Source: Dealing with child offenders – NewsDay Zimbabwe February 2, 2019
Guest Column: Miriam Tose Majome
CHILDREN were among the scores of suspects arrested for violence and looting in aftermath of the January 14, 2018 protests sparked by shock fuel increases. The protests had been pitted as a peaceful three-day-job stayaway and shutdown, but it turned violent when widespread looting and vandalism ensued on the first day. The police confirmed having arrested at least 36 minors for an assortment of crimes, including looting and vandalism. The police spokesperson Commissioner Charity Charamba told the Press that all the children had been released to their guardians. However, this does not mean the charges against them were dropped.
There have been appeals from many quarters to drop all charges against them, amidst assertions that arresting children was illegal and violated human rights. We discuss the criminal capacity of children and whether or not they can be held liable for crime and be arrested, tried and convicted.
Children are capable of committing crimes, with some of them commit very serious crimes. Children the world over, including in Zimbabwe, committing crimes like theft, assault, rape, drug dealing, drug abuse and other violent crimes like robbery and even murder. The youngest ever recorded child convicted for murder in history was a mere six-years-old.
Zimbabwe has its fair share of juvenile criminals, with a few murderers amongst them. In 2008, a 17-year-old boy from Ruwa was convicted of the premeditated cold-blooded murder of his parents as they were sleeping. In 2014, a 14 year- old Gweru boy killed the house maid by bludgeoning her with a hoe and hiding her body in the family toilet.
Criminal capacity of under sevens
In terms of the Criminal Law (Codification and Reform) Act, Chapter 9:23, children below seven years have no criminal capacity. Criminal capacity denotes responsibility and children younger than seven do not have the capacity to take responsibility for all their actions, so they cannot be held liable for crime even if their actions are unlawful. The majority of children in this age group are toddlers and the police cannot open dockets for toddlers. Toddlers cannot have criminal records. Nevertheless, all unlawful conduct must be reported to the police because there can be consequences such as death or injury. If the police arrested or detained children below seven during the recent protests, it would be wrong.
Criminal capacity of those between seven and 14 years
Similarly, children between seven and 14 years of age are also presumed to lack criminal capacity. However, children who have some awareness of the unlawfulness of their actions can be liable for criminal conduct, otherwise they are incapable of forming the necessary intent to commit crimes wilfully. Where negligence is an element of the crime, they are deemed to lack the capacity to behave in the way a reasonable adult would have behaved.
An example would be of an eight-year-old child in a stationary car parked on a hill who releases the handbrake and the car rolls back, killing people down the slope. A reasonable adult would have known that such an outcome was likely and, therefore, would not have done it unlike the eight-year-old. Ordinarily, no criminal charges are proffered against children between ages seven and 14, unless there is sufficient and convincing evidence which shows that the child intended to commit the crime and was aware that it was unlawful. That is a matter of evidence and opinion of a court or people with the expertise to work with children. Each individual case is assessed on its own merit.
In the present case, if the children arrested for looting and stealing knew it was wrong and unlawful, but continued doing it anyway, officers would be they would be liable for their behaviour. There was a group of children arrested in Bulawayo for stoning police officers. The children who simply did it out of fun, ignorance and without knowing the unlawfulness of their action, would not be criminally liable. However, those children among them who knew it was unlawful to stone policemen and intended to harm them, would be liable.
Criminal capacity: 14 years plus
The irrebuttable presumption of innocence ends when a child turns 14. Everyone above 14 years of age is deemed capable of criminal conduct. To put it more clearly, children in Form 2 would be charged and tried in court unless there are compelling reasons barring that, for example, mental incapacitation
Detention of child offenders
Child criminals have to be treated and housed differently from adult criminals. Section 84(1) of the Children’s Act prescribes the procedures to follow during child arrests. Children should not be detained in a prison or police cell or locked-up anywhere before they are convicted, unless the detention is absolutely necessary and if there is no other suitable safe facility for them.
Section 28(1) tasks the Minister of Social Welfare with establishing and maintaining remand homes to host and detain children awaiting trial or sentencing for their crimes. Presently, there are no such facilities and arrested children should be released into the care of their parents or guardians while their trial is ongoing.
The Prison Act Part X Section 3 provides for the separation and confinement of certain classes of prisoners by age, among other classifications. Young children in prison are to be kept separately from adults. This helps to protect them from abuse and exposure to various undesirable influences. Under the Prison Act, young prisoners should be those below 20 years of age.
Whatever the circumstances, child suspects and convicted criminals have to be protected by the State all the time. Section 19(1) of the Constitution dictates that their best interests in whatever the situation have to be prioritised in all matters that involve them. It should be noted that protecting children does not mean helping them conceal their crimes and shielding them from taking responsibility. If children have committed crimes and are old enough to know right from wrong, they have to be taught to take responsibility but in a protective way.
Miriam Tose Majome is a legal officer for Veritas and she writes in her personal capacity. She can be contacted on mtmajome@gmail com.