Introduction
Diversion, in simple terms, refers to a measure for dealing with a child offender other than taking that child to court. Over the years, it has been observed that the police and juvenile courts make very little use of diversionary methods in dealing with children who come into conflict with the law. This has resulted in children being incarcerated for minor offences that could have been settled at home or even at the police station. This practice of incarcerating children without resorting to other forms of corrective measures is now a growing concern among civil society organizations, especially the Sierra Leone Court Monitoring Programme, which has been monitoring and advocating for the rights of juveniles in the country. The formal justice system can be traumatic and can stigmatize the child, and it should therefore be avoided whenever the matter can be adequately handled with an out of court settlement in a less formal way. Article 40 of the Convention on the Rights of the Child urges states to “seek to promote…measures for dealing with such children without resorting to judicial proceedings.”
Diversion is one such way of avoiding judicial proceedings. It can take the form of a warning that future offences will have serious consequences, voluntary acceptance of some form of supervision or counseling, a commitment to attend school or to avoid persons or places associated with the offences, community service, or restitution to and reconciliation with the victim. Of course, alternatives to formal adjudication must be compatible with the rights of the child, which precludes measures such as corporal punishment. On 2nd February 2007, the Committee on the Rights of the Child issued general comment No. 10 on children’s rights in juvenile justice, interpreting the human rights provision for children in conflict with the law. It states, among other things, that for diversion to be effective and fulfill the rights of the child, the Committee recommends that; (a) The child must be allowed to choose in writing whether he or she wishes his/her matter to be handled with an out of court settlement; (b) The child’s parents must also be informed especially when the child is under 16 years of age; and (c) The law should clearly state which cases should be diverted and which ones are not to be diverted. Also, persons involved in making decisions for cases to be diverted, such as the police, prosecutors and other officials, should be controlled and reviewed.
Towards this goal, the Children and Young Persons Act (CAP 44) makes provision for the use of diversion in section 25, which states that,
“Where a child or young person is charged with any offence other than homicide or other than an offence punishable with imprisonment for a term exceeding seven years, and the court is satisfied that the offence is proved, the court may, in addition or alternatively to any other order which may be made, under this ordinance in its discretion either: (a) discharge the child or young person without making any order; (b) order the child or young person to be repatriated at the expense of government to his home district or origin or (c) order the child or young person to be handed over to the care of a fit person or institution being ready to undertake such care.”
But despite the strong legal basis for the use of diversion, these provisions are rarely applied in court except in the few cases where juveniles are repatriated to their homes of origin, mostly at the expense of non-governmental organizations. The detention facilities for juveniles cannot meet their mandate as a result of the lack of basic facilities needed for rehabilitation. While the necessary structures are present, the instruction being given is ineffective, and thus incarcerating children for minor crimes does little to alleviate, and in fact may raise the risk of, recidivism. For instance, the Defense for Children International Report of 2009 states that 4 out of every 15 juveniles charged to court are repeat offenders. This article therefore seeks to explore the relevance of diversion in the juvenile justice system, and thus examines the role of the police, the courts, and informal justice structures and proffers recommendations.
The Role of the Police and Family in Diversion
The police have a very significant and important role to play in diversion. For instance, the Child Rights Act of 2007 makes provision for the strengthening of the Family Support Unit (FSU) within the Sierra Leone police and gives it the mandate to fully deal with juvenile cases. Together with the probation officers, police officers can initiate diversion after informing the parents or guardians of juveniles. They are also mandated to delve into the background of the child to see whether diversion especially ought to be used, for example, when the crime is less serious and the juvenile is a first time offender. This power conferred upon them has created conflict between the FSU and the usual crime officers, as the latter wish to take over certain juvenile cases, especially those of a serious nature. It is unfortunate that some juveniles are charged to court without the knowledge of their parents, as this practice to a large extent hinders diversion as the parents or guardians also have a substantial role to play in the process. Section 23 of CAP 44 states that,
“Where a child or young person has been found guilty of an offence for the commission of which a fine, compensation of costs may be imposed, and the court is of the opinion that the case would be best met by the imposition of a fine, compensation or costs, whether with or without any other punishment, the court may in any case and shall if the offender is a child, order that the fine, compensation or costs awarded be paid by the parent or guardian of the child or young person unless the court is satisfied that the parent or guardian cannot be found or that he has not conduced to the commission of the offence by neglecting to exercise due care of the child or young person.”
The parent may, however, appeal against such an order in the Supreme Court. However, this responsibility clearly shows that it should be mandatory for parents to be informed of the arrest of their children.
Of course, in some cases, complainants refuse to accept diversion because of a family feud, and prefer going to court. The FSU and Probation officers should probe into such matters and find a way of settling the dispute rather than allowing the child to be charged to court. As an example, in one case a boy was charged with stealing a small amount of money and was taken to the police station. The parents of the boy wanted to pay the said amount, but the complainant refused on the grounds that she wanted to teach them a bitter lesson, and the case was sent to court. This was a less serious matter that should have been settled at the police station but was not because of grudge between the two families. The police can play a powerful role in mediating such disputes, and thus also help prevent the court from overflowing with cases, causing delay in the juvenile justice system.
The Role of the Court
The court too can be instrumental in promoting diversion in cases involving juveniles, yet it makes very little use of such provisions prescribed under CAP 44, most likely because the structures are not present to promote such practices. The Magistrates are left with no option but to send the children to the Approved School after conviction. The Ministry of Social Welfare, Gender and Children’s Affairs responsible for providing such funds cannot meet their obligations as a result of underfunding. At times, the parents or guardians are not present during court proceedings, often because they are unaware, and it becomes very difficult for the magistrate to institute diversion in such cases. A case in point is that of a boy who was charged to court for assaulting a lady. He pleaded guilty to the offence, and none of his relatives were present in court that day, so he was automatically sentenced to the Approved School for six months. The boy was a first time offender and, according to his statement, it was the lady who first slapped him. After the sentencing, the lady was jubilant as if it was the outcome she had desired.
The Establishment of the Child Panel
The Child Rights Act makes provision in section 71 (1) for the establishment of the Child Panel in each district in the country, and it shall have non-judicial powers to mediate in civil and criminal matters concerning children. The Child Panel shall give the child the permission to express his or her views freely and shall seek to promote reconciliation between the child and the offended person. A child appearing before the child panel can be warned that if such offences are repeated that he or she can face the juvenile court. They are mandated to impose a community guidance order on the child with the consent of both parties by placing the child under the supervision of a person of good standing within the community, as well as making the child propose an apology, make restitution to the offended person or offer service to the offended person. But the establishment of these structures is yet to be materialized, and the only means of trying juveniles at present is the juvenile court. It is therefore incumbent upon the Ministry of Social Welfare, Gender and Children’s Affairs to see to it that these panels are set up in every district to aid diversion. Were these structures present, minor cases such as the ones outlined above could have been dealt with in a less formal way, giving the child the right to express his or her views openly and without fear. There are many cases of such nature where diversion would likely be the best option.
The Setting up of Village and Chiefdom Welfare Committees
The Act also makes provision for the setting up of Village Welfare Committees and Chiefdom Welfare Committees, which are informal courts set up to deal with offences other than homicide, treason, armed robbery, and similar crimes. The Child Welfare Committee, when unable to handle some cases, can transfer them to the Chiefdom Welfare Committee. These institutions cannot incarcerate juveniles and do not have the mandate to punish, imprison, impose a fine, or order damages. Their mandate is to issue advice or instruction to the parties involved. Since they are informal courts, the child is also given the opportunity to express his or her views openly. These institutions are also yet to be set up. Village Welfare Committees are present in some parts of the country, but lack of finance and trained personnel are rendering them useless and incapacitated. It is our view that if these committees are properly established, they could greatly assist in promoting the use of diversion and thus better serve the interests of justice for juvenile offenders.
Conclusion
It is evident that the promotion of the use of diversion in the juvenile justice system should be a priority. Allowing children to be charged to court for reasons such as parental lack of awareness, personal conflicts, and inadequate training or resources is not only unfair to the child, but does little to promote the welfare of society by helping the child to become a law-abiding citizen rather than a recidivist offender. The Ministry of Social Welfare, Gender and Children’s Affairs must ensure that these structures are put in place to aid the process of diversion by enabling the appropriate officials and committees who can help the diversion process.