The enactment of the Child Rights Act (CRA) in June 2007 provides for a marked improvement in the administration of juvenile justice in Sierra Leone that is consistent with international standards. The Act provides for the promotion of the rights of the child compatible with the Convention on the Rights of the Child (CRC) which was adopted by the General Assembly of the United Nations on 20th November, 1989 and its Optional Protocols of 8th September, 2000; and the African Charter on the Rights and Welfare of the Child and for other related matters.
Prior to the passing of the Act, children in conflict with the law were tried under the Children and Young Persons Act of 1945. The passing of the Child Rights Act has however brought arguments in the courts in deciding which takes precedence as it makes amendments to certain sections of the Children and Young Persons Act, commonly referred to as Cap 44. This article is therefore set to carefully look at the major provisions made in the CRA as opposed to Cap 44 while also examining the legality of both, and proffers recommendations.
Under Cap 44, there is a distinction between a child and a young person which is in contrast with the provision made in the Child Rights Act. In Cap 44, (Part 1 Sec II) a child is defined as any person below the age of fourteen years and a young person as some one “…who is 14 years of age or upwards and under the age of 17 years”. The Child Rights Act defines a child as any person below the age of eighteen years which is in line with international standards. Even though the age criterion is clearly defined here, the court is finding it very difficult to ascertain the age of persons brought before them as some people outgrow their age whilst others appear younger than their actual age. There are several of such cases in court pending investigations. The process is very slow as there is only one police doctor dealing with age assessment for juveniles. In addition, police prosecutors have to ask for several adjournments to the annoyance of the sitting magistrate and sometimes also the defence. Most of these juveniles in question are sent to the Pademba Road Maximum Prisons mostly when the court finds it impossible to determine their correct age whilst awaiting their results. At the time of writing, at least four ‘juveniles’ are remanded at Pademba Road awaiting their fate.
The age of criminal responsibility is another distinction between the Child Rights Act and Cap 44. Under Cap 44, the age of criminal responsibility is ten years but the CRA has increased it to fourteen years. At present, there is a case pending in the juvenile court in Freetown in which the defense has applied for charges to be dropped against his client whom he claimed to be below the age of criminal responsibility. The prosecution objected to this claim on the grounds that the CRA is not the only document dealing with juvenile justice and asked for the case to be adjourned to a later date to allow him the opportunity to go through Cap 44. This controversy does not only hinder the speedy trial of the young offenders concerned, but has led to their persistent detention pending trial which contravenes international human rights law which states that the deprivation of liberty of the juvenile shall be used only as a measure of last resort (Art. 37 b). The Committee on the Right of the Child’s recent General Comment No. 10 was in fact very insightful on controversies resulting from the determination of the minimum age of criminal responsibility. It stated “… in case of conflict or inconclusive evidence, the child shall have the right to the rule of benefit of doubt (CRC/C/GC/10: Children’s Rights and Juvenile Justice, 2007, para. 22)
In addition to this, under Cap 44, a juvenile is only tried in a juvenile court for crimes committed. Part 5 of the Child Rights Act however makes provision for the establishment of a Child Panel and a Family Court. The Act establishes a Child Panel in each district which shall have non-judicial functions to meditate in criminal and civil matters and shall comprise of a Chairman, a member of a women’s organisation, two citizens from the community, a district social welfare officer, etc and one of its functions is to facilitate reconciliation between the child and any person offended by the child.
The establishment of the child panel to perform mediatory role in both criminal and civil matters involving the child offender and the offended is quite a laudable one as it formally introduces some form of a restorative justice method- a diversionary measure consistent with international human rights standards (Article 40 (3) of the CRC), which obliges state parties to promote measures that will deal with children in conflict the law without resorting to judicial proceedings. Whether or not it was practiced within communities, it was merely done in a legislative vacuum. Enacting the practice in legislation aimed at promoting the rights of children in the country goes a long way in making it enforceable and binding.
Section 17 makes provision for the establishment of a family court consisting of a panel with a chairman, who shall be a magistrate and not less than two and not more than four other members who are appointed because of their wealth of knowledge in child right issues. Its composition shall include a social welfare officer appointed by the Chief Justice on the recommendation of the Chief social welfare officer. It shall have jurisdiction over a number of cases including custody, parentage, access, etc and shall sit in a’… different building or room from that in which other sittings are held, or on different days from those on which other courts are held…’[Sec 79 {1}]. The Family Court shall not be open to the public and it shall be as informal as possible in which the child shall have a right to give an account and express his/her opinion freely and shall have a right to privacy and be respected through out the proceedings. The identity of the child in the Family Court shall not be made known to the public and any one who contravenes this shall be liable to pay a fine not exceeding two million Leone or a jail term of one year or both.
Apart from the Family Court’s main function of adjudicating in child custodial and maintenance matters, it may commit the child to an approved residential home or to the care of a probation officer, social welfare officer or other suitable person’ for a maximum period of three years or until the child attains the age of eighteen’ having determined that a child referred to it by the Child Panel established under Sec. 71, is a victim of child abuse and/or in dire need of care and protection. A child is in need of care and protection if he/she is an orphan or deserted by his/her parents, neglected or ill treated by the person in whose care and custody s/he is in, is a destitute, a street urchin, found begging or receiving alms etc.
The Child Rights Act categorically repeals part 4 of the Children and Young Persons Act which states in Sec 27 [1] that ‘Any administrative officer, police officer above the rank of sub-inspector or authorized person may bring before a juvenile court any child or young person…’ who is found begging, wandering, exposed to moral danger, persistently ill-treated or neglected by his parents, etc. After examining the matter, the court can order him/her to be sent to an approved school or ‘commit him to the care of a fit person, whether a relative or not, or any institution willing to undertake the care of him until the child or young person attains the age of 18 years or for any shorter period”.
The important contrast here is that, while Cap 44 criminalizes a social problem as mentioned above by taking the juvenile to court, whose mere appearance in a formal court room (as there has been no separate building for juveniles) has the potential of impeding his/her harmonious development, Sec 62[1] of the CRA takes much more of a welfare approach by channeling the child through the Family Court where proceedings takes the form of an informal business, without the child feeling an iota of a threat, but allowed to freely express his/her views and opinions without fear.
The Child Rights Act also repealed the Corporal Punishment Act, which was used partly in the dispensation of justice in juvenile matters. Convicted offenders were either publicly flogged in court or were sent to the Approved School or remanded at the Remand Home in Kingtom where they were flogged for failing to comply with the rules.
From the above discourse, the issue of concern is which of the two Acts should be accepted with regards the changes made in the Child Rights Act as opposed to Cap 44. A lot of arguments are on going in court especially with regard to the age of criminal responsibility. According to the statutory interpretation in Sierra Leone, if two Acts are in conflict the latter takes precedence. Therefore if this statutory interpretation should hold sway in this situation, the Child Rights Act, which came into existence in 2007 should take precedence over CAP 44 which was enacted in 1945, and provisions made contrary to the latter should be acceptable in the juvenile justice system.
In conclusion, it is clear that the Child Rights Act is geared towards improving the status of the juvenile justice system in Sierra Leone to some extent even though most of its provisions are yet to be implemented. The court should endeavour to create harmony between the two Acts i.e. the Child Rights Act and CAP 44, so that justice can be seen to be done. In order to achieve this objective, those dealing with juvenile issues should be well grounded in both Acts. Also certain changes introduced by the Child Rights Act should be effected such as the establishment of the Family Court and the Child Panel in every district, increase in the number of doctors dealing with age assessment of juveniles to expedite the process and lastly regular training exercises to be carried out for those dealing with juvenile justice as the key condition for a proper and effective implementation of the rights or guarantees enshrined to protect children in conflict with the law.
1. Child Rights Act, June 2007
2. Cap 44, Children and Young Persons Act, 1945