Friday, March 09, 2018

Justice will not be served if we maintained our exclusive focus on the questions that drive our current justice systems: what laws have been broken? Who did it? What do they deserve? True justice requires, instead, we ask questions such as these: who has been hurt? What do they need? Whose obligations and responsibilities are these? Who has a stake in this situation? What is the process that can involve stakeholders in finding solutions?

H Zehr The Little Book of Restorative Justice (2002).

This article discusses the prospects and challenges of current juvenile justice framework in the Gambia with emphasis on the fact that in order to keep children out of prisons, the release of young offenders into the care of their parents and imprisonment be a measure of last resort for a child should be encouraged. This argument is anchored on the fact that Article 40 (1) of the CRC refers to reintegration as the primary objective of the juvenile justice system and encourages children to assume more constructive roles in society. The latter forms the basis of reference to restorative justice as the underlying philosophy of juvenile justice. (Skelton 1996). Thus, states are required to be guided by community-based approaches to juvenile delinquency in a way that will both condemn the acts of the delinquent with equal emphasis on reintegration. 

The 2005 Children’s Act provides the primary normative and institutional framework for juvenile justice in the Gambia. It provides a criminal justice process for children accused of committing offences in line with the rights of children as provided for in the 1997 Constitution of the Gambia. The preamble of the Act emphasises that the Act sets out the rights and responsibilities of children with equal focus on child maintenance and care. Overall, the Act also emphasises the ideals of restorative justice and accountability through its many provisions.

However, juvenile justice in the Gambia to large extent was shaped by colonial legacy. Thus the 2005 Children’s Act is not totally new but rather a further development of the existing juvenile justice framework. However, it is a given that the 2005 Act has a remarkable new trajectory in line with the Gambia’s international obligations.

In one of his lectures, Barrister HB Jallow Esq. noted that the concept of Juvenile Justice was first championed [in the Gambia] under the Young Person Act of 1949. He noted that there were notable omissions in that act including no fixed age limit for criminal responsibility. However, it was only in 2005 when the Gambia took the bold step to reform her laws relevant to the rights and welfare of children including juvenile justice. This process was shaped by regional and international normative standards such as the UN Convention on the Rights of Children (CRC) and the African Charter on the Rights and Welfare of the Child (African Children’s Charter). 

The 2005 Children’s Act inter alia provides for pre-trial, trial and post-trial safeguards for children arrested for committing crimes. Under article 210(1)(4) the Act provides that a child arrested for the commission of an offence shall be released on his own recognisance or recognisance entered into by his/her parents. But where release is not granted, the child can be detained under conditions laid down in article 210(1)(5) of the Act. The Act appears to restrict the use of pre-trial detention. In the event of detention, children should be held separate from adults and in conditions that take the child’s sex and age into account. However, a child may also be remanded in terms of article 212 not exceeding 6 months in the case of attempted murder, robbery and treason.

In the absence of adequate facilities and programs the administration of pre-trial safeguards presents a huge challenge. However, there is a specialised police force unit dedicated to deal with juvenile delinquency in the Gambia. In line with the Children’s Act the government established Child Welfare Unit in the Gambia Police with mandates to apprehend child offenders, prevent and investigate child offenses. The unit is staffed by specially trained officers.  However, due to inadequate data it is not possible to explore how effective this unit has been since its establishment and the challenges it also faces. Nonetheless, the need to further train law enforcement officials and the need to decentralise police expertise on juvenile justice across the country is palpable.

The provision of separate courts dealing with juvenile justice under the Children’s Act is central to the CRC and ACWRC. The criminal jurisdiction of the Children’s Court extends to all cases where children are charged with criminal offences except where they are charged with treason or jointly charged with an adult. The establishment of specialised courts for children is a welcome development taking into account the need to ensure that the criminal justice system is friendly to children by taking into account their best interest.

The socio-economic situation in the Gambia and in many third world countries is characterised by poverty, child abandonment, unemployment, drug abuse among teenagers and extended family structures with little means of sustenance and survival. These factors account as the primary catalyst for children vulnerability to crimes in the Gambia and beyond. Moreover, it is difficult to ascertain the effectiveness of the juvenile system to rehabilitate and deter young offenders particularly given the absence of adequate facilities to enhance the reintegration of ex-juvenile convicts in society. This is further exacerbated by the stigma that young offenders face in society. As such, it is important that a broad-based research is conducted to assess the impacts of the juvenile system in enhancing deterrence and rehabilitation of juvenile delinquents across the country to prevent recidivistic tendencies.  

The current best practices encourage restorative justice as one of the underlying ideals of juvenile justice in many countries particularly in Africa where the doctrine is believed to have emanated. Restorative justice centralises victim-offender mediation where victims and perpetrators discuss how they were affected by criminal acts and explore the need for solutions.

To Be Continued…


Author: Sainey Bah (LLB, LLM) Coordinator, Institute for the Advancement of Children’s Rights (IACR)