Home Free Lab Reportscenter23002311409410012100center818008227695 941009200 center700007040880 9410010000 center300003017520GAONE MOOTHAI 201400934 CJS329

center23002311409410012100center818008227695 941009200 center700007040880 9410010000 center300003017520GAONE MOOTHAI 201400934 CJS329

center23002311409410012100center818008227695
941009200
center700007040880
9410010000
center300003017520GAONE MOOTHAI
201400934
CJS329: JUVENILE DELINQUENCY AND YOUTH JUSTICE
HOW FAR THE CHILDREN’S ACT, 2009 IS CONSISTENT WITH INTERNATIONAL NORMS AS REGARDS THE TREATMENT OF JUVENILE OFFENDERS
9410036300GAONE MOOTHAI
201400934
CJS329: JUVENILE DELINQUENCY AND YOUTH JUSTICE
HOW FAR THE CHILDREN’S ACT, 2009 IS CONSISTENT WITH INTERNATIONAL NORMS AS REGARDS THE TREATMENT OF JUVENILE OFFENDERS

This paper aims to discuss how far the Children’s Act of 2009 is consistence with international norms as regard to treatment of juveniles the Convention on the Rights of the Child, African Children’s charter, Beijing rules and the Riyadh Guidelines.

In 1995 Botswana ratified the Convention on the Rights of the Child as a result the Children’s Act of 2009 seeks to align with the CRC CITATION Luc10 l 4105 (Lucas, 2010).Both the CRC and children’s Act a child means anyone below the age of 18, furthermore the CRC requires that the age of criminal responsibility be defined and therefore Section 82 of the Children’s Act of 2009 seeks to define the age of criminal responsibility of children it provides that a child under the age of 14 years shall not be presumed to have capacity to commit criminal offence unless it can be proved that at the time of committing the offence the child had capacity to know that he or she ought not to do so CITATION Mac13 l 4105 (Macharia-Mokobi, 2013).Section 89 provides that a child convicted of murder shall not be sentenced to death this consistence with the Convention on the Rights of the Child as according to CITATION Dit07 l 4105 (Ditshwanelo, 2007) the CRC emphasises that a child right to life should be protected. Moreover according to (CRIN, 2010) section 37 of CRC provides children should be protected from unlawful and arbitrary deprivation of their liberty as a result the government of Botswana prohibit life imprisonment however under section 85 a child can be sentenced to imprisonment ,this is problematic because the act does expressly prohibit life imprisonment, section 89 provides that a child convicted of murder or a capital offence shall be sentenced to imprisonment for such a term that the court consider appropriate this is also problematic as life imprisonment can be imposed as sentence is not specified however it is evident in the case of the Matsetsenkane that the government is trying by all means to use other forms other than imprisonment by organising a holiday that will try and rehabilitate the gang. Furthermore, according to CITATION Mac13 l 4105 (Macharia-Mokobi, 2013) the CRC requires that arrest and detention and imprisonment of a child should be in conformity with the law and should be used only as a measure of the last resort as it is shown in the case study that the government is trying other measures to try and deal with young people instead of sending them to prison. Section 37 of the CRC provides that children should be protected from all forms of physical and mental violence, torture and other and other cruel, inhumane and degrading treatment and punishment, this provision is not clearly articulated in the Children’s Act as even though the act also prohibit inhumane and degrading punishment of children it highlights that it does not prohibit corporal punishment (CRIN,2010). CITATION Mac13 l 4105 (Macharia-Mokobi, 2013) highligts that this is a violation of the prohibition of inhumane and degrading punishment. Botswana has refused to abolish corporal punishment in its penal system this is highligted in the case of CITATION Pet88 l 4105 (Petrus and Another v the State, 1988) where the applicant challenged the use of corporal punishment on the basis that it was unconstitutional as he was beng subjected to torture, inhumane and degrading punishment, however the court held that it was preserved under section 7 the Constitution that it was a legitimate form of punishment in Botswana. CITATION Mac13 l 4105 (Macharia-Mokobi, 2013) further point out that use of corporal punishment is rather retributive which goes against the sentencing aim of young people which is rehabilitation.The use of corporal punishment has been problematic in Botswana this is evident as according to CITATION Mod11 l 4105 (Modikwa, 2011) a 15 year juvenile died in Tsetsejwe after being given 4 strokes on the buttocks which damaged his kidneys.

Another international treaty is the African Charter on the rights and welfare of the child which is similar to the Convention on the Rights of the Child but mosty stresses that the CRC missed important socio-cultural and economic realities of the African experience, it stresses the need to include African cultural values values and experience in considering issues concerning the rights of children in Africa and the charter mostly stresses that countries have to create policies that are in the best interest of the child CITATION Olo02 l 4105 (Olowu, 2002).The children’s Act have incorprated this principle under section 5 where it provides that a person or a court perfoming a function or exercing power under this Act shall regard the best interest of the child as the paramount consideration, section 6 further on articulate factors to be taken into accont in determining the best interest of the child and these include among others protecting child from harm, need to protect child spiritual, physical and emotional needs, the child’s age, maturity,sex,background and language, it is highlighted in the case study that Matsetsenkane are young people who need to be protected despite all the crimes they have commited and this shows that the best interest of the gang members as being children was taken into consideration.

One other treaty is the Riyadh Guidelines which came to being in 1990 one year after the Convention on the Rights of Child was adopted these guidelines highlight prevention of juvenile deliquency , that programmes must be put in place to prevent children from being involved in the justice sytem and that diversion programmes must be coupled with prevention programmes inorder to prevent juvenile deliquency, it also stresses the imporatant played by society in preventing child offending , it emphasis the need to for a multi- disciplinary approach and proper recruitment and training of personnel who work with children CITATION UNI09 l 4105 (UNICEF, 2009). According to CITATION Sem10 l 4105 (Semommung, 2010) the childrens Act is consistent with the Riyadh Guidelines under section 33 which provides for the establishment of Village Child Protection Committies whose role is to educate communities about children issues and to monitor welfare of children, in the casec study it stressed that in organising the holiday for the gang members it is important that all stakeholders including the community are consulted so as to prevent the process from running parrallel intervention programmes, it is also evident that the government tried to bring in anti-deliquent groups such as Botswana Institute of Rehabilitation and Reintergration of Offenders (BIRR0) to cousel and help refocus the gang members even though some declined. CITATION Sem10 l 4105 (Semommung, 2010) further highlight that inorder to ensure that children are prevented from offending families and communities should be invoved however in the case study it is evident that the community of Thamaga is not involved with the mentoring and rehabilitation holiday of the gang members and also that the society do not approve of the programme as they feel the gang members are being let of easily and spoilt.

Another international treaty is the Beijing rules which were adopted in 1995, these rules provide a framework within which juvenile justice system should operate, they set standards for a fair trial and humane response to juveniles whom may find themselves in conflict with the law from the time they are being arrested, how investigations should be conducted, prosecution and adjudication, disposition,institutional and non-institutional treatment and after care, for exampe 5.1 provides that juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence, the response to young offenders should be based on the consideration not only of the gravity of the offence but also of personal circumstances, the individual circumstances of the offender for example social status, family situation, the harm caused by the offence or other factors affecting personal circumstances should influence the proportionality of the reactions for example by having regard to the offender’s willingness to turn to wholesome and useful life (United Nations, 1985). Procedure to be followed when dealing with young offenders is highlighted in section 81 of the Childrens Act as follows any person having reasonable cause to believe that an offence has been committed by a child shall make a report thereof to a police officer in the district in which the offence was alleged to have been committed and if on receipt of a complaint, the police officer is satisfied that prima facie an offence has been committed, the police officer shall investigate the alleged crime and cause a social worker to enquire into, and file a report to, the children’s court. According to CITATION Can13 l 4105 (Cantwell, 2013)the role of the social worker is to prepare a social inquiry report on the general conduct, home environment, school records and medical history of the child, highlighting any problems hence helping and recommended appropriate action be taken. From this section one can justly point out that this is somehow humane way of dealing with juveniles as recommended by the Beijing rules, the Act does not allow harsh arrest and detention of children but rather want to protect them, it is also shown in the case study that the government in dealing with Matsetsenkane took careful consideration and choose the appropriate action which will help the gang members reform and refocus instead of imprisonment or corporal punishment. As to being in contact with the court CITATION Mac13 l 4105 (Macharia-Mokobi, 2013) highlights that the Children’s Act provides that all magistrate shall be Children’s courts however the act fails to expressly exclude customary courts from handling cases involving children as a result children are being tried in customary courts in Botswana and this is a concern because first of all lawyers are not allowed in the courts which means the right to counsel of a child is being violated, secondly it is often argued that due process and judicial safeguards are lacking in customary courts and also presiding officers lack legal training as well as lack training on child justice.
Section 85 provides for methods of disposition that is used for children in conflict with the law as follows, where a child charged with an offence is tried by a children’s court and the court is satisfied of his or her guilt, the court shall, after taking into consideration the general conduct, home environment, school records and medical history (if any) of such child dispose of the case by (a) placing the child on probation for a period of not less than six months or more than three years; (b) sending the offender to a school of industries for a period not exceeding three years or until he or she attains the age of 21 years; (c) sentencing the child to community service for such period as the court considers appropriate; (d) sentencing the child to corporal punishment; or (e) sentencing the child to imprisonment. However according to CITATION Mac13 l 4105 (Macharia-Mokobi, 2013) there are currently no probation services in Botswana which in turn limit the sentence available to children. There is only one school of industry in Botswana Ikago which is in Molepolole and it mandate is to cater for children between the age of 8 -18 and to provide a place of safety, however the school have been accused of having lost its way by draft policy paper on sentencing 2013, one of the concerns among others was that the school have no specialists in areas of child psychology, criminology and child justice also that the school mandate of place of safety is not utilised but rather it is used as a detention center for children in conflict with the law, in terms of community service it is not utilised because there is no structure for it CITATION Mac13 l 4105 (Macharia-Mokobi, 2013).It is highlighted in the case study that the government tried to take a different approach in dealing with children in order to try and introduce a new system of dealing with juvenile delinquents instead of using the usual methods provided by the Act which are constantly failing.

In conclusion one can justly highlight that the Children’s Act to a certain extend is consistent with international treaties however there are some numerous reforms that must be considered especially around the area of Customary Courts being involved in child justice as well, sentencing and training people on child justice.

References
BIBLIOGRAPHY Cantwell, N. (2013). The Role of Social Workers in Juvenile Justice. Child Protection Unit. UNICEF.

Ditshwanelo. (2007). Children’s Rights.
Lucas, T. B. (2010). Juvenile Justice System and Social Work in Botswana: An Appraisal. Botswana Notes and Records.

Macharia-Mokobi, E. (2013). Sentencing of Children in Conflict with the Law. Gaborone: Thari ya Bana.

Modikwa, O. (2011). Youth dies after flogging? . Gaborone: MMEGI.

United Nations. (1985). United Nations Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules).
Children Rights International Network (CRIN). (2010). Inhumane Sentencing of Children in Botswana.
Olowu, D. (2002). Protecting children’s rights in Africa: A crituque of the African Charter on the Rights and Welfare of the Child. International Journal of Children’s Rights, 10, 127-136.

Petrus and Another v the State, BLR 281 (High Court 1988).

Semommung, B. (2010). The Children’s Act No. 8 of 2009 and the juvenile justice system in Botswana. UNICEF.

UNICEF. (2009). Working with Children in Conflict with the Law.
Children’s Act, 2009
Constitution of Botswana