Introduction
One of the growing encumbrances faced in the adjudication of matters in courts involving children in conflict with the law is the issue of age determination. This situation has resulted since the enactment of the Child Rights Act 2007 whose provision regarding the definition of a child, and the minimum age of criminal responsibility clearly contrasts those provided for or practiced under the Children and Young Persons Act (Cap 44 of the Laws of Sierra Leone), the already existing legislation that specifically govern the situation of those children in conflict with the law. While the Child Rights Act 2007 defines a child as a person below the age of 18, and set the minimum age of criminal responsibility at 14; under the Children and Young Persons Act, a child is defined as any person below the age of 14, while the age of criminal responsibility was determined under the common law concept of doli incapax; that is, the rebuttable presumption that a child at aged 10 but not yet fourteen is incapable of forming a guilty mind on a statutory footing. The rule effectively put the minimum age of criminal responsibility at 10 years. Though legal practice dictates that the former that is, the Child Rights Act 2007 is to take precedence over the latter that is Cap 44, yet is has not prevented the fiery debates and arguments with regards to ascertaining the ages of children which have become the hallmark of juvenile proceedings in courts.
Several cases are pending in the juvenile court which the prosecution and in some instances the defence challenges the ages of certain ‘juveniles’ brought before the court on the grounds that they are not eligible to be tried there because they are adult. It is alleged that people even bribe their way to be tried at the juvenile court with the hope of receiving lighter sentences or being committed to the approved school specifically designed to reforming its inmates other than the more hazardous prison cell of Pademba Road. Additionally, police personnel at police stations which serves as the first places of contact when a juvenile comes in conflict with the law have also often shown an inability to determine whether suspects are juveniles or adults given the variations in physical maturity and physiognomy of certain persons. While some people outgrow their ages, others have stunted growth. Consequently, courts have been finding it difficult to ascertain the ages of juveniles arraigned before them. This article therefore seeks to highlight some of the many factors that have hindered the process of age determination in the courts. It will also examine how these problems have impacted on the juvenile justice system.
Problems
One of the greatest problems facing the court in determining the ages of ‘juveniles’ is the non availability original birth certificates for most of the accused juveniles facing trials before the court. Accused juveniles have often failed to tender their birth certificate to the court when it is requested. They more often than not claim to have lost it during the conflict in Sierra Leone during which properties of most were destroyed. What is usually produce instead, is a sworn affidavit whose validity is sometimes questioned by the court as it is normally acquired after the crime is committed. A case in point is a matter involving a juvenile charged with larceny, whose counsel applied for a no case submission on the ground that the child was below the age of 14, the stipulated minimum age of criminal responsibility pursuant to Section 70 of the Child Rights Act 2007. Even though a birth certificate was presented by the defence counsel before the court to drum up support for his application, the prosecution had to challenge it on the grounds that the birth certificate was acquired only after the crime was committed, and demanded an administration of a medical test by a practitioner or the Registrar of birth and deaths be summoned to validate the age. The process has however proven to be slow, and has consequently led to the adjournment of matter severally. The age of this accused person is yet to be determined up to the time of writing.
Whereas some juvenile offenders have purported a missing birth certificate before the court, others have in some occasions claimed to have been born in the provinces where their birth registers can only be traced. In such cases, since the juvenile cannot produce evidence confirming his or her age, the Registrar has sometimes demanded the provision of logistics including transportation fare, cost of accommodation, and per diem to facilitate his travel to the provinces for a retrieval of the birth registration certificate or to confirm the age of the accused. In another matter involving a juvenile charged with murder, the prosecutor challenged the age of the accused which was 16 even though her birth certificate presented before the court indicated same. This objection was made the grounds that the age shown by the prison doctor, that is between 17 and the half and 18 contrasted that indicated on the birth certificate. The prosecution further applied for the matter to be tried in an ordinary court, as under Cap 44, persons of the age of 17 and above are considered adults and therefore matters of such persons do not fall under the jurisdiction of the juvenile court. [i] The accused juvenile was consequently detained at the maximum prisons at Pademba Road for few months before the court finally ruled that she was a juvenile and was subsequently sent to the remand home while awaiting trial.
Though Cap 44 makes provision for courts to make inquiries as they may consider it necessary to ascertain the age of persons before them who may appear to such courts as a child or young person; and to record a finding of the age, it however fell short of stating how such inquiry may be conducted. Nevertheless, normal practice which is consistent with international standard has been the use of a medical practitioner. This has however been a slow process as there is only a single police doctor in the Western Area ( Freetown) who is charged with the responsibility of determining the ages of juveniles. This, coupled with the fact there are limited number of staff available to the doctor to type the result of age determination test has further engendered frequent adjournments which are often requested by the police prosecution, much to the detriment of the juvenile who will be kept in detention centers; and to the chagrin of the presiding magistrates and even the defence. A case in point was the detention of four juveniles at the Pademba Road prison whilst awaiting their ages to be ascertained. Their matter was adjourned severally for the age determination process to be completed. This has been a cause of embarrassment to even the police prosecution who can not produce the age determination result even where they would promise to do so.
Impact
The slow process of determining the ages of ‘juveniles’ has had lots of negative impact on the adjudication of matters before the juvenile court in the country, and hence on the juvenile’s fair trial. In the first place, it undermines the very aim which underpins every juvenile justice system which is the reformation and rehabilitation of the juvenile on one hand and the desirability of promoting their reintegration and their assumption of a constructive role in their society on the other. The practice has been that as long as the age of the juvenile is in contention, he is sent to the adult prison at Pademba Road amongst hardened criminals while the process of age determination is carried; which often takes a long time. Even where that person may have been declared a juvenile after the process, the fact that he has spent a long time with hardcore adult criminal inmate, would impact negatively on his harmonious development. Instead of been rehabilitated and prepared for his reintegration into his community, he will be faced with the unfortunate consequence of becoming a career criminal and hence a recidivist. This practice contravenes the Children and Young Persons Act which prohibits the detention of juveniles together with adults criminal.
Besides the negative impact the lengthy detention of juveniles together with adult prisoners would have on the juveniles, delays as a result of age determination has also had wider ramifications on the fair trial of the accused juvenile. It has often led to prolonged trials of juveniles thus undermining the principle of expeditious trial enshrined in both domestic and international human rights laws governing the trial proceedings involving not only children but adults as well.
It is a general consensus internationally that for an accused juvenile, the time between the commission of the offence and the final response to the act should be as short as possible. This is because the longer the period, the more likely it will be that the response will lose it desired pedagogical impact and the more likely the child will be stigmatized. Unfortunately, the juvenile court and its administrators in Freetown loses sight of this, as there are several matters involving juvenile with contentious age, that has been adjourned with an undisturbed frequency, and which takes months before the actual commencement of trials, for merely waiting for ages of such juveniles to be determined.
There are instances in which the delays in these proceedings can be squarely imputed to the court officials including the presiding magistrate who accords the prosecution an unfettered opportunity to drag the matter further even when the age of the juvenile has been ascertained by legally assigned medical personnel in the person of the police doctor. This begs the question as to whether court seeks to adequately protect the fair trial rights of the child in conflict with the law. A glaring example of this is a case involving a boy who was accused of wounding with intent. In spite of the presentation of medical report after a long delay from the police doctor, as requested through an application from the prosecution; which indicated that the accused was between the age of 16 and 17, and therefore eligible to be tried in the juvenile court, the prosecution requested for a second medical report ascertaining the age of same. This again took a long time and when it was clear to the magistrate that the report was not forth coming, he ruled that the accused was eligible for trial at the juvenile court.
The presiding magistrate granting of another application from the prosecutor to have the age of the juvenile determined for the second time, even when the first one has been done by a legally assigned personnel clearly justifies any assertion that the juvenile’s right to a speedy trial is sacrificed in this occasion for merely an unwarranted procedural consideration. It is worse even when one considers Cap 44’s provision regarding the process; which clearly accords discretion to the court to make an inquiry into the child or young person’s age if it “considers [it] necessary”. [ii] In essence, the presiding magistrate had the discretion to have even ruled at the instant that the accused juvenile was eligible to be tried in the juvenile court without resorting to an age determination process. Therefore, allowing another age determination exercise after a presentation of the first medical report is not only superfluous, but also abrogates the child’s best interest principle as the juvenile continued pre-trial detention and attendance of court proceedings would have had a deleterious effect on his wellbeing.
Child rights activists have also maintained that delay in the adjudication and disposition processes impact negatively more on juveniles than their adult counterparts because of their unique developmental characteristics. [iii] Children and young persons have different sense of time from that of adults and also they have a more reduced ability to foresee the future and cope with delays than adult. Hence they have the propensity to easily miss the connection between a crime and the sanction as time between the two elapses. Therefore any punishment they may receive after a lengthy delay in the trial process would not have any meaningful changes in their behaviour for the better
Additionally, the fact that juveniles awaiting results of their age determination are detained in the maximum prison where there hardly exist educational or treatment programme for them, such children, if they are school going children, risks losing very valuable time from their formal education which in itself is a violation of the crucial rights of education, survival and development.
Conclusion
It is evident from the above analyses that the slow process of age determination of juveniles is impacting the justice system greatly. In order to remedy this situation, measures should be put in place to speed up the process which includes; an increase in the number of police doctors to deal with age determination; compulsory registration of children after birth be enforced and/or a policy of providing children with birth certificate free of charge;, a proper networking between the office of Births and Deaths in Freetown and those in the provinces so that originals of births certificate be provided on demand. Finally, a legislative amendment ensuring providing the child a right to the rule of the benefit of the doubt in the case of a conflict or inconclusiveness in ascertaining his age should be made. Should all of these are adhered to; it will greatly improve the juvenile justice system in the country.
[i] Children and Young Persons Act (Cap 44), Section 18 (1)
[ii] Ibid
[iii] Rankin Mahoney, Time and Process in Juvenile Cour, t10 THE JUSTICE SYSTEM J. 37 (1985)