AYUO: Temper justice with mercy in juvenile cases - Daily Nation

Temper justice with mercy in juvenile cases

Thursday August 9 2018

children's courts

Children’s courts are mandated to hear charges against children except for those on murder or where a child has been charged with an adult. PHOTO | FILE | NATION MEDIA GROUP 

More by this Author

Mankind owes children the best it has to give, in the spirit and letter of The Geneva Declaration on the Rights of the Child. Juveniles’ actions or omissions mirror the society. It would be a justified cause for tantrums to move from a rosy cradle to a school saddle with rules and routine.

But that is no justification for a child to commit a crime. School has, for ages, been deemed a safe haven for children. Not anymore, based on the current illegal happenings and threats perpetrated by both the teachers and pupils.


In light of recent incidents such as rape allegations, a schoolboy’s genitalia damaged by corporal punishment, a child dying from being caned, school children’s disappearance and numerous strikes, assaults and arsons, and with several children’s trials looming due to student unrest, this tide of lawlessness should be stopped.

The Constitution, in Article 53(1)(f), provides that a child should not be detained except as a measure of last resort and, when detained, be held for the shortest appropriate period separate from adults and in conditions that take account of its gender and age. Article 53(2) stipulates that a child’s best interests are of paramount importance in every matter concerning the child.


For a crime to be validly proven, the malicious or criminal act and the pre-meditation or motive ought to coincide and the burden of proof of beyond a reasonable doubt discharged. Notably, in juvenile justice, capacity is not an element of criminal liability but forms part of the culpability. However, age is fundamental.

The Penal Code places criminal liability from age eight; however, this is often criticised because in most international laws it is 12. The UN Standard Minimum Rules for Administration of Juvenile Justice Rule 4.1 states that the beginning of the age for criminal liability ought not to be placed too low an age level, considering the mental and intellectual faculty development.

If a child below eight years performs an act or omission, which, by law, is defined as a crime — such as stealing or killing a person — it cannot be held responsible for it. Commendably, the Sexual Offences Act places liability to sexual offences and carnal knowledge offences at 12 years.


If prosecution can establish that a child of 8-12 years had the capacity to understand the consequences of its acts or omission, then the child will be prosecuted. The Children’s Act, at Section 14(2), also sets age of criminal liability at 12 years.

Children’s courts are mandated to hear charges against children except for those on murder or where a child has been charged with an adult. Children aged 12 years and above may be tried as adults for grave and heinous crimes knowingly planned and committed by.

Courts are guided by three major principles in children’s cases: The best interest, non-discrimination and maximum survival and development principle.


Juveniles are more capable of change than adults and their actions are less likely to be evidence of “irretrievably depraved character”.

Pre-juvenile preventive action with a pro-active approach is the way to go. Children should be advised that a crime once committed cannot be undone. Suspicious growing children should be isolated and be given special guidance, education and care for their reformation.

Mr Ayuo is a lawyer and tutor. [email protected]