Parliament has enacted The Children’s Act No. 8 of 2009 in June 2009 but for some reason it is not yet in force.
The portfolio Minister should know why this is so and I hope he has a plausible reason for this. However, for judicial officers, the delay causes significant problems because the current Children’s Act of 1981 is one unintelligible piece of document which even the Court of Appeal has confessed having problems making sense of.
Further, jurisprudence around the Act has not helped clear the mist. I will explain.
Under section 28 of the current Act, which the new Act proposes to repeal, a child found guilty of a criminal offence should not be imprisoned. The section gives a juvenile (magistrate) court only five sentencing options to choose from, namely either to dismiss the charge, or warn and discharge the offender, to place him under probation, or send him to a school of industries, or to simply order his parent or guardian to pay a fine or damages.
In 1988, the Court of Appeal in the case of State v Molaudi stated quite categorically that these are the only five options a court sentencing a child could choose from. But then section 29, inexplicably going off tangent, says that when a child fails to heed the terms of a probation sentence, he may be imprisoned. Needless to say, it thus contradicts section 28. And the Court of Appeal in the Molaudi has expressed an opinion that section 29 was probably a drafting mistake, further accusing the drafters of such unnecessary inelegance of drafting. The good thing with the new Act is that while it has retained the wording of section 29, it has amended section 28 to make it rhyme with section 29. There is no more contradiction between the two sections. But the contradiction remains for as long as the Minister holds on to the new Act.
The current Act has also created another uncertainty on the same question of sentence. Ordinarily section 295 of the Criminal Procedure and Evidence Act should be invoked when a magistrate court has determined that the convicted accused deserves a stiffer penalty than he has power to impose. In that case the magistrate would then refer the convict to the High Court in terms of this section for sentence accordingly. However, some High Court judges now hold that section 295 can also be used by a juvenile court to send a child for a harsher sentence in the High Court. This thinking, I must mention, prevails even in the wake of the said Court of Appeal judgment.
It is a thinking that is expressly intended to circumvent that binding judgment. We have reported cases to that effect. It is a thinking which surreptitiously takes advantage of the confusing presence of section 29 in the current Act. It seeks to say that parliament has not altogether barred children imprisonment contrary to what the Court of Appeal thinks.
There is a lot that can be said about the propriety, or lack of it, of using section 295 in this innovative way. Suffice to caution however that section 295 talks of the referral powers of a ‘magistrate court’ in contradistinction to ‘juvenile court.’ The question here is, does the term ‘magistrate court’ as used in section 295 mean the say thing with ‘juvenile court’ in terms of the Children’s Act? We think not.
There is a further controversy regarding the use of the word ‘conviction’ in section 295. Only those convicted may be referred to the High Court under section 295. The sticking question in judicial circles today is whether a child may be convicted by a court of law? Now I know that most people use the terms ‘guilty’ and ‘convicted’ interchangeably. Have you ever wondered why criminal courts talk of ‘found guilty and convicted’?
Why not just say ‘found guilty’, or simply ‘convicted.’ No, they always say, the accused is found guilty and is convicted. Well, in our view, to find guilty is to say that all the ingredients of the offence have been satisfied and an accused is found clearly to have committed the offence.
In terms of section 32 of the Penal Code, a court can after finding an accused guilty of an offence, go on to dismiss the charge. He then discharges the accused with a warning and cautioning, that is, to say, without even punishing him. Such a criminal record would not be taken to the criminal record bureau for safe-keeping. Ka mantswe a mangwe, molato o, o a lebalwa! Motho yo o itshwaretswe. O lebaletswe ditolo. If there was to be a job that disqualified those with criminal records this accused would not be affected by such criminal offence. It would, however, be different where he had been convicted.
A conviction means that the accused’s crime must be recorded and kept safely by the authorities for future reference, whether or not he ultimately got punished for it. And that is the point really, can a child be convicted?
If we insist that section 295 can be invoked by a juvenile court, we are indirectly saying that a juvenile court can convict a child. Yet the Court of Appeal in the Molaudi case has suggested that a child cannot be convicted. The new Act proposes to illuminate these dark alleys of the law by making it clear that a child can be convicted. It expressly says they can be imprisoned. You cannot imprison a person before you have convicted them. Everyone who goes to prison has to have their criminal record put down somewhere in government books as a remembrance.
There are other improvements that the new Act has brought in. In the current Act, for instance, it is a mandatory requirement for both a social worker and a probation officer to attend a juvenile trial. There is such an acute shortage of these officers in Botswana that almost all juvenile courts routinely sit without both in attendance.
And yet the High Court in Maleke v The State has made it clear that such trials are a nullity. It seems we have a crisis in our hands. The new Act seeks to avert or limit the extent of this crisis by providing that only a social worker should attend the hearing. But until the Act comes into force, the crisis festers on.
There is no space to go on and on and illustrate the urgent need for the commencement of the new Act. If I had space, I would talk of how the new Act has improved the conditions of children in relation to issues of inheritance, domicile, adoption, and several other areas. Section 3 which provides that the Act shall override any other adverse statutory provisions on the rights and interests of children is a milestone achievement for children considering that there are some antiquated statutes which do not deserve to be in our law books anymore.
Consider section 5 of the Law of Inheritance Act which says that a father may, without bothering to give reasons, disinherit or exclude his children from his will. What an ancient precept!
Nehemiah Mugoni is Principal Magistrate in Molepolole
