Challenges faced by children while accessing justice and enjoying their human rights

The African Charter on the Rights and Welfare of the Child defines a child as a person under the age of 18 years.[1] Children are considered vulnerable persons that attract special protection from not only the State and its organs but also from its citizens. The Uganda Refugee Response Plan January 2019-December 2020 indicates that children represent 60% of the refugees and asylum seekers in Uganda. In refugee hosting areas there are many children who have been forced to seek refuge, some along with their parents, others unaccompanied or separated from their parents or guardians. In the process of seeking asylum, some of these children face physical, sexual, gender violence and psychological trauma. What, though, happens to those who enter into conflict with the law? I want to share my own encounters, as a lawyer working with refugees and their hosts, with Uganda’s treatment of children in conflict with the law.

What is Juvenile Justice?

Juvenile justice, which concerns children in conflict with the existing laws is about the specific ways of working with children who are alleged to have committed offences, including their apprehension, the procedures involved in investigating and charging them with any offences committed, decisions about whether to divert a case to informal mechanisms or to the formal justice process, and, in the latter case, the passing of age-appropriate orders by the different stakeholders.

Uganda being a state party to the various International treaties governing Children’s rights has domesticated the provisions under the 1995 Constitution of the Republic of Uganda which provides for the rights of children.  In 1997, Parliament passed an independent law providing for Children’s rights, institutions concerned and the procedure to be followed while handling Children in conflict with the law. The Children Act also defines a child to mean a person below the age of 18 years. It goes ahead to provide for children in conflict with the law and places the age of criminal liability at 12 years. As per the Refugee Act 2006, refugee children are entitled to the enjoyment of rights and freedoms enshrined in the various International, Regional and Domestic laws in place irrespective of the child’s parents or legal guardian’s race, ethnic group, colour, sex, language, relation, political or other opinion, national and social origin, fortune, birth and other status.

At the International and Regional level the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of Children, specific provisions regarding refugee children are provided. Under the two international instruments, State parties have a duty to ensure that refugee children receive appropriate protection and humanitarian assistance in enjoyment of their human rights, and to ensure that unaccompanied and separated children are given special protection through foster placement or placement institutions.

At the domestic level, irrespective of Uganda’s efforts to incorporate international and regional laws in its domestic laws, there is a gap in respect to laws in place to provide special protection to refugee children considering their level of vulnerability. Under the National Orphans and other Vulnerable Children Policy of Uganda,[2] refugee children are not specifically listed as part of the target group to benefit from the policy, though they could potentially be considered under “Children affected by armed conflict”.

Where is the gap?                                                                                                    

Despite significant advancements in the legal and institutional frameworks towards the recognition and protection of juvenile rights and justice at international, regional and domestic level, juveniles are still facing multiple obstacles compared to those encountered by adults, and that need specific attention if we are properly to protect children’s rights. There is inadequate enforcement and adherence to the existing legislation in respect to the wellbeing of children and the poor structured diversionary methods in existence.

Regardless of the existing laws governing children, their implementation by different organs and institutions which are powerful tools towards observing juvenile rights and ensuring juvenile justice cannot be underestimated.

While we greatly appreciate the efforts and contribution made by the Ugandan government, UNHCR and the different organizations in ensuring and upholding children’s rights, we cannot use these successes to turn a deaf ear to the different obstacles still faced by refugee and host juveniles while seeking to access justice and enjoy their human rights. As per the 2019 Uganda crime report, police received 10,596 child-related offences involving children as targets or victims of the crime that is child abuse, torture, desertion and neglect and 13,682 defilement cases. On the side of children in conflict with the law, in accordance with Justice, Law and Order Sector report of 2018/2019, 1,844 (1195 males, 649 females) children in conflict with the law were handled. The figure indicated in both reports is a substantial number in respect to the vulnerability of juveniles, particularly as it reflects only reported cases, not those that go unattended to.

Apprehension procedures are not fully implemented

Under laws governing children, children are to be treated with dignity and in a humane manner especially when it is suspected that they are in conflict with the law. A child offender has a right not to be apprehended by use of force. The person apprehending such an offender is not to be clothed in uniform and should desist from handcuffing a child offender. [3]

Children are thrown in cells with adults and produced in court as if they were adults

Children in conflict with the law also have a right not to be detained in a cell or prison with adults, a right which has for many years been violated due to lack of juvenile cells at police stations, Officers on duty have ended up making illegal decisions to detain juveniles in inappropriate cells when they encounter juveniles in conflict with the law.[4]

As a way of protecting children from harm, the existing laws provide that children matters should be heard in camera to respect their right to privacy; however, this has not been implemented. While extending legal representation in courts, it has been observed that juvenile cases are not heard in camera thus exposing them to the public. Where juveniles are charged jointly with adults they have been subjected to the same Court proceedings.

Rehabilitation Centres and Remand homes are insufficient

Furthermore, Uganda has one rehabilitation center at Kampiringisa and seven regional remand homes that is Naguru, Fort Portal, Arua, Gulu, Mbale, Kabale and Masindi Districts. Each remand home caters for more than four districts with different courts of law within their territorial jurisdiction. This defies juveniles’ right to be detained by Court in a remand home that is within the Court’s jurisdiction. Masindi regional remand home, for example, caters for Courts in Masindi, Kiryandongo, Hoima, Bullisa, Buseruka, Kyangwali, Biiso, and Kagadi among others. Most of these courts are very far from the remand home, and these distances affect juvenile justice. Due to inadequate remand homes, both the victims and juveniles in conflict with the law end up not achieving justice.

Given the hardships arising from the lack of a remand home within the jurisdiction of the Court, and the difficulties of transporting offenders from Court to remand home, judicial officers are often forced to grant court bond to juvenile offenders. Court decisions have negative effects on the victims/complainants seeking to access justice. Juveniles granted Court bond are likely to disobey the bond rules and interfere with the investigation and hearing of cases against them. In 2019, as part of my own work in Courts of Law in Western Uganda, I was offering legal representation services to juvenile offenders who had committed minor offences. However, only one out of ten juveniles granted Court bond appeared in Court on the given date for further Court proceedings.

Regardless of children being in conflict with the law, the welfare principle that is crucial in their wellbeing should still be applied in remand homes. However, it has been noted that the remand homes are poorly facilitated and overcrowded, that children are subjected to corporal punishment, and that the care takers who are mainly social workers may not ably take care of their emotional needs thereby defying the primary objective of being in a remand home, namely rehabilitation. More often than not, juvenile offenders escape from these homes and some that manage to complete the orders passed by court come out worse than before incarceration. In this sense, poor rehabilitation may result in some juveniles recommitting offences or becoming serial offenders.

Age determination procedures are not adhered to

While providing legal representation in Courts of Law, I have observed that when police interfaces with children in conflict with the law, it has at times resorted to manipulating the age of children offenders to that of an adult to justify detaining them with adults during police and prison detention. During prison visits conducted, juveniles have been identified on remand in prison in Hoima and Kyegegwa. Prison officials and Court have been engaged to transfer the juveniles to remand homes. Police simply look at the physical appearance of a juvenile offender to make a determination as to their age. At times when these child offenders are subjected to medical examination, medical practitioners estimate their ages on the basis of the number of teeth.  The absence of birth certificates during the process of dealing with a child offender has contributed to courts passing irregular judgments and sentencing juveniles to prison instead of making appropriate orders and sending them to remand homes.  The decision violates juveniles’ right to enjoy the appropriate lenient orders to be first considered by Court, with sentencing to detention as the last resort.

Juveniles’ right to not be detained with adults has been violated due to the rigid formal justice system to be followed to prove that the juvenile being charged as an adult is below 18 years of age. To legally prove that the person appearing before Court is a juvenile medical evidence must be adduced that supports the presumed age of the person appearing.

Determining the age of refugee children in conflict with the law when deciding to charge the offender, notably in cases involving sexual activity, has not been duly enforced. Relatives of both parties are often unable to adduce proof of age like a birth certificate, such documents having been left behind or lost during flight from the country of origin. This has contributed to police charging children below the age of criminal responsibility and mischarging the persons in conflict with the law with either minor or major offences.

“Diversion” procedures are not being implemented

A critical reading of laws governing children reveals that while the various institutions handling children in conflict with the law should in principle be applying restorative justice as opposed to the formal justice system, in practice the different institutions have resorted to the latter.

Under the Children’s Act, police has a duty to first engage parents of the children in conflict with the law, welfare and probation officers, victims, and local leaders such as Refugee Welfare Councils to handle the matters at hand. This, practice, known as ‘diversion’, can result in caution, discharge, and rehabilitation rather than resorting to Court process. Juvenile justice institutions have disregarded diversion justice system that is child friendly and instead subjected juveniles to formal justice system whereby they have been remanded in remand homes and given appropriate orders that have greatly affected their wellbeing.

Children rehabilitation centers create further challenges to child-friendly justice. As noted above, Uganda’s only national rehabilitation center at Kampiringisa is insufficient given the number of children in conflict with the law. Kampiringisa caters for all children, whether the offence is minor or capital in nature. This increases the likelihood that, by the end of the “rehabilitation process” juveniles who had committed minor offences become hard core criminals, thus defeating the main purpose of rehabilitation.

Not all children enjoy their right to legal representation

In Uganda some juveniles in conflict with the law do not enjoy their right to legal representation as provided for under the African Charter on the Rights and Welfare of Children.[5] Under the laws of Uganda, only children who have committed capital offences are entitled to legal representation by the state. Juveniles who commit minor offences have been left at the mercy of over-stretched non-governmental legal aid service providers unable to effectively represent juveniles.

In respect to refugee children, unaccompanied and separated minors face unfair and weak protection systems in refugee settlements. This leaves them exposed to child trafficking, child recruitment into armed conflict, sexual exploitation and abuse, welfare principle that is paramount to the wellbeing of children.

While giving legal advice to the community, I have come across unaccompanied children who enter Uganda for asylum and are connected to their relatives. Their relatives have to take several steps to ensure that they are added to their attestation cards so that they can be able to acquire necessities from different agencies. However, many of these children get denied for various reasons. For example, they are required to adduce evidence such as birth certificates to prove that they are related, a requirement that is difficult or impossible to meet considering the circumstances under which they left their country of origin.

Child-headed households

I have come across unaccompanied children who, simply because they are perceived by institutions to be mature and understanding, have been tasked to head a family of fellow minors. In short, they are given parental responsibilities yet they are all still very young to physically, financially and emotionally take care of the family.

Inadequate vetting of foster families

As a way of protecting the unaccompanied and separated children UNHCR and its implementing partners in different settlements at times place them under foster families within the refugee settlement. Nonetheless this has been challenging as foster families taking on caring responsibilities for unaccompanied and separated children are themselves refugees who are still facing emotional and financial challenges. Some foster families take up the responsibilities in disguise but with the main intention of benefitting financially and economically from the foster child. Acceptance of the foster caretaker role is attached to perceived benefits in terms of food ration packages provided, but in most cases these are not sufficient to the wellbeing of children.

Unaccompanied and separated children within refugee settlements need strong support system from the community and partners, if they are to have a sense of belonging, guidance in various aspects of life, proper upbringing and easy identification and addressing of issues affecting them as children. However, this is often lacking.

With all the shortcomings in the protection and observance of the rights of children and juvenile justice, it is no longer a secret that children are victims of sexual violence. Equally, child labour, juvenile injustice in courts of law towards both the victims and those in conflict with the law, child prostitution, child torture, early marriage among girls are also all violations of children’s human rights that, sadly, have become part of our community. The violation of children’s human rights is evident in the Uganda police 2019 report that indicates 13,682 children were defiled (13,441 female children, 241 male children) with those aged 9 to 17 most severely affected.         

It is therefore everyone’s responsibility to raise concerns that affect children as far as accessing justice and living a dignified life is concerned.

Recommendations

Above all, we must promote diversion of child related cases through community systems, with formal justice and incarceration as a last resort. This requires i) community sensitization about the rights of children, and the role of the community providing appropriate support systems ii) development of solid community-based reintegration processes, and iii) adequate vetting of potential foster homes in refugee settlements.

Where the formal justice system is required, Government should provide for legal representation of children with minor offences, rehabilitation centers and remand homes should be decentralized, ideally to one per district, and:- Distinct rehabilitation Centres should be put in place to allow separation of juveniles that have committed minor offences from those charged with capital offences.

 

Written by Dorothy Mushabe

Legal Officer

Refugee Law Project

Hoima Field office

Twitter:  @DorothyMushabe

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