INTERNATIONAL ASSOCIATION OF YOUTH AND FAMILY JUDGES AND MAGISTRATES

A tsunami of human solidarity is sweeping across the surface of the globe in response to the physical tsunami that has ravaged the shores of the Indian Ocean. The tragedy in the Indian Ocean defies description and depiction. Heartrending stories and shocking images have brought the world together in a communal sense of grief. Every day brings a staggering upward estimate of deaths - and of aid donations. Worldwide public aid pledges are now over $4bn in what has become the biggest humanitarian relief operation in history.

The generosity of the ordinary people is a mark of the connectedness of the world in which we live, whose far reaches are more familiar to us than to any previous generation. The tools of the modern media mean that the connectedness can be expressed with an immediacy that would seem extraordinary a few short years ago, allowing us to witness what the first reporters on the scene were able to see and share an immediate sense of global grief.

Underpinning the material act of giving, whether in cash, kind or work, is a mental phenomenon. It has been called moral globalisation. Increasingly, citizens of rich countries identify with people far away and see themselves as having some moral obligation towards them. Probably the response to the Asian tsunami would not have been so generous had it not hit western holidaymakers taking their Christmas sun on the shores of the Indian Ocean. But the fact that more and more people do travel to more and more places, thanks to cut-price air travel, is itself an engine of this moral globalisation. And those who don't travel still see the suffering close-up, on the front pages of their newspapers and on television, where they can watch it 24 hours a day, seven days a week.

The generosity of spirit of ordinary people around the world caught our leaders by surprise as they struggled to find an appropriate response to a crisis of this size. Tony Blair originally promised £1 million while George Bush offered $15 million – one third of what he spent on his inauguration. By the time they got to Jakarta there was an element of competition between countries with the world’s leaders leapfrogging over each other with new, ever larger contributions.

One obvious question arises. Why must the relief of suffering, in this unprecedentedly prosperous world, rely on the whims of citizens and the appeals of pop stars and comedians? Why, when extreme poverty could be made history with a minor redeployment of public finances, must the poor world still wait for ordinary people in the rich world to empty their pockets?

The obvious answer is that governments have other priorities. And the one that leaps to mind is war. If the money they have promised to the victims of the tsunami still falls far short of the amounts required, it is partly because the contingency fund upon which they draw in times of crisis has been spent in Iraq.

The US government has so far pledged $350m to the victims of the tsunami, and the UK government £50m ($96m). The US has spent $148 billion on the Iraq war and the UK £6bn ($11.5bn). The war has been running for 656 days. This means that the money pledged for the tsunami disaster by the United States is the equivalent of one and a half day's spending in Iraq. The money the UK has given equates to five and a half days of involvement in the war.

The United States gives just over $16bn in foreign aid to developing nations annually. However, $8.9bn of the aid money is used for military assistance, anti-drugs operations, counter-terrorism and the Iraq relief and reconstruction fund. The aid budgets to South America were cut to pay for the reconstruction of Iraq!

Kofi Annan asked in Jakarta for new money to finance the tsunami appeal, and pleaded with donor nations not to rob Peter to pay Paul.

What will be left when the tsunami of international solidarity has subsided and the generous peoples of the developed world revert to their old ways, in a warm afterglow of moral self-satisfaction - broken promises, as with so many previous headline pledges? hasty half-measures of disaster relief, not properly followed through with projects of long-term reconstruction? countless orphans – already the target of criminal gangs?

Speaking at the Jakarta summit Kofi Annan praised the pledges made by the world’s governments but pleaded that they should be honoured and quickly translated into readily available funds. “We also need more people and more material to get to those most in need, often in remote areas,” he said. “We have a duty to the survivors ... to treat the wounded, to prevent further suffering as a result of polluted drinking water, destroyed infrastructure, lack of food, clothing and shelter. [We must] stop the tsunami from being followed by a second wave of death, this time from preventable causes. And in the longer term, to prevent a third wave of despair, where people cannot recover their livelihoods, homes or communities.”

It is important at this early stage in a very long haul to ensure that promises made are translated into concrete commitments - a lesson of previous emergencies such as the earthquake that destroyed the ancient Iranian city of Bam last year. Verbal pledges formalised in Jakarta must be followed up relentlessly. Every world leader, state and international body signed up to the millennium development goals - to halve poverty, provide universal primary education and cut infant mortality by two-thirds, all by 2015. Few have taken steps to meet those goals.

The current disaster is breaking many records: it has produced the largest relief operation in history, the biggest ever forensic effort to identify victims, and it looks likely to set new benchmarks for the cost of emergency and reconstruction aid, as well as for donations from governments and individuals across the globe. Clearly it is what happens next that truly matters.

What have we learned from this tragedy? Perhaps the most important lesson to be learned is that rich countries deal much better with catastrophes such as tsunamis.

Casualties were by far the highest in three impoverished areas – the coasts of eastern Sri Lanka, the southern tip of India and the northern tip of Sumatra in Indonesia. These countries did not have early warning systems in place simply because wave stations are very expensive and there was no money to buy them.

Poor countries are much more vulnerable, not just to tsunamis but also to most other natural disasters. The two biggest killers worldwide are hurricanes and earthquakes. In 1992 hurricane Andrew left 42 people dead in Florida with damage amounting to 10% of Florida’s gross domestic product. In 1998 a hurricane of similar force, hurricane Mitch, struck Honduras leaving 10,000 people dead with damage amounting to two thirds of the GDP. The Los Angeles earthquake of 1994 left 60 people dead. A less powerful earthquake in Bam, Iran, in 2003 left 25,000 dead and thousands more homeless. The difference lies in the rich world’s use of seismic-resistant engineering, whereas developing nations often use cheap mud bricks that topple like a house of cards in an earthquake.

The best protection against catastrophes is a society that is rich enough to be well-prepared for all sorts of contingencies. The question now is should Asian countries invest in wave stations and an elaborate alert system making them better able to deal with the next tsunami?

Firstly we should bear in mind that disasters on this scale are uncommon.

In the early morning of November 1, 1755, there was an earthquake under Lisbon (Portugal) which killed a third of the city’s population of 275,000.

The eruption in Tambora, Indonesia, in 1815, was the biggest volcanic eruption in recorded history and killed more than 100,000 people. Volcanic ash in the atmosphere lowered global temperatures by some 3C and deprived Europe of a summer in 1816 because the sun was blocked out. The poem Darkness, by the British poet Lord Byron, a fantasy about the extinction of the sun, was inspired by Tambora and the lost summer of 1816. It is also believed that Tambora was in Mary Shelly’s mind when she wrote “Frankenstein” in 1818 – a warning that we would be destroyed by our own technological arrogance.

On the 27^th August 1883 the island of Krakatoa, 11 cubic miles of it, was blasted into oblivion in one of the planet’s most titanic volcanic displays. Most of the world back then knew about Krakatoa, just as almost everyone now knows of the recent Sumatra tragedy. Krakatoa was the first catastrophe of the age of communication. When President Lincoln was assassinated in 1865 it took twelve days for the news to get from Washington to London. When Krakatoa erupted the combination of morse code, the Reuter news agency and the submarine telegraph cable meant that the Boston Globe had the story on its front page just four hours later.

The explosion in Krakatoa was so loud that it was heard 3,000 miles away, the tides rose as far away as Biarritz and Devonport, the evening skies all over the world burned with a lurid fire. Edvard Munch's vividly coloured painting, The Scream, was painted at the time of those Krakatoa-affected skies.

On April 18 1906, San Francisco was levelled by an enormous earthquake. The physical consequences of the event were profound and immediate: death, destruction, appeals, aid, promises of better building codes, more funds for science.

At least 100,000 people died in the Kanto earthquake, Japan, of 1923.

Everyone agrees that a large number of deaths could have been prevented if an early warning system had been in place around the Indian Ocean. Is this the time to install one? The last tsunami of this size struck here in 1883. Are there not more pressing concerns?

While the death toll in the most recent tsunami was horrific – 225,000 and rising – we should note that every year 3 million people die in south-east Asia from infectious and parasitic diseases – most curable with cheaply available medicines. In this area alone, more people have died of preventable diseases in the two weeks since the tsunami than died as a result of it.

Worldwide, 30,000 children under 5 die each day from preventable diseases.

Malaria alone kills 750,000 children in Africa every year. Many people are asking how a God could allow a tsunami to cause such suffering. That is the wrong question. Instead, we should be asking a question we can actually answer: how can human beings allow a mosquito to cause millions of deaths? Nets which might protect these children cost about £1 each - a child's life for less than the cost of a cup of coffee in Starbucks.

The most good could be achieved by directing resources towards the elimination of disease, hunger and polluted water. The aim should be to build richer societies with better infrastructures to withstand the many different challenges of the 21^st Century.

Water shortages would be a thing of the past if desalination plants could come down in price in the way other technology products have. Energy may be scarce in the coastal regions, yet there is an abundance of wave, solar and wind power waiting to be harnessed if the resources were available.

Technology is only part of the answer. As Friends of the Earth have pointed out, barriers such as mangrove forests and coral reefs could have saved lives by deflecting the force of the Asian tsunami. The organisation claims that areas that were naturally protected suffered less than those that were not. While most Asian countries have strong environmental protection laws governing costal development and protecting costal forests these are widely ignored by the powerful tourist and aquaculture industries which have rapidly encroached onto beaches and cleared the inter-tidal areas to provide better views, wider beaches or an environment in which shrimps and prawns can thrive. The full fury and wrath of the waves were felt in areas where nature’s green belts of coral reefs and mangroves no longer exist. Regenerating the mangrove forests would offer protection against future tsunamis.

The potential to help the poorest countries of the world is not being realized. What is required now is inspired leadership from the international community. The developed countries are still too protectionist. Western tariffs and farm subsidies reduce the export earnings of developing countries by $39 billion a year, 50% more than they receive in aid. And, all too often, the imbalance in expertise and resources works to the disadvantage of poor countries when it comes to enforcing the rules which exist.

Reforming the way overseas aid is delivered, promoting free enterprise and encouraging freer, fairer trade, could help lift millions of people out of poverty.

The first and most pressing issue is debt relief. Tsunami-affected countries collectively owe the rich world in excess of $300bn.

In 2004, manmade disasters prised nations and religions apart as dead children from Beslan to Baghdad, supplied proof of human viciousness. Then, as a year of terror came to a close, nature revealed its destructive power.

2005 is a year that can start with the hope of human progress. What the tsunami and its aftermath have done is to crash through the entrenched self-interest of western nations. Billions of human beings across the globe have identified with the terrible tragedies of human beings just like themselves.

The suffering reminds us of that most basic connection of one human being to another; how, for all the differences of wealth, geography, race, status, we share so much. The essentials of life are always the same - water to drink, food to eat, love, grief and death.

Humbled first by the power of nature, we have since been humbled by the power of humanity, the awesome power of nature to destroy, the extraordinary power of human compassion to build anew.

This moment of global solidarity, evident in the flood of donations, has inspired a hope that this could prove a turning point - a kairos in the relationship between the west and the developing world.

People have signalled a universal empathy not just with the survivors of the tsunami but with the poor and the marginalized around the world. We can only hope that the tsunami of December 26, 2004 will be to the war on want what the terrorist attacks of September 11, 2001, were to the war on terror.

Willie McCarney, Editor-in-Chief

The Kenyan law and practice dealing with children in trouble with the law, although rooted in statutory enactments is by no means easily discernible or comprehensible. This stems from the fact that in the period before the enactment of the new Children’s Act of 2001 (Chapter 586 Laws of Kenya), the legal framework on juvenile justice was contained in a piecemeal and uncoordinated manner in a number of different legislation. Further, this problem was attenuated by the absence of a child-rights centered approach in the provisions. When constraints such as lack of resources; lethargy of public officials and the dearth of private sector role-players are added to these constraints, it becomes evident that the plight of the Kenyan child in trouble with the law has been precarious.

Inherent in the problem of multifarious pieces of legislation dealing with juvenile justice is the point that while the then parent statute dealing with the major aspects of child justice (the now repealed, Children and Young Persons Act) catered for the main aspects of juvenile justice (for example making provision for juvenile courts), numerous other issues were provided for in other pieces of legislation. Thus, the Penal Code detailed the criminal offences, the particulars thereto and the punishment; the Criminal Procedure Code governed the trial procedure, the Probation of Offenders Act was relevant for the aspect of social inquiry reports and the supervision of probation orders; the later Community Service Order Act spelt out the alternative sentencing regime which gives preference for community service for a conviction relating to petty offences.

All the above pieces of legislation were (are) general in scope in the sense that they applied to both child and adult offenders with no exception save for instances when concessions were provided for juveniles.

The current juvenile justice legal framework remains defined by a host of these legislations, including the latter four Acts (the Penal Code, the Criminal Procedure Act, the Probation legislation and the Community Service Order Act). However, the new Children’s Act attempts to provide a benchmark for the questions of both children’s care and protection and juvenile justice. The Act also ushers in a children’s rights’ approach to the handling of children’s issues, juvenile justice included.

It is instructive to note that the Act incorporates a number of the provisions of the UN Convention on the Rights of the Child (CRC) and thus revolutionizes the operation of the juvenile justice system particularly in light of the principle of the best interests of the child.

The provisions relating to juvenile justice are contained in part XIII of the Act which among other things, purports to introduce a special criminal justice regime for children (separate from that of adults) through specialized “children courts” with exclusive jurisdiction to try child offenders. One of the most significant provisions of this section of the Act relates to the array of options by which a court has discretion in relation to a finding of guilt in juvenile proceedings.^[1] By this array of options and the total prohibition of the death penalty, corporal punishment and any form of imprisonment, the Act fundamentally alters the applicability of the previous legal framework.^[2]

The new Children’s Act firmly places the twin issues of child welfare and juvenile justice within the ambit of the CRC, the African Children’s Charter and other international law instruments as is also evident in the due-process safeguards detailed in the section dealing with juvenile justice.^[3]

Partly as a result of the uncoordinated legal framework as pointed out earlier, the various role-players in the juvenile justice system played (and continue to play) their respective roles in discordance to each other’s roles. This was even so for the government departments, with the police viewing their role as strictly being that of pre-trial arrest, the probation office as being that of presentation of pre-sentencing social inquiry reports and supervision of probation orders upon sentencing, the department of children’s services as having the role of affording legal protection, institutional care and discipline for children in need of special protection.

On the other hand, non-governmental organizations (NGOs) mainly functioned within their perceived respective competencies in which most were orientated towards issues of welfare (which were for a long time thought to be dissociated from cases of child offenders much to the contrary truism that points firmly to the inter-link between the two).

Indeed, the lack of effective co-ordination and collaboration within the key government departments as well as donors and NGOs working with street children and juvenile justice issues has been cited as one of the major flaws in the Kenyan juvenile justice system.^[4] The formation of a Strategic Alliance spearheaded by the Department of Children’s Services and composed of relevant government departments including the police, probation’s department and the judiciary as well as representatives of international and national NGOs and donors is a step in the right direction.^[5]

The issue of coordination has also been addressed by the new Act that vests the tasks of policy formulation and implementation under the auspices of the National Council for Children’s Services whose membership is drawn from both government and non-governmental representatives.^[6] The Council is expected to exercise supervision and control over the planning, financing and co-ordination of children’s rights and welfare activities and to advise the government in this regard.^[7]

In specific reference to the area of juvenile justice in Kenya, a number of role players are now engaged in a number of efforts both old and new, to help children in trouble with the law. In this article, we shall briefly discuss the efforts in relation to the practice of diversion.

2 Dealing with the problem of proliferation of child welfare issues into the juvenile justice system

The biggest constraint in the administration of the juvenile justice system in Kenya stems from the fact that majority of the children finding themselves in trouble with the law are not in strict sense child offenders but rather those in need of care and protection.

This is partly attributable to the street child phenomenon whereby Kenya has over 250, 000 street and homeless children making the country, alongside South Africa, the two most affected by the problem in Eastern and Southern Africa.^[8] While Kenya commits more children to correctional facilities than other African countries of comparable socio-economic standing, the finding that the majority of these children (80-85%) were social welfare cases rather than children who had committed offences remains of cardinal concern.^[9]

Further, studies have been done to find out factors that contribute to children being in conflict with the law. In one such study,^[10] the major factors in this regard were found to include; poverty experienced by parents; the impact of HIV/AIDS; child abuse and neglect within families; schools, children’s homes and institutions; poor parenting; peer group influence; displacement due to ethnic conflicts and demolitions; repugnant cultural practices; abusive environments and lack of clear child protection policies.^[11] This mirrors the above premise on the overwhelming number of social welfare cases that find way into the juvenile justice system.

Thus the institution of diversion as a practice is crucial to improving the situation of the juvenile justice system in Kenya.

3 A legal framework for diversion in Kenya?

Diversion, an integral feature of child justice systems in most western countries since the 1970s^[12] was subsequently given recognition by a number of international law instruments, including the CRC and the UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules).^[13]

The upshot of these provisions is that every effort should be made to ensure that formal court processes are used only as a last resort with regard to child offenders. Thus diversion should be the central principle of any future juvenile justice system.^[14] Its possibility should be considered in every case, and only rejected in cases where the interests or safety of the community demand that the case be taken through the criminal justice system.^[15]

While the concept of diversion may entail the complete exclusion of judicial proceedings and thus involve a formal programme, for example the attendance of a course, performance of community service or compensation of victims of the offence or involve an external agency, this need not be the case.^[16] An array of suitable measures would suffice in keeping with the flexibility of diversion as a process.

Although neither the repealed Kenyan Children and Young Persons Act nor the new Children’s Act contain clear and specific provisions and guidelines on diversion, the new Act significantly attempts to give partial recognition to the principle. The detailed provisions of the Act in the subsidiary legislation accompanying it include the principle of detention as a last resort and for the shortest period of time^[17]. This can be interpreted as calling for the use of diversion options. The Act also provides for an array of options by which the court may deal with juvenile criminal proceedings, particularly in relation to alternative sentences.^[18]

However, the foregoing premises do not vindicate for the absence of adequate legal provisions in support of diversion. This lacuna only serves to perpetuate the misplaced notion that justice can only be obtained through certain laid down procedures in court. Thus the popular refrain remains chorused that the only answer to juvenile delinquency is the subjection of offenders to court or custodial care. To a large extent this has been the prevailing norm in the Kenyan juvenile justice system although recent efforts are seeing the qualification of this extreme view. This is in reference for example to the diversion pilot project.

With the initiation of Save the Children Fund (UK), a pilot diversion project was started in the year 2001. The main aim of the project (still at its pilot stage) is to assist in the removal of children who have not committed criminal offences from the juvenile administration into community-based alternatives in line with the above concern on the need to filter social welfare cases out of the juvenile justice system.

4 The diversion project: Practice and challenges

The procedure used in the pilot project is as follows.^[19] Once the children get to the police station they should be separated from adults. The registration process is done by the police officers who further separate them into three categories, that is, those in need of care and protection; those in need of protection but requiring discipline (as opposed to punishment) and thirdly, those who have committed offences.

The first category that constitutes child welfare cases are the main beneficiaries of the project in that they are the ones targeted for immediate integration back into the families or alternative care. For the second category presumably those who have committed petty offences (and the majority of Kenyan child offenders fall in this group) the project contemplates the options of a caution, execution of bonds by parents/guardians, restitution, mediation or release under supervision of government children officers and other role players. The process of a criminal trial is excluded.

For the third category, child offenders (serious offenders-although specific examples are not given) a criminal trial is envisaged – partly in keeping with the spirit of the new Act that still retains the trial process as a general rule. However, the court is expected to adopt an array of options in dealing with the child including the options of probation, committal to rehabilitation schools, release under supervision and community service.

However, one would have desired that the exclusion of a formal criminal trial be the general rule in all cases. In essence this would have meant that diversion be considered in each and every case and only rejected in appropriate cases^[20].

Upon classification of the children by the police officers, the officers must then inform the district diversion coordinators^[21]. The district coordination team then organizes the core team to have the children interviewed. The police are then expected to take the children to the district diversion office for interviewing on a child-to-child basis. Diversion for every child is treated uniquely depending on the circumstances. For any method of disposal/decision, the diversion follow up should be complete within 48 hours.

For any cases referred, the referral form is filled before the child is dispatched from the police station. Reintegration back into the family is given primary consideration although children’s homes and private institutions would usually act as “rescue centers” in the interim where immediate reintegration is not possible.

Follow-up reintegration is to be done by members of the district core-team in tandem with existing programmes within the community in coordination with the whole diversion team.

There should be reports on every diverted child every two weeks to the Provincial Children’s Department. The Children’s Department is expected to coordinate the keeping of records and data.

Thus far, a comprehensive review of the whole pilot project is in the process of being prepared.^[22] However, based on the views of different role-players^[23] and on one quarterly report of the Kamukunji (Nairobi) District Diversion pilot project^[24], particular remarks may be made with regard to the project so far. It is expected that the project would be replicated in all the country’s districts.

So far, the main laudable feature of the pilot project lies in the success in the separation of child welfare issues that would have otherwise found their way into the criminal justice system. Within the Kamukunji District (one of the Nairobi districts) programme, there were about 62 cases of children rounded up by the police officers from one police station within a period of two months. Of these children, 61 cases were “diverted”. An interesting feature is that none of these children were child offenders but were mainly lost children, those engaged in child labor in the city, and victims of neglect or street and homeless children. 46 were reunited with their parents, 10 were repatriated to government rehabilitation schools and 5 were taken up by Undugu Society - a child welfare NGO actively engaged in the rehabilitation of street and homeless children.^[25]

The flipside of this positive feature is that child-offenders, the main targets of classical diversion (envisaged by the Beijing Rules, CRC and the African Children’s Charter) in relation to the avoidance of stigma and recidivism and the need for restorative justice, are all still left principally to the avenue of the traditional criminal trial process. This is worsened by the fact that the Children’s Act (juvenile justice provisions included) is yet to be fully implemented. Thus for example, although the Kenyan Chief Justice had already named 43 Magistrates’ Courts as specialized Children’s Courts, the only child-friendly courtroom that operates on a daily note in the whole country remains the Nairobi’s Children Court - hitherto the only juvenile court in Kenya. Significantly, the judiciary and court officials are yet to fully embrace the legal possibility of diversion as an option in dealing with juvenile offenders.

The diversion process still faces significant hurdles. These include the need for awareness on the process at all levels (including the community) and training of officers; the confusion as to child welfare and juvenile justice issues; the underlying problem of addressing the root causes of juvenile offending; abuse of the project and lack of safeguards against abuse by children who are catered for; infrastructural and resource problems; lack of community participation; inadequate governmental financial support; the problem of few willing role players in the private sector (NGOs), among other problems.

5 Conclusion

This paper has highlighted the link between child social welfare and juvenile justice issues. The design of policy and practice for juvenile justice systems in the African context require that they pay due regard to the issue of the proliferation of children in need of care and protection into the juvenile justice systems. Practices like the pilot diversion project in Kenya prove crucial in this regard and requires the support of all stakeholders in the juvenile justice field. The example of this pilot diversion project is more instructive particularly in the wake of the lack of an adequate legal framework to place the practice of diversion.

Buenos Aires, April 19th, 2004

To the President of the Commission for

The Family, Women, Children and Youth

Honourable Member of the National Chamber of Deputies

Dip. Silvia Martínez

Argentinean society, through the National Parliament, has been called upon to debate a set of initiatives oriented towards offering better levels of security in the face of the varied forms of delinquency and organized crime. In the words of the President of the Nation, “the central idea follows the aim of combating all forms of impunity”. The declaration of this conviction helps to drive us towards recovering the supreme value of respect for life, truth and justice.

Children and adolescents must be made the principal recipients of this essential element of the democratic life of our country. It is precisely in this age group that we observe the most dramatic aspect of the economic crisis of recent years. On the subject, let us remember that 60% of people aged under 18 are living in poverty, likewise 53.1% of minors aged under 15. Out of 2,800,000 children and young people of this age group, 1,486,000 live in families which cannot purchase a basic basket of goods and services. There are worrying school dropout levels among adolescents, and family cohesion is adversely impacted in various ways by high levels of unemployment.

In the context of this high level of social conflict concerning children and young people, particularly the latter, it is indispensable that legislation should recognize its impact on these social scenarios of children and adolescents, confirming the role of the State as a guarantor of the respect of rights enshrined in the law.

Suggestions have been made to promote legislation aimed at the reduction of the minimum age of criminal responsibility, including this in a set of measures intended to raise the level of public security.

Lowering the age of criminal responsibility means focusing on the conclusion of the story and marginalizing the true debate on the real causes of the problem, or accepting the powerlessness of the State to bring forward public policies aimed at prevention and systematic tackling of the problem.

It turns out to be much less risky to translate into action laws which paradoxically purport to provide guarantees, but whose principal concrete action consists in establishing criminal responsibility from very early ages.

In our country, we had criminal responsibility from the age of 10 in the first legal codes of the 19th Century and as a result had prisons full of children. This was followed by some decades of coexistence between criminal responsibility and guardianship of minors. Much more recently, in 1954, through Law 14394, the Republic of Argentina fixed the age limit of 16 years in its criminal legislation considering not criminally responsible, not subject to incrimination and therefore not punishable, children who had not reached the stated age. 22 years later, under the military dictatorship, through Legal Decree 21338, the age of criminal responsibility was fixed at 14 years. In the final years of State terrorism, the regime itself brought the limit back to 16 years. The experience of 1976 to 1983, which includes the most outrageous crimes against humanity in the modern history of our country, deserves particular study in this article.

The inclusion in the National Constitution of the Convention on the Rights of the Child, as well as the adherence of our country to the Beijing Rules, establishes a conceptual framework which makes it possible to enrich the debate already launched. We thus note the following concept from United Nations Resolution 40/33: “In those legal systems recognizing the concept of the age of criminal responsibility for juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity” … “The minimum age of criminal responsibility differs widely owing to history and culture. The modern approach [continues the UN commentary] would be to consider whether a child can live up to the moral and psychological components of criminal responsibility; that is, whether a child, by virtue of her or his individual discernment and understanding, can be held responsible for essentially antisocial behaviour. If the age of criminal responsibility is fixed too low or if there is no lower age limit at all, the notion of responsibility would become meaningless. In general, there is a close relationship between the notion of responsibility for delinquent or criminal behaviour and other social rights and responsibilities (such as marital status, civil majority, etc.).”

Recognizing the psychological and social profile and the different forms of deprivation of rights which these children recognise from their personal histories, it is fitting to ask the following questions: Can a 14-year-old adolescent be in a position to bear, totally without limits, criminal responsibility? Will the principles of due process and legal defence not end up being distorted, even though they should represent the social and educational framework which should re-establish full enjoyment of rights and the juvenile’s full social and family integration?¨

It has been proposed to reduce the minimum age of criminal responsibility to 14, without scientific evidence that such an initiative would reduce the participation of juveniles aged between 14 and 15 in general criminal statistics.

From the point of view of sciences applied to adolescents, it turns out to be a mistake to establish a regime of full criminal responsibility for an age range starting at 14 and finishing at 18. This age bracket includes two clearly distinct stages in the development of the child’s personality, by virtue of the circumstances accompanying his or her emotional, mental and intellectual maturity; therefore the responsibility of the juvenile is acquired gradually.

In the first stage, at the ages of 14 and 15, and in particular in circumstances of increasing social exclusion and vulnerability, it is not possible to determine if adolescents can respect the moral and psychological elements.

I will restate at this point, as I have done on previous occasions, and as part of institutional responsibilities entrusted to me at a national level, the necessity of taking the debate up to the level of State policy plans which take into account all adolescents today and which would refrain from the criminal prosecution of persons aged under 16. We would like to make the following points:

· We agree that it is necessary to pass the delayed law on full protection of children and adolescents, thus bringing to a close the historical cycle of laws to deal with juveniles and their legal and institutional manifestations.

· The National Program for Adolescents and Social Integration, aimed at young people belonging to families below the poverty line who are neither working nor studying, should be given the force of law.

· A new system of criminal responsibility should be implemented and applied to persons aged under 18, following the principles of no criminal responsibility for minors aged under 16 and removal of all forms of judicial discretion below this age.

Madame President, I would like to conclude by suggesting that with regard to the problems presented, a participatory procedure should be promoted, in which the institutions of civil society, professional associations, academics, those responsible for public policy, and the general public, can achieve a law of consensus which would end the old paradigm of irregular situations. We could thus avoid reverting to obscure periods of history while claiming to redress public insecurity by lowering the age of the minimum age of criminal responsibility. We can inaugurate, under the auspices of the changes called for by the country, the age of full protection of the rights of children and young people.

Without anything else to add, I remain at the disposal of the Commission you so honorably preside, and send you my best wishes.

Dr. Norberto Liwski

In the framework of the 30th Salon of the Legal Profession which took place in Paris, at the Palais des Congrès, on December 3rd and 4th, one day was devoted entirely to the Rights of the Child. I would like to briefly summarise here the great interest of the dialogue which has been initiated between professionals specialised in the area of children’s rights and those working in the area of children’s health.

Lawyers, legal professionals, child and youth justice practitioners, child psychiatrists, psychiatrists, psychologists, and lawmakers met under the topical banner of justice for children, in order to consider the consequences of breaking the LINK between parent and child, and the interests of the child during the judicial process.

1- Participants from the health professions contributed a great deal of knowledge on the psychological needs of small children and the need to preserve the link of attachment, without which they cannot develop resilience.

In other words, early parental failings which could not be compensated for in time by figures representing a strong and stable link for the child, will make it impossible for the latter to gain the benefit of resilience.

Here are several situations where the idea of separation from biological parents, and the notion of attachment, take on their full meaning:

1. Alternating residence (custody alternating between separated or divorced parents);

2. Full adoption;

3. Placement in a foster home.

1. As regards alternating residence, the participants recognized that in practice, it responds to a certain need for parents and for children. They observed that very frequently, once it has been ordered, it becomes self-regulating over time, in accordance with the actual needs of family members. They consider that it must be adapted to the needs of the child, with flexibility, without polarizing the situation, while always remaining vigilant and ready to interpret signs of distress from the child.

2. Full adoption: when the child creates problems, the tendency of the parents and those around them is to attribute responsibility for these problems to the adoption. It is necessary to put the matter in perspective and think on a case-by-case basis, not play down but also not over-dramatise the fact that the child is adopted, recognising that adoption is part of our cultural landscape (the drama of the abandoned child). In the adoption, there are stages before, during and after; it should not be considered that breaking the biological link necessarily constitutes an irreparable trauma.

3. Placement in a foster home: French practice systematically privileges the biological link, which leads to statements such as: “A child will be moved away from a foster family because he or she is beginning to become attached to them”. The participants underlined the following points:

· The necessity of placing the interests of the child at the centre of the adults’ responsibilities;

· The fact that social assistance to children in France is very disparate and different from one department to another;

· Despite the best intentions of child justice practitioners, knowledge of the law is not enough in itself, as neurosciences, child psychiatry and psychology, among other disciplines, are indispensable in order to detect abuse early, and to successfully implement a true culture of protection of the child beyond the legal aspects.

“Attachment begins when the cord is cut”.

2- Participants from the legal profession focused on the mission of the law, the justice system, judges and “lawmakers”, raising a certain number of questions without necessarily attempting to answer them.

- How should the law be made?

- Can the law be defined?

- Legislation produces effects, but legislation is not the same as the legal system.

This day devoted to the rights of the child should represent a strong basis in order to propose:

1. Rethinking the Law, and laws on children;

2. Positioning the interests of the child according to his or her needs.

At this stage, the main conclusions of the day were the following:

1- The necessity of a Code for children and infants, emphasising an effort to train all those working on the Link, and with a reminder that “treating conflicts through the law does not call for a rigid interpretation of the law”.

2- The medical and psychological world is weary of bearing the brunt of the consequences of codes and laws which are not sufficiently thought out. Legal anthropology and sciences studying the manner in which laws are made) take their rightful place and take on their full meaning.

3- It was suggested to test provisional legislation to allow the law to evolve and adjust to advances in knowledge, avoiding the danger of producing too many laws. Jurisprudence must accept the responsibility of constantly adapting the legal world to reality and offering appropriate responses. Legislators are in a situation of failure; they cannot do everything or foresee everything. Napoleon stated that “a law must be short and without elaboration” in order to give judges the proper leeway for implementation.

4- Links with children must be made a part of the parents’ mentality and the stability of these links must be favoured in the event of parental inadequacies, so that the process of attachment can develop fully and the child can develop resilience.

5- Exploring the range of possibilities opened by family mediation, taking it as a process of construction and reconstruction of family ties and not as an alternative method for resolving conflicts, which corresponds to its most archaic meaning.

6- The door should also be open for intercultural mediation between legal professionals and other professionals looking after children, in order to give the interdisciplinary nature of family law its true meaning.

As a conclusion, it is a good idea to think of a code of ethics for professionals who work with children, in order to give the interests of the child human dynamics and dimensions, and not treat them in a cold, legalistic way or interpret the law rigidly.

Paris, December 6^th, 2004

The seminar on new Information and Communication Technology (NTIC), which took place at Hotel Abou Nawas, in Tunis, on January 14^th and 15^th, 2005, was positioned between the first part of the World Summit on the Information Society in Geneva, in December 2003, and the second phase, which is to take place in Tunis, from November 16^th-18^th, 2005. It was therefore intended, on the basis of data collected in Geneva, as a preparation for the future meeting in Tunis. Besides, it was at the request of the General Assembly of the United Nations that civil society (local, regional, national and international NGOs and OSC), in collaboration with experts in the areas of children's rights and Information and Communications Technology, debated the question of children's rights and the information society.

REMINDER

The first phase of the Summit, held in Geneva in the presence of more than 10,000 delegates from 175 countries and representing governments, civil society and the business world, had led to the official adoption of a declaration of principles and a plan of action favouring the access of developing countries to new technologies: in particular the Internet, and mobile phones.

In a preparatory phase, the Tunis meeting divided the first day into two scientific sessions:

1. The right of all children to have access to information and communication technologies;

2. The right of the child to protection against harmful information.

The second day was reserved for practical sessions in three different workshops, reports of practical cases presented by foreign experts, the approval of the Declaration de Tunis and the closing ceremony with a speech given by the Minister for Women, Children and the Elderly.

It is not without relevance to point out that this meeting reserved for the specific problem of children in the face of information and communications technology was combined with other events in honour of children, in particular the Youth Forum which finished on January 16^th, 2005.

PARTICIPANTS

About 120 people participated in this seminar organised by NGOs in support of children's rights, on the initiative of the Tunisian Association for the Rights of the Child (ATUDE). Experts coming from Switzerland, France, Belgium, Germany, England, Algeria and Lebanon brought their contributions to this meeting, which was made more distinguished by the presence of several Ministers, three members of the Committee on the Rights of the Child, and representatives of ECOSOC and UNICEF.

The International Institute for the Rights of the Child (IDE) sent its President, Dr. Bernard Comby, who intervened during the opening of the seminar and during the first part, in order to defend the right of all children to education, information and communication, as well as sending a founding member, Michel Lachat, who first of all informed the participants about the activities of the International Association of Youth and Family Judges and Magistrates (IAYFJM) and invited them to join. Secondly, he demonstrated, with the aid of a recent event of international scope (Operation Genesis carried out against child pornography on the Internet, in which Switzerland was particularly involved) the degree of damage which can be done amongst the population, particularly to young people, by unrestrained access to new information technologies.

RESULT

An information society should be founded on the principles enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights - two texts which concretise universal access to information - and on the Convention on the Rights of the Child, which gives all children (boys and girls) of the entire world the right to have access to the technical means to allow them to learn, create, contribute, use their initiative and even make decisions. Such an information society must be equipped to fulfill its ambition.

Currently, computer technology is in a phase of enormous development. From this starting point, civil society must seize “the exceptional opportunity to actively contribute to the reduction of the digital divide and the gap in knowledge”. Thus, the Tunis declaration puts forward several recommendations which will be the focus of a plan of action to be presented at the ECOSOC session of July 2005 in New York, and which, if accepted, will be incorporated in the documentation of the Tunis summit.

In brief:

1. All States which have ratified the Convention on the Rights of the Child must make every effort to ensure that the Convention is rigorously applied in the area of the rights of the child to information and communication.

2. Appropriate educational, administrative and legislative measures must be taken by States with the aim of allowing children to access new information technologies. It is therefore necessary to create the financial conditions to make computer equipment available to all, and to put safeguards in place against harmful information.

3. Reduction of the gap between North and South is paramount if we plan to offer all children the same chance to access information and communications technology, particularly the Internet. The setting up of a fund for the media, essential channels of information for the general public, in the context of a partnership between the providers of funding and civil society, is one of the main routes proposed.

CONCLUSION

The international seminar in Tunis must be classified under the label “excellent vintage”. Remarkably organised by experienced members of ATUDE, it deserves this grade not because it made all the people present aware of the importance and urgency of not missing the boat in the information revolution, in particular for all children, tomorrow's adults, but especially because it will not be without follow-up. The World Summit next November will prove it!

Michel Lachat

Tunis, 15.01.05

A recent survey organised by a group of experts from the Youth Union of Human Rights in Albania set out to examine how well informed young people in Albania are about their rights as outlined by the UN Convention on the Rights of the Child and in Albanian legislation. The survey focussed on two schools – the Professional School of Construction “Karl Gega” and the General Secondary School “Myslym Keta”. These two schools were deliberately chosen by the experts. The sample was selected in such a way that it exactly reflected the demographic profile of children in the country. The experts were thus satisfied that they had a representative sample. The sample provided a mix of students from different areas of Tirana, from villages and under-developed areas – children with roots in many different regions of Albania. A considerable number of them had moved to Tirana with their family only in the past year or so.

The questionnaire was a classical one, conducted among boys and girls matched for age, the region and area in which they lived (urban and rural) and their socio-economic status.

The questionnaire was administered to 135 young people between the ages of 14 and 18. There were 78 males and 57 females. 37 were from rural areas and 98 were city inhabitants. 15 came from North Albania, 90 from the capital Tirana, 27 from the Central Albania and only 3 from South Albania.

A tendency towards smaller families in Albania began in the 1980s. Consequently it came as something of a surprise to find that a considerable number of families surveyed (78 out of 135) were made up of six or more persons. It appears today that the Albanian family has been affected by multi-dimensional changes, especially on the economic front.

Questioned about the number of people living in their household only 20 reported that their family comprised 2-3 persons, 37 reported 4 persons and 73 said their family consisted of 5 or more persons.

Many of the young people questioned live in single-parent families. Apparently, the problem is more common in Northern Albania where the vendetta phenomenon, regulated by the ancient “Code of Canon^[26]“, is a matter of growing concern. Another in-depth survey (to be carried out by our organization) will be required to clarify the situation. It appears that quite a few families involved in a vendetta considered the capital Tirana as an “oasis” to escape from this ancient phenomenon.

700 women have lost their husband due to the Canon at Malësinë e Madhe^[27] in the district of Shkodra while 1237 children, especially males, are confined to their home and can not attend school at any level.

Democratic developments in Albania have brought changes in the economic, political, social and cultural status of married people. Such changes have become sources of conflict, leading couples to divorce. The number of divorces has risen steeply over the last five years. In most cases the mother takes custody of the children and is left to face the financial difficulties alone. There is no legal instrument to enforce the court’s decision on the father. The bailiff’s office is responsible for enforcing decisions but has been shown to be totally incompetent when it comes to making the father pay the monthly contribution or any other financial obligation related to the maintenance and rearing of the children. Besides the masculine Albanian society is more supportive toward males and tends to portray the father as a martyr; even when he has been guilty of domestic violence.

The survey attempted to find out how integrated Albanian children are in today’s society.

Generally young people living in cities, especially in Tirana, spend most of the time with their friends. They have little or no involvement with their community or in any kind of public activity. Only about one quarter of them belong to an organised group. Of these, most mentioned sports clubs, dancing or music. Seventy-five of them take part in the daily ritual of home to school or school hall and vice versa.

The Ministry of Education has no policies or strategies designed to promote children’s rights or to inform children of their rights through the education curriculum. The Ministry of Culture and Youth has no platform to increase and motivate youth to establish and participate in associations and organisations to develop their interests, apart from the Rin Fest^[28]. Poverty confines the public life of children to individual activity.

The most trusted adults in Albania are the children’s parents - especially the mother.

Whereas previous generations demonstrated a high level of trust in adults generally the survey found that that level of trust has declined dramatically. This may be because, despite the high percentage of young people in the general population, young people are excluded from the economic, political and social life of the country. Youth tend to feel like a minority, and a gulf has formed between youth and the country’s political and social institutions. The exclusion of the younger generation and the domination of older generations especially in political life has been accompanied in turn by a notable decrease of institutional credibility among the younger generation.

The great desire of Albanian youth to become part of Europe, and to change the vision of Albania, has been blocked by the entire Albanian political establishment. Confronted with this denial of their identity there is a growing desire amongst young people to immigrate and live abroad. At the same time, some efforts have been made to give youth a voice through movements such as “Mjaft^[29]”.

Albania is not a terra incognita in respect to human rights. The Albanian Constitution in general, especially Part II, enumerates the rights and guarantees that every individual enjoys at an international level. Art.15-36 of the Constitution provides all persons in the territory of the Republic of Albania with certain fundamental human rights and makes the international convention, which has been ratified by the Albanian People’s Assembly, directly applicable. The Republic of Albania has ratified the main international instruments, but many of them are not implemented and do not impact on the population in general. Various human rights groups and various international organizations are working hard through a range of projects to increase the citizens’ awareness of human rights. Perhaps this explains why 56 of those young people questioned have at least some information, even if their knowledge extended only to the fact that the UN Convention on the Rights of the Child was ratified by Albania in February 1992. These young people were able to spontaneously name the right to education and the right to freedom. However, the reality was that the majority have little or no knowledge of children’s rights in particular or of human rights in general.

When we asked how safe children feel we found that the picture was quite dark. Media reports on a daily basis of serious and violent crime, which receives banner headlines in all newspapers, has lead Albanian society generally to feel unsafe. And yet the violent image of Albanian society as portrayed by the media is not reflected by the responses to the last two questions in the survey. Almost 75% of young people have never been the victim of a crime and more than 50% do not know of people within their family or friends who have been victims of violence.

Author: Youth Union of Human Rights

Rruga “Kongresi i Lushnjës”

P.31, Shk.2, Ap. 18.

Email loloci_rita@yahoo.com

tel & fax: +355 4 223074

mob: +355 68 26 21 348

Tiran

In numerous countries, on all continents, the number of jailed minors often is not a cause of alarm. However, the fact that most of them should not be in prison at all is of grave concern. And this for several reasons:

· Several among these children were picked up by police squads. This means that they were detained just because they were wandering in town. Vagrancy and begging should no longer be considered criminal offences. These children are in a particularly difficult situation or in danger, and they are not criminals.

· A large proportion of imprisoned minors remain in jail for long periods of time only because their parents were not advised of their detention. They generally are not represented by counsel (who is sometimes appointed only at the last moment, at the sentencing hearing) and there is nobody to move the proceedings forward.

· It is extremely painful to meet in prison a boy aged 14 or 15, most often in the same cell as adults, indicted e.g. for the theft of a ridiculous loot of three bananas or maybe a duck. This fact, which is unfortunately much too frequent in certain countries, is related, in essence, to the preponderate role granted to the victim by the authorities and the general population. The fate of a child who committed a petty theft should never depend on the attitude of the plaintiff. Depending on whether the victim is “tough” or rather “friendly”, the minor will either be brought before the attorney general and jailed, or freed, most often without any judicial proceedings.

· Generally speaking, criminal codes and procedural codes contain provisions on release on bail (with or without sureties), suspended sentencing, probation and conditional release or on parole. In many countries, however, these provisions are simply not applied in judicial practice. Nonetheless, they constitute a legal right, not a favour.

· In many countries, the legal time limits on police custody and the duration of a prisoner’s committal (pre-trial detention), which is renewable, are not respected.

· Certain minors remain jailed for many months after their date of release. Why? Because they do not have the means to pay the fine they were sentenced to, not having any income or outside help. And even sometimes because they did not indemnify the plaintiff. The fine makes no sense for a child without means because it is an eminently personal punishment. Incidentally, the imprisonment of debtors should be quickly banished from the law and from practice.

Generally speaking, one can state that the laws are good and sometimes very good. But their literal application conflicts too frequently with practices or mentalities that are hard to change, or even with ministerial decrees that empty the law of its substance.

It is rare to find a law that paralyses all possible action. NGO’s must, however, contribute to legal evolution through their actions The sessions on juvenile justice sometimes help magistrates or other civil servants who are persuaded by one or the other innovation of foreign traditional practice, to be at the forefront of a change in their legislation.

The conditions of juvenile detention are really very difficult. Prisons are much too often very decrepit and insalubrious. Obvious problems are the lack of care and hygiene (even if only the availability of soap to stop scabies epidemics), sometimes malnutrition, and promiscuity with adult prisoners. The total idleness of the immense majority of prisoners constitutes a very serious risk factor for their reintegration into civilian life: with very few exceptions, they do not have any training, education or pastimes.

But what is even more serious than these atrocious living conditions (which are in total contradiction to Article 37 of the Convention on the Rights of the Child) is that so many countries in the South and in the North do not have a sufficient number of social workers to enable their system of juvenile justice to offer alternatives to imprisonment To give an example: Would it not be more appropriate to issue a reprimand or a symbolic sentence to community service for the petty theft of a few cubes of broth rather than a sentence of four months in prison, together with adults? Sentencing to community work, in the village or in the district, exists in many traditions. However, it is difficult to implement in the law and in judicial practice.

Such a child is not yet a “criminal”. He or she only committed a petty theft. Only a minor punishment, possibly educational, is warranted. But by sending the child to prison, in other words to the school for crime, even if it is only for a few hours or days, the judicial system is practically certain to produce a real criminal. The child nevertheless will become a full-fledged citizen in a few years. And all of us, in our respective positions, have the difficult task to help prepare him to the best of our efforts for a responsible and dignified future.

While the situation is still very disturbing, one notices nonetheless remarkable progress, both within the prison systems and in the way so many professionals get involved in juvenile justice. With the support of interested ministries and of UNICEF, NGO’s organize seminars and workshops dealing with juvenile delinquency. This continuing education is geared towards all professions involved: judges and attorney generals, ministerial staff, penitentiary personnel and social workers, police, constables, and NGO’s. The media are part of this process.

Their efforts concentrate on alternatives to imprisonment. They contribute, through all means available, to “humanise” police and judicial practices, in the spirit of Articles 37 and 40 of the Convention on the Rights of the Child.

1. A “hybrid” model: neither “welfare” nor purely “justice”

While on the one hand the New Zealand model soundly rejects the flawed “welfare” approach of the 1920’s -70’s, on the other hand, neither is it a pure “justice model”. There is certainly an emphasis on the best aspects of the justice model, such as due process, procedural rights of young offenders, and proportionality of response. There is also recognition, however, of the limitations to the justice model, for example its assumption (applied to varying degrees around the world) that young offenders are “junior adults” who, if treated as independent young citizens, will be deterred by a “just deserts”/punishment-based approach.

The New Zealand model rests on the belief that young offenders are the product of, but still inextricably part of, a (wider) family, within which must be found lasting solutions. It directs diversion wherever possible; prioritises the strengthening of families; practices a restorative justice approach encouraging victim and offender participation; seeks community solutions; and emphasises minimising intervention by the State. Yet is still allows for punishment and, if necessary in the public interest, imprisonment.

The combination of objects and principles in the Children, Young Persons and Their Families Act 1989 create a unique hybrid model. This model avoids the polarities of a simplistic “welfare”/”justice” debate. At the least, it provides an antidote to the “tough on crime” or “adult time for junior crime” mantra, so increasingly popular, e.g. in the USA, as well as in sections of most other Western countries.

2. Treatment of “child offenders” is a care and protection issue

In the New Zealand system, offending by children (10,11,12 and 13 year olds) is seen as a “care and protection” issue involving a whole family. Other than for murder or manslaughter, under 14 year olds are not regarded as “mature” or “grown-up” enough to take full responsibility for their offending. Child-offending is dealt with in the Family Court, although the offences must still be proved to the criminal standard, and the Court must be “satisfied that the child knew either that the act or omission constituting the offence was wrong or that it was contrary to law.”^[30]

Upon a finding that the number, nature or magnitude of offence(s) committed by a child are such as to give serious concern for the child’s wellbeing, a declaration can be made that the child is in need of care and protection.

The Family Court has greater powers available to it in dealing with child offenders than the Youth Court does in dealing with youth offending. These include counselling and support orders made against the parents/guardians of the child. Such measures may be agreed to at an FGC, without the need for a formal Family Court hearing.

While there may be legitimate debate as to the age when offending by children should cease to be regarded as a care and protection issue, i.e., at what age they should be considered old enough to take full responsibility in their own right for their offending (some would argue for 12, or even lower), it is suggested that the underlying principle is sound.

There is no evidence to suggest that the New Zealand child offender practice, providing it is properly resourced, is not working. Child offending statistics show remarkable stability over the last 5 years, and important indicators such as violent offending have very slightly decreased in the last couple of years.

3. Statutory emphasis on, and success of, Police diversion/alternative action

In the public debate before the current Act was passed into law, there was great support for the principle that unless the public interest requires otherwise, charges should not be laid against a child or young person if there is an alternative means of dealing with the matter (now s208(a) of the Act). However, there was strident opposition to the Police being given prime control over the exercise of this discretion (subject to points 4 and 5, following). It was said that the Police could not be trusted not to lay charges, and that community panels, for instance, would be better entrusted to make this sort of decision. In the words of the 1984 Working Party on the Children, Young Persons and Their Families Bill:

“The central duties of the Police are the prevention, detection and control of criminal behaviour. The normal outcome of successful Police action is a prosecution. To ask the Police to act as the main agency for keeping young people out of court creates a conflict in the various roles to be played by an individual Police Officer and may lead to conflict with his/her colleagues.”^[31]

Contrary to the doom and gloom predictions at the time the legislation was enacted, the reverse has proved the case. The specialist Youth Aid Division of the New Zealand Police, numbering about 160 officers, has bought into the ethos of the Act in a quite spectacular way. Diversion/alternative action rates have remained consistently high, between 75-80% of all cases. “Alternative action” or “diversion” initiatives are locally based, draw on community strengths, and are often very creative plans or programmes that directly respond to local youth offending.

This is a much under-estimated and unpublicised feature of the New Zealand Youth Justice System, and, as earlier observed, our system simply could not cope without the ongoing Police commitment to it.

4. Limitation on police power of arrest and questioning of children and young persons

The limitation of the Police power to arrest a child or young person without warrant is significant. Arrest is only justified to ensure appearance at Court, to prevent further offending, or to prevent witness inference/evidence tampering. Arrest occurs only in about 12% of all cases of youth offending. The restrictions on arrest encourage consideration of diversion.

Further, there are strict provisions controlling Police questioning and interviewing of children and young persons, including that an independent representative or nominated person must be present at any interview, to support the young offender.

5. Prohibition on charging in non-arrest cases unless there has been “pre-charge” FGC

The restriction of the Police power to lay charges where there has been no arrest (or arrest and release with no charge laid soon after), unless there has first been a FGC, has acted as a real restraint on bringing young people to the Youth Court.

Pre-charge FGCs are convened after consultation between the Police and the YJC. They usually result in a plan or programme of action for a young person, and if the young person successfully completes this plan or programme, the result is that no charges are laid; the matter never comes to Youth Court. Pre-charge FGCs are, in effect, a diversionary mechanism. About 8% of all offending is dealt with in this way.

(For further discussion of pre-charge FGCs, and how they fit into the youth justice process, see headings 6 and 7, prior).

6. The “not denied” response as a trigger for a FGC

All charges which are “not denied” must proceed to an FGC. “Not denied” is an odd but very useful response. It unlocks the door for a Court directed FGC, without the need for a formal admission of guilt. It is possible, using this “plea”, for a young person to acknowledge culpability without 100% accepting the Police version of events. The FGC participants can discuss the matter in full, making any amendment to the charge or Summary of Facts as may be required.

7. The Family Group Conference as the “jewel in the crown” of the NZ system

The FGC is the “lynchpin”of the New Zealand system. It allows for a quite radical transfer of State power to the family, victim and wider community, subject, of course, to the Youth Court’s power to approve and monitor decisions and recommendations that are made.

As observed by Michael Doolan, former Chief Social Worker for the New Zealand Government’s Child Youth and Family Services:

“The Family Group Conference applies to all offenders between the ages of 10 and 17 whom the Police believe require a more definitive response than is permitted to them under the law. It is the only forum available for the management of a child offender (other than one charged with murder or manslaughter) and is the primary forum for dealing with young persons who offend. It brings together the child or young person who offends and their immediate family, members of the extended family and significant others [and the victim and supporters of the victim] to work with professionals to devise a plan for the management of the young person. Its aims are to keep young people within the context of their family and to give their wider family systems the power, the opportunity and the resources necessary to reassume their control of and influence on the young people.”^[32]

In particular the FGC allows:

· The genuine involvement of victims. Victims are central to the process and are given a meaningful opportunity to express their views and contribute to outcomes involving the young person. Victims are key participants and the numbers of victims participating rose steadily during the 1990’s. Victims now participate in 51% of FGCs^[33].

· Active participation by young offenders.

· Direct, if not enforced, involvement of families, who are encouraged and empowered to take responsibility for the offending of a young person within their family group. “Family groups have proved capable of taking prime responsibility for their own young people despite initial scepticism about this.”^[34]

· Collaborative responses to youth offending.

The Youth Court and Police nearly always accept plans made at FGCs, and upon successful completion a s282 “absolute discharges” can be ordered.

8. Purely indictable cases may be dealt with in the Youth Court jurisdiction

Rather than all serious cases immediately being directed into the adult justice system, under the New Zealand legislation, very serious or “purely indictable” offending by young people is addressed by first filing charges in the Youth Court and holding the preliminary hearing of the matter there. There is an opportunity prior to such hearings, on an indication of a desire to plead guilty, or at the end of such hearings, where there is sufficient evidence to take the matter to trial, for Youth Court jurisdiction to be offered to young offenders^[35]. Such an offer, if accepted, opens up the standard Youth Court procedure, including the FGC and the possibility of resolving the matter with input from the offender, victim and family members. It is possible, by going down the Youth Court route, that a young offender who would almost certainly be facing a lengthy period of time in prison if dealt with in an adult “tariff” Court for this sort of offending, may be able to turn his or her life around. If Youth Court jurisdiction is offered, it is still possible for a young person to be convicted and sentenced to up to 5 years in prison in the adult Courts, if all other options in the Youth Court fail. It is not a soft option, but a “last chance” for youngsters who may be able to step back from the brink of a ruined life.

It should be noted however that the provisions governing “purely indictable” offences are needlessly complex. See the comments at the end of heading 11, below.

9. Restriction on imprisonment and “de-institutionalisation” of young people

It is not lawful in New Zealand to impose a sentence of imprisonment in respect of an offence committed when a person is under 17 years of age, unless the offending in question was purely indictable^[36]. This restriction reinforces the principle that young people should be kept in the community (and out of the criminal justice system) as far as possible; as do the general principles governing the youth justice provisions of the Children, Young Persons and Their Families Act which emphasises that young offenders should be kept in the community so far as that is practicable and consonant with public safety (s208(d)), and that sanctions should take the least restrictive form that is appropriate in the circumstances (s208(f)(ii)).

Since the inception of the current system of Youth Justice in New Zealand, there has been a marked decline in incarceration of young people.

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Prof. Jean Trepanier,

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Université de Montréal,

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Montréal, Québec,

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Argentina

E-mail address:

infanciayjuventud@yahoo.com.ar

^* Research Intern, Community Law Centre, University of the Western Cape South Africa. Currently, Visiting Research fellow, Danish Institute for Human Rights, Copenhagen. Email: godongo@uwc.ac.za.

[1]^[1]Section 191(1) of the Act. Upon a finding of guilt, the Court may put the child on a probation programme, commit the child to the care of an adult or charitable institution, commit the child to rehabilitation schools or boarstal institutions, commit the child to counseling, place the child in an educational institution or vocational training, commit the child to community service. Novel provisions are also introduced with regard to the options of discharge, fines/compensation and friendly settlement.

^[2] See Sections 190(2), 191(2) and 190(1) respectively.

^[3] Section 186 of the Act.

^[4] Save the Children UK “Report of the Save the Children (UK) Kenya Programme Workshop on Diversion for Children In Conflict With the Law Held on 11-12 January 2001” 11-12 (hereinafter, SC Report).

^[5]SC Report (n 4 above) 12. Other examples of collaborative efforts include the NGO- Coalition on Child Rights and Child Protection in Kenya initiated back in 1996 to address child protection issues in Kenya in a collaborative and multi-disciplinary approach.

^[6] Children’s Act, section 32(1). The Council’s members were appointed and gazzetted on 12 June 2002.

^[7] Children’s Act, section 30(1) and 32 (2).

^[8] “The Flash Issue April 2002” A Quarterly Newsletter of the Undugu Society of Kenya, 1.

^[9] SC Report (n 4 above) 10.

^[10]Conducted by Save the Children Fund (UK)-Kenya and which basically entailed interviews with children and with key stakeholders in the juvenile justice administration – juvenile court magistrates, probation officers, children’s officers etc and with relevant NGO personnel dealing with children in 3 Kenyan urban districts.

^[11] See Save the Children Fund (UK) -Kenya “A Baseline Survey Report on the Situation of Children in Conflict With the Law in Nairobi, Nakuru and Kisumu in Support of Diversion Programme” (hereinafter, Baseline Survey) 7.

^[12]Sloth Nielsen, J “Child Justice and Law Reform” in Davel, CJ (ed) Introduction to child Law in South Africa Lansdowne: Juta Law 418.

^[13] CRC, Art 40 (3); Beijing Rules, Rule 11(1) and (2); African Children’s Charter, Art 17.

^[14] Skelton, A, “Developing a juvenile justice system for South Africa: International instruments and restorative justice” (1996) in Keightley, R (ed) Children’s Rights Cape Town: Juta and Co 189.

^[15]Skelton (as above).

^[16]Sloth Nielsen, J “The Role of International Law in Juvenile Justice Reform in South Africa” LL.D Dissertation submitted to the University of the Western Cape (2001) (unpublished) 244.

^[17]A principle enshrined in the CRC, Article 37. See the Fifth Schedule to the Act detailing rules on the treatment of child offenders.

^[18] The Children’s Act, section 191 cited in (n 1 above).

^[19] Set out in the Draft Guidelines for the Implementation of the Diversion Strategy for Protection and Care Cases in the Juvenile Justice System” (Draft Guidelines)(Annex).

^[20]Skelton (n 14 above) 189.

^[21]Individuals appointed under the umbrella of the district coordination team which consists of the representatives from government’s Children’s Department and Probation office, representative of child rights NGO in the area and the Police. Children who are involved in the procedure and their families (where they can be reached) participate in the process.

^[22]Transcript of Interview with Ms Joyce Mwangi, Social Protection Officer, Save the Children Fund (UK)-Kenya Programme, on 14 January 2003.

^[23]Transcript of Interview with Mr. Anthony Lundi, Children’s Officer, Department of Children’s Services, Ministry of Home Affairs and National Heritage, on 8 January 2003.

^[24] Misiko, R K B “Kamukunji District Diversion Team, Nairobi: Quarterly Narrative Report-Reporting Period: First Quarter, October 1, 2001-December 31, 2001” (on file with author) (hereinafter, the Kamukunji Diversion Report).

^[25] See the Kamukunji Diversion Report (as above).

^[26] The Code of Canon is an ancient law which allowed the family of a murder victim to kill the murderer (and/or members of his/her family). In ancient times women and children were excluded. However, since the law came back into common usage that is no longer the case. Today some 1200 men, women and children are isolated in their homes for fear of retribution.

^[27] Malësinë e Madhe is a city in Northern Albania

^[28] A Rin-fest is a festival or celebration for children and young persons with songs, dances, etc

^[29] Mjaft (meaning “Stop” in Albanian) is a well-known, and very active, NGO in Albania

^[30] s198 CYPF Act.

^[31] Department of Social Welfare (1984), p.41.

^[32] “Working with Young People who Offend”, Mike Doolan, presented in Glasgow, 25 September 2001, page 2.

^[33] Source: Neil Cleaver, National Manager FGC Co-ordinators.

^[34] Ibid, note 75, page 3.

^[35] Sections 275 and 276 CYPF Act.

^[36] s18 Sentencing Act 2000.

^[37] s323(1) CYPF Act.

^[38] s323(2) CYPF Act.

THE JUVENILE JUSTICE SYSTEM IN KENYA AND

CHALLENGES TO LAW, POLICY AND PRACTICE

IN REGARD TO DIVERSION

THE AGE OF CRIMINAL RESPONSIBILITY IN ARGENTINA

Cape Town, South Africa

Former President of the Juvenile Court of Geneva

Former President of the IAYFJM