on: Overview of Juvenile Justice/Improving Laws and Procedures on Juvenile
Justice in the Gambia-30th December 2017
PRESENTED BY MALICK H.B. JALLOW ESQ, LLB (Hons), BL, PDIL
Key International Legal Instruments Governing Juvenile Justice in the Gambia
Barrister & Solicitor of The Supreme Court of The Gambia
Founder and President, Institute for the Advancement of Children’s Rights
Senior Law Lecturer, University of The Gambia
The Gambia is signatory to the main international legal instruments governing children’s rights in general and juvenile justice in particular. Principal among these instruments is the Convention on the rights of the child which the Gambia ratified on the 8th of august 1990.Specifically Article 40 of the said convention states that States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that:
(a) No child shall be alleged as, be accused of, or recognized as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i) To be presumed innocent until proven guilty according to law;
(ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;
(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
(iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;
(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;
(vi) To have the free assistance of an interpreter if the child cannot understand or speak the language used;
(vii) To have his or her privacy fully respected at all stages of the proceedings.
3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular:
(a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;
(b) Whenever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected. 4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence.
Also relevant is the African Charter on the Rights and Welfare of the Child which the Gambia ratified on the 14th December 2000
Both instruments lay down the requisite foundations for a fully-fledged juvenile justice system and inspired the conceptualization of the children’s act of 2005.
Brief Historical Background to Juvenile Justice in the Gambia
The concept of Juvenile Justice was first championed under the Young Person Act of 1949.This act generally contained progressive provisions that catered for the Special needs of children in conflict with the law. However there were notable omissions. E.g. the age of criminal liability was not fixed. The advent of the children’s Act of 2005 made significant strides as far as bridging the gaps are concerned and bringing Gambia in full compliance with its international legal obligations vis-à-vis the CRC and the ACRWC. In particular it established a children’s court dedicated to the special needs of children in conflict with the law
Juvenile Justice and Restoration
“Restorative Justice is a theory of justice that emphasizes repairing the harm caused by criminal behavior. It is best accomplished through cooperative processes that allow all willing stakeholders to meet, although other approaches are available when that is impossible. This can lead to transformation of people, relationships and communities”.
Indeed as far as juvenile justice is concerned, restorative justice provides a fundamental avenue to ensure that matters surrounding children in conflict with the law are resolved in a timely and effective manner. Invariably, a child’s interaction with the mainstream juvenile justice system adversely affects his\her education and ability to live a normal life. Therefore, taking such a course should come into the equation as a matter of very last resort. An effective restorative justice system therefore helps protect the child from the risks of “secondary victimization”.
Restorative Justice & the Children’s Act of 2005
The Children’s act of 2005 contains very progressive provisions that create a conducive atmosphere for restorative justice to flourish. In particular the following provisions are relevant:
a) Encourage the disposal of the case, without resorting to formal trial, by using other means of settlement, and
b) Encourage the parties involved in the case to settle the case, accordingly.
The police prosecutor or other person referred to above may exercise discretionary power conferred under that subsection if the offence involved is a misdemeanor and -
a) There is need for reconciliation;
b) The family, the school or other institution involved has reacted or is likely to react in an appropriate or constructive manner; or
c) Where, in any other circumstance, the police prosecutor or other person deems it necessary or appropriate in the interest of the child and the parties involved to exercise the discretion.
Police investigation and adjudication before the court shall be used only as measures of last resort”
It is submitted that even where a matter is already before the children’s court, the court can exercise discretion and facilitate the resolving of the matter through the restorative justice avenue. Finally, it is vitally important that in any restorative justice effort, the views and concerns of the victim is given due consideration and the option of making recourse to the formal justice mechanism should always be left open.
Challenges Facing Juvenile Justice in the Gambia: Improving Laws & Procedures
Generally, the Juvenile Justice Sector is faced with significant capacity and resources constraints especially in relation to the exposure, understanding and appreciation of the concept of juvenile justice by adjudicators, investigators, prosecutors and lawyers. However our main focus here is on improving and filling the legislative gaps as far as the legal framework governing juvenile justice is concerned.
The following gaps have been identified:
1. Lack of Constitutional Provision Focusing on Juvenile Justice.
Interestingly, there is no pinpoint constitutional provision addressing juvenile justice. Section 29 of the 1997 constitution talks about children’s rights generally and also the right of the child not to be kept in custody alongside adult offenders, but a concrete and comprehensive constitutional provision recognizing and acknowledging juvenile justice as a key feature of our justice system remains elusive.
2. Lack of Harmony in Criminal Investigations and Prosecutions.
Section 85 of the 1997 Constitution of the Gambia vests the power to initiate and conduct criminal prosecutions on the Attorney General through the Director of Public Prosecutions whilst the power to initiate and conduct criminal investigations is vested on the Inspector General of Police operating under the Minister of Interior by virtue of Section 178 of the 1997 Constitution and Section 4 of the Police Act. The fact that criminal investigation & prosecutions are handled by separate institutions often creates gaps in the juvenile justice process and also leads to delay thereby adversely affecting the efficiency and effectiveness of the process. It would be helpful an independent national prosecuting authority is established to oversee both criminal investigations and prosecutions in this country including juvenile justice. Indeed in the cases where the police are authorized to both investigate and prosecute matters pertaining to children in conflict with the law pursuant to Section 28 of the Police Act read together with Section 4 of the Police Act, there is a marked difference in efficiency and effectiveness of the process as both investigations and prosecutions of such matters are handled by the police throughout.
3. Age and Criminal Liability.
It is important to conclusively settle whether Section 209 of the children’s act pegging the age of criminal liability at 12 is capable of being harmonized with Section 12 of the criminal code which creates the conditional possibility of the age of criminal liability being as low as 7 years old. (Please find a more detailed analysis of this issue annexed to this paper)
4. Requirement for Legal Representation.
Section 72(1) (f) of the Children’s Act makes it mandatory for a child in conflict with the law to be represented by a lawyer at all stages during the proceedings. Whilst this is a very progressive requirement and is certainly to the best interests of the child, it is not consistent with Section 24 of the 1997 Constitution which makes legal aid mandatory only where it involves a capital offence. It is imperative that we change the constitution to accommodate the progressive provision in the children’s act on legal aid for children and bring it in conformity with the supreme law of the land
5. The Dilemma of the “Adult - Child”.
The children’s court only has jurisdiction over children aged 18 years and below. What happens if a person is a child at the time of the alleged offence but turns 18 at the commencement of proceedings? What happens were a child turns 18 during the course of proceeding at the children’s court?
The emphatic answer is that our laws are silent on whether the children’s court can still exercise jurisdiction over such individuals. There is need for legislation to fill this very apparent gap.
6. Development & Publication of Jurisprudence on Juvenile Justice in the Gambia.
Section 73 of the Children’s Act generally prohibits the publication of information that leads to identification of a child in any matter before the court. This, amongst other things, helps in ensuring that the child is not exposed to harm and secondary victimization as a result of interaction with the court. This provision should however not deprive us of the opportunity to compile and publish the key jurisprudence emanating from the children’s court as a means of raising awareness and building capacity amongst stakeholders in the juvenile justice system, with necessary safeguards such as redaction of information that could potentially expose the child involved to secondary victimization.