ALTERNATIVE DISPUTE

RESOLUTION

DIVERSION
 Policy and Legal Framework for the
Diversion Program in Uganda

 The Convention on the Rights of the Child 1989

 The United Nations Standard Minimum Rules for the Administration of
Juvenile Justice (the Beijing Rules)
 UN Common Approach to Justice for Children (2008)
 The United Nations Minimum Rules on the Prevention of Delinquency
 The African Charter on the Rights and Welfare of a Child 1993
 The Constitution of the Republic of Uganda -1995 – sets the legal and
human rights standards relating to handling of children by providing for their
best interest and promoting reconciliation in adjudication of cases
 The Children’s Act Cap 59 - Part X –deals with children charged with
offences-sets the legal basis for diversion of juvenile petty offenders without
recourse to formal proceedings or during formal proceedings
 The Local Council Court Act NO.13 of 2006 – establishes the local council
court at every village, parish, division and sub county level consisting of
members of an executive committee. S.92 empowers the LC Courts to
handle all cases and matters of a civil nature, selected criminal cases and it
lists down the type of reliefs that can be levied.
 LDC Diversion Guidelines or Stakeholders in Juvenile Justice
 The Police Diversion Guidelines 2019
 Diversion defined:

•What is Diversion?
Diversion is the process of channeling a juvenile offender from the formal
justice system to informal justice system with the intention to effectively settle
the case.
•Who is a juvenile?
A juvenile, according to the Constitution of the republic of Uganda, is someone
below the age of 18 years. A juvenile offender therefore, is someone below the
age of 18 years who comes in conflict with the law or commits an offence.
•Who is a juvenile offender?
A juvenile offender is a child in conflict with the law.
 Why Diversion?
 Diversion ensures reduction in the number of minor and less serious offences
clogging up the formal justice system and detention and allows resources to
be focused on repeat or high risk offenders.
 Diversion prevents stigmatization and labeling of the children and their
families.
 Diversion helps in holding the child accountable for his or her actions and
this contributes positively to a child’s development by encouraging children
to take responsibility for the harm caused, but in ways that re-integrate them
into society, without getting a criminal record.
 Diversion promotes effective rehabilitation and reintegration. There is
opportunity for guidance and counseling and thus it is considered to have
greater impact.
 Principles of Juvenile
Diversion

 Diversion should take place as soon as possible before the child gets exposed
to negative effects and trauma, if possible as soon as they are arrested by
police
 Adopt a child friendly Approach-all the children in contact with the justice
system are to be treated with care, sensitivity, empathy
 Adopt a non-discriminatory approach; irrespective of race, gender, religion,
birth, status etc.
 All actions and decisions must be in the best interest of the child and
consider all possible effects on development of the child.
 Measures to consider before Juvenile Diversion takes place

 A child qualifies for diversion, if he has committed a minor offence as

contained in the Children Act – e.g. Affray, Malicious damage to property,
criminal trespass, theft, common assault, prostitution
 The child must understand the nature of the offence and accepts the
consequence
 The child must be repentant/Apologetic
 The child must have a responsible parent/guardian who will ensure that the
child goes through the life skills training.
 The child’s parents/ guardians must have a fixed place of abode.
 LDC LEGAL AID CLINIC MODEL OF DIVERSION

•The LDC Legal Aid Clinic model of Diversion takes place at three levels:
•Community Level
• This level involves family conferencing –the family of the offender and victim
meet and try to resolve the issues. It could be done before the local council court
in the presence of LC’s. These are supported by fit persons and peer leaders
selected and trained by LDC LAC about protecting rights of the child. Here
diversion is done through Reconciliation, mediation, counseling and referrals.
 Levels of Diversion
•Police level
•Diversion at this level is done by the Child Family Protection Unit or CIID.
•The persons involved are the police officer CFPU, fit person, probation and
social welfare officer.
•Diversion at this stage is done upon the Police Officer granting a caution, police
bond, referral back to the community, may make an order for compensation,
restitution and apology.
•There after the juvenile offender will be released back to the community and
counseling sessions and follow up on the juvenile offender will then start.
•These sessions are supposed to be done by a Fit Person and in their absence, a
Social Worker or Secretary Children’s affairs will handle.
•Court level:
•Diversion at this level involves a legal representative for the offender,
prosecutor and the child’s parents where an offence is preferred.
•Diversion is done by the preferring magistrate. The Magistrate will have
options based on the situation at hand and these will include; bail and other non-
custodial sanctions may be preferred, such as compensation, community service
order, caution and suspended sentence as provided for in Section 92 of the
Children’s Act Cap 59.
•Upon these Orders being made, the juvenile offender will
be released back to the community and counseling sessions
and follow up on the juvenile offender will then start.
•These sessions are supposed to be done by a Fit Person and
in their absence, a Social Worker or Secretary Children’s
affairs will handle.
 Who are Fit Persons?
•Fit persons are ordinary members of the community, chosen by the community
based on their leadership capabilities and their willingness to serve the
community in juvenile justice system.
•They undergo trainings in leadership and counseling skills and are
commissioned by the Court of law in order to have power to act.
•They work in close collaboration with the Local Councils, community,
Probation officers, the police, judicial officers and the district stakeholders in
promoting child justice.
•As provided for in Section 91 (9) of the Children’s Act Cap 59, a juvenile
offender where applicable and by the approval of the Probation and Social
Welfare officer, can hand over the child offender to a Fit person for custody as
an alternative to remand.
 Who can be chosen to be trained as a Fit
Person?
 A person of integrity
 A person with fixed place of abode in the targeted area
 A person with no criminal record
 A person who has worked in the area of child justice
 A person the community can rely on in terms of availability
• A person with energy to move within the community to follow up cases
 A person with minimum education to be able to register cases and write
reports.
 A person with leadership qualities
 A person who is willing to volunteer to serve the community
 A person who is exemplary to the community
 He or she must be recommended by the Local council leader of the area
 Procedure for the selection of fit
persons
1. The Chief Administrative Officer authorizes the Probation and Social
Welfare Officer to carry out the process.
2. The PSWO conducts the Community Development Officers who in turn asks
the community to select the persons who fall in the categories above.
3. Since the aim of diversion is to prevent the number of child offenders
entering into the justice system, it could be ideal to first select fit persons
from areas prone to juveniles’ criminal offences.
4. Fit Persons upon being selected, are taken through a training of juvenile
justice, life skills, counseling and Diversion among others.
5. The Fit Persons after the training will be commissioned by the Courts of
Law.
 Peer Leaders
•Peer leaders are children below the age of 18 years, selected in the same way as
that of the fit persons and possessing the same qualities as those of the fit
persons. Normally, every fit person is to have a peer leader.
•Why Peer Leaders?
 Usually children trust more their fellow children than adults. It is also
because these children have common interest, playing areas and games
where they can meet and be able to advice one another.
 Peer leaders are trained to become leaders and actors in the juvenile justice
but they are not commissioned by the court.
 STAKEHOLDERS INVOLVED IN THE
DIVERSION PROCESS

As per the Police Diversion Guidelines 2019, these include;

 Father or mother of the child,

 The Magistrate,
 The Prosecutor,
 The Police,
 Probation and Social Welfare Officer,
 The Fit Person
 Peer Leaders
 Guardian or any adult charged with responsibility to protect and take care of
the child as the primary caregiver,
 The community
 Chief Magistrate:

 In charge of appointing and commissioning the Fit Persons

 Charged with taking disciplinary action of any of the stakeholders.
 Receives and advises on progress reports from the Fit Persons
 Magistrate Grade 1:

 Supervises police and ensures that juveniles are not being kept in custody
with adult offenders.
 To make on spot-checks at the police station.
 Handle cases for children who are in conflict with the law.
 To advise Fit Person on issues of juvenile justice.
 Ensure that first time juvenile offenders from selected LC1 zone are not
dragged in to the formal justice system.
 Keep records of the type of cases committed by the juveniles coming
through the courts.
 Liaises closely with the Prosecutor, Probation and Social Welfare Officer and
legal representative in diverting cases for Juvenile offenders.
 Prosecutors:

 Ensure that cases of juvenile offenders are diverted.

 To receive juvenile cases and present them in court.
 To make a record of the cases being diverted from the
formal justice sector.
 To liaise with the fit persons in respect of the case
information.
 Police:
 They are expected to inform Fit Persons, PSWOs or a
LAC Officer once a juvenile is arrested.
 Coordinate with the Fit Persons to ensure release of the
child offenders.
 Ensure that either parent/guardian is informed about the
arrest of their child.
 Ensure the police diversion form is understood and
signed.
 Ensure that cases of juvenile offenders are diverted.
 Probation and Social
Welfare Officer (PSWO):
 Liaise with the Fit Persons when handling cases for
juveniles in court
 Endeavor to carry out social inquires in order to support
cases of diversion
 Present technical advice on juvenile cases in court
especially if there are no fit persons or legal
representative present.
 Keep a record of all cases diverted.
 Parents/ guardians:

 Parents/guardians participation in program is critical for

its success.
 Cooperate with fit persons.
 Provide support and ensure that the child offender attends
counseling and training sessions.
 Cooperates with all law enforcement officers engaged on
the program
 Fit Persons:
 They are supposed to check police registry every day to determine the
number of juveniles in police custody.
 Assist the juvenile offenders get police bond.
 Assist local council committees in investigating juvenile cases.
 Coordinate with LAC in ensuring rehabilitation of the juvenile
 Train the juvenile in life and relationship skills.
 Counsel the juvenile’ parents/guardians.
 Attend coordination meetings.
 To determine youth offender needs and devise case strategy/plan.
 To prepare periodic reports to LAC.
 To report progress of activities to the Court and Local Council Committees.
 Peer Leaders:
 To report progress of activities to the Local Council
Committee
 To keep a close lookout for juvenile offenders.
 To counsel and advise juvenile offenders.
 To assist them in the reintegration process in their
homes/communities.
 To liaise their activities with the fit persons.
 To introduce juvenile offender to CAR groups.
 To link the juvenile offender with local council
authorities or Fit Persons
 Child Action Research Groups:

 The members of the CAR will encourage the juveniles to

join the child action research groups in their zone.
 The members will assist juvenile offenders to learn new
skills.
 The members will encourage juvenile offender to
participate in club activities.
 The CAR will also monitor juveniles’ behavior
 The CAR will report to Fit Persons/LC about the
juvenile’s behavior.
 Legal Aid Clinic:
 The legal aid clinic is charged with the overall
coordination of the program.
 It facilitates all the program meetings
 It assists in any logistical support required to facilitate the
stakeholders in the program.
 It writes periodic reports to JLOS and juvenile justice
committee.
 It provides continuous training to the stakeholders
 Child offender:
 The child offender is given the choice to decide to be
diverted from the formal justice system.
 To learn new life and relationship skills
 To learn how to respond in different situations.
 To participate in child action research groups.
 To attend all counseling sessions arranged by the Fit
Persons.
 To cooperate with the peer leaders when called upon to
participate in various activities of the CAR groups.
 Benefits of Juvenile Diversion

 Diversion ensures that solutions are in the best interest of the child as going
through the formal justice system intimidates and exposes them to trauma
while incarceration exposes them to other vices.

 Diversion considers the psychological needs of the juvenile).

 It also avoids the mixing up of children with senior criminals

 Allows expeditious handling of child related cases and reduces case backlog
in the courts
 Diversion is less costly

 Seeks local solutions for the benefit of child offenders, the community and
restores community confidence in the formal justice system.

 Diversion helps in avoiding unnecessary deprivation of liberty of the child,

loss of education opportunities by the offending child, child is taken back to
the community and there is disruption of family ties.
 Disadvantages/Challenges
• Its not applicable to aggravated offences
• Funding to ensure successful implementation of the Program
• Habitual juvenile offenders do not benefit from diversion