Child justice law reform developments in Africa and international standards on the rights of the child

Odongo O. Godfrey

Introduction
With the exception of Somalia, which remains a signatory, all African States have ratified the United Nations Convention on the Rights of the Child (1989) (CRC). The majority of these states have submitted their initial reports to the UN Committee on the Rights of the Child, the body responsible for monitoring the compliance of states with the CRC. Furthermore, the 1990 OAU African Charter on the Rights and Welfare of the Child (African Children's Charter) offers complementary and in some instances higher international standards on the rights of the child.

Examples of child law reform initiatives
For a number of African countries, ratification of the CRC and the African Children's Charter provided a climate within which to re-examine child laws, particularly statutes pertaining to childcare and child protection. Thus statutory child law reform examples from Africa include those of Ghana, Kenya, Namibia, South Africa and Uganda. In all these countries, reform of child welfare has been linked to juvenile justice. On the one hand, this is in keeping with the remit of Article 4 of the CRC that broadly calls for legislative measures. On the other hand, the comprehensive nature of the reform to include juvenile justice can be said to be in keeping with the provisions of Article 40(3) specifically calling for separate laws, procedures, authorities and institutions.

One of the pioneering law reform projects is that of Uganda. The relevant Ministry inaugurated the Ugandan Child Law Review Committee in 1990 to study and make recommendations aimed at the revision of child laws in Uganda with a view to coming up with composite legislation in this regard. The recommendations and the draft bill of this committee formed the basis of new legislation, the Children's Statute of Uganda which covers both the issues of child welfare and juvenile justice.

Soon after Kenya’s ratification of the CRC in July 1990, the Attorney General at the behest of the civil society requested the Law Reform Commission to review the existing laws concerning the welfare of children and make recommendations for improvement so as to give effect to the CRC. After a long process of reform that saw the rejection of the original draft bill twice by various child rights advocates and organisations on the grounds of its insufficiency, the parliament eventually passed the Children's Act of 2001. Like the Ugandan Statute, the Kenyan Act serves as umbrella legislation on the twin matters of childcare and child protection on the one hand, and juvenile justice on the other.

In Ghana, the National Commission on Children appointed a multi-sectoral Child Law Reform Advisory Committee in 1995 to look into, review and make recommendations to the government for appropriate changes in law. Eventually, this reform process led to the passing of the Children's Act of 1998, dealing mainly with issues of child welfare but excluding juvenile justice. As regards juvenile justice in Ghana, a separate and dedicated bill to this end has been drafted and now awaits introduction into Parliament.

The Namibian child law reform process dates back to 1992, culminating in the Child Care and Protection Bill of 1996 that made provision for aspects of childcare and protection. After seven years since the drafting of the Bill, it was passed into law in 2003 as the Child Care and Protection Act. The search for juvenile justice legislation that seeks to comply with international standards remains high on the reform agenda, with the recent redrafting of the Namibian Child Justice Bill modelled substantially on the South African Child Justice Bill.

The inclusion of a clause on the rights of the child in the Namibian Constitution (1990) (Article 15) also seemed instructive to the law reform process in that country. In Kenya’s case, the Draft Constitution (2004) includes the rights of the child in its Clause 37. This inclusion seemed to have been made possible not only by the prominence of the rights of the child in international standards such as the CRC, but also by the high profile that was accorded to the new Children's Act. In all these constitutions, the rights of the child in the juvenile justice sphere are included among other rights of the child.

Interest in child law and juvenile justice reform remains high on the agenda in a number of other African countries including Nigeria, Malawi and Mozambique. However, for the countries where new legislation has been passed or remains in the offing, the comprehensive nature of the reform processes stand out prominently. This is illustrated by the link between reforms in child welfare legislation alongside reforms in juvenile justice.

Link between child welfare and juvenile justice
The fundamental link between childcare and child protection laws and legal provisions on juvenile justice cannot be ignored, primarily for two reasons. Firstly, the link is apparent in view of a holistic reading of the CRC. Thus while the CRC does not explicitly mention preventative action on child offences, it is undeniable that the implementation of the treaty as a whole is the best and most fundamental manner in which to approach prevention. Such an approach takes into account the whole corpus of childcare and child protection. Indeed, this is the approach taken by the Riyadh Guidelines on the prevention of child offences.

Secondly, the link assumes a practical relevance when juxtaposed with the reality of children who come into contact with criminal justice authorities in the region. A common denominator that can be ascribed to this group of children is that a good proportion belong to the category of children who may not be criminal offenders per se, but could be defined as those in need of care and welfare, amongst other reasons due to factors such as endemic poverty and the high prevalence of HIV/Aids on the continent. Recent estimates suggest that Kenya and South Africa (two of the countries that have undertaken reforms of child care and juvenile justice laws) have the highest number of street and homeless children in Eastern and Southern Africa with conservative estimates putting the number at 250 000 in each of two countries as at mid-2002.

It is thus noteworthy that the reform products evince a comprehensive net covering both issues.

The emphasis on reforming both systems “child welfare on the one hand and juvenile justice on the other “has been highlighted above. Therefore it is important that provisions linking the two systems stand at the apex of this comprehensive reach of the reform processes. For example, Kenya’s composite legislation makes detailed provision for children classified as being “in need of care and protection” “a category that includes child orphans orphaned by HIV/Aids, street children and “juvenile delinquents” who would otherwise have been charged with status offences such as vagrancy, truancy and “being beyond parental control”. For this group of children, legal protection is envisaged, either directly by the government’s children's department or indirectly through the tracing of parents or through private institutional care. The Act envisages a coordinated role between various players including the police and juvenile courts.

A novel procedure introduced in the envisaged child justice system of South Africa is that of the preliminary inquiry (PI) that must be held in respect of every child prior to the taking of a plea. While the primary purpose of the PI would be that of making the decision on whether a matter involving a child accused of committing a crime may be diverted, other secondary but yet equally pertinent objectives underlie the procedure. These include establishing whether the matter should be transferred to the child welfare courts to be dealt with as a matter of childcare and child protection rather than a criminal one. Section 70(2)(d) of the Namibian draft child justice bill is in similar vein.

While the above provisions may have previously existed in the various repealed laws, their inclusion in the context of a system specifically designed to manage children in conflict with the law in a coherent way and within a child rights orientation is nevertheless of significance. This approaches the issue from the obligatory child rights perspective and also makes the process of dealing with such children more determinable and efficient.

Common themes in juvenile justice developments
Common themes that have emerged from the reform of childcare and protection legislation in Africa have been aptly discussed elsewhere. A relevant question would be whether similar or new themes have emerged in the sphere of juvenile justice reforms.

Revisiting inherited legislation and establishing juvenile justice systems
In the aftermath of colonialism and apartheid (in the case of some countries), most African countries were left virtually without a real system to manage young people in trouble with the law. In most, if not all cases, these countries did not have separate bodies of legislation to deal with young offenders. Children charged with crimes have therefore been dealt with in the same way as adult offenders. On the other hand, where special provisions to deal with children in conflict with the law existed, such provisions have often been found scattered through different pieces of legislation. Examples in point are Namibia, Kenya and South Africa.

Juvenile justice in Western countries was and remains based on welfare-justice models. Suffice to say that this characterisation was done and is often done outside a child rights framework. The fact of inherited legislation has meant that the welfare-justice models that influenced colonial legislation have also impacted in a big way on the juvenile justice laws of African countries. In some cases, for example that of Namibia, this body of law has developed to encompass the major features of what would be called a “justice model” informed by a theory of “just deserts” by which children are deemed to appreciate what criminality is all about and thus are subject to punishment in the same way as adults. On the other hand, even in those jurisdictions where there has been a semblance of the welfare model with its perceived benign notions, the ideal of separating children from the adult criminal justice system has always been a blurred one.

All the new legislation seeks to devise systems which deviate from inherited laws and address juvenile justice in a comprehensive manner from the moment of arrest through to issues of diversion or trial and eventual disposition of the cases. The statutory recognition of children's/juvenile/child justice courts vested with both civil and criminal jurisdiction (Kenya and Uganda) or vested with separate jurisdiction to deal only with criminal charges against children (South Africa, Namibia and Ghana) is a prominent feature of the new systems. In the process, transfer of children accused of crimes to the adult system is not envisaged in both the South African and Namibian draft Bills while in the cases of Ghana, Kenya and Uganda, the transfer of child offenders to the adult system is limited to instances of capital offences (for which the death penalty is prohibited in all the examples) and where child offenders are jointly accused with adults.

Substantive incorporation of international standards in the new juvenile justice systems
In devising “proper” juvenile justice systems as pointed out above, it is also apparent that core international standards relating to the sphere of juvenile justice have indeed been incorporated in the pieces of legislation.

Diversion
Binding provisions in the CRC 60 have now confirmed the desirability of diversion as a legal obligation of states in international law. Measures aimed at promoting alternative responses to judicial proceedings for children in trouble with the law feature prominently in all these law reform endeavours. The South African and Namibian Child Justice Bills both contain explicit and detailed provisions recommending the principle of removing children from the formal criminal procedure as early as possible. Both Bills provide for an array of diversion options and include family group conferences and victim-offender mediation that are both based on restorative justice precepts as further options. Minimum standards applicable to these diversion options are also included. The Ghanaian Draft juvenile justice Bill makes express provision for diversion as a principle (leaving the design of appropriate programmes to practice) but seems to weigh in favour of the use of diversion as one of the sentencing options. Victim-offender mediation in “minor criminal matters involving children” is also part of Ghanaian juvenile justice law.

While the Ugandan and Kenyan examples are without express reference to diversion programmes as such, there is indeed some basis for arguing that diversion as a concept has been included in both the new laws. This is more so with the Ugandan Statute where provision is made for local/village resolution of disputes concerning children. With regard to criminal disputes, informal local courts (called Resistance Committee Courts) staffed with elected members of the public within the local authorities, are given exclusive jurisdiction to try particular offences committed by children. The disposition powers of such local courts are made flexible to include a wide range of orders (but excluding detention). In the words of one observer commenting on the Ugandan process:

"In sum, it can be said that the prominent role allocated to the village courts ensure that issues of juvenile justice are approached from the local context as a first step, that children's issues are addressed in their own communities and contexts and that such justice is accessible and affordable with children being diverted from the formal criminal justice arena.”

Review of minimum age of criminal capacity
The age of criminal capacity hitherto obtaining in Ghana, South Africa and Uganda before the law reform processes have all been adjusted upwards. Thus an earlier law reform process saw the minimum age of criminal capacity being raised from seven years to 12 years with the abolition of the common law presumption of incapacity between the ages of seven and 12. The South African Bill proposes an increase of the minimum age of capacity from seven to 10 years while retaining the rebuttable presumption of incapacity for children between the ages of 10 and 14 years.

In light of the above jurisprudence of the Committee on the Rights of the Child it is however something of a letdown that, despite the law reform processes in Kenya and Namibia, the common law position in both countries remains in force. The minimum age of criminal capacity in both countries is eight. While in the Kenyan example the law “reform process was silent on the debates on this issue, the Namibian first draft Bill provided an amendment of this common law rule pertaining to criminal capacity. The proposed structure of this first draft was that a child who had not attained the age of 10 years could not be prosecuted. This proposal retained the presumption against capacity, thus children of 10 years of age or more, but less than 14 years at the time the offence is committed, would only be prosecuted if it could be shown by the prosecution that they had capacity to appreciate the difference between right and wrong and act in accordance with that appreciation. However, following a meeting of Ministers on 8 May 2003, the government resolved that the common law as it stands should stay. Thus it has been remarked that the proposed new Namibian juvenile justice system “will be built on internationally recognised standards” with the exception of the provision on the minimum age of criminal capacity.

The experience of the South African and Ugandan law reform processes reveals that the debate on raising the minimum age goes beyond the rhetoric of child rights. Therefore, the comparative example of other countries' legislation and research into the ages and offences of children committing crimes were all factors that were considered before arriving at the decision to fix the minimum age of criminal capacity. Importantly, research into the age at which it was reasonable to expect children to fully understand the consequences of their actions and to have the maturity to resist the pressure of peers and adults, was crucial to the Ugandan Child Law Review Committee. This latter research is of value to the standard laid down by the Beijing Rules to the effect that, in setting the minimum age of criminal capacity, the facts of a child's emotional, mental and intellectual maturity must be borne in mind. At least, it emerges that the decision on the minimum age must take cognisance of the findings of medical and psycho-social research while rejecting the influence of “tradition” or “public demand”.

This feature: Odongo O, G. (2004) Child justice law reform developments in Africa and international standards on the rights of the child. Article 40. Vol. 6(2), pp. 8-12. (An extract of the paper delivered at the symposium on child justice held in Cape Town on 16 June 2004.)