Guidelines on Action for Children in the Justice system in Africa.

Guidelines on Action for Children in the Justice system

in Africa

Background

• No dedicated African jurisprudence on children and justice systems

• Focus of major developments accross the continent – eg Kenya, South Africa, Ethiopia, Sierra Leone

• Transitional justice processes have been underway since Truth Commission (South Africa), ICTR and ICSL, children to an extent affected/involved

Background

• Traditional justice systems officially or otherwise recognised throughout Africa

• 2010 Council of Europe Guidelines on ‘child friendly justice’

• Differences: sharp division into ‘before, during and after’

• Recommendation by expert team to focus on guidelines for action: road map to govts

Background

• Request to ensure guidelines are ‘africanised’

• Hence recourse to 1999 African Commission’s ‘fair trial principles’

• Set high minimum standards and incorporate traditional justice systems ( 3 sections)

• Are consistent with African Commission jurisprudence, eg communications

Background

• Second, refers to major AU and OAU documents (listed first, before UN docs)

• Third, Preamble drafted to reflect African priorities, especially those reflected in the ACRWC (see par 4, p 3)

• Fourth reflection of language of duties (for governments and on the part of children)

• Question as to ‘designated’ vulnerable groups (par 5 p 4)

Background

• Fifth, respect for African family structures- see par 5 p 7; extended definition of ‘parent’

• Presented at Kampala• Feedback quite eclectic: largely not substantive,

eg new content; some suggestions about blending some guidelines

• Weight of focus remains scope, aims, general sections (ie 1st ones)

Substance

• A.Aims and Objectives

• Intended to flag dynamism – not just set of principles but concrete guidance for law reform, co-ordination, technical assistance, AU oversight, media and the public

• Affirms underlying 4 ‘pillars’

• Underscores multidisciplinary aproach,

Substance

• Specialisation in child rights and development, reduction of secondary victimisation, need to develop informal justice systems, need to strengthen systems ( systems approach); consideration of special needs (3 (k) p 6.

B. Scope

• All administrative and judicial procedures, formal and informal

• Children in conflict, witnesses, victims, subjects of care proceedings, family law disputes, inheritance

• All children below 18

C. Definitions

• Child

• Child sensitive/friendly??

• Justice systems

• Social workforce

• Traditional courts

• Restorative justice

D.Overarching principles

• Detail on participation – effective and meaningful (13)

• Best interests – interpreted to a degree (14• Non discrimination (NB for informal justice

systems)• Dignity• Survival and development - includes the

right to protection

E. General Measures of Implementation

• Birth registration systems; evidence of age• Legislative review (harmonisation)• National policy development and protocols

to guide professionals, avoid delay, encourage specialisation

• Information mangement and M and E systems

• Allocation of resources, including donors and private sector

General Measures (cont)

• Diversion promoted

• Alternative dispute resolution, mediation etc encouraged

• Note role of social assistance programmes in reducing vulnerability

F.Elements/characteristics

• Access in own right to justice systems• Advice and information• Screening of social workforce staff for

suitability whether paid or volunteers• Training of staff• Need for speedy conclusions, postponements

kept to a minimum• Legal representation (progressive realisation)

Elements/characteristics

• Settings suitable to children; specialised courts; specialised procedures

• Witness preparation schemes encouraged

• Safety and dignity of migrant/displaced children

G. Traditional Justice

• Must respect international standards including:-

• -equality, including gender quality

• -Dignity (no corporal punishment, humiliation)

• -no arbitrary arrest/detention

• -opportunity to prepare case/present challenge

Traditional Justice

• -entitlement to interpreter, representative

• -No undue delay

• Right to appeal

• Respect for privacy of the child, rights of parents/guardians/care-givers

• Secret societies?

• Binding on religious leaders and educators

• Reference to HCP?

H.Fair trial rights (children in conflict)

• Sensitization training for law enforcement and justice officials

• MACR (12)• Abolition of ‘status’ offences• Alternatives to prosecution elaborated, including

Restorative Justice• Last resort and shortest time principle/separation

etc• Transitional justice processes must enhance

accountability

I. Fair trial rights (victims and witnesses)

• Presence of parents etc during questionning

• No contact with perpetrator

• Court preparation programmes

• Privacy

• Intermediaries where possible; video taped pre-recorded interviews; screens;

• Judicial officers to wear ordinary dress

Fair trial rights (victims and witnesses)

• Previous sexual history evidence disallowed

• No evidentiary exclusion purely on age

• Court proceedings to be adapted to child’s pace and attention span

• Protection from threats/intimidation

• Information about possible redress

• Risks of extra-judicial settlements

Fair trial rights (victims and witnesses)

• Legal provisions on child witness protection required

• Interim measures and steps to remove perpetrators introduced

• Communication of outcomes of justice proceedings to child victims and witnesses

J. Civil, administrative, care and family law proceedings

• Separate representation where conflict with care-givers

• Right to be heard or not express opinion• Avoidance of intensification of conflict/further

legal proceedings• Separation of siblings usually not in best

interests• Promotion of family upbringing• Prevention of harm/exploitation

J. Civil, administrative, care and family law proceedings

After conflictual family proceedings, guidance support and counselling to be offered

Judgements to be handed down speedily and implemented speedily

ICA – last resort and in best interests. National legislation to domesticate Hague convention required

J. Civil, administrative, care and family law proceedings

• Alternative care systems to be established by law and monitored by governments

• Orphaned children to be assured of the appointment of a legal guardian – laws required

• Laws to ensure that children are not deprived of inheritance rights – girl child’s equal right to share in estates

• Governments to adopt measures to support parents in their child rearing duties

K. Monitoring and implementation

• Governments to positively consider access requests

• No immunity for torture – prosecutions required

• Technical assistance to strengthen justice systems for children- note highlighted areas (par77 p 25)

• Well trained social workforce

K. Monitoring and implementation

• In accordance with National Policy, a monitoring framework, including independent mechanisms, to be established to oversee implementation of the Guidelines

• Civil society, IHR and relevant bodies to be involved

• Monitoring process to highlight good and bad practices

• Dissemination of child friendly version of Guidelines required

Conclusions

• Terminology (consensus needed)

• Not a new treaty: clarity on intent

• How much of the 1999 Fair trials rights principles to alter? Package deal?

• How many vulnerable groups to refer to and when? Could go on and on? Preamble too – value added?

• Whether to add – 80 guidelines already!

Conclusions

• How to deal with conflicting commentary?

• How many more definitions required?

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