What is the appropriate alternative dispute resolution method one can adopt in a

case of an assault charge against a 17 year old?

The procedure that I would follow as the advocate for my client in order to resolve
the conflict without recourse to court is by way of diversion. According to the
Children Diversion Guidelines for Police Officers 2019 diversion refers to
processing and disposing of cases involving children by the police at the discretion
of police without recourse to formal justice procedure.
In addition, the UNICEF 2009 Children’s Rights Glossary of terms relevant to
children in contact with the law further states that “diversion means channeling
children in conflict with the law away from judicial proceedings through the
development and implementation of procedures, structures and programmes that
enable many – possibly most – to be dealt with by non-judicial bodies
(governmental and non-governmental bodies that do not form part of the formal
criminal justice system), thereby avoiding the negative effects of formal judicial
proceedings. ” Diversion can be instigated from the time of apprehension (before
arrest) to any point up and until the final disposition hearing (including after pre-
trial detention)
Significantly, diversion is premised on Section 89 (2) of the Children Act, cap 62
states that the police shall be empowered to dispose of cases at their discretion
without recourse to formal court hearings in accordance with criteria to be laid
down by the Inspector General of Police. It is worth noting that before recourse to
the requisite procedure of diversion, certain considerations must be satisfied for
purposes of eligibility, these are illustrated subsequently;
A) The offence must be within the prescribed scope of offences for diversion or
those that fall within the scope of minor and not capital offences; according to
Guideline 2(1), 2(3) (a) and 2(4) (b).
From the stated facts my client committed assault occasioning actual bodily harm
contrary to Section 219 of the Penal Code Act Cap 128 and this falls under the
scope of acceptable offences for diversion especially because its stated in
Guideline 2(3)(a), and its maximum punishment is not death.
B) The child must fall within the age of criminal responsibility which is 12 – 18
years according Guideline 2(2). From the stated facts my client is 17 years of age
and as such can undertake diversion.
C) The child must admit the offence according to Guideline 2(4)(b) and Guideline
9(1) (b) on one hand. On the other, the child must voluntarily accept diversion and
this is based on an informed decision and freewill based on an understanding of the
advantages and disadvantages of the options available to the child according to
Guideline 9(1)(c).
From the stated facts, it is not clear as to consent of my client to the offence and to
the process of diversion but I would advise my client to confess the offence and I
would in addition to that inform them of the advantages and disadvantages of the
suggested methods of diversion.
a) The disability or special needs of a child unless it is against public interest
according to Guideline 2(3)(c).
b) It is also worth noting that according to Guideline 2(4)(a) in considering the
diversion measure, the possibility of it placing a child’s life/safety in danger must
be explored. Furthermore, in contemplating the process, the best method(s) of
diversion should be identified. According to Guideline 3(2) the parties have the
opportunity to provide a suitable measure given the circumstances of each case.
Other factors such as age and maturity of the child, existence of reasonable
alternatives and the gravity of the offence are determinant in identifying the most
appropriate method according Guideline 3(4) and Guideline 4(1)(b) respectively.
According to the stated facts the most appropriate methods are
a)Victim, offender and offender family conferencing. Due to the nature of the
offence of assault that has an effect of hurting the victim, it would be prudent to
create a space for all the parties to come together and discuss the remedies to the
dispute amicably.
b) Reconciliation. This will help to make all the parties be satisfied as the end
thereof is amicable settlement since harmful attitudes are calmed and mindsets
transformed. This is also promoted under Article 126 (2) e of the Constitution of
the Republic of Uganda,1995.
c) Apology. This will help the victim admit their wrong and seek for forgiveness
before the injured and most likely aggrieved victim who in turn in calmed down.
Ultimately, the place(s) of diversion is key, these are provided for in Guideline 10.
The choice of this is dependent on a number of factors such as the nature of the
offence, the method chosen, the best interests of the child among others, all for
purposes of ensuring diversion adopted is effective.
From the stated facts, the following are the most effective places for diversion.
a)L.C.1 This is appropriate because the local leaders understand the parties and
always try as much to mediate and impact a peaceful process let alone guarantee
compliance with diversion measures adopted by virtue of proximity to the parties.
b) Civil Society and Community Based Organization offering alternative means
of resolving disputes and counselling and guidance. The civil society organizations
have an advantage in supporting this diversion due to the trust the public tend to
have in them mainly due to their impartiality and neutrality in conflict especially
with the gravity of assault that creates rise in emotions. In addition, such
organizations have a string of options for settling the dispute completely and also
offer reformative options such as counselling and guidance especially because my
client has possible tendencies of being aggressive.
Procedure to be followed in order to resolve the dispute by way of diversion as
prescribed in Guideline 5. 1; The Police receives a complaint relating to children
in conflict with the law and proceed to receive and investigate the complaints,
ascertain the age of the child and the offence alleged to be committed and if they
fall within the acceptable scope and on the whole confirm the sufficiency of the
evidence to proceed with the case.
2. Subsequently, the police upon satisfying the stated requirements shall;
a) Inform the persons in the area in which the child resides, who have a mandate to
ensure the protection of the children, about the complaint against the child;
according to Guideline 5(2)(a).
b) Inform the complainant, the offender and the offenders family about the
diversion of the case according to Guideline 5(2)(b).
c) Ensure the involvement of fit persons, community volunteers or any other child
rights organizations available to offer a diversion programme, advise them on the
best diversion measure and facilitate an agreement between all the above stated
stakeholders according to Guideline 5(2)(c)(d) and (e).
d) In case of a settlement between the parties ensure the agreement is signed in the
presence of their witnesses and also explain to the child the implications of the
offence and counsel them against further committing of crimes or misconduct and
explain to the child the implications of not completing the diversion according to
Guideline 5(3)(a) and (b).