DIVERSION AND NON INSTITUTIONAL TREATMENT

OF CHILDREN IN CONFLICT WITH LAW IN LIGHT

OF INTERNATIONAL LAW AND ETHIOPIA LAW

SUBMITTED IN PARTIAL FULFILEMIENT OF

REQUIREMNTES T=FOR THE DEGREE OF
BACHELOR OF LAW (LLB)

MAY 2013
 Acknowledgement

 I would like to thank my all he for all he has done fore me.

 Also may earnest acknowledgment goos to may advisor, Ato shimalis mangistu (LL, LLM),
for his valuable scholarly comments suggestions and giving some material for the research.

 The ever memorable decisive supports for my parents relatives and fiends is not left without
reminded.

 I also thanks may dorm classmates’ and friends for their suggestion while I write this paper.

 Last but not least, I would like to thanks the Jimma University law library workers for their
support on borrowing the material when I need.
 ACRONYMS

 ACRWC – African charter on the right and welfare of child

 CCE - Ethiopia Civil Code
 CRC – Convention on the right of child
 CBCP – community based correction program
 CPU - Child protection units
 Cr. C – Criminal code
 Cr. P. C – Criminal procedure code
 FDRE - Federal democratic republic of Ethiopia
 FRFC - Federal revised family code
 ICCPR - International covenant on civil and political right
 ILO - International labor organization
 LP - labor proclamation
 UDHR – Universal Declaration of human right
 NGO – Non- governmental organization
 INTRODUCTION

This paper is the research written on the diversion and non institutional treatment of children in
conflict with the law children are group of vulnerable groups recognized under international law
the reason for their vulnerability is their physical and mental immaturity. Therefore while they
commit crime they have to be their crimal behavior. From this reason under international law
diversion to non-institutional treatment is taken as the best option and they take incarceration as
last resort when the child did not rehabilitate through non-institutional treatment.

This paper has three chapter chapter one deal with the general background, attitude of the society
to ward the child while commit crime objective of the study significance and scope of the study.
This part also show that as children are victim of discrimination in the past history of human life.

Chapter two indicated that what treatment of Juvenile delinquent looks like under international
law and as these instruments favor diversion of the child. Because most of the time the reason for
the child commission of the crime is presumed as the family failure in the upbringing and
environmental influence. They are not born with evil mind. This chapter shows diversion of
juvenile delinquent procedures followed during diversion age limit for diversion, types of crime
proper for diversion and types of non – institutional treatment like probation restitution group
home taster care after care and non- intervention.

Chapter three is about the Ethiopia law on the diversion to non – institutional treatment and the
non – institutional treatment recognized by our criminal code our law including the constitution
did not have a provision directly dealing with diversion this also show the age group of Juvenile
delinquent in Ethiopia and the establishment Juvenile court. At the last not the lest the gaps of
the Ethiopian law on the diversion to non – institutional treatment and the Ethiopia diversion is
orally made by the court.
 TABLE OF CONTENTS

CONTENT page
Acknowledgement I
Acronyms II
Introduction II
Table of content Iv
Chapter one 1
1. General background of the study
2. Response to children committing on offence
3. Statement of problem
4. Basic research questions
5. Significance of the study
6. Objectives
6.1. General objective
6.2. Specific objective
7. Scope of the study
8. Research methodology
9. Outline of the chapter
Chapter two
2. Diversion and non institutional treatment of children in conflict with the law under
international law
2.1. Juvenile Justice
2.2. Establishment of Juvenile courts
2.3. Diversion of children in conflict with law
2.4. The purpose of diversion to children
2.5. Non- institutional treatment of children in conflict with the law
2.6. Objectives on non-institutional treatments
2.7. The rational for the non- institutional treatments of juvenile Justice
2.8. Age limit for non - institutional treatments
2.9. Types of non - institutional treatments under international law
a. Probation
 b. Restitution
c. Group homes
d. Fosters care
e. After care
f. Non intervention
Chapter three
3. Analysis of Ethiopian law on diversion and non- institutional treatment of children in conflict
with law
3.1. Juvenile delinquent /young offender/
3.2. The concept of Juvenile court in Ethiopia
3.3. Division under Ethiopian law
3.4. The Ethiopian law on the concept of non- institutional treatment of children in conflict with
law
3.5. Age limit for non- institutional treatment
3.6. Restoring competence of families to follow up and guide their children
3.7. Community based correction program in Ethiopia (CBCP)
3.8. Types of non- institutional treatment in our legal system
3.8.1. Supervised Education
3.8.2. Reprimand
3.8.3. School / home arrest
3.9. Compatibility of the domestic law on the diversion and non- institutional treatment of
Juvenile justice with relevant minimum international standard
Conclusion and recommendation
 CHAPTER ONE
1.1 GENERAL BACKGROUND OF THE STUDY

From the very moment of there birth child confronts a world which values them less than adults.
The protection of the child was comes from the human dignity which is elaborated under UDHR
for the first time. They are more vulnerable groups because, of their mental and physical
immaturity and need protection from the law.1 Although rights are given to the child, lack of
capacity may inhibit child from exercising his/ her right.

Children are discriminated for many reasons especially, in developing countries like Africa the
reason for their discrimination was culture and tradition of the society which assume the child as
property of the family and they think as children did not have such right as adults until they reach
the maturity age.

More than this when they commit a crime they are assumed as ruddy and as they did not
recovery from their criminal behavior. 2In many countries of the world there is not as such
organized mechanism to deal with such children because of lack of expertise and resource. For
averting this assumption of the society many instruments are drafted at international level. From
this the two most binding convention are convention on the rights of the child (CRC) and African
charter on the right and welfare of child (ACRWC).

Those instruments impose responsibility on every government to protect the fundamental rights
and freedom of its citizen and to ensure that the rule of law and justice prevails at all times.
However children accused of committing crimes are more susceptible to human right abuses and
violations of their legal rights while in detention centers. 3 Most of the time those violation are
taken place behind the close doors and the society think as they are keeping peace and security of
the society.

1
Javaid Rerman, international human rights law, 2nd edition, Page – 555 – 5560

2
ibid

3
Protecting the right of children in trouble with the law, URL .http // hd(handle.net/2263/1159,)date- 2005
The two binding instruments (CRC and ACRWC) protects children against torture,
maltreatment, abuse etc while in the care of parents, legal guardian or school authority or any
other person who has the care of child.4

Art -40 of the CRC emphasizes the importance of handling children without resorting to
judicial proceeding to providing a variety of alternative disposition wherever possible. 5 But this
left from art-17 of ACRWC.

Police can often play a very important role in channeling children to effective diversion schemes.
This may make all the differences in giving a young offender the chance to rehabilitate him / her
before being isolated in an institutional setting where the child will likely be stigmatized as a
criminal and will suffer the effects of institutional isolation. 6 Therefore at the international level
diversion and non- institutional treatment pat ore acceptance.

In the world including our country traditionally there is negative attitude towards children. the
writer try to list some of it in relation to crime.

 A conception of children as the property of their parents and not a subject of rights on their
own.7 They think the child as they were born for the purpose of serving the family only.
This is especially in developing countries including our country children are seen as means
of life of the family and they think child maintain them when they reached old age.

 A strong belief in the potential of at list some children for criminality and once they
commit the crime as they did not rehabilitated again. They did not think that the reason for
their criminal commission is from the failure of the parents proper bringing up.

4
CRC Art -19 and ACRWC Art -16
5
Juvenile Jwtice Rapid assessment- unicef, www.unieof.org /tdad/ sorbia montas nogross question 01 (1) –doc

6
Ibid

7
Innocent offender: Action professional’s Association for the people,/ www.apape.org. DOCS/ innocent%
offenders pdf/ p .73
 If not all, some part of the society assume corporal punishment and incarceration are
effective in dealing with children conflicting with law. 8 Because some illiterate part of the
society assume them as they are naturally born with evil mind.

As a result of society pressure at large on law information agencies to deal as strongly as

possible with children in conflicting which law inadequate consideration and detailed articulation
of the principle of considering best interest of the child in applying to judicial and administrative
measures.9 most of the times in the third world countries the crime committed by someone will
get the media attention before the judgment is passed on them. This may affect the mind of the
judge to presume as innocent weather the criminal is adult or young offender.

1.2 Response to children committing on offences

When a child commits an offence that the primary responsibility of disciplining such child
should be that of parents and members of the candidate or extended family seems to be a matter
of agreement.10 From the tradition the society strongly believe that parents are entitled to take
what aver is necessary by way of discipline their children. Advices, reprimand, throwing out of
home and heavy work are some of the measures that parents lake. 11 This type of measures taken
against the young offender the same with corporal punishment enjoy universal acceptance. It
may be taken by family, police, teachers at school and other person like neighbors of the family.
Even of this is taken in the past; at now time it is totally banned by CRC and ACRWC as they
are against human dignity of the child.12 Violence would only make children become social
misfits and obstacle to society and its development.

There are reasons to take measures against the young offender in non- institutional treatment.
Some of the reasons are:-

8
ibid

9
ibid

10
ibid

11
ibid

12
CRC Art -37 and ACRWC Art- 16.
 They are assumed at the beginning not understood the nature of their act and therefore it is
easier to change their mind at this stage through counseling and education.13
 During this period their intelligence and volition are not as such material as adults to impose
penalty14 because to make someone responsible to his criminal act our criminal code under
art -48 presuppose the volition and cognition of the person.
 Community supervision is considered to be cheaper than incarceration.
 Incarceration is more harmful to both the individual and the society at large.15

Statement of problem

13
13. Mrs. Gdory Nirmalark and mr. Amha mokonnon, criminal law II technig material, (2009), page – 36
(unpublished
14
ibid

15
. Adragetchew Tesfaye, The criminal problem and its correction, volume II, page 295 – 296
International law (CRC and ACRWC) and Ethiopian law respect child rights by more focusing
on the best interest of the child. However, for a long period of time children around the world
especially in developing countries are victimized for prolonged oppression and violation of their
human right. Our country is not exception from this. There is a lot of way that child rights are
violated while they commit crime: they go under ordeal like flopping by parents and at the
school while the commit some acts that in conflict with the law and mortality of the society. Also
in some countries of the world child are treated in the some way with adult while they commit
act in conflict with law so under international law CRC and at the regional level African
legislated ACRWC for the protection of the child. These instruments have provisos which are
used for protection of children while they commit the criminal act. At now these instruments are
favor for the diversion of child to non institution treatment. The objective of bring child before
the law is for rehabilitation of the child rather than punishment of the child for their criminal act
because their bad behavior come from there improper upbringing. Therefore diversion to non
institutional treatment is better.

Basic research questions

 Who are juvenile delinquents under international law and our legal system?
 What is diversion and the purpose it have for children in conflict with law and also what it
looks like under international and domestic law.
 Why the establishment of Juvenile court is needed?
 What are the procedure followed while diversion of child to non – institutional treatment.
 Why they opt to diversion in the existence of institutional treatment of child in conflict with
law?
 Examining the compatibility of the domestic law to accepted international minimum
standard on non – institutional treatment of children in conflict with the law.

Significance of the study

 In order to create awareness on the concept of diversion, the purpose of diversion and non –
institutional treatment over others modes of child treatment like corrective and curative
institution.

 To show diversion and non- institutional treatment is the current developing issue and it did
not such exist before the 19th c in the world, especially in developing countries like African
countries and now more favored mode of child correction.

 Even if it did not fully disclose the purpose of diversion, this paper may create some image
in the mind of reader as diversion and non – institutional treatment of child is more than
other mode of treatment therefore in may serve as initial point for advanced researcher on
this area.

 It also show some gaps exist in our legal system in relation to the minimum standard put at
international level

Objectives
General objective
This paper is to create some concept on the purpose of diversion and non- institutional treatment
of child in conflict with law which balance the best interest of the child and protects the society
security and order.

Specific objective
 To indicate rehabilitation brought through non-institutional treatment on the behavior of the
child in conflict with law.
 Shows some drawback of corrective and corrective institution on the young offender.
 The beneficial purpose of juvenile count establishment.
 Attitude of the society to word the children in conflict with the law.
 The reason international laws opt for diversion at early stage.
 Some procedures followed during diversion.
 What are the much known types of non-institutional treatment recognized by international
instruments and also in our legal system?
 What types of crimes undergo diversion and which age limits are allowed for diversion?
 It indicates what Ethiopian laws looks like in light of international law on the diversion of the
child in conflict with law.

Scope of the study

The study mainly focused to international instruments on child (CRC and ACRWC in addition to
the resolution by UNGA on the right of child like begging guide lines) and Ethiopian law
(reference to FDRE constitution, Ethiopian criminal code the 1961 criminal procedure code and
the federal revised family code) on the child in conflict with the law.

Research methodology
As known in the legal research, my research methodology is an analysis of some international
instrument on the right of the child and Ethiopian law concerned with children in conflict with
law. In addition to this also I have used some written materials on the young offender as
literature review.

Outline of chapters
This paper is divided in to three chapters. The first chapter deals with the overall and specific
background of the paper. It also setting the objectives, problems and methodologies employed in
preparing the paper and in conducting the study to assess the situation of children in conflict with
law.

Chapter two of paper deal with who are juvenile delinquent, establishment of juvenile court what
is diversion and non – institutional treatment looks like and their purpose under international
law, the procedures followed during diversion, the types of crime subjected to diversion the stage
diversion in made and the major types of non-institutional treatment like probation, Restitution,
Group homes foster care after care and non intervention are discussed in this chapter.

Chapter three the last chapter of this paper also include what diversion and non- institutional
(community based) treatment seems in our legal system. It discuss who are juvenile delinquent
establishment of juvenile court, crimes possible for diversion and major types of non-
institutional treatments like supervised education, home/school arrest and reprimand that are
recognized under Ethiopian law. At the last it highlights the compatibility of Ethiopian law with
minimum international accepted standard on the treatment of child.

CHAPTER TWO
 2. Diversion and non-institutional treatment of children in conflict with the
law under international law
2.1. Juvenile Justice
Before writing this chapter I think it is proper to given the concept of juvenile justice and who
are categorized under Juvenile justice. According to rule 2(2) (a) of the Beijing guide lines
“Juvenile is a child or young parson who under prospective legal system may be dealt with for an
offence in a manner which is different may be dealt with for an offence in a manner which is
different from an adult.”16 It is a manner in which a child is treated for an offence which dictates
weather a child is also a juvenile.17

The definition in corporate in the biasing guidelines shows improvements on the before existing
standards. This definition only applies to juveniles and not to all children. Therefore the
definitions expressed in the Beijing guide lines have a gap. Because it allows each national legal
system to define juvenile. Inferences from these juveniles have different range of age group in
different country. This may create discrimination between different stated and have the problem
on the uniform application of international instruments (CRC and ACRWC) on the right of the
child. but this does not mean that states are at liberty to fix any minimum age limit that may
affect a Childs liberty.18 Therefore state are at duty examine the effect of the age limitation while
they categorize the age Group with exist in the Juvenile. The reason for the special protection
and entitlement of children is because of their age and vulnerability not because of the system of
trial. There is no problem with trial court if it treat young offenders the same with adults. In some
jurisdiction children who are accused of serious offences are treated as if they were adults and in
such cases the Beijing rules would not apply.19

Therefore from the above definition we did not pat the direct and strict definition of Juvenile
without looking each countries law. For example in India and Canada it goes to seven in

16
Beijing Rules, Rule 2(2) (a)
17
The international law on the rights of the child –Google books result/books, google.com at/books? Is bn =
904111 917/page -1.
18
United nations standard minimum rule for the administration of Juvenile Justice (Beijing rule) adopted by the
general assembly Resolution No. 40//33 of Nov. 1985, Rule 2(2)(a).

19
Supra note 17
Germany, Austria and Norway the minimum age is 14 years, in Denmark and Sweden it is
15years, in Malaysia and England the complete of ten years and also in our country it is the age
between 9 and 15 years.20

2.2 Establishment of Juvenile courts

Before I enter in to discussion about juvenile count one may ask why deals of juvenile count is
needed because Juvenile courts are quasi –Judicial body established only for the best interest of
the child. If juveniles go ordinary count their case may be delay and they did not get justice in
short period of time from the work load of the court. Juvenile courts have specialized Judge on
the treatment of children than ordinary court. This type of court has paternalistic in nature.
Means they treat the child as if they were with their parents and without put any fear and
pressure in the mind of the child. Depend on this purpose it is the current issue which started in
the 19th c in America.

Juvenile court is special type of court that is different from ordinary court to deal only with
21
juvenile justice. The purpose was to separate juveniles from adults, so that the youth receive
adequate care through this was seen by some scholars as attempts to control and punish. 22 The
concern was for the best interest of the child because there was no strict adherence to due process
of the law. But gradually, in the United States the birth place of the juvenile court, opposition
arose between the socialized justice and lack of constitutional guarantees of Juvenile court. 23 In
Juvenile count a petition is filed to the advantage of the interest of delinquents, while a complaint
or accusation is filed ageist criminals.

Juvenile courts act also specify the age limits with in the Juvenile court has Jurisdiction and the
nature of the acts over which the courts has Jurisdiction. 24 It is a specialized court for children
established by the each states legislation. It exercises Jurisdiction over delinquents who violate
the law, status offenders who violate the morality and disobedient. The Jurisdiction of Juvenile

20
Supra note 13

21
Supra note p-202

22
Id p -199

23
Id p-200

24
Id p-201
count also embodies both rehabilitation and legalistic orientations. 25 Means they are quasi
community based of the children.

Prior to the disposition of the case of juvenile social, background investigation is carried out
relating to the Juvenile’s family, environment, school history, friends and other material that may
be helpful in obtaining accurate information. 26 The aim of this court is to modify the behavior of
individual child and re-integrate him in to the society as productive member and it is for the
humanitarian mechanism of altering the juvenile delinquents. In this case the wittier want to raise
one question that is while more focus to the child interest did not it affect the interest of the
society (public) at large? NO, this court has to balance the two interests; the child vulnerability
on one hand and the public interest in the prevention of criminal acts on the other hand.

The inventors of the juvenile court intended it not any to remove children from the harsh
criminal Justice system, but also to protect them from stagnating publicity. 27 In Juvenile court
they imagine that hearing would be closed to spectators and the press of a Juveniles record would
remain confidential and no private lawyers or ordinary count would disclose the issue to the
society attention. This is for the protection of child form the society view and protects them, as
they did not assume themselves criminal. The court that handle cases of Juveniles Justice in this
system was structured more in informal way. This court has aim of rehabilitate and provides
treatment on individual basis in a non- punitive atmosphere.

2.3 Diversion of children in conflict with the law

Diversion is the utilization of formal or informal means other than the criminal Justice system to
deal with Juvenile offenders. formal means when the case of the child is seen by the police,
public prosecutor or Judge and order for diversion informal on the other hand are these out of

25
Sennal and seigen, 1987
26
Supra note 15 p -202

27
David. Taenhaus, juvenile justice in making, book .Fi.org (www.oup.com.<....>law>.criminology and(
criminal justice), (2004) p- 25
this which are participate in the advice of the child, like family counseling and advise education
given by psychologist at the school. Diversion is one aspect of promoting childes sense of well
beings as it avoids the negative effects of Juvenile Justice proceeding, like stigma of conviction
and sentence.28

Diversion is designed to direct children away from judicial proceedings and to words community
support, both informal and formal way to avoid the negative implication of the proceeding in the
ordinary courts.29 The structures followed may vary from country to country: statutory services
administrative bodies’ commissions, NGO. Etc. Their type of enforcement may also be wide: life
skills programmers,’ community service, apology and reparation, enhanced supervision and may
be of varying duration and intensity.30

The diversion method can only be implemented in manner consistent with Childs human rights
and legal safe guards. It is a fundamental principle of diversions that referral to appropriate
community or other services should require the consent of the child and where appropriate the
consent of his or her parents or guardian. 31 the consent of the parents or guardian is needed when
the child is not matured enough to give his/her consent for diversion and he/she did not
understood as diversion is good to him/her. Because diversions have to be depend on the consent
of the individual. Art -11(3) of Beijing rule propose that consent of diversion should be subject
to review by a competent authority up on application. This is for the reason that children are
vulnerable and for the fear of the coercion and to avoid the appearance before court they consent
for diversion.

Diversion did not made as everyone want for it. To ensure that human rights and legal safe
guards are fully respected diversion in Art- 40(3)(b) of CRC as explain by the soft law of Beijing
Rule Art -11 the following procedure followed bur ACRWC did not say anything on this
procedure .those are:

28
Commentary to beignig Rule -11(1)
29
Supra note 17

30
ibid

31
ibid
1st diversion to be used only when children admit to an offence and accept a non-Judicial hearing and
the child at no stage be presumed either in to any admission of guilt or in to accepting
diversions.32 This concept is supported by Art-12 CRC which says “the right to be heard applies
to all children who are capable of formatting viols and not only to children who are capable of
33
expressing view” such like provision is very good for the children while expressing their
natural thought. Especially while they are expressing their idea, about the school qualification
the security they get from family and school and about their mode of upbringing by the family is
reason for the offence. What I want to say here is such provision has not application in the
developing countries. Most of them did not have as such developed democracy or even if they
have concept of democracy their democracy exist at infarct stage. If they are not capable to give
their consent as I have said above they have to be represented by guardian or parents.

2nd diversion mechanism and strictures must not be mandate to order deprivation of liberty in any at
least without the possibility of judicial review.34 Because if Juveniles deprived liberty the
diversion lost its objective which is to treats the children in conflict with the law from the
abusive nature in the court proceeding. Diversion is more favorable if it is made before the
personals who know more about the best interest of the child or courts that are special in the
child matter. This is why most of the countries opt for establishment of Juvenile court in their
country.

3rd This stage comes when the above measures did not brought rehabilitation of the child behavior,
the case can be referred to a regular court system and this have to be taken as the last resort. 35
This stage is the stage changing the child case to ordinary court the same with procedure
followed in the adult case.

If at which stage did diversion take place the best interest of the child is favored?
Before answering this question understanding the objective of diversion which I mention above
is good diversion as non-custodial approach emphasizing on developing non-formal system of
care rehabilitation and re-integration of Juvenile offender and who are first time and petty

32
Session Five: international contribution to Kenya Juvenile Justice/ /:www.unafei.org. JP/ english /pdf/PdF.
Kenya/ sessions 5.pdf/,p -3 and Beijing rule ,Rule-11 (3).
33
Kid’s Talk, Freedom of expression and the UNCRC, page -80.
34
ibid

35
Convention on the right of child (CRC) Art -40(3) (b)
offenders.36 They focuses on the correction of children in conflict with the law in their
community by applying societal approach towards developing children’s potential to recovery.

Diversionary measures can come to at any stage from arrest to immediately prior to a foreseen
court hearing either as a generally applicable procedure or on the case by case decision of the
police, prosecutor court similar body dealing with child case. 37 In the various measures to be
adopted, the family, peers, teachers etc should be involved to the extent that this is beneficial for
the child. This commentary to the Beijing rule notes that in many cases non- intervention would
be t the best response.38 Diversion at the outset without referral to alternative social services may
be the typical response. These responses include counseling, community services and restitution
to the victim.

A similar policy has been adopted by the council of Europe. The council of Europe
recommendation on social protection to Juvenile delinquency encourages the development of
diversion and mediation procedure both at public prosecutor level by the discontinuance of
proceeding at the police level.39

The Beijing Rules also provide guidance to states seeing to make diversion an effective and
attractive option. The police and prosecution agencies should be empowered to dispose of such
cases at their discretion in accordance with both their legal system and with the principles
contained in the Beijing Rules.40 This favor diversion by the three personals i.e police, prosecutor
and court without limiting to the discretionary of court only.

Under Art -40(3) CRC state parties are under duty to seek to promote the establishment of
specific procedures and institution dealing with children separately. This is important addition to

36
Supra note 28

37
Alemtshehy mulat, case study Diversion of children in conflict of the law to community based programmed
centers in Ethiopia /ecaf.save. The children. Se/Documents/…/ Diversion % 20 reports … web pdf/, page -9.
38
Supra note 28

39
Supra note 17

40
Supra note 16, rule- 11(2)
the protection of the rights of children who are accused of being in conflict with law as ICCPR is
for more limited and only provides that procedures concerning Juveniles.41

The question writer wants to rise is did all crimes committed by Juvenile are subjected to
diversion under international law?
On this issue the CRC and ACRWC and not say thing on the types of the crime which are
subjected to diversion. Means both are silent on which crime is subjected to diversion. Therefore
it seems to allow all crimes weather serious or non-serious crimes are subjected to diversion as
for as there is no strict restriction in these instruments. Because most of time the factors
influence or pressure child to commit the crime are external factors like the family failure of up
bring and Environmental factors as mentioned in chapter one of this paper.

While we come to the soft law like the Beijing rule it allows diversion only to non-serious crimes
at outset and without referral to social service may be the optimal response. 42 This diversion may
especially the case where the offence is on non- serious nature and where the family the school
or other informal social control institutions have already reacted or are likely to react in
appropriate manner this indicate that only these crimes that are not serious or not dangerous /to
the society that are committed by child are subjected to diversion. This is taken from the
prospective to balance the interest of the child and protection of the society order and security
which is mentioned in this chapter in the proceeding discussion.

2.4 The purpose of diversion to children

Diversion has much purpose for the Juvenile delinquent but, the wittier wants to list some of the
typical purpose of diversion.
Traditionally when a child committed the crime they treated in harsh and inhuman manner these
harsh measures are to deter the child from his criminal act. Therefore diversion protects children
from being treated in traditional method, such as harsh physical punishments and deprivation of
basic needs.43 Traditionally the societies also punish the children through deprivation of basic
need such as food and clothes while they act in conflict with the law and morality of the public.
such type of measure are inhuman made of correction of child.
41
ICCPR art 4(4)

42
Supra note 28,rule- 11(2)

43
Supra note 37
When the child is punished they think themselves as criminal and may morally degrade for
his/her early punishment diversion enhanced self-esteem of the children. 44 This means diversion
to community based program will increase the confidentiality of the Juvenile child.

Diversion has double purpose measurement. This means while the child is serving measures
ageist then he/she also continue his education. The diversion model prevents the discontinuation
of education of the child or apprenticeship with his rehabilitation. It prevents children from being
exposed to abusive and exploitative procedures in administrative of Juvenile Justice. 45 In some
countries an increasing number of Juveniles have sent to adult criminal courts and sentenced to
prison. But in opposite diversion is when behavioral problems are identified early. The child
should be given access to the necessary remedial resources without appearing before court and
being labeled delinquent.46

2.5 Non- institutional treatment of children in conflict with the law

Non- institutional treatment is also could community based correction program is some countries
and it is correction program for criminal offenders or Juvenile offenders. It is the mechanism of
implementation of diversion in to practice. This includes among others such options as diversion

44
ibid

45
ibid

46
Supra note 15
pretrial release, probation, restitution and community services: temporary release, half way house
furlough and parole.47 There are considered useful in dealing with offenders in community.

This is the mechanism volunteers: weather they are individual or organizations, local institutions
and other community resources shall be call up on the contribute effectively the rehabilitation of
Juvenile in community setting ands as far as possible with in the family unit. Co-operation with
community is needed if the directives of competent authority are to be carried out effectively.
But at present the non- institutional treatment is under utilized in some instance, the co-operation
of ex-offenders (including ex-addicts) can be considerable assistance.48

Also Art- 40 (4) of the convention on the Rights of the child (CRC) lists some of the non-
institutional treatment without giving the definition of non-institutional treatment. The list under
this provision is similar with the list I have taken from other material on the above. The provision
as provides state parties should provide measures for dealing with children in conflict with law
end morality of the public without resorting to judicial proceedings and should provide a variety
of alternative disposition to institutional care.

2.6 Objectives of non-institutional treatments

The objective of non-institutional treatment is the encouragement of the well being of children.
as I have mention in the processing best interest of the child is the primary focus of CRC and
ACRWC when dealing with Juvenile delinquent. The main objectives of community based
rehabilitation are:-

 Re- integration- This will allow offenders to maintain existing contacts and establish new
ones in the community. Re –integration is based on the assumption that delinquency is the
consequences of community disorganization as well as the psychological behavior problems
of the Juvenile.49 Also children should be dealt with in a manner proportionate both to their
circumstances and to the offence.50 The Beijing rule specifically high light the importance of

47
Supra note 16,rule- 25

48
Supra note 28,rule-25

49
Supra note 13 ,p-31-32

50
CRC, art 40 (4)& Beijing rule, rule.5
 maintaining the relationship with Juveniles family so that Juveniles is not treated in isolation
from the family. As provided by CRC any treatment should take in to account the Childs
age and the desirability of promoting their reintegration and their assumption of a
51
constructive role is society. This made of treatment is to make the child responsible and
good citizen for his future life.

 Community protection – The control of offenders while they remain in the community is an
important objective aimed at protecting the society from further harm. 52 But enforcing such
condition is not simple. It requires daily visits to the Juvenile at his non- institution
treatment means it may require regular contacts with family members, guardian and other
relevant associations.

 Intermediate punishment- It is the middle ground between incarceration and probation and
parole to rehabilitation the Juvenile.

 Cost effective – they take less – cost. Current practices including probation and parole,
particularly if one ignores probation and parole violation are less costly than intermediate
punishment.53

2.7 The rational for the non-institutional treatment of Juvenile Justice

The reason for community based correction program or non-institutional treatment of Juvenile
are more than listing. The wittier wants to say some of the major reasons.

The non-institutional treatment provides the chance of reparation this giving the society to repair
from the criminal act of the Juvenile offender. It also makes the offender feel responsible and

51
Supra note 15, p- 296

52
ibid

53
Id p -298
accountable for his/her undesirable behavior.54 many children live in conditions of poverty that
undermine the factoring of protective social networks around them in. addition there are various
factors that push children to commit acts that are in conflict with the law the major factors are
break down families, inadequate parental supervision, economic hardships, lack of recreational
services, harsh corporal punishment of the children, peer influence, inadequate education sexual
abuse and exploitation.

The Chicago tribunal Judge Richard Tut hill explained in the study of the case of Thom as that. 55
He says;

“The family if Thomas were immigrants, unskilled laborers, who often could not find
work. He added their families are uniformly large, eight or oven ten children being not at
all usual. They where crowed in to two or three small rooms. Here they live, eat and sleep.
The poverty of these places miscalled homes is beyond belief with one not acquitted with
the actual facts. Driven by sharpest want, the children are sent out to pick up what they
can. These families use the grain for consumption but without pausing ………….”

In the above case of Thomas the Judge conclude that the reason for offence is the external factor.
Therefore to rehabilitate the child through non institutional treatment of the child by providing
this basic need material is enough. Because if these thing are fulfilled for him the child did have
no intention to commit offence. Judge Tut hill America/Chicago tribunal Judge angrily rejected
the idea that there were born criminals, Bonk criminals? Stuff and he says society makes
criminal environment and lack of education make criminals.56
Non –institutional treatment enables concerned to understand the underling causes of the
undesirable behavior. This put the concerned personals to understand the problem of the child
more than the Judge. They are psychologist that gives more guidance and advice to the child.

Also this prevents the offender from getting criminal records and from being labeled as criminal
without gross intention.57 Children who are directed to Non- institutional treatment are to avoid
54
Supra note 37

55
Supra note 27

56
ibid

57
Supra note 37, p-8
detention. However they are in program they found supportive in terms of providing education
materials and tutorial support in improving relation with their parents and a place where they pat
access to entertain meant faculties in an environment where they feel respected. Non-institutional
treatments also out of the child purpose also decrease the case load from criminal Justice system.
Crime prevention and reduction are best achieved through community based inventions, and
communitarian rational.58

2.7 Age limit for non- institutional treatment

On this the CRC and ACRWC did not say anything, both instrument says person under age -18
as children. The silence of these instruments infers that any child under the age of 18 can treated
under non-institutional treatment. Also the soft law means Beijing Rule take the same position
with the two instruments.

2.9 Types of non-institutional treatment under international law

Community – based treatment comes as consequence of the perceived failure we of

institutionalization to achieve the rehabilitative goal with Juvenile delinquents.

Community based treatment consists of the probation, social case work, group work and
restitution, non residential programs where youths remain in their own homers and receive
counseling education, family assistance, diagnostic services case work or vocational training are
another form of community treatment.59 The writer wants to take some of the major non-
institutional treatment. Therefore the one I use in the following is not exhaustive.

a) Probation: Is the best known and most widely used of the community based treatment
methods. Probation is a method of disposition in which the child is placed in the
community and maintained under supervision of an officer of the court (a probation
officer).60 If the child violate the condition that must be meet or the child commits and
58
Supra note 33 p,91-92

59
Chang and Fagin, 1985
60
Supra note 15, p,205
 offence again the court may revoke probation. The choice of probation rather than
incarceration will depend on the availability of resources, the serious of the offence, a
history of prior offences and attitude of the Judge.61 Juvenile probation is based on the
notion that juvenile offender who are not dangerous to the society have a better chance of
being rehabilitated if they remain within the community.

b) Restitution: Is defined as the requirement that an offender provides financial

remuneration to the victim for damages or stolen property or donates his time to
community service.62 It is making children pay the victim for their crimes and the others
forms are paying money to charity or a public cause, providing a direct service to the
victim and providing a direct service to the community organization.
Restitution is the area of Juvenile community based treatment in relatively new. 63 It is imposed at
any stage of the Juvenile Justice system. It is also rehabilitative because it gives the Juvenile the
opportunity to compensate the victim and become productive member of the society the writer
have question that haw the community service (work) is seen from ILO convention which
prohibit work complement for children under age? From this the work given for the public
service have to be the one which go with the best interest of the child and not a dangerous work
the child who pay restitution have to have the means (wealth) for the payment of the parents may
pay the restitution for the reason that sometimes there failure to up bring improper way is the
cause for the child’s criminal/ delinquent.

The reasons for restitution are favored:-

 While fines go directly to the court or government treasures, restitution goes directly to the
victim of the crime, compensating him for the injury sustained; time lost fro work of other
losses. 64 Did this not make the crime similar with tort liability? No, because if it is in case of
adults it may be. But, in case of Juvenile delinquent as I have mention in the above it balance
the baste interest of the child to rehabilitation and the community protection from crime.

61
ibid

62
Id p -206

63
ibid

64
Id p, 205
 It forces the offender to take personal liability for his crime this means it make the child to
think as he is responsible citizen for himself for the public good.

 It may have the potential for reconciling victims and the Juvenile offender because in this
they may live in the same society and the same locality.

 It may reduce the additional expose for supervision and administration in institutionalized
treatment.

c) Group homes: This is a non-secure structural residence that provides individual and
group counseling education Job training and family living.65The children go to public
schools and participate in activities of the community. This is grouping the criminal child
with those who have good conduct in school as he/she learn from these children.

d) Foster care: This is a program in which a child lives with surrogate family. Foster care
has not been used widely for delinquents until recently and in the past it was mostly used
to care for dependent neglected or abused children. 66 The advantage of foster care is the
opportunity for Juveniles to develop a close relationship with foster (accepting) family in
which they receive the attention, guidance and care not previously available to the child. 67
The depth of the emotional relationship will determine the quality of the foster care
experience.

A foster family care is more useful for Juvenile offender who has to be removed from
their homes because of family problem tike family crisis or those who need special adult
support as they prepare to live on their own. 68. This seems to what we call in our criminal
code supervised education when child is given to his/her family or other person or
organization for voluntarily supervision of him/her.

65
Supra note 58

66
ibid

67
ibid

68
ibid
 e) After care: It is equivalent to what we call parole in the adult system. The purpose is to
give the Juvenile proper help and supervision to successfully ready Just to community
life after being released from an institution. 69 This is the method of chocking whether the
delinquent offender brought the rehabilitation in the time he retain in the institution of
he/she should be returned to the institution for further behavioral change.

f) Non –intervention: non –intervention sought to avoid or minimize the stigma of being
labeled as delinquent that is treatment through community based facilities by placing
young people in secure facilities.70 This is the method of put the young offender in the
favorable place that prevents him from the further commission of crim. For Example if
the reason for commission of the crime is peer pressure advising the family to control
their child from such peer and order him or her as he/she stay at the home.

CHAPTER –THREE

3. Analysis of Ethiopian law on diversion and non- institutional treatment of

children in conflict with the law

3.1 Juvenile delinquent /young offender/

One may ask the question that way talking about Juvenile delinquent is needed, while it is also
disused under chapter – 2 on the Juvenile delinquent under international law. The reason is that
as I have mentioned in the preceding chapters international law did not give clear and precise
definition for who is belong to Juvenile delinquent and it left discretionary for the respective
state parties under CRC to differentiate who is Juvenile delinquent. Therefore our country takes
her own age group division to differentiate Juvenile delinquent. Then the writer thinks it is
proper to differentiate Juvenile delinquent before entering in to the discussion.

When we see our law the criminal code has provided four specific age groups for the criminal
responsibility purpose. The code only mentions Juvenile delinquent as one title in the criminal
69
Id p, 207

70
Id p, 203
code.71 The code did not related this term with any of the division of the age groups. Therefore it
is only inference that can help to get as who juvenile. In Ethiopia any person who is not attained
9 years is exempted from criminal responsibility and also the person between 15 years age and
18 years age group are assimilated to adult offender for criminal responsibility. 72 Therefore
Juvenile delinquent is the person between age group of 9 years and 15 years. From this reasoning
the Juvenile delinquent is any human being between age 9 years and 15 years who commit the
crime, If that act is committed by adult it where crime.

3.2The concept of Juvenile count in Ethiopia

Under Ethiopia law there is no clear provision for Juvenile courts and Juvenile offenders were
referred to the ordinary courts depending on the offenses committed. 73 This practice creates
difficulties, particularly to the police to bring the juvenile before Justice. his is fore the reason
that if there is a juvenile court the police directly brought the young offender to them and they
decide properly on the merit of this with in short period of time whether to refer to non-
institutional treatment.

In most cases up to the early 1960s Juveniles were arrested for simple offences like theft and
other deviate behaviors like vagrancy (loitering without visible means of livelihood, care or
protection).74
A special juvenile court was established for the first time in December 1961 in Addis Ababa and
in fact unlike the other court system the only Juvenile court located in Addis Ababa remained in
operative for some time due to lack of Judges and resources. 75 These infer that the children
outside this are sharing ordinary court and prison with adult criminals.

Although the establishment of this court is good for the interest of the child, it needs economy.
Therefore in the developing countries likes our country even where getting basic need is
difficult, It is impossible to establish Juvenile court in every party of the country.

71
Criminal code of the FDRE, (2005) Book I, section II, title II, chapter –I
72
Id, Art- 52 and Art- 56 respectively.
73
Supra note 15,p-104

74
ibid

75
ibid
 3.3 Division under Ethiopia law
There is no definition given for diversion under Ethiopian law clearly. The constitution under
Art-36 (2) for every action taken against the child the best interest of the child is the primary
consideration. means in all action concerning children under taken by public and private welfare
institution, courts of law, administrative authorities or legislative bodies the primary
consideration shall be the best interest of the child. Unless we include diversion in the best
interest of the child through interpretation the constitution is silent. From the binging diversion is
taken from the best interest of the child, rehabilitation and re-integration of the child. Therefore
the constitution includes diversion by interpretation.
When we see other legal system Jurisdictions (South African constitution) take detention as the
last resort. This means their constitution clearly favors diversion.

Art 28(1) every child has the right

{g}Not to be detained except as a measures of cast rest in which case in addition to the rights a child
enjoys under 55 12 and 15 the child may be detained only for the shortest appropriate of time and ahs
the right to be ……...”.76

In South Africa right of children is qualified, however since detention of children would be
allowed if such detention can be regard as measure of last resort. 77 This right is in addition to the
rights which the children like all other people enjoy under section 12 and 35 of the bill. 78 This
protection measures acknowledges that children are more vulnerable than adult to negative
effects of the correction environment.

Therefore from this we understand that South African constitution is more clearly and directly
deal with the diversion of child than our constitution which only indicates the best interest of the
child as primary consideration.

76
South Africa constitution, Art -28 (1) (9)
77
Prof.JA Robinson, children right protection in the south African
constitution/www.aJol.info/index.php/pelJ/article down load/43475/27010/, p-51

78
ibid
In Ethiopia criminal code the idea of retribution is almost al to gather absents from the provision
applicable to young offenders, as indicated by the fact that the seriousness of the offence
committed is not normally taken in to account in deciding the offenders treatment toe the non-
institutional treatment.79

The provision of the criminal code more on the punishment of parents or guardian for
maltreatment and improperly up bring of the children. 80 This means the parents or guardians who
did not discharge the duty properly are punished. This shows the steps taken by the Ethiopian
criminal law to favor the non-institutional treatment/ diversion of the young offender to bring the
Good behavior of the Juvenile delinquent and correction of his/her miss- behavior. The reason
for young offender criminal commission is the parents or guardian improperly upbringing of the
child. Therefore our legislators take the position that it is better if they are punished for their
omission. If young person do wrong the corrective steps may be ordered at home or at school. 81
Yet provisions of the revised family code and Art -576 and 659 of criminal code designed to
ensure that children do not become delinquent in the consequence of their parents failing in their
duties.

A young offender who has initially sent to community based treatment shall be transferred to a
corrective institution, if such measures become necessary due to the young offenders misconduct
or due to the danger he constitutes to others or if he attains the age while serving a sentence that
extends beyond his majority.82 From this in indicate that taking the child to correction institution
is taken as last resort, when the child did not rehabilitate from his criminal behavior through
community based treatment.

By taking such measures the criminal code fits with the FDRE constitution, UNCRC and
ACRWC which takes best interest of the child as the primary consideration.

When we come to the criminal procedure code, Art -172 provide that the case of young person is
to be referred to first instance court (wereda count). Young person are assisted by council only
79
Supra note 13 ,p-33

80
Supra note 71,Art-576 @Art-659

81
Supra note 13,p-31

82
Supra note 71,Art-168(2)
when there are no parents, guardian or other person in local parents and in case where young
person are charge with an offence punishable with imprisonment exceeding ten years. 83 The
establishments of council for young offender depend on the gravity of the crime committed by
the child and absence of parents who assist him/her at court room.

The court in assessing the offences committed by Juveniles on the basis of the provision of the
law, should take in to consideration the age, character, degree of mental or moral development of
young offender as well as the education value of the measures to be taken for diversion. 84 From
this the criminal procedure code did not differentiate on which crime the diversion may be taken.
Therefore as far as the young offender is not recidivist diversion is possible for every crime.

There are neither legal definitions nor agreed up on criteria to determine whether offences are
petty or not when committed by young offender. Volunteers, officers, team leaders and parents
may look at the seriousness of the offences in different ways. 85 Up on the absence of legally
recognized standard it creates discrimination among young offender at different place and time
when dealing with them.

The seriousness of the offence is determined by adults round the child and seems to be
determined by reviewing factors such as the intent of the child impact brought by the offence, the
child potential to easily corrected and prior experiences of the child. 86 Children are not involved
in judging the seriousness of their offences. This comes form prohibition of natural justice which
says no one is Judge in his own case.

The other question may come in the mind of the ready is who have authority in the diversion? To
answer this question Art -157 criminal procedure code, in all cases where a crime provided by
the criminal law or the law of petty offences has been committed by young person between age
of nine and fifteen years (Art -53 cr. code) the court shall order one of the following measures

83
Yonas Tesfa and Tilahun weldie, criminal procedure law (2010), page -240.

84
Id ,p-240-242

85
Supra note 27 ,p-9

86
ibid
…… From this provision we can conclude that diversion to non-institutional treatment is taken
by the court.

The other provision of criminal procedure code, Art -172 (1) “ in any case where a young person
is involved, she shall be taken immediately before nearest wereda court by the police, the public
prosecutor, the parents or guardian or the complaint. This indicate the weather police or any
other person who see or hear the commission of the crime by young person have to bring or
report to the court before taking any action .The court give instruction to the investigating police
how to deal with the young offender and give direction to the public prosecutor How to frame
issue in relation to them.87 Therefore from the preceding discussion we understood that any
action taken in relation to young offender must be within the knowledge of the court. Then
diversion is taken only by the Judge /court/ in Ethiopia after he see the case of the child ,study
the antecedent and behavior of the child from the parents, guardian school, which deal with the
young offender. But unlike to this under international law the diversion may be taken by the
police or prosecutor or by the court.88 Giving the power of diversion only to the discretionary of
the court under Ethiopian law has its own drawback. This increases the work load of the Judge
and delay the case of the child to get Justice with proper time. But this also have its own
advantage in developing countries like ours, because in these countries the person dealing with
the child at the first time like police did not have efficient knowledge about the interest of the
child. Police enter in to work even before complete their secondary education. they are not as
such familiar with the best interest of the child and which measures may properly rehabilitate the
criminal behavior of the child. Therefore it is good to give the power of diversion to the court in
such countries including ours.

3.4 The Ethiopian law on the concept of non- institutional treatment of

Children in conflict with laws.
Out of many types of dispositional measures non-institutional measures like care, guidance,
supervision orders, probation, community service order, financial penalties, compensation and
restitution; intermediate treatment and other treatment orders are more recommendable than

87
Criminal procedure code,(1961),Art-172(2)(3)

88
Supra note 16,rule -11(2)
institutional measures.89 In addition it is provided that no juvenile shall be removed from parental
supervision whether partly or entirely unless the circumstance of his/her case make this
necessary. In Ethiopia also as mentioned in the proceeding discussion parents have not only the
right but also the responsibility to give care and supervise their children.

 Non- institutional treatments are innovative in their use of community structures as

means of rehabilitation of children and youth in conflict with law. They are resource
friendly and sustainable way of addressing the issue of children who come in to conflict
with the law in their communities and importantly, they are child rights centered. 90

This community based treatment is more favored in developing countries when there is
economic problem for establishment of institution for children separately. As compared to
measures and penalties prescribed for adults the court has wide option and allowance for
flexibility because the primary aims of any action taken with respect to young persons are and
must be education and correction.91 Ethiopian law favor to bring these young offenders before
non-institutional treatments to rectify the miss behavior of the young person and to re-integrate
their future life with society. But the criminal code without giving the definition of non-
institutional treatment list some types of non-institutional measures like supervised education,
school/home arrest and reprimand which I am going to discuss later.

3.5 Age limit for non-institution treatment

Under Ethiopian criminal code these young offender who are allowed for non- institutional
treatment are these who exist between the age limit of 9 years and 15 years. 92 Also Art-56 cr.
code says these who are attained more than 15 years are considers as attained majority for
criminal responsibility purpose. Concerning the age division of the Ethiopian penal code the
committee on the child convention in 1995 at the initial report recommended that children are
treated as adults in Ethiopia. 93 Therefore the committee recommended the age to rise to 18 years
89
Id,rule-18(1)

90
English-ACERWC-harmonising law in eastern and southern Africa.unicef, African child policy forum
(www.acerwc.org/…/English..ACERWC-harmonising law on),p-82-85

91
Supra note- 13,p-31-33

92
Supra note -71,Art-53

93
ibid
old as explain in the CRC and ACRWC to meet with minimum international standard for
treatment of the child.94 Even though the penal code is amended in 2005 the provision did not
amend till recent time. This means the same divisions in the penal code have been transferred to
the current criminal code.

The other problem with Ethiopia law is it only put the age limit that are treated as young offender
without the establishment of the office of the civil status. Before coming it force if the criminal
code the Ethiopian civil law orders registration of birth and in addition to this the current federal
revised family code also direct the establishment of the office of civil status within 6 months of
coming of the code in to force for the registration of the birth and marriage. 95In the existence of
these provision until know there is no office of civil status established for this purpose therefore
it is very difficult for the court to know the age of Juvenile when they are brought by the police
or other person. To differentiate by looking his physical, the human development depends on
different factors like nutrition and other condition. When asked the child or the guardian may tell
small age to escape from criminal liability while he/she is matured enough for criminal liability.
To prove through medical it may be cost therefore it is difficult to the court in our legal system to
differential surely the young offender for non- institutional treatment.

3.6 Restoring competence of famines to follow-up and guide their children

The community based correction program strives to engage families in the process of correct
children.96 This involvement helps to establish a closer relationship between families and
children. Parents who are helped to support their children to go through the CBCP feel that they
contribute to the rehabilitation of their children.97 They also fell that they are capable of advising
their children more than before and that the diversion program helped to restore family values.

3.6 Community based correction program in Ethiopia (CBCP)

The community Based correction program is established in Ethiopia only in the capital of the
country only. The following note explains about the establishment of CBCP was taken from the
book written by UNICEF on ACERC – Harmonizing law in Eastern and southern Africa:
Community based correction program centre’s (CBCPC) work closely with child protection units (CPU’s)
94

95
Civil code (1960), Art -129 and federal revised family code (200), Art -321 respectively.
96
Supra note – 37, p 18
97
Ibid
 which are organized under the Addis Ababa police commission crime investigation Department and now
exist in each of the ten subsidy police departments in the capital. They have helped improve the handling
of accused children and child victims of violence and abuse by ensuring follow up and support during
legal proceeding.
The objective of the program are to prevent children from starting ant-social activities and rehabilitate
young first time offenders and petty offenders while they remain with families rather than in the custody
of police or reformatory institutions.

After classification of case by a CPU and individual treatment plan is draw up with active participation of
the child parents and guardians and responsible team leader. Once plan is draw up the child is supposed
to regularly report to CPCP of which there are currently six in Addis Ababa.

This note indicates that CBCP is part of the police department that is established only in subsidy
of Addis Ababa. It divided crime to treat the young offender in to different class. the reason for
non-coverage of all of the country are was from economic problem of the country.

3.7 Types of No- institution treatment in our legal system.

The non-institutional measures adopted by Ethiopian criminal code will be examined. The code
has provided different types of non-institutional measures like; supervised education,
school/home arrest and reprimand even if it is as many as the one recognized under international
law.

3.7.1 Supervised education

The primary responsibility to care and control the child is vested on their parents. However there
are some cases where parents may fail to obey their responsibility due to different reason. In
such cases, the responsibility may shift to other volunteers.

According to Art- 159 of the criminal code who is eligible to supervised education order?
It can be explained that young offenders morally abounded or in need of care and protection or is
exposed to the danger of corruption or is corrupted are these young offender who are eligible to
supervise education order in our legal system.98 The child who is capable to other measures are

98
Supra note – 71, Art -159 (1)
not subjected to supervised education. This measure is to give them better care than they have
taken from their parents or guardian before they are treated as delinquent. Supervised Education
is ordered only when the above reason are existing.99

The supervised offender will be entrusted either to relatives or if he has no relative Or if the
relative is incapable of ensuring his education to a person (guardian or protector) a reliable of
ensuring family, home or organization for the education like NGO and protection of the offender
subject to withdrawal of the supervision if they fail to discharge their duty. 100 But taking young
offender for supervised education is volunteer. Means there personal did not oblige to take for
supervised education because; if it is obligation it is enslaving one citizen to the other.

The Ethiopian law has given priority right to the nearest family relative of the offender to be a
supervisor and this will have positive effect on the psycho-social upbringing of the offender.

It is not wise use supervision order only to education because, supervising a child only related to
education like advising him/her to study making sure that he/she has done his home work and
attend class protection and care or who is morally abounded rather requires wider responsibility
of supervising the child. Because these measures are need for every child weather they are
offender or not. Therefore the supervisor should use the development of self –confidence of the
abused child to teach some techniques to deal with social life, moral guidance and so on. When
needed to teach him/her some vocational skills.

The law of course leave some discretionary to the court that it can order the supervisor to take
responsibility not only to ensure education of the child. But also other issues which are needed
by the child/ which are rehabilitate the behavior of the child. 101 so that the specific conditions
such as regular attendance at school or obligation to undergo an apparent ship for a trade, the
prohibition to associate with a certain persons or resort to certain places, the obligation to appear
personally before or to report on certain dated to the supervisor authority maybe imposed.102

99
Supra note – 37, Art -53(2)
100
Supra note – 71, Art -159 (2) cum (3)
101
Id, Art -159 (2)
102
Ibid
The Ethiopian law has also established a local supervisory authority that follows up and controls
the supervisor weather he/she is undertaking the responsibility assumed by the courts order.103

The writer think that it is very difficult to get such a person who take the supervision of the
young offender because of the economic problem and the society did not have as such awareness
as they have responsibility in the crime prevention and control. This has some similarly with
foster care under international law. Supervised education and restitution is the most
recommended one under international law for the rehabilitation and re-integration of children in
conflict with law in to society.104
3.7.2 Reprimand
Reprimand is another type of non-institution measures that can imposed on young offender in
our criminal code.

Art – 160 of the criminal code provides as:

“Where such a course seems appropriate and designed to produce good results court may
reprimand the young offender.”105 If the court think that the reprimand and censure bring a
change on the behavior of the child the court may order reprimand. 106 It shall direct his/her
attention to the consequence of his/her act and appeal to his/her sense of duty and his/her
determination to be good behavior in the future.

This provision indicated the fact that the court has high discretion to decide the appropriateness
of reprimand to a given case and to order it there to if it found it appropriator this a sense that the
court disapprove the act of the child and tell him/her as he/she regret or show active repentance
for his/her act and show good behavior in the public.

Reprimand may be applied alone without other measures or penalties by the court’s
decision.107Reprimand is employed only to those offender who are capable of understanding what

103
Id, sub (1)
104
Supra note – 28, rule-11(4)
105
Supra note – 71, Art -180 (1)
106
Id , Art -160 (
107
Id, Art-160 (2)
is wrong and right and also depend on the gravity of the crime committed will be taken in to
account to employ reprimand alone or with other measures or penalties.

For example if the young offender participate on robbery or stole some thing order him/her to
pay the price of the thing or if the stolen property exist told him/her to return it to the owner and
warning him as his act is wrong, if the young offender combined with vagrant group give
him/her warning, order not repeat such act and make him/her as to ask apology from the public.

The writer favor this is smile if it is used because, it is easily enforceable and cost effective. The
family/parents are ordered to follow their child act in a way the court has advised them. It is
better if the court get information related to the disposition and character of the offender from
his/her family, school or other institution before ordering this measure. In this the court has to
give special emphasis on the cause of the crime committed than the gravity of the offence
committed.
3.7.3 School home arrest

This is the method of abstaining the young offender from his/her before criminal act or from bad
area. If the young offender is spending free hours and holidays with bad friends and placed the
treatment is keeping the young criminal at home or school.108

In UK this is in which a Juvenile delinquent on whom an attendance center order has been
imposed is required to attend the attendance center usually in police or school building for
certain defined periods of his leisure.109 In a typical case, he may be ordered to attend at center
for a total of twelve hours, two hours of attendances, six Saturday afternoons during such hour
the delinquents under goes through physical training, craft work and other ordinary Job varying
from scrubbing to washing cars.110

108
Id Art -16
109
J. meclean and J.wood, criminal Justice and treatment of offenders (1969161)
110
Ibid
In our criminal code Art-161 this is order in case of small gravity or when the young offender
seems likely to reforms the court may order that he be kept at school or in home during his free
hours or holidays and perform specific task adopted to his age and his circumstance. by seeing
the gravity of the crime, when court has the opinion that the crime has small gravity the court
will order that the offender be kept either in the school or home and perform some specific tasks
considering his age or circumstance of the case.

However the law of Ethiopia did not specify what types of activities or tasks to be performed
during school/home arrest order. It left this to the discretionary of the court see the case. This
derivation of leisure of the young offender, temporary restraints and engagement is some
activities have the purpose to prevent from acts that are against the public order and security.

The power to determine the duration of the restraint, manner appropriate to the circumstance of
the case and the degree of gravity of the offence committed did not put by the law and therefore
is vested to the discretionary of the court.111

3.8 Compatibility of the domestic law on the diversion and non-institutional

treatment of Juvenile Justice with Relevant minimum international standard

The fact that the existing domestic law on administration of Juvenile Justice is compatible with
the minimum international standard does not; however mean that it is adequate. Rather it exhibits
gaps and even those existing provision are lacking essential details.

In this regard the most known short coming are:- the existence of disposition measures that are
not confirm with the stated aim of Juvenile Justice administration, absence of early disposition
mechanism such as out set diversion and inadequacy of the exiting procedures for handling of
young offenders like lack of Juvenile court throughout the all party of the country.

111
Supra note -71,Art-161
When we start from the supreme law of the land,112 under Art -36(2) the best interest of the child
is the primary consideration. But the best interest of the child is the vague term. Therefore to
include diversion in the best interest, it needs the consent of the child. Also our constitution did
not have the provision says that detention have to be taken as last resort. If we take other country
Jurisdiction (South Africa) as I have mentioned above detention is taken as last resort 113 and also
in Beijing rule diversion is taken as optimal measure. 114 From this our constitution did not clearly
express diversion as the primary measure.

The placement of Juvenile in an institution must first be a disposition of last resort and second 115
this means It should be for minimum necessary period. This is because institutionalization, that is
loss of liberty and separation from the usual environment has an acute negative effect on the
juvenile’s social and psychological assumption about themselves.

The limitations of the criminal procedure code on administration of Juvenile Justice through
Non-insstitution treatement are:-
Absence of non-Judicial mechanism for diversion in the area is from which the domestic law of
Ethiopia on the administration of Juvenile Justice suffers. Diversion is an instance where a
juvenile is dealt without resort to formal trial by the counts. Art-11 of the Beijing guidelines
provides that the prosecution or other agencies dealing with juvenile cases be empowered to
dispose of such cases at their discretion, in accordance with the criteria to be laid down for this
purpose in the respective national legal system without recourse to formal hearing.

But the criminal procedure code retains diversion only to the court after the child brought before
him by the police up on accusation or complaint. 116 There for the code does not recognize any
role of diversionary to the police and public prosecutor.

112
FDRE constitution (1995), Art 19 (1) which show supremacy of the constitution
113
Supra note -76
114
Supra note -28
115
Supra note -7
116
Supra note -87
The court is expected to act as a non-Judicial in diversionary mechanism. The code however
seems to over look the fact that it is the police who normally have the first encounter with
Juvenile offender.117 Those who accuse young offenders and the police find it less troublesome to
handle case of Juveniles may order to diversion without resort to court. 118 More disturbingly the
diversionary role of courts is not at all understood by courts, the police or the community at
large.119As the code does not regulate how police should handle young offenders the present
police practices come to frustrate the very purpose for which diversion is required.
Another major limitation of criminal procedure code is the absence of detailed rules and guide
lines on the application of its protections and guarantees. 120 Thus for instance the procedural
mechanism of enforcement of such principles of informal hearings, parental and legal
representation, administration of educational measures and secrecy are not provided for.

By limiting the diversion power to the court there is no juvenile court established in every party
of the country. If the cause of the child brought before ordinary court the case may be delayed
for the court work load. Therefore the young offender did not order to diversion with in short
period because in our country Juvenile court exists in Addis Ababa only as we discussed above.

When we come to the criminal code even if the code exempted retribution from the code,
Juvenile offender, it did not give the definition of non-institutional treatment. It only lists some
kinds of non –institutional treatment like supervised education, home/school arrest and
reprimand.
The Ethiopian law also did not give the procedures to be followed during the diversion this
means the criteria followed by the Judge during diversion.
The other thing that is raised in Ethiopian law is the concept of emancipation adopted under the
federal revised family code. That is a court may decide on the emancipation of a minor who
attains fourteen years of age for the best interest of the minor or to emancipate so as to be
employed on the application of his/her tutor, guardian or an interested person. 121 An emancipated

117
Supra note – 44
118
Ibid
119
Ibid
120
Ibid
121
The federal revised family code of FDRE (2000), Art – 312
minor shall be deemed under the law to have attained majority. 122 Once the minor attained
majority by emancipation, it may not be revoked. 123 One thing that the writer wants to raise in
this case is the civil majority is attained before the criminal majority. But in most case the
criminal majority (15yeras) attain before the civil majority (18years). Then why the Ethiopian
law did not answer or the gaps in our law is can we treated the fourteen years old child that is
emancipated as young offender or can we treated him as adult offender. This means in other
words did the child attain majority at fourteen yours old lose his right to be treated as the young
offender in the criminal case? Because most of the time the right and duties are two side of the
same coin, they did not separated as for as the right exist there is a duty for that person.

The other problem with Ethiopian law is with the contra at of apprenticeship. A your may be
employed at the age of fourteen years to get skill and training in addition to the income he get
from this employment.124 Then did the count take such person as your offender white he /she
commit crime at their age of fourteen years? Because, for the child interest they may be taken as
attained employment age save to some working condition affect it their right.

Conclusion and Recommendation

122
Id, Art 313
123
Id, Art – 134 (1).
124
Labor proclamation No. 377/2003, Art -48
Children are discriminate for many reasons especially in developing countries from the
traditional and cultural aspects. There is bad attitude to words the child like; children as property
of the family ,as the children did no rehabilitate once they commit the crime ,taking corporal
punishment as the best method of correction of the child and the society influence on the law
enforcement organ as they take illegal measure on the Juveniles.

The protection of the child was come from human dignity which is elaborated of the child was
come from human dignity which is elaborated for the first time in UDHR and other bill of human
righjts. In addition to those there are international instrument specifically deal with the child like;
CRC, ACRWC and from the soft law Beijing rule. The Beijing rule is for the treatment of young
offenders and it is the explanation of Art-37and Art-40 of CRC. It has the provision which favor
diversion depend on the best interest of the child for societal re-integration of the Juveniles.

In some countries of the world establishment of Juvenile court is started for the proper treatment
of the children and they know the interest of the child more than any organ participate in the
criminal Justice system.

As modern time diversion to non-institution treatment is taken as the best option for young
offenders. Punishment of the Juvenile delinquent did not so serve the purpose of the criminal
code in relation to children. Because, the reason for the Juvenile delinquent is presumed not from
their own evil mind rather from the external factors like the family failure in the up bring.

While diversion of the Juveniles, there are many forms of non –institutional treatment
recognized under international law for Implementation of diversion. Those non-institutional
treatments are; probation. Restitution, group homes, fosters care, after care, non Intervention and
etc.

Our legal systems system also have provision which favor the best interest of the child even if it
did not have the provision clearly dealing with diversion. The Ethiopian law have some gap on
diversion and non –institutional treatment of the child. In the criminal procedure code diversion
did not taken at outset, because the power to diversion is only limited to the discretionary of the
court.
Juvenile court is only established in Addis Ababa in our country which is especial expert on the
Juvenile delinquent. Also our criminal code has the provision that favor non- institutional
treatment like supervised education, home/school arrest and Reprimand. These non-institutional
treatments are for the re-integration of the juvenile to the public and for participation of the
family in the rehabilitation of young offenders.

There are some recommendation that the writer want to direct on some drawbacks I have seen
while dealing with international instruments and the Ethiopia laws.

CRC is the instrument that has only one sub-provision which is dealing with diversion to non-
institutional instrument. But it have soft law which give illustration to this provision, this Beijing
Rule did not have binding force Even if it is the explanation of CRC Art-37 and Art-40 while the
children commit crime. Therefore to give effect to the CRC provision diversion and non-
institutional treatment of Juvenile delinquent, it is better if it is changed to binding instrument.

ACRWC under Art -17(3) it only talk the aim of this charter is to treat children in conflict with
law judicially and re-integrate/ rehabilitate/ the Juvenile. It did not have the provision dealing
with diversion clearly. Therefore it needs the inclusion of diversion and non –intuitional
treatment through protocol. Because, while they draft this charter they say the reason for draft
this charter is from the preamble to include the African-socio economy in to the chanter.

When come to the domestic law our constitution did not have the provision directly /clearly
dealing with diversion of the children in conflicts with the law to non-institutional treatment.
Therefore it is good for non –institutional treatment of the Juvenile delinquent if the supreme law
of the land have provision clearly dealing with diversion of the children in conflicts with law.
The law mostly used while dealing with Juvenile delinquents for protection of his/her right is
criminal procedure code. Because, if proper procedure that is ordered by the law did not
followed it brought violation of human right. Our criminal procedure code did not have detail
provision dealing with young offender. It has only little provision that is difficult to say enough
to enforce the right of the child. The provision has to be extended to include the provision
dealing with diversion of juvenile. Under Art -172 (2) criminal procedure code limit the power of
diversion only to the court. This may affect the right of the child because the first personnel
dealing with juvenile delinquent is not the court it is the police and public prosecutor. Therefore
it is proper if they have power to diversion at out set for the interest of the Juvenile delinquent as
it is allowed in the rule 11(1) of Beijing Rule. This means including non judicial method of
diversion in the law of the country or out set method of diversion.

Also as I have mentioned the juvenile court is limited to Addis Ababa in Ethiopia. this create
discrimination between the children exist in the country, therefore it is better if this court is
distribute throughout the country as much as the economy of the country permit.

The provision of the criminal code order list type of non -institutional treatment with out there
definition and detail profusion for ache prier appear application. Therefore for application of this
non-institutional treatment it need detail provision.

It is good if the legislator include in the law the mechanism of diversion and the age limit for
diversion.
Even if the CRC committee in 1995 give recommendation to raise the age limit of juvenile to
18years old, our legislator give deaf ear to it while legislate the criminal code and young
offender above15 years old are treated as adult save to mitigation of punishment. Therefore it is
lucky for children if it is made as recommended by the CRC committee.

At last but not as the least; it is best if the law say something on the children that are emancipated
under the RFC and apprenticeship under the labor law whether they are treated as young
offender or adults.

Bibliography

A. Table of laws (Domestic laws)

1. FDRE constitution proc No. 1/1995. (August, 1995)
2. The criminal code of the FDRE: Pro. No. 414/2004 (may, 9, 2005)
3. The criminal procedure code of the empire of Ethiopia proc. No 18/1961, Nega. Gaz Extra
ordinary issue, No. 1
4. The federal revised family code proc. No 213/2000. (Julay 4, 2000), Nega. Gaz Extra ordinary
issue, No. 1
5. Labor proclamation, pro. No 377/2003 (February. 26/2003) Nega. Gaz

B. International laws
1. Convention on the right of child (CRC)
2. African charter on the right and welfare of child (ACRWC)
3. International covenant on civil and positional right (ICCPR)
4. Universal declaration of human right (UDHR)
5. Un standard minimum rules for the administration of Juvenile justice the Beijing rules
adopted by General Assembly resolution 40/33 (No. 29, 1985)

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Ababa university, 2004.
2. Javaid Rerman international human rights law, 2nd Edition.
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(unpublished).
4. Younas Tesfa and Tilahun Weldia, criminal procedure law (2010)
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/2263/1159. Date – 2005 accessed on 20/11/2012
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18/12/20012
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