Penal systems exist for many reasons. In general, two theories drive the decision by courts on how to punish criminals: retribution, punishment for the sake of punishment, or utilitarianism, punishment in order to strengthen society. Courts are also concerned with rehabilitation, aimed at rebranding offenders. And, when dealing with juveniles, opportunities for rehabilitation are especially important as punitive measures may not be in the best interest of the child. In Sierra Leone, juvenile justice usually seeks one of two objectives: punishment by imposition of criminal liability on a young offender or rehabilitation by emphasizing support for the child in conflict with the law. When the system focuses on punishment, delinquency is determined by the tolerance level and perceptions of the citizens in the neighborhood of the juvenile misconduct. After identifying the crime, police will investigate, arrest, and prosecute the juvenile. Police take custody of the young person after they arrest him or her. Police can also take juveniles into custody if they are in danger or in violation of a court order.
Because of persistent problems of age determination, police have a lot of discretion after taking young offenders into custody. The police may decide whether to prosecute the youth as an adult and present him to a Magistrate or to try him as a juvenile and present him to the juvenile court for an intake hearing. The juvenile court must determine if sufficient grounds exist for a hearing. If the juvenile court maintains jurisdiction, the juvenile will undergo a trial in that court. There, the juvenile keeps all the protections of adult defendants. But, juvenile court proceedings have a few key differences, which tend to suggest that juvenile offenders should not be treated like their adult counterparts. For juveniles, anonymity of the defendant may be paramount and is usually maintained. Also, the Magistrate may have greater freedom in deciding on an appropriate sentence. He is not normally bound by provisions of law in issuing sentences. The Magistrate will sentence only after a dispositional hearing where he is guided by any relevant information, especially the probation officer’s report. The Magistrate may select probation, with conditions, commitment to a juvenile correction facility, restitution, fines and placement into a foster home or special program, among other options. Police may also determine whether to treat the alleged offence informally and mediate between the parties.
Rehabilitation and child welfare concerns also impact the way the system operates too. Such concerns emphasize social reintegration, consider the child’s age, and hope to help the child assume a constructive role in future society. The requirement for including such provisions comes from Article 40(1) of the United Nation’s Convention on the Rights of the Child. Also, Article 17(3) of the African Charter on the Rights of the Child (ACRC) aims to ensure that the goal of juvenile justice be “the essential aim of treatment of every child during trial and also if found guilty of infringing the penal law shall be his or her reformation, reintegration into his or her family, and social rehabilitation.” The Beijing Rules support similar principles. The remainder of this article will focus on how these principles are being practiced in the country.
The Children and Young Persons Act of 1965 defines a child as a person younger than fourteen years (14) and a youth as a person of fourteen years or above, but below seventeen years. The Child Right Act (CRA) of 2007 expanded the definition of a child to any person below the age of eighteen years. The CRA indicates that the short and long-term interests of the child be the primary considerations in juvenile justice. More specifically, it provides that there should be no discrimination against children and all children have a right to life and development. In the CRA, juveniles are to be dealt with through the establishment of a child panel, with function to mediate in criminal and civil matters, facilitate reconciliation between the child and the person offended, and, in civil cases, deal with the child’s rights versus the parent. The Child Panel is to warn the child, recommend community programming that will help the child make up for his offence, or ask the child to apologize and make restitution to the offended.
The rehabilitation model was firmly enshrined in the CRA. In addition to the panel, it made provision for the establishment of a Family Court to be charged with the responsibility of mediating all matters of parentage, custody and maintenance of the children, and issue care orders for foster care. The Family Court is comprised of a presiding Magistrate, parents and relatives of the child, probation officers, and the child. The child is entitled to legal representation, to be heard and express his opinion, privacy, such as non-disclosure of the child’s identity, and information about his right to appeal.
Following a rehabilitation model also requires the establishment of a separate court for juveniles, as discussed above. In the CRA, this court is meant to be in a different building and to be presided over by a specially-trained Magistrate with two Justices of the Peace. In addition, there are other provisions aiming at protecting children, parents for example, are responsible for protecting the child from neglect and registering the child’s birth. The State must promote the child’s rights and protect his or her welfare. Further, the State must monitor and coordinate the activities of the child welfare committee. So, the State must ensure that juveniles are not tried in open court nor detained in the same cells as adults.
Up to now, these elemental rights still face possibilities of neglect throughout Sierra Leone, especially in the provinces. Although children awaiting trial were kept in a Remand Home in Bo, they are often tried in the same court as adults. In some situations, they are placed in the same cells with adult offenders. So, to fulfill some aspects of the CRA, Magistrate Mohamed Stevens has begun to operate a juvenile-only court in Bo. The juvenile court sits on Thursdays from 9:00am to 12:00pm, depending on the case load. It is located in the adult court room, but attendance is limited to the Magistrate, two Justices of the Peace, parents of the child, probation officers, and human rights observers. Since its inception, several juvenile matters have been settled.
To further ensure the promotion and protection of children’s rights in Bo District, the Ministry of Social Welfare, Gender, and Children’s Affairs has joined with child protection agencies, civil society organizations, traditional leaders, and other stakeholders from a wide spectrum of society to form the Bo District Child Task Force. The Task Force is empowered to monitor, document, and report all forms of abuses and violations against children within the district.
The creation of this Task Force has still not achieved perfection. Hence despite their relentless effort to ensure a juvenile system that is separate from the formal adult judiciary procedure, there is still room for improvement. There is still need for sensitization of the requirements of the Child Rights Act through community radio programmes and community meetings, thereby providing more information on the provisions of the legislation. Also, there is a need to facilitate the refurbishment of the Magistrate court in Bo to make provision for a separate place / rooms for the trial of juveniles and for a family court. To further promote child welfare, the government can establish foster care homes for the care and protection of children and Chiefdom and village child welfare committees should be empowered with guidance and counseling training to adequately mediate in child protection issues in their locality.
