Harmonisation of laws relating to children Uganda

Prepared by Christopher Mbazira

The African Child Policy Forum PO Box 1179, Addis Ababa, Ethiopia Tel: +251 (0)116 62 81 92/ 96/ 97

Fax: +251 (0)116 62 82 00 www.africanchildforum.org www.africanchild.info Table of contents

Table of contents...........................................................................2 Acronyms......................................................................................3 Acknowledgements .......................................................................4 Executive summary........................................................................5 Introduction..................................................................................6 General country information.........................................................................6 Impact of political conflict on childrens rights .............................................6 Socio-cultural context and its impact on children.......................................10 Literature review.........................................................................................13 Country status.............................................................................16 Ratification and domestication efforts towards law reform......................16 Appointment of the Child Law Review Committee .....................................20 Report of the CLRC.....................................................................................22 The 1995 Constitution and the Childrens Act.............................................24 Emerging issues..........................................................................26 Who is a child in Uganda?...........................................................................26 Principle of best interests of the child ........................................................28 Right to a name, nationality and to know parents......................................29 Right to know and be cared for by ones parents.......................................31 Rights to education and health ..................................................................33 Impact of HIV/ AIDS.....................................................................................35 Orphans...................................................................................................... 37 Street children ...........................................................................................40 Refugee children ........................................................................................42 Juvenile justice the most comprehensive ................................................44 Age of responsibility, arrest and detention.................................................45 The role of local councils and trial by a separate court ..............................47 Practice of juvenile justice the flip side ..................................................51 Child participation ......................................................................................56 Reporting status to the UN Committee..........................................57 Initial CRC report ........................................................................................57 Second periodic report................................................................................59 Good practices............................................................................................62 Consultative and politically supported reform process ..............................62 Act not exhaustive of rights .......................................................................63 Separate juvenile justice system ...............................................................64 Community involvement.............................................................................64 Conclusions and recommendations...............................................65 Bibliography................................................................................68 Annex: About the author..............................................................75

Acronyms ACHPR Rights ACRWC the CEDAW CLRC CRC CORC FCC HSSP ICC ILO IMCI JPP LC LRA MGL&SD Development NCC NSPPI Intervention OHCHR OPAC Rights in OPSC Rights OVCS Secretariat PSWO RCJPS UCRNN UHRC UNICEF UNHCR Refugees Armed Conflict Optional Protocol to the Convention on the Of the Child on the Sale of children, Child Prostitution and Child Pornography Orphans and other Vulnerable Children Probation and Social Welfare Officer Resistance Council Judicial Powers Statute Uganda Child Rights NGO Network Uganda Human Rights Commission United Nations Childrens Fund United Nations High Commissioner for African Charter on Human and Peoples African Charter on the Rights and Welfare of Child Convention on the Elimination of All forms of Discrimination Against Women Child Law Reform Committee Convention on the Rights of the Child Committee on the Rights of the Child Family and Childrens Court Health Sector Strategic Plan International Criminal Court International Labour Organisation Integrated Management of Childhood Illness Juvenile Justice Programme Local Council Lords Resistance Army Ministry of Gender, Labour and Social National Council for Children National Strategic Programme Plan of Office of the High Commissioner for Human Rights Optional Protocol to the Convention on the of the Child on the Involvement of Children

UNLA UNPA UOBDU in

Uganda National Liberation Army Uganda National Plan of Action United Organisation for Batwa Development Uganda

Acknowledgements
I would like to express my appreciation to the Community Law Centre at the University of the Western Cape for availing me of the educational resources and space to conduct this research. Professor Julia SlothNielsen of the University of the Western Cape provided me with some of the information used to accomplish research for this report. Special thanks go to Jill Classen, manager of the documentation centre at the Community Law Centre for her support in accessing a number of resources. Thanks also go to Ssajjabi Alex, a librarian and information scientists at the Ugandan Ministry of Justice and Constitutional Affairs, for allowing me access to ministry library, Advocate Enoth Mugabi for allowing me use his office space and library while I was conducting the research in Uganda. Appreciation is expressed to Annett Kobusingye, regional advisor at Save the Children in Uganda, Peter Ekayu, Legal Officer at the Refugee Law Project, Faculty of Law, Makerere University and Henry Mwebe of the Uganda Insurance Commission for the interesting discussions I had with them on the subject of this research and the wealth of information I got in my interviews with them. Thanks also go to Bagaga Ronald in the Office of Parliamentary Counsel in Uganda, for availing me with information on the most recent events in the Parliament of Uganda, especially the enactment of the Refugee Act, 2006. I would also like to thank Jamil Mujuzi of the Department of

Constitutional Law at University of the Free State for his comments on drafts of this report.

Executive summary
Uganda has made tremendous improvements in all aspects of economic, social and cultural life since the mid 1980s. The last 20 years have witnessed large scale law reform and increased normative protection of all forms of human rights. The government embarked on a law reform process in the area of childrens rights even before its ratification of the Convention on the Rights of the Child (CRC). This process was given impetus with the countrys ratification of the CRC only three months after the appointment of the Child Law Reform Committee. The reform process, which was conducted in a consultative and participatory manner, enjoyed political support and resulted in the promulgation of the Childrens Act in 1996. The Childrens Act is the most comprehensive piece of legislation protecting childrens rights that the country has had so far. The Act incorporates the standards of the CRC and the African Charter on the Rights and Welfare of the Child (ACRWC) in a comprehensive way. In spite of this, the Act does not purport to be exhaustive of childrens rights and leaves open the application of the rights in the CRC and ACRWC not expressly protected by it.

The 1995 Constitution also protects a number of childrens rights; children are guaranteed parental care and protection is extended to vulnerable children including orphans. The Childrens Act incorporates the principles of the best interests of the child and has extensive provisions on juvenile justice which view detention as a matter of last recourse. Separate courts are established to try juvenile offenders and community participation in child welfare and all decisions touching on children. The countrys recent adoption of the Refugee Act, 2006 is commendable; in its terms the Refugee Act guarantees refugee children the same protection and extends to them the same rights as Ugandan children. In spite of a progressive normative protection, childrens rights have not been enjoyed fully by all Ugandan children. The children in Northern Uganda have been the victims of the LRA war, which has for the last 20 years led to the kidnap of hordes of children and disruption of such services as health and education. But even in the seemingly peaceful and thriving parts of the country the full realisation of childrens rights has been hampered by a number of practical obstacles. An example of such obstacles includes the lack of adequate funding to set up and run efficiently all the administrative structures envisaged by the Childrens Act. Other obstacles include entrenched cultural practices such as patriarchy with its attendant practices which disadvantage the girl child. Like many African countries the impact of HIV/ AIDS on children is readily visible. HIV/ AIDS has led to increased numbers of orphans far above the capacity of both the formal and informal structures that cater for the needs of orphans. The government has shown commitment to come to the aid of orphans and other vulnerable children and has adopted a strategic plan to this effect. Full implementation of this plan is however yet to be achieved mainly due to financial and other hurdles. Nevertheless it should be noted that a number of civil society organisations and such other organisations as UNICEF have invested a lot in coming to the aid of orphans and other vulnerable children.

Uganda has been fairly diligent in discharging its reporting obligations under the CRC, there is no evidence that it has reported under the ACRWC and is yet to report under the various optional protocols it has ratified under the CRC. The countrys initial report under the CRC was followed by a more comprehensive second report with information on how the government had responded to the Committee on the Rights of the Childs concluding observations and recommendations under the initial report. The second report is honest on what the government had done and what it had failed to do. The concluding observations and recommendation after the second report will hopefully also be taken seriously by the government.

Introduction
General country information Uganda is a land-locked country in East Africa. By 2002 national census results Uganda had a population of 24.4 million people. With a population growth rate of 3.3%; the population was projected to be 26.7 million by 2005.1 Children below the age of 18 years constitute 56% of the total population, while children below the age of 15 years constitute 49%. The number of children at school in 2002 represented approximately 38%; this projection included young adults at the age of 19 years who are in secondary school.2 Rudimentary estimates place children not at school at approximately 20%. The primary school enrolment rate does not depict a disparity between girls and boys; the rate stands at 83% for both girls and boys. As will be seen later, this could be attributed to the policy of free primary education adopted by government. However, a gap appears in favour of boys as the age increases, with noticeable disparities at the age of 10 and above. This means that girls drop out of school faster than boys, a rate which is also depicted in the literacy levels of men and women, which stand at 75% and 54% respectively.3 In 2002 the countrys infant mortality rate stood at 83 per 1000 births, though the evidence showed a declining trend from 122 in 1991 to 97 in 1995 to where it stands now.4 2006 estimates put the rate at 66 per 1000,5 which represents a dramatic improvement.

Impact of political conflict on childrens rights Uganda has had a dramatic political history since it attained independence from Britain on 9 October 1962. This history has had an
Uganda Bureau of Statistics Uganda Population and Housing Census, Main Report (2002) available at www.ubos.org (accessed on 12 June 2006) [Hereinafter referred to as Bureau of Statistics (2002)] 2 Bureau of Statistic (2002), at pviii 3 Bureau of Statistic (2002), at p30 4 Bureau of Statistic (2002), at p28 5 Central Intelligence Agency The World Fact Book (2006) available at www.cia.gov/cia/publications/factbook/geos/ug.html (accessed on 12 June 2006)
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impact on all aspect of economic and social life including the welfare and rights of children. It has also dictated the success of the different endeavours to reform the child protection laws in the country. The countrys political situation came to the international lime in the 1970s during the dictatorship of Idi Amin; it is estimated that Idi Amin killed approximately 300,000 political opponents.6 Though by the early 1980s the country had been relieved from the leadership of Idi Amin the situation of human rights did not improve dramatically. Under the leadership of Milton Obote, the country was immediately gripped by a civil war and a military coup in 1985 followed by a second coup which brought the National Resistance Movement (NRM) government to power in 1986. It was only after 1986 that Uganda started registering progress in the area of protection of human rights, including childrens rights. The government quickly signed and ratified most of the international human rights treaties and embarked on efforts to domesticate the treaties. However, in spite of this, Uganda has also seen ups and downs in the area of human rights and specifically childrens rights caused especially by armed conflict.7 One of the biggest challenges facing Uganda is stopping the violation of childrens rights perpetrated by the Lords Resistance Army (LRA), a rebel group which has been fighting the Ugandan government for over two decades now. The LRA led by Joseph Kony, a ruminant of the ousted forces of Milton Obote, the Uganda National Liberation Army (UNLA), launched its rebel activities in Northern Uganda two decades ago. This war has been described by the United Nations Under-Secretary for Humanitarian Affairs Jan Egeland as one of the worst humanitarian crises in the world.8 The LRA has committed countless violations of childrens
Encyclopaedia of Nations, Uganda available at www.infoplease.com/ipa/A0108066.html (accessed on 12 June 2006) 7 See Oloka-Onyango, J Constitutional transition in Musevenis Uganda: New horizons or another false state in 39 (2) Journal of African Law (1995) pp156 172 8 See United Nations News Centre, Press Release Head Of UN Humanitarian Affairs Office visits Northern Uganda says Deeply Shocked by War Against Children 11 November 2003 available at www.un.org/News/Press/docs/2003/afr750.doc.htm (accessed on 14 June 2003)
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rights in all their forms. The LRA has been abdicating and recruiting children into its rebel ranks. It is estimated that over 20,000 children have been abducted by LRA since 1986.9 Abducted young girls have been subjected to sexual abuse by being used as sex slaves to satisfy the sexual desires of the rebels.10 Children who have attempted to escape from the LRA camps have been tortured and some times executed by fellow children as a deterrence measure. The LRA has also subjected children to acts of forced labour and compulsion to kill civilians, sometimes the childrens relatives in the villages terrorised by LRA.11 Forced laboured has taken the form of compelling children to carry heavy loads for very long distances, walking long distances to fetch water and wood and executing such other chores as cooking. Because of the insecurity that has been caused in many parts of Northern Uganda every night children, in their thousands, having been flocking to the neighbouring towns of Gulu and Kitgum in search of a secure place to spend the night. It is estimated that on one night alone the number of night commuters could total 50,000, some coming from places as far as 10 miles away from the towns.12 The bulk of the commuters are women and children. In one town it was estimated that 84% were children.13 Girls and women face a number of challenges as they commute from their homes and in the places they spend the night. The biggest challenge they
Human Rights Watch Report Stolen children: Abduction and Recruitment in Northern Uganda Vol.15, No. 7 (A), March 2003 available at http://hrw.org/reports/2003/uganda0303/ (accessed on 13 June 2006) p6 [Hereinafter referred to as HRW (2003)] See also Statement by UNICEF Deputy Executive Director Rima Salah on her visit to northern Uganda, (4 February 2006) available at www.unicef.org/infobycountry/media_30965.html (accessed on 23 June 2006) 10 See for instance Pregnant by an LRA rebel New Vision Newspaper, 9 July 2006
9

HRW (2003) p10 Womens Commission for Refugee Women and Children No safe place to call home: Child and adolescent night commuters in Northern Uganda (June 2004), available at www.womenscommission.org/pdf/ug_nightcom.pdf (accessed on 19 June 2006) p3 [Hereinafter referred to as WCRWC (2004)]. The term night commuter has been used to describe people who leave their homes every night and flock to towns looking for a secure place to sleep away from the rebel infested areas 13 WCRWC (2004) p4
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face is gender violence and sexual abuse. It has been reported that many young commuters who commute and sleep without the supervision of their parents are increasingly exposed to the risk of HIV/ AIDS.14 The war has also disrupted mechanisms for the production and distribution of food and other social goods and services in Northern Uganda, thereby contributing to the state of poor nutrition and health for children in that region. The war has made it hard for systems that provide health services to the children to be run, many child deaths are therefore associated to diseases and not hostilities.15 Though a cessation of hostilities has been registered recently, with the rebels indicating that they are ready for peace talks, it is unfortunate to note that the rights of countless children continue to be violated. At the time of writing this report peace talks between the government and the LRA rebels had began in Juba, Southern Sudan. Though the talks have kicked off they are very fragile because of the many disagreements that the parties have encountered. The government has also been sending out conflicting messages on the issue of whether it is prepared to talk peace. The government has been caught between the desire to uphold international criminal law by having the rebels prosecuted by the International Criminal Court (ICC) and the need to end the war by extending amnesty to the rebels.16 Even if the hostilities cease permanently it is submitted that there are challenges in bringing the perpetrators of violation of childrens rights to book. This is in addition to rehabilitating the victims of war and assisting them to retrieve their dignity and self-confidence.

WCRWC (2004) p3 Hamiliton, C and Tabatha, A Armed conflict: The protection of children under international law in 5 The International Journal of Childrens Rights (1997) p3
14 15

See Govt will not talk to Kony New Visions Newspaper, 14 June 2006; see also The Amnesty Act No. 1 of 2000, which makes extensive provision for the extension of amnesty to all Ugandans who have engaged in war or armed rebellion against the government after 1986
16

The violations of childrens rights in Northern Uganda have existed along side a seemingly strong normative legal protection of childrens rights. The LRA war brings to light the issue of conception and implementation of laws in war situations. War renders powerless those charged with the duty of protecting the weak and vulnerable to whom the benefits of law become a vineyard placed out of bounds. This is what has happened to thousands of children in Northern Uganda who have been subjected to all the known forms of violation of childrens rights. This has happened simultaneously with a flourishing protection of childrens rights in other parts of the country. According to UNICEF: The conflict in northern Uganda tragically shows, in clear terms, how children continue to be the first casualties of violence, insecurity and poverty. It is unconscionable that in the same country where one child can access the full range of his or her rights, another child living a few hours drive away lives deprived of even the most basic services.17 Socio-cultural context and its impact on children While Uganda has ratified and domesticated all major treaties protecting childrens rights, the successful protection of these rights has been hampered by some cultural and traditional practices. These rights have also been hampered by other socio-economic factors prevalent in the country.18 It is important that we understand the different socio-economic and cultural conditions and how they impact on the rights of the child in Uganda. As rightly pointed out by Ekirikubinza, we cannot ignore the difficulties of translating normative standards to specific social, economic, and cultural contexts of particular societies, in her opinion:

Statement by Martin Mogwanja, UNICEF Representative in Uganda UNICEF Lauds Progress for Ugandas Children, Urges More Must be Done (May 2006) available at www.unicef.org/infobycountry/media_33914.html (accessed on 23 June 2006)
17

Ekirikubinza, L Understanding childrens rights: The case of corporal punishment in rural Uganda in 9(1) East African Journal of Peace and Human Rights (2003) pp115-143 [Hereinafter referred to as Ekirikubinza (2003)] p116
18

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[I]t is only after bringing out the local perceptions towards children, and towards the notion of child rights, that we can, where such perceptions contradict universally agreed standards, come up with concrete measures to ensure that the childrens rights are localized, concretized and implemented.19 The concept of the child as paternal property is greatly entrenched in Ugandan society and constitutes one of the obstacles to the protection of childrens rights.20 Uganda, like many African societies, is a society based on a patriarchal family status.21 In all Ugandan tribes, and like many African tribes, there is a strongly held cultural belief that the child is the property of his father. Innocuous as this culture may appear, it does not translate into assumption of some important obligations by the father. The mother is considered to be charged with the primary responsibility of grooming the child, with the fathers obligations only extending to making financial provision. The patriarchal nature of the Ugandan society also discourages female inheritance, which creates limitations in terms of girls accessing their parents property after their decease. The boy child is exalted at the expense of the girl child. In cases of inadequate educational resources the resources are considered well spent if directed at the boys education. This partly explains the disparity in the school drop out rate between girls and boys as the statistics above has shown. In the social circles, a child is not understood as a person below the age of 18 years. The age though relevant is not definitive of what constitutes a child. In almost all Ugandan communities childhood is attached to the dependence on ones parents and a child includes persons under parental care.22 A child is understood as having no capacity to think for him or
Ekirikubinza (2003) p116 Perry-Williams, J Legal reform and childrens rights in Uganda some critical issues in 1 The International Journal of Childrens Rights pp49-69 (1993) p57 [Hereinafter referred to as Perry (1993)] 21 See Tuhaise, P Gender roles and sexual inequality: Domestic labour and the burden of housewives in Uganda in 5(2) East African Journal of Peace and Human Rights pp139-160 (1999) p147
19 20 22

Ekirikubinza (2003) p121

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herself and to reach independent decisions. It is not surprising that many teachers also hold the view that every person they teach is a child to them.23 However, after 21 years most parents would think that the person has matured; this though is not a guarantee for attainment of full independence. Full independence in most cases comes with assertion of economic independence;24 in the case of girls this may result from getting married. Some people hold the belief that marriage does not lead to automatic attainment of adulthood if a person is still physically young, which in formal terms could mean in the stages of young adulthood. The definition of a child in the Ugandan culture is therefore fluid and is a shifting standard. This shows how sometimes the law can be ineffective in changing peoples traditionally held perceptions. In spite of the fact that the Childrens Act25 defines a child as a person below the age of 18, this has not changed peoples views. Another important traditional institution that impacts on childrens rights, albeit positively, is the extended family. Though the institution is in decline, the extended family is still very much a feature of Ugandan society. The extended family plays a very important role; it acts as an insurance against disaster and a support network for children.26 This is especially when the child loses his or her parent(s) to death or even to such calamities as illness or imprisonment. The importance of this institution is seen from the way it has been able to respond to the impact of HIV/ AIDS in Uganda by providing AIDS orphans with a home. Incidents of female circumcision and genital mutilation, though not common, are still exercised by some Ugandan communities; mainly by the Sabinyi people in Eastern Uganda. In fact the Committee on the Elimination of All forms of Discrimination Against Women has expressed

23 24 25 26

Ibid. Ekirikubinza (2003) p122 Chapter 59, Laws of Uganda 2000 Perry (1993) p59

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concerns on this practice in its comments to Ugandas report.27 Acts of betrothal and selling of children into forced marriages and child sacrifice also, though not common, once in a while come to light.28 Literature review Perry-Williams,29 gives a comprehensive and critical account of the process of law reform in the area of childrens rights following Ugandas ratification of the Convention on the Rights of the Child (CRC).30 Perry focuses on the work of the Child Law Review Committee (CLRC) and in a critical manner points out some of the obstacles to the effective discharge by the CLRC of its mandate. One of the obstacles he identifies relates to the problems of a supportive environment for law reform in the area of childrens rights. He points to problems of making the CLRCs report public by the responsible minister. He says, however, that generally Ugandas political environment was supportive to the law reform process.31 Perry points out wide consultation and use of exact data as some of the good practices of the CLRC, a factor which greatly enhanced the Committees credibility.32 Perrys research also points to some cultural practices in Uganda and how these impact on some aspects of childrens rights.33 The patriarchal nature of Ugandan society and the extended family structure are some of the examples. Though Perrys paper did not have the benefit of looking beyond the work of the CLRC, it provides very useful information on the law reform process.

Concluding Observations of the Committee on the Elimination of Discrimination against Women: Uganda 31/05/95, A/50/38 para 333 28 See Girls sold in Katakwi, says MP New Vision Newspaper 2 July 2006 available at www.newvision.co.ug/D/8/12/507250 (accessed on 3 July 2006); Radio Simba Gender Ministry probes sell of virgins in Karamoja available at www.simba.fm/index.php?option=content&task=view&id=7450&Itemid=2 (accessed on 4 July 2006) 29 Perry (1993) 30 Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 entry into force 2 September 1990 31 At pp52-53 32 At pp54-56 33 See pp58-59
27

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Odongo Godfrey takes up from Perry and provides an even more detailed account of the child law reform process.34 Odongo takes us through the processes of the CLRC from its inception, its operation, and submission of its report to the adoption of the Children Act in 1996. He makes a detailed reference to the CLRC report, recounting major events and processes of this committee. High level political support coupled with the role of civil society and such organisations as UNICEF is highlighted. Odongos thesis details the state of juvenile justice in Uganda against the background of international standards and in comparison with other Africa countries. The countries include Kenya, Tanzania, South Africa, Ghana, Namibia and Lesotho. The research points out a number of good practices in the area of child justice in Uganda; an example is emphasis on non-intervention and support for diversion.35 Odongo also points to the gap between the normative framework and full implementation of several aspects of Ugandas child justice system. Non-implementation of the normative framework, arising, amongst others, from the absence of the anticipated implementation mechanisms is identified as one of the practical constraints.36 Being a 2005 research, Odongos thesis provides up-date information on child justice in Uganda though it is constrained by difficulties of accessing information on the subject. Lillian Ekirikubinza has carried out the most recent study on the position of corporal punishment in rural Uganda.37 This seemingly authentic casestudy research gives useful information on the perception of corporal punishment not only at home but also in the school environment. The study highlights the fluidity of what constitutes a child in Ugandan communities and how this varies from the legal position.38 The study shows lack of a clear justification of corporal punishment by Ugandan
Odongo, G The domestication of international law standards on the rights of the child with specific reference to juvenile justice in the African context LLD dissertation submitted to the University of the Western Cape, October 2005 (Unpublished) [Hereinafter referred to as Odongo (2005)]
34 35 36 37 38

See pp231-234 See for instance p239 Ekirikubinza (2003) See pp120-122

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parents but who still think that it is an effective method of punishing juveniles. For instance, one parent is quoted as saying that canning is extremely effective because unlike other forms of punishment, it inflicts pain and diffuses a childs anger much faster.39 The study unveils what parents consider to be alternative forms of punishment. These include doing house chores such as working on the farm and fetching water, and denial of food. Punishments such as burning, scalding, tying up with ropes and banishment from the home are considered cruel. The study concludes that there is a clear distinction between excessive and consequently unacceptable physical chastisement on the one hand, and moderate and consequently acceptable use of physical punishment on the other.40 This research also unveils what rural Uganda children think about corporal punishment. They acknowledge that though it leads to humiliation it is effective in making behavioural change; they reckon that its abolition would lead to disobedience.41 The study makes reference to the international standards against corporal punishment; reference is made to articles 19(1), 28(2) and 37(a) of the CRC. It is within this context that Ekirikubinza condemns corporal punishment because of its impact on the child. In this respect she uses a number of studies that have been carried out on this subject at the international level and the comments of the Committee on the Rights of the Child (CORC). Jacqui Gallinetti in discussing how diversion is being used in some African countries makes reference to Uganda.42 This research points to the fact that diversion in Uganda is not adequately legislated and occurs within a very limited scope allowed by legislation. It happens through the discretion accorded to the village courts, the police and to the Family and Childrens Courts (FCCs). She identifies three levels at which diversion is
39

See p125

See p126 See p127 42 Gallinetti, J Diversion in Gallinetti, J and Sloth-Nielsen, J (eds) Child justice in Africa: A guide to good practice Community Law Centre, pp66-73 (2004) pp67-68
40 41

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practiced: the first is the auspices of the community; second is at the police station through the use of caution; and third at the statutory level through the FCCs. In Gallants opinion, it is clear that work still needs to be done in the area of diversion. In a recent book chapter Ekirkubinza reviews the state of juvenile justice law in Uganda.43 The chapter begins with reference to the 1995 Constitution and the Childrens Act as incorporating, in a comprehensive manner, the rights of children. This has been done in accordance with the CRC and the African Charter on the Rights and Welfare of the Child (the ACRWC) and other UN standards. Ekirikubinza takes us through the principles in the Childrens Act that apply to juvenile offenders. These include the concept of childhood and the age of criminal responsibility, the best interests of the child as applied to diversion, a judicial system which includes local courts and the FCCs and rehabilitation as guiding principles. The chapter also reviews some of the most recent judicial decisions from the High Court of Uganda in the area of juvenile justice. This is done with the intention of ascertaining whether the new legal order has made any difference. In her conclusion, the decisions of the Court show that there is little evidence to suggest that the courts have been guided by the need to keep the child out of detention and promote rehabilitation. In spite of this, some judgments are depicted as progressive.

Country status
Ratification and domestication efforts towards law reform Uganda is a follower of the dualist doctrine, which asserts that international law is not applicable in domestic jurisdictions unless
Ekirikubinza, L Juvenile justice and the law in Uganda: Operationalisation of the Childrens Act in Bainham, A and Rwezaura, B (eds) The international survey of family law (2005) International Society of Family Law pp 511-528 [Hereinafter referred to as Ekirikubinza (2005)]
43

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provision is made for this by domestic law.44 The Constitution of the Republic of Uganda, 1995 enjoins parliament to make laws to govern the ratification of international treaties, conventions and agreements.45 With this mandate parliament in 1998 promulgated the Ratification of Treaties Act.46 This Act provides for domestication of international treaties after incorporation by an Act of Parliament. Uganda ratified the CRC on 16 September 1990, less than a year after its adoption and at the same time when the treaty entered into force.47 In addition to the successful international campaign for the ratification of the CRC, Ugandas early ratification of this treaty is associated to the political changes that had taken place in the country. In its early years, the NRM government demonstrated commitment to eradicating all human rights abuses.48 In relation to childrens rights, President Yoweri Museveni proclaimed that as important as the need for human rights is, even more important is the need to recognize and protect the special rights of children who are the most vulnerable members of our society.49 Save for the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)50 Uganda has ratified or acceded to all major United Nations and regional human rights treaties during the term of the NRM government.51 Uganda ratified the African Charter on Human and
See Brownlie, I Principles of public international law (1990) Oxford University Press, pp32-33 45 Article 123(2) 46 Act No. 5 of 1998 47 Office of the United Nations High Commissioner for Human Rights Status of ratification of the principle international human rights treaties as of 09 June 2004 available at www.unhchr.ch/pdf/report.pdf accessed on 12 June 2006 48 See United States Department of State: Uganda at www.state.gov/p/af/ci/ug
44

In his address to the UNICEF National Seminar on the Convention on the Rights of the Child in Kampala (November 1988), statement is quoted in Ugandas initial report to the Committee on the Rights of the Child 17 June 1996, General CRC/C/3/Add.40 [Hereinafter referred to as Ugandas initial report, (1996)] 50 Adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979 entry into force 3 September 1981 51 International Covenant on Civil and Political Rights, 1966 (ratified on 21 September 1995); International Covenant on Economic, Social and Cultural Rights, 1966 (ratified on 21 April 1987); Convention Against Torture and Other
49

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Peoples Rights (ACHPR) on 10 May 1986 and the ACRWC on 17 August 1994.52 On 25 March 2003 Uganda ratified the International Labour Organisation (ILO) Convention Fixing the Minimum Age for Admission of Children to Industrial Employment.53 The country is however yet to ratify the other ILO conventions protecting children.54 The country has also ratified the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography55 (OPSC)56 and the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict57 (OPAC).58 It should be noted that even before ratifying the CRC the Ugandan government had already embarked on a process of reforming its laws to achieve increased protection of the rights of children. Like so many African countries, since independence, Uganda had never engaged in a comprehensive review of its child protection laws. Most of the laws on the statute books had been promulgated during the colonial era, far way back before the protection of childrens rights started gaining prominence at the international level. In the area of juvenile justice for instance,
Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (26 June 1987); and the International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families, 1990 (ratified on 1 June 2003). Though this research focuses on the CRC and ACRWC, it is acknowledged that all these important treaties are relevant to the protection of the rights of the child since children benefit from them as well 52 Charter of ratifications: OAU/ AU human rights treaties, position as at December 2003, source at www.africaunion.org/root/au/Documents/Treaties/treaties.htm (accessed 13 June 2006) 53 Adopted by ILO in 1919; came into force on 13 June 1921; revised in 1937 by Convention No. 59, and in 1973 by Convention No. 138; see ratification records at www.ilo.org/ilolex/english/convdisp1.htm 54 Such as Convention Fixing the Minimum Age for the Admission of Young Persons to Employment as Trimmers or Stokers; Convention concerning the Night Work of Young Persons Employed in Industry; and Convention concerning the Age for Admission of Children to Employment in Agriculture 55 Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000; entered into force on 18 January 2002 56 Ratified on 30 November 2001 57 Adopted and opened for signature, ratification and accession by General Assembly resolution A/RES/54/263 of 25 May 2000; entered into force on 12 February 2002 58 Ratified on 06 June 2002

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responses to children within the judicial system were based on the ethos of punishment and did not pay attention to the welfare needs of the child charged with an offence.59 Child justice was characterised by inconsistency in the definition of a child in law, absence of childrens courts, excessive remands in custody, low age of criminal responsibility,60 stringent bail conditions, lengthy trials and long custodial sentences.61 Uganda recognised the need to bring all its laws, including those that protected children, up to-date with the current socio-economic realities.62 Attempts to review Ugandas laws relating to children stretch as far back as 1967 running through to 1973, 1977 and 1981 when the Ministry in charge of childrens matters attempts to have the Children and Young Persons Bill promulgate failed.63 In 1988 UNICEF convened a national seminar on the rights of the child; the seminar was addressed by the President of Uganda, who affirmed his support for the protection of childrens rights.64 This seminar has been described as a landmark occasion that catalysed the lobby for reform of children rights related laws. The conference was addressed by the then Minister of Justice and Attorney General and was attended by a number of organisations working in the area of childrens rights.65 The seminar provided an opportune moment for establishment of collaboration between UNICEF and other organisations on one hand, and the government on the other hand, in their endeavours to reform the child protection laws. The seminar also coincided with the drafting of the CRC, which was at a critical stage and nearing finalisation. The seminar motivated for reforms by the Ugandan government of its laws relating to children.
Kakama, P Juvenile justice in Uganda, Paper presented at a seminar on Juvenile Justice, held in Lilongwe, Malawi, 23 25 November 1999; available at www.penalreform.org/english/vuln_jjuganda.htm (accessed on 13 June 2004) [Hereinafter referred to as Kakama (1999)] 60 This was at 7 years 61 See Kakama (1999) 62 Perry (1993) p49 63 Odongo (2005) p81 64 See Ugandas initial report (1996) 65 See Odongo (2005) p82
59

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Appointment of the Child Law Review Committee In June 1990 the Ugandan government commissioned the CLRC, which was mandated to review all the existing laws concerning child welfare and to propose appropriate legislation, consistent with international standards, for the benefit of disadvantaged and children in conflict with the law.66 For a period of close to two years, the CLRC engaged in a process of research and consultation on the content of new child legislation. The CLRC took a very broad perspective and widened scope, traversing issues of child social welfare, both at the state and family level, and issues of juvenile justice. Thus the work of the CLRC was divided into three areas: young offenders, child care and domestic relations.67 The CLRC embarked on its work by convening a number of workshops in which a number of childrens rights related issues were discussed. By this time Uganda had ratified the CRC, which then became a reference point for the CLRC. This is very important because it set the standards that the CLRC was to use to assess the progress of its work. As it will be demonstrated later in this report, it does not come as a surprise that Ugandas Childrens Act, 199668 comprehensively incorporates provisions of the CRC. The author is certain that if the review process had been conducted during any other period, either before or after the ratification of the CRC, the Childrens Act would not have incorporated the provisions of the CRC as comprehensively as it did. The other event that greatly bolstered the process of review was the holding of the first United Nations World Summit for Children (First World Summit), held in September 1990 in New York and attended by the President of Uganda. The First World Summit resulted in the adoption of the World Declaration and Plan of Action on Survival, Protection and
Perry (1993) p49 Child Law Reform Committee (Uganda) Report of the Child Law Review Committee of the Ministry of Labour and Social Welfare (1992) pp3-4; as quoted by Odongo (1993) p85 [Hereinafter referred to as CLRC (1992)] 68 Chapter 59, Laws of Uganda 2000 [Hereinafter referred to as Childrens Act]
66 67

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Development of Children (World Plan of Action).69 This Plan of Action expressed, amongst others, a solemn commitment to give high priority to the rights of children, to their survival and to their protection and development and that [t]his will also ensure the well-being of all societies.70 It is around the same time as the end of the First World Summit that the CLRC organised a very important workshop, which, consistent with the World Plan of Action, kick started the process of drafting Ugandas National Plan of Action for Children (UNPAC).71 At this workshop it was agreed that the work of the CLRC was to be guided by a number of principles. The most important principles included the best interests of the child principle, the right to participate in decisions concerning them and the principle of detention as a measure of last resort and if unavoidable for the shortest period of time.72 Debate was held again and again on the meaning of some of the above principles because of the different perceptions of them. For example, questions arose again and again as to what was meant by a childs welfare and whose responsibility it was for its realisation.73 The CLRC process also came immediately after the establishment of the Uganda Constitutional Commission (the Constitutional Commission), which was tasked with the duty of drafting a new constitution for the country to replace the 1967 Constitution.74 The views of the CLRC were later to find their way into the Constitutional Commission, leading to the promulgation
World Declaration on the Survival, Protection and Development of Children September, 1990; see UNICEF Publications available at www.unicef.org/wsc/declare.htm (accessed 13 June 2006) 70 Para 19 71 Odongo (2005) p87 72 CLRC (1992) p70 73 Perry (1993) p56 74 See Mukholi, D A Complete Guide to Ugandas Fourth Constitution: History, Politics and the Law (1995) 29 and Odoki, JB The Search for a National Consensus: The Making of the 1995 Constitution of Uganda (2005); see also Matembe, M Shattered Hopes: Post-conflict governance in Uganda: International Peace Academy project on Governance and Power After Conflict: The Consequences of Governance Choices in Post-Conflict Constitutions (2005) available at www.ipacademy.org/PDF_Reports/Uganda.pdf (accessed on 16 June 2006)
69

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of extensive provisions protecting childrens rights in the 1995 Constitution. To assess the situation on ground the CLRC visited a number of institution and solicited views from a wide range of participants, both within the urban areas and up-country. The institutions consulted included schools, prisons, police, probation officers and remand homes.75 There was also wide public consultation and solicitation of views which took the form of leaflets and questionnaires directed at targeted individuals and groups. A significant number of people supported the need for the protection of childrens rights and stipulation of their duties.76 Some role players though expressed the view that the issue of practicability of some of the proposal should not be overlooked.77 Report of the CLRC The CLRC process resulted in a report which was submitted together with a draft Bill to the minister of Labour and Social Welfare. In its report the CLRC took a number of positions consistent not only with the CRC but also with the ACRWC. It proposed that a child should be defined as a person under the age of eighteen. This would clear the inconsistencies in the various laws, which defined terms such as infant, juvenile, minor, young offender and youth differently. Most laws had put the age of majority at twenty one years. The CLRC also came down against the patriarchal culture and the perception that sympathy for cultural practices should deter law reform. The CLRC took the view that even in industrialised societies the state law and peoples laws will continue to exist and this was not a ground to stop protection of women and children in an egalitarian manner.78 Therefore, the CLRC recommended that the responsibility to maintain the child should be cast on the parents, mother and father, and that on divorce both should be entitled to apply for custody. This challenged the colonial laws which gave more custodial
75 76 77 78

Odongo (2005) p89 Odongo (2005) p90 Odongo (2005) p91 Perry (1993) p59

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rights to the father and also cast the responsibility of maintenance on him alone. The Committee took the view that the community has a very important role to play in improving child protection; it recommended institutionalisation of this role. The CLRC for instance recommended the placement of a duty to protect children on the elected local village councils already in operation as part of the administrative structure. The CLRC placed emphasis on the need for informal settlement of child related issues at the local level and litigation in the formal courts as last recourse.79 The areas of violations of childrens rights over which the local village committees would have jurisdiction to mediate would include education, immunisation, medical treatment, child abuse, denial of necessaries of life, protection of childrens inheritance rights and according assistance to disabled children.80 The responsibilities of the state would include taking appropriate legislative measures to protect the child and would extend to assumption of full parental responsibility when the child was removed from where they were living and placed elsewhere by court order.81 Fourteen years was recommended as the minimum age of criminal responsibility and that breaches of the law committed by those under the age of fourteen would be dealt with as care and protection matters and not as offences.82 Custodial sentences were recommended to be applied as a measure of last resort and diversion and non-intervention from the court process, where possible, were preferred. The government accepted the proposal of the CLRC, it commented that: The Government of Uganda recognizes that reform of the laws is a crucial part of the overall approach in improving the
79 80 81 82

Perry (1993) p60 Perry (1993) p60 Perry (1993) p61 Ibid.

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situation of the child. The law provides the power, the structure and the framework to protect children. Government has accepted the proposals of the Child Law Review Committee and a draft bill has been prepared. It is hoped that the bill for the Children's Act will soon be tabled in the National Resistance Council (Uganda's Parliament) for debate and consequent enactment.83 This resulted in the Childrens Bill which was presented in parliament and adopted in 1996 as the Childrens Statute. A revision of Ugandas laws in 2000 renamed the statute the Childrens Act,84 a short title I use in the rest of this report. This Act was promulgated within one year of adopting the 1995 Constitution which also made extensive provision for the protection of childrens rights. The 1995 Constitution and the Childrens Act The Childrens Act incorporates international standards in the most comprehensive way; the Act has been applauded as one of the most elaborate pieces of law on children on the continent.85 The Act draws directly from the CRC and the ACRWC and other United Nations standards on the protection of children. However, this Act is more detailed on the treatment of children in conflict with the law than any other area of childrens rights.86 In spite of this, the Act makes provision for the definition of a child, child care, protection and maintenance, adoption, local authority support for children, and establishment of specialised childrens court in a manner generally consistent with the CRC and the ACRWC. It is important to note that the Childrens Act does not purport to be exhaustive of the rights of children. In its principles guiding implementation, the Act provides that:

83 84

Ugandas initial report (1996), para 5 Chapter 59 Laws of Uganda, Volume III Ekirikubinza (2005) p513 Ekirikubinza (2005) p514

85 86

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[T]o exercise, in addition to the rights stated in this [Act], all rights set out in the U.N. Convention on the rights of the child and the [A.U] Charter on the Rights and Welfare of the African Child with appropriate modifications to suit the circumstances in Uganda, that are not specifically mentioned in this [Act].87 In comparison to previous constitutions,88 the 1995 Constitution contains the most comprehensive protection of human rights and recognition of vulnerable groups. Like most African constitutions, the 1995 Constitution contains a Bill of Rights dedicated to the protection of civil and political rights; it is tainted though with some economic, social and cultural rights such as the right to education,89 right to a clean and healthy environment,90 and protection of rights of workers.91 Generally, socioeconomic rights are protected as Directive Principles of state policy. Although all these rights may be enjoyed by children, since they are guaranteed to everyone, the report will concentrate and pay more attention to the childrens rights. Some rights such as those guaranteed to women, parents and special groups such as people with disabilities may also be relevant to the welfare of children. For instance, Article 33(6) prohibits laws, customs, cultures or traditions which are against the dignity, welfare or interests of women or which undermine their status. This article may be used to challenge cultural practices directed at women but which also undermine the rights of the child. As already stated above, though the tradition of patriarchy may be directed at women it affects the rights of children as well. It may be used to deny a child the right to be cared for by his/her parents,92 which includes father and mother.

First Schedule Guiding Principles in the Implementation of the Act, para 4(c) 1962 Independence Constitution, 1966 Pigeon Hole Constitution, and the 1967 Constitution 89 Article 30 90 Article 39 91 Article 40
87 88 92

Article 34(1)

25

The Constitution accords persons with disabilities the right to respect and human dignity and compels the state to take full measures to realise their full mental and physical potential.93 While disability affects adults alike, children suffer more as a result of disability. This is because of their vulnerable state and the inability to take care of themselves and dependence on adult support. This right is therefore relevant to such children.

Emerging issues
Who is a child in Uganda? As already mentioned above, if public perception is something to go by, the definition of a child is very fluid in Uganda and may create confusion. While the law has a definition of a child it is also tainted with some inconsistencies. The Constitution defines child as a person under the age of 18 years.94 In spite if this, the same Constitution restricts its protection of children from social or economic exploitation and prohibits their employment in ways that would interfere with their education or be hazardous to their health, spiritual, moral or social development to 16 years.95 On the other hand the Childrens Act defines a child consistently with international law as a person below the age of 18.96 What the Constitution literary means is that children between 16 and 18 years of age are not entitled to protection from employment that is hazardous and may interference with their development. On the other hand the Childrens Act protects all children from employment or any activity that may be harmful to [their] health, education, mental, physical and moral development.97 The Constitution is the supreme law of the country and any law inconsistent with it is void to the extent of its inconsistency.98
93 94 95 96 97

Article 35(1) Article 257 Articles 34(4) and (5) Section 1 Section 8 Article 2

98

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This means only one thing, section 9 of the Childrens Act is inconsistent with the Constitution to the extent that it protects children between 16 and 18 in respect of which protection is expressly excluded by the Constitution. It appears to me that the drafters of the Constitution allowed themselves to be confused by the standards set in some ILO Conventions. Some of these Conventions protect children as young as 12 years from employment in certain industries.99 Though they leave open the employment of children above that age in the identified industries they do not legalise their employment if it is hazardous to them. This is because it was not the scope of those conventions to deal with this issue. In fact some of the ILO Conventions prohibit children below the age of 18 from working in some industries, which are considered to be inherently hazardous for children.100 The inconsistency in the Constitution needs to be cured by an amendment of the Constitution since it appears impossible to cure by judicial construction. In fact in its concluding observations to Ugandas initial report, the CORC stated that: The Committee particularly notes with concern that current provisions concerning the definition of child, youth offender and minor, as contained respectively in the Approved Schools Act, the Affiliation Act and the Marriage Act; the Reformatory Schools Act; and the Divorce Act, are incompatible with the provisions and principles of the Convention, especially with the principle of non-discrimination and in the areas of marriage, employment and juvenile justice.101
The conventions include Convention Fixing the Minimum Age for Admission of Children to Industrial Employment, 1919. Uganda has ratified this instrument 100 Convention concerning the Night Work of Young Persons Employed in Industry, 1919, and Convention Fixing the Minimum Age for the Admission of Young Persons to Employment as Trimmers or Stokers, 1921 101 Committee on the Rights of the Child Concluding observations of the Committee on the Rights of the Child: Uganda. 21/10/97. CRC/C/15/Add.80, para
99

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Principle of best interests of the child Consistent with the CRC and the ACRWC,102 the Constitution requires that laws be enacted to further the best interests of the child.103 The Childrens Act uses the phrase welfare of the child. However, when one pursues this phrase as used and elaborated, it means the same thing as the best interests of the child. Section 3 of the Childrens Act provides as follows: The welfare principles and the Childrens rights set out in the First Schedule to this Act shall be the guiding principles in the making of any decisions based on the provisions of this [Act]. The First Schedule compliments section 3 by requiring that whenever the state, a court or local authority or any person, determines any question with respect to the up-bringing of a child, administration of a childs property and in all matters relating to a child, regard shall be had to the welfare of the child principle.104 In elaborate terms the schedule sets out the factors that have to be taken into account when making decisions relating to a child. These include:

The ascertainable wishes and feelings of the child concerned,

considered in the light of his or her age and understanding The childs physical, emotional and educational needs The likely effects of any changes in the childs circumstances The childs age, sex, background and any other circumstances the matter

relevant to

Any harm that the child has suffered or is at risk of suffering Where relevant, the capacity of the childs parents, guardians

or others involved in the care of the child in meeting his or her needs105
9 [Hereinafter referred to as Concluding Observations (1997)]
102 103 104 105

Article 3 of the CRC and article 4 of the ACRWC Article 34 Paras 1 and 2 Para 3

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As will be seen below, in theory, these principles straddle through all the provisions of the Act in all aspects including maintenance, adoption, custody and juvenile justice. However, the biggest challenge is to translate all of them into practice in order to advance the welfare of children. Right to a name, nationality and to know parents Neither the Constitution nor the Childrens Act makes provision for the protection of the childs right to a name. The right to a name is protected by both the CRC and the ACRWC, which require that at birth every child be given a name and be registered immediately.106 The failure to expressly protect this right could have resulted from the fact that acquisition of a name in Uganda is taken for granted. This, however, applies to children who are born in formal family settings and whose parents are identifiable. It may not apply to children who are born outside the family and under circumstances where their parents cannot be identified. Examples include children abandoned either on the streets, hospitals or at entrances of baby care centres immediately after birth or during their early stages of childhood. This could also extend to children that have been disowned by their parents. In most Ugandan communities a child takes on the fathers clan and assumes the names of that clan. There are however cases in which a child may be disowned by the clan, resulting in most cases from doubts about the childs paternity. On being disowned such children have to give up the names of the clan and although they may remain in the custody of their mothers are not entitled to a name from the mothers clan. This is a source of humiliation and embarrassment which follows them into adulthood. Akin to the right to a name is the right to be registered at birth as guaranteed by the ACRWC and the CRC. This right appears implicit in the Constitutional obligation on the state to register every birth, marriage and death.107 Parliament has also made provision for the registration of
106 107

Article 7 of the CRC and article 6 of the ACRWC Article 18

29

births and deaths.108 Failure to register a childs birth may impair his or her capacity to enjoy some of the rights and protections accorded by law. A birth certificate could be prerequisite for access to social services; establishing a birth registration system may over time improve children's access to health care and education.109 It will also be easy to protect children from exploitative activities like sexual abuse and child labour if their age is easily ascertainable. In the juvenile justice system, the failure to ascertain the proper age of a person may deny that person the benefit of being treated as a juvenile, estimates based on size or level of intelligence may prove inadequate. The CORC in its concluding observations to Ugandas initial report in 1997 expressed concern with the absence of implementation of birth registration laws in the rural areas.110 As will be seen later, the government has indicated that the CORC recommendations in this regard have not been implemented fully. At the moment, the birth registration rate stands at 4%.111 Like the right to a name, there are no express provisions protecting the right to acquire nationality as protected by the CRC and the ACRWC.112 However, this right can be deduced from the provisions of the Constitution relating to citizenship. These provisions accord automatic citizenship to people whose parent(s) or grandparent(s) is Ugandan.113 The Constitution also makes a presumption that any child under the age of five years, and one whose parents are unknown, is Ugandan. It is not clear why the age is restricted to five years. There could be cases where children above the age of five years may be in circumstances that would entitle them to such presumption.

The Birth and Death Registration Act, 1970, amended by Decree No. 3 of 1974 Article 40 A children's law reform process in South Sudan available at www.communitylawcentre.org.za/children/2005art40/vol7_no1_sudan.php#suda n (accessed on 23 June 2006) 110 Concluding Observations (1997) 111 See Ministry of Gender, Labour and Social Development at www.mglsd.go.ug/ovc/downloads/Policies_12.pdf 112 Article 7 of the CRC and article 6 of the ACRWC 113 Article 10
108 109

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Right to know and be cared for by ones parents The Constitution provides that children have the right to know and be cared for by their parents.114 The Constitution also provides that [i]t is the right and duty of parents to care for and bring up their children.115 This provision challenges traditional perceptions that divide parental responsibilities on the basis of genderthe mother taking physical care and the father financial care. The provision does not state which parent is to do what, it could therefore be interpreted as imposing physical and financial care obligations on both parents. A mother could therefore be compelled to provide financial maintenance to the child, so may a father be compelled to provide physical care. The obligations of the parents are elaborated by the Childrens Act which imposes on parents the responsibility for their children.116 It is provided that it shall be the duty of a parent, guardian or any person having custody of a child to maintain that child and, in particular, that duty gives the child the right to: (a) education and guidance; (b) immunisation; (c) adequate diet; (d) clothing; (e) shelter; and (f) medical attention.117 The legislation also imposes a duty on any person in whose custody a child is to protect that child from discrimination, violence, abuse and neglect.118 In line with Ugandas traditions and culture, the Childrens Act provides that where the natural parents of a child are deceased, parental responsibility may be passed on to relatives of either parent.119 As we have already seen above, the institution of the extended family has played a very important role in response to HIV/ AIDS by providing AIDS orphans with a home. The Childrens Act also imposes a joint obligation between the parents and the state towards children with disabilities. It provides that the state and the parents shall take appropriate steps to see that children with disabilities are: (a) assessed as early as possible as to determine the extent and nature of their disabilities; (b) offered
114 115 116 117 118 119

Article 34(1) Article 31(4) Section 6(1) Section 2(1) Section 5(2) Section 7(2)

31

appropriate treatment; and (c) afforded facilities for their rehabilitation and equal opportunities to education. The provisions relating to child care are complemented by criminal law which sanctions parents who neglect their children. The government has been able to apprehend and successful prosecute a number of cases of child neglect which have received media attention.120 These cases, however, represent only a few, the majority of cases are not prosecuted because of their discrete nature. In 2004, the Uganda Human Rights Commission (UHRC) reported that it received a total of 602 complaints relating to maintenance of children as compared 126 in 2003.121 The UHRC notes that failure to maintain children is associated to unemployment, ignorance but also to personal disputes between the parents. The Childrens Act puts in place structures that could enable the state to supervise and oversee care for children, whether within or outside their families. The Acts allows Probation and Social Welfare Officers (PSWO) to obtain court orders that place a child under the probation officers supervision.122 Orders can also be made against either foster parents or wardens of approved homes. The probation officers duties are extensive; they include making reports to the court whenever this is demanded.123 However, the Act sets some conditions that govern the issuing of supervision orders. Eye catching is the provision which requires that supervision orders shall not be made unless it is shown that the local government councils at the village level have dealt with the matter without success.124 As we shall see later, through the local councils, the

See Foundation for Human Rights Initiative (FHRI) Human Rights Report 2000 available at www.ned.org/grantees/fhri/00annual/index.html#acknowledgements (accessed on 16 June 2006) [Hereinafter referred to as FHRI (2000)] 121 Uganda Human Rights Commission 7th Annual Report (2004) p148 [Hereinafter referred to as UHRC (2004)
120 122 123 124

Section 19(a) Section 20 Section 23

32

Act tries as much as possible to localise childrens problems and to seek solutions at that level. The Act also allows the courts to issue care orders that place the care of a child either under a warden of an authorised home or under the care of foster parents.125 However, the Act does not prescribe care orders as a means of first resort to ameliorate the conditions of a neglected child.126 The first objective that should be sought is to assist those with whom the child is living to examine the circumstances leading to abuse.127

Rights to education and health Like many African constitutions, Ugandas Constitution does not protect all socio-economic rights as part of its Bill of Rights. These rights are, however, protected mainly as Directive Principles of state policy, not contained in the operative part of the Constitution. In spite of this, experiences elsewhere have shown that these principles could still be used by the courts to read into several of the provisions of the Constitution elements of socio-economic rights.128 The Ugandan courts are yet to do this. However, besides these principles the Constitution protects some socio-economic rights in the Bill of Rights, education is one example of this. The Constitution guarantees the right of everyone to education; this right is guaranteed to adults and children alike.129 There is however a much stronger guarantee for children, they are entitled to basic education, which is a responsibility of the state and the parents.130 Ugandas efforts to provide free primary education pre-date the Constitution. In 1989 a government appointed Education Policy Review
Section 28 Sloth-Nielsen, J New child care and protection legislation for South Africa: Lessons from Africa in 3 Stellenbosch Law Review pp261-279 (1997) p272 127 Section 7 128 This is what the Indian Courts have done, using especially the right to life to protect such rights as housing, health and work; see Cassels, J Judicial Activism and Public Interest Litigation in India: Attempting the Impossible? in (37) The American Journal of Comparative Law pp495-519
125 126 129 130

Article 30 Article 34(2)

33

Commission issued a report in which it recommended the universalisation of education by the year 2000. A second government appointed commission gave the same recommendation and in 1992 the Ministry of Education and Sports adopted a White Paper on Education.131 Under this policy government was to provide free primary education to a maximum of four children per family. By 1996 the policy had not been implemented, however, the president during the May presidential campaigns announced that government was to provide free primary education to all children.132 Implementation of the policy began in 1997, leading to an increment in enrolment in primary schools by more than 2 million pupils; by 2003 the total enrolment was at 6.2 million.133 In spite of this, the government still faces challenges of ensuring that all children benefit from this policy. Its implementation in the northern part of the country is yet to be realised because of the LRA war. It has also been acknowledged that the rate of drop outs, especially of the girls, still continues. This is because some parents and communities still consider education of a girl as a waste of time.134 The drop out in some regions is associated to early pregnancies resulting from sexual defilement of children in schools135 and the need for families to avail themselves of labour to work on the farms.136 These practices are inconsistent with the constitution, which expressly prohibits the deprivation of children of education by reason of religious or other beliefs.137 Other problems
Republic of Uganda, Ministry of Education and Sports (1992) Government White Paper on the Education Policy 132 See Stasavage, D The role of democracy in Ugandas move to Universal Primary Education in 43(1) Journal of Modern African Studies pp53-73 (2005); also available at http://personal.lse.ac.uk/STASAVAG/uganda.pdf (accessed on 17 June 2006) 133 See Committee on the Rights of the Child Consideration of reports submitted by states parties under article 44 of the convention; second periodic report for Uganda 3 August 2003, CRC/C/65/Add.33 5 November 2004, para 171 [Hereinafter referred to as the Second Report (2003)] 134 Second Report (2003), para 174 135 See Defilers hindering success of UPE in Buvuma MP The Monitor Newspaper 19 June 2006 136 See Monkeys hindering UPE progress on Islands, The Monitor Newspaper 21 June 2006
131 137

Article 34(3)

34

hampering the effective implementation of this policy are infrastructural, ranging from scholastic materials, school buildings to human resource gaps in the form of teachers. Though the Constitution does not expressly prescribe the childrens right to health, this right could be deduced from Article 34(3), which prohibits deprivation of children of medical treatment on the basis of religion or other believes. This provision though appears to give a restrictive meaning of the right to health; medical treatment is, but one element of the right to health. The provision is also restrictive because of the negative nature of the obligation, without any corresponding positive obligations. The positive obligations can be deduced from of the Constitutional objectives. Objective XX of the directive principles requires government, by all practical measures, to ensure the provision of basic medical services to the population. The Childrens Act also compels the parents to provide for the immunisation and medical care of their children.138 The Act also proscribes subjection of children to social or customary practices that are harmful to their health.139 Impact of HIV/ AIDS Uganda was one of the first Africa countries hit by HIV/ AIDS in the early 1980s. By the end of 2001 it was estimated that over 940,000 deaths in Uganda were related to HIV/ AIDS illness.140 The impact on children was (and continues to be) disastrous. Many children have been orphaned by the epidemic resulting from the loss of one or both parents. Though the extended family has been able to absorb some of the orphans, the increasing numbers have overstrained this institution and resulted in failure to take on all orphans. It is estimated that there were 1.9 million orphans in Uganda by 1998.141 By 2003 48% of all orphans were HIV/AIDS
Section 5 Section 8 140 Uganda Aids Commission HIV/AIDS in Uganda available at www.aidsuganda.org (accessed on 13 June 2006) 141 Ddamulira, D HIV/ AIDS spending study international component: The case of Uganda (2002) p1; available at www.idasa.org.za/gbOutputFiles.asp? WriteContent=Y&RID=649 (accessed on 16 June 2006) [Hereinafter referred to as Ddamulira (2002)]
138 139

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orphans.142 This has led to the emergency of child-headed households and the associated problems. Though not fully, the void created by the incapacity of the extended family has been filled by the community. In Uganda, the semi-communal nature of living in some communities creates a disaster insurance system which sees children depending on the community in some respects for socio-economic support. It is within this context that the communities have been able support child-headed households;143 this though is not wide spread. In addition to orphanage, HIV/ AIDS has impacted variously on children. Some children, especially the girl child, have been withdrawn from school to take care of the sick, which has impacted on their education.144 The disease has also contributed to the high infant mortality rate. In 2000 it was estimated that of the 1,050,555 people living with HIV/ AIDS 531,909 were women of child bearing age and the prevalence of AIDS amongst pregnant women was 6.5%.145 With this figure it was estimated that 24,843 children would be born with HIV/ AIDS every year and would die before their third birthday. In fact in 2000 AIDS was the leading cause of death for children under the age of 5.146 In 2001 it was estimated that of 950,000 deaths caused by HIV/ AIDS, 10% were children.147 Without these figures there are no doubts that the infant mortality rate would have been much lower than it is now. The disease has also had an impact on household income, children depend on adults for their welfare and if the income of adults goes down so does the child welfare. AIDS has contributed to unemployment arising from physical incapacity and the
Avert AIDS orphans the facts, available at www.avert.org/aidsorphans.htm (accessed on 17 June 2006) 143 See UNICEF Uganda A Ugandan village rallies around children orphaned by AIDS available at www.unicef.org/infobycountry/uganda_29786.html (accessed on 17 June 2006) 144 Uganda Aids Commission Secretariat HIV/ AIDS in Uganda: The epidemic and the response available at www.aidsuganda.org/pdf/hiv_aids_impact.pdf (accessed on 14 June 2006) 145 Prevention of Mother to Child Transmission of HIV/ AIDS PMTCT Programme New Vision Newspaper 1 December 2003, available at www.aidsuganda.org/pdf/PMTCT_Programme_Article.pdf (accessed on 13 June 2006) 146 Ddamulira (2002) p1 147 UHRC (2004) p150
142

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consequential loss of income. Household savings have been depleted to access care for the sick while income inflows from affected adults have been cut off due to sickness and attending to the sick.148 As seen at the beginning of this report, in 2002 the countrys infant mortality rate stood at 83 per 1000 births, though the evidence showed a declining trend from 122 in 1991 to 97 in 1995 and to where it stands now.149 In 1997 the CORC commended the government for the priority given to health care for children, including efforts to reduce child mortality, facilitate breastfeeding, support nutrition programmes, combat HIV/ AIDS, eliminate female genital mutilation and increase access to clean drinking water.150 Ugandas integrated approach to the problems of HIV/ AIDS and adoption of a strategic plan appears to account for the noticeable decline in child morality rates.151 The major policy catering for childrens health is the Health Sector Strategic Plan (HSSP). The HSSP makes provision and puts in place plans for the reduction of ill health and mortality rates. It is complemented by such other policies as the Integrated Management of Child Hood Illness (IMCI). Orphans By 2003 the government estimated that the number of orphans stood at 1.7 million,152 more than half of this number being associated to HIV/ AIDS related deaths.153 The Constitution provides that the law shall accord

Uganda Aids Commission HIV/ AIDS in Uganda available at www.aidsuganda.org (accessed on 13 June 2006) 149 Bureau of Statistic (2002) p28 150 Concluding Observations (1997) para 5 151 Recent newspaper reports indicate that over 6,000 children are on antiretroviral drugs at public hospitals: 6,000 kids on ARV drugs New Vision Newspaper 2 July 2006 available at www.newvision.co.ug/PA/8/13/507227 152 Second Report (2003) para 9 153 World Vision More than words? Action for orphans and vulnerable children in Africa: Monitoring progress towards the UN Declaration of Commitment on HIV/AIDS available at www.crin.org/docs/resources/publications/hrbap/More_than_words_UNGASS.pdf (accessed on 19 June 2006) p8
148

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special protection to orphans and vulnerable children.154 The problems facing orphans include violation of several of their rights, ranging from inheritance, access to food, education, body integrity, and psychological torture.155 In 2003 the Ministry of Gender, Labour and Social Development (MGL&SD) established the Orphans and other Vulnerable Children Secretariat (OVCS) within the ministry. The ministry also commissioned a number of studies on the problem of orphans and vulnerable children in Uganda.156 Following from this was the 2004 adoption of the National Strategic Programme Plan of Intervention for Orphans and other Vulnerable Children, Fiscal Year 2005/6 2009/10 (the NSPPI).157 In this programme government acknowledges the physical and emotional challenges that orphans and their families face and the fact that over 80% of the orphans have not received any form of support from the government.158 The mission of the programme is to ensure that all orphans realise their full potential and have their rights and aspirations fulfilled.159 This programme outlines a number of government priorities in relation to vulnerable children. These include: re-integrating those living within communities on their own with the principle that no child shall live

Article 34(7) See Centre for International Health and Development, Boston University School of Public Health Comparative studies of orphans and non-orphans in Uganda available at www.mglsd.go.ug/ovc/downloads/indicators_4.pdf (accessed on 21 June 2006) 156 Mukasa, A., Mapping of orphans and other vulnerable children interventions in Uganda Consultancy Report for the Ministry of Gender, Labour and Social Development (October 2003) available at www.mglsd.go.ug/ovc/downloads/indicators_1.pdf (accessed on 21 June 2006); Wahweya, A, Kateregga, C, Konde-Lule, J, Williams, M and Heggenhougen F Situation analysis of orphans in Uganda: Orphans and their households: Caring for their future Today Ministry of Gender, Labour and Social Development and Uganda Aids Commission (November 2002), available at www.mglsd.go.ug/ovc/downloads/indicators_9.pdf (accessed on 21 June 2006); and Kateregga, C The situation of older persons and their role as caregivers of orphans and other vulnerable children in Uganda; Applied research on Child Health (ARCHT) Project, submitted to the Ministry of Gender, Labour and Social Development (July 2003) available at www.mglsd.go.ug/ovc/downloads/indicators_3.pdf (accessed on 21 June 2006) 157 Available at www.mglsd.go.ug/ovc/downloads/Policies_12.pdf (accessed on 21 June 2006) [Hereinafter referred NSPPI (2004)] 158 See p17 159 See p22
154 155

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on their own if a caregiver can be identified,160 and reaching out to vulnerable households.161 To realise its mission, the NSPPI identifies a set of 13 principles that guide the plan. These include: building on the human rights based approach, making the family and the community the first line of response, reducing vulnerability, facilitating community participation and empowerment, promoting gender equality, treating recipients with respect, reducing stigma and discrimination, ensuring social inclusion, ensuring participation of vulnerable children and families, strengthening partnerships, delivering integrated services and designing age sensitive programmes.162 It is against these principles that the programme sets goals to be realised in a period of 5 years and puts in place a strategic framework. However, the full implementation of the NSPPI is yet to be realised; full implementation has been affected especially by the lack of clear coordination between the different levels of government. The committees envisaged by the NSPPI have not yet been established in all the districts because of the lack of funds. To cover this void, some civil society organisations, such as Save the Children, have tried to fund these committees in some districts and have worked with PSWO in this regard.163 There is also a problem of lack clear co-ordination between the different civil society organisations assisting in implementing the NSPPI.164 As has already been stated above, the extended family structure of many Ugandan families has made it possible for orphans to be cared for. It appears that this structure, although it is under so much strain, has put the problem of orphans in conduit away from government concern. Though the government has provided indirect support to the families, like introducing UPE, work in this area is being shouldered by civil society
160 161 162 163 164

See p20 See p21 See pp22-23 Interview with Annette Kobusingye Interview with Annette Kobusingye

39

organisations. Organisation doing work in this area include: AIDS Orphans Education Trust Uganda, The Uganda Women's Efforts to Save Orphans (UWESO), Uganda Orphans Rural Development Programme, the African Foundation, Save the Children Uganda165 and the churches,166 amongst others. Street children Street children are also dealt with in accordance with the NSPPI. The total number of street children in Uganda is estimated at 10,000.167 The factors that push children to the streets are multi-faceted. The problem of HIV/AIDS appears to be one of the major factors. Other factors include: rural urban migration, family breakdown, child abuse, child labour and sexual exploitation, and alcohol and drug abuse.168 The war in the north has as well been a big contributor to the increasing number of street children. This is because some families that have fled from the war into urban centres find it hard to integrate themselves fully in the urban communities. Due to unemployment children can neither access school nor basic necessities of life. They end up on the streets as baggers in search of food. There is no specific mention of street children in provisions of the Childrens Act, but they can be dealt with using some of the provisions of the Act and the Constitution. As already noted, article 34(7) of the
For instance, Save the Children has been providing training, material assistance and psychosocial support to orphaned children and has on occasion helped with school tuition fees and employment placement; interview with Annette Kobusingye 166 See Church stuck with orphans New Vision Newspaper 29 July 2006 167 Consortium for Street Children Information about street children Uganda available at www.streetchildren.org.uk/reports/Uganda%20Child.doc (accessed on 13 June 2003) 168 See Sexton, A Street children: The situation in East and Southern Africa and the need for a strategic global response Statement made to the United States House of Representatives House Committee on International Relations Subcommittee on Africa, Human Rights and Global Operations in Hearing on Protecting Street Children: Vigilantes or the Rule of Law? (September 2005) available at www.streetchildren.org.uk/reports/Street%20Children;%20The%20Situation %20in%20East%20and%20Southern%20Africa.pdf (accessed on 15 June 2006) p4 [Hereinafter referred to as Sexton (2005)]
165

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Constitution obligates government to undertake special measures to protect vulnerable children. Indeed the governments definition of term vulnerable children encompasses street children.169 Within the Childrens Act, the provisions relating to the care of children and the use of approved homes could be used for the purposes of coming to the aid of street children. Though there is no specific provision compelling government to remove children from the streets, this obligation can be construed from provisions that require that children be cared for. It is a natural construction that in the cases where the childrens parents cannot be traced, the state becomes locus parentis.170 In this case the state would assume all the obligations imposed on the parents by the Constitution171 and the Childrens Act.172 In spite of this, the governments assumption of this obligation is not clear from the NSPPI. In its concluding observations to Ugandas initial report, the CORC expressed concern with the increasing number of children living and working on the streets and the absence of measures to provide for their socio-economic needs.173 The CORC recommended that Uganda adopts a strategy to tackle the problem of children working and/or living on the streets. The government reported in its second report that it had established a desk in charge of issues relating to street children within the MGL&SD to co-ordinate the activities of organisations working in this area. However, no details were provided on what government has done in positive to come to the aid of street children. The states practice to the problem of street children has been to round them up and send them to a reformatory school. While the school gives children shelter and a bed to sleep, it has two major of problems. First, the children rounded up from the streets are put together with those taken to the school as juvenile offenders. The conditions at the school are poor in terms of sanitation and

See Plan on Orphans (2004) p19 The government assumes the obligations that would have been discharged by the biological parent 171 Articles 34(1) and (2) 172 Section 5 173 Concluding Observations (1997), paras 12 and 23
169 170

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other facilities.174 These problems definitely impact on the welfare of the children and hold back their rehabilitation. The legal requirements authorising organisations to care for children are very strict, homes set up for the purpose of caring for children need government approval.175 The problem is that these homes are allowed to receive children only in an emergency situation from a police officer or PSWO and court approval must be obtained in 48 hours.176 Secondly they can only receive children under an interim care order or a care order.177 The imposition of conditions for people who want to care for children is understandable because some people may take care of children for unscrupulous purposes. At the same it should not be made hard for those who genuinely want to provide children with care. Seeking of court orders may be out of reach for some local structures. It would have made sense if the local councils, assisted by PSWO, were involved in this process. Refugee children Uganda is a party to all the main international instruments on the protection of refugees. The refugees in Uganda come mainly from three countries, the Democratic Republic of Congo, Sudan and Rwanda. There are also some refugees from Burundi and Somaliland. The legal position in Uganda has always been that refugees should be kept in camps (local settlements); their rights to work, movement and education have been very limited. It is estimated that of all refugees in Uganda, over 40% constitute children of school going age.178 It was estimated that by the end of 2005 Uganda would have a refugee population of 140,774.179
174

Sexton (2005) p8

Section 56 of Childrens Act Section 57(a) 177 Section 57(b) 178 Dryden, P Education of refugees in Uganda: Relationship between setting and access Refugee Law Project Working Paper, No. 9 (June 2003) [Hereinafter referred to as Dryden (2003)] available at www.refugeelawproject.org/papers/workingpapers/RLP.WP09.pdf (accessed on 18 June 2006) 179 UNHCR UNCHR global appeal (2005) p143 available at www.unhcr.org/cgibin/texis/vtx/publ/opendoc.pdf?id=41ab28e7c&tbl=PUBL (accessed on 17 June 2006)
175 176

42

In May 2006 Parliament adopted a new refugee law, the Refugee Act, 2006 This Act makes extensive provision for the protection of refugees and guarantees them a number of rights. The Act provides that refugees are entitled to the rights guaranteed by the international instruments to which Uganda is a party.180 The Act makes special provision for the protection of refugee children. They are accorded the same rights in relation to elementary education as other children and their rights as protected by international law are guaranteed. Refugee Children under the Act are entitled to the enjoyment of the rights and freedoms contained in the Childrens Act, ACRWC, the CRC and the Geneva Convention.181 The Refugee Act also provides that the family of a recognised refugee is entitled to the same rights as the recognised refugee;182 this encompasses children of the refugee. The Refugee Act, however, is still on paper and good as it looks, its success is dependent on how effectively it is implemented. Refugee children will be in a position to enjoy all the rights guaranteed to children in Uganda if the Act is implemented effectively. The obligation to provide for the education and other services in the refugee camps has always been assumed by such organisations as the United Nations High Commission for Refugees (UNHCR), donors and other civil society organisations.183 While the government has introduced free primary education, refugee children have not been entitled to this education, however, the government has assumed the obligation to pay salaries for the teachers in the camps. The pay for these teachers is however not motivating, they received Ug shs 60,000 (US$ 30), compared to Ug shs 200,000 (US $ 100), received by teachers in government schools.184

180 181 182 183 184

Section 28 Section 32(2) Section 36 See Refugees to get school in Kampala The Monitor Newspaper, 1 June 2006 Interview with Peter Ekayu

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Some local authorities have allowed refugee children to access education in schools outside the camps. This though is not wide spread as some local authorities still reject refugee children in their schools. Though the UNCHR has been providing free primary education in some camps, there are a number of obstacles. The problems range from physical infrastructure to human resource problems such as absence of teachers who speak the languages of the children.185 Some of these schools are accessed by the nationals thereby reducing pressure on government, in spite of this there does not appear to be any efforts on the part of government to improve them. In the northern part of the country, refugee camps have on several occasions been attacked by LRA rebels, thereby disrupting all services including education.186 Juvenile justice the most comprehensive To begin with the Constitution, it provides that a child offender who is kept in lawful custody or detention shall be kept separately from adult offenders.187 This requirement is re-affirmed by the childrens Act.188 The Constitution also prohibits the remand of a child in an adult prison.189 Special protection is also extended to female children, who while in detention, must be under the care of a female officer.190 The provisions dealing with juvenile justice in the Childrens Act are the most comprehensive of all provisions. The Act makes extensive provision for the age of criminal responsibility, arrest, bailing, trial, sentencing, detention and rehabilitation of child offenders. In addition to the CRC and the ACRWC, the Childrens Act draws heavily from the provisions of the United Nations Standard Minimum Rules for Administration of Juvenile Justice (Beijing Rules).191 The premise of Ugandas juvenile justice system has been described as follows:
See Dryden (2003) See Duncan, D Refugee kids continue lessons in Ugandas schools available at www.unchr.org/cgi-bin/texis/vtx/news/opendoc.htm? tbl=NEWS&id=41177f964%page=news (accessed on 18 June 2006) p8
185 186 187 188 189 190 191

Article 34(6) Section 90(8) Section 93(6) Section 90(9) Adopted by General Assembly resolution 40/33of 29 November 1985

44

Ugandas juvenile justice law is premised on the belief that it is in the best interests of the child (and perhaps of society), that a child who has transgressed the law is re-habilitated and reintegrated into society. It is presumed that this will best be done outside the formal justice system and thus the diversion of a child from the formal justice system is a central aim of juvenile justice law and no peripheral to it.192 In addition to the above, one should also mention that the Ugandan system empowers the local community to participate in the juvenile justice system. Handling child crime is no longer seen as an exclusive state responsibility, some offences can be disposed off at the local level. Age of responsibility, arrest and detention Uganda is not a country of high crime; in spite of this, children now and again find themselves in conflict with the law either on their own or after being used by adults to commit crime. The age of criminal responsibility is put at 12 years,193 up from 7 before the promulgation of the Childrens Act. It is not clear why the recommendation of the CLRC of 14 years as the age of responsibility was not adopted. It appears that it was thought that 12 years was too low. The CRC itself does not set a minimum age of criminal responsibility and the CORC has not declared itself, in very clear terms, on this issue.194 It has been contended that the Childrens Act in this respect could have been a response to the principle in the Beijing Rules that the age of responsibility for crime should not be set at a low level and should reflect emotional, mental and political maturity.195 But since the Beijing Rules do not give an age, it is still unclear why 12 and not 14 was adopted. It has been contended that experiences of Uganda show that the debate on raising the minimum age of criminal responsibility goes beyond the rhetoric of child rights:
192 193

Ekirikubinza (2005) p515 Section 89 See Odongo (2005) p136 Ekirikubinza (2005) p514

194 195

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[T]he comparative example of other countries legislation and research into the ages and offences of children committing crimes were all factors that were considered before arriving at a decision to fix the minimum age of criminal capacity. Importantly, research into the age at which it was reasonable to expect children to fully understand the consequences of their actions and to have the maturity to resist the pressure of peers and adults, was crucial to the Uganda Child Law Review Committee.196 The procedures for the arrest and detention of children suspected of having committed offences are a bit different from those of adults. Detention does not appear to be preferred as a measure of first resort. Police officers have wide powers to release the child without a formal charge;197 the police could also disposal off the case without having recourse to the formal court proceedings.198 Unless arrested with a warrant, the police are authorised to release the child on bond on his or her own recognisance, unless the interests of justice require otherwise.199 As soon as a child is arrested the police are under duty to inform either the parent or guardian of that child and the local council secretary in charge of childrens affairs in the area where the child resides.200 Interrogation of the child is supposed to take place in the presence of either the parent or guardian, unless it is not in the best interests of the child to do so.201 Where neither the parent nor the guardian can be contacted immediately, a PSWO has to be informed of the childs arrest.202

Odongo, G Child justice law reform developments in African and international standards on the rights of the child in (6) Article 40 pp8-12, (2004) p12 [Hereinafter referred to as Odongo (2004)] 197 Section 89(1) 198 Section 89(2) 199 Section 89(6) 200 Section 89(3) 201 Section 89(4) 202 Section 89(5)
196

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The role of local councils and trial by a separate court (a) Local council courts

Uganda has a decentralised system of governance; representative administrative units are established at all levels of societyfrom the village, parish, sub-county, county, to district levels.203 The structure closest to the people is the village council, Local Council 1 (LC 1). This council is composed of 9 people representing the village on a village executive committee; the law requires that one of the 9 should be designated as secretary in charge of childrens affairs. The child affairs secretary is charged with the duty of monitoring the welfare of children in his or her area of jurisdiction. The LC 1 enjoys some limited judicial powers as granted by the Resistance Committee (Judicial Powers) Act (RCJPS),204 which extends mainly to customary and other disputes that may be resolved without the need to resort to the formal judicial system. The Childrens Act recognises and makes use of this very important administrative structure. The Act expressly grants the LC 1 some form of criminal jurisdiction in cases involving children.205 By amending the RCJPS, the Childrens Act has empowered the LC 1 to try the following criminal offences: affray, common assault, causing actual bodily harm, theft, criminal trespass and causing malicious damage to property.206 The LC 1 courts are in fact designated as the courts of first instance in respect of the above offences. The courts operate in an informal manner, are convened any time and legal representation is prohibited. In remedial terms, these courts are, notwithstanding other penalties prescribed by the penal laws, empowered to make any of the following orders: reconciliation, compensation, restitution, apology, or caution.207 In addition, the courts may make a guidance order by which a child is

203 204 205 206 207

See Chapter 11 of the Constitution and the Local Government Act, 1997 Act No. 88 of 1988 Section 93(2) Schedule 3 of the Childrens Act Section 93(4)

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placed under the guidance, supervision, advice and assistance of a designated person.208 In spite of the use of corporal punishment in the domestic contexts in Uganda, the Act does not make it part of the orders that may be made by LC 1 courts. However, the Act should have gone ahead to expressly outlaw its use by the LC 1 courts. In fact the Constitutional Court (the CC) has abolished corporal punishment as a form of punishment in the criminal justice system.209 There is no guarantee that the LC 1 court, whose members are ignorant of the jurisprudence of the CC will not resort to corporal punishment. The risk is especially high because these courts are usually conducted mainly in the family context, a context in which corporal punishment is used widely.210 Though the Childrens Act outlaws corporal punishment, this is only in respect of orders that may be made by the Family and Children Court (FCC).211 (b) The Family and Childrens Court

Consistent with article 40(3) of the CRC, the Childrens Act establishes a FCC for every administrative district presided over by a magistrate. The FCC has jurisdiction to hear and determine the following matters:

i.

Criminal charges against a child, other than offences punishable by death or any offence for which a child is jointly charged with a person over eighteen years of age212

ii.

Applications relating to child care and protection In cases of trial by courts other than the FCCs for offences committed with adults or those carrying the penalty of death, on conviction the case has to be remitted to the FCC for an appropriate order.213 This however
Section 93(5). This order must be for a maximum of six months; section 93(6) Kyamanywa v Attorney General Constitutional Petition No. 10 of 2000 [unreported] 210 See Ekirikubinza (2003) 211 Section 14(9) 212 Sections 14(1) and 93 213 Section 100(3) and 104(2)
208 209

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does not mean that a child on conviction for an offence which carries the death penalty can be sentenced to death. The Act provides that on conviction for offences punishable by death, the child is to be detained for a period not exceeding three years.214 The Childrens Act makes the procedures of the FCC friendly and nonstigmatising to children. The courts are supposed to be held in camera, to be as informal as possible and non-adversarial in nature, and the child offender has a right to legal representation.215 The right to legal representation is tersely crafted and expressed in unelaborated terms. It could easily be interpreted as giving a child the right to representation at his or her cost. An ideal expression would be one that entitles the child to representation at the expense of the state. This is especially so because of the fact that the Act does purport to be exhaustive but expressly incorporates the provisions of the CRC and the ACRWC in its implementation. Article 40(2) (b) (ii) of the CRC provides that every accused child has the right to legal or other appropriate assistance in the preparation of his or her defence. Article 17 of the ACRWC takes the same phraseology. Provision of legal aid makes it possible for poor children who cannot afford legal services to enjoy, in full, their right to a fair trial and to benefit from the rights guaranteed by the Act. The Act provides that detention or institutionalisation should be considered by the FCC as a matter of last resort.216 Most of the orders that may be made by the FCC re-channel the child back into the community.217 This is consistent with article 17(3) of the ACRWC which provides for reformation, re-integration and rehabilitation as the aims of juvenile justice. Article 40(1) of the CRC also carries the same spirit. Where the child is convicted or admits the offence, the FCC has powers to make the following orders:

214 215 216 217

Section 94(1)(g) Section 16(2) Section 94(4) Ekirikubinza (2005)

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Absolute discharge Caution Conditional discharge for not more than 12 months; Binding the child over to be of good behaviour for a Compensation, restitution or fine but failure to pay does not Making of a probation order by which the child is monitored

o o o

maximum of twelve years lead to detention by a probation officer As already mentioned above, corporal punishment orders by the FCCs are prohibited. To enable the FCC to make orders that may be in the best interests of the child and also to realise the objectives of the system, the Act requires preparation of a report on the child by a PSWO before a child is committed to detention.218 The report should, amongst others, show the social and family background of the child and the conditions under which the offence was committed.219 This is very important because it gives the court information that is relevant in deciding not only whether detention is appropriate but also whether there are other means of reforming and re-integrating the child. Trials of a child should not be prolonged; the Act requires that they be handled expeditiously and without unnecessary delay.220 Cases, if not completed in three months after the plea was taken, have to be dismissed and the child shall not be liable to any further proceedings for the same offence.221 This provision does not, however, apply to trials by courts other than the FCC; in respect of these courts the period is 12 months.222
218 219 220 221 222

Section Section Section Section Section

95(1) 95(2) 99(1) 99(2) 99(4)

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To avoid stigmatisation during and after the trial, the Act proscribes the use of such terms as conviction or sentence. Instead, such terms as proof of an offence against a child and order are to be used.223 Labelling a child as a convict or as having served a sentence may stigmatise and lower the self-esteem of the child. This may lead to further deviant behaviour and ostracising of a child by society.224 It is because of this possibility and the impact on the childs family that the Act prohibits unnecessary publicity of a childs trial. In fact publication of a the childs name or address, school address of the child, photograph or other matter likely to lead to the identification of the child, without permission of the Court is an offence.225 The Act provides that misrepresentation of a childs age at the beginning of the trial cannot be used to alter the judgment or order of the court. The age presented at the beginning of the trial will be presumed to be the age of the child.226 This may appear drastic as adult offenders may exploit their appearance or misjudgement of their ages to enjoy the benefits of being tried as children. But this is a risk worth undertaking since contestations of age at a late stage after the trial may prolong the proceedings and subject children to the ordeal of another set of court processes. Practice of juvenile justice the flip side Sometimes there is a sharp distinction between the normative content of the law and its practice or implementation. Beautiful rules of law may not be made operational due to a variety of reasons, which include sheer ignorance of their existence or their observance in a minimalist manner without an endeavour to maximise their full effect. Non-establishment or under-funding and staffing of the structures anticipated by legislation may also hold back the full implementation of the law. Other factors
223 224 225 226

Section 101 See Ekirikubinza (2005) p518 Section 102(2) Section 108(1)

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include lack of political will, which sometimes results in certain laws being given a back seat. Cultural settings may also make it hard to realise the full implementation of the law raising such questions as to whether legislation alone is an effective tool of changing beliefs and perceptions. These could be some of the factors that are, in one way or another, undermining the full implementation of the Constitution and the Childrens Act in Uganda. Efforts and structures put in place to support the realisation of childrens rights have always failed because of resource constraints; it is always easy for government to establish institution but hard to fund them adequately. An example is the National Council of Children (NCC) which was established in 1996 to coordinate and implement the UNPAC.227 The NCC was not effective in its mandate due to the lack of adequate funding from the government.228 In the early years of its implementation there was evidence of support from the government and commitment to enforce the Childrens Act, in spite of structural and financial constraints.229 At the moment, one could still say that there is some evidence of this commitment. A recently launched website of the MGL&SD shows the immense amount of work the government has put into the implementation of the Act.230 In spite of this, a number of gaps have been identified in the juvenile justice implementation processes. These gaps span all the processes, from arrest, charge preference, trial and court orders to detention. The establishment of FCCs is still deficient, out of the over 200 FCCs needed countrywide, only about 30 have been established.231 In addition to this, the jurisdiction of the FCCs appears to be limited; they are not able to handle all matters relating to children because the presiding officers are grade II magistrates, at the bottom of the judicial hierarchy.232
Established by the National Council of Children Act, Chapter 60, Laws of Uganda 2000 228 NSPPI (2004) p15 229 Kakama (1999) 230 See www.mglsd.go.ug/ovc 231 Interview with Peter Ekayu 232 Interview with Peter Ekayu; proposals have been made that Magistrates courts Grade I be made FCCs as they enjoy wide jurisdiction and could handle a range of childrens issues
227

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In spite of the express proscription, children continue to be detained with adults and under very poor conditions. This happens at both police stations and established government prisons.233 While those detained at the National Rehabilitation Centre enjoy the benefits of not being detained with adults, their conditions of detention are very poor.234 It has been reported that the centre does not have trained personnel such as teachers; instead of getting education the children engage in manual labour.235 The children detention facilities are also over-crowed; at one time a remand home, constructed to accommodate 45 had 134 children. Even the existing FCCs have case backlogs; they do not hear childrens matters on a regular basis since they have jurisdiction in other matters involving adults.236 The criminal trial procedure in Uganda is adversarial in nature, characterised by adversarial presentation of evidence and crossexamination. The courts are perceived by members of the public as ruthless enforcers of the law which results into imprisonment. The court environment therefore remains intimidating to children and adults alike. However, as seen from the fore-going, this is not the kind of environment anticipated by the Children Act in the case of juvenile offenders. The Act expressly requires that the procedures of the FCCs be inquisitorial and not adversarial.237 In spite of these provisions, members of the judiciary are yet to master the spirit of this Act. Children have continued to be tried under the same procedures as adults. According to Ekirikubinza: [J]ust as happens in any other trial, the accused child is invited to make a plea and the plea is recorded. The elements of the case are outlined, and the prosecution presents its witnesses. And just like in any other trial, the defence is called upon to
233 234 235 236 237

FHRI (2000) Saxton (2005) p8 FHRI (2000) FHRI (2000) Section 16

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present its case in rebuttal. It is apparent that judges have not internalised the statutory provisions which require that in cases involving children as offenders, trial proceedings should not be adversarial in nature. The various judges may have had wide experience in criminal trials, but hardly any experience of a juvenile court. The pre-1996 cases indicate that the weight given to the age of an accused is similar to that given to other factors either personal to the accused or surrounding the commission of the crime. Factors which courts take as relevant in mitigation in cases where the offenders are adults are the same factors which seem to guide officials in arriving at their decisions where offenders are children.238 However, all is not lost, as illustrated by Ekirikubinza, in some cases the judges, prosecutors and defence lawyers have demonstrated consciousness to the provisions of the Childrens Act. She refers to one particularly interesting case: Uganda v Eva Sadiki239 In this case the accused was indicted for the offence of defilement of a 13 year old, which he committed when he was 16 years old. After spending almost two years on remand, he pleaded guilty to the charge. In making his final order the judge stated that: The accused is a young man who should be rehabilitated so that he turns into a useful citizen. A custodial sentence would not serve that purpose. This is a case where parental counselling would serve a more useful purpose. I take into account that he pleaded guilty and thus saved courts time. I will sentence him to a period of one year and nine months which period he has already served on remand.240
238 239 240

Ekirikubinza (2005), at pp 519 520 Criminal Session Case No. 71/1999 See Ekirikubinza (2005) p524

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This decision is consistent with the requirements of the Childrens Act and the international standards which emphasise rehabilitation in the place of detention. However, a few questions could still be asked about this case; why was the child offender on remand for all this time when the maximum period would have been 12 months.241 Besides this case, there is evidence of delayed trials of children and prolonged periods of remand beyond the statutory period. One of the factors responsible for this includes the absence of enough magistrates within the judiciary to preside over the FCCs and the absence of enough PSWO to advise these courts.242 The other question relates to the use of such terms as accused and sentence when they are expressly prohibited by the Childrens Act.243 Another deficiency arises from the failure of the judge to remit the case to the FCC after proof of the offence for appropriate orders as required by the Act. The full publication in the judgments of the names and particulars of the child offenders has also been a source of criticism.244 It has also been observed that the right to legal representation in respect of those children who cannot afford private counsel at their costs is not being implemented.245 As already mentioned above, the Childrens Act simply mentions that children are entitled to legal representation without stating whether this should be at state expense for those who cannot afford. This failure may deny child offenders the right to a fair trial and full enjoyment of their rights as guaranteed by the Childrens Act. We should, however, not lose sight of the fact that the provision of legal services is very expensive and the state may not afford to provide legal representation to every child offender. In spite of this, it is my submission
Section 99(4) See African Network for the Prevention and Protection of Against Child Abuse and Neglect (ANPPCAN) Juvenile justice in Kampala: A proposal drafted for presentation to Uganda Law Society www.anppcan.org/new/projects/clan/ugandapolicy.htm (accessed on 21 June 2006) [Hereinafter referred to as ANPPCAN] 243 Section 102 244 Ekirikubinza (2005) p527 245 Odongo (2005) p321
241 242

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that this is one right that could have been made progressively available and subject to the available resources. The state could also be required to provide representation only to those children who are in need of it, which would, for instance, be based on the income of the parents if a childs parents are traceable. Children without parents or whose parents cannot be traced would be presumed as not being able to afford legal services at their costs. It is also true that the legal profession is a monopoly, only enrolled advocates have audience before the courts and yet their services do not come cheap. Since the FCCs proceed in an informal manner, it would make sense if paralegals are allowed to provide legal representation in these courts. It has been suggested that students of law be allowed to appear in courts and to defend juvenile offenders as this would also expose students to the norms of social justice.246 This could increase access to legal services for the children and would also make it much cheaper for the state. Government has reported that through the MGL&SD and with support from Save the Children (UK), it is implementing a four-year Juvenile Justice Programme (JJP). The Programme aims at reforms such as strengthening the non-institutional methods of rehabilitating young offenders, strengthening coordination and information-sharing among court users.247 In addition to this, the government with assistance from the Office of the United Nations High Commissioner for Human Rights (OHCHR) conducted a national juvenile justice training and strategy workshop in October 2000. With the support of Save the Children (UK) a national juvenile justice committee is also being put in place.248

Child participation There are no formal structures envisaged by the law to facilitate child participation in the processes of decision making. However, one sees instances in which children may participate in decisions that affect them.
246 247 248

ANPPCAN Second Report, para 31 Second Report, para 32

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Examples include instances in which childrens views are considered in the various court processes, ranging from adoption to custody proceedings. To facilitate participation in the policy and legislative formulation processes civil society organisations have established a parliamentary forum for children. This forum, which was launched in 2005, has involved the invitation of children from selected schools to convene a parliament and discuss issues that concern them and are of public importance. At the first such forum, organised by Save the Children, the children, in the presence of government officials including ministers and members of parliament, adopted resolutions on a number of issues.249 What needs to be done is to institutionalise this forum and to adopt similar forums at all levels of government to enable all children to exercise their rights of participation.

Reporting status to the UN Committee

Initial CRC report Ugandas initial report under the CRC was due on 15 September 1992 but was submitted only on 1 February 1996,250 and considered by the CORC at its 16th Session.251 The initial report contained detailed information on the measures that the government had undertaken to domesticate the CRC and to guarantee the protection of childrens rights in the country. The most important of these was the appointment of the CLRC and the completion of its mandate. The other measure was the inauguration of the NCC, which was tasked with the duty to co-ordinate the
Interview with Annette Kobusingye See Committee on the Rights of the Child Submission of Reports by States parties: States parties to the Convention on the Rights of the Child and its two Optional Protocols and related status of submission of reports CRC/C/42, 15 March 2006 251 See University of Minnesota Human Rights Library Committee on the Rights of the Child, Pre-sessional working group thirteenth session (10-14 June 1996) available at www.umn.edu/humanrts/crc/CRC-MORE.htm (accessed on 28 June 2006)
249 250

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implementation of the UNPAC. The report gives information on the different measures that had been undertaken to protect the various rights guaranteed by the CRC. The author could not access information on whether any shadow reports accompanied this report. In its Concluding Observations to the initial report,252 the CORC commended the government on the measures it had adopted, particularly the appointment of the CLRC, the adoption of the UNPAC, inauguration of the NCC and the adoption of the 1995 Constitution and Childrens Act. However, the Committee also noted a number of concerns. The areas of concern included:

Inadequacy of co-ordination between the different government

agencies charged with the protection of children The absence of a standard definition of a child applicable to all

areas of law Inadequacy of measures undertaken to train all professional

government agencies on the rights of children Absence of adequate legislative and other measures to protect

childrens socio-economic rights The impact that cultural norms and practices were having on

the implementation of the childrens rights to participate in decisions that affect them

Insufficiency of the measures to combat and prevent ill-

treatment and abuse, including sexual abuse of children within the family, and the lack of information on this matter

Absence of full implementation of legislation regulating birth The low levels of school enrolment and high rate of school drop Violation of the international law relating to children in armed

registration especially in the rural areas outs especially of girls conflict in Northern Uganda
252

Concluding Observations (1997)

58

the difficulties faced by refugees and displaced children in

accessing education and health services Inadequacy of measures undertaken to reintegrate and

rehabilitate children affected by war In light of the above, the CORC made a number of recommendations which included measures on: enhanced coordination between government agencies, harmonisation of laws, increment in the levels of public awareness on the rights, prioritisation of childrens socio-economic needs in budgeting processes, and implementation of laws protecting children from child labour amongst others. Second periodic report Ugandas second CRC periodic report was due on 15 September 1997 but was submitted only on 2 August 2003.253 Unlike the initial report, the second report was made after a number of reforms had taken place within the legal system to protect childrens rights. The report was considered by the CORC on 15 September 2005 and on 30 September the CORC adopted its Concluding Observations. The second report gives information on the adoption of the Childrens Act and the various programmes and actions that have been undertaken to protect the rights of the child in Uganda. Importantly, the report gives information on the measures that had been undertaken by the government to address the concerns raised by the CORC after the initial report and implementation of the recommendations made. The report gives information on the various initiatives that had been undertaken to improve coordination between the different government institutions dealing with childrens rights and to improve their institutional capacity. These measures include joint planning and review meetings between the different government institutions and the various stakeholders such as NGOs. It was also reported that there is a restructuring of government ministries to improve coordination and joint planning within government.254
253 254

Second Report See paras 18-21

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Initiatives undertaken to improve public awareness and training were also reported on. These initiatives have been supported by such organisations as Save the Children (Denmark and the United Kingdom), and UNICEF. The initiatives include the training of government armed forces such as the army and police and the translation of the CRC into a number of local languages.255 To eliminate all forms of discrimination against the girl child, the government reported that in addition to constitutionally prohibiting all forms of discrimination, it had also adopted a National Strategy for Girls Education in Uganda, which aims at eliminating barriers to girls education in particular and discrimination against them in general. The government reported that although the legal framework was in place, birth registration was not being done effectively because of ignorance amongst the people on the importance of this practice. The report then goes on to enumerate the various measures undertaken to realise the various CRC rights as protected by the Childrens Act. This report was accompanied by a number of shadow reports submitted on behalf of various NGOs including: Uganda Child Rights NGO Network (UCRNN),256 United Organisation for Batwa Development in Uganda (UOBDU), and Coalition to stop the use of Child Soldiers. 257 Within a period of only two weeks after considering the second report, the CORC was able to give its Concluding Observations and recommendations.258 The CORC commended the government for the
Paras 22-27 Report is available at www.crin.org/docs/resources/treaties/crc.40/Uganda_UCRNN_update.doc (accessed on 27 June 2006) 257 Report is available at www.crin.org/docs/resources/treaties/crc.40/Uganda_CSUCS_report_upd ate.doc (accessed on 20 June 2006) 258 Committee on the Rights of the Child Consideration of Reports Submitted by States Parties Under Article 40 of the Convention Concluding observations: Uganda CRC/C/UGA/CO/2, 23 November 2005 [Hereinafter referred to as
255 256

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detailed responses to the concerns raised in the concluding observations to the initial report. The Committee appreciated the fact that the responses had been written in a self-critical and analytical nature, which gave a clear understanding of the situation of children.259 The CORC said that: [It was] encouraged by the frank and constructive dialogue it had with the state partys high-level and multi-sectoral delegation suggestions discussion.260 However, though the CORC commended the government for having addressed some of the concerns expressed after considering the initial report, it noted that some of its recommendations had not been given sufficient follow-up. These included recommendations on resource allocation to cater for childrens needs, birth registration, child labour, child soldiers, refugee children and juvenile justice. The committee expressed concerns about the failure to systematically review the UNPAC in order to incorporate goals contained in recent international instruments and standards. It recommended that a new National Plan of Action be developed, taking into account the General Assemblys resolution titled A World fit for Children.261 The Committee also expressed concerns on the absence of a special desk within the (UHRC) to deal with childrens rights and the lack of adequate human resource and budgetary allocations for this organisation. It recommended that a department to monitor the implementation of childrens rights be established within UHRC. The Committee also made several recommendations regarding the definition of a child under the different marriage laws, childrens rights to life, survival and development, civil rights and freedoms, basic health and
Concluding Observations (2005)] 259 Concluding Observations (2005), at para 2 260 Concluding Observations (2005), at para 3 261 Adopted by the UN General Assembly Twenty-seventh Special Session, 11 May 2002

and

welcomes

the

positive

reactions

to

the the

and

recommendations

made

during

61

welfare, education, leisure and cultural activities. What remains to be seen is how the government follows up on these concerns and implements the recommendations of the CORC. Uganda has not yet submitted its initial report under the OPSC, which was due on 18 January 2004 and is yet to submit its initial report under the OPCA, which was due on 6 June 2004. There is also no evidence that Uganda has submitted its initial report under the ACRWC, which was due on 29 November 2001. Good practices There are a number of good practices in Uganda that are worth emulation by African countries not only in the process of child law reform but also in the implementation of child protection laws. In fact some of the good practices in Ugandas law have been replicated by other African countries.262 In the following paragraphs the author highlights some of the practices I regard as good practices. Consultative and politically supported reform process As seen when discussing the law reform process, in Uganda there is evidence of a high degree of consultation carried out with all stakeholders in the area of childrens rights during this process. A number of workshops were held, at which controversial but also critical issues touching on childrens rights were debated and inferences drawn from them. The consultative process was also regionally balanced with workshops held outside Kampala, the capital city, to include the views of people living and working up-country. The law reform process also enjoyed a high level of support from political leaders including the president. The CLRC was appointed about three months before the ratification of the CRC and after ratification of the ACRWC. The appointment of this body before the ratification of the CRC is
See for instance, the Childrens Act (2005) of the Republic of The Gambia; discussed by Saine, M The New Law on Juvenile Justice in The Gambia in 7 (4) Article 40 (2005) available at www.communitylawcentre.org.za/children/2005art40/vol7_no4_gambia.php#ga mbia (accessed on 23 June 2006)
262

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very important because it signifies preparation on the part of government to take immediate measures to domesticate the treaty. Unlike earlier initiatives, like the NCC, that did not function effectively because of inadequate funding and political support, the CLRC did not suffer from such deficiencies. The law reform process was also enhanced by the building of partnerships with strategic partners in the area of childrens rights. UNICEF is an example of such partner, with which government worked closely. It also appears that the process was left open and transparent for all those who wanted to participate in it to do so freely. Act not exhaustive of rights As already seen, the Childrens Act, as comprehensive as it is, does not purport to be exhaustive of the rights of children. It expressly proclaims that it should be interpreted as if it includes the rights protected by the CRC and the ACRWC not expressly mentioned in it. This is very important because it helps to close gaps that may appear in the law. For instance, as we have seen, the gap relating to the provision of legal representation at state expense to children charged with offences could be closed by referring to the CRC and the ACRWC which guarantee this right. The non-exhaustive nature of the Act also means that rather than be guided by the domestic norms and traditions of legal interpretation, the courts will be guided by the norms and standards of international law established under the treaty regime. This makes the jurisprudence of the CORC, like the General Comments, directly relevant in legal proceedings before the domestic courts. It should be noted; however, that it will take time to make judges and advocates get used to the fact that international law can be applied directly in this manner. This is because of Ugandas legal traditions, which exclude international law from direct application.

63

Separate juvenile justice system The other practice that could be emulated is the creation of a separate system for juvenile offenders. The trial of children accused of offences by the FCCs and the guarantee of a number of rights is commendable. A separate trial system saves children from the risk of being treated like adults which risk is very high if they are tried under the same system as adults. Further, the informal manner of the child justice system saves children from the trauma associated with making appearance in the formal justice system. According to Ekirikubinza: [T]he aim of keeping children away from the formal justice system is consistent with the labelling theory of crime which draws attention to the potentially negative consequences of a young person to be formally labelled as an offender. It is believed that a childs contact with the formal justice system may increase the likelihood that young persons will engage in further anti-social behaviour.263 Community involvement The involvement of the communities in the resolution of criminal offences involving children is also commendable. This is in line with the principles of community empowerment and up-stream enforcement of human rights standards. Commission of offences by children occurs within the communities, and unless the offence is of a serious nature, it is important that it be resolved within the community where both victim and perpetrator reside. In addition to familiarising the local communities with the rights of children, community resolution of criminal disputes helps foster reconciliation between the victim and the perpetrator and their respective families. The system also helps to promote the principles of restorative and community justice.264 This system has also been applauded as promoting a form of diversion, since it allows children to be
Ekirikubinza (2005) p517 Matshego, B Best practices in the institutional and community-based treatment of young offenders in 3(3) Article 40 (2001) available at www.communitylawcentre.org.za/children/2001art40/vol3_no3_best.php#best (accessed on 23 June 2003)
263 264

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tried outside the formal system, and as making justice easily accessible.265 Resolution of crime by children using informal institutions of this nature has been endorsed by international standards.266

Conclusions and recommendations

Uganda has achieved a lot in the area of human rights generally and childrens rights in particular in the last 20 years. The promulgation of the 1995 Constitution and the adoption of the Childrens Act in 1996 are watershed events in the area of childrens rights. More than any other treaties, Uganda has been able to domestic the standards prescribed by the CRC and the ACRWC in an extensive manner. The normative protection of childrens rights is therefore sound; such principles as the best interests of the child, child survival and development and detention of child offenders as a last resort have been protected extensively. In spited of this, one notices some gaps in the normative protection of childrens rights. In the juvenile justice system the right to legal representation is not clearly stipulated, there is no provision of legal services for those children who cannot afford such services using their own resources. Legal services are guaranteed to children charged with offences that carry the death penalty. However, when one reads the Childrens Act together with the CRC and the ACRWC, the right to legal representation, at state expense, can be read into the Childrens Act. The biggest challenge is to translate this, mainly resource dependent right, into a practical right enjoyed by all children. It has been argued in this report that the monopoly of advocates should be broken to allow other persons with expertise to represent child offenders in the FCCs. It is also recommended that students of law be allowed to represent children in

Odongo (2004) p11 See United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) Adopted by General Assembly resolution 40/33of 29 November 1985, Commentary at para 14
265 266

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these courts, this would not only advance their training but would also provide children with the much needed legal services. Another notable gap in the normative standards is the absence of provisions committing government to provide for the socio-economic needs of children.267 There are no such provisions even when children are vulnerable or lack parental care. As has been mentioned above, where children lack parental care, it is only logical that the state assumes full parental obligations. This should also apply to such vulnerable children as orphans and street children. The states obligations in this respect should be affirmative and clear provisions made for funding this mandate. At the moment the governments support for vulnerable children and those that lack parental care is not affirmative. For instance, as seen from the NSPPI, all the government commits itself to do is to render support which does not, in clear terms, extend to material support where this is lacking. Though the government has adopted a number of policy measures to ensure the realisation by children of the right to health access to health services is still limited. The full benefit of such programmes as the IMCI and the HSSP is yet to be felt by all children. Medical services are not accessible to all either because they are far away from where they live or because the necessary medical personnel and facilities are missing.268 There is need for government to commit more resources to the health sector, to establish all the requisite facilities and to train and adequately remunerate medical personnel. LC officials should be mandated to play a part in the process of authorising persons and organisations that take care of orphans. At the moment such persons and organisations need government approval and receive children only from the police or from PSWO. They also have to get court approval within 48 hours after reception of a child. These requirements are cumbersome and there is no role played by the LC
267 268

UHRC (2004) p149 UHRC (2004) p150

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officials. It is recommended that to ease this process, where one or two children are involved, the LC officials should work together with the PSWO to enable such children to be taken in and cared for by organisations or persons without having to seek court approvals. The implementation of the normative standards on childrens rights has also encountered a number of practical obstacles. While one can say that there is political will to implement the provisions of the Childrens Act, adequate funding for the institutions envisaged by this Act is still lacking. The numbers of family courts envisaged by the Act have not been established, less than 20% are functional. Yet the functional ones commit much of their time to adult cases at the expense of childrens cases. The numbers of children in remand centres are soaring, some hold up to three times the number they were planned to hold. Detention of children beyond the legally stipulated periods is common so is detention of children in the same cells or prisons with adults. Important as their offices may be to the welfare of children PSWO are not realising their full potential because of inadequate funding. Though NGOs have tried to fill the funding this void this is not their obligations and yet it has been so limited. There is need for government to commit more funds to the PSWO to enable them discharge their statutory functions. The violation of childrens rights in Northern Uganda still possess a challenge, the government should commit maximum efforts to ending this war and extending protection to children in this region. The disbandment of the internally displaced persons camps should be hastened and adequate measures put in place to rehabilitate children who have been victims of war. The current mood of peace talks that has been created by the LRA should be exploited to bring to a peaceful end of the 2 decade old war. More public education on childrens rights should be conducted in order to change cultural beliefs and traditions that undermine childrens rights.

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Such education should be extended to all government and nongovernmental structures involved in advancing the welfare of children. These include law enforcements agencies, educational institutions, local government authorities and civil society organisations.

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Committee on the Rights of the Child Consideration of Reports Submitted by States Parties under Article 40 of the Convention Concluding observations: Uganda, CRC/C/UGA/CO/2, 23 November 2005 Consortium for Street Children Information about street children Uganda available at www.streetchildren.org.uk/reports/Uganda%20Child.doc (accessed on 13 June 2003) Foundation for Human Rights Initiative (FHRI) Human Rights Report 2000 available at www.ned.org/grantees/fhri/00annual/index.html#acknowledgements (accessed on 16 June 2006) Human Rights Watch Stolen children: Abduction and Recruitment in Northern Uganda Vol.15, No. 7 (A) (March 2003) available at http://hrw.org/reports/2003/uganda0303 (accessed on 13 June 2006) Ministry of Gender, Labour and Social Development www.mglsd.go.ug/ovc/downloads/Policies_12.pdf Office of the United Nations High Commissioner for Human Rights Status of ratification of the principle international human rights treaties (9 June 2004) available at www.unhchr.ch/pdf/report.pdf (accessed on 12 June 2006) Republic of Uganda, Ministry of Education and Sports (1992) Government White Paper on the Education Policy Uganda Aids Commission HIV/ AIDS in Uganda available at www.aidsuganda.org (accessed on 13 June 2006) Uganda Aids Commission Secretariat HIV/ AIDS in Uganda: The epidemic and the response available at www.aidsuganda.org/pdf/hiv_aids_impact.pdf (accessed on 14 June 2006) Uganda Bureau of Statistics 2002 Uganda Population and Housing Census, Main Report, available at www.ubos.org (accessed on 12 June 2006) Uganda Human Rights Commission 7th Annual Report (2004) UNHCR UNCHR global appeal (2005) available at www.unhcr.org/cgibin/texis/vtx/publ/opendoc.pdf?id=41ab28e7c&tbl=PUBL (accessed on 17 June 2006) UNICEF Uganda A Ugandan village rallies around children orphaned by AIDS available at www.unicef.org/infobycountry/uganda_29786.html (accessed on 17 June 2006) UNICEF Statement by Martin Mogwanja, UNICEF Representative in Uganda UNICEF Lauds Progress for Ugandas Children, Urges More Must be Done (May

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2006) available at www.unicef.org/infobycountry/media_33914.html (accessed on 23 June 2006) UNICEF Statement by Deputy Executive Director, Rima Salah, on her visit to northern Uganda, (4 February 2006) available at www.unicef.org/infobycountry/media_30965.html (accessed on 23 June 2006) United Nations United Nations Standard Minimum Rules for the Administration of Juvenile Justice United Nations News Centre, Press Release Head Of UN Humanitarian Affairs Office visits Northern Uganda says Deeply Shocked by War Against Children (11 November 2003) available at www.un.org/News/Press/docs/2003/afr750.doc.htm (accessed on 14 June 2003) United States Department of State Uganda available at www.state.gov/p/af/ci/ug University of Minnesota Human Rights Library Committee on the Rights of the Child, Pre-sessional working group thirteenth session (10-14 June 1996) available at www.umn.edu/humanrts/crc/CRC-MORE.htm (accessed on 28 June 2006) Womens Commission for Refugee Women and Children No safe place to call home: Child and adolescent night commuters in Northern Uganda (June 2004), available at www.womenscommission.org/pdf/ug_nightcom.pdf (accessed on 19 June 2006) World Vision More than words? Action for orphans and vulnerable children in Africa: Monitoring progress towards the UN Declaration of Commitment on HIV/AIDS available at www.crin.org/docs/resources/publications/hrbap/More_than_words_UNGASS.p df (accessed on 19 June 2006) Press reports Church stuck with orphans New Vision Newspaper (29 July 2006) Defilers hindering success of UPE in Buvuma MP The Monitor Newspaper (19 June 2006) Gender Ministry probes sell of virgins in Karamoja Radio Simba, available at www.simba.fm/index.php?option=content&task=view&id=7450&Itemid=2 (accessed on 4 July 2006) Girls sold in Katakwi, says MP New Vision Newspaper (2 July 2006) available at www.newvision.co.ug/D/8/12/507250 (accessed on 3 July 2006)

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Govt will not talk to Kony New Vision Newspaper (14 June 2006) Monkeys hindering UPE progress on Islands The Monitor Newspaper (21 June 2006) Pregnant by an LRA rebel New Vision Newspaper (9 July 2006) Prevention of Mother to Child Transmission of HIV/ AIDS PMTCT Programme New Vision Newspaper (1 December 2003) available at www.aidsuganda.org/pdf/PMTCT_Programme_Article.pdf (accessed on 13 June 2006) Refugees to get school in Kampala The Monitor Newspaper (1 June 2006) Legislation Constitution of the Republic of Uganda (1962) Constitution of the Republic of Uganda (1967) Constitution of the Republic of Uganda (1995) Childrens Act, Chapter 59 Laws of Uganda (2000) National Council of Children Act, Chapter 60, Laws of Uganda (2000) The Amnesty Act, Act No. 1 (2000) International instruments and documents Charter of ratifications: OAU/ AU human rights treaties, position as at December 2003 source at www.africaunion.org/root/au/Documents/Treaties/treaties.htm (accessed 13 June 2006) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) Convention Concerning the Age for Admission of Children to Employment in Agriculture Convention Concerning the Night Work of Young Persons Employed in Industry (1919) Convention Fixing the Minimum Age for Admission of Children to Industrial Employment (1919) Convention Fixing the Minimum Age for Admission of Young Persons to Employment as Trimmers or Stokers (1921)

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International Convention on the Protection of the Rights of Migrant Workers and Members of Their Families (1990) International Covenant on Civil and Political Rights (1966) International Covenant on Economic, Social and Cultural Rights (1966) World Declaration on the Survival, Protection and Development of Children (September, 1990) available at www.unicef.org/wsc/declare.htm (accessed on 13 June 2006)

Interviews Annette Kobusingye, Regional Advisor, Save the Children in Uganda Peter Ekayu, Legal Officer, Refugee Law Project, Faculty of Law, Makerere University Henry Mwebe, Uganda Insurance

Annex: About the author

Christopher Mbazira is an advocate of the High Court of Uganda and a lecturer in the Faculty of Law at Makerere University. He is a member of both the Uganda Law Society and East African Law Society. Christopher obtained his LLB degree from Makerere University and his LLM in Human Rights in Africa from the University of Pretoria. Currently he is pursuing his PhD at the University of the Western Cape where he also works as a researcher in the Community Law Centre and as a part-time lecturer in Constitutional and Administrative Law in the Faculty of Law. Christophers PhD research is titled The role of judicial remedies in realising economic, social and cultural rights as justiciable individual rights: The case of South Africa. He has written on human rights especially in the area of economic, social and cultural rights in

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Africa. He is author of A path to realise economic, social and cultural rights in Africa? The New Partnership for Africas Development: A critique African Human Rights Law Journal (2) (2004) and co-editor, with Jaap de Visser, of Water delivery: Public or private?. Other areas of publication include socioeconomic rights, obligations of local government and the impact of privatisation on the right to water in South Africa, and childrens socioeconomic rights under the South African Constitution.

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