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Community Service Act provides for making regulations
2006-12-18 08:14:35
By Keregero Keregero
More often than not there have been questions of interest being asked as to whether or not the Community Service Act, Act No.6 of 2002,(CSA) provides for any institutional setup, what they are, their composition and whether it is empowered to make Regulations at all.
These are in no terms of incertitude crucial questions that come into play with a purpose and which we ought to address in today’s Legal Focus Column not only as a matter of obligation but also as a matter of law.
In our previous discussion we defined Community Service as an order of the Court whereby the offender is offered an opportunity to compensate society for the wrong he or she
has done by performing work for the benefit of the community, instead of being sentenced to prison.
Putting it in the other way round a community service order is a penalty imposed by a Court for an offence with the aim that an offender in carrying out the order can be seen to be repaying the community for his or her offence.
It goes without saying that the law being discussed must therefore provide for institutional safeguards that would enforce community service orders, whose absence would render the orders impotent.
THE CSA establishes two institutional mechanisms for enforcement of community service orders.
These institutions are Community Service Committees, offices of the National Co-ordinator, Community service Officers and Supervising Officers.
The Community Service Committees are established at different levels ranging from the national, regional, district, ward and village levels as provided for under the provisions of sections 7 and 11 of CSA, 2002.
The Act also establishes the offices of the National Co-ordinator under section 10 and the Community Service Officers under the provisions of section 12.
The establishment of the offices of the Supervising Officers are also provided for under the provision of section 13 of the same law.
The law provides that the National Co-ordinator is the Chief Community Service Officer and he also serves the National Committee and Executive Committee as the Secretary.
This mandatory power is provided for under section 10(3).
Whereas the functions of the Community Service Officers are specified in the second Schedule to the Act.
The composition of the Community Service Orders Committees very much depends on the level of the institution in question.
At national level the Committee is composed of 12 members with an option to co-opt up to three members if necessary for effective execution of community service orders work.
The composition includes a chairman. The law provides that the chairman shall be a Judge of the High Court or any other person with legal expertise and with sufficient knowledge in matters relating to criminal justice administration.
The Act further provides that the chairman is appointed by the Minister in consultation with the Chief Justice.
Other members of the National Committee are Director of Public Prosecutions or his nominee, an appointee of the Permanent Secretary of the Ministry for the time being responsible for matters relating to regional administration and an appointee of the Permanent Secretary of the Ministry for the time being responsible for matters relating to labour.
The National Committee also includes the Inspector General of Police or his nominee, Principal Commissioner of Prison or his nominee, Commissioner of Social Welfare and Commissioner of Labour.
It is important to note the nature of the composition which as said above is to the effect that it brings together primarily persons qualified in law and those with sufficient knowledge in matters relating to criminal justice administration, regional administration, labour, social welfare, correction and policing.
However, the law is silent on the composition of committees at other levels and remain to bank on the expectation that could reflect the composition of the National Committee.
The Act is not toothless; it provides for the power to make Regulations.
Under the Act the Minister responsible for Home Affairs has been given powers to make Regulations.
The powers revolve around the procedural requirement for releasing offenders on community service and to lay down sanction provisions in the eventuality of procedural breach.
It also provides for the power to make Regulations relating to the procedure for monitoring and supervising offenders on community service, constitution and duties of community service committees, any question or matter relevant to the appointment of any person for purposes of supervising offenders under this Act and any other matter or thing related to and in furtherance of the provisions and objects of the Act in question.
.The first batch of Community Service Regulations were made pursuant to GN.No.87 of 2004. At this juncture it is imperative to note that there is a relationship between the CSA and Probation of Offenders Ordinance, Cap.247.
The subsisting relationship between the two laws has not been a result of an accident. Far from that it is objective and has been created by the inputs of section 12(1) of the CSA.
The section provides that the probation officers appointed under the Probation of Offenders Ordinance shall be Community Service Officers for the purposes of this Act.
In this context all Probation Officers have been declared to be Community Service Officers in their new role.
However, in dispensing their duties to this effect they are required to apply the CSA and its Regulations and not Cap.247.
While under Cap.247 they will be reporting to the Commissioner of Social Welfare the same are required to report to the National Co-ordinator of Community Service under CSA (First Schedule to CSA Regulations 2004).
The CSA, if properly applied, may end up helping the government to address the crucial and persistent problem of overcrowding in prisons. It may as well be of benefit to offenders to make reparation to the communities they have offended.
This will also make the community part of the offenders’ rehabilitation process which is a key factor in offender’s eventual reintegration into the community as useful persons.
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