Traditional court systems can be punitive and adversarial, and when children are involved, the consequences can be especially damaging. Recognizing this, Uganda’s legal sector has developed a solution that prioritizes the reintegration of a child back into the community, rather than labelling the child as a criminal. This forms the central subject of this article, Alternative Dispute Resolution (ADR) through Diversion.
What is Diversion?
Diversion is provided for under the Children Diversion Guidelines for Police Officers, 2019. Paragraph 1(d) of the Guidelines defines it as the processing and disposing of cases involving children by the police, at the discretion of police, without recourse to formal justice procedures.
Under statutory law, it is provided for under Section 134 of the Children Act Cap. 62, which governs the arrest and charging of children. Section 134(2) specifically empowers police to dispose of a case without recourse to formal court hearings.
This framework finds its backbone in international instruments that provide for child-friendly justice systems, notably:
- Rule 13.1 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules)
2. Article 17 of the African Charter on the Rights and Welfare of the Child.
The Rationale for Diversion
The Diversion process is guided by the following key objectives:
- To prevent the stigmatisation and labelling of children who come into contact with the law.
- To reduce the number of children clogging up the formal justice system.
- To make the child take responsibility and be held accountable for his or her actions, thereby promoting positive upbringing and rehabilitation.
Scope of Diversion
The scope of Diversion is governed by Paragraph 2 of the Guidelines. It applies to minor offences committed by a child who has attained the minimum age of criminal responsibility, which is 12 years, as provided under Section 133(1) of the Children Act Cap. 62.
Paragraph 2(3) specifies the offences to which Diversion applies, including:
- Affray
- Malicious damage to property
- Criminal trespass
- Theft
- Common assault
- Assault
- Prostitution
- Any other offence that is not capital in nature
Paragraph 2(4) sets out the exceptions, circumstances under which Diversion cannot be used:
- Where the safety of the child is at risk
- Where there is no voluntary consent
- In cases involving capital offences
Methods of Diversion
Paragraph 3 of the Guidelines provides that Diversion may take the following forms:
- Verbal or written warning
- Caution and release
- Victim-offender and offender-family conference
- Apology
- Reconciliation
- Restitution
- Diversion programme (including rehabilitation and skills development)
Procedure for Diversion
The procedure for Diversion is outlined under Paragraph 5 of the Guidelines and proceeds in four steps.
Step 1: Receive and Investigate the Complaint
The complaint is received and investigated by the Family and Child Protection Unit of the police. During this stage, the age of the child must be ascertained, the offence must be confirmed to fall within the prescribed list, and the evidence must be assessed to be sufficient to proceed.
Step 2: Notify Relevant Parties
The persons responsible for the child and the Area Probation and Social Welfare Officer must be informed. The process also requires the involvement of a fit person (a person approved to take charge of a child under the Children Act) and the wider community. The complainant is informed about Diversion, and all parties are advised on the process to facilitate a mutual agreement.
Step 3: Record the Settlement
Upon reaching a settlement, all parties and witnesses sign a settlement agreement. The implications of the offence are explained to the child, the child is counselled, and the consequences of failing to complete the Diversion measures are clearly communicated.
Step 4: Handover for Enforcement
The child and all relevant information are handed over to the Local Council Committee or Local Council Court, the Probation and Social Welfare Officer, and the fit person for enforcement of the Diversion measures and continued counselling.
Effect of Diversion
Paragraph 6 of the Guidelines provides that upon successful completion of the Diversion process, the child shall not be considered to have previously committed an offence and shall not have a criminal record.
Paragraph 6(3) further provides that completion of a Diversion measure by the child results in a definite and final closure of the case. Importantly, the child remains eligible for Diversion in the future, provided it is in the child’s best interests.
Conclusion
Diversion represents a significant and progressive step in Uganda’s approach to juvenile justice. By prioritizing rehabilitation, accountability, and community reintegration over punishment, it reflects the broader principle enshrined in the Children Act and international frameworks that the best interests of the child must always be the primary consideration. For legal practitioners, police officers, probation officers, and community leaders, understanding and properly applying the Diversion process is essential to building a justice system that truly serves its youngest members.
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