Understanding the Juvenile Justice System and protection of children
By Constance Ndeleko
No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; says (CRIN)
The Juvenile Justice is defined by the Philipine Law as a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, reintegration and aftercare to ensure their normal growth and development.
The are certain legal instrument that govern the care and protection of children and they include:
- Internationally, the Convention on the Rights of the Child(CRC) which is the main instrument that deals with child rights.
- Regionally, the Africa Charter on the Rights and Welfare of the Child (ACRWC) which is the instrument that deals with child rights.
These two instruments set standards that take into account the vulnerability of the child. Individually, countries take into account the above and create their own guidelines to fit their justice systems.
The OHCHR quotes that the Beijing Rules prohibits the publication of information which may lead to the identification of a juvenile offender. This is key to ensure that children are protected and not victimized due to their prior actions.
The CRC, ACRWC and the United Nations guidelines on juvenile justice are the main instruments that have provisions that deal with child justice.
To ensure compliance with the CRC, Article 40(3) which expresses the desirability, as a general rule, of specialised juvenile courts or other forum to deal with cases of children in conflict with the law even at national level.
The age of criminal responsibility varies across countries in Africa. Some countries it could be as low as eight years and below. E.g. Kenya where the minimum age of criminal responsibility for child offenders, as captured in the Penal Code, Cap 63, Laws of Kenya, allows for children as young as eight years to appear in court.
This deviates from best practices such that child offenders are too young to appreciate the impact of their choices or follow in the court process during their trial.
Albeit, there have been campaigns and initiatives to push such countries to raise the age of criminal responsibility for child offenders to at least twelve years and above.
Children considered to be in the juvenile justice system include children in conflict or in contact with the law.
- Children in conflict with the law are often those who face multiple and intersecting challenges in their lives. These issues range from: being on the streets as a result of poverty, family dysfunction to cope with peer pressure in relation to risk-taking such as minor theft and substance abuse.
- Children come into contact with the justice system for various reasons: separation of parents, custody, protection, adoption, child victims of physical or psychological violence, sexual abuse or other crimes, health care, social security, unaccompanied children, displaced children, asylum-seeking and refugee children and so forth.
To exercise the right of children to participate–Children who are capable of forming their own views have the right to participate, intervene and those views freely in all judicial or administrative proceedings that affect them. This is well recommended by ACERWC with a need for sensitivity of the environment which is not intimidating but appropriate for their age.
The Convention also affirms that every child alleged as or accused of having infringed the penal law must “be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians” (article 40 (2) (b) (ii)).
Specifically, the UNODC states that children must be provided with access to legal assistance and representation in their contacts with justice whenever their interests are at stake. The language used should be child friendly.
Children deprived of liberty must be held separately from adults. They must be placed in specific facilities for children, separately from any adult prison or other facility for adults. Children may be detained with adults only for very exceptional reasons, based only on their best interests or the protection of others. OHCHR
Ensuring children’s social development and integration is paramount, where relevant measures should be taken before a child is institutionalised. Their rehabilitation must stand high amongst the concerns that should orient justice officials decisions.
It is estimated that on any given day, more than one million children are detained worldwide, against their will, in criminal justice detention, closed mental health facilities, or in immigration detention. (UNICEF)
To ensure an Africa Fit for Children;The African Council for Juvenile Justice brings together representatives of public administration working in the field of juvenile justice, universities and academic centres, the judiciary, and NGOs with experience in legislation, application, supervision, research and/or intervention in juvenile justice.