Dr. Joan Nyanyuki is the Executive Director of the African Child Policy Forum (ACPF), a Pan-African centre for policy advocacy and dialogue on African children’s rights.

Dr. Nyanyuki is Co-Chair of the Executive Committee of the Global Partnership to End Violence against Children and Chairperson of the African Partnership to End Violence. She has championed human rights, gender justice, equality and women’s rights in strategic leadership roles in national and international NGOs. She has a wealth of progressive experience in human rights research and advocacy and organisational leadership through her past roles as Amnesty International’s Regional Director in East Africa and The Great Lakes Region, as Executive Director of the Coalition on Violence against Women, and at the Independent Medico-Legal Unit.

Dr. Nyanyuki began her career as a medical doctor, working with survivors of torture and sexual violence before transitioning into human rights and gender equality work.

What are the main actions that ACPF carries out in order to promote child-friendly justice systems in African countries?

We undertake research to generate further knowledge about child justice in Africa. For instance, we developed the Guidelines on Action for Children in the Justice System in Africa endorsed by the African Committee of Experts. We carry out advocacy to advance law and policy reform, mostly targeting African governments and AU mechanisms.

In addition, we have done a lot of work to draw attention to the issues that must be addressed to promote the changes needed within the existing justice system and to raise awareness among governments and civil society. The continental and cross-country forums that we organise do this very well, and enable cross-country learning and sharing of practices. In 2018 we convened a high-level continental conference on Access to Justice for Children. This year we are planning to hold regional Child Justice Summits in East and Southern Africa.

Furthermore, ACPF is a technical partner of the African Committee of Experts on the Rights and Welfare of the Child. We therefore provide technical assistance to the Committee in its promotion of child-friendly justice. For instance, we worked closely with the Committee for the 2020 Day of the African Child which had a focus on access to child-friendly justice in Africa.

How has COVID-19 affected African countries regarding the rights and wellbeing of children in justice systems?

COVID-19 has changed the life of everyone, but after 18 months, we all understand that it is the most vulnerable members of society that are bearing the greatest brunt of this pandemic. Children fall into this category. The lockdowns that restricted movement and kept children behind closed doors also limited or delayed children being able to physically access justice.

As we watched the world scramble into a virtual mode, this barely took off in Africa, and certainly not in rural areas where most of Africa’s population lives. If online learning barely took off for most children, you can imagine what a herculean task it was to set up online child courts. It barely happened. With low internet penetration, poor electricity access and very little access to digital devices, you can imagine it was close to impossible to set up virtual child courts. A few countries such as Kenya introduced virtual children’s courts with child-friendly procedures, thus retaining access to justice during the pandemic. Yet, these virtual courts are not in every district given the need to use internet, electricity and other technical equipment.

The other critical concern is the detention of children. There are reported cases of child offenders being arrested for violating COVID-19 regulations and being detained as a measure of first resort. This is a total violation of the law, that requires detention be used as a measure of last resort for any child offender. Yet, the pre-existing limitations, such as absence of pre-trial diversion in some countries made it difficult to implement this alternative measure when COVID struck.

What are the main obstacles faced by children in exercising their right of access to justice in African countries?

These obstacles are not simple, they are multifaceted. There are children who live in situations where justice systems are non-existent or totally dysfunctional. Take children living in war-torn countries, in displacement, even children who are on the move. Africa has been riddled with one conflict after another, our emergencies become disasters quickly because our systems are not resilient and cannot stand the shocks. Such situations which cause government systems to crumble do not spare the justice sector.

Moreover, children with disabilities, especially intellectual disabilities may not be able to express themselves. Often, our justice systems do not offer them the necessary accommodations or intermediaries that they need.

In addition, we have seen countries where there is a lack of dedicated children’s court, leaving children to “adult” court processes and procedures.

Furthermore, generally many African countries have terribly under-resourced justice sectors. We find therefore very few professionals trained in child-sensitive adjudication. The same limitation applies to the security sector. Child sensitive policing isn’t widely practiced. In some cases, the rights of children are infringed at the point of arrest or of reporting a complaint to police or other local government administration. The police are the door that every child who encounters a rights violation walks into, and a lack of child-sensitive policing is a huge hindrance.

By the way, all these issues are clearly articulated in the African Charter and Agenda 2040, yet are not being implemented at country level. Our work is clearly cut out for us.

Could you give us an overview of the current situation regarding the use of corporal punishment for children within the criminal justice systems of African countries?

There has been good progress in banning corporal punishment in the justice systems in Africa. This has been driven by the harmonisation of laws and reform, as well as legal contests in courts that have resulted in certain laws being declared unconstitutional. In the case of Zimbabwe, corporal punishment was declared unconstitutional by the Constitutional Court. Our recently published VAC reports found there are still other countries that accept corporal punishment in the justice system. Our 2020 Africa Report on Child Wellbeing report lists these as: Algeria, Angola, Botswana, Burundi, Central African Republic, Comoros, DRC, Djibouti, Mauritania, Equatorial Guinea, Egypt, Eritrea, Eswatini, Comoros, Guinea, Niger, Libya, Madagascar, Sudan, and some federal states of Nigeria.

How would you assess the situation of girls in particular in relation to justice systems in Africa?

Traditionally, girls received favourable treatment in the justice system, due to the gendered philosophy, but also cultural influence, that they are more vulnerable because of gender and age. Our study on COVID-19 and Girls titled ‘Under Siege: Impact of COVID-19 on Girls in Africa’ showed that girls were more affected than boys when the pandemic broke out because of the scaling down of what were considered “non-essential” services but also because of the restricted movements and school closures.

Let us keep in mind the critical role that schools, and teachers, play in first keeping children safe from abuse, but what is more, protecting girls from child marriage and female genital mutilation. These are criminalised in many countries, but still widespread, so schools are almost a “protective mechanism” as well as being key in identifying abuses and in helping girls report complaints, thus setting the wheels of justice rolling.

We noted that due to COVID-19, in countries like Uganda and Kenya facilities that provide case and support services to girls were operating at their lowest capacity, thereby worsening the situation of girls in the justice system. However, we also noted from reports that girls were released from detention by several governments. For instance, UNICEF reports of the release of approximately 2,000 children in Ethiopia and 1,688 in Mozambique from pre-trial detention at the onset of COVID-19, in both cases including girls. This shows that detention as a measure of last resort is possible. It should be the norm, not an extra-ordinary measure driven by the pandemic. Responding to the pandemic has forced us to adapt and implement some positive policies and practices. These should be sustained even after the pandemic.

The minimum age of criminal responsibility in many African countries is below that which is recommended by the UN, which is at least 14 years old, and in some countries it is as low as 7 years old. Are there any current actions being carried out by stakeholders in order to raise the minimum age of criminal responsibility in these countries?

ACPF and other stakeholders are continuously engaging governments to revisit the MACR and lift it up to ages between 12-14 years old. We are aware that there are several factors that influence the setting of the MACR across Africa, and in our work this remains a priority area in our advocacy and in cross-learning forums.

In our plans to convene Child Justice Summits across sub-regions, we will ensure that we bring governments who are more compliant on this to share their experiences with those that are lagging behind. We link this to our advocacy for birth registration, given one of the biggest challenges in children accessing justice is that children’s ages are not always known. This really points to the fact that all child rights, like human rights, are inter-related, and we have to advance all rights, together.