The Juvenile Court shall also have jurisdiction and exercise powers conferred upon it by any other written law.
By Ivy Maloy
Juvenile delinquency and crimes are serious problems all over the world. They are steadily increasing as years pass by and creates many setbacks in development processes mostly in third world countries like Tanzania whose mechanisms to deal with the situation are likely weak.
The various components of the juvenile justice system in Tanzania fall under different ministerial mandates. Children’s welfare and protection in general, is dealt with by the Ministry of Labour and Youths Development and the Ministry of Community Development, Gender and Children Affairs, while the Justice system itself comes under the Ministry of Justice and Constitutional Affairs. On the other hand, courts are autonomous and the Chief Justice’s Office controls the appointments of court officials and magistrates in the juvenile court.
The Children and Young Persons Ordinance enacted in 1937 (Cap 13) governs the treatment of juveniles in conflict with law, as it is the basic law regarding juvenile justice in Tanzania. Cap 13 applies to any one below the age of 16. Anyone who is 16 years or above is treated in Tanzania, for the purpose of criminal law, as an adult whereas, The Convention on the Rights of the Child states in its juvenile justice articles, that a child means every human being below the age of 18 unless under the law applicable to the child majority is attained earlier. Those who are under the age of 16 years fall into two categories that of “child” and “young person”. A “child” is anyone under the age of 12 years. A “young person” is a person who is 12 years of age or upwards and under the age of 16 years.
“Children and adolescents are in a period of development. What happens to them or fails to happen at each step of the way in the law enforcement process not only affect them in there- and now but will also shape their future development for good or ill. States thus, respond to the criminal activity of minors, certainly for the sake of society and for the sake of offence”
The court system in Tanzania is three-tiered and consists of a court of appeal, a high court and subordinate courts known as magistrates’ courts and ward tribunals. The children and Young Persons Ordinance establishes juvenile courts at the level of district and primary magistrate courts, for the purpose of hearing and conducting all trails against persons under the age of twelve and under sixteen years except in cases where children are charged jointly with adults. In such situations, a child or young person will also have his or her case tried in an adult court. The trial will not take into account the child’s age, for example the trial will not be held in camera. The child will go through the same trial process as the adult co- defendant. However, the judge will take into account the child’s age when passing sentences. Thus the position of Cap 13 violates the principle of protection of the privacy of the child or young persons.
The law in Tanzania stipulates that juvenile courts must sit in a different building or on different days or at different times from regular courts for adults and are closed to the general public. Once the accused is found to be a child or young person, it is mandatory that the court should immediately sit as a juvenile court and proceed to hear the case, unless it is not practicable in a room or building which is different room from that ordinarily used as court room or court house.
If a child is brought before a regular court and it becomes apparent that the person is under sixteen years of age, Cap 13 provides that the court must sit as a juvenile court without necessarily adjourning the case and the provisions of the Ordinance will apply to govern the case. If in a juvenile court it appears that the person charged is of the age of sixteen years or above, the court will proceed with the hearing and determination of the case in accordance with the provision of the Criminal Procedure Act, 1985, “The Ordinance does not therefore deal with problems facing 16 to 18 years old, which are left at the mercy of the mainstream court system”
The year 2010 is regarded as landmark since it is when the Law of the Child Act, Act 21 of 2009 came into force, wholly repealing and replacing the Children and Young Persons Ordinance, Cap 13 of the Laws of Tanzania, which had been in effect since 1937. The Children and Young Persons Ordinance, CAP 13 had passed through different epochs of Tanzania’s history starting from the British colonial time through to when Tanzania, then Tanganyika, gained her independence, and continued in force for the most part of the Tanzania post-independence period up until 2010.
This same period overlaps for a little over 20 years with the adoption and near universal ratification of the United Nations Convention on the Rights of the Child (CRC)22, which was adopted by the UN in 1989, as well as the African Charter on the Rights and Welfare of the Child. Tanzania had ratified the CRC in 1991 but, owing to its duality of its legal system, the domestication was much delayed until when it was affected through the enactment of the Law of the Child Act in 2009.
The Law of the Child Act, 2009 came into force in November 2010. Part IX of the Act is the part of reference, which seeks to govern the conduct of juvenile justice in Mainland Tanzania. Section 97 provides for the establishment of the juvenile court, which shall have a role of hearing and determining all matters related to children. This Part also gives power to the Chief Justice to designate the Juvenile Court and promulgate the rules of the procedure that shall be applicable in the Juvenile Courts.
Although the Law of the Child Act, 2009 intends to harmonize and consolidate procedure on matters relating to children, there remains a few areas of contest where a number of other laws intersect, and which may have somehow been addressed and integrated with the LCA through consequential amendments. Section 98 describes the jurisdiction of the Juvenile Court by stating:
- The Juvenile Court shall have power to hear and determine-
(a) Criminal charges against a child; and
(b) Applications relating to child care, maintenance and protection.
- The Juvenile Court shall also have jurisdiction and exercise powers conferred upon it by any other written law.
- The Juvenile Court shall, wherever possible, sit in a different building from the building ordinarily used for hearing cases by or against adults.
The existing juvenile justice system in Tanzania targets only the individual child or young person in conflict with the law and not the rights and justice of the system as a whole. The trend has been to condemn children and young persons to state institutions without making any effort to restore their well-being and moral development. Therefore, the state should establish a new system which will have to aim at long-term measures such as reform school instead of approved school, individual counselling and rehabilitation or treatment programs.
Juvenile offenders are in need of rehabilitation. Many of juvenile offenders may have been victims of abuse within their families, subject to harassment, violence and may well be troubled by substance abuse. Rehabilitation and counselling responses must be based on helping the juveniles to see themselves as legitimate members of society with the rights and responsibilities of a citizen. In other words, the legitimate goal of every phase of the juvenile justice system must be reintegrate the juvenile offenders successfully back into community and to help them lead productive lives in future.