The want of defence counsels for children who are in conflict with the law is now a growing problem with attendant effects on the administration of juvenile justice in the country. That is, the majority of juvenile offenders are not represented by legal practitioners when they are arraigned before the court for having been in breach of the law. Such a practice definitely undermines the justice system especially as it relates to the rights of juveniles during trials. This is so because it violates a fundamental provision-the accused’s right to a legal representation- as espoused in both national and international instruments. The reason for this anomaly may be multi-faceted. Some parents’ or guardians’ are financially handicaped to secure the services a lawyer. In other cases, the juveniles are ‘street children’ who do not even have persons to guarantee them protection under the law. Most importantly, it can be the state’s insensitivity to upholding the rule of law as expected of all civilsed nations the world over.
The importance of having legal representation during trials cannot be overstated let alone in the trials of juveniles who are constrained by a number of factors including their mental capacities to withstand the rigours of a normal court procedure. Where there is an absence of a defence counsel, juveniles stand to be substantially disadvantaged as they are not accustomed to the setting of the court, not to talk about the language. This practice has often beclouded the administration of justice in juvenile courts which often begs the question as to whether the rights of children are protected within our justice system. This article will seek to examine the problems of juvenile justice system with particular focus on legal representation by highlighting the roles of defence lawyers in juvenile proceedings. It will also try to proffer some recommendations as a way of tackling this problem.
Part II, section 3(5) of the Children and Young Persons Act, otherwise known as Cap 44 of the Laws of Sierra Leone 1960 recognises the right of a juvenile to be represented by a legal counsel whenever such need arises. The Act provides for a juvenile to enjoy the services of advocates or other appropriate assistance in the determination of a legal matter. The use of ‘advocates’ in Cap 44 serves the purposes of both the ‘legal or other appropriate assistance’ provided for in the Convention, with the ‘other appropriate assistance’ Also, section 18(1) of the Child Rights Acts 2007, which establishes a Family Court, states that “[a] child shall have a right to legal representation at a family court.” This provision is in tandem with Article 40 (2) (b) (ii) of the Conventions on the Rights of the Child which accords children the right to “… have legal or other appropriate assistance in the preparation and presentation of his or her defence.” On the contrary, the majority of children who appear in court are not represented by legal counsel. Worst even is the fact that the Court often fails to take cognisance of this fact, but instead invoke section 14 of Cap 44 which states that “[if] the accused does not employ counsel, the court shall, at the close of the examination of each witness for the prosecution, ask the accused whether he wishes to put any questions to that witness.” This pattern continues to have very serious implications in determining the guilt or innocence of such children. The reason is that some children, in asking questions, end up implicating themselves further instead of exonerating themselves. Others because of the rigid atmosphere become dumbfounded and would tacitly admit to whatever allegations that are made against them. In a current larceny case, for instance, the juvenile offender was asked to cross-examine the prosecution witness who had earlier told the court that her niece saw the offender taking two bags out of the house and reported the matter to her. During the cross-examination, all what the offender asked was why did the witness’ niece not shout when she saw him carting away the bags. At that juncture, the Magistrate cautioned him that the question was for the niece and not for the complainant. When he was asked if he had other questions for the witness, he responded in the negative. The question asked was implicating to say the least. A lawyer was more likely to have asked technical questions in order to discredit the evidence of the witness thereby making a strong case for the juvenile offender. Additionally, a lawyer may canvass for a mitigation of the disposition to a lighter sentence where the accused may have been convicted.
Another area that warrants attention in the exercise of juvenile justice is the granting of bail. This provision is hardly enjoyed by offenders lacking legal representation. Part II section 5 of Cap 44 makes provision for bail to be granted to offenders if he or she is not charged with homicide or any offence whose imprisonment term exceeds seven years, if he or she is to be prevented from being associated with ‘undesirable person’ or if the release of such person may not “defeat the ends of justice”; the court shall grant bail to ‘…such person on recognisance being entered into by him or by his parents or guardian, or other responsible person, with or without sureties for such amount as will in the opinion of the officer secure the attendance of such person upon hearing of the charges.’ Most parents or guardians of juvenile offenders are not familiar with these legal provisions, not to talk of the offenders themselves. In most cases therefore, such child offenders have been sent to the remand home pending trial by presiding magistrates who wield an overwhelming discretionary powers in the absence of a defence counsel. Where one is present, the child offender has often been released on bail pending trial. This practice underscores the reason why is it that the majority of the children found in the remand homes are awaiting trial without legal representation.
Since the enactment of the Child Rights Act in 2007, there has been lots of controversies in court with regards the determination of the age of majority of the juveniles. The said Act provides as 18 and that of criminal responsibility is 14. However, the court is sometimes of the opinion that child offenders provide false ages (under 18 years), either in order to benefit from a juvenile trial or to be exempted from trial in cases of a claim of not reaching the minimum age of criminal responsibility. In such situations where the court is in doubt as to whether or not the child has attained the age of majority, or has not past the minimum age of criminal responsibility, it is only a legal practitioner, equipped with the requisite skills that can adequately argue on behalf of that child. An example to underscore this point was vividly demonstrated in court when a lawyer made a successful application for a matter involving a boy below 14 to be discharged because according to him, the boy was yet to attain the age of criminal responsibility. Without legal representation, the said boy would have been at the mercy of the court, probably tried and if found guilty, would have been sent to the Approved School to serve his sentence.
The lawyer in a court of law also serves as the juvenile’s voice to the court as he/she represents the expressed interest of the offender at any stage of the proceedings. He can object to the prosecution if he thinks a leading question has been asked and maintain high degree of integrity and remain confidential. He advocates in the best interest of the juvenile, recommend to the juvenile actions consistent with his interest and also about the potential outcomes of various course of action without which the juvenile will not be able to understand certain basic things regarding the trial.
The defence lawyer also has the task to be meeting the juvenile as frequently as possible and communicate with him in a manner which is very effective, considering his maturity, physical or language, background, etc. If the court does not have an interpreter, the defence counsel should move the court for the appointment of an interpreter. He also advocates to the court to appoint a guardian if it appears to him that the juvenile does not have a parent or adult to provide assistance to him.
Furthermore the defence lawyer is also expected to be knowledgeable of dispositional alternatives available to the court and should inform the parents or guardians of the juvenile about those alternatives, possible recommendations to the court and of possible outcome of the hearing. Most people are unaware of a good number of these legal provisions or court proceedings. As a result, it is but fitting that juvenile offenders be provided with legal counsels.
In conclusion therefore, it is necessary that juvenile offenders are given adequate protection before the law by providing them defence counsel. It is my humble submission that the Government, through the Ministry of Social Welfare, Gender and Children’s Affairs should employ the services of legal practitioners who can represent this vulnerable group of people whenever the need arises. Also, non-governmental organisations working on access to justice issues should consider venturing to provide legal assistance to particularly this special group. Finally, the government, through the justice ministry should think of increasing the number of juvenile courts around the country as this would help in the expeditious administration of justice.
