ABA-UNDPInternationalLegalResourceCenter

Restorative Justice for Children / Southern Sudan

December 2008

The following summary includesSouthern Sudan’s obligations under international conventions, its constitution, and its customary law. It thenprovides examples of how other countries within Africa and in other areas have implemented restorative justice models, especially in the juvenile justice context. The summary concludes with questions that could help guide future work in this area.

Before devising ways in which to implement Sudan’s new Child Act, it may be pertinent to re-ascertain whether this legislation complies with binding and non-binding international standards as well as national constitutional standards. Furthermore, it is pertinent to take into account whether Sudan indeed follows its international obligations with respect to the rights of the child. Lastly, it is important to examine the strengths and weaknesses of customary law as it applies to juvenile justice issues.

Applicable international treaties relating to juvenile justice

  • The Convention on the Rights of the Child

Available at:

Sudan signed the Convention on the Rights of the Child on July 24, 1990 and ratified it on August 3, 1990.Ratifying states are required to promote the establishment of a separate system for juvenile justice which includes the establishment of a minimum age below which children are deemed to lack the capacity to violate penal law (Art. 40(3)). This system should be consistent with the promotion of the child's sense of dignity and worth and provide consideration of the child's age and the goals to reintegrate the child into society and to have the child assume a constructive role in that society (Art. 40(1)). Specifically, the system must include the presumption of the child's innocence until proven guilty in addition to the following rights (Art. 40(2)(b)):

  1. the right to have an explanation of the charges and the provision of assistance in the child's legal defense;
  2. the right to a prompt hearing unless the best interests of the child demand otherwise;
  3. the right to be free from compulsion to provide testimony or confess guilt;
  4. the right to call witnesses and examine adverse witnesses;
  5. the right to appeal;
  6. the right to the free use of an interpreter where necessary;
  7. the right to respect of the child's privacy at all stages of the proceedings.

The Committee on the Rights of the Child has consistently expressed concern with Sudan’s implementation of the Convention, and specifically with Article 12, which states that:

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

See Article 12 at

See also Committee on the Rights of the Child, 31st Session, Consideration of Reports Submitted by States Parties under Article 44 of the Convention,

Concluding Observations: the Sudan, paras. 31-32. Available at:

Committee on the Rights of the Child, 4th Session, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Concluding Observations of the Committee on the Rights of the Child: Sudan, para. 12.

Available at:

  • For a more in-depth discussion of children and juvenile justice see Committee on the Rights of the Child, General Comment No.10 - Children's Rights in Juvenile Justice Available at:
  • United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Principles). These are non-binding but may offer some additional elements for the Sudanese Child Act and its implementation.

Available at:

  • United Nations Standard Minimum Rules for the Administration of Juvenile Justice. These are non-binding but may offer some additional guidelines.

Available at:

  • Sudan has not signed or ratified the African Charter on the Rights and Welfare of the Child which may provide additional responsibilities with respect to children in the juvenile justice system. If Sudan is to have a comprehensive juvenile justice system, implementers should look prospectively to other instruments that the country may ratify in the future.
  • See
  • Sierra Leone: While the Special Court for Sierra Leone (SCSL) will NOT have jurisdiction to prosecute war crimes committed by children (or by those who forced children to commit war crimes) in The Sudan, its Statute is a useful legislative model as it discusses child soldiers and the manner in which the court can assert jurisdiction over situations concerning children. SCSL Statute, available at:

Article 4 of the Special Court for Sierra Leone’s Statute states that the Court has the power to prosecute those who have conscripted or enlisted children under the age of 15 into armed forces or groups or used them to participate actively in hostilities.

Article 7 states:

Jurisdiction over persons of 15 years of age

1. The Special Court shall have no jurisdiction over any person who was under the age of 15 at the time of the alleged commission of the crime. Should any person who was at the time of the alleged commission of the crime between 15 and 18 years of age come before the Court, he or she shall be treated with dignity and a sense of worth, taking into account his or her young age and the desirability of promoting his or her rehabilitation, reintegration into and assumption of a constructive role in society, and in accordance with international human rights standards, in particular the rights of the child.

2. In the disposition of a case against a juvenile offender, the Special Court shall order any of the following: care guidance and supervision orders, community service orders, counselling, foster care, correctional, educational and vocational training programmes, approved schools and, as appropriate, any programmes of disarmament, demobilization and reintegration or programmes of child protection agencies.

Article 15(5) states that “In the prosecution of juvenile offenders, the Prosecutor shall ensure that the child-rehabilitationprogramme is not placed at risk and that, where appropriate, resort should be had to alternative truthand reconciliation mechanisms, to the extent of their availability.”

Southern Sudan’s Constitution

  • Draft Interim Constitution of Southern Sudan, 2005

Available at:

at:

Article 21 of the Constitution enumerates the rights of the child:

21. (1) Every child has the right:

(a) to life;

(b) to a name and nationality;

(c) to know and be cared for by his or her parents or legal guardian;

(d) not to be subjected to exploitative practices or abuse, nor to be required to serve in the army nor permitted to perform work which may be hazardous or harmful to his or her education, health or well-being;

(e) to be free from discrimination, corporal punishment and cruel and inhuman treatment by any person including parents, school administrations and other institutions;

(f) not to be subjected to negative and harmful cultural practices which affect his or her health, welfare and dignity; and

(g) to be protected from abduction and trafficking.

(2) In all actions concerning children undertaken by public and private welfare institutions, courts of law, administrative authorities or legislative bodies, the primary consideration shall be the best interest of the child.

(3) All levels of government in Southern Sudan shall accord special protection to orphans and other vulnerable children; child adoption shall be regulated by law.

(4) For the purposes of this Constitution, a child is any person under the age of eighteen years.

Strengths and Weaknesses of Customary Law in Southern Sudan

  • Justice Aleu Akechak Jok, et al., A Study of Customary Law in Contemporary Southern Sudan, 2004.Available at:

This is a review of customary law in contemporary Southern Sudan that examines the history of customary law and the principle customary legal systems currently in use. It examines the strengths and weaknesses of these systems and areas of potential or actual conflict between the different customary systems, between the systems and domestic statutory law, and between the systems and international law. It also considers ways to assist in the capacity building of Southern Sudan’s legal institutions in respect to customary law.

After a review of the above legislative tools, the following restorative juvenile justice models may aid UNDP/Sudan with the implementation of the Southern Sudanese Child Act:

Models and best practices of restorative juvenile justice in Africa

Africa generally:

  • Julia Sloth-Nielsen, et al., Report on Child Friendly Laws in African Context – Good and Promising Indicators and Practices, 2007.Available at:

This report focuses on children’s rights in Africa and discusses indicators of good practice in various areas, including the Africanization of child laws. In the Africanization of child laws section, examples of good practice from Ghana, Eritrea, Malawi, Uganda, and South Africa are discussed.

  • Stern, Vivien (2000). An Alternative Vision; Criminal Justice Developments in Non-Western Countries Social Justice. 28(3): 88. Available at:

This article generally compares criminal juvenile justice policy in Western countries with developments in other regions, including in Africa. It discusses the general traditional cultural approach to justice in Africa and criminal justice reform initiatives in various African countries.

  • Two articles in the African Human Rights Law Journal, Vol. 5, No. 2, 2005, appear relevant. This volume of the journal is available at:

Thoko Kaime, The Convention on the Rights of the Child and the cultural legitimacy of children's rights in Africa: Some reflections:

This article discusses implementation in Africa of the Convention on the Rights of the Child. It argues that the principles behind the Convention can come into conflict with African cultural practices and that to resolve this, the reasons for the cultural practices must be understood, solutions must be found in consultation with communities that use these practices, and adequate social support must be given to those who choose to abandon the cultural practices.

Godfrey M Musila,Challenges in establishing the accountability of child soldiers for human rights violations: Restorative justice as an option:

This article discusses the question of the criminal responsibility of child soldiers for atrocities committed in armed conflict and argues that elements of restorative justice should be included in the criminal prosecution process.

South Africa:

There is a huge volume of information available about juvenile justice reform in South Africa, and the focus of the information available is often on restorative justice and diversionary mechanisms. A bibliography (compiled in 2001) containing helpful annotations of many such sources is available at:

Some other sources include:

  • Wood, Catherine (2003). Diversion in South Africa: A review of policy and practice, 1990-2003 Occasional Paper 79. South Africa: Institute for Security Studies.Available at:

This paper discusses diversion initiatives in South Africa in the 1990’s up through 2003. The section of the paper discussing “guidelines from research about ‘what works’ to provide direction around important criteria to be considered for the development of effective diversion programmes” might be especially helpful.

  • South African Law Commission (2000). Project 106: Juvenile Justice Report Pretoria, South Africa: South African Law Commission. Available at:

The South African Law Commission was requested to research and prepare a report making recommendations for reform of the juvenile justice system in South Africa, following South Africa’s ratification of the Convention on the Rights of the Child. This report contains a final proposed draft Child Justice Bill and includes a chapter on diversion.

  • An earlier discussion paper circulated by the South African Law Commission is available here:

This discussion paper contains a comparative analysis of the juvenile justice systems in New Zealand, Uganda, and Scotland, including their use of diversion mechanisms.

  • Mbambo, Buyi (2005). Diversion: a central feature of the new child justice system. In Traggy Maepa, ed., Beyond Retribution: Prospects for Restorative Justice in South Africa. Monograph no. 111, February. Pretoria, South Africa: Institute for Security Studies, with the Restorative Justice Centre. Available at:

This chapter contains a good discussion of diversion and its place in South African juvenile justice including models used and challenges facing diversion programs.

Nigeria:

  • Nonso Okafo, Relevance of African Traditional Jurisprudence on Control, Justice, and Law: A Critique of the Igbo Experience, African Journal of Criminology & Justice Studies, Vol. 2, No. 1, June 2006. Available at:

This paper discusses customary native African justice systems and argues that their potential for social control is superior to foreign systems, based on the example of the Igbo system.

  • Elechi, O. Oko (1999). Doing Justice Without the State: The Afikpo (Ehugbo) - Nigeria Model Ph.D. dissertation, School of Criminology, SimonFraserUniversity.Available at:

This paper analyzes the Afikpo community’s alternative justice system, which is based on cultural tradition. Restorative justice principles are emphasized.

The Gambia:

  • Mark Davidheiser, Governance and Legal Reform in the Gambia and Beyond: an Anthropological Critique of Current Development Strategies, Working Paper No. 93, Max Planck Institute for Social Anthropology. Available at:

Although this paper does not focus on juvenile justice, it does discuss the benefit of using indigenous dispute processing institutions, rather than imposing Western models without consideration for the local culture’s views on court adjudication.

Models and best practices of restorative juvenile justice from other regions

Northern Ireland:

  • Protocol for Community-based Restorative Justice Schemes. Available at:

This Protocol seeks to establish a framework for relations between the criminal justice system and community-based schemes, ensuring that the schemes are in compliance with the rule of law. Among other things, the protocol calls for community-based schemes to receive referrals from a statutory criminal justice agency, rather than from within the community, and for the police to be informed of all referrals. It also calls for information concerning the outcome of all referrals to be provided to a review panel. The community schemes would play no role in determining guilt or innocence and would only deal with referred individuals who had not denied their guilt and for whom prima facie evidence of guilt exists.

The Protocol was based on the Review of the Criminal Justice System in Northern Ireland, available at:

Indonesia:

  • Establishing a child-sensitive juvenile justice system in Indonesia. Available at:

This paper begins by describing Indonesia’s lack of a child-sensitive juvenile justice system. It then describes the ways in which the United Nations Children’s Fund (UNICEF) is supporting the development of such a system, including the development of a model for restorative justice. This paper contains a section on lessons learned.

Other Helpful Information

  • Juvenile Justice: Modern Concepts of Working with Children in Conflict with the Law,Save the Children UK.

Available at:

This report contains three parts. Part I contains a chapter generally discussing children’s justice and a chapter on the international framework for children’s justice. Part II discusses how to set up and run a children’s justice project, which includes a chapter on creating a child-friendly legal system. This chapter includes an example of law reform in Uganda. Examples are used throughout other chapters in the report as well, and include a diversion project in Kenya, restorative justice projects in South Africa and in Laos, probation in the UK, community service in Zimbabwe, and support for children released from prison in Tajikistan. Part III concludes with appendices and references.

  • United Nations High Commissioner for Refugees (UNHCR) Guidelines on Determining the Best Interests of the Child.

Available at:

Questions to consider during implementation

  • In 2011, Southern Sudan is set to hold a referendum to determine whether to remain a part of Sudan or to secede. If it does opt for independence, would this affect its obligations under the Convention on the Rights of the Child? If so, the Child Act should be examined to ensure that it covers all areas covered by the Convention so that children do not lose any rights in the event Southern Sudan opts for independence.
  • How to address the conflict between Southern Sudanese customary law and Southern Sudan’s obligations under the Convention on the Rights of the Child and the Child Act (this conflict is discussed in the paper on Southern Sudanese customary law referenced infra).

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