3. State Party Reports
[Parts of State party report relating specifically to relevant legal minimum ages, and articles 37 and 40]
II. DEFINITION OF A CHILD
38. The age of majority in Uganda is 18 years. However, the age determination and terminology used in reference to a child differs from statute to statute:
39. These inconsistencies between various terms used in the Acts and the ages given to define a person under 18 years of age lead to ambiguity as to the definition of a child. It results in lack of uniformity in legal entitlements and adequate safeguards for the protection of their rights. To harmonize these inconsistencies the draft bill for the Children's Statute defines the child as any person under the age of 18 years. This also takes into consideration the development of mental and physical characteristics that define maturity and distinguish the children from the adults. The definition of a child in the draft bill supersedes all other definitions. If this bill is passed, all the other statutes will accordingly be amended.
IV. CIVIL RIGHTS AND FREEDOMS
G. Article 37 (a) - Torture and degrading treatment
72. Respect for human dignity and protection from inhuman treatment is upheld in the draft Constitution. It provides that no person shall be subjected to any form of torture, cruel, inhuman or degrading treatment or punishment (art. 54). The draft bill for the Children's Statute has excluded corporal punishment as one of the dispositions the courts can use in regard to children who are convicted of criminal offences. Acts of bullying have been banned in schools and whoever engages in such act faces serious disciplinary measures.
VIII. SPECIAL PROTECTION MEASURES
B. Children in conflict with the law
1. The administration of juvenile justice (art. 40)
233. There is only one constituted juvenile court with its own juvenile court magistrate in Uganda. This is in the capital Kampala. This means that often in other parts of the country children are tried in open adult courts, creating an intimidating atmosphere for the children, and magistrates use the same procedure as for adults which does not take into account the best interests of the child.
234. Another concern in the administration of juvenile justice in Uganda today is the stringency of bail conditions. At present there is no provision for bail as court bond, but only by way of a financial surety. As a result bail is not readily accessible to children. Research conducted by the Child Law Review Committee in 1989-1990 established that bail was only granted in 20 per cent of the 347 cases where the remand condition was known.
235. Probation and Welfare Officers who are responsible for the protection of the child are inadequately resourced. They are therefore unable to carry out expeditious and quick inquiries. In some districts there are no Probation and Welfare Officers.
236. The conditions in which children are held on remand in adult prisons or police cells infringe their rights. From the research already mentioned above, in 347 cases 257 (74 per cent) were remanded in custody and half of these were remanded in places designated for adults. For all remandees 44 per cent were detained for over three months and 24 per cent for over six months. Even the few remand homes available are usually congested or lack the basic facilities. In one remand home (Naguru Remand Home) there were 202 children by the end of 1993 and the institution's designated capacity is only 30. The conditions in both the adult prisons and the remand homes are very poor and they lower the child's self-esteem and development, and put their health in grave risk.
237. The draft bill for the Children's Statute has adequately addressed the administration of juvenile justice. The concern in the proposals for legislation was to reduce the abuse of children's rights especially when this occurs in the administration of justice. These proposals in the bill give effect to the convention.
238. A child who is arrested should be accompanied by the parent, guardian or probation officer at the time of police questioning. The child has a right to be represented either by a friend, next of kin or legal counsel in the court process.
239. Emphasis has been put on the expeditious handling of cases. In non-capital charges, the court will dismiss a case that is not completed within three months after the child's plea has been taken. In capital offences the case is dismissed after 12 months, and the child is not liable to any further proceedings for the same offence. The bill further provides that children should not be remanded in an adult prison. They should only be remanded in designated remand homes or other places specifically designated for that purpose.
240. To allow the local courts to participate in the administration of juvenile justice, RC courts will be the courts of first instance in civil and less serious criminal offences like assault, trespass, etc. (at present RC courts do not have criminal jurisdiction). The RC courts are to use disposals that the community traditionally use to resolve disputes. These are reconciliation, compensation, apology and caution.
241. Every district will have a family and children court which will be the court of first instance for all cases other than those where an RC court has jurisdiction and where a child is charged with an adult. The procedures in this court shall be informal in approach and the trial should be in camera, and the child should be given the opportunity to express his or her interpretation of events. All this will ensure that the child receives a fair hearing. All the higher courts must also follow the provisions of the law concerning the procedures of trials involving children. No person is allowed to publish information that may lead to identification and harm caused by undue publicity in respect of a child before court.
242. It has been proposed in the bill that the minimum age of criminal responsibility shall be 14 years. This is an increase of 7 years from the present lowest age of criminal responsibility which is 7 years. At 14 the child is at least capable of understanding the consequences of his or her action.
243. The courts, with the advice of Probation and Welfare Officers, are increasingly using non-custodial dispositions. The CLRC Research established that of the 129 children who were found guilty and sentenced 30 per cent were placed on probation, 25.6 per cent were cautioned, 15.5 per cent were caned, 14 per cent were sent into custody and 12.4 per cent fined. Community options were used in 86 per cent of the cases. The designation of the RC vice-chairpersons at all levels as Secretaries for Children's Welfare will further help to divert children from the judicial process. The policy at the Department of Probation and Social Welfare stresses that custodial sentences should be used as a last resort. This is accordingly reflected in its Values and Principles Document which has received wide circulation in the country. Statistics from the Probation and Social Welfare Department show that as of September 1993 there were 176 probationers and 44 children who were beyond control under supervision.
244. The proposals for the Children's Statute place considerable emphasis on the importance of using and assisting traditional systems to deal with the less serious cases concerning children. It has been proposed that the RC court will be the court of first instance for certain specific less serious offences, e.g. common assault, theft, criminal trespass, etc. This allows the local community to participate in the administration of justice. At present it is difficult to obtain prompt justice because the magistrates courts are so far from many people. Children are very often remanded for long periods by the magistrates courts for very petty offences. It is the situation currently that cases (civil and criminal) are already being handled within the communities informally and through the village RC courts. The remedies used like compensation, reconciliation, etc. are those that have traditionally been used to solve disputes among community members. Therefore, there should be no problem in their administration. Giving the responsibility of providing guidance supervision and assistance to a child to a person designated by the RC court is a way of promoting community concern and care for children.
245. Any person who commits a crime in Uganda is presumed to be innocent until proven guilty according to the law. This principle is upheld in the trial process. No person is compelled to give testimony incriminating himself or herself. The court process allows an accused person to call his or her own witnesses and to cross-examine State witnesses. The accused has the right to be represented by a lawyer of his or her choice. It is the State's duty to provide an interpreter for the accused in the language he or she understands better. In any offence which carries a death penalty the accused is entitled to legal representation at the expense of the State.
246. A child has the same right of appeal as an adult. In the proposed Children's Statute, the right of appeal shall start from a village RC court to a family and children court, chief magistrates court, High Court and the Supreme Court. The draft Constitution also gives comprehensive measures for the right of a person to a fair hearing in both civil and criminal proceedings.
247. It should be noted that there is inadequate information concerning juvenile offenders. Many cases go unreported and there is currently no adequate information system. It is also not known at present how many children are incarcerated in adult prisons. It is envisaged that baseline data will be collected to form the basis of monitoring the NPA goals concerning child protection. The statistical and information system is also being reviewed in the Ministry of Labour and Social Affairs (Probation Department) in order to have a comprehensive record of the work that Probation Officers are involved in.
248. The major obstacles to be overcome include the shortage of personnel (Probation Officers), poor and inappropriate remand facilities, which undoubtedly violate several of the children's rights simultaneously, and the inadequate orientation of the community to solve child-related cases in the community without recourse to the law. Many Judicial Officers and Probation Officers have yet to fully appreciate community options as suitable disposals for juvenile offenders.
2. Children deprived of their liberty (art. 37 (b), (c) (d))
249. The draft Constitution provides for the protection of personal liberty and respect for human dignity and protection from inhuman treatment. In Uganda children are sometimes sentenced to a term of imprisonment in adult prisons. Children are also often detained in prisons for petty offences. In some cases prison authorities try to separate children from adults but largely the children mix with adults. The reasons for this are the limited remand facilities and sometimes lack of knowledge on the part of the trial magistrates in respect of the juvenile justice system. The number of children currently in adult prisons is not known.
250. Children who have been convicted of criminal offences are sent to approved schools (12-16) and the reformatory school (17-21). Currently there are two approved schools, one for boys and one for girls, and one reformatory school. While in these schools children are given home leave every year. Their parents and guardians are free to visit them and the Probation and Welfare Officers ensure that the child in the institution keeps contact with his or her family or community.
251. At present a child under the age of 16 can be given corporal punishment. Corporal punishment is offensive, infringes the rights of the child and it does not promote the child's sense of dignity. The draft bill for the Children's Statute has outlawed corporal punishment or caning as a form of punishment in the children and family court. The Government has also accepted that the offences of idle and disorderly, rogue and vagabond (sects. 162 and 163 of the Penal Code Act) be decriminalized as offences for which children can be charged. These offences are currently being used by the law enforcement authorities to round up street children, which is tantamount to deprivation of their liberty.
252. The draft bill for the Children's Statute proposes the reduction of the Probation Order from a maximum of three years to one year. A long probation order can be oppressive to the child when he or she knows the supervision will be for a long time. The proposals for the Children's Statute emphasize that custodial sentences for children should be used as a last resort and for as short a time as possible.
253. As a policy measure, Probation and Welfare Officers have been encouraged and are increasingly using other options like probation, fines and caution, which the courts usually consider, taking into account the nature of the offence and background of the offender. These options divert children from institutional treatment.
254. The Office of the Inspector General of Government (IGG) is generally interested in human rights. This includes the rights of the child. The Office checks on juvenile offenders who have been detained in places of detention by the police, the army or any other security organ. The Office investigates any human rights abuse or mistreatment of any person, including children, and makes appropriate recommendations. The presence of children in adult prisons is one of the phenomena the IGG's Office will concentrate on. The inspection will involve finding out how long the cases of children have taken to handle and whether they have been imprisoned for longer than they should. Other human rights organizations like the Uganda Human Rights Activists (UHRA) take interest in cases of child abuse and advise Government accordingly.
3. Sentencing of juveniles (art. 37 (a))
255. A person under the age of 18 years cannot be sentenced to a term of imprisonment, although this sometimes happens in the circumstances described above. Probation and Welfare Officers work with the courts to decide on the best means of dealing with children who have committed criminal offences. Decree No. 26 of 1971 provides that the sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of 18 years.
4. Physical and psychological recovery and social reintegration (art. 39)
256. The approved schools and the reformatory school are supposed to receive, detain, educate and train detainees. However, both the approved school and the reformatory school share common problems. These include: dilapidated structures as a result of the many years of turmoil and neglect; lack of equipment and qualified personnel to effect their training programme; inadequate recreation and play facilities; and poor feeding and sleeping conditions. With these mentioned problems, the institutions hardly offer any opportunities for both physical and psychological recovery. Besides, those institutions were seen largely as training centres which therefore carried long sentences so that courses could be completed. There is, therefore, less emphasis on physical recovery of children who are sent there.
257. In the approved schools there is a Department of Counselling and After Care. A child is attached to a housemaster who is supposed to help the child to adjust to the situation in the approved school and also prepare the child for eventual reintegration within his/her family.
258. When the child is released from the institution Probation Officers keep in touch with the child to facilitate quick reintegration. Where the child has acquired some rudimentary skills the Probation Officers help to place him/her in an enterprise or to acquire tools or, if the child is still in school, helps him or her to continue with education. It is important to note that both the Probation Officers and the housemasters work in very difficult circumstances and they are not effective in enabling both physical and psychological recovery and social reintegration. This situation is worsened by the fact that the staff are too few to meet the needs of the children while in the institution and when they have left. Thus, because of the apparent inadequacies of institutional treatment of offenders, the social welfare policy currently being formulated in regard to juvenile justice upholds these principles:
[Further information in State party report relating to the administration of juvenile justice]
III. GENERAL PRINCIPLES
B. Article 3 - Best interests of the child
44. The main legislation concerning children in Uganda does not state the welfare principle, yet children are vulnerable and they need to be specially protected. The most comprehensive statements of what constitutes the best interests of a child are enshrined in the Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child. These documents formed the basis of the work of the CLRC and its proposals for a comprehensive new Children's Statute.
45. The overriding principle in relation to child care according to the draft bill for the Children's Statute is that "in all dealings with children their best interests should be paramount". Other guiding principles that emphasize the best interests of the child include:
D. Article 12 - Respect for the views of the child
48. The child's right for his or her views to be respected is supported by judicial practice. Under Ugandan law, a child can give evidence in a judicial matter but this evidence has to be corroborated.
49. The guiding principle in the draft bill for the Children's Statute is that in all matters concerning a child his or her opinion and interpretation of events should be taken into account, having due regard to his or her age and understanding. This principle is part of the proposed legislation as evidenced by these specific proposals:
50. In the study of the rights of the child at the village level, the participants agreed it was a good idea to listen and to consult children in decisions affecting them. It was, however, expressed that most people in the community do not respect the views of the child. "Their time has not come", according to one key informant. In one area of the country where the study was carried out it was expressed that children's views could be sought but the decision remains with the parents. The children said they are neither listened to nor consulted and yet they felt they should contribute to decision-making on matters concerning them.
IV. CIVIL RIGHTS AND FREEDOMS
H. Article 16 - Protection of privacy
73. The right to privacy is enshrined in article 57 of the draft Constitution. The draft bill for the Children's Statute protects the right of a child to privacy. It is stipulated that no person may in respect of a child charged before a court of law publish any information that may lead to the identification of the child except with permission of court. A heavy fine (U Sh 500,000) or a term of imprisonment not exceeding six months or both is to be imposed on any person who violates the privacy of the child in the court process.
V. FAMILY ENVIRONMENT AND ALTERNATIVE CARE
77. The one-parent family is the result of separation, divorce, widowhood or unmarried parenthood. In such a family, earning a livelihood and child care are shouldered by one parent. In most cases in Uganda the one parent is the mother who often finds it difficult to secure opportunities for income generation and also deal with the issues of child discipline. As a result children often come into conflict with the law.
A. Article 5 - Parental guidance
81. The principle that when decisions about a child's care and protection are being considered or made, parents and members of the extended family should, as far as possible, be involved, was taken into account in the draft bill for the Children's Act. It is provided in this bill that in the trial of juveniles, the police should ensure that a child's parent or guardian is present at the time of the police interview with the child.
82. Under the current law (Probation Act) a juvenile who commits an offence can be released on probation. Parents are expected to help the child to reform with the assistance of Probation and Social Welfare Officers.
83. In the study concerning children's rights at the village level (already quoted), it was found that there was a general feeling that cut across gender and ethnicity. The community groups were in agreement that adults and, specifically, parents had an obligation to guide, advise and mould their children to become responsible citizens. There is awareness that childhood is a transition period during which children need special help if they are to grow up properly. There is also a need to be aware that this is also a time when children have ideas and attitudes which are of value in themselves. In the same study it was noted that some members of the community sometimes mistreat children in the name of teaching skills or guidance. Also noted was the fact that often adults expect children to take responsibilities. Adults, however, do not usually explain the implications of taking responsibility and when this is done, it is often after the child has refused or failed to do correctly what he or she was supposed to do. In anger they then explain. The findings of this study indicate that this is typically happening, and this area of child development needs emphasis in the education and sensitization programmes.
C. Article 9 - Separation from parents
94. Parents are free and are encouraged to visit their children who may be in custody in the approved schools, reformatory schools and the remand homes. Children committed to the approved school are granted two weeks' leave every year. In this period, a child stays with his/her parents and the Probation and Social Welfare Officers facilitate the interaction. Although what has been said above regarding parents visiting their children who are in custody in approved institutions is ideal and appropriate, it has often been practically difficult because these institutions are very far from the child's home and the parents may not have the money to make such long journeys. Similarly, children have often not been able to go for home leave because of lack of money in the approved schools.
95. There are situations when women are sent to prison when they are pregnant and sometimes with babies. The situation of prisons in Uganda is very unsatisfactory. There are no special accommodation facilities for necessary prenatal and post-natal care. By July 1993 the number of babies/children in Luzira women's prison averaged 12 per day. The law requires that mothers in prison stay with their babies to the age of 18 months. After this period, the children are still too young to be taken away and the mothers are also reluctant to part with their children. There are not yet concrete steps to address the needs of children whose mothers are in prison. Their stay in prison with the mothers in a situation of insufficient facilities greatly affects their welfare and development and is a situation requiring immediate action.
J. Article 25 - Periodic review of placement
138. The proposed Children's Statute includes measures for the periodic review of placements in respect of children who need care and protection. Where a child has been removed from his/her family and placed with a foster parent or an Approved Home, under a Care Order, the Probation and Welfare Officer should review this placement annually. A written report must be submitted if requesting for an extension of the Care Order. The Probation and Welfare Officer has to keep contact with the child's parents/guardians and arrange for a trial period at home as soon as it is appropriate.
139. In the Foster Care Regulations, no child should remain with a foster parent if the placement is no longer in the best interests of the child. The time when a Probation and Welfare Officer has to make an initial visit to a child placed with a foster family has also been stipulated. This varies with age. If the child is under two years, within two weeks and thereafter every three months, where the child is above two years, within one month after placement and thereafter once every three months. The Probation and Welfare Officer can also visit at any time when there is need. There are also provisions for variations of custody in the event of a parent who has custody of a child wilfully neglecting or mistreating such a child.
140. The Approved Schools Act also allows the head of the Approved School to periodically review each individual case and according to the merits of each can release a child before the committal period expires. The Inspector of Children's and Babies Homes works closely with Children's Homes. If it is established that it is not in the best interests for the child to remain in a particular home, then alternative placements can be sought after consultations with the area Probation and Welfare Officer.
Source: Initial reports of States parties due in 1992: Uganda, UN Doc. CRC/C/3/Add.40, paras. 38-39, 44-45, 48-50, 72-73, 77, 81-83, 94-95, 138-140, 233-258 (17 June 1996)