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NewsDay

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Child criminals

Opinion & Analysis
LAST week we discussed children and their capacity for crime. We discussed capacity for crime at the various age groups and what the law says. Children up to age of seven have no criminal capacity and cannot be charged with any crime. Children between the ages of seven to 14 are also presumed to be incapable of committing crimes unless it is proved otherwise beyond any doubt.

LAST week we discussed children and their capacity for crime. We discussed capacity for crime at the various age groups and what the law says. Children up to age of seven have no criminal capacity and cannot be charged with any crime. Children between the ages of seven to 14 are also presumed to be incapable of committing crimes unless it is proved otherwise beyond any doubt. Children from age 14 upwards are deemed to be capable of committing crime and will be charged and go through the normal course of a criminal trial to establish their liability. Today we will look at various aspects of how the law deals with children who fall foul of the law

Rights: MIRIAM TOSE MAJOME

Young offenders are kept separate from adults to protect them from abuse and exposure to certain undesirable influences
Young offenders are kept separate from adults to protect them from abuse and exposure to certain undesirable influences
Young offenders are kept separate from adults to protect them from abuse and exposure to certain undesirable influences
Young offenders are kept separate from adults to protect them from abuse and exposure to certain undesirable influences

Best interests doctrine — Constitution

Children have to always be protected even when they have committed crimes. Section 19(1) of the Constitution dictates that their best interests are always to be put first in all matters in which they are involved. The State is charged with adopting policies and measures that ensure the protection of children. The best interests of children are paramount in whatever circumstance. However, protecting children does not mean helping them to conceal their crimes and shielding them from responsibility. Being a responsible parent can sometimes mean turning over one’s own child to the police. A responsible parent or adult never turns into an accomplice by covering up a child’s crime. Like adult offenders child offenders must be brought before the police and justice delivery system.

Detention of juvenile offenders

It is sometimes necessary to detain children after commission of crime. Section 84(1) of the Children’s Act (Chapter 5; 06) prescribes the procedure to follow for arresting a child. A child or young person who is charged with an offence shall not be detained in a prison or police cell or lock-up before they are convicted unless the detention is necessary and there is no suitable home that is available for the detention. In deciding the suitability of any place for the detention of a young person the nature of the offence will be regarded as well as the age, sex, race and the character of the child. It is not clear why the child’s race is important though. In terms of Section 28(1) the Public Service, Labour and Social Welfare minister or any other minister assigned by the President may establish and maintain remand homes to host and detain children awaiting trial or sentencing for their crimes. The Prison Act (Chapter 7; 11) Part X Section 3 provides for the separation and confinement of certain classes of prisoners by gender, experience, mental soundness as well as age amongst other classifications. Young children are kept separate from adults. This is done to protect them from abuse and from exposure to certain undesirable influences. Under the Prison Act young persons are prisoners under 19 years or a prisoner who does not exceed 20 years of age.

Victim Friendly Courts

The justice delivery system is cognisant of the challenges faced by vulnerable victims. In recognition of their vulnerabilities and incompetence children are granted certain concessions. Young children are ill-equipped to endure the regular adversarial court processes which are ordinarily harsh and brutal. Guilt has to be established beyond a shred of doubt and as long as even a remote possibility exists that there might be another explanation for a crime the court has no option, but to find the accused person not guilty. So prosecutors and defence lawyers have to be aggressive and do often turn brutish on witnesses and accused people. The criminal court system is not friendly to accused people and witnesses, least of all young children. Children are regarded as particularly vulnerable and should not be subjected to the same rigours of the regular open court system. Victim friendly courts were established in terms of the Criminal Procedure and Evidence Act Chapter 9:07. The aim is to protect victims and witnesses by minimising the discomfort and perceived threats they may feel during normal trials. Victim friendly courts are not exclusively for children but also for vulnerable adults if the need arises. The court assesses the vulnerability of victims and witnesses in consideration of their age, mental and physical condition, cultural background and the circumstances of the crime. If it appears to the court that anyone whose evidence is important to a case could likely suffer substantial emotional stress or is likely to be intimated by the accused or by any other person the court will take a variety of prescribed measures to reduce or eliminate the threat. The court can direct the victim or accused child to give evidence in private or may also appoint an intermediary to act for them or the witnesses. The court may also be moved to a safer venue among other victim friendly measures available. As far as possible courts dealing with matters pertaining to children either as accused or witnesses will try to accommodate the child to make it as non-threatening for them as possible. The presiding officer in a court will try and minimise undue interrogation of the child by the prosecutor or by a defence lawyer if the child is a witness. When a child takes to the stand from either the dock or witness stand the court ordinarily adjourns to empty the court so that only the very few necessary people and lawyers remain in court while the child gives testimony. The age and character of the child and the circumstances of the criminal case determine the necessity of establishing a victim friendly court.

Miriam Tose Majome is a lawyer and a teacher. She can be contacted on [email protected]