Introduction
Sierra Leone’s criminal justice system has continued to fall short of anticipated standards in meeting the required hallmarks for the protection of juvenile offenders. This problem could be found in all stages of the judicial system, including pre-trial, trial and post trial phases. Juvenile offenders are likely to come out as hard boiled criminals than they were before they were remanded.
There are two key statutory provisions governing juvenile issues i.e. Cap 31 and Cap 44 of the Laws of Sierra Leone 1960. Cap 31 is the Prevention of Cruelty to Children Act and deals with sexual offences and other forms of cruel treatment against juveniles. Cap 44, the most relevant to this article, is the Children and Young Persons Act which deals with juveniles in conflict with the law and those in need of care.
Furthermore, Sierra Leone has also signed various international instruments such as the Convention on the Rights of the Child (CRC), the African Charter on the Rights and Welfare of the Child, the United Nations Standard Minimum Rules for the Administration of Juveniles commonly known as the Beijing Rules. All of these instruments stress that juvenile justice is an integral part in the national development of every country. Art. 40 (1) of CRC for instance states how courts must treat juvenile issues with sensitivity due the constructive role they play in society.
This article outlines the legal provisions governing the pre-trial process of juvenile offenders and examines the trial process in the courts. It will further show how punishment is meted out to juvenile offenders.
Who is a Juvenile Offender
The age of criminal responsibility determines which court the offender is to be arraigned. A child below the age of seven is doli incapax and does not have the mental capability to commit a crime, no matter the circumstance. On the other hand, a child between the ages of ten and fourteen is doli capax and could be convicted of an offence on proof of mischievous discretion to his act or omission. No mention is made of a child above the age of seven and below ten. Therefore, it is concluded that the age of criminal responsibility in Sierra Leone is seven which is lower than the ten years prescribed by the CRC. It also contravenes Rule 4 of the Beijing Rules, which states that…the beginning of that age shall not be fixed at too low an age level bearing in mind the facts of emotional, mental and intellectual maturity” of the offender.
Cap 31 defines a child as “…a person under the age of sixteen.” Cap 44 further distinguishes a child from a young person. It defines a child as a person under fourteen and a young person as “…a person who is fourteen years of age or upwards and under seventeen” Due to all these ambiguities in our laws, coupled with the poor birth registration in our country, it becomes a hard task for presiding magistrates to determine the age of the offender whom stands to be tried in his court. Most times, the magistrate uses his discretion to ascertain the age of the child which may not be in the best interest of the child.
A juvenile offender is a person below seventeen, who is in conflict with the law. This makes him different from the juvenile in need of care as outlined by section 27 of Cap 44, who is a victim of human rights abuse and neglect. There is also a disparity in the definition of juvenile in our laws and that of international standards. The CRC defines a juvenile as “…every human being below the age of eighteen years unless the law applicable to the child majority is attained earlier.”
Cap 44 of the Laws of Sierra Leone states that a juvenile court must be duly constituted with a panel of three, a magistrate and two justices of the peace. However, it is advisable that the panel includes a social welfare officer. Sec 3 states that the court should sit in camera from that in which the ordinary court is held. The court throughout the trial should remain sensitive to the special needs of juvenile.
The Legal Provision Governing the Pre-trial Process of Young Offenders
The police have a major role to play at this stage of the offender’s life giving that the police are often the first people juvenile offenders come in contact with. The police are obliged under the law to ensure that a child or young person in their custody is not kept in the same cell as adult offenders. Furthermore male and female offenders should be kept in separate cells during detention. This requires every police station to have at least four holding cells. One to contain male and female juvenile offenders each, and one for male and female adult offenders each. Disappointingly, this is not the case. Most police stations have a maximum of two cells, meaning all male offenders, including juveniles are kept in one cell. The same happens for female offenders.
Sec 5 of Cap 44 also makes provision for bail. However, juvenile offenders are often not only denied bail but like the adult offenders are kept in squalid conditions, for lengthy periods and unbelievably for very minor offences such as loitering and petty theft.
The Trial Process in the Court Room
Juveniles should be presumed innocent both before and after the trials. Sec 9 provides that the child should be informed of the offences with which he/she is charged. The court should always sit in closed sessions so as to protect the identity of the juvenile. Therefore, only close relations, court officials, legal advocates and those who are parties to the case, should be allowed to witness the hearing. It could also allow reporters, civil society groups and human rights organisations if they have a bona fide intention and on the condition that they do not divulge information about the name, address, school and photograph of the offender.
Sec 17 requires the parent/guardian to be present at the trial of the child or ward and during trial the child must not be associated with adult accused.
Sec 7 of Cap 44 states that if the juvenile is charged for a misdemeanor or felony other than homicide, the matter shall be finally disposed of in the juvenile court. If a juvenile is charged with homicide, a preliminary investigation is carried out in the juvenile court and if the offender is proved to have committed the crime, the matter is commuted to the juvenile chamber of the high court. This is supposed to be a closed circuit court, but this procedure is habitually violated. It is only rape matters involving a victim below sixteen years that is heard in camera at the exclusion of the public.
With regards the issue of joint trials, Sec 3(1) of Cap 44 provides that when a juvenile is charged with an adult, they should be tried jointly in an open court and if proved of the offence, the juvenile should be remitted to the juvenile court for an appropriate sentence.
A salient point to note is during the trial of juvenile offenders, as it matters not whether the offender has passed the age of seventeen at the time he is being tried. What is taken into consideration is his age at the time he committed the offence in question.
How is Punishment accorded to Young Offenders
The essence of punishment in juvenile justice is to reform, rehabilitate and maintain law and order in the offender’s life so that in the future he will become a useful citizen. The court should always try to determine what treatment is in the welfare of the offender. The magistrate must always bear in mind that incarceration is the last resort and should only be accorded when there is no other approved method to deal with the offender. In such a case the child should be sent to a reformation centre (approved school) until he/she attains the age of eighteen. Sec 23-25 lays down certain punishments for offenders who plead guilty to a charge together with the ones whom the court proves to have committed the offence.
A first-time offender could be discharged wholly without the court making any probation order. Habitual offenders could be discharged under the supervision of a probation officer for a period of not more than three years after a recognisance is entered for him and should be subjected to future variation orders from the court. The child could also be placed in the care of a fit and proper person or institution, if the child is a displaced, the court may order his repatriation to his home or district of origin. Sec 23 states that if the child is guilty of an offence which is punishable by a fine or imprisonment, his parent or guardian will be ordered by the court to make such payment provided they are seen to be negligent or to have condoned the commission of such crimes. An additional punishment applicable to juvenile offenders is corporal punishment. The limitation is twelve strokes and it must not be inflicted by installments or on someone who is not healthy and must be carried out in private and in the presence of the child’s parent or guardian. According to our laws, the death penalty is not applicable to a juvenile. But if at the time of the commission of the offence, he was a day above seventeen that is between 17 and 18, if convicted of the offence he might face the gallows.
Recommendations
Sierra Leone is best at signing and ratifying international instruments but fails to domesticate let alone implement them. So the government must domesticate and implement key instruments such as the CRC which lay down rules for the treatment of juveniles.
The Government must educate, train and sensitize court officials together with law enforcement officials on juvenile justice systems. Government should also conscript more probation officers. The existing ones should be ensured all the facilities that will enable them to effectively carry out their functions.
The Government must construct adequate detention cells, remand homes, and approved schools through out the country.
The police must use their discretion judiciously to grant bail to juveniles arrested for minor offences.
Government and other human rights organisations should provide legal representation for juvenile offenders who cannot afford it. Very few organizations are currently providing legal representation for juvenile offenders.
Parent/guardians should attend the trials of their children and should be taught to respect the rights of the child regardless of customary practices
Parliament on the other hand, should legislate a uniform age of criminal responsibility in Sierra Leone. As stated, the current legislation makes the whole juvenile justice system ambiguous.
In conclusion the treatment of juvenile offenders is very vital to development in Sierra Leone as children are the leaders of tomorrow. Therefore the SLCMP strongly believes that in order to save the future generation from savagery and poverty, offenders should be handled with care taking into consideration their special circumstances.