Report for the Research on Delayed Issuance of Social

Welfare Reports for Juveniles

By: Lucy M. Muyoyeta DECember, 2018

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LIST OF ABBREVIATIONS

7NDP Seventh National Development Plan ACHPR African Charter on Human and People’s Rights

ACRWC African Charter on the Rights and Welfare of the Child CPU Child Protection Unit CRC United Nations Convention on the Rights of the Child

CBOs Community-Based Organisations CSOs Civil society organisations

CWACs Community Welfare Assistance Committees DSW Department of Social Welfare

FGDs Focus group discussions

GBV Gender Based Violence

LAB Legal Aid Board

LSU Legal Services Unit NPA National Prosecution Authority OAU Organisation of African Unity

PLEED Programme for Legal Empowerment and Enhanced Justice Delivery SCT Social Cash Transfer

SWOs Social Welfare Officers

SWRs Social Welfare Reports Triple CI Communication, Cooperation and Coordination Initiative

ZCEA Zambia Civic Education Association

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Table of Contents 1. EXECUTIVE SUMMARY .................................................................................................... 1

2. INTRODUCTION .................................................................................................................. 7

2.1. Overview of the Research ................................................................................................ 7

2.2. Objectives of the Research ............................................................................................... 7

2.3. Research Methodology..................................................................................................... 8

2.3.1. Study Design................................................................................................................. 8

2.3.2. Target Population.......................................................................................................... 8

2.3.3. Sample size ................................................................................................................... 9

2.3.4. Sampling Procedures and Location .............................................................................. 9

3. JUVENILE JUSTICE CONTEXT ......................................................................................... 9

3.1. International Context ........................................................................................................ 9

3.2. National Context ............................................................................................................ 10

3.3. National Stakeholders .................................................................................................... 10

4. LIMITATIONS OF STUDY ................................................................................................ 13

5. PRESENTATION OF FINDINGS ....................................................................................... 13

6. RECOMMENDATIONS ...................................................................................................... 20

7. CONCLUSION ..................................................................................................................... 24

8. ANNEXES ............................................................................................................................ 25

Annex 1 – Terms of Reference ................................................................................................. 25

Annex 2 - Interview Guide........................................................................................................ 27

Annex 3 - List of informants..................................................................................................... 32

Annex 4 - References ................................................................................................................ 35

Annex 5 - SUMMARISED TABLE OF FINDINGS AND RECOMMENDATIONS ............ 36

1. EXECUTIVE SUMMARY

In 2016 visits were undertaken by the Zambia Civic Education Association (ZCEA) to correctional

facilities in Lusaka, Kabwe and the Copperbelt to ascertain the challenges that juveniles on pre- and post-trial detention were facing. During these visits a total of 117 juveniles were found in these detention facilities. Of these juveniles, 58 already had a ‘finding of guilty’ determination, while

trial was still on-going for the other 59. In both instances delayed social welfare reports (SWRs) were cited as the major reasons of the needlessly prolonged detentions.

Therefore, ZCEA in collaboration with the Social Welfare Department of the Ministry of Community Development and Social Services (MCDSS) with the support of the GIZ Programme

for Legal Empowerment and Enhanced Justice Delivery (PLEED) decided to undertake a research to determine the causes of delayed issuance of social welfare reports for juveniles in the judicia l

system. The objectives of the research are:

To establish determinants, causes and blockages for the delayed issuance of social

welfare reports in juvenile cases for both pre and post-trial detentions.

To develop specific recommendations on how to improve the internal processes and

cooperation with other stakeholders

Primary data was collected from juvenile justice stakeholder including juveniles,

parents/guardians, provincial and district Social Welfare Officers (SWOs), police officers, prosecution officers, correctional service officer, magistrates, Legal Aid Board (LAB) officers,

Doctors in Charge of Age Determination, Civil Society Organisations (CSOs), reformatory schools’ officers, churches leaders and schools’ guidance and counselling teachers in the Copperbelt, Southern and Lusaka Provinces. A participatory qualitative approach to the study

was adopted. The tools used included observation, semi-structured interviews with key informants and focus group discussions (FGDs). Desk based review of literature was also

conducted. The data was validated at two meetings held for Department of Social Welfare (DSW) officers from Lusaka, Central, Copperbelt, Eastern, Western and Southern Provinces and the national office and other juvenile justice stakeholders from CSOs, the judiciary, correctional

services and police.

The limitations of the study are as follows:

i. The study was designed to investigate the causes and determinants of the delays and not

to test the extent of the delays or test the hypotheses of whether delays are happening or

not.

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ii. The study was allocated a total number of 20 days. This therefore limited the extent of the research and narrowed it to a focus mostly on role of the Department of Social

Welfare (DSW) rather than a review of delays in delivery in the entire juvenile justice system.

The findings on the cause of delays in issuance of social welfare reports (SWRs) in order of priority are as follows:

i. The district offices of the DSW have insufficient numbers of SWOs to carry out the task of conducting the necessary investigations and producing the reports. Besides this

function, these officers carry out multiple other functions (statutory and non-statutory) as outlined in section on stakeholders’ roles and responsibilities above.

ii. The district social welfare offices have insufficient transport and logistical support such as vehicles and fuel to execute court investigation tasks. As a result, home visits to

ascertain family, school, and other necessary background information pend for some time or not undertaken at all.

iii. Overall weak coordination and communication among key stakeholders contributes to the

problem at hand. From the time the juvenile is apprehended, arrested and committed to

trial, the nature of proceeding in terms of securing the involvement of SWOs is ad hoc. In certain cases, police will inform DSW from the time of arrest of a juvenile but for the

most part, SWOs only get know when juveniles are at court taking plea or at later stages in the trial. In some cases, they are informed of cases directly by concerned magistrates or judges. Beyond the various laws, they are no specific guidelines for the interface

between stakeholders in the juvenile justice sector.

iv. In some cases, juveniles have lost parents and/or guardians due to death or have lost contact with them due to estrangement. These are typically juveniles who may be living on the streets or with friends and juveniles who have crossed borders from other

countries. In these cases, information required about the family may not be easily available or at all.

v. In some cases, juveniles do not give accurate information about family address/contact

making it difficult to ascertain veracity of their statements and leading to lengthening the

process of tracing the juveniles’ family in order to get the necessary information. But even in cases where accurate information is provided tracing families in poorly planned

settlements poses a challenge due to lack of streets, street names and house numbering system.

vi. General lack of awareness amongst juveniles and parents/guardians of the need for social welfare reports in juvenile cases. Juveniles and their parents/guardians were generally

found to be ignorant of this need prior to appearing in court. This means therefore that opportunity for them to proactively contact the DSW is lost hence contributing to the delay. This lack of awareness extends to the general public including places such as

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schools and churches where large numbers of juveniles congregate.

vii. It was observed that the DSW operates a manual paper based system for preparation and storage of SWRs. This leads in some cases to delays in gathering information about

juveniles whose family and background is one district but comes into conflict with the law in another district.

viii. The higher courts (above the subordinate courts) produce a cause list of cases to be dealt with in the year as per established guidelines. This list does not specify whether

the accused is a juvenile or not. The DSW usually gets to know of juveniles appearing before these courts by being informed by the courts themselves or through other agencies such as the NPA and the LAB. As a result, short notice is given for the production of the

reports. The DSW is usually unable to comply with the time instruction and often is the case that extra time is requested for.

ix. The order for age determination is given by the courts when there is doubt or lack of

proof of age of the juvenile. Therefore, until age is determined, trial will be suspended.

The process of age determination takes anywhere between 7 days to 30 days. This process too contributes to the delay in production of SWRs as the overall process of the

cases before the courts is delayed awaiting age confirmation.

x. Lack of motivation by some SWOs was cited. Collection of information for social

welfare reports is seen as a demanding exercise, and is not adequately funded. Therefore, some officers prioritize activities that provide incentives such as the Social Cash Transfer

(SCT). The main incentive being provision of allowances.

xi. The Juvenile Act states that before deciding how to deal with a juvenile, the court shall, if

practicable, obtain such information as to his general conduct, home surroundings, school record and medical history as may enable it to deal with the cases in the best interest of

the juvenile. The Act points out where practicable that this be done. However, the practice of SWRs has become mandatory leading to delays. It will be necessary to interrogate this matter.

Quality concerns over the contents of social welfare reports were raised. The matter of quality contributes to delays in production of the SWRs as in some cases courts have thrown out the

reports over quality concerns.

The findings pertaining to quality are:

i. They are slight differences in arrangement of the format of the SWRs in the different

districts but there are otherwise no major variances. However, some formats only list headlines and do not give much guidance on the required content. It is the case that some

staff particularly newer ones face challenges in satisfactorily filling in the template. A conspicuous absence in all format is any reference to disability. Disability of the juvenile or being a primary caregiver for a member of a family with a disability is an important

aspect of the circumstances of the juvenile.

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ii. The reports tend to lack depth. In particular, the courts pointed the need for more

information on the circumstances leading to child behaving in the way they are. Are they from a broken home, has child faced a history of violence etc.

iii. Apart from lack of depth some reports also contained contradictions, serious grammatical

and other errors. For example, in earlier section of the report, the juvenile would have

been stated not to have had a previous offence but in the analysis and recommendation section would be stated as a repeat offender.

iv. Most repeated criticism of the SWRs was that there was a lot of “copy and paste”.

Identical information was given for different juveniles with little differentiation. This

arises due to inability to make home, school and other visits to collect information but also due to lack of report writing skills by some officers.

v. In some cases, harsh language is used against the juveniles for example it was often the

case that juveniles who did not plead guilty were described as not remorseful or time

wasters. Juveniles have a right to plead as they deem fit and not be subtly or otherwise coerced into guilty plea in the expectation that the court will exercise leniency.

vi. When information about juveniles in detention reaches the SWOs late, they tend to

hastily compile a report to avoid being labelled time wasters by the court. The quality of

the report is affected as officers do not conduct thorough investigations but depend on secondary data.

vii. There was little evidence of concerted, comprehensive and systemic training of the

writing of the SWRs.

The following recommendations are made divided into those that should be worked on in the short, mid and long term.

Short–term (1-2 years)

i. There is need to further strengthen coordination and communication among key stakeholders to ensure that from the time a juvenile is apprehended, arrested and committed to trial, the involvement of SWOs is secured.

ii. The format of the SWR will need to be revised to take into account the omission of

disability considerations and strengthened to ensure more information is collected on the circumstances leading to child behaving in the way they are and gives adequate guidance to officers preparing the reports.

iii. Not much training is given to officers at point of deployment apart from in some cases a brief theoretical orientation. There is need for training of all officers at deployment stage

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and retraining of incumbents in writing of SWRs. But the writing is done in a context; therefore, training should extend to understanding juvenile justice comprehensively

including what it means to act in the best interest of the child.

iv. The DSW in dealing with the higher courts should enhance their case management to ensure once the cause lists are released they find out which cases involve juveniles so they can get involved timely.

v. The DSW and CSOs should conduct awareness raising activities on juvenile justice

issues including issue of SWRs in the community, schools and in churches. This will enable juveniles, parents/guardians and other interested parties more proactively seek the services of the DSW with respect to the SWRs. It will also strengthen parental and

community engagement with criminal justice stakeholders potentially therefore aiding in the prevention of offending and also expediting the handling of juvenile cases.

vi. The DSW should strengthen the role of the Community Welfare Assistance Committees (CWACs) in tracing families and assisting to get some of the information required for the

SWRs.

vii. The development of a communications strategy for the DSW will be necessary to guide all its communications work, so that it is clear what the key messages to be conveyed are

and by who.

Mid-term (3-4 years)

i. There is need to increase numbers of staff, vehicles, finances of the DSW to enable them

carry out this task timely and to ensure good quality work.

ii. Social Welfare Officers should be employed to offer non - statutory or statutory services so that they focus on one particular programme area as opposed to being overwhelmed with competing demands from the two programme areas. For example, Social Cash

Transfer (non-statutory services) competing with the investigations for court (statutory services).

iii. Quicker consideration should be given to whether it is practical to get the SWR in every

case rather than keeping juveniles in detention for a long time when it is not practical to

have the report.

Long Term (5 years and beyond)

i. Expedite the on-going efforts of modernisation of the systems of collecting and

compiling of SWRs and related processes.

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ii. The role of CSOs in assisting should be explored beyond SWAZ to include other CSOs who could play this role taking into careful consideration provisions of the law,

confidentiality, capacity and quality considerations.

Other recommendations that do not directly pertain to SWRs but will help accelerate juvenile justice system are:

i. Accelerating the implementation of the “National Framework on Diversion”. This will help rationalise the diversion processes and help decongest the courts. Presently, diversion at police stations is applied in very discretionary maaner. Similar cases are

not treated with consistency. For example, arbitration will be applied on a case of similar nature to one which will be taken through to trial.

ii. Fast track the process of enacting the Child Code Bill. It seeks to consolidate in a

comprehensive manner the laws providing for the rights and welfare of childre n.

When enacted it will domesticate the CRC as well as various international and regional treaties that address the rights of children.

iii. Prevention of juveniles coming into conflict with the law is the ideal. While

elimination may not be possible, certainly minimising juvenile crime as much as

possible is desired. Many respondents expressed concern at increased numbers of juveniles coming into conflict with the law especially pertaining to gang violence and

expressed desire that there be a national reflection on causes. This reflection would look at issues related to parenting, education provision, recreation, employment, the roles of churches and other community structures. The reflection on these issues

which is undertaken during international and national days such as the Day of the Family etc. should be enhanced and given more visibility.

2. INTRODUCTION

2.1.Overview of the Research

The Zambia Civic Education Association (ZCEA) is a non-governmental, not for profit organization, that promotes and protects children’s rights through advocacy and civic education.

The Association has 12 child friendly citizens’ legal advice desks staffed by paralegals that provide legal advice in matters that advance children’s rights and justice. In line with juvenile justice principles the paralegals visit police stations and correctional facilities to monitor children either

on pre or post detention.

In 2016 visits were undertaken by ZCEA to correctional facilities in Lusaka, Kabwe and the Copperbelt to ascertain the challenges that juveniles on pre- and post-trial detention were facing. Despite the fact that the Zambian Juveniles Act provides for juveniles not to be held in prisons but

only in approved or reformatory schools, none of these detention facilities were found to have special cells for juveniles. ZCEA discovered a total of 117 juveniles in these detention facilit ies.

Of these juveniles, 58 already had a ‘finding of guilty’ determination, while trial was still on-going for the other 59. In both instances delayed social welfare reports (SWRs) were cited as the major reasons of the needlessly prolonged detentions.

Therefore, ZCEA in collaboration with the Social Welfare Department of the Ministry of

Community Development and Social Welfare with the support of the GIZ Programme for Legal Empowerment and Enhanced Justice Delivery (PLEED) has decided to undertake a research to determine the causes of delayed issuance of social welfare reports for juveniles in the judicia l

system.

The findings shall be used to hasten issuance of social welfare reports that will in turn reduce average time that juveniles spend in prisons with adult offenders instead of reformatory schools. Further, the research findings shall result in faster trials and sentencing of juveniles that come into

conflict with the law. Finally, it is hoped that the research findings will contribute to improved legal framework and processes in the Zambian juvenile justice system.

ZCEA will use the findings to develop policy briefs and recommendations to relevant authorities.

The audience of the research is specifically the Social Welfare Department (SWD) and by extension all institutions and departments that have to deal with juvenile justice (the police,

correctional services and the judiciary). Also included are civil society organisations that work in promoting juvenile justice.

2.2.Objectives of the Research

The objectives of the research are:

To establish determinants, causes and blockages for the delayed issuance of social welfare reports in juvenile cases for both pre and post-trial detentions.

To develop specific recommendations on how to improve the internal processes and cooperation with other stakeholders

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2.3. Research Methodology

2.3.1. Study Design

The problem that the research interrogates is that of delays in the issuance of social welfare reports for juveniles who find themselves in conflict with the law. This delay contributes to the

slow dispensation of justice since judgement in juveniles awaits presentation of these reports. These delays lengthen the average time that juveniles spend in prisons most times mixed with adult offenders instead of being in reformatory schools or on probation.

A systems approach to the research was adopted. A system is a set of interrelated but separate

parts working together for a common purpose. A systems approach seeks a holistic approach to analysis that focuses on the way in which a system’s constituent parts interact and how they work over time within the larger judicial system. It provides guidance to avoiding analysis of

problems in isolation and aids in developing an integrated approach to resolving the problems. A system has a number of characteristics. These are:

Structure - The way something is arranged or organised. The role(s) the various stakeholders play. The formality or informality of the structure.

Behaviours – The manner various stakeholders act or conduct themselves. Their cultures, behaviours or attitudes.

Interconnectivity – This refers to state or quality of being connected together, or to the potential to connect in an easy and effective way. How are the stakeholders connected?

Do they relate to each other formally or informally? What guides their interconnectivity? What communications channels or procedures are in place to facilitate this interaction?

Functions- The roles played and the activities undertaken by the various departments, organisations or people to produce a result. Do these roles and activities overlap, are dysfunctional or moribund?

The systems approach was selected because of nature of the problem that has been identified.

This research therefore will seek to determine why the problem occurs and persists and make recommendations for the way forward. With many stakeholders involved including the juveniles, parents/ guardians, police, social welfare department, correctional services, the judiciary and

civil society organisations (CSOs), the identified problem points to blockages in the system. The research will examine the chain of all probable causal linkages that have led to the current

problem using the systems approach as the guiding framework.

A participatory qualitative approach to the study was adopted. The tools used included

observation, semi-structured interviews with key informants and focus group discussions (FGDs). Desk based review of literature was also conducted. The objective of the desk review

was to obtain a good understanding of the problem at hand and the overall context of the problem. The review also assisted in informing the research questions and in design of the tools. Inductive content analysis was used to analyse the data collected from the interviews and FGDs.

2.3.2. Target Population

The target population for this study comprises all stakeholders that play a key role in the process

of issuance of social welfare reports for juveniles and generally in the delivery of juvenile justice in the country.

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2.3.3. Sample size

The sample size consisted of 56 people comprising of juveniles, parents/guardians, provincial

and district Social Welfare Officers (SWOs), police officers, prosecution Officers, correctional service officer, magistrates, Legal Aid Board (LAB) officers, Doctors in Charge of Age

Determination, CSOs, reformatory schools’ officers, churches leaders and schools’ guidance and counselling teachers.

2.3.4. Sampling Procedures and Location

Purposive sampling was adopted to ensure that the sample is made up of people who are aware

of the problem and can give insights into the probable causes and blockages. These people were selected from amongst the key stakeholders in the juvenile justice system and other institutions such as schools and churches where juveniles congregate.

The following sites were selected for conducting the research in accordance with the PLEED

geographical areas of focus:

Kitwe and Ndola in the Copperbelt Province. Ndola hosts the reformatory school for

girls (Insankwe Probation Hostel) and is also the provincial centre. Kitwe hosts the main correctional facility in the province at Kamfinsa.

Mazabuka, Choma and Livingstone for Southern Province – Mazabuka hosts the Nakambala Approved School for boys while Livingstone hosts the reformatory for

juvenile offenders ( Katombora), the main correctional facility in the province and Choma is the provincial capital

Lusaka district is selected as the country’s main administrative centre with the

headquarters of all key institutions of juvenile justice located there.

3. JUVENILE JUSTICE CONTEXT

3.1. International Context

Zambia is a party to various international and regional human rights laws and principles

including the United Nations Convention on the Rights of the Child (CRC), the United Nations Standard Rules for the Administration of Juvenile Justice (also known as the Beijing Rules), the

African Charter on Human and People’s Rights (ACHPR), and the African Charter on the Rights and Welfare of the Child (ACRWC).

The CRC in Article 37 provides amongst others that no child shall be subjected to torture, cruel, inhuman or degrading punishment and that their arrest, detention or imprisonment shall be in

accordance with the law and used only as a measure of last resort and should be for the shortest appropriate period of time.

The Beijing Rules oblige state parties to provide for comprehensive social policies that aim at promoting juvenile welfare to the greatest possible extent, minimising the necessity of

intervention by the juvenile justice system, and in turn, will reduce the harm that may be caused by any intervention.

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The ACHRPR in Article 18 (3) compels the state to ensure the protection of the rights of the woman and the child as stipulated in international declarations and conventions.

The ACRWC in its preamble reaffirms adherence to the principles of the rights and welfare of

the child contained in the declaration, conventions and other instruments of the Organisat ion of African Unity (OAU) and in the United Nations and in particular the CRC; and the OAU Heads of State and Government’s Declaration on the Rights and Welfare of the African Child. Article

17 deals with the administration of juvenile justice. It provides amongst others that children accused or found guilty of an offence shall be treated in a manner which reinforces their dignity,

worth and human rights.

3.2.National Context

The Seventh National Development Plan (7NDP) for the period 2017 to 2021 provides the overall framework for achieving national development. The 7NDP aims at making the country

currently a lower middle –income country into a middle-income country by 2030. Equal access to justice is firmly anchored in the plan with government committing to strengthening the capacities of legal and justice institutions to ensure challenges such as high backlog of cases,

congestion in prisons, inadequate legal representation etc. are addressed. Specifically, government commits to adopting a Legal Aid Policy to serve as a framework to guide the

provision of legal aid services by CSOs and Community-Based Organisations (CBOs). The sources of juvenile law in Zambia include the Republican Constitution; various statutes, in

particular the Juveniles Act, the Criminal Procedure Code, the Penal Code, the Legal Aid Act, Anti- Gender Based Violence (GBV) Act, judicial precedent and various international and regional human rights laws to which Zambia is a party.

The Juveniles Act provides inter alia for the correction of juveniles who come into conflict with

the law. Article 64 (7) of the Act states that if “the court is satisfied that the offence is proved, the juvenile shall then be asked if he desires to say anything in extenuation or mitigation of the penalty or otherwise. Before deciding how to deal with him, the court shall, if practicable, obtain

such information as to his general conduct, home surroundings, school record and medical history as may enable it to deal with the cases in the best interest of the juvenile, and may put to

him any question arising out of such information. For the purpose of obtaining such information or for special medical examination or observation, the court may from time to time remand the juvenile on bail or to a place of detention.... As amended by No. 30 of 1964”.

The Juveniles Act does not state who should provide this social welfare inquiry report but over

time it has become practise that SWOs from the Department of Social Welfare (DSW) are the providers of this report. This inquiry is in accordance with the Beijing Rules that courts base punishment on both the offence and the circumstances of the child who comes into conflict with

the law.

3.3. National Stakeholders

A chain of actions are involved in criminal cases involving juveniles from apprehension, investigation and arrest to trial and disposal. These actions are carried out pre-eminently but not

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exclusively by criminal justice agencies. The roles and responsibilities of these stakeholders are summarised below:

The Courts

The Constitution of the Republic Zambia provides for the establishment of various courts. Chapter 28 of the Laws of Zambia provide for the creation of subordinate courts in all districts of Zambia. In juvenile cases, except in limited cases, the accused are initially heard in the

subordinate court sitting as juvenile court. These cases may subsequently be appealed to the High or Supreme Court. The Subordinate Courts are also courts of first instance and decide on

all matters provided for under the Act except for offenses pertaining to treason, murder and aggravated robbery. Subordinate courts are presided over by Magistrates1. The Amended Constitution of 2016 has established a Children’s Court under Article 133(2) as a division of the

High Court but this court is not yet operational.

Department of Social Welfare (DSW)

Falling under the Ministry of Community Development and Social Services, the DSW provides services aimed at the most vulnerable and indigent citizens. The DSW carries out statutory

services provided for under various pieces of legislation such as the Probation of Offenders Act, Juveniles Act, Adoption Act, Affiliation and Maintenance of Children Act and Day Nurseries Act. Under the Probation of Offenders Act and Juveniles Act, the DSW undertakes services for

juveniles in conflict with the law. These include investigations for courts on behalf of the courts. Gazetted as Probation Officers, SWOs on behalf of the courts investigate and render advice on

punishment deemed to be in the best interest of the child. Juveniles put on probation, undergo institutional or community based rehabilitation supervised by DSW Probation Officers. The DSW runs correctional facilities for the care and rehabilitation of juveniles as ordered by the

courts. These facilities are Nakambala Approved School in Mazabuka (for male juveniles) and Insakwe Probation Hostel in Ndola (for female juveniles). The Correctional Services under the

Ministry of Home Affairs runs Katombora Reformatory School but the DSW seconds staff to the institution. After care services are offered to juveniles discharged from these institutions.

In addition to the statutory services, the DSW also undertakes a number of programmes aimed at people living in extreme poverty and other vulnerable people. These include the Social Cash

Transfer (SCT), Public Welfare Assistance Scheme (PWAS), Community and institutional care for the aged and bursaries support for students unable to pay fees.

Legal Aid Board (LAB)

The Legal Aid Board is a semi-autonomous government organisation created to provide legal aid

for both criminal and civil cases2. Its services include legal advice, litigation and legal representation. Eligible persons are: those who cannot afford to hire a lawyer to represent them;

1 http://www.judiciaryzambia.com/subordinate-courts/ 2 Access to Justice Programme Brochure –Communication, Cooperation and Coordination Initiative (CCCI) Ndola Chapter

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the person has a good reason for asking for, defending or being part of an appeal and it is in the interest of justice that the person should be represented in the appeal.

The Police Service

The Zambia Police Service is mandated with the responsibility of maintaining peace, law and order in all communities’ country-wide. The Community Services Directorate (CSD) of the Police Service was created through a Parliamentary Amendment Act in 1999. It was created to

bridge the gap that existed between the police and members of the public. It has several units of which the Child Protection Unit (CPU) is one such. The CPU solely focuses on crimes

committed by and against children. The unit was recently created to offer more accessibility to children’s issues, previously handled by the Victim Support Unit (VSU). The latter was overwhelmed with GBV cases and therefore seen as giving little attention to children’s issues3.

Ideally the CPU should be found in all police stations and posts but it is not yet the case.

National Prosecution Authority (NPA)

It is charged with the responsibility of prosecuting people including juveniles charged with criminal offences in all courts of law other than a court martial. The NPA conducts criminal

appeals, processes all dockets and decides on committals for summary trial by the High Court. It also formulates and implements prosecution policies and provides legal advice to the police and

other law enforcement agencies in relation to criminal matters. The Zambia Correctional Service

It is one of the National Security Wings established under Article 193 of the Constitution Amendment Act no. 2 of 2016. The service is mandated to manage and control all prisons and

correctional facilities in Zambia. Previously known as the Prisons Services; the change in name points to the focus on correction and rehabilitation rather than punishment.

Juveniles

Any person who is under the age of nineteen years is a juvenile. A juvenile can be a child

(defined as any person under the age of sixteen years) or a young person (defined as any person who is at least sixteen but not yet nineteen years old). A juvenile particularly one who comes into conflict with the law, is a witness in a court case or is a victim of a criminal case is a stakeholder

in the juvenile justice system.

Parents and Guardians

Parents and guardians play an important in the life of a juvenile including nurturing, disciplining and overseeing their growth and development. Parents/guardians are required to be present upon

arrest of a juvenile and in their absence the DSW steps in. The Juveniles Act requires that the parent or guardian of the accused juvenile must attend, whenever, possible, the legal proceedings

of the juvenile’s case. If parents do not comply with these provisions, the juvenile may be

3 http://www.zambiapolice.gov.zm/index.php/services/community

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prejudiced. In Clever Chalimbana v the People the Supreme Court set aside a juvenile’s guilty plea because his parents did not attend proceedings. The court held that it did not know whether

the juveniles’ guilty plea was the fairest course for him to take without the benefit of advice from a parent or guardian4. Furthermore, parents or guardians play an important role during the

process of investigation by the DSW into the juveniles’ background. Age Determination Doctors

When a juvenile appears before a court, proof of age must be availed. Where this is not available or there is doubt about the age of the accused the courts make an order for age determination.

This is carried by doctors using MRI scans, X-rays, dental and gynaecological tests. MRI scans is the preferred technology as it removes exposure to radiation but is not widely available in the country.

Civil Society Organisations (CSOs)

There are several CSOs involved in the juvenile justice system. The services they provide include provision of legal services, community awareness raising and sensitization on human rights, advocacy for policy and legal reform and provision of diversion services from the judicial

system for children found guilty of misdemeanours.

4. LIMITATIONS OF STUDY

The limitations of the study are as follows:

i. The study was designed to investigate the causes and determinants of the delays and not to test the extent of the delays or test the hypotheses of whether delays are happening or not.

ii. The study was allocated a total number of 20 days. This therefore limited the extent

of the research and narrowed it to a focus mostly on role of the Department of Social Welfare rather than a review of delays in delivery in the entire juvenile justice system.

5. PRESENTATION OF FINDINGS

Delays in issuance of social welfare reports and court confirmations play an important role in keeping juveniles in prolonged detention. Information in Table 1 on next page collected from the subordinate court in Kitwe illustrates:

4 Handbook on Juvenile Law in Zambia – Center for Law and Justice, Cornell Law School’s Avon Global Center for Women and Justice and International Human Rights Clinic, August 2014

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Table 1: Juveniles in detention Awaiting SWRs and Court Orders

Situation Number in

Detention

Date(s) of Confinement

Confirmed by high court with SWR ready – Need to be taken to Katombora

1 26.05.2017

With SWRs but not yet confirmed by high court

19 Between 01.09.14 and 26.08.15

Not yet confirmed and SWR pending 6 Between 09.10.15 and

22.03.17

The following findings reflect the key determinants, causes and blockages for the delayed

issuance of social welfare reports in juvenile cases. The findings also reflect on matters pertaining to the quality of the reports.

The findings on the cause of delays in issuance of social welfare reports in order of priority are as follows:

i. The district offices of the DSW have insufficient numbers of SWOs to carry out the task of conducting the necessary investigations and producing the reports. Besides this

function, these officers carry out multiple other functions (statutory and non-statutory) as outlined in earlier section on stakeholders’ roles and responsibilities. During the visits to

the DSW offices it was observed that they were overwhelmed with the number of people seeking various types of assistance. To deal with this problem, efforts are being made by the DSW to seek the services of CSOs such as the Social Workers Association of Zambia

(SWAZ) to work out arrangements for their assistance.

Table 2: Staffing levels and Juvenile Cases Handled in Period Jan-March 2018

District No. of staff No. of cases Period

Lusaka 9 193 January - March, 2018

Kitwe 4 94 January - March, 2018

Ndola 4 90 January - March, 2018

Mazabuka 3 45 January - March, 2018

Choma 3 45 January - March, 2018

Source: Key Informant Interviews

Table 3 on next page further illustrates point on insufficiency of numbers showing Mazabuka

Municipal Council proposed staff establishment under the decentralised structures:

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Table 3: Housing and Social Services Section, Social Welfare Unit Staff Establishment

Positions Number

Assistant Director 1

Chief Social Welfare Officer 1

Senior Social Welfare Officer 1

Social Welfare Officer 3

Juvenile Welfare Officer 6

Adoption Officer 1

Assistant Social Welfare Officer 6

Total 19

Source: Mazabuka Social Welfare Department

ii. The district social welfare offices have insufficient transport and logistical support such

as vehicles and fuel to execute court investigation tasks. As a result, home visits to ascertain family, school, and other necessary background information pend for some time or not undertaken at all. Table 3 below gives numbers of vehicles available in the

districts. These vehicles are for use for all departmental duties not just for court investigations.

Table 4: Vehicles per District

District No. of vehicles

Lusaka 2

Kitwe 1

Ndola 1

Mazabuka 1

Choma 1

Source: Key Informant Interviews

iii. In all districts visited with one exception, there is an established internal practice in

which specific dates are set aside for juvenile matters to be heard in the subordinate courts. The DSW has designated specific officers to attend to matters in court on specific

dates. This has helped with some level of coordination between the courts and the DSW and worked in the interest of both the duty bearers and juveniles. For the duty bearers it ensures that SWOs are available at the courts as required and available for instructions or

requests from the magistrates. This practice also works for the juveniles as it is often the case that SWOs meet the juveniles, parents/guardians for the first time at the courts and

also collect required information given the challenges of making home visits.

But overall weak coordination and communication among key stakeholders contributes to

the problem at hand. From the time the juvenile is apprehended, arrested and committed to trial, the nature of proceeding in terms of securing the involvement of SWOs is ad hoc. In certain cases, police will inform DSW from the time of arrest of a juvenile but for the

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most part, SWOs only get know when juveniles are at court taking plea or at later stages in the trial. In some cases, they are informed of cases directly by concerned magistrates

or judges. Beyond the various laws, they are no specific guidelines for the interface between stakeholders in the juvenile justice sector.

iv. In some cases, juveniles have lost parents and/or guardians due to death or have lost

contact with them due to estrangement. These are typically juveniles who may be living

on the streets or with friends and juveniles who have crossed borders from other countries. In these cases, information required about the family may not be easily

available or at all.

v. In some cases, juveniles do not give accurate information about family address/contact

making it difficult to ascertain veracity of their statements and leading to lengthening the process of tracing the juveniles’ family in order to get the necessary information. But

even in cases where accurate information is provided tracing families in poorly planned settlements poses a challenge due to lack of streets, street names and house numbering system.

vi. General lack of awareness amongst juveniles and parents/guardians of the need for social welfare reports in juvenile cases. Juveniles and their parents/guardians were generally

found to be ignorant of this need prior to appearing in court. This means therefore that opportunity for them to proactively contact the DSW is lost hence contributing to the

delay. This lack of awareness extends to the general public including places such as schools and churches where large numbers of juveniles congregate.

This finding is in line with the findings of the baseline study showing low levels of awareness and knowledge of certain rights5. The study shows that very few individuals

(7.4%) had knowledge that the constitution offers special protection from exploitation of children. Other constitutional provisions that most respondents did not know about (only

21.4% knowledge of these rights), included the rights to be presumed innocent until proven guilty, to remain silent during trial, not testify, and not to be prosecuted twice for same crime.

vii. It was observed that the DSW operates a manual paper based system for preparation and

storage of SWRs. This leads in some cases to delays in gathering information about

juveniles whose family and background is one district but come into conflict with the law

in another district. Strides are being made towards computerisation. An electronic

integrated data base system called the Zambia Orphans Management Integrated System

5 Baseline Survey Report - Levels of Awareness and Knowledge of Selected Political/Civil Rights and the Utilisation of

Paralegal Services for the Civil Society Participation Programme Project – April, 2016

[17]

(ZOMIS) is being worked on with the support of USAID. The expectation is for it to be

concluded in 2019. The related initiative is the Ministry of Justices administration of

justice computerisation exercise.

viii. The system of coordination referred to above in point 3 above does not apply to the higher courts. These courts produce a cause list of cases to be dealt with in the year as per

established guidelines. This list does not specify whether the accused is a juvenile or not. The DSW usually gets to know of juveniles appearing before these courts by being informed by the courts themselves or through other agencies such as the NPA and the

LAB. This is usually at the time the report is required and short notice is given for the production of the reports. The DSW is usually unable to comply with the time instruction

and often is the case that extra time is request for.

ix. The order for age determination is given by the courts when there is doubt or lack of

proof of age of the juvenile. Therefore, until age is determined, trial will be suspended. The process of age determination takes anywhere between 7 days to 30 days. It is

estimated that out of 10 juveniles appearing before the courts between 2 to 3 are sent for age determination. This process too contributes to the delay in production of SWRs as the overall process of the cases before the courts is delayed awaiting age confirmation. A

variety of factors cause these delays paramount of which is the small number of radiologists available in hospitals to undertake this function.

x. Lack of motivation by some SWOs was cited, collection of information for social welfare

reports is seen as a demanding exercise, and is not adequately funded and therefore some

officers prioritize activities that provide incentives such as the Social Cash Transfer (SCT). The main incentive being provision of allowances.

xi. The Juvenile Act states that before deciding how to deal with a juvenile, the court shall, if

practicable, obtain such information as to his general conduct, home surroundings, school

record and medical history as may enable it to deal with the cases in the best interest of the juvenile. The Act points out where practicable that this be done. However, the

practice of SWRs has become institutionalised and mandatory leading to delays. For example, the difficulty pertaining to the acquisition of information for a juvenile who has crossed borders may make impractical the ability to investigate and produce a social

welfare report.

Quality concerns over the contents social welfare reports were raised. The matter of quality contributes to delays in production of the SWRs as in some cases courts have thrown out the reports over quality concerns.

The general format of the social welfare report is outlined in box on next page.

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Box 1: Format of Social Welfare Report

1. PARTICULARS OF THE JUVENILE: Name, Age, Sex, Date of Birth, Place of Birth, District, Tribe, Chief, Village, Occupation, Nationality, Religion, Contact, Residential Address

2. FAMILY COMPOSITION: Name Occupation Father: Mother: Step Father: Step Mother: Guardian

3. Family Background Brief history of the family, marriage, migration, guardian other than biological parents, relationship to the juvenile.

4. Home Conditions Residential Address, neighbourhood, sentiments of neighbours, number of people in the home, main source of income in the home, anyone ill in the home, is the juvenile the primary caregiver in the home, amenities (water and electricity), meals per day etc.

5. Education Background Level of education attained, who is the sponsor, name school, standing in class, sentiments of teachers.

6. Health Background Physical/social-psychological health. Recent trauma, grief

7. Hobbies/Character Interests, proclivities, demeanour

8. Previous Offence Is the juvenile a first offender? Previous offences

9. Present Offence Law of Zambia- section, acts, chapter

10. Particulars of the offence Indictment – name of juvenile, day of offence, town, district, charge

11. Juvenile’s attitude towards offence

12. Parents /guardian attitude towards offence

13. Analysis and Recommendation

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Brief summary of findings and juveniles towards the offence, analysis of points to be considered in the best interest of the juvenile. Recommendations towards disposal of the case depending on background of the juvenile, stability of the home and community support, gravity of offence and previous offences of the juvenile.

Name of Probation Officer:

Court Order:

Case Number:

Magistrate:

Source: Lusaka DSW

The findings pertaining to quality are as follows:

i. They are slight differences in arrangement of the format of the SWRs in the different districts but there are otherwise no major differences. However, the format outlined above, goes beyond the headlines and gives guidance on what is required which is not

the case in all districts. Other formats only list headlines and it is the case that some staff particularly newer ones face challenges in satisfactorily filling in the template.

A conspicuous absence in this format is any reference to disability. Disability of the juvenile or being a primary caregiver for a member of a family with a disability is an important aspect of the circumstances of the juvenile.

ii. The reports tend to lack depth. In particular, the courts pointed the need for more

information on the circumstances leading to child behaving in the way they are. Are they from a broken home, has child faced a history of violence etc.

iii. Apart from lack of depth some reports also contained contradictions, serious grammatical and other errors. For example, in earlier section of the report, the juvenile would have been stated not to have had a previous offence but in the analysis

and recommendation section would be stated as a repeat offender.

iv. Most repeated criticism of the SWRs was that there was a lot of “copy and paste”.

Identical information was given for different juveniles with little differentiation. This arises due to inability to make home, school and other visits to collect information but

also due to lack of report writing skills by some officers.

v. In some cases, harsh language is used against the juveniles for example it was often the case that juveniles who did not plead guilty were described as not remorseful or

time wasters. Juveniles have a right to plead as they deem fit and not be subtly or otherwise coerced into guilty plea in the expectation that the court will exercise

leniency. According to the CRC presumption of innocence is fundamental to the protection of the human rights of children in conflict with the law.

vi. When information about juveniles in detention reaches the SWOs late, they tend to hastily compile a report to avoid being labelled time wasters by the court. The quality of the report is affected as officers do not conduct thorough investigations but depend

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on secondary data.

vii. There was little evidence of concerted, comprehensive and systemic training of the writing of the SWRs.

6. RECOMMENDATIONS

The ideal process for minimizing or even eliminating delays in issuance of social welfare

reports is outlined in diagram below:

For this ideal situation to be attained; significant human, financial and logistical resources will need to be made available. In addition, significant reforms will need to be undertaken in the

DSW and the entire juvenile justice system. In his Dissertation on ‘The Juvenile Criminal Justice System in Zambia vis-à-vis the International protection of Children’s Rights’ Davies Chali

Court makes approriate order for probation/counselling or approved school

If the court is satisfied that the offence is proved, SWO presents SWR for consideration by court

If juvenile found with case SWO begins gathering of information for preparation of SWR

SWO, parents or guardians attend court session from commencement

If decision is taken to proceed to trial, DSW, parents or guardians are informed by juveniles lawyers

Investigations ensue and police interogate juvenile in the presence of lawyers

Juvenile, parents or guardians are informed of legal representation options (On day of arrest)

Police Bond is issued immediately to av iod juvenile spending nights in cells and released to go home/safe place (On day of arrest)

On arrest - Parents /Guardians and DSW are informed immediately by the police. Juvenile is informed of rights (On day of arrest )

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Mumba states6 “If one were to compare the provisions of part III of the Zambia Juveniles Act, the CRC and ‘the Beijing Rules, he/she would be inclined to conclude that there are adequate

legislative provisions for the protection of the rights of children in the criminal justice system in Zambia. However, the practice and theory seem to be at a great variance. It is an undeniable fact

that Zambia faces practical challenges in implementing its own domestic laws and the provisions of the CRC. There are specific and general challenges that need to be addressed such as adequate resource allocation to criminal justice agencies, the change of the mind-set of the law

enforcement agencies on how to treat children in conflict with the law, enhancement of political will and government commitment to upholding and protecting children’s rights. Without these

and many more challenges being addressed, the situation of children in conflict with the law will remain poor and subsequently the violation of their rights will continue unabated”.

It is fair to say that since this dissertation was written some key reforms have taken place such as the setting up the Child Friendly/ Fast Track Courts for GBV cases and of the Child Protection

Unit within the police service. Law reform has been undertaken leading to the Children’s Code Bill which is the domestication of the CRC / ACRWC and a collapsing of the Juveniles Act, The Probation of Offenders Act, Adoption Act, the Affiliation and Maintenance of Children Act and

Legitimacy Act. The content of the Bill is not in the public domain yet but it is expected to be

more child-friendly including legally providing for a diversion framework. Training has been

taking place on various aspects of juvenile justice. However, initiatives such as the setting up the Child Friendly/ Fast Track Courts for GBV cases the Child Protection Unit within the police

service have very limited geographical coverage and much more needs to be done. For the most part however the dissertations’ conclusion remains true to the current situation.

The recommendations that follow are presented divided into those that should be worked on in the short, mid and long term.

Short–term (1-2 years)

i. There is need to further strengthen coordination and communication among key

stakeholders to ensure that from the time a juvenile is apprehended, arrested and committed to trial, the involvement of SWOs is secured. An important step towards this strengthening has been taken with initiatives such as the creation of the

Communication, Cooperation and Coordination Initiative (Triple CI) and the Child Justice Forum. Its membership comprises of the criminal justice agencies, CSOs

involved in the provision of legal services and the DSW. The Triple CI’s objectives include strengthening the spirit of networking and collaboration for enhanced justice system delivery. This initiative has scored successes for example in Ndola. It was

agreed amongst members in dealing with backlog of cases before the courts that for those in detention, the “First In First Out” principle be applied. This means those that

6 The Juvenile Criminal Justice System in Zambia vis-à-vis the International protection of Children’s Rights by Davies Chali Mumba - A dissertation submitted to the University of Zambia in fulfilment of the requirements for the degree of Master of

Laws. The University of Zambia, Lusaka, 2011

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are detained earlier get to be heard in chronological order of entering detention. This has reduced time spent in detention for awaiting trial detainees.

The Triple CI structure and other initiatives such as the Child Justice Forum should be used to develop guidelines to govern the relations and communications between

stakeholders in the criminal justice sector.

ii. The format of the SWR will need to be revised to take into account the omission of disability considerations and strengthened to ensure more information is collected on the circumstances leading to child behaving in the way they are. Working with the

provincial SWOs the Director of Social Welfare at national level should take a lead in ensuring this is done. The involvement of the Director of Social Welfare is for quality

assurance across the country.

iii. Not much training is given to officers at point of deployment apart from in some

cases a brief theoretical orientation. There is need for training of all officers at deployment stage and retraining of incumbents in writing of SWRs. But the writing is

done in a context; therefore, training should extend to understanding juvenile justice comprehensively including what it means to act in the best interest of the child. District SWOs should take responsibility for ensuring district level training of officers

takes place. The DSW is alive to this challenge and has taken measures to enhance training of staff. A programme of short courses has been agreed with the University

of Zambia focusing on child welfare issues which commences in 2019.

iv. The DSW in dealing with the higher courts should enhance their case management by taking the initiative once the cause lists are released to find out which cases involve

juveniles so they can get involved timely. In each district, amongst the SWOs designated to work with the courts one should be assigned to finding out the juvenile

cases on the cause lists.

v. The DSW and CSOs should conduct awareness raising activities on juvenile justice

issues including issue of SWRs in the community, schools and in churches. This will enable juveniles, parents/guardians and other interested parties more proactively seek

the services of the DSW in this regard and engagement with criminal justice stakeholders and aid in the prevention of offending and expediting handling of juvenile cases.

vi. The DSW should strengthen the role of the Community Welfare Assistance Committees (CWACs) in tracing families and assisting to get some of the information

required for the SWRs. It is acknowledged that the DSW is already looking at strengthening the Community Development Assistants role in this effort.

vii. The development of a communications strategy of the DSW will be necessary to guide all its communications work, so that it is clear what key messages are conveyed

by who. The National Director should take a lead on this.

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Mid-term (3-4 years)

i. There is need to increase numbers of staff, vehicles, finances of the DSW to enable it carry out this task timely and to ensure good quality work. This will require

increased budgetary allocation to the DSW by the Ministry of Finance.

ii. Social Welfare Officers should be employed to offer non - statutory or statutory

services so that they focus on one particular programme area as opposed to being overwhelmed with competing demands from the two programme areas. For example,

Social Cash Transfer (non-statutory services) competing with the investigations for court (statutory services).

iii. Quicker consideration should be given to whether it is practical to get the SWR in every case rather than keeping juveniles in detention for a long time when it is not

practical to have the report. The national Director of Social Welfare should liaise on this matter with the judges and magistrates’ assigned to juvenile justice to seek guidance of the court. Otherwise, interpretation of the law on this matter may be

necessary and it is recommended that CSOs take it up for test case litigation.

Long Term (5 years and beyond)

i. Expedite the on-going efforts of modernisation of the systems of collecting and compiling of SWRs and related processes.

ii. The role of CSOs in assisting should be explored beyond SWAZ to include other CSOs who could play this role taking into careful consideration provisions of the law,

capacity and quality considerations.

Other recommendations that do not directly pertain to SWRs but will help accelerate juvenile

justice system are:

i. Accelerating the implementation of the “National Framework on Diversion”. This will help rationalise the diversion processes and help decongest the courts. Presently, diversion at police stations is very discretionary. Similar cases are treated differently

with arbitration being applied whilst others will be taken through to trial.

ii. Fast track the process of enacting the Child Code Bill. It seeks to consolidate in a comprehensive manner the laws providing for the rights and welfare of children. When enacted it will domesticate the CRC as well as various international and

regional treaties that address the rights of children.

iii. The DSW should explore relations with innovations such as the Legal Services Unit

(LSU). The LSU is a collaborative effort between Subordinate Courts, the Legal Aid Board and the Prisons Care Counselling Association; a Civil Society Organisation for the provision of legal representation to vulnerable and indigent clients. The LSU

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offices are located within the court buildings and staffed by paralegals, legal aid assistants and a supervising lawyer.

iv. Prevention of juveniles coming into conflict with the law is the ideal. While elimination may not be possible, certainly minimising as much as possible is desired.

Many respondents expressed concern at increased numbers of juveniles coming into conflict with the law especially pertaining to gang violence and expressed desire that

there be a national reflection on causes. This reflection would look at issues related to parenting, education provision, recreation, employment, the roles of churches and other community structures. The reflection on these issues which is undertaken during

international and national days such as the Day of the Family etc. should be enhanced and given more visibility.

7. CONCLUSION

The report states the causes of delays in the issuance of social welfare reports for juveniles, outlines the quality issues pertaining to the reports and how this contributes to the delays in issuance of SWRs and makes recommendations for the way forward.

The situation regarding issuance of these reports remains problematic and concerted efforts are needed to accelerate their issuance. Changes need to be effected in terms of budget allocations

and release of budgeted for funds, staffing levels, equipment and other logistical support for the DSW. Other changes are needed in the coordination amongst juvenile justice institutions,

ensuring adherence to the laws whilst exercising necessary discretion where the law allows it so that juveniles are given bond and detention is a last resort. Increasing awareness on SWRs amongst juveniles, parents/guardians and the wider community will enable them being more

proactive in seeking service of the DSW in relation to SWRs. Innovations should be embraced and wider reforms to the juvenile justice system be accelerated.

8. ANNEXES

Annex 1 – Terms of Reference

Terms of Reference for Research on Delayed Issuance of Social Welfare Reports for Juveniles

1.0 Background and Rationale According to both the UN Convention on the Rights of the Child and the AU African Charter on the Rights and Welfare of the Child, to which both Zambia is a State party, every child that is accused or found guilty of a criminal offence has the right to special treatment consistent with the child’s sense of dignity and worth. To that end a child who comes into conflict with the law has to be treated in a manner consisted with the following principles:

Non-discrimination of children coming into conflict with law on any basis;

The best interest of the child should be the primary consideration in all considerations;

Ensuring survival and development of the child accused or found guilty of a crime; Respect the views of the child and give his or her views due we ight according to its age

and maturity;

Deprivation of liberty be the last resort. The child should be diverted from the justice system;

Engage the child’s family;

If detention has to take place, children should not be held in the same facility as adults;

Option of restorative justice to reduce institutionalization; Ensure the child has quality legal representation;

Focus should be on rehabilitation and reintegration of the child back into its community.

The Zambia Civic Education Association (ZCEA) is a non-governmental, not for profit organization, that promotes and protects children’s rights through advocacy and civic education. The Association established citizens’ legal advice desks soon after its inception, and turned these into child friendly citizens’ legal advice desks after a reorientation of its advocacy focus towards children’s rights. Currently ZCEA has 12 such desks staffed by 2 paralegals each (in total 24), which provide legal advice in matters that advance children’s rights and justice. In li ne with juvenile justice principles the paralegals visit police stations and correctional facilities in the towns they operate from to monitor children in detention either on pre or post detention. Consequently, between 29th November and 2nd December, 2016, ZCEA visited four correctional facilities namely: Kamwala Correctional Facility, Kabwe Minimum Prison, Kamfinsa Correctional Facility and Chingola Prison to ascertain the challenges that juveniles on pre - and post-trial detention were facing. Despite the fact that according to the Zambian Juveniles Act, juveniles are not supposed to be held in prisons but only in approved or reformatory schools, none of these detention facilities were found to have special cells for juveniles. ZCEA discovered a total of 117 juveniles in these detention facilities. Of these juveniles, 58 already had a ‘finding of guilty’ determination, while trial was still on-going for the other 59. In both instances delayed social welfare reports were cited as the major reasons of the needlessly prolonged detentions. Therefore, ZCEA in collaboration with the Ministry of Community Development Social Welfare Department with the support of GIZ Programme for Legal Empowerment and Enhanced Justice Delivery (PLEED) decided to undertake a research to determine the causes of delayed issuance of social welfare reports for juveniles in the judicial system. The results of the research will help

to reduce prolonged detentions of children and enhance juvenile justice in Zambia.

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2.0 Audience and use of findings The audience of the research is specifically the Social Welfare Department and by extension all institutions and departments that have to deal with juvenile justice (the police, correctional services and the judiciary). Also included are civil society organisations that work in promoting

juvenile justice.

The findings shall be used to hasten issuance of social welfare reports that will in turn reduce average time that juveniles spend in prisons with adult offenders instead of reformatory schools. Further, the research findings shall result in faster trials and sentencing of juveniles that come into conflict with the law. Finally, it is hoped that the research findings will contribute to improved legal framework and processes in the Zambian juvenile justice system. ZCEA will use the findings to develop policy briefs and recommendations to relevant authorities.

3.0 Research objective Establish determinants, causes and blockages for the delayed issuance of social welfare reports in juvenile cases for both pre and post-trial detentions, and develop specific recommendations on how to improve the internal processes and cooperation with other stakeholders

4.0 Key sources and people to be consulted Social welfare department, the police, the judiciary, correctional services, juveniles in the judicial system, their parents / guardians, civil society organisations working in the promotion of juvenile justice and any other relevant stakeholders.

5.0 Research management The research will be managed jointly by ZCEA and the social welfare department under the Ministry of Community Development and Social Welfare. The focal point person is the Monitoring of Social Welfare Reports for Juveniles Project Officer. Both the Director of Social Welfare Ministry of Community Development and the Executive Director of Zambia Civic Education Association will provide oversight of the research. The Consultant is expected to work for a total of 20 days and advise and conduct the research as well as draft a final report.

6.0 Deliverables 1. Inception report based on desk research and the documentation of the inception meeting. 2. A participatory multi sectoral research methodology framework including appropriate

research ethics developed together with ZCEA in a 2-day workshop. 3. Conduct the research. 4. First draft report based on the findings of the research (to be shared and discussed with

ZCEA). 5. Final report. 6. A comprehensive Annex covering a list of all documentation sources, field notes, recordings,

survey data and other materials, material to the research.

7.0 Qualifications and experience required

At least a master’s degree in social sciences.

A minimum of 5 years relevant experience in research work.

Proof of similar work done.

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Experience/knowledge of children’s and juvenile rights and the respective international frameworks is an asset.

Submission proposals should contain technical and financial offer.

Annex 2 - Interview Guide

All interviews will begin with a short explanation of the purpose of the interview, seeking

consent for the interview and explaining the reason for recording the interview.

FOR THE JUVENILES:

What is your name?

How old are you?

Are you in school or when did you leave school?

Tell us about your family background

What are/were the reasons for your arrest or incarceration?

How long did you stay in prison cells?

How long did you stay in detention centre/remand facility?

Did you receive legal assistance, if yes from who?

Did anyone from the Department of Social Welfare (DSW) attend to your case after you

were arrested? If so, at what point did they intervene?

When you first got into conflict with the law where you aware of the issuance of reports

from the social welfare department for juveniles.

What in your opinion was the cause of the delay?

What suggestions do have for hastening the issuance of social welfare reports?

Do you have any questions or any other important thing you may want to say about this

matter which you have not already said?

FOR PARENTS/ GUARDIANS:

What is your name?

Tell us about your family background.

What are/were the reasons for the arrest or incarceration of your child/ward?

How long did your child/ward stay in prison cells?

How long did your child/ward stay in detention centre/remand facility?

Did your child/ward receive legal assistance, if yes from who?

When your child/ward first got into conflict with the law where you aware of the

issuance of reports from the social welfare department for juveniles.

How long after the juvenile was arrested did the DSW contact/meet you?

Were you interviewed by the DSW? What information about the juvenile and your

family situation did they ask for?

Did they explain why they are interviewing you?

Did you encounter any problems in your dealings with the officers from the DSW?

What sort of problems did you encounter?

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If the social welfare report was delayed, what in your opinion was the cause of the

delay?

What suggestions do have for hastening the issuance of social welfare reports?

Do you have any questions or any other important thing you may want to say about this

matter which you have not already said?

FOR THE POLICE:

What is your name? What rank do you hold in the police service?

Outline to us the process of dealing with juvenile offenders? Which steps do you

take? Who do you inform?

What is the average length of time juveniles stay in the police cells?

What is the nature of your relationship with the social welfare department and other stakeholders involved in the process? What structures, guidelines, procedures,

protocols etc. are in place to guide your interactions with the social welfare department and other stakeholders?

Do you receive special training on juvenile justice? When last did you receive the

training and what was the focus?

What role do you play in the issuance of social welfare reports?

Do you face any problems in this role?

What in your opinion is the cause of these delays?

What suggestions do have for hastening the issuance of social welfare reports?

Do you have any questions or any other important thing you may want to say about this matter which you have not already said?

FOR SOCIAL WELFARE DEPARTMENT:

What is your name? What is your position in the department?

What is your educational background?

How long have you worked in the social welfare department?

What skills do you have in relation to juvenile justice?

Did you receive special training for your job in relation to juvenile justice? When last did you receive the training and what was the focus?

Who informs you of new cases and at what stage do they inform you?

When a juvenile gets into conflict with the law, what procedures does the department

follow in getting the report issued in a timely manner?

Which information do you need to compile the report?

What challenges do you as a department face in ensuring timely issuance of social welfare reports?

What in your opinion is the cause of these delays? Interviewer to probe further on: o Number of officers dealing with social welfare reports in the department

o Number of cases handled by each officer in a month

o Availability of logistical support for undertaking the task

What suggestions do have for hastening the issuance of social welfare reports?

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Are you aware of any quality concerns with the reports produced? What are the

concerns?

What are the causes of the quality issues?

What suggestions do you have to improve the quality of social welfare reports?

Do you have any questions or any other important thing you may want to say about

this matter which you have not already said?

FOR CORRECTIONAL SERVICES:

What is your name? What is your position in the service?

How long have you worked for the service?

What skills do you have in relation to juvenile justice?

Did you receive special training for your job in relation to juvenile justice? When last did you receive the training and what was the focus?

When a juvenile gets into conflict with the law, and end ups in correctional services facilities, what is done to ensure they are protected?

What role do you as correctional services play in the process of facilitating issuance of social welfare reports for juveniles?

What in your opinion is the cause of delays in the issuance of social welfare reports?

What is the nature of your relationship with the social welfare department and other

stakeholders involved in the process? What structures, guidelines, procedures, protocols etc. are in place to guide your interactions with the social welfare department and other

stakeholders?

What suggestions do have for hastening the issuance of social welfare reports?

Do you have any questions or any other important thing you may want to say about this

matter which you have not already said?

FOR THE MAGISTRATES AND JUDGES:

What is your name? What is your position?

When a juvenile gets into conflict with the law, and ends up facing trial, what role do you

play to ensure their rights are protected?

Do you have any special training in juvenile justice? When last did you receive the

training and what was the focus?

What in your opinion are the causes leading to the delay in issuance of social welfare

reports?

How do you find the quality of social welfare reports that are presented to you?

Which information would you like to have contained in the report that is currently not there?

What information about the juvenile is most important for you to make your judicial decisions?

What suggestions do have for hastening the issuance and improving the quality of social

welfare reports?

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Do you have any questions or any other important thing you may want to say about this

matter which you have not already said?

FOR CSO STAKEHOLDERS:

1. What is your name? What is your position in the organisation?

2. When a juvenile gets into conflict with the law, what role do you play in promoting their protection?

3. What role do you play in the process of facilitating issuance of social welfare reports for

juveniles?

4. What in your opinion is the cause of the delays in the issuance of the social welfare

reports?

5. What is the nature of your relationship with juveniles, parents/guardians, police, social welfare department, correctional services and other stakeholders involved in the process?

What structures, guidelines, procedures, protocols etc. are in place to guide your interactions with these stakeholders?

6. What suggestions do have for hastening the issuance and improving the quality of social welfare reports?

7. Do you have any questions or any other important thing you may want to say about this

matter which you have not already said?

FOR PROSECUTORS

1. What is your name? What is your position in the authority?

2. Do you have any special training in juvenile justice? When was the last training held and what was the focus?

3. Is there any special treatment for juvenile offenders in the prosecution process?

4. Do you easily get the information you need for investigations?

5. Whom do you collaborate with in dealing with juvenile offender cases? 6. How do you collaborate with them? What structures, guidelines, procedures, protocols

etc. are in place to guide your interactions with these stakeholders?

7. What role do you play in the process of issuance of social welfare reports?

8. What in your opinion is the cause of the delays in the issuance of the social welfare

reports?

9. What suggestions do have for hastening the issuance and improving the quality of social welfare reports?

10. Do you have any questions or any other important thing you may want to say about this matter which you have not already said?

FOR DOCTORS IN CHARGE OF AGE DETERMINATION

1. What is your name and position?

2. What role do you play in the process of issuance of social welfare reports?

3. Do you easily get the information you need for age determination?

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4. What are the challenges you face in this process? 5. What in your opinion are the causes of these challenges?

6. Whom do you collaborate with in in the process of age determination? 7. How do you collaborate with them? What structures, guidelines, procedures, protocols

etc. are in place to guide your interactions with these stakeholders? 8. What suggestions do have for hastening the process of age determination and therefore

the issuance of social welfare reports?

9. Do you have any questions or any other important thing you may want to say about this matter which you have not already said?

FOR LEGAL AID BOARD

1. What is your name and position?

2. Do you provide legal aid to all juvenile offenders who seek it from you? 3. If not what are the causes of lack of representation in certain cases? 4. How do your cooperate with the DSW in juvenile cases that you handle?

5. Does the DSW inform you about juvenile cases? At what stage do they do so?

6. What role do you play in the process of issuance of social welfare reports?

7. Do you have any special training in juvenile justice? When last did you receive the training and what was the focus?

8. What are the challenges you face in the process of representing juveniles? 9. What in your opinion are the causes of these challenges? 10. Who else do you collaborate with in dealing with juvenile offender cases?

11. How do you collaborate with them? What structures, guidelines, procedures, protocols etc. are in place to guide your interactions with these stakeholders?

12. What suggestions do have for hastening the issuance and improving the quality of social welfare reports?

13. Do you have any questions or any other important thing you may want to say about this

matter which you have not already said?

FOR REFORMATORY SCHOOLS

1. What is the number of juveniles in your centre? 2. What is your role in the juvenile justice process?

3. What challenges do you face in the execution of your duties? 4. Who else do you collaborate with in the execution of your duties? 5. How do you collaborate with them

6. What is the cause of those problems? 7. What improvements would you like to see in the juvenile justice processes?

FOR SCHOOLS

1. When juveniles in your school get into conflict with the law what do you do?

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2. Are you aware of the issuance of reports from the social welfare department for juveniles?

3. Are you aware of any challenges pertaining to the issuance of these reports?

4. If yes what is the cause of these problems?

5. Do you play any role in the juvenile justice process? 6. Do you think schools should play a role when their juvenile pupils offend? If yes, what

should be the role?

7. What improvements would you like to see in the juvenile justice processes?

FOR CHURCHES

1. When juveniles in your church get into conflict with the law what do you do?

2. Are you aware of the issuance of reports from the social welfare department for juveniles?

3. Are you aware of any challenges pertaining to the issuance of these reports?

4. If yes what is the cause of these problems?

5. Do you play any role in the juvenile justice process?

6. Do you think churches should play a role when their juvenile members offend? If yes, what should be the role?

7. What improvements would you like to see in the juvenile justice processes

Annex 3 - List of informants

Lusaka District

Name Position Organisation

1. Regina Tembo Ms. Parent N/A

2. Abigail Abina

Mushenywa Ms.

Station Coordinator -

CSD

Chelstone Police Station

3. Mpatso Nguluwe Ms. Legal Assistant Undikumbukile Project (UP)Zambia

4. Kelly Kapianga Mr. Director of Legal

Department

Undikumbukile Project

(UP)Zambia

5. Aaron Kyamasonde Machiya Mr.

Legal Assistant Undikumbukile Project (UP)Zambia

6. Nomsisi Wonani

Kakubo Ms.

Provincial Senior SWO DSW

7. Angela Nyirenda Ms. Senior Public Prosecutor NPA

8. Ilunga Kasongo Emmanuel Master

Juvenile Living Hope Foundation

9. Hon. Mwaaka Mikalile Principal Resident

Magistrate

Subordinate Court

10. Hon. Ireen Wishimanga Magistrate Subordinate Court

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11. Mauyaneyi Marebesa -Mwenya Ms.

Legal Aid Counsel LAB

12. Veronica Sunkutu-

Sichizya Dr

National Coordinator –

Radiology Services

University Teaching

Hospital

13. Dora Haruperi Kampata Ms.

District SWO DSW

Kitwe

Name Position Organisation

1. Kombe K. Kamanga Ms.

District SWO DSW

2. Frank Mukula Mr. Assistant SWO DSW

3. Bason Siambulo Mr. Assistant Superintendent Wusakili Police Station

4. Mercy Pondamali Lungu

Ms

Principal State Advocate NPA – Copperbelt

5. Vincent Musonda Master

Juvenile Wusakili Resident

6. Febby Musonda

Kambuma Ms.

Parent Wusakili Resident

7. George Mapalo Rev Coordinator Bethesda Zambia

8. Patrick Mulenga Master Juvenile Wusakili Resident

9. Collins Mwita Mulenga Master

Juvenile Wusakili Resident

10. Christopher Polito

Master

Juvenile Wusakili Resident

11. Joseph Mwila Master Juvenile Wusakili Resident

12. Malota Phiri Hon Resident Magistrate Subordinate Court

13. Sidney Chileleku Mr. Inspector Kamfinsa Correctional Facility

Ndola

Name Position Organisation

1. Pauline Matakala

Mulenga Ms.

Assistant SWO Insankwe Probation

Hostel

2. Florence Tembo Ms. Assistant SWO -Admin Insankwe Probation Hostel

3. Jessie Tembo Ms. Assistant SWO DSW

4. Paxine Kaoma Kaonga

Ms.

Assistant SWO DSW

5. Angela B. Mwanza Ms. Assistant SWO DSW

6. Simuyandi Ali Mr. Inspector VSU

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7. Natalia Yakovlyeva Dr Consultant Radiology Head of Department

Ndola Central Hospital

8. M. Mutanuka Ms. Guidance and

Counselling Teacher

Kansenshi Secondary

School

9. Lombanya Ms. Guidance and Counselling Teacher

Kansenshi Secondary School

10. Hon. Bubala Sikalunda Resident Magistrate Subordinate Court

11. Fanny Nyirenda Tembo

Ms.

Senior State Advocate NPA

12. Shika Wellington Mr. Pastor Deliverance Church

13. Astrida Banda Ms. Juvenile Insankwe Probation Hostel

14. Ethel Banda Ms. Senior Legal Aid

Adviser

LAB

Mazabuka

Name Position Organisation

1. Sikaaswe S. Stephen Mr. Public Prosecutor NPA

2. Mwansa Emmanuel Mr. Sergeant CPC

3. Mbelenga Michael Mr. Medical Superintendent Hospital

4. Mzeche Elizabeth Ms. District SWO DSW

5. Kelvin Matekola Mr. Senior Paralegal officer Caritas

6. Jere Rester Mr. SWO-Admin Nakambala Approved School

7. Halumba Evaristo Master Juvenile Nakambala Approved School

8. Kaongolo Morris Master Juvenile Nakambala Approved School

Choma

Name Position Organisation

1. Moono Morris Mr. Provincial SWO DSW

2. Kazembe Zyambo Mr. DSWO DSW

Livingstone

Name Position Organisation

1. Beatrice Moyo Ms. Inspector VSU

2. Jere Yobo Fr. Parish Priest St. Andrews Anglican Church

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3. Makinka Martin Mr. Senior Legal Counsel Legal Aid Board

4. Hon. Mukela Mbololwa Magistrate Class One Subordinate Court

5. Mutelo Maggie Ms. Inspector In Charge VSU

6. Mulamfu Sidney Mr. Provincial in Charge of Radiology/Provincial

Coordinator Imaging

Central Hospital

Annex 4 - References

a. Access to Justice Programme Brochure –Communication, Cooperation and

Coordination Initiative (CCCI) Ndola Chapter b. Baseline Survey Report - Levels of Awareness and Knowledge of Selected

Political/Civil Rights and the Utilisation of Paralegal Services for the Civil Society Participation Programme Project – April, 2016

c. African Charter on Human and Peoples’ Rights (ACHPR)

d. African Charter on the Rights and Welfare of the Child (ACRWC)

e. Handbook on Juvenile Law in Zambia – Center for Law and Justice, Cornell Law

School’s Avon Global Center for Women and Justice and International Human

Rights Clinic, August 2014

f. https://www.humanrights.dk/news/legal-aid-helps-secure-rights-vulnerable-

indigent-zambia

g. http://www.judiciaryzambia.com/subordinate-courts/

h. http://www.zambiapolice.gov.zm/index.php/services/community

i. Juvenile Act

j. Seventh National Development Plan – 2017 to 2021, Republic of Zambia

k. The Criminal Procedure Code Act, Chapter 88 of the Laws of Zambia, Ministry

of Legal Affairs, Government of the Republic of Zambia l. The Juvenile Criminal Justice System in Zambia vis-à-vis the International

protection of Children’s Rights by Davies Chali Mumba - A dissertation

submitted to the University of Zambia in fulfilment of the requirements for the

degree of Master of Laws. The University of Zambia, Lusaka, 2011

m. United Nations Convention on the Rights of the Child (CRC)

n. United Nations Standard Rules for the Administration of Juvenile Justice

o. ZCEA Change Project on Social Welfare Reports – October, 2017

Annex 5 - SUMMARISED TABLE OF FINDINGS AND RECOMMENDATIONS

Findings/Problems Recommendations Proposed Action 1. Insufficient numbers of SWOs to carry out

the task of conducting investigations and producing

*Need to increase the budgetary allocation to the DSW as well as the timely and actual release of budgeted for funds *Employ staff to carry out specifically either statutory or non-statutory roles not combined *Explore enhanced role of CSOs in assisting DSW with SWRs

*Ministry of Finance to consider increased allocation and time release of budgeted funds. *Director of DSW to take lead * CSOs and DSW to take the lead

2. Insufficient transport and logistical (vehicles and fuel) to execute task

Need to increase the budgetary allocation to the DSW as well as the timely and actual release of budgeted for funds

Ministry of Finance to consider increased allocation and timely release of budgeted funds.

3. DSW operates a manual paper based system for preparation and storage of SWRs. Does not promote integrity of information gathered and allow easy exchange of information between SWOs countrywide

Modernisation of the system of collecting and compiling of SWRs. Expedite development of ZOMIS.

Director of Social Welfare takes a lead

4. Unavailability of information on family of juvenile due to death, estrangement, difficult to find homes in unplanned settlement The practice of SWRs has become institutionalised and mandatory leading to delays

Quicker consideration should be given to whether it is practical to get the SWR in every case. Court interpretation of the law on this matter may be necessary.

DSW to seek guidance from courts.

5. Unavailability of information due to juveniles not giving accurate information about family contact etc. Lack of awareness amongst juveniles and parents/guardians of the need for SWRs

Conduct awareness raising activities on juvenile justice in the community, schools and in churches.

The DSW and CSOs should take a lead

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6.

Weak coordination and communication among key stakeholders

Further strengthen coordination and communication among key stakeholders to ensure that from the time a juvenile is apprehended, arrested and committed to trial, involvement of SWO is secured

The Triple CI structure could be used to develop guidelines to govern the interface between stakeholders in the criminal justice sector.

7. Poor attitudes of some SWOs Training to understand juvenile justice comprehensively including what it means to act in the best interest of the child hence tackling the attitudinal problems of some SWOs

District SWOs should take responsibility for ensuring district level training of officers takes place.

8. Poor quality of SWRs There is need for training of all officers at deployment stage and retraining of incumbents in writing of SWRs.

District SWOs should take responsibility for ensuring district level training of officers takes place.

9. Gaps in the SWRs Format of the SWR will need to be revised to take into account disability and strengthened to ensure more information is collected on the circumstances leading to child behaving in the way they are.

Working with the provincial SWOs the Director Social Welfare at national level should take a lead in ensuring this is done

END