By David Siess
“A justice system which guarantees the respect and the effective implementation of all children’s rights to the highest attainable level, bearing in mind the principles of participation, best interests of the child, dignity and protection from discrimination and giving due consideration to the child’s level of maturity and understanding and the circumstances of the case. It is, in particular, justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity.”
This is how the Council of Europe defines a “child-friendly justice”. An approach that shall be a point of reference, but also a goal for many justice systems worldwide since the lack of recognition of children's needs and rights in Tanzania and in justice systems across many countries remains a concern.
Where children are victims of crime, special challenges and demands are placed on the justice system in order to meet the needs of children. This confronts justice systems around the globe with problems for which answers and solutions must be found. A problem in this context that is also evident in Tanzania, but not only there, is that criminal proceedings are generally aimed at clarifying the nature of an offence and punishing the alleged offender. With this focus comes the danger that the proceedings lose sight of the fact that the rights and needs of victims must also be respected. This is especially the case for children who have been victims of violence - who due to their vulnerability and ongoing developmental process need special attention, and effective measures that protect them from secondary and repeat traumatisation. Criminal proceedings can be particularly stressful for children, who risk further traumatisation if the procedures are not adapted to their needs and made “child-friendly”.
After a long-time of under-prioritisation of child-victim protection laws, child and victims’ rights have started to receive more attention during the last decades at the level of the United Nations (UN) and later the European Union (EU). Efforts in this regard have gradually reached the African Union (AU) and their member states to guarantee the basic principles of guaranteed participation of children in procedures and decisions concerning them, the direction of all actions towards their best interests, as well as respect for the dignity of the child and protection against discrimination.
To address this challenge in Tanzania, together with our partners and to advocate for improved conditions for children's rights, we have analysed the approaches taken by countries such as Ireland, the United Kingdom, Germany, New Zealand, Australia and Malawi to identify lessons that can be applied in Tanzania.
Certain legal instruments have emerged as the core of each approach:
A comprehensive right to information during the entire proceedings about all relevant facts, such as offers of legal, psychological and medical assistance ensured by communication that is appropriate for the child and comprehensible to him or her in every way, has to be established.
This must be accompanied by the creation of these offers of legal and psychological and medical assistance, among other things, with the possible accompaniment of parents or other representatives, prior to the actual proceedings and in order to exclude possible development-related disadvantages for the child in the proceedings.
A further focus is to be placed on a comprehensive protection of the child's privacy and personal rights during every stage of the proceedings in order to prevent disruption to the child's development process as much as possible and to keep the burdens involved with the procedure as low as possible. This is achieved through measures to exclude the public and to keep the child's identity secret.
Specific measures such as a prioritisation of child-related cases and special qualifications of all persons involved must be taken in a child-friendly environment to direct the course of proceedings towards the needs of the child. This especially applies to interrogation situations during the pre-trial stage and to the courtrooms. Wherever possible, proceedings shall continue in the absence and without the participation of child. Instead, video recordings of the interrogation should be used as evidence.
Since there is no such comparable standard in Tanzania at present, work must be done towards establishing a comprehensive and structured codification of victims' rights which secures the above rights of children and implements these measures.