
114
United Nations Convention on the rights of the child ,art.40(1)
115
Save the children UK, Philippines Program, 2005.Guidelines for a community based diversion and prevention program
for children in conflict with the law.p-7
26
In appropriate circumstances, alternative measures to judicial proceedings (diversionary measures)
shall guarantee that the human rights and legal safeguards of child are fully respected. This is to
mean that whenever appropriate, measures for dealing with child in conflict with the law shall not
involve judicial proceedings and non-judicial alternative proceedings shall be prioritized.116

Though principal application of alternatives to judicial proceedings, juvenile justice systems shall
make recourse to deprivation of liberty in relation to a child in conflict with the law only as a
measure of last resort that is specifically limited to the shortest appropriate period of time and shall
be subject to regular review.117

2.6.5 Principles of Child Participation and the Right to be heard

A juvenile justice proceeding has to guarantee the right of every child conflict with the law that
he/she has the right to participate in decisions affecting him or her, and in particular, to be given the
opportunity to be heard in any judicial or administrative proceedings either directly or through a
legal or other representative or appropriate body and for his or her views to be taken into account in
accordance with his or her age and maturity.118

The core juvenile justice principles dictate that diversion needs to be given primacy for the respect of
the rights of children under the criminal justice system. There could be no kind of discrimination in
juvenile diversion that is to be manifested through prior resort to alternatives to judicial proceedings
with a view to reintegrating the offender in to society. the process of diversion has to take into
consideration the child’s dignity and assuming his/her constructive role in society and to this end, the
child’s right to participation in any decision making and his/her rights to be heard needs to be
respected. Juvenile diversion mechanism has to be prioritized wherever appropriate and desirable
before resorting to imprisonment which should be used as a measure of last resort and for the
shortest appropriate period of time.

2.7 Diversion in the Context of African Juvenile Justice Systems

2.7.1 Juvenile Diversion under the Laws of some Selected African Countries in General
Nowadays, one of the positive developments emerging as a vital element of reducing incarceration
through juvenile justice reform in Africa was juvenile diversion from the judicial proceedings.119

116
UNODC 2013.justice in matters involving children in conflict with the law, model law on juvenile justice and related
commentary.p.13
117
UNODC 2013.justice in matters involving children in conflict with the law, model law on juvenile justice and related
commentary.p.14
118
UNODC 2013.justice in matters involving children in conflict with the law, model law on juvenile justice and related
commentary.p.14
119
Sloth Nielsen, j, 2008.children in African prisons. human rights in African prisons pp-117-133
27
Despite the lack of an express provision to this fact under the ACRWC, the need to promote juvenile
diversion alternatives had been given room under the Ouagadougou plan of action. Under the South
African context, the use of juvenile diversion mechanism had been given a greater legal scope under
the juvenile justice context and in a similar fashion it is at the center of Zambian child friendly court
projects and likewise Namibia by 1999 had made diversion pilot projects available at every
district.120

The Kenyan approach to juvenile diversion also follows mechanism of restricting the use of
detention at all stages of juvenile justice procedure and legislation for a wide range of alternative
sentences that enable post –trial diversion measures giving considerable power to prosecutorial
authority on access to diversion among others.121the new juvenile justice laws in Ghana and Uganda
made provisions for community participation and by affording a prominent role to village courts or
community panels in the adjudication of some minor child offending cases giving them status of first
instance court jurisdiction for minor cases giving wider scope for community based diversion
programs which allow the child to remain the community. 122 the Lesotho, south African and
Namibian juvenile justice laws set provisions which introduce a new pre-trial forum (pre-trial
inquiry) so as to strengthen referral procedures for diversion by involving role players (like probation
officers and social workers)other than the prosecutor alone with the aim of ensuring the development
and growth of pre-trial diversion acknowledging its higher relevance highly relevant in light of
scarcity of resources in these countries and the need for diversion practice in rural areas. Restorative
justice diversion practices such as family group conferences (FGCS) deriving from western justice
systems and compromising with African concepts of restorative justice and reconciliation are the
common elements of the three countries laws.123

With respect to including customary institutions and traditional African practices, for the diversion
of juveniles at rural areas, the Malawi community based programs through the community crime
prevention committees have developed restorative mechanisms emerging from the traditional ways
of dealing with juveniles. The same also holds true with regard to Lesotho.124 Due to incorporation
of the traditional concept of ‘Ubuntu’ to meaning “just say sorry” in short, the south African child
justice act,2008 in its provisions and preamble is said to have” Africanized” child justice

120
Ibid.
121
Odhiambo, The domestication of international law standards on the rights of the child with specific reference to
juvenile justice in the African context.p, 225.
122
Odhiambo..The domestication of international law standards on the rights of the child with specific reference to
juvenile justicein the African context.p.231.
123
Odhiambo..The domestication of international law standards on the rights of the child with specific reference to
juvenile justicein the African context.p.241.
124
Sloth Nielsen, j, children in African prisons.human rights in African prisons (2008.)p-103
28
proceedings.125 The idea of Ubuntu is all about issues of human dignity and respect which emerged
from the idea that individual’s humanity is wrapped up in the dignity and humanity of other
people.126The child justice act of South Africa of 2003 is heavily dominated towards diversion and
restorative justice due to its reliance and bases on the spirit of ‘Ubuntu’.127

2.7.2 Juvenile Diversion in the New Zealand Juvenile Justice Systems

2.7.2.1 Juvenile Diversion under the Laws of New Zealand in general

Diversion away from the formal criminal justice system is a key mechanism of the Youth Justice
System in New Zealand. Diversion has been described as the avoidance of harmful interventions but
also includes the minimization of negative impacts in circumstances where more harmful
interventions cannot be avoided.128 Diversion can result in the avoidance of formal court proceedings
in favor of informal action or in the least serious of matters it may be that no action is taken at all,
although this is unlikely where behavior suggests some risk of criminal offending. A further practical
outcome of diversion is the avoidance of custodial sanctions in favor of community-based sanctions.

In New Zealand, the age of criminal liability is 10 and no person can be convicted of an offence by
reason of any act done or omitted by him when under the age of 10 years. 129 The only criminal
offences with which a child (aged 10 years or over but less than 14 years) can be charged are murder
and manslaughter.130 When a child or young person faces charges for murder or manslaughter the
charge is laid, and the preliminary hearing held, in the Youth Court. If the Youth Court finds there is
sufficient evidence to proceed to a full trial, the matter is transferred to the High Court.131 Youth

125
Sloth Nielsen,J. and Gallinetti,J.2011.’’Just say sorry’’ ‘ubuntu’ and the child justice act. Potchefstroom electric law
journal 14 no.4.p.2
126
Antoinette Vermooten, juvenile sentence and intervention options in south Africa.p.4.MA thesis University of
Kwazulu-Natal.(2005).
127
Preamble: child justice act 75 of 2008 of South Africa, 2008.sub section 2(b). to promote the spirit of ‘Ubuntu’ the act
provides for fostering children’s sense of dignity and worth, reinforcing children’s respect for human rights and the
fundamental freedoms of others by holding children accountable for their actions and safeguarding the interest of victims
and the community, supporting reconciliation by means of restorative justice response; and involving parents, families,
victims and, where appropriate, other members of the community affected by the crime.
128
M. Doolan, “The Youth Justice – Legislation and Practice” in B.J. Brown and F.W.M. McElrea (eds), The Youth
Court in New Zealand: A New Model of Justice (1993).
129
New Zealand,Crimes Act 1961,section, 21.
130
In all other cases of child offending (not manslaughter or murder), the matter must be dealt with by the Family Court
under the care and protection provisions of the CYPF Act by way of FGCs. This reflects the philosophical assumption
that children who offend are not capable of appearing in Court as autonomous, responsible individuals in their own right.
Their offending must be viewed in the context of their family environment and should be dealt with on the basis that care
and protection issues are the primary cause of their offending. The Family Court, in dealing with child offenders, has a
wide array of orders and responses it can make. For instance, the Family Court (but not the Youth Court) has power to
make custody and guardianship orders, and also counseling orders, in respect of parents, guardians and any person who is
made the subject of a restraining order in respect of a child.
131
The doctrine of doliincapax applies in New Zealand to children charged with manslaughter or murder. This means that
the prosecution must prove, in addition to the proving the essential elements of the offence, that the child understood
29
Justice under the CYPF Act is governed by the following set of statutorily expressed principles that
guide the exercise of any power conferred under the youth justice provisions in the Act:132

(a) Unless the public interest requires otherwise, criminal proceedings should not be instituted against a child
or young person if there is an alternative means of dealing with the matter;

(b) Criminal proceedings should not be instituted against a child or young person solely in order to provide
any assistance or services needed to advance the welfare of the child or young person, or his
or her family, whanau, or family group;

(c) Any measures for dealing with offending by children or young persons should be designed (i) To
strengthen the family, whanau, hapu, iwi, and family group of the child or young person
concerned; and (ii) To foster the ability of families, whanau, hapu, iwi, and family groups to
develop their own means of dealing with offending by their children and young persons;

(d) A child or young person who commits an offence should be kept in the community so far as that is
practicable and consonant with the need to ensure the safety of the public;

(e) A child’s or young person’s age is a mitigating factor in determining (i) Whether or not to impose
sanctions in respect of offending by a child or young person; and (ii) The nature of any such
sanctions;

(f) Any sanctions imposed on a child or young person who commits an offence should (i) Take the form most
likely to maintain and promote the development of the child or young person within his or her
family, whanau, hapu, and family group; and (ii) Take the least restrictive form that is
appropriate in the circumstances;

(g) Any measures for dealing with offending by children or young persons should have due regard to the
interests of any victims of that offending;

(h) The vulnerability of children and young person’s entitles a child or young person to special protection
during any investigation relating to the commission or possible commission of an offence by
that child or young person.

The CYPF Act provides a legislative emphasis for addressing the needs and reintegration of youth
offenders into their communities and promoting the active participation of young people and their
families in matters affecting them. The CYPF Act also provides for a comprehensive statutory

their act or omission to be wrong or contrary to law in order for a child to be found criminally liable for manslaughter or
murder: New Zealand Crimes Act 1961 , section 22.
132
New Zealand, Children, Young Persons and Their Families Act 1989, section, 208.
30
diversion scheme as evidenced by the guiding principle of the Act in relation to youth justice which
states that criminal proceedings should not be instituted against a child or young person if there is an
alternative means of dealing with the matter and unless the public interest otherwise requires.133 The
Act aims to promote the well-being of children, young persons and their families. The process is
aimed to reduce the levels of youth incarceration and constructively deal with issues and problems
created by youth and children.134

2.7.2.2 Juvenile Diversion Practice without Legal Framework in Ethiopia- “the community
Based Correction Programs’’

The community based correction programs (CBCP) are arrangements where petty and first time
young offenders get alternative correction service instead of going through the formal criminal
justice system. The CPCPs are implemented through community based correction centers (CBCCs)
the centers operate under the police as part of the CPU engagements.135The operations, however,
bring together the NGOs, police, families, elders, teachers, and volunteers. The practice was
introduced by FSCE in conjunction with Addis Ababa city police commission (AACPC) as an
extension of the CPU services in the city around 2004. 136 The centers were established with the
objectives of preventing child involvement in crime and reducing the involvement of young
offenders stay in custodial institutions with a view to avoiding the trauma and stigma sustained from
their involvement in justice process that would be followed by a criminal label through targeted and
individual rehabilitation mechanisms and increased network between the police and the
community.137 Here, children in conflict with the law are corrected specifically targeting on pre-
delinquent children identified for being highly vulnerable to become potential offenders, for instance
high risk street children, and petty first time young offenders aged between 9-15 years.138

133
Ibid.
134
Her Honour Judge Carolyn Henwood "The Children, Young Persons and Their Families Act 1989 (NZ) – A Judicial
Perspective in 1997", Address on 22 July 1997 at Judicial Commission of New South Wales Seminar Series, published
(1998) TJR 215, 215.
135
Save the children, Sweden, ‘’child protection and child friendly justice, lessons learned from programs in Ethiopia’’.
Executive summary no.2 layout I,(2012)P.6. Child Protection Units(CPU) are units first established under AACPCin
1996 with a view to assessing the cases of children accused of crime using a police officer and community worker that
may release the child under the responsibility of parents/guardians;divert the child to the community based correction
program or refer to a juvenile court. The number grew from the original five and to date CPUs are fully operational in all
of the sub city policestations in Addis Ababa and in major towns of the regional states including Nazareth, BahirDar,
Dessie, Dire Dawa, Shashemane, Hawassa and Wolaytasodo.
136
Ibid.
137
Ibid.
138
Baffa T, Introducing child protection and child friendly justice in a society with complex socio-economic challenges,
experiences and lessons from Ethiopia. (Sweden: save the children,2011) pp.60-62

31
Despite a greater contribution for juvenile diversion, studies suggest that these community based
correction programs face different sorts of challenges ranging from the absence legal coverage of
their activities for juvenile diversion to a lesser focus of government on their activities and lack of
community roles. To this end, Tsegaye provided that, despite absence of law that specifically
authorizes and provides guidance to do so, diversion of children in conflict with the law to a
community based correction program was widely practiced.139 However, the Ethiopian criminal law
has no clear provision for the diversion of young offenders to an informal system of rehabilitation
and correction. As a consequence, the community based correction centers do not have a basis to
operate under the law. Parents are not obliged to cooperate and there is no legally enforceable way of
ensuring children completes their program drop- out rates are high.140 It is this fact that enabled these
community based correction program to have a de-facto rather than de-jure existence in Ethiopia.

Other study by kumneger founded that, there is no commitment and support from the government or
other civil societies in filling the legal as well as financial constraints sustained by FSCE to running
the CBCP in Addis Ababa.141 This situation has arisen even though juvenile justice is the primary
responsibilities of the government. He also stated that the Federal Supreme Court child justice
project office and Addis Ababa police commission, who are assessing the FSCE in the
implementation of the CBCP, are not really engaged in shaping up a child rights based approach to
diversion in Addis Ababa. Beyond the great potential for CRBA to diversion derived limited good
practice and lessons learned by the CBCP in Addis Ababa ,a rights based approach to diversion is far
from being realized.142 The principle of non-discrimination, which is one of the cardinal principles of
a CRBA to juvenile justice, is not recognized since street children are denied their right to diversion
into the CBCP because of the fact they do not have parents to monitor their participation in the
diversion program. Besides this, the limited geographical coverage of the program has excluded
many CICL from the CBCP since it is limited to three out of the ten sub cities in Addis Ababa. The
Ethiopian civil society’s law also restricts the activities of the CBCP since it prohibits the FSCE
from participating in child rights and advocacy work.143 These programs on the other hand are not
geographically accessible all over in Ethiopia, beyond Addis Ababa and some other major cities of

139
Ibid.
140
Save the children, Sweden, ‘’child protection and child friendly justice, lessons learned from programs in Ethiopia’’.
Executive summary no.2 layout I,(2012)P.6.
141
KumnegerGirma, A child rights based approach to diversion in Ethiopia: An analysis of the community based
correction programs in Addis Ababa.MA thesis.International institute of social studies.TheHague.Netherlands.(2015.)p-
60.
142
KumnegerGirma, A child rights based approach to diversion in Ethiopia: An analysis of the community based
correction programs in Addis Ababa, p-106
143
KumnegerGirma, A child rights based approach to diversion in Ethiopia: An analysis of the community based
correction programs in Addis Ababa, p-61
32
the country there is no know how about juvenile diversion itself. In this perspective, Mohammed
Berhan Kahsay in his study conducted in Tigray regional state on the administration of juvenile
justice founded that, there is no know how about the concept of juvenile diversion in the region and
as the result courts only impose reprimand; censure if the suspected child is between nine and fifteen
years old and if the offence committed is not grave in nature.144

The committee on the rights of the child in its concluding observation (2015) regarding Ethiopia has
already affirmed the inaccessibility of diversion measures discussed so far. It goes on through stating
that ‘’Ethiopia had to ensure that detention of children remaining a measure of last resort and to
strengthen the availability of and quality of alternatives to detention including education,
rehabilitation and reintegration’’.145 Ethiopia is also expected to ‘’Address geographical disparities in
terms of access to justice and take all appropriate measures to expand psychological and legal
counseling as well as social and rehabilitation services to all regions of the country including in the
rural and remote areas and focusing particularly on vulnerable children in conflict with the law’’.146

Having the above challenges on the community based corrections as juvenile diversion mechanisms
in Ethiopia, the position of this research work would focus on those steps that Ethiopia had
undertaken with a view to address juvenile diversion constraints resulting from lack of legal
framework. To this end, juvenile diversion under this thesis would extend beyond the community
based correction programs and it focuses on the analysis of gaps appearing in the course of legal
reform in diversion in Ethiopia by taking a lesson from the experience of the Kenyan and New
Zealand legal frameworks perspective.

144
Mohammed berhanKahsay, juvenile justice administration: The case of Tigray regional state.LL.Mthesis.Addis Ababa
University(2015).p-47
145
Committee on the rights of child, concluding observation on the combined fourth and fifth periodic reports of
Ethiopia,CRC/C/ETH/CO/4-5,3 June 2015,para.72(d).
146
Committee on the rights of child, concluding observation on the combined fourth and fifthperiodic reports of Ethiopia
,para.72(f).
33
CHAPTER THREE: A LESSON FROM THE EXPERIENCE OF THE
KENYAN AND NEW ZEALAND LEGAL FRAMEWORKS FOR THE
DIVERSION OF CHILDREN IN CONFLICT WITH THE LAW IN THE
ETHIOPIAN CRIMINAL JUSTICE SYSTEM
3.1 Introduction

Ethiopia and Kenya are two African countries that are located at the eastern edges of the continent,
Africa. Beyond their common adherence to the African Union (AU) the former Organizations of the
African Unity (OAU), both of them were signatories to the African charter on human and people’s
rights (ACHPR) and have common background in relation to the African charter on the rights and
welfare of the child (ACRWC).

The Kenyan juvenile justice framework was used to be governed by children act No 8 of 2001 until it
is recently replaced by Child Act No. 29 of 2022. Diversion can be deduced from the provisions of
Section 18 of the Children’s Act 2001 which outlaws deprivation of freedom of a child in addition to
Section 6 which gives that children should not be isolated from their guardians. New Zealand is a
huge island within the southwest Pacific Ocean. Children, Young Persons, and their Families Act
(CYPFA) was passed in 1989 and is a major statute that governs juvenile justice, directing, inter
Alia, proceedings against young wrongdoers before the Youth Court and containing different legal
consequences for dealing with young persons who have offended the law. It has a vital significance
within the juvenile justice frameworks. Diversion was the subject to this law in New Zealand. Thus,
this study was basically made as to how far the best juvenile justice principles also called best
juvenile diversion practices incorporated in the country's criminal justice system legal and policy
frameworks: namely, having non-discriminatory, best interest of child based, diversion as first resort
and detention as a measure of last resort and clearly recognize child participation and the right to be
heard use written diversion agreements and prevent future prosecution.147

In Ethiopia, juvenile diversion had not been the subject of legal coverage for a long time. The laws
that govern the criminal justice system like the criminal procedure code of 1961 and the FDRE
criminal code of 2004 do not have a single provision with respect to diversion towards alternative
programs and practices out of formal criminal justice system. Through criminal justice policy of
2011 reforms were undertaken and Ethiopia currently had come up with the concept and mechanisms
of diversion through the FDRE Draft Criminal Procedure and evidence Code. Although this draft
criminal procedure code is a legislation which is currently ineffective, it is possible to assume that it

147
Jill F et al, Best Practices in Youth Diversion (2018) 13 https://the institute.umaryland.edu/media/ssw/institute/md-
center-documents/Youth-Diversion-Literature-Review. (accessed on 15 January 2022).

34
could be adopted sooner in near future. Hoping this fact as it is, the diversion mechanisms provided
under the FDRE draft criminal procedure and evidence code have been the subject of juxtaposition
and contrast with those of the Kenyan and New Zealand legal tools so far. Such study might assist
the juvenile justice reform currently under way in case where important experiences in juvenile
diversion mechanisms were transplanted to the Ethiopian juvenile justice system. Under this chapter
the study was done on various diversion options, role provided for various stakeholders in diversion,
provisions for post diversion review and regulation mechanisms and other international parameters
provided under international juvenile justice instruments including lessons Ethiopian system could
adopt.

3.2 Juvenile Justice Laws and the Place for Diversion in Ethiopia, Kenya and New Zealand

3.2.1 The Ethiopian Juvenile Justice Legal Framework at a Glance

3.2.1.1 The FDRE Constitution, 1995

This constitution is the supreme law in Ethiopia from where all rights, duties and privileges of
Ethiopian people should emanate from. Any other law, customary practice or decision of any other
organ of the state or other authorities contravening this law is of no effect in Ethiopia.148 The rights
of child have been recognized under article 36 of the constitution that the best interest of the child
could be prioritized with respect to any decision regarding the child.149 Public and private welfare
institutions, courts of law, authoritative authorities, or legislative bodies have the obligation under
the constitution to respect the best interest of the child. Beyond the absence of express provision for
juvenile diversion under subsidiary juvenile justice laws in force, the FDRE constitution is also quiet
on the parts of customary mechanisms that contribute to diversion. Customary dispute resolution
mechanisms have an important contribution to channeling children in conflict with the law absent
from formal criminal justice proceedings. To well address the best interest of the child which the
FDRE constitution had given for children in the area of juvenile justice framework through
diversion, it might be vital for the constitution to be clear in its position concerning customary
mechanisms. Children existing especially in the geographically inaccessible and socio-economic
backgrounds would not get the opportunity to be beneficiaries of formal juvenile diversion
mechanisms within the frame of limited community based correction mechanisms. Customary
dispute resolution mechanisms have a more prominent potential in solving the limitations resulting
from the inaccessibility of such formal diversion programs due to their availability and cost

148
The FDRE constitution, 1994,Art.9(4)
149
The FDRE constitution, 1994, Art.36(2)
35
effectiveness in the community. Their operation in the juvenile justice system, hence, has remarkable
contribution and as a result, requires constitutional support.

In spite of the fact that the silence of the FDRE constitution would not prohibit subsidiary laws and
policy frameworks from recognizing the dispute resolution mechanism so far, it's a clear guarantee in
civil cases and the silence on criminal issues may raise the question of irregularity of subsidiary laws
with the constitution. At its best, the FDRE constitution had better guaranteed the protection for the
best interest of the child in different choices rendered by any judicial or administrative organ. The
provision has a paramount significance address the protection of the rights of juveniles in the
juvenile system moreover.

Article 36(2) of the constitution provided that:

“In all actions concerning children undertaken by public and private welfare institutions, courts of
law, administrative authorities or legislative bodies, the primary consideration shall be the best
interest of the child’’.

The best interest of the child in the juvenile justice administration refers to paving the way for
rehabilitation and restorative justice objectives leaving away those traditional objectives of criminal
justice such as repression and retribution.150 Reinforcing customary dispute resolution mechanisms
under a constitutional base would extend the guarantee for the best interest of the child through
diversion which the FDRE constitution had already recognized for children. In cases where children
in conflict with the law prefer to have their issues heard through mechanisms of Ethiopian customary
character and other restorative justice mechanisms, their best interest in such frameworks have to be
ensured. Decisions to be rendered by other informal institutions must also have to be taken into
consideration in the best interest of the child from the viewpoint of juvenile diversion.

3.2.1.2 The FDRE Criminal Code, 2004

This criminal code151 classified children into three categories. Children below the age of nine (9)
those who are completely or absolutely irresponsible for their actions, and as to result no any form of
judicial or other measure be taken. This is due to the assumption that such children are incapable to
understand the nature and consequence of their actions. 152 The next category includes those
children’s who are called young persons under the age level ranging 9-15 who are not subjected to

150
Committee on the rights of child ,para.10
151
Federal Democratic Republic of Ethiopia criminal code, proclamation No.414/2004
152
Federal Democratic Republic of Ethiopia criminal code, art.48
36
ordinary penalties for adults but to special measures provided under article 157-168 of the code.153
The final section of children under the code includes those existing under the age level of 15-18 that
beer the same level of responsibility as adults. In reference to this the code provided that,

“If at the time of the commission of the crime, the criminal was over 15 but under 18 years of
age, he shall be tried under the ordinary provisions of this code”.154

These groups of children are subject to ordinary procedure of trial for adults and not under the
special procedure for the young offenders. However, due to their still young age level existing below
18 years, the law provides for the court an alternative means of mitigating sentence depending on the
age level to apply the special measures for young persons. The specific provisions under the code
states that,

“The courts may, in assessing sentences, take into account the circumstance of the case, in particular
the age of the criminal, his incorrigible or dangerous disposition and the likelihood of his reform,
either by applying the general provisions regarding ordinary mitigations of penalties (art.179) or by
applying one of the special penalties specified for young persons ( Arts.166 -168)”.155

Even though the code provided for young persons for judicial non-custodial alternative as a general
measure and those of 15-18 years such measures as a mitigating circumstances, the code suffers from
the lack of provisions related with diversion of juveniles towards non- judicial non –custodial
alternatives in community. Diversion being a mechanism to steer children away from the process and
procedures of formal criminal justice system towards informal non-judicial non-custodial
mechanisms aiming at the rehabilitation and re integration of juvenile offenders to the community,
the position taken by the court prefers only court oriented non-custodial alternatives and ignores
diversion.

The FDRE criminal code with respect to young offender’s rehabilitation had adopted a form of
alternative remedial measures that could be applied only by the court after conviction. These
diversionary measures are the so called judicial non-custodial measures. Under Art.53 of the code it
is provided that:

153
Federal Democratic Republic of Ethiopia criminal code ,art.53(1)
154
Federal Democratic Republic of Ethiopia criminal code , art. 56(1)
155
Federal Democratic Republic of Ethiopia criminal code ,art.56(2)
37
 “Where a crime is committed by young person between the age of nine and fifteen years, the penalties and
measures to be imposed by the courts shall be only those provided in article 157-168 of this
code.”156

The measures those provided particularly under articles 158-162 of the code are of judicial non-
custodial character. 157 While referring to the manner of application of such measures for young
offenders the provision stated that;

“The provisions of articles 158-168 of this code shall not apply unless the criminal is convicted.”158

“In all cases where the crime provided by the criminal law or the law of petty offences has been
committed by a young person between the age of nine and fifteen years (art. 53), the court shall order
one of the following measures having regard to the general provisions defining the special purpose to
be achieved (art. 55) and after having ordered all necessary inquires for its information and guidance
(art.54)”.159

The FDRE criminal code in providing the measures and penalties for young persons had sorts of
constraints regarding diversion. Firstly, it only provided for the court to order measures for juvenile
rehabilitation. The prosecution and the police were not provided with any opportunity to realize
young offender’s rehabilitation and reintegration into community before appearing before the court.

Secondly, the measures for the rehabilitation of juvenile offenders provided under articles 158-168
are judicial non-custodial measures. Even though these measures were diversionary in nature, they
are not applicable by other law enforcement organs or informal institutions but only by court. As a
result, they could not avoid that trauma to be sustained by young offenders resulting from court
appearance. On the other hand, criminal labeling could not be avoided as there is register of the
juvenile on criminal records. Recidivism and feelings of criminal labeling could develop in the mind
of the young offender in cases where the order only depends on court oriented procedures.

Thirdly, the FDRE criminal code provision for rehabilitation and reintegration of young offenders do
not provide any other alternative measures other than judicial proceedings. Measures in the form of
restorative mediation and conferencing, cautioning, apologies and the like emanating from the
Ethiopian informal dispute resolution mechanisms or other pretrial non-custodial measures have not

156
Federal Democratic Republic of Ethiopia criminal code, art. 53(1)
157
These measures include the provisions of the criminal code under art.158 admission to a curative institution, art. 159
supervised education. Art. 160 reprimand; censure, art.161 school or home arrest, art 162, admission to corrective
institution.
158
Federal Democratic Republic of Ethiopia criminal code,art. 53(2)
159
Federal Democratic Republic of Ethiopia criminal code , art.157
38
been prioritized. Last but not least, the police, prosecution, social workers or other informal non
judicial dispute resolution institutions that provide pretrial decisions fit for juvenile rehabilitation and
reintegration were not opted for young offender’s rehabilitation measures using informal alternatives.
One of the basic principles of juvenile diversion being the empowering of such organs with the
authorities to make juveniles away from the dock of the formal criminal justice machinery, the
provisions of the FDRE criminal code unfortunately had failed to address these issues.

3.2.1.3 The 1961Criminal Procedure Code

The criminal procedure code provided for a special procedure in cases concerning young persons
under article 171 which reads as:-

“Criminal cases concerning young persons shall be tried in accordance with the provisions of this
chapter”.160

There exists a chapter of ten articles containing such special procedures for young persons that
include procedures for complaint and accusation, arrest, investigation, charge and plea, trial,
judgment, sentence and appeal.161

As provided under article 172 of the criminal procedure code:

“In any case where a young person is involved, he shall be taken immediately before the nearest woreda court
by the police, the public prosecutor, the parent or guardian or the complainant”.162

This provision guides the police, the prosecution, and the parent to take the child to the nearest
woreda court in any case where the young offender is involved in crime. Whatever crime involving a
juvenile irrespective its gravity needs the approval of the court for ant action to be taken. In minor
cases the court after hearing the case of juvenile would direct the police to investigate,163and where
the crime is grave in nature the court could either order the prosecution to frame the charge,164or
transfers the young offender to a higher court.165

No opportunity is provided as an alternative to judicial proceedings for consideration of cases of

young offenders. The police and prosecution have no any power of deciding over matters of
juveniles either judicially or in alternative measure to judicial proceedings as provided. Even though
the the criminal procedure is silent about the power of police and prosecutor to decide over matters

160
Criminal procedure code of Ethiopia, proclamation no.185 of 1961, art.171
161
Fisher S, ‘’criminal procedure for juvenile offenders in Ethiopia,’’journal of Ethiopian law 7, no, 1(1970) p.127
162
Criminal procedure code of Ethiopia , art.172(1)
163
Criminal procedure code of Ethiopia, art,172(2)
164
Criminal procedure code of Ethiopia, art,172(3)
165
Criminal procedure code of Ethiopia, art,172(4)
39
of juveniles, the reconciliation directive provided with power over juvenile matters in the case of
offences which under the law may be prosecuted and punished only upon a formal complaint by the
injured party or those deriving rights from the victim.166 The criminal procedure code rushes directly
into judicial procedure than providing for alternative procedures than resorting to judicial
alternatives. In this dimensions, limitation in avoiding psychological and criminally feelings and
attitudes on young offenders that may result from resulting from arrest and court proceedings was
not worth considered.

Due to its age old character, the criminal procedure code had adopted more of repressive and
retributive concept of criminal justice as it resorts to accusation and arrest as well as investigation
procedures. Rooms were not provided for alternatives to judicial proceedings under the Ethiopian
criminal procedure code of 1961. Even in minor criminal cases to which diversion is generally
recommended, the position the criminal procedure has taken is inclination towards police
investigation not alternatives to judicial proceedings. The code is not open for including some
principles of international juvenile justice administration particularly under the CRC and the Beijing
Rules which focus on channeling of children away from court proceeding s in appropriate cases, due
to its precedence.

3.2.1.4 The FDRE Criminal Justice Policy of 2011

The FDRE criminal justice policy is a comprehensive framework in juvenile justice system in
Ethiopia with a primary aim of reforming the criminal justice system in the country. The criminal
justice policy is marked as an instrument for the implementation of the principles, values, and
provisions of the criminal justice administration mechanisms laid under the FDRE constitution up on
its coming into force. In addition to this, beyond minimizing and avoiding problems resulting from
the lack of effective policy framework for a long period in the countries criminal justice system, it is
believed to have introduced a number of new legal views, systems and mechanisms as a result and it
is considered as an instrument witnessing a key vital event in the criminal justice reform in the
country.167

Laying foundation for better mechanism of handling juveniles (young offenders) is one of its basic
criminal justice reform objectives. The criminal justice policy provided for alternative (diversionary)
measures to judicial proceedings referred to under the policy as “alternative remedial measures”.
With regard to diversion of juveniles, the criminal justice policy has provided a basis for the
recognition of mechanisms for the informal reintegration and rehabilitation of children in conflict
166
Reconciliation Directive of Ethiopia 01/2012 art.4 and 6.
167
Federal Democratic Republic of Ethiopia Criminal Justice Administration Policy 2011.
40
with the law. Even under its preliminary analysis, the policy has recognized juvenile diversion as
“alternative remedial measures” through the amendment of the criminal code of FDRE 2004 and the
criminal procedure code of 1961.168

3.2.1.5 The FDRE Draft Criminal Procedure and Evidence Code

Now days Ethiopia is on the process of drafting a new criminal procedure and evidence code that
replace the 1961criminal procedure code aiming at making criminal code provisions in line with the
FDRE constitution and to making the fundamental human rights freedoms in the criminal justice
system in compliance with the international human rights instruments, agreements and principles
ratified by Ethiopia. 169 The FDRE draft criminal procedure and evidence code is related with
addressing various legal lacunae existing under the 1961 criminal procedure code that would
facilitate an easy implementation of the provisions of the FDRE criminal code and to cope up with
many other changes under the criminal justice system.

With regard to juvenile diversion, the FDRE draft criminal procedure and evidence code included
and it came up with alternative remedial measures in which the concept of diversion would be
included. 170 As per the FDRE draft criminal procedure and evidence code, “alternative remedial
measures” refers to a procedure where by a suspect or an accused person shall be provided with
alternative mechanisms or processes other than the formal justice system for the crime committed.
The diversion for juvenile offenders is not provided under a separate part like those other issues
related with juvenile justice. The manner of giving recognition for juvenile diversion under the code
is in the portion together with other alternative remedial measures applicable for adults also.

The applicability of these alternative remedial measures for juvenile diversion was included under
the draft in which children in conflict with the law are provided as those persons subject to such
measures. With respect to empowering different stake holders in diversion, the draft code had
provided the police, prosecution and the court with certain functions in their role of performing
alternative remedial measures for children in conflict with the law.

168
Federal Democratic Republic of Ethiopia preliminary analysis of the legislation requirements of the criminal justice
administration policy 2009,p,15.
169
Preamble: Federal Democratic Republic of Ethiopia draft criminal procedure code, available at http//:www.moj.gov.et/
170
Federal Democratic Republic of Ethiopia draft criminal procedure code, Book 1,chapter 3, section 5.
41
3.2.2. The Kenyan Juvenile Justice Laws and Juvenile Diversion

3.2.2.1. Constitution of Kenya, 2010

This is the supreme law in the country171 and gives that a child’s best interests are of fundamental
significance in any matter concerning the child. It advocates for detainment to be considered only a
last resort measure and on any occasion, the child is confined, they are to be isolated from adults and
in conditions that take under consideration the child’s age.172

The Constitution of Kenya gives for a progressive bill of rights that ensures economic, social,
cultural, education, equality, social security rights, freedom from discrimination, and political and
civil rights for all citizens. Particular provisions are made on the rights of minorities, order
individuals in society, persons with incapacity, youth, and children.

Article 53 of the Constitution makes provision for the protection of the child.

“Every child has the right to a name and nationality from birth; free and compulsory basic
education; basic nutrition, shelter and health care; be protected from abuse, neglect, harmful cultural
practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative
labor; parental care and protection, which includes equal responsibility of the mother and father to
provide for the child, whether they are married to each other or not; and not to be detained, except as
a measure of last resort, and when detained, to be held for the shortest appropriate period of time;
and separate from adults and in conditions that take account of the child’s sex and age.”

The Constitution also provides for the overarching principle of the best interests of the child to be
considered in all matters concerning the child. Article 53(2) of the Constitution states: “A child's best
interests are of paramount importance in every matter concerning the child.”173 The Constitution
gives that each accused individual has a right to a fair trial, to have the trial begin and conclude
without unreasonable delay. 174 Right to legal representation is additionally guaranteed by the
Constitution, Article 50(2)(h) gives that every accused person has a right: “to have an advocate
assigned to the accused person by the State and at State cost, in case significant injustice would
otherwise result, and to be informed of this right promptly.”175

171
Kenya Constitution, Art, 2.
172
Ibid, Art, 53.
173
Ibid , Art 53 (2)
174
Ibid , Art, 50(2)(e)
175
Ibid , Art, 50(2)(h).
42
3.2.2.2. The Children Act No.8 of 2001
This act commenced on 1st March 2002 and covers provisions on children’s rights in Kenya. The
Children Act is the foremost comprehensive legal framework on children's rights providing a catalog
of rights on welfare of the child, parental obligation, custody and support, guardianship, children in
need of care and protection, and children in conflict with the law. The provisions of the Children Act
on children in conflict with the law are the foremost comprehensive law having incorporated the
precepts of the CRC and the ACRWC. Section 4 of the Act states that: “in all actions concerning
children, whether undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the child shall be a primary
consideration.”176 Any course of action to be adopted must ensure that the child secures guidance and
correction which is in the child’s best interest in addition to the public’s interest. In addition, the
child is to be accorded an opportunity to express their opinion which is to be taken into account in
any proceeding. 177 Section 5 further provides that no child should be subjected to any form of
discrimination.

The Provision is made for separate courts to deal with children matters and the general principles to
be observed in proceedings in Children’s courts in Part VI of the Children Act. Section 73 of the Act
provides for special courts for children to handle all matters related to children apart from hearing of
a charge of murder or a charge in which the child is charged together with person (s) of or above the
age of eighteen years.

3.2.2.3. The Children's Act No. 29 of 2022

The Children Act is the embodiment of child rights, protection and welfare legislation. The Act
entrusts various bodies with powers to ensure children right and for provision of welfare needs and
rehabilitation services. Diversion is available as an alternative methods of holding children
accountable that intended to promote the rehabilitation and reintegration of the child which promote
reconciliation between the child and the person or community affected by the harmful conduct of the
child and Helps to minimize stigmatization of the child, and prevent a consequences of criminal
justice process.178

The newly enacted Children Act No. 29/2022 expressly requires all actions concerning children,
whether undertaken by public or private social welfare institutions, courts of law, administrative

176
Kenya Children Act No.8, section 4.
177
Human Rights Watch. ‘Rights at risk: issues of concern for Kenyan children’.(1997).
178
Children's Act No. 29 of 2022 section 226.T The Children's Act No. 29 of 2022 of Kenya. section 226he Children's
Act No. 29 of 2022of Kenya.Section226
43
authorities or legislative bodies to take the best interests of child as a primary consideration. All
judicial and administrative institutions, and all persons acting in the name of such institutions, when
exercising any powers relating to child is duty bound to treat the interests of the child as the first and
paramount consideration to the extent that this is consistent with adopting a course of action
calculated to the best interests of the child. Such as Children safeguard and promote the rights and
welfare of the child; conserve and promote the welfare of the child; and secure for the child such
guidance and correction as is necessary for the welfare of the child, and in the public interest.179
Moreover, the act requires the child to be accorded with an opportunity to express their opinion
regarding any matters affecting a child.180 Finally, the act requires the detention of a child to be a
matter of last resort.181

3.2.2.4 Diversion Policy

The diversion policy is one of the effective restorative justice instruments that emanated from the
ODPP. The policy was created under the National Prosecution Policy, Article 159 of the constitution
of Kenya, and the International Legal Frameworks.182 Diversion allows a case to be managed with
outside the criminal trial in the event that it isn't already registered in court, or taken out of the
criminal justice system at any stage before the close of the prosecution’s case, with the sole reason of
permitting parties to agree outside the court process a process that has an impact of ending a court
case, if effective. Diversion is in this manner as an alternative to prosecution. It recognizes that not
all cases ought to continue to full trial as it has been in the past. Compensation, restoration, and
reintegration are noted to be the focus of modern-day criminal law under the policy as opposed to
punishment. The policy is implied for all partners including the courts, apart from the prosecutors
and investigators. It is somewhat over five years since the policy came into effect, it'll be vital to
assess its advance within the future so far as its implementation is concerned. Restorative justice has
to work within the law hence the need to go beyond policy provision by entrenching the principles
and elements in the diversion policy into law,183 this will give confidence to all the stakeholders to
act and in effect facilitate the implementation of the policy.

179
The Children's Act No. 29 of 2022 of Kenya. section 8
180
Ibid.
181
The Children's Act No. 29 of 2022 of Kenya. section 26/7
182
Office of the Director of Public Prosecution, Diversion Policy (2015).
183
Sarah Kinyanjui, 'Definition Deadlock or a Necessary Definition Gap? Towards Infusing the Criminal Justice
System with Restorative Justice Values' (2019) 2019 E African LJ 149.
44
3.2.3 The New Zealand Juvenile Justice Laws and Diversion

3.2.3.1. Children, Young Persons, and their Families Act, 1989

The Children, Young People, and their Families Act (CYPFA) were passed to change the law
relating to children and young persons who need care or assurance or who offend against the law.
Accordingly, the new legislation set up a few interesting objectives and put a comprehensive set of
general principles that govern both state intervention within the lives of children and young people
and the administration of the youth justice system’ into statutory form.184 The Act’s goals are: to
advance the well-being of children, young people, their families and family groups by providing
available services and processes that try to address cultural needs and assist families in caring for
their young people; to help families when the relationship between family members is disturbed; to
help children and young people in order to avoid hurt, ill-treatment, mishandle, disregard or
hardship; to hold juvenile offenders responsible for their wrong- doing; to deal with young offenders
by addressing and recognizing their needs and improving their development and to advance
participation between organizations that give services for children, young persons, families and
family groups. 185 When the CYPFA was drafted, the legislature attempted to address seven
foundation concepts of youth justice such as responsibility, specificity, frugality, uniformity,
determinacy, diversion, and proportionality which reflect modern beliefs, trends, and concerns
regarding youth justice issues. Those concepts represented frustration with perspectives of the
welfare approach 186 and instead placed emphasis on responsibility by holding young people
accountable for offending behavior.187 This idea exemplified the separation of welfare and justice
processes. The foundation concepts besides aimed to set up the privilege of young people to special
protection within the course of criminal investigations and centered on the assurance of children’s
and young persons’ rights.188 Most of these foundation concepts are in accord with the spirit of the
United Nations Convention of the Rights of the Child,189 the most widely adopted human rights
instrument ever written,190 and have been implemented into the CYPFA’s principles for governing
the juvenile justice aspects. Any court or person exercising any powers under the provisions of the
CYPFA relating to offending by children or young persons must be guided by these principles191

184
G Maxwell et al, Achieving Effective Outcomes in Youth Justice – Final Report (2004), p. 7.
185
Ibid.
186
Ibid.
187
G Maxwell and A Morris, Family, Victims and Culture: Youth Justice in New Zealand (1993), p. 2
188
M P Doolan, ‘Youth Justice- Legislation and Practice’ in B J Brown and F W M McElrea (eds), The Youth Court in
New Zealand: A New Model of Justice (1993), p. 21.
189
UNCROC’, http://www.unicef.org/magic/briefing/-ss uncorc.html at 15 December 2006.
190
Tavita v Ministry of Immigration [1994] 2 NZLR 257, 266.
191
Children, Young Persons, and Their Families Act, Section 208, which also specifies that it applies to the exercise of
power under Part IV (Sections 208-320), which relates to offending by children and young persons; under Part V
45
which apply to criminal investigations, the diversionary process established by the law, and the
Youth Court itself.

The youth justice principles are provided in section 208 is that the criminal proceedings should not
be used if there is an alternative means of dealing with the matter; the criminal proceedings should
not be used for welfare purposes; measures to deal with young offenders should strengthen family
groups and foster their skills for dealing with offending by their children and young persons; the
child or young person is entitled to special protection during any investigation or proceeding;
sanctions should promote the development of youths and be the least restrictive possible; young
persons should be kept in the community as far as it is consonant with public safety; the age is a
mitigating factor when deciding on appropriate sanctions; and due regard should be given to the
interests of the victim. 192 The Act’s goals included reducing youth involvement with the courts,
promoting diversion, empowering victims, strengthening families and communities, and utilizing
culturally appropriate practices.193

New Zealand drastically reduced the number of youth arrested by enacting into law strict limitations
on the police’s power to arrest without a warrant. Instead, minor incidents are handled by front-line
police with an immediate caution or warning to the young person or diversion. 194 Restorative
practices were integrated into the youth justice process through the Family Group Conference
(Conference). The Conference brings together the youth and their family with their lawyer, social
worker, and others who can offer support, as well as the person harmed, if they choose to attend. It is
used as the standard mechanism for processing serious cases where a youth does not deny their
charges; the vast majority of minor cases are diverted and do not go through a Conference.195

By combining strict limitations on arrest and standard use of family group conferencing, New
Zealand has been able to use formal court processing as a last resort, except in cases of murder and
manslaughter. The Act’s principles emphasize involving the family group in all decision-making and
interventions. This is most clearly seen in the Family Group Conference, in which families are asked
to be fully involved in the process of determining a response to the young person’s behavior.

(Sections 321-340), which relates to Youth Court Procedure; and under sections 351-360, which relates to appeals from
Youth Court decisions.
192
E Watt, A History of Youth Justice in New Zealand, Youth Court New Zealand, http://www.justice.govt.nz/youth/histo
ry/index.html at 24 March 2006.
193
Emily Watt, “A History of Youth Justice in New Zealand” (New Zealand: Dept. for Courts, 2003): 26,
http://bit.ly/2GTGRx6.
194
Special Representative of the Secretary-General (SRSG) on Violence Against Children, “Promoting Restorative
Justice for Children” (New York: 2013), 7, http://bit.ly/2q3np6N.
195
Allan MacRae and Howard Zehr, The Little Book of Family Group Conferences: New Zealand Style (Intercourse,
PA: Good Books, 2004), 13-14.
46
The Children Act specifically provides that the welfare and interests of children or young persons
shall be the deciding factor should a conflict arise between the principles and interests of children
and young persons and their family members. 196 The emphasis on the paramount of the child’s
welfare and the best interests of the child is maintained in the Care of Children Act as well.197

There are a number of provisions in the Children Act that highlight the child’s participatory rights.198
For example, Children and young persons may attend a family-group conference unless it would not
be in the best interests of the child.199

3.3Juvenile Diversion under the Laws of the Ethiopia, Kenya and New Zealand

Generally, with a view to ensure that human rights and legal safeguards of children in conflict with
the law through diversion, pretrial diversion opportunities need to be facilitated for juveniles. Laws
enacted by states should have to contain specific provisions for power that the police, the prosecution
and /or other agencies including the court to decide on diversion side by side with complaint
mechanisms for regulation and review of diversion decisions.200

Possible cases where diversion should be allowed must be specified by law in a manner that does not
strictly limit diversion to minor offences and first time offenders only. 201 In the views of the
committee on the rights of the child,

“Diversion should be used only when there is compelling evidence that the child committed the
alleged offence, that he/she freely and voluntarily admits responsibility without intimidation or
pressure and finally, that the admission will not be used against him or her in any subsequent legal
proceedings”202 and “the child must be given the opportunity to seek legal or other appropriate
assistant on the appropriateness and desirability of the diversion offered by the component
authorities, and on the possibility of review of the measure”.203

196
Section 6 of the Act provides that, with the exclusion of Parts 4 and 5 and ss 351 to 360, in all matters relating to the
administration or application of the Children Act the welfare and interests of the child or young person shall be the first
and paramount consideration with regard to the principles set out in sections 5 and 13 of the act.
197
Section 4 of the Care of Children Act of 2004.
198
Section 4 of the 1989 Act.
199
Sections 22(1)(a)(i) and (ii) of the 1989 Act.
200
Committee on the rights of child ,para,27
201
Ibid.
202
Ibid.
203
Ibid.
47
3.3.1. The Roles of Justice Organs and other Stake Holders in Diversion

Under the international legal obligations, states are obliged to make justice organs to be provided
with a diversionary power to make children who come in conflict with the law to have their issue
considered in an alternative forum in an informal system.

A Justice organ that includes the police, the prosecution and the court, under the juvenile framework
have to be provided with a certain legal power in channeling those children who are alleged to have
committed an offence or those who come in conflict with the law.

3.3.1.1. Diversion by Police

Police diversion is the simplest form of diversion mechanism and it is highly desirable as it is limits
the child’s contacts with the justice system and is often sufficient to end the child’s offending
behavior.204 Whereas giving such power to the police in the form of cautioning or another program
within, the legislation ought to impose an obligation on the police to consider a non-judicial
alternative in each case.205

In Ethiopia, the FDRE draft criminal procedure and evidence code empowered the police with
diversionary roles in case of juveniles. It is coming up with a provision that vests the investigating
police with diverting crimes punishable with simple imprisonment of up to six months or petty
offences.206 However, it is unclear in providing the mode of diversion to be served by the police in
that it does not specify those diversion options to be provided by the police even though the draft
criminal procedure and evidence code gives room for out of court mechanisms in general terms.207
The role for the police under the FDRE draft criminal procedure and evidence code is not specified
in a manner of cautioning or otherwise.

In Kenya, Diversion is conceivable at different levels: at the community level (prevention), the
police level (capture), the court level (sentencing), and the organization level (restoration). At the
police level, pilot child diversion desks have been set up in a few police stations.208 When a child is
apprehended,209 she/he should be brought to the diversion desk of the police station when it exists. A

204
Hamilton, C. Guidance for legislative reform on juvenile justice , p.56
205
Ibid.
206
FDRE draft criminal procedure and evidence code Article 234(2) provided that “notwithstanding the provisions of
sub article 2, where the crime is punishable with simple imprisonment up to six months or a petty offence, the
investigating police or the prosecutor may decide on the case of alternative remedial measure.”
207
FDRE draft criminal procedure and evidence code Article 162-178.
208
14 police diversion desks existed in May 2006 according to NCCS figures.
209
According to the Children Act, children are not arrested but are apprehended.
48
police officer, who has been specially trained on children’s rights 210 and does not wear a uniform,
decides whether or not the child is qualified for diversion. During that time the child ought to be kept
independently from other detainees. In case the child is qualified for diversion, she/he is then
interviewed by a diversion committee composed of authorities and agents of the civil society that
decides on the opportunity or not to charge and prosecute the child. Rather than confront the child
with the criminal justice system, the diversion committee can decide to provide a caution in case of
less serious or first time petty offense, to set a reasonable bond, or to discharge the child to a
reasonable guardian or parent, or to facilitate with a children’s officer.

In New Zealand, a young person’s involvement with the justice system usually begins with police
contact.211By far the largest proportion of juvenile offending is dealt with and settled directly by the
police themselves in various ways. one of the intentions underlying the CYPFAc tis to encourage the
police to adopt restrained responses to juvenile offending except where the nature and circumstances
of the offending indicate that stronger measures are required to protect the safety of the public.212
The diversionary measures adopted by New Zealand’s police in responding to juvenile offending are
often referred to as alternative actions or informal sanctions.213 When a child or young person is
apprehended after having committed an offence, the New Zealand police have response option
arranging a diversionary plan which contains informal actions and/or a written warning.214 The New
Zealand Police are most often the first point of interaction between a young person and the justice
system and are entirely responsible for diversionary actions.215 Under the old model the police, like
the judge, had great power and therefore assumed a dominant role in the proceedings. They could
without having to consult anybody make arrests or simply issue a summons to take people to court.
They cannot issue a summons without there being a family group conference to discuss the matter
first, and if the conference agrees that it be dealt with in some other way, then no summons will
issue. It must be remembered though that the police are represented at the conference by a (police)
Youth Aid officer and therefore have the power to veto any recommendation of the conference.216

Coming to the Ethiopian system of police diversion mechanism, the FDRE draft criminal procedure
and evidence code only provides for the role of the police to divert matters relating to children in

210
According to the Programme of Juvenile Delinquent System, every officers working with children are trained how to
deal with children.
211
K Akester, Restoring Youth Justice. New Directions in Domestic and InternationalLaw and Practice (2000), p. 27.
212
G Maxwell and A Morris, Family, Victims and Culture: Youth Justice in New Zealand , p,8
213
G Maxwell, J Robertson and T Anderson, Police Youth Diversion – Final Report(2002), p.1
214
Ibid , p.40
215
Maxwell G ,The Youth Justice System in New Zealand; Restorative Justice Delivered through the Family Group
Conference’ p. 45
216
New Zealand, CYPFT Act ,section 245.
49
conflict with the law in case that concern offences punishable with not more than six months simple
imprisonment. However, it is unclear on the issue of whether the police could divert the matter on
its own power through mechanism of issuing a formal or informal warning as in the case of New
Zealand or under those mechanisms of juvenile diversion provided under the draft criminal
procedure and evidence code.

Due to lack of a law in force that govern the juvenile diversion mechanism in Ethiopia, organs for
the following up of compliances of diversion measures are yet to be recognized by the attorney
general. The establishment of attorney general by itself is a recent task accomplished in Ethiopian the
year 2016 and as the draft criminal procedure code still remains unenforceable, it’s binding effect
waits further recognition as a law under the criminal justice system in Ethiopia. This indicates that
juvenile diversion is still the unachieved de-jure juvenile justice business in Ethiopia. Provisions
with regard to the roles of probation officers, social workers and guidelines with regard to the roles
providing for the manner of participation of other organs like NGOS were not set in a clear direction.
The lack of legal backing with regard to the manner as to how such bodies undertake juvenile
diversion must have an adverse impact on the protection of the rights of children in their best interest
through diversion.
3.3.1.2. Diversion by Prosecution

Laws that govern juvenile justice system should not be reliant on mandatory prosecution of children
in conflict with the law. Taking into account the age, gravity and antecedent of the crime committed
and the interest of public in prosecution, prosecutors must be provided with discretion to refer
juvenile matters to other alternatives to prosecution like community services, mediation mechanisms
or other rehabilitation and reintegration systems.217

Currently, diversion program in Kenya apply only to children and diversion may be applied in the
cases of children in conflict with the law before or after trial. Where diversion is considered before
trial, the Prosecution Service is involved in the decision making stage to ensure the interests of the
complainant are taken into consideration and, if necessary, to help negotiate an agreement between
and the offender and the complainant. This ensures that where such an agreement was arrived at, the
matter needs not be revisited in a Court of law. During criminal proceedings, upon consideration of
the Prosecution evidence and other extenuating circumstances the Court may order diversion in the
218
best interest of the child. Public Prosecutors, and prosecutors exercising delegated authority,

217
Hamilton, C. Guidance for legislative reform on juvenile justice , p.56
218
United Nations Office on Drugs and Crime (UNODC), A Second Chance - Alternatives to Imprisonment and the
Social Reintegration of Offenders in Kenya. November 2012,Nairobi.p-26
50
determine whether a person is eligible for diversion or not. The DPP exercises State powers of
prosecution in Kenya. 219 The Office of the Director of Public Prosecutions (ODPP) Act 2013
empowers Public Prosecutors (and other persons exercising the DPP’s delegated powers) to conduct
criminal proceedings for the Government. The DPP may also formulate and review the Public
Prosecution Policy. 220 The DPP’s prosecutorial powers must be exercised independently. This
independence is a closely guarded constitutional principle. 221 A Public Prosecutor carries out
prosecutorial functions as a ‘Minister of Justice’. The primary duty of a Public Prosecutor is to assist
the court to arrive at a just decision and not merely to secure a conviction.222 Public Prosecutors are
required to comply with all of the guidelines and instructions issued by the DPP while conducting
criminal cases.223 This includes the requirement to consider alternatives to criminal prosecution, such
as diversion.224

The ODPP is a constitutional office with a constitutional mandate to exercise prosecutorial powers in
Kenya.225 The power to prosecute or discontinue any prosecution lies with the prosecutor butsuch
powers are checked by the court which has to permit such discontinuation, withdrawal, or
termination based on grounds informing such a request which have to be disclosed.226The power to
withdraw is moderated by the court. The court has to be furnished with satisfactoryreasons informing
the prosecution’s application. The courts have been discouraged from being ahindrance to the powers
of the prosecution to withdraw as the power to prosecute is with the prosecutor and not the
court.227Further, that the law does not list instances when the court maydecline the application228in
the same way it does not limit the prosecutor on grounds to invoke thelaw on withdrawal. The
prosecutor’s invocation of a diversion process before the close ofprosecution’s case, as well as the
initiation of plea bargaining negotiations with accused persons,are some of the ways of
implementing restorative justice in Kenya. The powers of the prosecution to requestfor
discontinuation by way of withdrawal are not limited by the nature of the offence, felony,
ormisdemeanour which again is a good thing as far as restorative justice is concerned.

In practice, not every offence committed results in a formal charge, nor is every charge laid by the
police fully and formally prosecuted, even if it would be likely to succeed. Diversion is a particular

219
Kenyan Constitution, Art 157(6)and ODPP Act, sections 23 to 25.
220
Kenyan ODPP Act Sections 5(1)(c).
221
Kenyan Constitution Art 157(10) as read with ODPP Act, Section 6.
222
Kenyan, General Prosecution Guidelines, Clauses 15 and 19.
223
Ibid, Clause 6.
224
Clause 4.1(i) of the National Prosecution Guidelines; Clauses 22 to 31 of the General Prosecution Guideline
225
Constitution of Kenya 2010, Art 157.
226
Ibid, Art 157(8).
227
Republic v Leonard Date Sekento Kajiado High Court Criminal Revision No.1 of 2018[2019] e KLR
228
Republic v Leonard Date Sekento Kajiado High Court Criminal Revision No.1 of 2018[2019] e KLR
51
example of prosecutorial discretion in New Zealand. It covers situations where an offender is dealt
with in an alternative manner that completely short-cuts appearing in formal institutions like court.
At the informal extreme this includes police warnings or cautions, but diversion in a more formal
sense involving some sort of diversionary plan. 229 If an offender is charged, then successful
completion of the plan which may include things like apologies, community work or reparations
results in the charge being dropped. These processes are generally reserved for non-serious offences,
and offenders with no, or minimal, criminal background. Dishonesty offences like burglary are
generally considered too serious to divert, as are violent offences.230

Initially, it is the court only that is empowered to admit the criminal case involving child in conflict
with the law.231 The public prosecutor or police may exercise its power upon the courts direction as
to what possible measures to be taken before resorting into criminal trial.232 The FDRE draft criminal
procedure and evidence code gave power for the prosecution in juvenile diversion under the
alternative remedial measures provisions. The prosecution is given the power to decide on criminal
case existing at any level of investigation, prosecution or judgment process to be subjected to
alternative remedial measures by him or up on initiation by the suspect, the accused or the court.233
Where the case concerns a juvenile, the court or a prosecutor may decide on the case for the
alternative remedial measures.234

The Kenyan and New Zealand’s child justice frameworks, their law allows police and public
prosecutor to directly admit the case involving child in conflict with the law and to take the
necessary diversionary measures. Moreover, both legal frameworks clearly specify on what crimes
the diversionary measures are allowed or not. The FDRE draft criminal procedure and evidence code
has failed to specify as to on what forms of crimes committed by juveniles are specifically subjected
to diversion by prosecution. The draft goes in a generalized mode of giving power for prosecution
over juvenile diversion matters. Specification has to be there under what forms of juvenile crimes the
prosecutor would divert. For instance, where a case concerns crimes punishable with up to six
months or petty offences it is both the prosecution and the investigating police that were being

229
Warren Brookbanks, ‘The Criminal Justice Process: An Overview’ in Julia Tolmie & Warren Brookbanks (eds)
Criminal Justice in New Zealand (2007) 134.
230
New Zealand Police, ‘Diversion FAQs – Who is eligible for diversion?’
http://www.police.govt.nz/service/diversion/faqs.html; New Zealand Police, ‘Police Adult Diversion Scheme Policy’
(2007) 7 http://www.police.govt.nz/service/diversion/.
231
Federal Democratic Republic of Ethiopia draft criminal procedure and evidence code,373(2)
232
Federal Democratic Republic of Ethiopia draft criminal procedure and evidence code,373(2)
233
Federal Democratic Republic of Ethiopia draft criminal procedure and evidence code,art.236(1)
234
Federal Democratic Republic of Ethiopia draft criminal procedure and evidence code,191(3)
52
endowed with the power of diversion under FDRE draft procedure and evidence code. Rather than
adopting diversion in a manner that generally empowers the police and prosecution discretion over
diversion, clear specification of what kind of diversion should have been provided by police or
prosecution could better serve protection of the rights of juveniles had the draft procedure provided
in such a way that clearly state the police and prosecutors specific areas of diversion. In this manner
this research work believes in adopting lessons from the Kenyan and New Zealand children act
would better assist Ethiopian juvenile justice reform in prosecutor diversion.

3.3.1.3. Diversion by Court

Under the FDRE draft criminal procedure and evidence code, the court is also provided with the
power of diversion of juveniles for alternative remedial measures. The court has the power to provide
a case for diversion to the prosecution and it can also decide on a case for diversion by its own.235
The term court used under the draft criminal procedure code seems every court. Every court must not
have to be provided with the power of deciding on the alternative remedial measures concerning
juveniles. It must be the juvenile court that would consider such cases. Thus, the draft code could
have stated the possibility of establishing juvenile court that is specifically focuses on the child in
conflict with the law there by state its specific roles. The Kenyan Constitution, regarding the
responsibilities of the Judiciary, specifies that in exercising judicial authority, the Courts and
tribunals must be guided by the principle that “alternative forms of dispute resolution including
reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be
promoted” (article 159(2)).236 When diversion is ordered by the Court, it normally takes into account
concerns of all the parties to the case including the Prosecution.

In the old model the court was at the Centre of things in New Zealand and it was expected to be the
principal means of dealing with young offenders. Now the court is a place of last resort. The
statutory basis for the court's new position is section 208 of Children, Young Persons, and Their
Families Act 1989. It sets out as the first of several guiding principles for youth justice.

"The principle that, unless the public interest requires otherwise, criminal proceedings should not be
instituted against a child or young person if there is an alternative means of dealing with the

235
Federal Democratic Republic of Ethiopia draft criminal procedure and evidence code, art.236(1),243(2)
236
The article also stipulates that: “(3) Traditional dispute resolution mechanisms shall not be used in a way that: (a)
contravenes the Bill of Rights; (b) is repugnant to justice and morality or results in outcomes that are repugnant to justice
or morality; or, (c) is inconsistent with this Constitution or any written law.
53
matter". Different mechanisms are recognized to achieve this result. Warnings237 and formal police
cautions 238 are given statutory recognition.

The Youth Court is less formal than other courts, and the judge is more active in explaining the
procedure as well as gathering data. The punishments are less severe, and are grouped depending on
their restrictiveness into seven categories.239 The court has a stronger focus on restorative justice,
reflected in the involvement of the victims, the young person's understanding and co-operation in the
proceedings, acknowledgement of the power imbalanced by proving all young people with a lawyer,
and the restorative justice outcomes promoted.240

The current criminal justice reform process in Ethiopia has to opt for making the court a review
mechanism for diversion options that could be selected by the police or prosecution. The function of
the court must not be limited on deciding for a case for diversion or otherwise only. The court review
mechanism in juvenile diversion is important to check whether the human rights and legal safeguards
of the child’s rights were served through diversion or not.

It is recommended if the draft criminal procedure and evidence code specifies the court that decides
on any alternative remedial measures concerning the juvenile to be the “juvenile court” or the “child
justice court’’. The term court by itself is vague when the case for deciding on alternative remedial
measures for juveniles is concerned. This is due to the fact that, a child rights based juvenile justice
system needs specialized organs and procedures for juvenile offenders. So the term court concerning
diversion of cases of juveniles under the draft must have to be specifically referring to that court
empowered by law with the power of considering cases of children. Ethiopia also need to adopt
mechanisms that make the court a review mechanisms for diversion options opted by police or
prosecution. Making the court such mechanism would contribute a lot for the checking up of whether
the human rights of the child and legal safeguards would be respected with the diversion options
preferred by police or prosecution.

Diversions are one of the core successes of the youth justice system. Section208(a) of the CYF Act
1989 states that “unless the public interest requiresotherwise, criminal proceedings should not be
institutionalised against a child or young person if there is alternative means of dealing with the
matter”.241The most common method for the police youth diversionary plans for youngoffenders was

237
New Zealand, CYPF Act, Sections 209, 210
238
Ibid. Section 211.
239
Ibid, section, 282.
240
Becroft, A. 'Restorative Justice in the Youth Court: A Square Peg in a Round Hole?' in Restorative Justice Online
(May 2006).
241
CYPF Act, section 208(a).
54
an apology. These would be more frequently written, althoughsometimes in person. Reparation was
often arranged to be paid by the youth offender to the victim, and otherwise a donation to charity.242
Further to this, attending rehabilitative programmes were often a popular aspect of a diversionary
plan. The police force has responded to youth crime with a specialised task force,Youth Aid. New
Zealand is the only country in the world to have such a taskforce which involves in excess of two
hundred and twenty specialized officers whose sole objective is to cater to the special needs of young
offenders. 243 Police have significant discretion in providing‘alternative action’ for the offence if
possible, essentially to avoid criminally prosecuting the young offender. Notwithstanding, Youth Aid
offer significant flexibility when applying these alternative actions, all action plans honour the youth
justice principals and involve similar practical plans. For example, the plans may include
counselling, apology letters, informal community work,reparation agreements and others. All of
these plans have as their outcome, to rehabilitate and discourage the youth offender from committing
crime infuture by facing some consequences, with the hope of encouraging guilt as adiscourager for
the offender. Due to the involvement of families and victims,Youth Aid often may use the family or
victims response as a base for the alternative action.244 However, the ‘alternative action approach’ to
youth offending by way of warning, caution or other diversionary means, is only designed and
appropriate for low level offending. The Youth Court is a separate, specialised court held only for
youth offenders. The jurisdiction extends to any youths who have been formally charged by the
police within the ages of twelve and sixteen years old. In essence, the Youth Court deals with youth
offenders whose offences are too serious to be dealt with by police alternative action. It has
jurisdiction of all cases except homicide and manslaughter.245 Generally a young person has charges
laid in Youth Court when an arrestable offence has been committed,or after the failure of a FGC,
whereby an appropriate plan could not be agreed to.

Unlike all other Courts, the Youth Court has a unique character in both its statutory provisions and
the process adopted by stakeholders, lawyers, judges and other professionals.246

242
Maxwell, G., Robertson, J,. & Kingi, V. Achieving the Diversion and Decarceration of Young Offenders in New
Zealand. Wellington: Crime andJustice Research Centre, Victoria University of Wellington(2002).
243
Becroft, A. Youth justice in New Zealand: Future challenges, paperpresented at the New Zealand Youth Justice
Conference, 17-19 May, Wellington(2004b).
244
Ministry of Justice, Trends in Child and Youth Prosecutions in New Zealand2002-2011. Wellington: Ministry of
Justice. (2012).
245
Section 273 of the 1989 Act. New Zealand.
246
Lynch, Youth justice In New Zealand.
55
3.3.2. Diversion Options under the Ethiopian, Kenyan and New Zealand Juvenile Justice
System

Diversion programs and practices may take a form of restorative justice principles, some take a
family focused, welfare approach, and yet others use activity programs to address offending
behavior.247 Other forms of diversion options that may operate beyond placing the child in a formal
diversion program may include, police cautioning, writing an apology letter, participating in an
alternative dispute resolution forum or being placed under supervision. 248 Variety of community
based programs such as community services, supervision and guidance by for example; social
workers or probation officers, family conferencing and other forms of restorative justice including
restitution to and compensation of victims are also other forms of juvenile diversion options
developed across states internationally.

3.3.2.1. The FDRE Draft Criminal Procedure and Evidence Code

1. General Diversionary Options

Under the FDRE draft criminal procedure and evidence code currently being under way forms of
diversionary measures have been adopted in an alternative term as alternative remedial measures out
of formal justice process or alternative remedial measures in short. The measures that are aimed at
governing diversion mechanism without resort to formal justice process under the FDRE draft
criminal procedure and evidence code include those measures in the form of measures taken by
customary laws and institution, medical treatment by the suspect or accused himself or at the state
expense, professional training and professional, academic or ethical educations, community service,
restraining for a certain time or at a given place, counseling and advice.249 This an illustrative list of
diversion mechanisms as the FDRE draft criminal procedure and evidence code set provisions for the
attorney general to give recognition for other measures where necessary through subsequent
regulations.250

The alternative remedial measures under the FDRE draft criminal procedure and evidence code were
being recognized in a manner commonly applicable both for juveniles and adults. A separate mode
of diversion options that would only be applicable for juvenile offenders was not framed in like
fashion. As children need special safeguard and care due to their physical and mental immaturity,
they have to be the beneficiaries from a separate legal treatment on the basis of their vulnerability.

247
Hamilton, C. Guidance for legislative reform on juvenile justice .p,59
248
UNICEF, profile of existing diversion programs in Nigeria, 2006. P.6
249
Federal Democratic Republic of Ethiopia draft criminal procedure code,art.240
250
Ibid.
56
On the basis of this fact, form of juvenile diversion options that specifically govern the juvenile
diversion mechanisms needs to be considered on the basis of their age and maturity. Child sensitive
diversion measures must also be provided in a manner different from those for adults at least through
subsequent policies and regulations in Ethiopia. The separate juvenile justice laws of Kenya and
New Zealand seem child rights sensitive in their diversion provisions in this regard as they
concentrate on juvenile justice in general and the diversion in particular.

2. Diversion towards Customary Laws and Institutions

Customary dispute resolution mechanisms play an important role in resolving conflicts of any kind
and maintaining peace and stability in the community, using elders as mediators who are appointed
by and known to the parties and communities.251 In most part of the globe, indigenous courts, elders,
and other traditional authorities play a central role in conflict resolution.252 A rights based juvenile
justice system developed from cultural traditions of restorative justice encourages diversion from
formal court proceedings into community based mediation.253

The customary dispute resolution mechanisms which may also be termed as “informal justice
systems” are often seen as a positive tool to divert juveniles from the more retributive aspects of
formal criminal justice systems.254 In dealing with child offenders, these mechanisms have certain
merits over the formal justice systems, in that they often “concentrate on rehabilitation, reintegration
and fostering respect for the rights of others, which are also important juvenile justice principles. As
these mechanisms take place at the community level, they are likely to facilitate reintegration of the
child into that community”.255

The presence of diverse customary dispute resolution mechanisms, which well fit with the values and
principles of restorative justice, are valuable assets and offer the greatest opportunities for the
introduction and implementation of restorative justice in the Ethiopian criminal justice system. 256
Important restorative justice approaches like victim offender mediation practices could be easily
developed in order to assist the juvenile diversion system in the country. Since most of the Ethiopian
communities are traditional and religious people who live up to, and have great respect for, the

251
Enyew, E. ‘’Ethiopian customary dispute resolution mechanisms: forms of restorative justice?’’African journal on
conflict resolution 14, no 1(2014)p.149
252
Roder, T .informal justice system:challenges and perspectives. innovations in rule of law 58(2012).p.58
253
UNICEF.Took it on diversion and alternatives to detention(2010)
254
Fergus, K et al. 2012. Informal Justice Systems: charting a course for human rights based engagement. UNITED
Nations Development Programme p.149
255
Enyew, Ethiopian customary dispute resolution mechanisms: forms of restorative justice? p.149
256
Enyew, Ethiopian customary dispute resolution mechanisms: forms of restorative justice? p.150
57
customary and religious rules, the implementation of restorative justice using customary dispute
resolution mechanisms would be much easier.257

In Ethiopia, with respect to the general application of customary dispute resolution mechanisms to
juvenile diversion, the criminal laws in force and the FDRE constitution do not recognize the
application of customary mechanisms nor do they give discretionary power for law enforcement
organs and the judiciary to divert matters away from the formal criminal justice system in
appropriate circumstances to the customary dispute resolution mechanisms. Regarding the roles of
customary dispute resolution mechanisms, the specific provisions under the FDRE constitution states
that “this constitution shall not preclude the adjudication of disputes relating to personal and family
laws in accordance with religious or customary laws with the consent of the parties to the dispute”.258
The provision is the only provision under the FDRE constitution that is related with customary
mechanisms of dispute resolution.

Even though the constitution seems of the position that it acknowledges the roles of such religious
and customary institutions only with regard to personal and family matters, its silence regarding
criminal matters may not prohibit such system from being recognized under subsequent laws and
policies so as they not contravene the constitutional order and the interest of the public. The current
criminal justice reform trend shows a remarkable change in bringing a paradigm shift towards the
recognition for the role of customary laws and institution as diversionary measures governing the
juvenile diversion framework in Ethiopian future through the draft criminal procedure and evidence
code. The customary laws and institutions will be given the power of solving issues through
mediation and reconciliation as provided under the FDRE draft criminal procedure and evidence
code that extended the legal concepts provided under the FDRE criminal justice policy of 2011.
Nevertheless, the stand of the FDRE constitution still needs clarity as to whether it supports their role
in criminal matters in general and juvenile justice issues in particular.

3.3.2.2. The Kenyan Children Act of 2001

The Beijing Rules under Rule 11(1) encourage diversion wherever appropriate to deal with juvenile
offenders without resorting to formal trial processes. In addition, the consent of the juvenile and
parents/guardians is required before diverting juveniles to the programs.

The Kenya Government ratified the UNCRC and ACRWC in the years 1999 and 2000 respectively.
By signing the treaties, Kenya is obligated to enact legislation focusing on children. While the legal

257
Ibid.
258
The FDRE constitution , art.34(5).
58
and policy framework with regard to child rights in Kenya has improved tremendously with the
coming into force of Children’s Act on March 2001 which domesticated the provisions of the
UNCRC and ACRWC more still needs to be done to improve the juvenile justice system. One major
area is the implementation of a diversion program which is the channeling of children from the
criminal justice system into program makes them accountable for their actions. 259In Kenya although
the Children Act does not make express provisions for diversions it does give the trial magistrate the
discretion to make certain non-custodial orders/alternative orders.260

Currently, The Law Society of Kenya with assistance of the Canadian Bar Association has been
implementing the Strengthening Access to Justice for Children project that entails a case
management system in the Nairobi Children’s Court, and lobbying for policies on child protection
within the juvenile justice system.261This is a positive indication towards improving the children
justice system.

The Children Act No 8 of 2001 play a key part in implementing Article 53(1) (f) which provides on
the right against the detention of a child. Whether or not a child has committed a petty offense or in
circumstances where a child has committed a felony, it a general provision that children should not
be prosecuted.262 Prosecution must be the last option. The public Prosecutor must have considered all
other ways of disposing of cases against children unless the seriousness of the offense or the
circumstances of the child concerned dictate otherwise.263

3.3.2.3. The Kenyan Newly Enacted Children Act no.29 of 2022

Diversion is the term applied to various measures to ‘divert’ offenders from the formal criminal
justice system. Several diversionary options exist for young offenders in Kenya. These include an
oral or written apology to a specified person or persons, formal cautions and family conferencing.264
The child has been referred to appear at a Family Group Conference by the order of a magistrate to
convene the conference. The persons shall attend a family group conference are the child and his or
her parent, guardian, or other fit person exercising parental responsibility over the child; a children

259
Apollo Mboya, Juvenile Justice in urgent need of reforms’ http://www.standardmedia.co.ke/article/2000102391 on 24
November 2016.
260
Kenyan Children Act , Section 25,
261
Apollo Mboya, Juvenile Justice in urgent need of reforms’ http://www.standardmedia.co.ke/article/2000102391 on 11
December 2017.
262
General Prosecution Policy Clause 18(I)
263
General Prosecution Policy Clause 20
264
Kenyan newly enacted Children Act no.29 of 2022 section 230.
59
officer; a probation officer; the Director of Public Prosecution; and the victim of the alleged
offence.265

3.3.2.3. 1. The Traditional Justice System

The Traditional justice systems (TJS) refer to the systems of adopting multiple and varied systems
as the local societies they derive from. Their primary role is to maintain peace and harmony in local
usually village communities. In practice, they often exhibit a distinctively restorative character in the
management of disputes and conflict on the basis that parties will have to continue to live together in
relatively inter-dependent social settings.266 Conflict resolution amongst African communities has
since time immemorial taken the form of negotiation, mediation, reconciliation or ‘arbitration’ by
elders, diviners, healers and other respected members of the society. Communally, disputing parties
would sit together informally and resolve disputes and conflicts to maintain social harmony and
restore social bonds. Thus, all the methods of dispute resolution had the aim of restoring social
order.267 Some of the principles that guided the elders in Kenya in conflict resolution were social
cohesion, harmony, openness/transparency, participation, peaceful co-existence, respect, tolerance
and humility. Virtually all African communities depict adherence to these values explaining why the
African model of dispute resolution using elders fostered reconciliation and social justice.268

With regard to juveniles it involves the use of these traditional dispute mechanisms by the elders and
the manner in which they handled children in conflict with the law. For instance, in the Kamba
community, the Kamba justice system made use of the social ties that made the individual a part of
the community, hence dictating individual behavior. Social practices as well as the justice system
governed individual conduct. Individuals acted in accordance with the social norms for them not to
lose the benefits that accrued from being a part of the community. Relationships had to be
maintained as they formed the foundation of the community.269

3.3.2.3.2. Office of the Director of Public Prosecutions (ODPP), the Diversion Policy Guidelines
and Explanatory Notes, 2019

A range of Diversion options are available. Some are simple. Others are more complex and resource
intensive. They may require more time to complete. Some require professional treatment,

265
Ibid,section 232.
266
Dinnen S, ‘Traditional’ Justice Systems in the Pacific, Indonesia and Timor-Leste (2009)
267
Kariuki F, ‘Conflict resolution by elders in Africa: success, challenges and opportunities’ 3, Chartered Institute of
Arbitrators in Kenya, 2 (2015), 13.
268
Ibid.
269
Kinyanjui S, ‘A Genealogical Analysis of The Criminal Justice System in Kenya: Rebirth of Restorative Justice for
Juveniles?’ PHD Thesis, The University of Leicester, September 2008, 129.
60
stakeholder participation, multi–agency participation, or coordination and mobilizations of resources
from State and non-State actors.

Diversion options provided under the laws were; a formal caution administered by the prosecutor
with or without conditions ; an unconditional oral or written apology to a specified person or persons
or institution ; Reparation to the victim for emotional harm; Compensation to the victim ; Restitution
by paying compensation of any expenses incurred by the victim; Affordable, symbolic restitution to
a specified person(s), group of persons or community, charity or welfare organization or institution ;
Attending a community–based counseling session [vocational, church, school] ; A voluntary activity
providing a service to the community and Provision of some service or benefit to a specified victim
or victims.270

3.3.2.3. The New Zealand’s Juvenile Justice Laws

3.3.2.3.1. Restorative Justice Approach under the New Zealand legal framework

Restorative diversion options are most of the time characterized by taking responsibility for the harm
inflicted up on the victim through amends, repair or compensation to the victim with the aim of
resorting good relationship between the offender and the victim. 271 As provided by Hamilton,
restorative diversion approaches in the form of family based welfare procedures that may include
remedial education and probably access to mental health services, use of intensive social work,
family group conferencing and individual work with children would be used to reintegrate the child
within his or her family, school and community and build up the child’s self-esteem.272 The New
Zealand Children, Young Persons, and Their Families Act, 1989 recognizes restorative diversion
mechanisms.

The family group conference (FGCs) is the primary forum in New Zealand for dealing with more
serious juvenile offending. Today, FGCs are regarded as being one of the most promising models of
restorative justice and are a means of both avoiding prosecution and also enabling offenders, their
families, and the victims of the offence to come to some agreement which offers reparation as well as
assisting in the offender’s reintegration.273Since their introduction in New Zealand in 1989, FGCs

270
Office of the Director of Public Prosecutions (ODPP), Diversion Policy Guidelines and Explanatory Notes, 2019
clause 67
271
Economic and social council, resolution2002/12: basic principles on the use of restorative justice programs in criminal
matters,24 july 2002,para 2.2
272
Hamilton, C. Guidance for legislative reform on juvenile justice.p,56
273
K Akester, Restoring Youth Justice. p. 28.
61
have been used as decision-making processes in various fields, including child welfare, school
discipline and criminal justice relating to both juveniles and adults.274

The family group conference (FGC) is at the heart, symbolically, procedurally and functionally, of
New Zealand’s youth justice system. It is a process to make or inform agreements about formal
prosecution, pre-trial detention, interventions for criminal behavior, and responses to any failure to
abide by any agreement. The centrality of the FGC is intended to maximize opportunities for a
family and young person to meaningfully participate in the various decision-making processes of a
youth justice system response. An FGC is held to determine appropriate responses, if any, to
criminal behavior by 10- to 13-year-olds;determine if the matter can be resolved before charges are
filed in Youth Court, an “intention to charge family group conference” ;determine if alternatives to
pre-trial detention are available (custody FGC);determine appropriate responses, if any, to charges
filed in Youth Court in lieu of a trial/defending hearing (not denied/court ordered FGC);determine
appropriate responses to a finding by a Youth Court judge that the Police proved their case beyond a
reasonable doubt after a trial (charge proved FGC); Respond to any concerns about the completion of
any plan or to aid the Youth Court in exercising its discretion; and with the goal of producing a plan
to intervene in a young person’s life.275

In New Zealand, family group conferences have been regarded as successful diversionary measures
and have been applied on moderately serious offences with an exception to murder and
manslaughter.276 The Children, Young Person’s & their Families Act,1989 of New Zealand provides
for diversion of all juvenile cases with an exception to cases involving serious crimes such as
murder by backing up family group conferences.277

Concerning diversionary options New Zealand has gained international attention for its use of
restorative justice processes, particularly Family Group Conferencing (or FGC) for youth offenders,
in its criminal justice system. More unique is that these processes are rooted in statute. FGC was
introduced into the law by the Children, Young Persons and their Families Act of 1989. Maoris, who
were disproportionally represented in the registered crime figures in New Zealand, saw the reason
being that when offences occurred, their children were removed from their care and grew up outside
of (and ignorant of) the culture and communities to which they belonged. Therefore, FGC was
introduced in a new law for juveniles as a process that reflected Maori cultural practice and that
involved families in the deliberations.278

274
A MacRae and H Zehr, The Little Book of Family Group Conferences New ZealandStyle (2004), p. 12
275
Children, Young Persons and Their Families Act, section ,247(a)-(f).
276
Y.H.NG,et al , An alternative to prosecution: A comparative study between restorative service provision in
Queensland and Hong Kong. SS student e-journal. Vol. 1 (2012).p 267-313.
277
‘Save the Children .Juvenile Justice. Modern concepts in working with children in conflict with the law.’
278
Zinsstag E, Teunkens M Pali B, Conferencing: A Way Forward for Restorative Justice in Europe, European Fmum for
Restorative Justice, 2009, 168.
62
McElrea lists three elements of restorative justice that occur in FGC; a transfer of power from the
state to the community, a negotiated community response and processes which aim to provide
healing for victims and acknowledgement of accountability by offenders.279

The Family Group Conferencing (FGC), the key participants are: The juvenile offender; his/her
parents, guardian; members of the family (group) of the young offender; a representative of the
cultural authority in whose care the child has been placed; the victim of the offence or alleged
offence to which the conference relates a supporter of the victim; the youth justice coordinator; a
representative of the police; any barrister, solicitor, youth advocate or lay advocate representing the
young offender; a social worker in certain defined situations; and any other person whose attendance
is in accordance with the wishes of the family (group).280

Typically, the conference begins with prayers and introductions by participants. The coordinator then
explains the procedure before the police officer present reads out a summary of the facts of the
offence. The offender is then asked if he/she denies or admits those facts. If the offender agrees to
the facts of the offence (or at least the core portion of them), they get the opportunity to comment on
the accuracy of the police statement and the victim (or representative) can present his/her view of the
facts and can explain how the offence affected him/her. Frequently, statements by the victim are
followed by an apology or some expression of remorse by the offender. The conference participants
then discuss collectively and sometimes with emotion what should be done to repair the harm to the
victim (including the payment of restitution) and what the offender should do in order to be held
accountable for the offence.281

After a suitable discussion period, the offender is left alone with his family to discuss a suitable plan.
Once the family has had sufficient time to caucus privately, and then the entire group reconvenes to
hear of the proposed family group conference plan from the family and the offender. The proposed
plan is discussed and frequently negotiated by the parties including the police and the victim. If a
collective agreement is reached, the plan is recorded in writing by the justice coordinator. If criminal
charges had been presented in court, then the family group conference plan is presented to the court
for approval.282

Regarding the Ethiopian case, there is no any law that could aim at serving the interest of the
juveniles through by developing such restorative mechanisms under the police system or other

279
McElrea F, 'The New Zealand Model of Family Group Conferencing' European Journal on Criminal Policy cmd
Research ( I9n), 531.
280
Stewart T, FamiZv Group Conferences: Perspectives on Policy and Practice, Annandale: The Federation Press, 1996.
281
Zinsstag et al, Conferencing: A Way Fonvardfor Restorative Justice in Europe, 174.
282
Schmid D, Restorative Justice in New Zealand: A Model for U.S. Criminal Justice, Ian Axford Fellowship, 2011, 13
63
mechanism of formal justice system. In this dimension the Ethiopian juvenile justice system has a
huge gap that could be manifested through the lack of any restorative conferencing approach under
the legal framework constituting the juvenile justice system currently in force. The ongoing draft
criminal procedure and evidence code itself does not provide for exhaustive list of mechanisms for
juvenile diversion and it became open ended in a manner that gives the attorney general to recognize
other forms of alternative remedial measures (diversionary measures) through process. Ethiopia has
to share experiences from New Zealand in respect of developing restorative diversion mechanisms to
make juveniles away from resorting to formal criminal justice processes. Deviating from the New
Zealand mechanism of restorative conferencing approaches, in Ethiopia, there are structures called
community policing mechanisms under the police system that could serve important functioning in
family group conferencing for young offenders. According to studies, community policing officers
play an important role in diversion of juvenile using restorative conferencing mechanisms. 283
Mechanisms that involve community groups, community policing officers, prosecutors and judges
beginning from the local community levels would tenably serve the implementation process of
restorative conferencing mechanisms.284 The community policing mechanisms were available up to
the grass root administrative levels in Ethiopia and structures aiming at developing restorative
diversion including the community, community policing officers, judges and prosecutors need to be
applied. All these organs being accessible under Ethiopian community, the quest for developing
restorative conferencing mechanisms for juvenile diversion would be responded well.

3.3.3. Purpose and Minimum Requirements for Diversion

3.3.3.1. Purpose of Diversion

The purpose of “alternative remedial measures” under the FDRE draft criminal procedure and
evidence code follows the same manner that the international juvenile diversion provisions
particularly under the Beijing rules and the Convention on the rights of the Children (CRC). Among
the purposes of the “alternative remedial measures” include making the accused responsible for his
acts and rehabilitation through repentance of the accused, making the public interest respected
realizing peaceful resolution of conflicts between the victim and the suspect or accused and
reintegrating the offender to society and strengthening the participation of society in the justice
system and realizing a continuing peace.285

283
Alarid, L. and Montemayor,C,‘’Implementing restorative justice in police departments. Police practiceand
Reasearch:’’an international journal 13 , no .5(2012) p 456
284
Alarid, and Montemayor,, ‘’Implementing restorative justice in police departments. Police practice and Reasearch:’’ p
460
285
Federal Democratic Republic of Ethiopia draft criminal procedure code,art. 235
64
The CYF Act is currently the governing legislation for the existing youth justice system. The new
and improved CYF Act, seeks to promote the well being of young offenders and their families and
family groups to empower families and communities with a protective focus on the child offender,
rather than punishment as the primary focus.286 The CYF Act 1989 provides a framework whereby
youth offenders were not only held accountable for their actions, but also to promote their own well-
being by encouraging the offender to accept responsibility for their actions,therefore dealing with the
offender in a way that acknowledges their own needs to provide them with the opportunity to
develop themselves in a more socially acceptable, beneficial and responsible way.287

The CYF Act, sets out a number of key objectives to govern the youth justice system. The paramount
objective is to promote the well being of children and their families.288 The Youth Court of New
Zealand lists the key objectives as “providing services which are appropriate to their (the young
person and their family) cultural needs and are accessible; assist families in caring for their children;
ensuring that young offenders are held accountable for their actions; and dealing with children and
young people who commit offences in a way that acknowledges their needs and enhances their
development”.289

3.3.3.2. Minimum Requirement

The need for the existence of sufficient evidence to convict the accused and the requirement of prior
consent of the accused for alternative remedial measures are some of the international juvenile
diversion standards particularly under the Beijing rules.290 Ethiopia has introduced a new criminal
justice policy. According to this policy the general principles guiding the referral of criminal cases to
the informal dispute resolution mechanisms are taking into account the type of crime; the character
of the accused, and the circumstances of the commission of the crime; if it is believed that the
interests of the public and the victims are better protected by the use of customary dispute resolution
mechanisms than the regular court system; If the accused or the offender is youth (juvenile), female,
disabled, elderly, non-recidivist criminal, and he\ she is accused of crimes punishable with simple
imprisonment and a reconciliatory agreement is reached between the accused and the victim.291 It
also provides the following specific conditions, which must be fulfilled to refer the criminal case to
informal dispute resolution mechanisms that include the accused person must willfully admit all

286
Lynch, N, Youth justice In New Zealand. Wellington: Brookers Ltd.(2012).
287
Ministry of Justice, Trends in Child and Youth Prosecutions in New Zealand2002-2011. Wellington: Ministry of
Justice.(2012).
288
Lunch, Youth justice In New Zealand. Wellington.
289
Youth Court of New Zealand, 2014,p.1
290
United Nations standard minimum rules for the administration of juvenile justice (‘’The Beijing Rules’’) Rule 11
291
Enyew.E A Move towards Restorative Justice in Ethiopia: Accommodating Customary Dispute Resolution
Mechanisms with the Criminal justice System. 2013.
65
ingredients of the crime and sincerely express his repentance in writing after receiving sufficient
legal advice to that effect; the accused person must ask for an apology to the victim, and must
express his\ her readiness to restitute or compensate the damage caused; and the accused person
should be informed in advance that he\she has the right to refuse the referral of the case to customary
dispute resolution mechanisms, all of which are the basic elements in a restorative justice ideal.

The FDRE draft criminal procedure and evidence code provided for these requirements in a clear
manner. The prosecution would have the obligation to prove there is sufficient evidence to convict
the accused; the alternative remedial measures are not against the public interest and the rights of the
accused and finally, shall secure the consent of the suspect or accused in writing.292 It has provided
for requirements that would ban alternative remedial (diversionary) measures from being undertaken
depending on certain condition,293 and gravity and nature of crime that would absolutely prohibit
referral of maters to alternative remedial measures.294

The Kenyan Office of the Director of Public Prosecutions (ODPP), Diversion Policy Guidelines and
Explanatory Notes had provided that the offender is eligible for diversion is determined by Public
Prosecutor where there is sufficient evidence to support the charge and It is in the public interest to
prosecute the case.295

In the Kenyan legal framework, the existence of sufficient evidence to support the charge, public
policy reasons to initiate a prosecution and the fact that an offender has made a clear and reliable
admission that s/he committed the offence were the pre-requisites for diversion.296

Diversion on charges of murder, robbery and rape and special category offences will be rare (Serious
Offences). Not all crimes involve an identifiable victim. If the victim is the complainant, the
victim’s views on diversion, and their reasons for those views, should always be considered before
making a final decision on diversion. The victim’s views can also be sought on the conditions
available for diversion. 297 The law recognizes that special arrangements may be in the victims’ best
interests in criminal cases, through Court approved counseling and reconciliation programs are
available in domestic violence cases298 and are conciliation, restorative justice or other redress that

292
Federal Democratic Republic of Ethiopia draft criminal procedure and evidence code, art. 237
293
Ibid, art. 238
294
Ibid , art. 239
295
Supra note 264. Clause 51.
296
Kenyan diversion Policy,2010.
297
Supra note 264,Clause59.
298
Section 15 Protection Against Domestic Violence Act 2015. Article 50 (9) of the Constitution 2010 requires
Parliament to enact legislation providing for the protection, rights and welfare of victims of offences.
66
are recognized as means of promoting the dignity of victims.299 A Public Prosecutor may decide that
a restorative justice process is a suitable way to balance the needs of the victim and/or community.
The victim’s view will be sought to find out if s/he is willing to meet the offender.300 It is important
that the Public Prosecutor informs or keeps the victim updated during the diversion process. A Public
Prosecutor may wish to have a discussion with the victim on the proposed diversion conditions. The
Public Prosecutor shall carefully explain the advantages of diversion to the victim so they can
express an informed view. However, a Public Prosecutor is not bound by the victim’s views.301 The
Public Prosecutor must evaluate all of the relevant information to decide whether the offender should
be prosecuted or offered diversion. 302 In New Zealand diversion was introduced in 1987 as an
initiative aimed at resolving appropriate cases through means other than the formal criminal justice
system.303 It was initially designed to give first-time offenders a chance to avoid conviction but has
since expanded to encompass any offender who meets the prescribed diversion criteria. Diversion is
appropriate in cases where there is sufficient public interest in a charge being laid, but not in the
offender being convicted. The primary objectives of diversion are reparation and rehabilitation. It is
a way of holding the offender accountable and satisfying the interests of the victim, without
subjecting the offender to the full court process. An offender who is accepted into the diversion
program will be expected to comply with certain conditions. Once the diversion officer is satisfied
that these conditions are completed, the police will offer no evidence for the prosecution and the
charge will be either withdrawn or dismissed. The conditions with which the offender will be
required to comply are at the discretion of the diversion officer. Common conditions imposed
include requiring the offender to write an apology letter, pay reparation, meet with the victim, engage
in counseling or complete some voluntary community service.

3.3.4. Post-Diversion Procedures

Post diversion procedures under this study are inclusive of procedures for referral system of
complaint from the organs handling the case diversion up on the effectiveness or ineffectiveness of
the diversion process and legal consequences that would follow. The legal consequences may be
closure of the accusation file, a bar on subsequent prosecution and appeal or further referral to
another diversion institution as the case may be.

In Ethiopia, these procedures for juvenile diversion are not operational until now. The FDRE draft
criminal procedure and evidence code provides for the closure of file, absence of subsequent
299
Kenyan Victim Protection Act 2014, Sections 3(b)(iii) and 15(1)(2).
300
Supra note 284, Clause 59
301
Ibid, clause 60
302
Ibid, clause 61
303
New Zealand Police “Adult diversion scheme policy” (January 2016) .
67
prosecution and criminal record,304and no accusation or an appeal shall lie from effective diversion
decision.305 Decision to serving the former alternative remedial measure, change in an alternative
remedial measure or an institution or proceeding through formal criminal justice proceedings is what
the FDRE draft criminal procedure code and evidence code is coming up with as a remedy for the
failure of cases through alternative remedial measures.306

Organs that monitor the compliance of the effectiveness of those alternative remedial measures under
the draft criminal procedure and evidence code will be given recognition by the attorney general,307
and the attorney general while giving decision for an alternative remedial measures is expected to
prove its relevance to the accused or suspect and the crime committed and that their exist procedure
and organization for the execution of alternative remedial measure.308

The Kenyan and New Zealand child act does not clearly provide for post diversion mechanisms.

3.3.5. Mechanisms of Legal Assistance as a precondition to Juvenile Diversion

States under international juvenile justice obligation are duty bound to provide for mechanisms that
facilitate legal assistance for juvenile on the desirability or otherwise of diversion mechanisms. The
committee on the rights of child ruled that,

“The child must be given the opportunity to seek legal or other appropriate assistant on the
appropriateness and desirability of the diversion offered by the competent authorities, and on the
possibility of review of the measure”.309

All children deserve protection in matters regarding the law whether they are in conflict with it or
requiring legal assistance. With respect to opportunities to legal assistance for juveniles, neither
FDRE criminal procedure code310 , nor the New Zealand CYPF act require for the need to have a
legal assistance during juvenile diversion. The FDRE criminal procedure code as well as the FDRE
Constitution expressly requires the accused person to legal assistance as a procedural safeguard.311
The Kenyan national children’s policies and Children’s Act expressly provides for legal assistance
during diversion. All children deserve protection in matters regarding the law whether they are in

304
Federal Democratic Republic of Ethiopia draft criminal procedure code, art. 247
305
Federal Democratic Republic of Ethiopia draft criminal procedure code, art. 249
306
Federal Democratic Republic of Ethiopia draft criminal procedure and evidence code, art. 248
307
Federal Democratic Republic of Ethiopia draft criminal procedure and evidence code, art. 245
308
Federal Democratic Republic of Ethiopia draft criminal procedure and evidence code, art. 251
309
Committee on the rights of child, General comment No.10-childrens rights in juvenile justice, CRC/C/GC/10,
2007.Para. 27
310
Criminal procedure code of Ethiopia, proclamation no.185 of 1961, art.174
311
Art 174 of the Criminal Procedure Code 1961 and Art 20 (5) of FDRE Constitution 1995.
68
conflict with it or requiring legal assistance.312 The Children’s court shall at the commencement of
the proceedings in court , inform the child in a language that the child understands of the right to
remain silent; the right to have a parent, guardian, close relative or probation officer present at the
proceedings; the right to legal representation; and the right to legal aid.313

3.3.6. The Place of Diversion under the Juvenile Justice System

The juvenile justice system of Ethiopia suffers from the lack of provisions referring to the “certainty
of juvenile diversion”. Nowadays, diversion has already become the central feature of child rights
based juvenile justice systems in majority of countries around the world through the CRC.

Article 40(3) of the CRC provides that:

“States Parties shall seek to promote the establishment of laws, procedures, authorities and
institutions specifically applicable to children alleged as, accused of, or recognized as having
infringed the penal law” The Beijing Rules provides guidelines for provision of child’s needs in the
creation of separate and specialized infrastructure for children in conflict with the law.

Kenya has ratified various international and regional instruments on the treatment of children who
are in conflict with the law. These include instruments that specifically promote diversion. Article
40(3)(b) of the United Nations Convention on the Rights of the Child (UNCRC) advocates measures
for dealing with child offenders without resorting to judicial proceedings. 314 The United Nations
Declaration of the Rights of the Child 1959 highlights children’s’ need for special care and
protection, including appropriate legal protection. 315 Rule 11 of the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) advocates diversion
for children.316 In Article 17(1) of the African Charter on the Rights and Welfare of the Child,
provides that every child in conflict with the law has the right to special treatment.317

The Kenyan Constitution, 2010 and national legislation on the rights of the child provided the best
interests of the child are of paramount importance in every matter concerning the child.318Children

312
Kenya, National Children’s policy, 2010.p,14.
313
Kenyan newly enacted Children Act no.29 of 2022 section 233.
314
Ratified by Kenya on 30 July 1990 (see
https://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=90&Lang=EN)
315
Declaration of the Rights of the Child (1959), Proclaimed by the General Assembly, resolution 1386 (XIV),
A/RES/14/1386, 20 November 1959
316
Beijing Rules Adopted by UNGA Resolution 40/33 of 29th November 1985
317
Ratified by Kenya on 10/08/2000 (see http://www.achpr.org/instruments/child/ratification/
318
Kenyan Constitution ,Art 53 (2)
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should only be detained as a measure of last resort. 319The best interests of the child are a primary
consideration in legal proceedings.320

New Zealand is renowned for its unique approach to juvenile justice, which is demonstrated in a
progressive and supposedly non-punitive youth justice system with a high rate ofdiversion and
various restorative initiatives.321 The CYPFA established a less punitive, more protective and more
victim-friendly juvenile justice system with wider community engagement. New Zealand took its
own path to arrive at the CYPTF Act. This Act has re- conceptualized youth justice in New Zealand,
incorporating various policy, practical and conceptual strands, which has led to descriptions of the
Act as a”cloak woven from many strands” 322 and significantly, the “new paradigm” of youth
justice.323 The main Restorative Justice intervention in the youth justice system is the family group
conference (FGC). A FGC involves the young person and his or her family working with individuals
such as social workers and the police to address the young person’s offending. Generally, a FGC can
involve helping the young person to take responsibility for his or her offending, finding ways to help
the young person to make amends, and figuring out ways in which the young person can move
forward positively. Once a plan is formulated in the FGC and agreed upon by all attendees, it
becomes legally binding and will be reviewed by Child, Youth and Family (CYF) until the tasks
within it have been completed. 324 The FGC is significant in that it allows various individuals to
collectively formulate a plan to deal with a young person’s offending outside of the formal court
system.

The provision recognizing the “alternative remedial measures” under the FDRE draft criminal
procedure and evidence code do not have any provision with respect to expressing the position of
diversionary measures in the juvenile justice system of Ethiopia like the provision under the Kenyan
or New Zealand child justice act.

The objectives section of the FDRE draft criminal procedure and evidence code does not provide for
the need to making those “alternative remedial measures” a central feature of the juvenile justice
system through diversion in Ethiopia. The existence of such an express statement under juvenile
justice laws would strengthen the position of the certain juvenile justice systems stand in juvenile
diversion through the law. Such provision could also provide an evidence on the extent as to how a
319
Ibid, Art 53 (1)(f)
320
Children Act ,Sections 4(2) and (3)
321
Lynch. Youth Justice in New Zealand.
322
Alison Cleland and Khylee Quince Youth Justice in Aotearoa New Zealand: Law, Policy and Critique (Lexis Nexis,
Wellington, 2004)p 51
323
Allison Morris and Gabrielle Maxwell “Juvenile Justice in New Zealand: A New Paradigm” (1993) 26 Aust& NZ J
Crim 72.
324
Child, Youth and Family “Family Group Conferences” .
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given juvenile justice system focus on juvenile diversion under its provisions and the rooms given
for juvenile diversion would be easily derived. Ethiopia, seen in light of the Kenyan and New
Zealand legal frameworks is still infant in leveling the ground for mechanisms of juvenile diversion.
Ethiopia is now at the era of seeing its first draft criminal procedure and evidence code ever in its
juvenile justice history coming up with certain mechanisms of steering children away from the
formal criminal justice systems through diversion. The FDRE criminal procedure code will be a solid
base for the recognition of juvenile diversion mechanism next to the ratification of CRC and the
criminal justice policy of 2011 in Ethiopia. From the Kenyan and New Zealand legal experience, this
research work would pin point some lessons that Ethiopians juvenile justice system could learn for a
better juvenile diversion reform.

3.3.7 The Need to Have a Specific and Separate Juvenile Diversion Laws

The Children’s and Young People’s Act 1989 (the Act), established principles and practices to
further the goals of reducing youth involvement with the courts, promote diversion, empower
victims, strengthen families and communities, and utilize culturally appropriate practices. The object
of the Act was “to promote the wellbeing of children, young persons, and their families and family
groups.” Through the processes New Zealand developed and implemented to reduce the use of court
processing, particularly the Family Group Conference, New Zealand became one of the first youth
justice systems to legislate and make widespread use of restorative justice practices. Childs act of
Kenya was a comprehensive legal framework on children's rights providing a catalog of rights on
welfare of the child, parental obligation, custody and support, guardianship, children in need of care
and protection, and children in conflict with the law. It was the embodiment of child rights,
protection and welfare legislation. From the Kenyan and New Zealand perspectives, adopting a
separate Children act that address juvenile diversion has a valuable contribution with respect to
juvenile diversion process, procedure and provision. It helps to clearly specify the roles and
responsibilities of each and every organ that has a role in juvenile diversion. On the other hand, it
could provide in clear terms what diversion options would specifically fit children in conflict with
the law and the process and procedures for deciding on pre and post diversion mechanisms for
juveniles would be easily set among others. From the legal reform process under the draft criminal
procedure and evidence code in Ethiopia, it is possible to say that the issue of juvenile diversion
would still need a separate law or a policy frame work as seen in the light of the Kenyan and New
Zealand juvenile justice systems.

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 CHAPTER FOUR: CONCLUSION AND RECOMMENDATIONS

4.1 Conclusion

Diversion from the conventional criminal justice system was developed in various countries across
the globe both in law and practice since a long time ago mainly with the objectives of ensuring
proper rehabilitation of the offender and reintegration to the society in one hand and avoiding
stigmatization of the offender through proper compensation to crime victim. Different Countries in
Africa and Oceania have also passed through different sorts of legal reforms with a view to
implement juvenile diversion even though their level of strength and effectiveness varies from
country to country. Thus, this study is basically aimed at drawing lessons for the Ethiopian juvenile
diversion framework from the experience of the Kenyan and the New Zealand’s juvenile justice legal
and institutional frameworks. Diversion options are most of the time characterized by taking
responsibility for the harm inflicted up on the victim through amends, repair or compensation to the
victim with the aim of resorting good relationship between the offender and the victim. It may be a
formal caution administered by the prosecutor with or without conditions or an unconditional oral or
written apology to a specified person or persons or institution.

The need for the existence of sufficient evidence to convict the accused and the requirement of prior
consent of the accused for alternative remedial measures are some of the international juvenile
diversion standards. The prosecution would have the obligation to prove the existence of sufficient
evidence to convict the accused; the alternative remedial measures are not against the public interest
and the rights of the accused and finally, shall secure the consent of the suspect or accused in writing
and measures undertaken depending on certain condition, and gravity and nature of crime.

A Justice organ that includes the police, the prosecution and the court, under the juvenile framework
have to be provided with a certain legal power in channeling those children who are alleged to have
committed an offence or those who come in conflict with the law. Police diversion is the simplest
form of diversion mechanism and it is highly desirable as it is limits the child’s contacts with the
justice system and is often sufficient to end the child’s offending behavior. Laws that govern juvenile
justice system should not be reliant on mandatory prosecution of children in conflict with the law.

The Kenya have a well-founded legal framework for the juvenile diversion starting from the
constitutional base up to the special juvenile diversion laws, namely, the Children Act, national
prosecution policy (ODDPP) which is meant for dealing with child offenders with various diversion
measures.

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Those frameworks expressly provide for giving due attention to best interest of the child, using
detention as a last resort for child in conflict with the law. Their newly enacted children act also
upholds these cores juvenile diversion principles. Moreover, the Act incorporates the Family Group
Conferencing schemes. The Kenyan framework gives high emphasis to the juvenile in all directions
starting from prohibition of isolating children from their guardians and allowing the prosecution to
request for discontinuation by way of withdrawal by not limiting diversion measures by the nature of
the offence, felony, or misdemeanour.

The New Zealand is having with unique approach to juvenile justice, which is demonstratedin a
progressive and supposedly non-punitive youth justice system with a high rate of diversion and
various restorative initiatives. The CYPFA established a less punitive, more protective and more
victim-friendly juvenile justice system with wider community engagement. They have gained
international attention for its use of restorative justice processes, particularly Family Group
Conferencing (FGC) for youth offenders, in its criminal justice system. FGC was introduced into the
law by the Children, Young Persons and their Families Act of 1989. FGC have been regarded as
successful diversionary measures and have been applied on moderately serious offences with an
exception to murder and manslaughter. The Children, Young Person’s & their Families Act,1989 of
New Zealand provides for diversion of all juvenile cases with an exception to cases involving serious
crimes such as murder by backing up family group conferences.

Diversions are one of the core successes of the youth justice system. Section208(a) of the CYF Act
1989 states that “unless the public interest requiresotherwise, criminal proceedings should not be
institutionalised against a child or young person if there is alternative means of dealing with the
matter”. The Police have significant discretion in providing‘alternative action’ for the offence if
possible, essentially to avoid criminally prosecuting the young offender.

Restorative diversion mechanisms in the form of FGC that include the formal justice personnel and
other professionals working in areas of child rights together with the community system shows an
area of gap to be addressed in Ethiopian juvenile justice laws. Prospects for developing child case
mediation strategies to solve the diversion need of children existing in remote segments of the
country side by side with the customary mediation mechanisms can have a remarkable significance
for juvenile diversion in Ethiopia. Ethiopia until now has no comprehensive and formally operating
juvenile justice laws in force that provides for mechanisms of juvenile diversion. Recently, the
criminal justice system reform was being undertaken and it brought about a comprehensive draft
criminal procedure and evidence code into view that had some provisions for juvenile diversion but
still it has a number of lacunas as identified in research that needs some critical reconsideration.
73
The FDRE criminal code and the 1961 criminal procedure code suffer from lack of provision for
juvenile diversion. Even though the criminal justice policy of the 2011 laid a ground for the
introduction of juvenile diversion as alternative remedial measures in Ethiopia, the draft criminal
procedure and evidence code of FDRE that is aimed at achieving the goal of juvenile diversion also
has various limitations. Under the draft criminal procedure and evidence code, constraints with
regard to inclusion of restorative diversion mechanisms and inclusion of some opportunities
regarding organization of child case mediation structures using lower court structures are some of the
shortcomings.

Overall diversion is not accepted as the central feature of the juvenile justice mechanism in Ethiopia
both in law and practice as there is no formally operating law in area of juvenile diversion. Even
though Ethiopia ratified the CRC as part of its domestic law, limitations in leveling the
implementation procedure for juvenile diversion were inevitable and further studies in assessing
existing opportunities for juvenile diversion in Ethiopia.

4.2 Recommendations

The following recommendations have been set from the entire conclusion reached in the course of
this study:-
 The FDRE constitution with regard to the manner of operation of customary laws and
institutions in criminal matters needs to be amended in order to be avoid some controversies
resulting from its recognition through subsidiary laws and to widely guarantee the respect for
the best interest of the child in criminal justice system through diversion.
 Before adopting the draft criminal procedure and evidence code a formally operating law in
Ethiopia, it is recommendable to take into account those lessons and experiences provided
under this work namely, specifying nature and types crime to which diversion is allowed or
not, family group conferencing and its structure, giving direct diversion power to the police
and public prosecutor even though the draft criminal procedure code comes up with
provisions for diversion.
 For the future the legislatures should come up with separate juvenile justice act governing
child offenders.
 Express provision to the centrality of juvenile diversion needs to be adopted in Ethiopian
juvenile justice legislations. Declaring diversion the central feature of Ethiopian criminal
justice system should provide diversion as a master piece that leads the aim and objectives of
juvenile justice system of Ethiopia.

74
 Ethiopia has to develop a separate law, policy framework or regulation with regard to
juvenile diversion that clearly states the specific roles of each stake holder in diversion and
exhaustive framework for diversionary options. These all have to have non-discriminatory,
best intrest of child based, diversion as first resort and detention as a measure of last resort
and clearly recognize child participation and the right to be heard.
 Provisions for the legal assistance of children on the desirability or otherwise of the diversion
mechanism have to be set under juvenile justice laws, legal assistance being important due
process guarantee under international human rights law, its significance also seen as higher in
juvenile diversion that needs legal support by states.

75
 REFERENCES AND BIBLIOGRAPHY

Books

 African child policy forum (ACPF).In the best interest of child, harmonizing laws in eastern
and southern Africa.Addis Ababa: ACPF and UNICEF, 2007.
 TsegayeDeda .Introducing child protection and child friendly justice in a society with
complex socio-economic challenges, experiences and lessons from Ethiopia. Sweden: Save
the children, 2011.
 BalaN. & Bromwich R, Introduction: an international perspective on youth
justice.InBala,N&Homick,J& Howard, N. &paetsch, J.(ed), Juvenile justice systems: An
International comparisons of problems and solutions:Toronto,2002.
 Becker, Howard.Outsiders: Studies in the Sociology of Deviance. New York: Free Press,
1963.
 Bishop, Donna M., and Scott H. Decker. “Punishment and Control: Juvenile Justice Reform
in the USA: 2006.” In J. Junger-Tas and S. H. Decker (Ed.).International Handbook of
Juvenile Justice. New York: Springer, 3–35.
 Bonnie, Richard J., Robert L. Johnson, Betty M. Chemers, and Julie Schuck. Reforming
Juvenile Justice: A Developmental Approach. Washington, D.C: National Academies Press,
2013.
 Collins, W. Andrew, and Laurence Steinberg. (2006). “Adolescent Development in
Interpersonal Context.” In N. Eisenberg, W. Damon, and R.M. Lerner (Eds.). Handbook of
Child Psychology: Vol. 3, Social, Emotional, and Personality Development. 6th Edition.
Hoboken, N.J.: John Wiley & Sons, 1003-1067. Spear, Linda. 2010. The Behavioral
Neuroscience of Adolescence. New York: W.W. Norton & Company
 Dick, Andrew J., Dan J. Pence, Randall M. Jones, and H. Reed Geertsen. “The Need for
Theory in Assessing Peer Courts.” American Behavioral Scientist 47(2004):1448–61.
 Fergus, K., McKay A., Kristiansen A., Kyed, H., Dahl L., Dalton, p., Roesdahl M. and Vehils
M. 2012. Informal Justice Systems: charting a course for human rights based engagement.
UNITED Nations Development Programme
 Hamilton, c. 2011. Guidance for legislative reform on juvenile justice. Children’s legal centre
and United Nations Children’s Fund(UNICEF), child protection section. New York.
 Heilbrun, K., Sevin Goldstein, N. E., & Redding, R. E. (Eds.). Juvenile delinquency:
prevention, assessment, and intervention. (New York: Oxford University Press, 2005) p, 1–
368
76
 Jack E. Bynum andThompson. William E. Juvenile Delinquency: A Sociological Approach.
Third Edition. Needham Heights, Mass: Allyson and Bacon. (1996)
 Konrad,Zweigert and Hein, Kötz. Introduction to comparative law. (USA: Oxford university
press, 1992).p.2
 Maxwell, G.and Morris, A.1993.Family, Victims and Culture: Youth Justice in New Zealand.
Wellington.
 Maxwell, Gabrielle, Robertson, Jeremy, Morris, Allison, Kingi, Venezia, and Cunningham,
Chris, Achieving Effective Outcomes in Youth Justice: Final Report, Wellington 2004)
 Save the children. ‘’child protection and child friendly justice, lessons learned from
programs in Ethiopia’’. Executive summary vol.2 layout I. Sweden, (2012)
 Save the Children. ‘Case Study Diversion of Children in Conflict with the Law in
Community –Based Program Centers’. Ethiopia: Save the Children. (2005) p-4.
 Save the Children. ‘The Experience of Advisory Elders in Community-Based Child
Protection Programs’. Addis Ababa,( Ethiopia: Save the Children, 2012) p-62
 UNICEF 2006.profile of existing diversion programs in Nigeria.
 Akester, Kate, Restoring Youth Justice, New Directions in Domestic andInternational Law
and Practice (London 2000).
 Maxwell, Gabrielle and Morris, Allison, Family, Victims and Culture: YouthJustice in New
Zealand (Wellington 1993).
 Maxwell, Gabrielle, Robertson, Jeremy and Anderson, Tracy, Police YouthDiversion, Final
Report, Prepared for New Zealand Police, Ministry ofJustice, (The Crime and Justice
Research Centre, Victoria University ofWellington through Victoria Link 2002).
 Maxwell G (2007b) ‘The Youth Justice System in New Zealand; Restorative Justice
Delivered through the Family Group Conference’ in Maxwell G & Liu J (2007) Restorative
Justice and Practices in New Zealand: Towards a Restorative Society, Institute of Policy
Studies, Wellington
 Lynch, N. (2012). Youth justice In New Zealand. Wellington: Brookers Ltd.
 Ministry of Justice. (2012). Trends in Child and Youth Prosecutions in New Zealand 2002-
2011. Wellington: Ministry of Justice.
 Allison Morris and Gabrielle Maxwell “Juvenile Justice in New Zealand: A New Paradigm”
(1993) 26 Aust& NZ J Crim 72.

77
Journals and Articles

 Alarid, L. and Montemayor,C. (2012). Implementing restorative justice in police

departments. Police practiceandReasearch: an international journal 13, no .5 (2012):450-463
 Alan. Watson, “Aspects of reception of law”. American journal of comparative law vol, 44.
(1996):335.
 Brian j. Safran. “Juvenile justice policy from the perspective of international human rights”,
Cardozo Law Review de.novo(2012): 304.
 Cressy, Donald R. “Application and Verification of the Differential Association Theory.”
Journal of Criminal Law, Criminology, and Police Science 43 (1952) p, 43–52, Sutherland,
Edwin H. Criminology.Ninth Edition. New York, N.Y.: Lippincott. (1974)
 Enyew, E. “Ethiopian customary dispute resolution mechanisms:’’ forms of restorative
justice? African journal on conflict resolution 14, no 1 (2014): 125-154
 Fisher, S. Criminal Procedure for juvenile offenders in Ethiopia, journal of Ethiopian law 7
no, 1 (1970):115-173
 Harris, Philip W., Brian Lockwood, Liz Mengers, and Bartlett H. Stoodley.“Measuring
Recidivism in Juvenile Corrections.” OJJDP Journal of Juvenile Justice vol, 1, issue 1,
(2011):1–16.
 Jane WaithiraMbugua , Kenya Children Sector Documentation Final August 2012.
Promoting Childs Rights; Reflections on key processes of children sector in Kenya from
1989 onwards as recorded by some national civil society actors
 Julia Sloth-Nielsen and Benyam D Mezmur. “Surveying the research landscape to promote
children’s legal rights in an African context.” African Human Rights law journal 7, no, 2.
(2007): 340.
 Loeb, Roger C., Marie Waung, and Megan Sheeran. “Individual and Familial Variables for
Predicting Successful Completion of a Juvenile Justice Diversion Program.” Journal of
Offender Rehabilitation 54, No3, (2015):212-237, Tustin, Lee, and Robert Lutes. “A Guide
to the Youth Criminal Justice Act, 2006 Edition.” Markham, Ont: LexisNexis Canada, Inc(
2005)
 Lundman, Richard J. Prevention and Control of Juvenile Delinquency. 2nd Edition (New
York, N.Y: Oxford University Press, 1993.) Klein, Malcolm W.“Labeling Theory and
Delinquency Policy: An Experimental Test.” Criminal Justice and Behavior 13(1) (1986.):
47-49.
 Okech, Clement. “The juvenile justice in Kenya”.Growth, System and Structures. Resource
Material Series No. 101:8
78
  Peter, de Cruz.”Comparative law in a changing World.” Leiden journal of international law
13, number 02 (2000): 472-477
 Roder, T.2012. Informal Justice System: challenges and perspectives. Innovations in rule of
law 58
 Rutere S.K., Kiura C.M. The Diversion Program in Kenya – Sida Review (2009):21
 Terrie E. Moffitt, “Adolescence-limited and life-course-persistent antisocial behavior: a
developmental taxonomy.” Psychological review, 100(4), (1993): 674-701
 Victoria Simpson Beck, Robert J. Ramsey, Judge Thomas R. Lipps, and Lawrence F. Travis
III. “Juvenile Diversion: An Outcome Study of the Hamilton County, Ohio, Unofficial
Juvenile Community Courts.” Juvenile and Family Court Journal vol 57, no1, (2006):1–10.
 Vernon Valentine Palmer.”FromLerotholi to Lando: “Some examples of comparative Law
methodology.”Global jurist Frontiers4, no, 2. (2004):1-29
 William Ewald. “Comparative jurisprudence (ɪ):” What was it like to try a rat? University of
Pennsylvania Law Review vol, 143, no, 6. (1995):1889-2149
 Wondirad, A.. An overview of the Ethiopian legal system.Nzacl Yearbook 19 (2013):93-117

Thesis and Dissertations

 Girma, Kumneger. A child rights based approach to diversion in Ethiopia: An analysis of the
community based correction programs in Addis Ababa.MA thesis. International institute of
social studies. The Hague, Netherlands. (2015): 3
 Kahsay, Mohammed berhan .juvenile justice administration: The case of Tigray regional
state.LL.Mthesis.Addis Ababa University (2015)
 Odhiambo, Odongo Godfrey .The domestication of international law standards on the rights
of the child with specific reference to juvenile justice in the African context. phd
dissertation. University of western cape (2005)
 Vermooten, Antoinette . Juvenile sentence and intervention options in south Africa.MA
Thesis University of Kwazulu-Natal (2005): 25

International and Regional Legal Instruments and General Comments

 The Universal Declaration of Human Rights, adopted and proclaimed by the UN General
Assembly Resolution 217A (111) on 10th December, 1948.
 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘’The
Beijing Rules’’), adopted by UN General Assembly Resolution 40/33of 29 November 1985.

79
  Committee on the rights of child, General comment No.10-childrens rights in juvenile justice,
CRC/C/GC/10, 2007.
 UN Committee on the Rights of the Child (CRC), ‘UN Committee on the Rights of the Child:
Concluding Observations, Ethiopia’, 1 June 2015, CRC/C/ETH/CO/4-5
 United Nations Convention on the rights of the child, adopted and opened for signature,
ratification and accession by UN General Assembly Resolution 44/25 of 20 November 1989,
and entered into force 2 Sep, 1990.
 United Nations Rules for the protection of juveniles deprived of their liberty (the Havana
rules), adopted by the General Assembly on 14 Dec, 1990(A/RES/45/113)
 United Nations Guidelines for the prevention of juvenile delinquency (the Riyadh
guidelines), adopted by the General assembly on 14 Dec, 1990(A/RES/45/112)

Ethiopian Legal and Policy Frameworks

 Criminal procedure code of empire of Ethiopia, 1960.

 (FDRE) Federal Democratic Republic of Ethiopia constitution, 1995
 Federal Democratic Republic of Ethiopia criminal code, proclamation No.414/2004
 Federal Democratic Republic of Ethiopia, criminal justice administration policy, 2011
 .Federal Democratic Republic of Ethiopia draft criminal procedure code, available at
http//:www.moj.gov.et/
 Federal Democratic Republic of Ethiopia preliminary analysis of the legislation
requirements of the criminal justice administration policy, 2009

Kenyan Legal and Policy Frameworks

 The Constitution of Kenya, 2010.

 Children act no.8, 2001
 Children act no.29, 2022
 Office of the Director of Public Prosecutions, Kenya, 2019
 National Children’s policy of Kenya,2010.

New Zealand Legal and Policy Frameworks

 Children, Young Persons, and Their Families Act 1989, New Zealand.

Online Publications

80
  Evans, R. (2008). Diversion.In B. Goldson (Ed.), Dictionary of youth justice.
Devon: Willan Publishing.Retrieved from http://search.credoreference.com/content/entry/will
anyouthj/diversion/0
 Models for Change. “Juvenile Diversion Guidebook.” Models for
Change: Systems Reform in Juvenile Justice. http://www.modelsforchange.net/publications/3
01
 Petrosino, Anthony, Carolun Turpin-Petrosino, and Sarah Guckenburg. 2013. Formal System
Processing of Juveniles: Effects on Delinquency. No. 9 of Crime Prevention Research
Review. Washington, D.C.: U.S. Department of Justice, Office of Community Oriented
Policing Services. http://www.ric-zai-inc.com/Publications/cops-w0692-pub.pdf
 Young, Warren, World Factbook of Criminal Justice Systems,Victoria University of
Wellington, http://www.ojp.usdoj.gov/bjs/pub/ascii/wfbcjnew.txt at 9 December2006.
 Jill F et al, Best Practices in Youth Diversion (2018) 13 https://theinstitute.umaryland.
ed/media/ssw/institute/md-center-documents/Youth-Diversion-Literature-Review. (Accessed
on 15 January 2022).

Reports

 Messele R. ‘Report on Diversion and Alternatives to Detention for Children in Conflict with
the Law in Ethiopia’. Addis Ababa, Ethiopia (unpublished report)(2011).p-11
 Human Rights Watch ‘Rights at risk: issues of concern for Kenyan children’ (1997).
 Maxwell Gabrielle, Robertson Jeremy, and Anderson Tracy. Police Youth Diversion. Final
Report, 2002.

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