Friday, 17 August 2018

THE CHILD OFFENDER AND THE CHILD JUSTICE SYSTEM

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It has been established that a child may be criminally responsible depending on his age and the circumstances of the case.
How then is a child who has committed an offence dealt with by the law? The Child’s Right Act and the Children and Young Person’s Law would be considered.

The Child’s Right Act has elaborate provisions on how a child accused of committing an offence can be tried and, if found guilty, punished.
There is a Child Justice System, and the law stipulates that a child should not be subjected to the criminal justice process or to criminal sanctions, but to this Child Justice System, when it is alleged that a child has committed an offence.

Under the Child’s Right Act, a child is defined as a person who is under the age of eighteen years, while under the Children and Young Person’s Law, a distinction is made between a child and a young person. A child under the CYPL is any person who has not yet attained the age of fourteen years. A young person is anyone who has attained the age of fourteen years but who has not yet attained the age of seventeen years. The term “Juvenile” is used to refer to both a child and a young person under the CYPL and the courts have stated that the term juvenile denotes a person who has not reached the age at which he (she) should be treated as an adult by the criminal justice system. In essence, he could be regarded as a juvenile delinquent or offender, youthful offender as the case may be.

JUVENILE COURT
There exists a special court which has jurisdiction to try children known as a Juvenile Court.
  1. All young offenders are subject to trial by Juvenile Courts except in two cases:
  2. Where the charge is one of homicide;
Where the juvenile is charged jointly with an adult.The trial shall take place in a regular court, but in cases of homicide, a juvenile court can conduct a preliminary inquiry into the matter but cannot proceed to full trial of the offence, if a prima facie case is established.

The privacy of a child offender is guaranteed and protected even in the adjudication process. The law provides that the right of the child to privacy shall be respected at all stages of child justice administration in order to avoid harm being caused to the child by undue publicity. Accordingly, the law provides as follows:

i. No information that may lead to the identification of a child offender shall be published.
ii. Records of a child offender shall be kept strictly confidential and closed to third parties and only made accessible to persons directly concerned with the disposition of the case or duly authorised persons.
ii. Records of a child offender shall not be used in adult proceedings in subsequent cases involving the same child offender.
iv. No person other than the members and officers of the court or the parties to the case, their lawyers and other persons directly involved in the case shall except by the authority of the court be allowed to attend the court proceedings of a juvenile.

Adjudication before a court of law should be a last resort in dealing with a child offender. The law vests an investigator or prosecutor with authority and discretion to dispose of a matter involving a child through means such as encouraging the parties involved in the case to settle, supervision, guidance, restitution, compensation of the victim of the child offender  and any other means other than formal trial guided by the following considerations:
  1. If the offence is of a non-serious nature;
  2. The need for reconciliation;
  3. If the family, the school or other institution involved has reacted or is likely to react in a constructive manner;
  4. Where the investigator or prosecutor deems it appropriate in the interest of the child and other parties involved to do so.
Proceedings at the Juvenile court is usually conducted in a relaxed and understanding environment which allows the child to express himself and participate freely. The parents or guardians of a child offender are also required to attend the proceedings and participate freely.
The court has the power to discontinue proceedings involving a child offender in any circumstance where the court opines that, discontinuance of the case is the best way to dispose of the case.

The law also provides that detention of a child offender pending trial should also be used as a last resort and that it should be for the shortest possible period of time. Other measures such as close supervision, care by and placement with a family or in an educational setting or home is recommended in place of detention.

LIABILITY OF PARENTS AND GUARDANS OF A CHILD OFFENDER
Parents and guardians of a child offender may bear some liability for the crime committed by a child. However, the liability extends only to the payment of fines, compensation or damages.

Under Section 220 of the Child’s Right Act, where the court is of the opinion that the case would be best disposed of by the imposition of fines, damages, compensation or costs, whether with or without any other measure, the Court shall order that the fine, damages, compensation or costs awarded against the child be paid by the parent or guardian of the child instead of the child, unless the Court is satisfied that‐
  1. the parent or guardian of the child cannot be found; or
  2. the parent or guardian has not condoned the commission of the offence by neglecting to exercise due care, guidance of and control over the child.

PUNISHMENT OF A CHILD OFFENDER

The terms “Conviction and Sentenced” are not to be used in relation to a child who is found to have committed the offence with which he is charged. The law prohibits the imposition of certain punishments on a child offender. The CRA provides that no child shall be ordered to be:
  1. imprisoned; or
  2. subjected to corporal punishment (such as flogging); or
  3. subjected to the death penalty or have the death penalty recorded against him.
The prohibition of imprisonment as a form of punishment of a child offender is not absolute, there are instances where a child may be ordered to be imprisoned. Examples of such instances are where a child is found to have attempted to commit treason, murder, robbery or manslaughter, or wounded another person with intent to do grievous harm. The Court may order the child to be detained for such period as may be specified in the order. 

Where a child offender commits an offence which carries the death penalty, the death penalty would not be pronounced against such an offender. Instead, the court may impose life imprisonment against the child.

Other punishments which a court can impose on a child offender include: placing the child under care order, guidance order and supervision order, discharging the offender and placing him under the supervision of a supervision officer, committing the child offender by means of a coercive order to the care of a guardian and the supervision of a relative or any other fit person or sending the child offender by means of a corrective order to an approved institution, counselling, community service or payment of a fine.

Voluntary organisations, other organisations and agencies, individuals and communities are encouraged to contribute effectively to the rehabilitation and development programmes for child offenders.

One of the guiding considerations of the Child Justice System is the reform and rehabilitation of child offenders. It is for this reason that the rules governing the criminal justice administration system of child offenders are relaxed and flexible.
 
 

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