international: juvenile justice
A small country’s big efforts at law and policy reform
The consideration of any human rights related issue in Sierra Leone — including juvenile justice — should be considered against the fact that the country is still grappling with the dual effects of poverty and a devastating civil war that lasted for 11 years. Children suffered the most during the civil war — UNICEF Sierra Leone reports that a total of 7 204 children were directly affected by the war both as combatants and separated non-combatant victims.’
The consequences of this prolonged conflict have had a tremendous impact on children and communities, resulting in increased instances of abuse against children and children in conflict with the law. There is a prevalence of orphans and the problem of street children is soaring. Although juvenile crime is not high in relative terms, it continues to rise in the aftermath of the conflict. The civil war has caused the near collapse of the juvenile justice system and other relevant institutions.
Child justice in Sierra Leone is dispensed in accordance with Chapter 44 of the Children and Young Persons Act of 1945 (the “Act”). The Act makes provision for a separate system for dealing with children in trouble with the law through separate institutions, and also makes legislative provision for establishing separate courts for children. In its report to the Committee on the Rights of the Child (the “Committee”), the government has indicated that the age of criminal responsibility is 10 years.
The status quo
The Act has its limitations. Against the backdrop of article 1 of the Convention on the Right of the Child (the “Convention”), which provides for the definition of a child, anyone who is 1 7 years or older is treated as an adult for the purposes of criminal law. The Act defines a “child” as someone below 14 years and a “young person” as someone between 14 and 17 years of age. The juvenile courts set in place under the Act do not have jurisdiction to handle homicide cases. Children jointly charged with adults are tried in adult courts. Juveniles are still detained by police in ordinary cells for adults, which is largely due to the lack of the standard tools to determine age. There is also a lack of separate cells for juveniles, as well as a lack of programmes at reform institutions. The fact that the various components of the juvenile justice system fall under different ministerial portfolios hampers the coordination among stakeholders.
The existence of archaic laws in dealing with children in conflict with the law is therefore a major problem.
Reforming outdated laws
In a follow-up to the Committee’s concluding observations to Sierra Leone’s report in 2000, the country has embarked on policy intervention and law reform on issues relating to children in conflict with the law. Although complementary instruments such as the Education Act (2004), the Human Rights Commission Act (2004) and the Local Government Act (2004) have been enacted, the major attempt relates to the putting in place of a Child Rights Bill (“Bill”) that applies the Convention’s principles with modifications and adaptations to suit local conditions. A National Child Justice Strategy has also been developed.
Setting the parameters
The Bill places the juvenile offender not only as the bearer of rights, but also as a vulnerable victim in need of parental care and society’s support. It increases the minimum age of criminal responsibility from 10 to 16 years. This is a most progressive step that goes even beyond the emerging minimum age for criminal responsibility under international law, which is 12 years of age. The proposal for the enactment of the Bill, as suggested by the various reference groups, provides that children jointly charged with adults should be tried separately. Among other things, this addresses the problem involved in trying children used by adults to commit crimes.
Treating children differently
The Bill expunges both corporal punishment and capital punishment from the laws relating to or affecting children. In clear compliance with article 37(b) of the Convention, the Bill also provides that the institutionalisation of children should be used as a measure of last resort in dealing with cases involving child offenders. The formal court system, according to the Bill, shall be used as a measure of last resort and proceedings in the court shall be informal and free from naming or stigmatising the suspected child offender.
The practice of keeping children away from the formal justice system was also followed in the aftermath of the conflict when children involved in armed conflict were brought before the Truth and Reconciliation Commission as opposed to the Special Court for Sierra Leone. The informal proceedings envisaged in the Bill are to be held in camera and a number of alternative or diversionary methods for disposing of the case, without ordering custodial sentences, should be applied. This mirrors some of the procedural guarantees under article 40 of the Convention and rules 7.1 and 15.1 of the Beijing Rules. If passed into law, the Bill will also stipulate that the criminal records of juvenile offenders should be destroyed ten years after a court’s decision.
Making rehabilitation a priority
The Bill suggests that persons who attain 18 years and are convicted for offences committed prior to that age shall be entitled to rehabilitation therapy under the supervision of a probation officer. The Bill contains extensive provisions on alternative/diversionary approaches to the issue of juvenile justice and the attendant reform, rehabilitation and reintegration of affected children.
It is anticipated that the Child Rights Bill, when enacted, shall at all stages of the investigation into the alleged offence pursue diversionary methods, including verbal sanctions or advice, conditional discharges, fines, expropriation and compensation orders, suspended sentencing, probation and supervision orders, referrals and, inter alia, non-institutional treatment like community service orders. Referrals may, where necessary, be subsequently made to a Mediation Committee, which shall be the Child Welfare Committee of the given location. In addition, the Bill suggests the establishment of a Child Rights Commission with a mandate to, inter alia, “monitor and coordinate the implementation of the Convention on the Rights of the Child”.
A national strategy for protecting children
The Bill’s standards are further reinforced by the five-year National Child Justice Strategy (“National Strategy”) (June 2006) that seeks to protect children who are involved in the criminal justice system as offenders, victims or witnesses. It also promotes the monitoring and evaluation of all key institutions involved in this process.
The contents of this strategy come from a consensus reached following a research process. This process involved extensive consultations using participatory approaches with children, community leaders, juvenile justice practitioners and stakeholders across the country. A workshop was also held to garner the opinions of children, civil society groups and related ministries on what a Child Justice Strategy for Sierra Leone’s children should entail.
Within the National Strategy, relevant, workable and sustainable recommendations proposed for children in conflict with the law involve training judicial personnel and justices of the peace in handling children’s matters; expanding the mandate of the family support unit to handle child offenders; developing a handbook on children’s issues for use at the police training school; rehabilitating and equipping the remand home in Freetown; establishing a remand home in Makeni; establishing bail homes (community foster care) for areas without remand homes, and ensuring that trained staff are available at these detention centres.
Practical activities that could boost the juvenile justice system are under way. With the support of partners, the government has set up one national and four regional committees on juvenile justice. Guidelines for bail homes were developed with a view to establishing these centres. Training of social workers, the police, community leaders and child rights monitors is ongoing. Probation officers are reuniting children with their families, while children in the available correctional facilities within the country continue to participate in regular recreational, educational and counselling activities. Sensitisation campaigns on the protection and promotion of the rights and welfare of children, especially those in difficult circumstances, are being carried out at all levels of society. The government has involved children in child protection and welfare issues with frontline roles in advocacy and sensitisation programmes.
A clear commitment to children’s rights
The Bill and the National Strategy posit the juvenile or affected child’s best interests as the primary focus of juvenile justice and its administration. The current Bill, after two major efforts in 2001 and 2004, has come a long way in being more technical, inclusive and structured. The Bill is yet to be passed into law and consultations on certain crucial issues are ongoing, but this need not take too long. Although the government lacks the means to adequately enforce children’s rights as a result of the social, legal and economic structure throughout the country being looted and destroyed during the 11-year insurgency, a high degree of commitment to improving children’s rights and welfare is clearly present. Cooperation with partners is significant.
Against all odds, the country has just submitted its second periodic report to the Committee. According to the 2005 United Nations Development Programme Human Development Index, Sierra Leone may be ranked as the second least developed country in the world. Still, it has put the children’s rights agenda, particularly the issue of children in conflict with the law, as a priority. It should be an example to those with relatively more resources but less political will.
This feature: Mezmur, B.D. (2006). A small country’s big efforts at law and policy reform. Article 40, 8(3), pp.10-12