Contribution to a study on the use and application of Non-Custodial Measures for Children in Conflict with the Law in Senegal At Land of men

1. Presentation of the Terre des hommes Lausanne Foundation

The Terre des hommes Lausanne Foundation (hereinafter Tdh) is an independent, neutral and impartial Swiss organization, founded in 1960, dedicated to bringing about significant and lasting change in the lives of children and young people, especially those most at risk [1] . We ensure their well-being and the effective implementation of their rights as defined in the Convention on the Rights of the Child and other human rights instruments. To make a difference, we focus our efforts on maternal and child health, children and young people in migration situations, and access to justice for children and young people.

Tdh operates in 32 different countries around the world, in humanitarian and development contexts. In its interventions, Tdh promotes an approach based on children’s rights, as well as a general progress in quality and accountability by ensuring meaningful access to services for all, in safety and dignity.

Tdh’s work is structured around the following principles2 [2] :

• Act in the best interests of the child;
• Promote the participation and empowerment of children, young people, their families and communities;
• Working in partnership to strengthen local capacities, dynamics and systems;
• Act for humanitarian interest, development and peace;
• Promote continuous improvement, collaboration and learning;
• Being transparent and accountable to beneficiaries, partners, donors and ourselves.

To learn more about Tdh’s work, please visit https://www.tdh.org/

1. Background and rationale

Tdh’s Access to Justice Program received a grant to conduct a study on Non-Custodial Measures (hereinafter MNPL) applied to children in conflict with the law in Senegal.

Children deprived of liberty

The United Nations Global Study on Children Deprived of Liberty1 carried out by an Independent Expert in 2019 revealed an alarming figure: each year, 1.4 million children2 are deprived of their individual liberty by judicial or administrative decision and at least 410,000 children are held in pre-trial detention centres and prisons after conviction.

However, in accordance with Article 37 of the Convention on the Rights of the Child (hereinafter the CRC): “deprivation of liberty shall be used only as a measure of last resort and for the shortest appropriate time3”. This is a fundamental principle in juvenile justice.4 Detention as a measure of last resort is a fundamental principle of the functioning of juvenile justice systems, implying that liberty should be the norm, with deprivation of liberty remaining a rare exception. When deprivation of liberty is used as a measure of last resort, it should be strictly regulated, with clear standards on its reviewability, its temporality and the active search for alternatives.

This problem is of particular concern, partly because children deprived of their liberty are at significant risk of having many of their rights violated, and partly because of the significant disparities in the use of detention according to social status, racial and ethnic groups in many countries.6 Children deprived of their liberty are frequently exposed to violence in detention, suffer adverse health consequences, have their education disrupted and are deprived of the basic necessities vital to their well-being and development.7 These immediate harms – and rights violations – jeopardize the healthy development and well-being of children throughout their lives.8 Furthermore, children in detention are often deprived of the basic necessities necessary for an adequate standard of living, healthy development and, quite simply, respect for their human dignity.11 In short, detention affects many aspects of children’s development and well-being and, in many cases, compounds the harms that children and youth at risk have suffered before they come into contact with the justice system for Finally, many youth detention centers offer little opportunity for rehabilitation,15 leading to higher rates of recidivism than other responses to criminal offenses.16

The importance of non-custodial measures

However, non-custodial measures that focus on protection, redress, child empowerment and the social reintegration of children and are based on family and community support do exist. Article 40 of the CRC is explicit on this subject: “a variety of [non-custodial] measures […] shall be available to ensure that children are treated in a manner appropriate to their well-being”.17 This provision is binding and States therefore have an obligation to ensure that a variety of alternative measures are available.18 This provision complements and reinforces the standard contained in Article 37 that detention is only a measure of last resort.19

In Senegal, significant legislative and judicial progress has been made with the aim of promoting the rehabilitation and social reintegration of children in conflict with the law, while limiting their deprivation of liberty. By ratifying all conventions and treaties relating to the rights of the child and more particularly those relating to access to justice for children, Senegal has demonstrated its willingness to commit to justice for children. In order to meet its commitments, it has also taken several legislative and judicial measures, including:

• The adoption of texts specific to minors, including legal provisions providing for non-custodial measures at the various stages of criminal proceedings;
• The existence of 15 children’s courts located within the high courts;
• The establishment of the General Directorate of Judicial and Social Protection (DGPJS) and the Open Environment Educational Action Service – AEMO.

Despite these advances, it is clear that the deprivation of liberty of children remains a measure exploited by juvenile justice actors in Senegal. In 2022, the dashboard of the Division of Legislation, Statistics and Penitentiary Institutions in Senegal, published by Africa Check, reported that 436 minor girls and 1,256 minor boys were subject to a measure of deprivation of liberty in Senegalese penitentiary institutions.24 Furthermore, although the texts are clear that the duration of detention must be as short as possible, it is not uncommon to see a child placed under a committal order in a prison for years or even up to four years without even being tried.25

One of the main challenges is to encourage members of the justice system and other decision-making authorities to make maximum use of MNPLs. For some actors in juvenile justice, detention is still seen as an essential sanction for young people, even for minor offences, and systems are still based on the repressive instruments of traditional criminal offences. Furthermore, investments are too often focused on the construction of juvenile facilities, neglecting the development of non-residential programmes. In addition, the provision of government and associative services to implement MNPLs for children in conflict with the law remains insufficient in Senegal. However, opportunities exist to strengthen educational and non-custodial measures. Senegal has several Maisons de Justice29 and benefits from a rich tradition of alternative dispute resolution methods such as mediation and conciliation, as well as community-based educational measures. These resources can be leveraged to promote diversion and strengthen restorative justice for children in conflict with the law.

In this context, Tdh proposes to conduct a study on the state of non-custodial measures applicable to children in conflict with the law in Senegal. This research aims to identify the reasons why, contrary to the fundamental principle of justice for children, deprivation of liberty remains a measure exploited by actors in juvenile justice in Senegal while alternatives to deprivation of liberty remain under-exploited. In addition, the study will seek to formulate pragmatic guidelines and recommendations adapted to the Senegalese juvenile justice system in order to reduce the use of deprivation of liberty for children in conflict with the law.

1. Mission objectives

The objective of the mission is to contribute to the realization of a study on the use and application of non-custodial measures (NCPM) for children in conflict with the law in Senegal, by conducting an in-depth documentary review, developing adapted data collection tools, carrying out the collection of field data, and carrying out a preliminary analysis of the data collected.

The study aims to provide Terre des hommes Lausanne and Senegalese government and judicial authorities with concrete, practical and action-oriented recommendations aimed at strengthening the national legal framework for MNPL applicable to children in conflict with the law and encouraging the systematic and effective use of MNPL. It thus intends to promote increased use of these measures in juvenile justice, in line with international and regional standards relating to justice for children.

The study will provide an in-depth analysis of the following topics:

• The general framework of juvenile justice in Senegal
• The national legal framework in force on MNPL applicable to ECL and its compliance with international and regional legal instruments
• Standards, practices and gaps in the use and implementation of MNPL for children in conflict with the law by justice and child professionals
• Perceptions of children and justice and childhood professionals regarding MNPL
• Practical recommendations for authorities, justice professionals and structures and actors in child justice

Specific objectives of the mission:

1. Documentary review:
   • The general framework of juvenile justice in Senegal
   • The national legal framework in force on MNPL applicable to ECL and its compliance with international and regional legal instruments
   • Standards, practices and gaps in the use and implementation of MNPL for children in conflict with the law by justice professionals
2. Development of data collection tools:
   • Develop suitable tools for quantitative surveys, semi-directed interviews and group discussions.
   • Validate these tools in collaboration with the project team.
3. Carrying out data collection:
   • Conduct quantitative surveys among professionals in child justice and structures implementing MNPLs.
   • Conduct semi-directed interviews with key informants (judges, lawyers, AEMO managers, justice centers, etc.).
   • Lead discussion groups with children and young people affected by MNPL.
4. Preliminary analysis of the data collected:
   • Produce a consolidated and validated database.
   • Conduct an initial analysis of quantitative and qualitative data to identify key trends and findings.

5. Research Questions and Methodology

In order to facilitate the work of the consultant, Tdh has already developed the research questions of the study, a research protocol and a research matrix. These methodological documents will be given to the consultant before the start of his mission.

To answer the identified research questions, this study will apply a mixed methodology combining qualitative and quantitative approaches. However, since the study primarily aims to explore the practices, attitudes and perceptions of child justice professionals, families and children themselves, it will rely primarily on qualitative methods to better capture the complexity of each person’s experiences and perspectives.

The methodology adopted is based on documentary review and the collection of primary quantitative and qualitative data:

• A literature review : an in-depth examination of the legal framework and existing academic literature, including legislative and regulatory texts, reports from local and international organizations, and studies on the application of non-custodial measures (NCMs) in Africa and elsewhere, will help contextualize the results and identify standards and practices.
• A mapping of the actors and structures involved in the use and implementation of MNPL.
• A quantitative survey: A quantitative survey will be conducted among a sample of professionals in the juvenile justice system and MNPL implementation structures, aiming to quantify the perceptions, attitudes, and level of knowledge of the actors about the MNPL. The collection of quantitative data can be optimized by mobilizing assistants.
• Semi-directed interviews with key informants (EIC): Semi-directed interviews will be conducted with key informants such as judges, lawyers and managers of MNPL implementation structures (AEMO, justice houses, etc.). These in-depth interviews will explore the practices, perceptions and challenges encountered in the use and application of MNPL.
• Focus Group Discussions with Children and Young People (GDF): Focus groups will be held with children and young people in conflict with the law who have been subject to MNPL. These discussions will provide a better understanding of the specific needs of children with regard to MNPL, by gathering their perceptions on the effectiveness and impact of these measures.

1. Tasks and deliverables expected from the consultancy

Under the direct supervision of the Regional Coordinator of the Access to Justice Program, the consultant will be responsible for producing the following deliverables:

1. An inception report including the list of documentary reviews, the detailed methodology and the list of collection tools, the list of people or entities to meet, the analysis plan and the work plan.
2. A summary report of the documentary review to contextualize the study (national legal context, international and regional standards, practices, gaps and recommendations based on the documentation analyzed).
3. Data collection tools : questionnaire for quantitative survey (with closed and open questions), semi-directed interview guides for key informants, guide for group discussions with children.
4. Database(s) : a consolidated digital database with disaggregated, verified and validated quantitative and qualitative data.
5. An initial data analysis report : An initial report presenting a preliminary analysis of the data collected including preliminary results of quantitative analyses (tables, graphs) and a summary of qualitative trends (emerging themes, perceptions, etc.).

Timeline of deliverables

Startup Report: Day 4

Summary report of the documentary review: Day 11

Data collection tools (to be validated before the start of collection): Day 13

Database(s): Preliminary version on day 22, final version on day 30

Initial Data Analysis Report: Draft at Day 30, Final at Day 35

1. Duration of the mission

The mission is planned for a duration of thirty (35) working days, spread over two (2) months.

1. Required profiles

• Hold a higher university degree (Bac +5) in legal sciences, children’s rights or any other related field;
• Have a good command of the national, regional and international legal framework of juvenile justice;
• Have at least 8 years of professional experience in access to justice, criminal justice or children’s justice;
• Have a good command of data collection, processing and analysis tools;
• Excellent research, legal analysis and writing skills in French;
• Have at least 5 years of experience in carrying out legal studies, with at least two similar exercises/mandates;
• Work experience and relations with relevant institutions/administrations would be an asset;
• Proficiency in Wolof is desirable;
• Good command of IT tools;
• Excellent oral and written communication in French.