TUMAINI UNIVERSITY OF DAR ES SALAAM COLLAGE (TUDARCo)

SCHOOL OF LAW AND JUSTICE (SOLJU)

EFFECTIVENESS OF THE LAW IN PROTECTING JUVENILE OFFENDERS

DURING DETENTION

PREPARED

BY

DONNY G. MBENA

REG NO: TU/DARCO/LLB/020/229

UNDER SUPERVISION

OF

MADAM IRENE LULU NYANGE

Compulsory Research to be submitted in Partial Fulfillment for the Requirements

of the Awards of Bachelor Degree of Laws (LLB) of Tumaini University Dar es

Salaam College (TUDARCo)

2023

i
 CERTIFICATION

I, the undersigned certify that, I have read this work and hereby recommend for

acceptance by the Tumaini University Dar es Salaam College a research paper titled “The

Effectiveness of the Law in Protection of Juvenile Offenders During Detention” in

partial fulfillment of the requirements for an award of the degree of bachelor of laws of

Tumaini University Dar es Salaam College (TUDARCo).

Signature

………………………...

Madam Irene Lulu Nyange

Supervisor

Date ………… day of……………………2023

i
 DECLARATION

I, DONNY G. MBENA, do hereby declare that this research paper is my own original

work and it has not been submitted for a similar or any other degree in any other university

prior to this date of submission at Tumaini University Dae es Salaam College

(TUDARCo).

Signature

……………………….

DONNY G. MBENA

Date ………… day of………………….2021

ii
 COPYRIGHT ©

This Report is a copyright material protected under the Berne Convention of 1886,the

Copyright and Neighboring Rights Act, No.7 of 1999 [CAP 218 R.E. 2002] and any other

relevant laws on intellectual property. It may not be produced by any means in full or in

part, except for short extracts in fair dealings, for research or private study, critical

scholarly review or discourse with an acknowledgement, without the prior permission of

the author or Tumaini University Dar es Salaam College on that behalf.

© DONNY G. MBENA,

TUMAINI UNIVERSITY,

JUNE, 2023

iii
 DEDICATION

This work is dedicated to my family for their great love, support, motivation and

inspirations in my academic achievement, and also my relatives and friends for their

unconditional support.

iv
 ACKNOWLEDGEMENT

Firstly I am so grateful to the Almighty God the Supreme that I adore and who tender

Mercy and gracious favor has, in various ways made this work possible, and gave me

strength that kept me going during my three academic years.

I am indebted to a great number of people who aided me to write this work. I would be

very dishonest if I would not recognize their constructive guidance, moral and material

support towards completion of this study.

I sincerely would like to express my deepest gratitude to my supervisor Madam Irene Lulu

Nyange, for her intellectual advises, guidance, cooperation, encouragement, regular

discussions and constructive criticisms that has made this work to be the way it is. May

the Almighty God bless you.

Lastly, I appreciate the contributions of all other persons and my who have contributed in

one way or another in making this study successful.

v
 LIST OFABBRIVIATIONS

ACRWC African Charter on the Right and Welfare of the Child

Cap Chapter

CRC Convention on the Rights of the Child

CYPA Children and Young Persons Act

ICCPR International Convention on Civil and Political Rights

RE Revised Edition

UDHR Universal Declaration of Human Rights

UNCRC United Nation Convention on the Right of the Child

UNICEF United Nations Children Fund

vi
 LIST OF INTERNATIONAL LEGAL INSTRUMENTS

African Charter on Human and Peoples Rights (‘Banjul Charter’), 27 June 1981,

CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into Force 21 October 1986 (ACHPR)

African Charter on the Right and Welfare of the Child, 11 July 1990, CAB/LEG/24.9/49

(1990) (ACRWC)

International Convention on Civil and Political Rights, 16 December 1966, United

Nations, Treaty Series, Vol.999, p.171, adopted by UN General Assembly Resolution

2200A (XXI) of 16 December 1966, entered into force 23 March 1976 (ICCPR)

The UN Convention on the Rights of the Child (CRC) was adopted by the UN General

Assembly on the November, 1989 in recognition by the International Community of the

need for enhancing special safeguard and care for children, particularly by putting in place

appropriate legal protection for children

vii
 LIST OF LOCAL LEGISLATIONS

Criminal Procedure Act, 1985

The Children and Young Person Ordinance, [Cap 58 of 1933]

The Law of the Child (Juvenile Court Procedure) Rules, G.N. 182 of 20thMay, 2016

The Law of the Child Act [Cap 13, RE 2019]

viii
 ABSTRACT

The phrase which states that Juvenile Offenders tend to deal with any person who is below

the age of eighteen years accused of committing a crime. International laws have

established some principles and standards to be complied with by State when dealing with

juvenile offenders. This study investigated basing on how the effectiveness of the law in

protecting juvenile offenders during detention, by looking on international instruments,

regional instruments and domestic laws. The research paper found that Tanzania has

complete piece of legislation that to the large extent reproduce the requirements of

international law on issue of protection of juvenile offenders during detention or when

they under police detention. Although, it’s clearly that there is no implementation of the

laws in Tanzania on the right of juvenile offender to be detained in a separate room from

that of an adult offender during detention or when under police custody. The municipal

law under the provision of section 102 of the Act of the Law of the Child Act, [Cap. 13

R.E 2019], it directs that such child should be detained in a separate room from that of an

adult offender in which even the international instruments and regional instruments states

the same example in Article 17(2) (b) of the ACRWC, also under Article 37 (b) of the

CRC they state that the juvenile offender should be detained in a separate room from adult

offender during detention. Also this study put some recommendations including

improving awareness of the people on juvenile justice, training the experts specialized on

children matters, establishment of remand homes, implementation of the Law of the Child

Act, Penal Code, Criminal Procedure Act and the international and regional instruments

in which we have ratified.

ix
Table of Contents
CERTIFICATION .......................................................................................................................... i

DECLARATION ........................................................................................................................... ii

COPYRIGHT ©............................................................................................................................ iii

DEDICATION .............................................................................................................................. iv

ACKNOWLEDGEMENT ............................................................................................................. v

LIST OFABBRIVIATIONS ......................................................................................................... vi

LIST OF INTERNATIONAL LEGAL INSTRUMENTS ........................................................... vii

LIST OF LOCAL LEGISLATIONS .......................................................................................... viii

ABSTRACT.................................................................................................................................. ix

CHAPTER ONE ............................................................................................................................ 1

GENERAL INTRODUCTION ...................................................................................................... 1

1.1 Introduction .............................................................................................................................. 1

1.2 Back ground of the problem..................................................................................................... 2

1.3 Statement of the problem ......................................................................................................... 4

1.4 Literature review ...................................................................................................................... 5

1.5 Hypothesis of the study ............................................................................................................ 8

1.6 Significance of the study .......................................................................................................... 9

x
1.7 General Objective of the study................................................................................................. 9

1.7.1 Specific objectives ................................................................................................................ 9

1.8 Research methodology ........................................................................................................... 10

1.8.1 Research Design.................................................................................................................. 10

1.8.2 Sampling Technique ........................................................................................................... 11

1.9 Methods of Data Collections.................................................................................................. 11

1.9.1 Primary Method .................................................................................................................. 11

1.9.2 Secondary Method .............................................................................................................. 11

1.10 Data analysis ........................................................................................................................ 12

CHAPTER TWO ......................................................................................................................... 13

LEGAL AND INSTITUTIONAL FRAMEWORK GOVERNING PROTECTION OF

JUVENILE OFFENDERS WHO ARE UNDER DETENTION ................................................. 13

2.0 Introduction ............................................................................................................................ 13

2.1 International legal and institution framework ........................................................................ 13

2.1.1 Legal frame work ................................................................................................................ 13

2.1.1.1The United nation Convention on the Right of the child (CRC) ...................................... 14

2.1.1.2 Universal Declaration of Human Rights (UDHR) ........................................................... 14

2.1.2 Institution frame work......................................................................................................... 15

2.1.2.1 United Nations Rules for the Protection of Juveniles Deprived of their Liberty ............. 15

2.1.2.2 United Nations Convention on the Rights of the Child ................................................... 15

xi
2.1.2.3 European Convention on Human Rights.......................................................................... 16

2.1.2.4 Inter-American Convention on the Human Rights of Children ....................................... 16

2.2 Regional Legal and Institutional framework ......................................................................... 16

2.2.1 Legal Framework ................................................................................................................ 16

2.2.1.1 The African Chatter on the Right and Welfare of the Child (ACRWC) ...................... 16
2.2.2 Institutional framework ....................................................................................................... 17

2.2.2.1 The African Child Policy Forum (ACPF) ........................................................................ 17

2.2.2.2 The African Network for the Prevention and Protection against Child Abuse and Neglect

(ANPPCAN) ................................................................................................................................ 17

2.2.2.3 The African Committee of Experts on the Rights and Welfare of the Child (ACERWC)

..................................................................................................................................................... 18

2.3 Domestic legal and Institutional framework .......................................................................... 18

2.3.1 Legal frame work ................................................................................................................ 18

2.3.1.1 The Constitution of United Republic of Tanzania of 1977 .......................................... 18

2.3.1.2 The Law of the Child Act ............................................................................................ 20
2.3.2 Institutional framework ....................................................................................................... 20

2.3.2.1 The Juvenile Court ........................................................................................................... 20

2.3.2.2 Approved Schools ........................................................................................................ 21

2.4 Conclusion ............................................................................................................................. 21

CHAPTER THREE ..................................................................................................................... 22

DATA PRESENTATION, ANALYSIS AND DISCUSSION OF FINDINGS .......................... 22

3.1 Introduction ............................................................................................................................ 22

xii
3.2 Presentation of Findings (Data) ............................................................................................. 23

3.3 Analysis and Discussion of research findings ........................................................................ 23

3.3.1 How effective the law is in protecting juvenile offenders during detention? ..................... 23

3.3.2 What should be done to protect juvenile offenders during detention?................................ 26

3.3.2.1 Knowledge to be provided to the police officers who are responsible in dealing with
juvenile offenders..................................................................................................................... 26
3.3.2.2 Build detention facilities .............................................................................................. 27
3.3.3.3 Providing education to the public at large.................................................................... 28
3.3.3.4 To ensure there is enforcement of the law ................................................................... 28
3.4 Challenges facing juvenile offenders during detention .......................................................... 28

3.4.1 Apprehension procedures are not fully implemented ......................................................... 28

3.4.2 Children are thrown in cells with adults and produced in court as if they were adults ....... 29

3.4.3 Age determination procedures are not adhered to............................................................... 29

3.5 Lessons from other jurisdiction in relation to the protection of juvenile offers during detention

..................................................................................................................................................... 29

3.5.1 Kenya .................................................................................................................................. 29

3.5.2 Uganda ................................................................................................................................ 31

3.5 Conclusion ............................................................................................................................. 31

CHAPTER FOUR ........................................................................................................................ 33

SUMMARY OF FINDINGS, CONCLUSION AND RECOMMENDATIONS ........................ 33

4.0 Summary of findings.............................................................................................................. 33

4.1 Conclusion ............................................................................................................................. 33

xiii
4.2 Recommendations .................................................................................................................. 34

BIBLIOGRAPHY ........................................................................................................................ 37

xiv
 CHAPTER ONE

GENERAL INTRODUCTION

1.1 Introduction

Protection of children has been a growing legal concept. Although the movement cover a

wide range of children’s rights, it has been extended to cover situations where a child is

in conflict with law. To deal with juvenile offenders need infinite patience, infinite

wisdom, care and infinite experience.1 A juvenile offender may, as it is for adults, be

apprehended and put under police custody. Of their nature, being children, they deserve a

special care while in remind including a state of cells to which a child may be inserted in

and who should a child be put together with.2

The law on this area categorically provide that, if a child is detained of a crime, then the

police officer shall make arrangements for preventing the child, so far as practicable, a

child while in custody, from associating with an adult charged with an offence. The law

provide for an exception if that adult person is a relative to a child.3 Although the law is

couched in a way to protect those juvenile offenders against tribulations which may be

influenced with a sense of associating them with adult offenders, yet the implementation

1
The United Nations Children's Fund (UNICEF), Justice for Children: Detention as a Last Resort:
Innovative Initiatives in the East Asia and Pacific Region, at p.62, available at
https://www.unicef.org/spanish/protection/files/Justice_for_Children_Detention.pdf.
2
Penal Reform International, (2013) Protecting children’s rights in criminal justice systems: A training
manual and reference point for professionals and policymakers, London: United Kingdom, at p.95,
available at https://cdn.penalreform.org/wp-content/uploads/2013/11/Childrens-rights-training-manual-
Final%C2%ADHR.pdf.
3
See section 102 of the Law of the Child Act [Cap. 13 R.E 2019].

1
of this law has been in question. Literature on the area presents that juvenile offenders are

still associated with adult offenders while in detention.4

This study is focused on the effectiveness of the law in protecting juvenile detained

offenders. The state of juvenile offenders being associated with adult offenders attracted

this study. The law on protection of juvenile offenders employ good provisions restricting

such association, however, there has been impediment in implementation of the law.

1.2 Back ground of the problem

Legal regime on ‘a child’ has been leveled in a way to meet their best needs. It is clear

that all children in Tanzania, as it is in the globe, are given special care even those who

are in conflict with the law who are termed as juvenile offenders. Juvenile offenders when

are detained by police officer or are under police custody in remand they have to be

detained in a separate cells with adult offenders or juveniles who have already been

detained. The question of juvenile offenders’ protection in a way to deter their association

with adult offenders has a long history in Tanzania’s legal set up, from a sense of no

protection to a point of recognition of such protection in the law.

On the early years before colonialism there was no law covering the aspect of juvenile

offenders.5 Children continued to increasingly experience unbearable abuse and

4
The Commission for Human Rights and Good Governance, (2011) Inspection Report for Children in
Detention Facilities in Tanzania, June, 2011, at p. 10, available at
http://www.ipjj.org/fileadmin/data/documents/reports_monitoring_evaluation/CHRAGG_InspectionChild
renDetentionTanzania_2011_EN.pdf.
5
Rios-Kohn, R., “Comparative Study of the Impact of the Convention on the Rights of the Child; Law
Reform in Selected Common Law Countries.” In United Nations Children Fund (UNICEF), protecting the
World’s Children; Impact of the Convention on the Rights of the Child in Diverse Legal System. New York:
Cambridge University Press, 2007, pp.34-99, p.39.

2
exploitation, the world community realized the need to have specific legal protection

mechanism for children.

In Tanzania, protection of juvenile offenders began in 1933, brought in via the Children

and Young Persons Ordinance.6 This law was a received law brought in by Britain in

Tanzania, by then Tanganyika. This ordinance was a replica and a product of the English

Act, Cap 58 which had provision for protection of persons under the age of sixteen years

and for the procedure at trial of such persons on criminal charges. In 1937 the ordinance

was changed to the Children and Young Persons Act.7 This Act laid down procedures on

dealing with juvenile offender including a right of not being associated with adult

detainees in cells. According to section 22 (3)8 a young person, in dealings with the police

and in prisons if sentenced to imprisonment, ought not to associated with adults. This law

recognized a need of juvenile offender to be detained in separate cells from adult

offenders. Although this law was appropriately couched, yet juvenile offenders were still

associated with adult offenders. The Young Children and Young Persons Act9 existed in

operation until it was replaced in 2009 via the Law of the Child Act.10

The new law which is the Law of the Child Act, incorporated several rights relevant to

children including those relevant to juvenile offenders. This Act under section 102

provided categorically that that arrangement shall be done by police officers as far as

6
Cap 58 of 1933.
7
[Cap. 13 of 1937].
8
Ibid
9
ibid
10
See section 160(1) of the Law of the Child Act, [Cap.13 R.E 2019].

3
practicable preventing a child while in custody from associating with adult charged with

an offence unless he is a relative.11 Although the law is couched in clear terms to protect

juvenile offenders, yet juvenile offenders are associated with adult offenders. 12 This

impression subjects implementation of this law in question.

1.3 Statement of the problem

Protection of children’s rights is a global phenomenon. The penal laws of the land allow

a child in conflict with law to be arrested, remanded in police lock-up and to be taken to

the court to face charges, convictions of which a child may be sentenced to

imprisonment.13 Amid that general position of penal laws, the law affords right to juvenile

offenders, during remand, to be set in separate cells from adult offenders.

Section 102 of the Law of the Child Act,14 provide that when a child offender is put in

remand he or she should be in separate cell from adult offender unless he is charged with

his relatives. Although the law affords this protection to juvenile offender yet this has not

been realized to fullest in practice. Implementation of this provision has proved

inadequacy. Available literature suggest that still juvenile offenders are still set same cells

with adult offenders while in remand.

11
The Law of the Child Act, [Cap.13 R.E 2019]
12
The Commission for Human Rights and Good Governance, (2011) Inspection Report for Children in
Detention Facilities in Tanzania, June, 2011, at p. 10, available at
http://www.ipjj.org/fileadmin/data/documents/reports_monitoring_evaluation/CHRAGG_InspectionChil
drenDetentionTanzania_2011_EN.pdf.
13
Rule 22, the Law of the Child, (Juvenile Court Procedure) Rules, G.N. No. 182 of 20 th May, 2016, S. 56
(1), Criminal Procedure Act, 1985 and S. 31 (3), the Police Force and Auxiliary Service Act, 1961.
14
[Cap.13 R.E 2019].

4
1.4 Literature review

This Chapter clearly explains on all academic materials which have been accessed in the

completion of this study and most of these academic materials expresses the views and

ideas of different authors. A number of people have written on the subject worldwide, but

none of them has stated or dealt with the specific problem in Tanzania, as no one has really

shown as to why the specific institution such as police stations fail to abide with the right

of the juvenile offender to be separated from the adult offenders in detention or when in

police custody and no one has stipulated or suggested what should be done so as to abide

to the right of that juvenile offender

CRC Committee, No 10 in the General Comment on their report,15 they have shown

clearly and stated that there is abundant evidence that the placement of children in adult

prisons compromises their basis safety, well-being and their future ability to remain free

of crime and to reintegrate. The committee recommended that states should establish

separate facilities for children deprived of their liberty, which include distinct, child-

centered staff, personnel, policies and practices and they should be held separately from

convicted children as shown under Article 10 (2) of the ICCPR, of 1966. Therefore the

committee has considered the right of the juvenile offender to be detained in a separate

room from adult offenders and children who have been already convicted but they did not

15
Commission for Human Right and Good Governance Inspection Report for Children in Detention
Facilities in Tanzania, June 2011.

5
show the reason to why those children are not detained in separate rooms or cell when in

detention and what should be done to abide with the right.

Mutembei I.B16, has discussed on juvenile offenders before the court and observed that

in Tanzania Mainland, Juveniles are denied their right in respect of what should be done

under the Children and Young Person Ordinance. Example in Section 5 of the Act17, which

provides that juvenile offenders should not be locked together with the adult criminals,

but in practice or in enforcement of the law this is not followed. The child offenders are

locked together with juvenile offenders who have already been convicted or adult

criminals. The author did not write on the reasons as to why still juvenile offenders are

still locked together with adult offenders when they are in detention and what should be

done to overcome such problem and to ensure the laws are implemented.

Christina S. Maganga18, has talked about the administration of juvenile justice in

Tanzania in which has shown that there is a remarkable development in area of juvenile

justice as society at large aims to find suitable solutions to deal with juvenile offenders or

delinquents. At the international levels such measures, usually adopted by governments

aim at creating a framework of additional protection conducive to children wellbeing19

and adheres to proper recognition on the special needs and universality of children as

16
Mutembei I.B, (1998) Juvenie Offenders before the Court, LL.M Dissertation, University of Dar es
salaam.
17
Children and Young Persons Act, [Cap.13 R.E 2002]
18
Christina. M, (2005) Administration of Juvenile Justice in Tanzania, LL.M Dissertation, Lund University
(Raoul Wallernberg Institute of Human Rights and Humanitarian Law).
19
The UN Convention on the Rights of the Child (CRC) was adopted by the UN General Assembly on the
November, 1989 in recognition by the International Community of the need for enhancing special safeguard
and care for children, particularly by putting in place appropriate legal protection for children.

6
human beings. This was in 1990 when the UN Convention on the Rights of the Child came

into force and Tanzania has ratified the same in 1991. But she did not show on how or

what is to be done so as to ensure the rights of the juvenile offender are attained such as

that of separating juvenile offenders from adult offenders during detention or juveniles

who have already been convicted and what facilities should be employed to juveniles

when they are apprehended.

Anderson. K,20 The author explained the extent and nature of child offending in Tanzania,

along with the characteristics of child offenders and risk factors for child coming into

conflict with the law, capacity and coordination of juvenile justice institutions, children

who are exposed to the criminal justice system including treatment of children below the

minimum age of criminal responsibility, arrest procedures and implementation of

children’s rights during arrest and police detention. Although the author tried to explain

on the challenges facing juvenile offenders but did not cover for the effectiveness of the

law in protecting juvenile offenders during detention. Thus, necessary for the conduct of

this study.

Commission for Human Rights and Good Governance, 21 this report has shown the

legal framework for juvenile offenders through showing the international instruments,

regional ones and domestic ones which are used in protection of juvenile offenders in

detention and said that detention to juvenile should be of last resort and that children

20
Anderson. K, (2012) Analysis of the situation of children in conflict with law in Tanzania
21
Inspection Report for Children in Detention Facilities in Tanzania, of June 2011.

7
should be detained in different rooms from adult offenders. But they haven’t shown on

what should be done to ensure that the juvenile offenders right to be detained in separate

room from adult offender when in detention or police custody or remand is implemented

or enforced. Also it has shown the type of detention facilities in Tanzania to be such as

police station, prisons, retention homes and approved schools. In spite of the Law of the

Child Act, children are still committed to adult prisons by courts. In which it creates

significant problems since there is no Law that is governing treatment of children held in

adult prisons and prisons are not set up to meet the specific needs of under eighteens.

Although the Law of the Child Act provides for non-custodial sentences for children, in

practice these are not available owing to a significant shortage of probation officers and

social welfare officers.

The Tanzania Women Lawyers Association known as TAWLA,22 on their report they

have talked about the evolution of juvenile justice in Tanzania and showed on how the

law is practiced on procedures. But they have not showed on why when a child is detained

is not kept in separate room from adult offenders. As to why we lack the special facilities

of handling a juvenile offender from the time when the child is apprehended.

1.5 Hypothesis of the study

This research hypothesis is that the laws providing protection to the juvenile offenders are

not effective.

22
An Analysis of the Situation of Children in the Juvenile Justice System in Tanzania, Report written by;
Jones John, Adv. LLB (Hons) (Dar); Msc.DPPCS (Brad); BSC-PDIA (Harv.) @Tanzania Women Lawyers
Association, 2018

8
1.6 Significance of the study

Because laws governing the protection of juvenile offenders is important, this study has

the following significance.

The study will be useful to the law and policy makers and these who are responsible to

enforce these the laws, under the sense that will look for amendments from the areas needs

amendments in existing law.

Also the study will be used as a reference for academic matters by various academician

about the protections of juvenile offenders. Professionals and non-professionals will be

able to use this study as reference for academic purposes.

The study also will help the public to understand on how the juvenile offenders should be

protected. Juvenile offenders have the same human rights as any other individual

including the right for protection and by protecting them ensures that their rights are

upheld.

1.7 General Objective of the study

The general objective of this study is to assess the effectiveness of the law in protecting

juvenile offenders during detention.

1.7.1 Specific objectives

i. To examine the legal and institutional framework regulating protection of juvenile

offenders in detention.

9
 ii. To identify challenges relating to the implementation of the law regulating juvenile

offenders.

iii. To identify best practices from other jurisdictions.

iv. To make recommendation to protect juvenile offenders during detention.

1.8 Research methodology

This study will adopts qualitative legal research which employs doctrinal legal research.

The current study employs purely doctrinal research methodology with the view of

understanding a research problem with the reasons behind it. The approach and choice of

methods will be used in this research will depend on the nature of the study and the type

of data required. Doctrinal research involves review of legal text books, articles, and

journal. Also will employ documentary method where secondary data will be collected by

consulting books and online materials whereas this method will be used to examine

various scholarly writings on matters concerning effectiveness of the law governing

juvenile offenders in Tanzania.

1.8.1 Research Design

The design of the research will base on qualitative legal research. Because qualitative data

analysis is typically about relationship between variables or concepts that focus on

meaning and interpretation, and also qualitative recognizes that law is reasoning and not

found.

10
1.8.2 Sampling Technique

The research has included the purposive sampling techniques. The researcher selected the

specialized and experienced people on the effectiveness of the law in protecting juvenile

offenders during detention including Resident Magistrate, police officer and prisoner

officers.

1.9 Methods of Data Collections

The researcher will be able to obtain secondary and primary data. Secondary source means

data, which are already available; they refer to the data, which have already collected, and

analysis by someone else. The researcher will able to utilize the secondary data; the

secondary data may be either published data or unpublished data. The researcher will use

published data; include books, journals, articles, and dissertation as well as internet

materials.

1.9.1 Primary Method

Under this part the researcher will invoke different methods of obtaining first-hand

information the field, for instance the use of interview, the essence of this methods is to

get accurate and relevant information which will be reliable on effectiveness of the law

governing juvenile offenders in mainland Tanzania.

1.9.2 Secondary Method

The researcher will employ documentary review under these methods whereby she will

make a review on already available documents like published and unpublished, books,

journals, articles and report all of this effort is to make should accurate and relevant

11
information in relation to the researcher objectives and research hypothesis are early

obtained.

1.10 Data analysis

The researcher will use qualitative data analysis as a process in which data that have been

collected as part of research study is moved and be used to provide explanations,

understanding and interpretations of phenomena, people and situations which are

studying. The researcher will use this type of data analysis because it provides depth and

details.

12
 CHAPTER TWO

LEGAL AND INSTITUTIONAL FRAMEWORK GOVERNING PROTECTION

OF JUVENILE OFFENDERS WHO ARE UNDER DETENTION

2.0 Introduction

This chapter is based on legal framework regarding on protection of juvenile offenders

who are under detention. In aspect of protection of juvenile offenders who are under

detention this part the researcher analyses various national, regional and international

instruments regarding protection of juvenile offenders who are under detention. This part

of research is important as far as legal research is concerned because it discusses the laws

governing protection of juveniles who under dentation and international instruments, also

this chapter will look for the infectiveness of the existing laws.

2.1 International legal and institution framework

2.1.1 Legal frame work

States have responsibility to exercise their duty on protecting juvenile offenders during

detention, they are obliged to formulate policies and enact laws that uphold the rights of

the juvenile offenders during detention. All states that have ratified these treaties have

responsibility to ensure that their national laws. The state must act by all appropriate

means, to give effect their international legal obligations at the national level. More

specifically, international laws and policy frameworks should respect the rights and

guarantees are entitled under international law, they should be consistent the states

international legal obligations.

13
2.1.1.1The United nation Convention on the Right of the child (CRC)23

Under this convention in which Tanzania has ratified it, in Article 1, it has defined a child

to be a person below the age of eighteen years old. In Article 3(1), it states that in all

actions concerning a child the responsible authority such as institutions and courts of law

should consider the best interest of the child. Under Article 37(b), it states that child’s

liberty shall not be deprived unlawfully or arbitrarily. Arrest, detention or imprisonment

to a child should be of the last resort and for the shortest appropriate period of time. And

in Article 40, it shows different rights of a juvenile offender in which one among the right

is that a juvenile offender should be detained in a different detention room from adult

offenders. Through the virtue of this convention we see that it provides a legal framework

on protection of juvenile offenders.

This international instrument recognizes a juvenile offender and stipulates directly that a

juvenile offender needs special care when in remand or during detention and that juvenile

offender should be detained into separate room from adult offenders during detention in

which on the implementation of that law its where the impediment arises as there is no

effectiveness of the law in Tanzania due to various factors.

2.1.1.2 Universal Declaration of Human Rights (UDHR)24

According to Article 7 it provides that all are equal before the law and are entitled without

any discrimination to equal protection of the law. All are entitled to equal protection

23
Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20
November 1989. Entry into force 2 September 1990, in accordance with Article 49.
24
Universal Declaration of Human Rights, 1948

14
against any discrimination in violation of this Declaration and against any incitement to

such discrimination. Article 8 provides that everyone has the right to an effective remedy

by the competent national tribunals for acts violating the fundamental rights granted him

by the constitution or by law. And also Article 9 provides that no one shall be subjected

to arbitrary arrest, detention or exile. Further, Article 10 provides that everyone is entitled

in full equality to a fair and public hearing by an independent and impartial tribunal, in

the determination of his rights and obligations and of any criminal charge against him.

2.1.2 Institution frame work

2.1.2.1 United Nations Rules for the Protection of Juveniles Deprived of their

Liberty

These rules were adopted by the United Nations General Assembly in 1990 and provide a

set of guidelines for the treatment of juveniles who are deprived of their liberty. The rules

aim to ensure that juveniles are treated with humanity and respect for their dignity, and

that their rights are protected during detention.

2.1.2.2 United Nations Convention on the Rights of the Child

This convention, adopted by the United Nations General Assembly in 1989, sets out the

rights that must be afforded to all children, including juvenile offenders. The convention

states that children who are deprived of their liberty must be treated with humanity and

respect for their dignity, and that their best interests must be the primary consideration in

all actions concerning them.

15
2.1.2.3 European Convention on Human Rights

The European Convention on Human Rights, adopted in 1950, protects the rights of all

individuals within the jurisdiction of the Council of Europe. The convention includes

provisions that protect the rights of juvenile offenders, including the right to be free from

torture and inhuman or degrading treatment, and the right to a fair trial.

2.1.2.4 Inter-American Convention on the Human Rights of Children

This convention, adopted by the Organization of American States in 1990, sets out the

rights that must be afforded to all children in the Americas, including juvenile offenders.

The convention includes provisions that protect the rights of children who are deprived

of their liberty, including the right to be treated with humanity and respect for their

dignity, and the right to education and vocational training.

2.2 Regional Legal and Institutional framework

2.2.1 Legal Framework

As the observation at international level, there is regional legal instrument putting into

place to ensure that there is protection of juvenile offender during detention.

2.2.1.1 The African Chatter on the Right and Welfare of the Child (ACRWC)25

This is one among the regional instruments in which it protects the rights and welfare of

a juvenile offender, when we look on Article 2, a child is defined to be a person below

the age of eighteen years old. In Article 17, it talks about administration of juvenile

25
Organization of African Unity, African Charter on the Right and Welfare of the Child, 11 July 1990,
CAB/LEG/24.9/49 (1990) (ACRWC)

16
justice, where here a juvenile offender has different rights in which one among the right

is that a juvenile offender should be detained in a different detention room from adult

offender and it’s stipulated in Article 17(2) (b) of the charter.

Since this instrument also covers the same like the international instrument it means that,

Tanzania has a duty to abide with what is stated in these agreements and to ensure that

there is active implementation of the laws by observing possible ways to be done so as to

overcome the impediments on implementation of the laws.

2.2.2 Institutional framework

2.2.2.1 The African Child Policy Forum (ACPF)

ACPF is a pan-African research and policy institute that promotes child rights and welfare

across Africa. ACPF works with governments, civil society organizations, and other

stakeholders to develop policies and programs that protect the rights of children, including

those in conflict with the law.

2.2.2.2 The African Network for the Prevention and Protection against Child Abuse

and Neglect (ANPPCAN)

ANPPCAN is a regional non-governmental organization that works to prevent child abuse

and neglect in East Africa. ANPPCAN also provides support for juvenile offenders and

advocates for their rights during detention.

17
2.2.2.3 The African Committee of Experts on the Rights and Welfare of the Child

(ACERWC)

ACERWC is a specialized body of the African Union that promotes and protects the rights

and welfare of children in Africa. ACERWC works with governments, civil society

organizations, and other stakeholders to develop policies and programs that protect the

rights of children, including those in conflict with the law.

2.3 Domestic legal and Institutional framework

2.3.1 Legal frame work

The primary responsibility for protecting juvenile offenders during detention rests with

the national authorities of the country. Juvenile offenders during detention or when they

are in remand they do require special care and most of all they do need to be detained in

a separate room from adult offenders, where as our national legislations do recognize those

rights and as shown above the international and regional instruments do recognize those

rights of juvenile offender during detention in which there is impediment on the

implementation of those rights.

2.3.1.1 The Constitution of United Republic of Tanzania of 197726

The Constitution is the supreme law of the land where basic rights and duties are normally

contained in the Constitution of a country which is the basic law of the land to which all

other laws should conform. That part of the Constitution in which these rights and duties

26
The Constitution of United Republic of Tanzania of 1977

18
are placed is called the Bill of Rights. In most countries this part is entrenched. It means

that the parliament cannot change the provision of this party in any way it desires.27

According to Article 1228 it provides that all human beings are born free and all are equal

and also provides that every person is entitled to recognition and respect for his dignity.

Also Article 1329 it provides that all persons are equal before the law and are entitled

without any discrimination to protection and equality before the law and also provides that

no law enacted by any authority in the United Republic shall make any provision that is

discriminatory either of itself or in its effect. Further, Article 1430 it provides that every

person has the right to live and to the protection of his life by the society in accordance

with the law.

And also Article 1531 it provides that every person has the right to freedom and to live as

a freedom person and for the purposes of preserving individual freedom and the right to

live as a free person no person shall be arrested, imprisoned, confined, detained, deported

or otherwise be deprived of his freedom save only under circumstances and in accordance

with procedures prescribed by law.

27
Shivji. I. et al (2004), Constitution and Legal System of Tanzania, Dar es Salaam: Mkuki na Nyota
Publishers, p. 92
28
The Constitution of United Republic of Tanzania of 1977
29
ibid
30
ibid
31
ibid

19
2.3.1.2 The Law of the Child Act

This is among the national legislations or domestic legislation in Tanzania which protect

and safeguard the welfare of the child and it is the main legislation concerning with all

matters and affairs of a child. Under Section 4(1)32, a child is defined to be a person below

the age of eighteen years old. In Section 4(2)33, it states that in all actions concerning a

child the best interest of the child shall be primarily into consideration. In Part IX it shows

and talks about a child who is in conflict with the law where by this child is entitled into

certain rights such as a right to be detained in a separate room from adult offenders which

is enshrined under Section 10234. In which in practice it’s not maintained due to different

reasons.

Since even the domestic or national legislation recognizes the right of a juvenile offender

then what has to be done is to find proper mechanisms which will be used to eradicate

impediment on the implementation of the law.

2.3.2 Institutional framework

2.3.2.1 The Juvenile Court

The Law of the Child Act establish the juvenile court as a distinct court from existing ones

Section 97(1)35 presided over by the Resident Magistrate Section 97(3)36. The Law of

Child again allows the Chief Justice to designate any premises used by the Primary Court

32
The Law of the Child Act Cap 21 of 2009
33
ibid
34
Ibid
35
ibid
36
ibid

20
to be a juvenile court Section 97(2)37. And this court deals with the matter concerning

child offenders.

2.3.2.2 Approved Schools

These are institutions run by the state to which children in conflict with the law are

committed by the court for correction and rehabilitation, Section 22(2), 120(1) of The Law

of Child Act, for example Mbeya approved school. They are deemed under the law as

legal custody Section 126 of the Law of Child Act. The established by the order of the

Minister responsible for welfare who has also power to declare any school or institution

to be an approved school and elect the management of such institution Section 121(1) (2).

And Section 127 requires a child not to be detained beyond the date upon which he attains

the age of eighteen years.

2.4 Conclusion

The law of the child Act, it’s the main Act which regulate and protect the welfare of the

child and covering the aspect of a child who is in conflict with the law in which he is

referred as a juvenile offender. Under the law it’s clearly stated that a juvenile offender

should be detained in a separate room from adult offender and that a juvenile offender

needs special care during detention in which on the implementation of the law it is where

there is impediment. And also The Constitution of United Republic of Tanzania is the

mother law in the sense that it provides for fundamental rights and duties

37
ibid

21
 CHAPTER THREE

DATA PRESENTATION, ANALYSIS AND DISCUSSION OF FINDINGS

3.1 Introduction

In this chapter I have analyzed on how the law dealing with juvenile offenders during

detention in remand in Tanzania if it match with practice and the problem as to why

enforcement of such law is faced with impediments. There are several laws, which are

specifically related on protecting the interest of children in Tanzania. The Law of the Child

Act 38is one of them and apart from defining who the child is, it provides for procedure in

which the juvenile justice should be administered upon the suspect and convicts a juvenile.

In this chapter therefore, The Law of the Child Act39 would mostly referred for the purpose

of examining on how the effectiveness of the law in protecting juvenile offenders during

detention. Mainly the juvenile offenders are protected by different laws and international

instruments including treaties in which Tanzania is signatory to them, meaning that we

are obliged to abide ourselves and follow what is stated by the law. As it is known that a

juvenile offender has the right to be detained into a different room from that of adult

offenders during detention as remand, in which it is a right which is recognized and

protected by our laws and international treaties or instruments but in enforcing or

implementing the law it is where the impediment arises.

38
[Cap. 13 R.E 2019]
39
Ibid

22
In this chapter I have presented my findings by answering my research questions in

relation to the research objectives in relation to different laws and literature materials, and

the findings are as follows:-

3.2 Presentation of Findings (Data)

In this Mini-dissertation I formulated a number of questions, in relation to the

effectiveness of the law in protecting juvenile offenders during detention in remand, of

which I made clear investigation upon them through various literatures and Articles. The

gathered information and data which were obtained through secondary method of data

collection such as library research and electronic sources was used to collect relevant data

appropriate for this research. The research focused to determine the effectiveness of the

law on protection of juvenile offenders during detention and the possible solution to

overcome the impediments on implementation of the laws. The researcher used secondary

method an extensive review of various text books, journals, statutes, dissertations and

website facilities. Information obtained from these sources greatly helped to reflect the

difficulties existing in the present legal framework on the subject matter.

3.3 Analysis and Discussion of research findings

3.3.1 How effective the law is in protecting juvenile offenders during detention?

Juvenile offenders mostly when they are detained or when they are under police custody

are not treated in accordance with what the law stipulates, you might find a juvenile is

detained or is under police custody as remand but yet that juvenile is kept or mixed with

adult offenders while the law states that, ‘police officers should make arrangement to

23
ensure that the juvenile offender is not detained in the same detention room as to that of

juvenile offenders’ and this is per Section 10240, and even the international instruments

and domestic instruments in which we have ratified also they do recognize this right. In

Tanzania when we look on the effectiveness of the laws in protecting juvenile offenders

during detention or when they are under police custody the law is not effectively

implemented due to various reasons. Since detention of a juvenile when in police custody

or remand requires special detention facilities, special care and treatment and the problem

starts from when juvenile is arrested by police officers.

The laws are effectively clear by showing that a juvenile offender has to be detained in a

different detention room from adult offenders in which the implementation of this law into

practice its where the challenge is, as its not effectively adhered due to different reasons

such as lack of facilities. Article 37(b) of the CRC shows that arrest, detention or

imprisonment of a child by the police may be used only as a measure of last resort and for

the shortest appropriate period of time. At the national level, the procedure for the arrest

of offenders in Tanzania is regulated by the Criminal Procedure Act, 1985 (CPA).

Section 12 of the CPA prohibits forceful and arbitrary arrest. While the LCA does not set

out specific procedures for interviewing and Investigating children’s cases, Section102 of

the LCA, does provide for the separation of children and adults who have been arrested

while in police custody, as far as is practicable, in which in practice it is not adhered so

the law is not enforced and it’s not effective. Meaning on implementation of the law there

40
The Law of the Child Act,

24
is a problem and so the law states clearly but the effectiveness of the law on

implementation is not at a fully practiced due to various reasons such as lack of facilities,

ignorance of the implementation of the law and other.

When we look on the international and regional instruments also states the same that a

juvenile offender has to be detained in a different detention room from adult offenders

such as under Article 17 (2) (b) of the ACRWC and Article 37 (b) of the CRC, these

international and regional instruments states that a juvenile offender should be detained in

a separate room from adult offenders and since Tanzania we have ratified them means we

are bound to adhere to the law and that’s why even the law of child act states the same

that a juvenile should be detained in different detention room from adult offenders, in

which when we look into the effectiveness of the laws in Tanzania we see that the problem

is on the enforcement of such laws and implementation of the laws since there is some

sort of ignorance into implementation of the rights.

The principles of detention of juveniles are clear, detention should be of last resort and

juveniles should be kept in dedicated facilities, separate from adults. In all context practice

fails to satisfy these criteria, however, violating both national law and international

standards, meaning that the laws are not effectively implemented. In Tanzania adults

offenders are required to be separated from juvenile offenders but achieving this is

compromised by police departments many challenges including an acute short age of

facilities for detaining juvenile when they are under police custody

25
3.3.2 What should be done to protect juvenile offenders during detention?

During detention juvenile offenders lack protection of being detained into different cell

room from adult offenders when they in remand, also they lack care in which these rights

are recognized by our laws and even the international and regional instruments. According

to our laws a child may do certain acts in which they are against our penal laws and due

to that a child may be detained under police custody as in remand while he is waiting for

his trial now during the awaiting of the trial that child who is under police custody or

remand has to be detained in a separate room from adult offenders as per Section 102 of

the Law of the Child Act41.

Since there is no implementation of the law due to various reasons such as lack of special

facilities for detaining juvenile offenders while in custody, ignorance on the

implementation of the law, lack of well skilled personals who can take care of the child,

and other reasons.

What should be done to protect juvenile offenders during detention and to ensure that

there is effectiveness of the law in protection of juvenile offenders when they are in

remand or during detention are as follows:

3.3.2.1 Knowledge to be provided to the police officers who are responsible in

dealing with juvenile offenders

Once the police officers are provided with enough knowledge which will enable them to

acquire skills on dealing with juvenile offenders’ means it will cure the problem. The

knowledge specifically has to be provided on the matter of law because when they have

41
[Cap.13 R.E 2019]

26
the knowledge it will create awareness to them in which the juvenile offenders when in

remand or under police custody will be treated with great care, and it will help them to

know what risk the juveniles are exposed to when they are detained with adult offenders.

Also when education is given out to the police officers who are responsible with detaining

a juvenile means that the law will not be infringed and the juvenile offender will be on a

safe place. Because when a juvenile is detained with adult offenders in one way or another

it compromises the juveniles safety and wellbeing, example a hard core criminal is kept

under detention and then a juvenile offender is kept in one cell with that criminal the hard

core criminal can do anything to harm that child and can even teach that child some certain

bad morals in which it will affect the behavior of that child and that’s why it’s said that

they should not be mixed together in one cell. So once a proper education is given to the

police officers it means that there will be no more infringement of the law and they will

be implemented effectively and so effectiveness of the law will be seen properly.

3.3.2.2 Build detention facilities

The detention facilities once built will resolve the problem, since juvenile offenders during

detention or remand will be detained into appropriate facilities and safe place away from

adult offender. When detention facilities are built enough in each and every police station

maybe they should be having a private cell for detaining juveniles while they will be

waiting there before being presented before the court of law, this will cure the problem

because there will be no more mixing of juvenile offenders and adult offenders in one cell

of which this will lead into effectiveness of the law since the law has already required that

and even the international convention, the CRC which we have ratified has stated so.

27
3.3.3.3 Providing education to the public at large

Education to be provided through seminars as public seminars and other youth seminars

and make them be aware on the issue of protection of a juvenile during detention and that

the juvenile offender is entitled into certain rights and care when in remand. This will cure

the problem because through public seminars given there we find different people with

different ages and so even children’s will be aware on their rights when they are detained

or when they are under police custody and since they will be aware means that the

effectiveness of the law will be active since the public is aware on the issue and so they

will help on ensuring implementation of the law.

3.3.3.4 To ensure there is enforcement of the law

Through this juvenile offenders will be protected during detention because once there is

enforcement of the law means the police officers who are responsible for juvenile

offenders will treat those juveniles in accordance with the law, where by those children or

juvenile offenders will be given special care as required by the law and they will be

detained in a separate cell room from adult offenders as stated by the law.

3.4 Challenges facing juvenile offenders during detention

3.4.1 Apprehension procedures are not fully implemented

Under laws governing children, children are to be treated with dignity and in a humane

manner especially when it is suspected that they are in conflict with the law. A child

offender has a right not to be apprehended by use of force. The person apprehending such

an offender is not to be clothed in uniform and should desist from handcuffing a child

offender.

28
3.4.2 Children are thrown in cells with adults and produced in court as if they were

adults

Children are in conflict with the law also have right not to be detained in a cell or prison

with adults, a right which has for many years been violated due to lack of juvenile cells at

police stations, officers on duty have ended up making illegal decisions to detain juveniles

in appropriate cells when they encounter juveniles in conflict with the law.

3.4.3 Age determination procedures are not adhered to

When the police interfaces with children in conflict with the law, it has at times resorted

to manipulating the age of an adult to justify detaining them with adults during police and

prison detention. During prison visits conducted juveniles have been identified on remand

in prison.

3.5 Lessons from other jurisdiction in relation to the protection of juvenile offers

during detention

3.5.1 Kenya

The Constitution of Kenya of 2010

This is the supreme law in Kenya, it defines a child as a person who has not attained the

age of eighteen years. Article 5342 provides that every child have the right to a name and

nationality from birth, to free and compulsory basic education, to basic nutrition, shelter

and health car, to be protected from abuse, neglect, harmful culture practices, all forms of

violence, inhuman treatment and punishment and hazardous or exploitative labour. And

further it provides that not to be detained except as the measure of last resort and when

42
The Constitution of Kenya of 2010

29
detained to be held for the shortest appropriate period of time and separate from adults

and in conditions that take account of the child’s sex and age.

The Children Act Cap 141 R.E 2012

According to Section 18543 it provides that subject to any rules or directions made or

issued by the Chief Justice, where it appears to a court other than a Children’s Court at

any stage of the proceedings that a child is charged before it with an offence other than

murder and is not charged together with a person or persons of or above the age of eighteen

years the court may and within the area of the subordinate court’s jurisdiction there is

established a Children’s Court having jurisdiction. Section 19044 it provides that no child

shall be ordered to imprisonment or to be placed in a detention camp.

The Penal Code Cap 63 R.E 2012

According to Section 25(2)45 it provides that sentence of death shall not be pronounced

on or recorded against any person convicted of an offence if it is appears to the court that

at the time when the offence was committed he was under the age of eighteen years but in

lieu thereof the court shall sentence such person to be detained during the President’s

pleasure and if so sentenced he shall be liable to be detained in such place and under such

conditions as the President may direct and whilst so detained shall be deemed to be in

legal custody.

43
The Children Act Cap 141 R.E 2012
44
ibid
45
The Penal Code Cap 63 R.E 2012

30
3.5.2 Uganda

Constitution of the Republic of Uganda

Article 3446 provides for the rights of children that subject to laws enacted in their best

interests, children shall have the right to know and be cared for by their parents or those

entitled by law to bring them up, and children are entitled to be protected from social or

economic exploitation and shall not be employed in or required to perform work that is

likely to be hazardous or to interfere with their education or to be harmful to their health

or physical. And it states further that a child offender who is kept in lawful custody or

detention shall be kept separately from adult offenders.

The Children (Amendment) Act, 2016

Section 42C47 provides that every child shall be entitled to access protective services, the

Ministry responsible for children affairs shall in consultation with relevant government

institutions ensures that designated child protection services are available and accessible

to children. And it provides that designated child protection services include services

aimed at supporting the proceedings of children and the implementations of court orders.

3.5 Conclusion

Generally this chapter has explained in details the data which were obtained from various

literatures concerning the subject matter titled ‘THE EFFECTIVENESS OF THE LAW

IN PROTECTION OF JUVENILE OFFENDERS DURING DETENTION’ whereby the

46
Constitution of the Republic of Uganda
47
The Children (Amendment) Act, 2016

31
questions which were formulated have been answered through the support of literature.

From the presentation, this study found that there are impediments on the implementation

of the laws in protecting juvenile offenders during detention, those impediments are such

as lack or shortage of detention facilities, lack of skilled officials who are responsible in

dealing with juveniles who are in conflict with the law, ignorance on the implementation

of the laws and other. There several possible solution which will enable the state as

Tanzania to overcome the problem of impediments on the implementation of the laws in

protection juvenile offender during detention such as providing education to the public at

large, building of detention facilities and creating awareness to the officers or police

officers dealing with juvenile offenders.

32
 CHAPTER FOUR

SUMMARY OF FINDINGS, CONCLUSION AND RECOMMENDATIONS

4.0 Summary of findings

This chapter is meant to give general conclusion and recommendation especially basing

on the findings of this study. The study reports on the effectiveness of the law on the

protection of juvenile offenders during detention. The finding of the study based on the

review of different documents in regard to journal, articles, legislations were used. The

conclusion below is mannered by the general overview of the study and the findings

presented in the previous chapter. The recommendations are mannered by the solutions

that the study came up with to address the problems relating to protection of juvenile

offenders during detention.

4.1 Conclusion

From the Mini-dissertation which focused on the effectiveness of the law in protecting

juvenile offenders during detention, it has been clearly that they are laws protecting

juvenile offenders during detention or when they are under police custody. In Tanzania

we see that the law of the child act, [Cap.13 R.E 2019], under Section 102, it recognizes

the juvenile’s protection during detention or remand that the child should be detained in a

different room from adult offenders in which this right is recognized even under

international instruments such as CRC and regional instruments such as ACRWC. Where

by on the implementation of the laws it’s where the challenge arises due to lack of

facilities, lack of skilled personals, ignorance on the implementation of the law and other

reasons. So the focus was on why there is no implementation of the laws in which even

33
the international and regional instruments which we have ratified recognizes them in

which through my research questions and research objectives have guided me in finding

the answer towards the problem by visiting different library materials in which they have

talked about juvenile protection and forgot that there is a need of a juvenile to be protected

while in detention or under police custody by detaining them into different detention room

from adult offenders and not mixing them with the adult offenders because mixing

juvenile offenders with adult offenders it compromises their wellbeing starting from

behavior aspect and other aspect such as health and other because they won’t be getting

special care which is required to be given to them when they are mixed with adult

offenders in detention in which this is even shown buy certain literature that for the

goodness of the juvenile offender he should be separated from adult offenders during

detention and lastly I will recommend what should be done so as to ensure there is an

effective implementation on the law in one way or another so as to ensure effectiveness

on protection of juvenile offenders during detention.

4.2 Recommendations

It is submitted that juvenile offenders should be treated and not punished. In order to

achieve this,

4.2.1 There should be committed staff who are well trained in human rights,

children conventions and advanced mechanisms on implementation of the laws that

is provided with working tools.

34
Magistrates and other legal officers preside over juvenile court should be acquainted with

social problems and understand of child psychology. Informal court procedures and

private hearing must be adhering to. Tanzanian Government should consider taking

deliberately action to build detention facilities in police stations and approved schools at

least one in every zone, also it should built separate remand home, separate juvenile court

to make sure that such institutions are evenly distributed in Tanzania and use of special

detention facilities for detaining the juvenile offenders.

4.2.2 Government should make sure that children and juvenile cases are

professionally represented.

Therefore the Government has to establish a special fund for children advocacy. This

would help to deal with protection of children’s right during the administration of criminal

justice before the court of law.

The institutions like court, police force and remand prison should general shift their

treatment of juvenile offenders from criminal nature, which attracts punishments based on

retribution and deterrence, to turn to reformatory and rehabilitate treatment.

4.2.3 The international and regional instruments should be adhered since we are part

to the instruments the rights stated in them should be observed.

The CRC and the ACRWC in which Tanzania has ratified them its quit clear that they

have stated that the juvenile during detention should be detained in a separate detention

room from that with adult offenders and since it’s stated so it means any state party to it

35
is expected to be seen adhering to what has been agreed under the agreement. Now for the

effectiveness of the law to be seen it means that we have to adhere with the instruments

and implement the law in accordance with their agreement, so Tanzania a state party to

the agreement has to adhere with the instruments and implement the law so as to cure the

problem.

4.2.4 The Government should revisit old laws and repeal, those which are obsolete

and rectify loopholes that give room for the violation of children rights.

The parliament should enact new laws or amend the old ones so that they can suit in the

circumstances preventing in the country.

4.2.4 Diversion Programs

The Government should establish more diversion programs that aim to divert juvenile

offenders from the formal justice system. These programs should be designed to address

to underlying causes of juvenile delinquency such as poverty, lack of education and family

problems.

4.2.5 Raising awareness

The Government should raise awareness among the public, law enforcement officials and

the judiciary about the importance of protecting the rights of juvenile offenders. This

includes promoting a child friendly justice system are encouraging community

involvement in the rehabilitation and reintegration of juvenile offenders.

36
 BIBLIOGRAPHY

BOOKS

Sheth, H. (1961). Juvenile Delinquency in an Indian Setting, p.30

J. Siegel & Joseph J. Senna, Juvenile Delinquency, Theory, Practice, & Law, pg 387

REPORTS

An Analysis of the Situation of Children in the Juvenile Justice System in Tanzania,

Report written by; Jones John, Adv. LLB (Hons) (Dar); Msc.DPPCS (Brad); BSC-

PDIA (Harv.) @Tanzania Women Lawyers Association, 2018

Anderson. K, (2012) Analysis of the situation of children in conflict with law in Tanzania

CHRAGG, Inspection Report for Children in Detention Facilities in Tanzania, June 2011,

Inspection Report for Children in Detention Facilities in Tanzania, of June 2011.

Christina S. Maganga, (2005) Administration of Juvenile Justice in Tanzania, LL.M

Dissertation, Lund University (Raoul Wallernberg Institute of Human Rights and

Humanitarian Law).

Commission for Human Rights and Good Governance, Inspection Report for Children in

Detention Facilities in Tanzania, June 2011Mutembei I.B, (1998) Juvenie

Offenders before the Court, LL.M Dissertation, University of Dar es salaam.

37
 ARTICLES

The United Nations Children's Fund (UNICEF), Justice for Children: Detention as a Last

Resort: Innovative Initiatives in the East Asia and Pacific Region.

Penal Reform International, (2013) Protecting children’s rights in criminal justice

systems: A training manual and reference point for professionals and policymakers,

London: United Kingdom

Hanna, Mark (2011). McNae’s Essential Law for Journalist 21 st Edition. Oxford: Oxford

University Press. Pp.437.

38