1 Background
Child justice is a critical aspect of administration of justice in any country. This is no surprise considering the special place of children in a given community. Their vulnerable and special position means that they must be protected by an organised and coherent legal regime. This is true for a child who must come in contact with the administration of justice for a crime in which he or she has committed or participated in. The general philosophy behind child justice administration is that, children being vulnerable persons must undergo a special process when they come into contact with the criminal justice system. Without a doubt, the child justice system in other jurisdictions like Europe and North America has far advanced. The importance of a sui generis child justice administration is only recently being realised in African countries. This is one of the inspirations behind this book. As rightly noted by Odongo that, “The history of child justice systems in Africa is more recent compared to other contexts such as Europe and the USA”.1 It is important to state at the outset that the terms “child”, “juvenile” and “young offenders” are interchangeably used in this book to refer to the subject of concern which is children who are “in conflict with the law” or “children that are in need of care and protection” or “children that are beyond parental control”.2
A child is viewed as a dependent and valuable being that deserves special care.3 This proposition remains sacrosanct regardless of whether the child is beyond parental control or is in conflict with the law or in need of care and protection. Generally, child justice administration has evolved based on this proposition, hence the noticeable difference in the treatment of child and adult offenders. A global conceptualisation of child was proposed in this book. This was done by investigating the historical evolution of child justice administration and its theoretical perspectives based on the international and regional legal instruments on the protection of the children’s rights. It further investigated the pre-colonial era in Nigeria and South Africa which were incidentally colonised by the British. The disposition of the colonialist to the fundamental rights of children which later served as the foundation for all other developmental steps taken towards creating safe and proactive environment for equitable justice is explored. On the other hand, it also argued that particularly in the Nigerian case in its Northern region, the continued effects of colonialism are insurgencies such as the Boko Haram against Western influence and ideologies.
One of the uniqueness of this book is the inclusion of a discussion on certain key post-colonial factors/events in the child justice system of African countries. These post-colonial factors are not necessarily positive development. For example, Nigeria’s long years of military dictatorship and Boko Haram insurgency have some form of impact on the child justice system of the country even today. With regard to South Africa, the long apartheid rule and incessant xenophobic attacks significantly impacted on the child justice system.
Comparatively, the book identifies; analyses and assesses the legal and institutional regimes for child justice administration and the dispositions for handling child delinquents generally and within Nigeria and South Africa as case studies respectively of a developing and a transitioning context in Africa. The book evaluates the extent to which the child justice administration in the two countries complies with the international standards. It further analyses the inherent problems and challenges associated with children in the process of criminal justice system. This book takes care of the dearth of materials in these areas of study. Hence, this book shows that children are not only neglected, scholars and practitioners also have no access to materials to use in this area of the law in Africa.
It is pertinent to note that very few studies have been conducted in the area of child offenders although much have been written about victim children and children in need of care and protection. The State machinery keeps this class of offenders in institutions such as prison, Borstal institutions, Government-Approved Schools and Remand homes where outsiders are not allowed to tread, abandon them without adequate attention being paid to their well-being and rehabilitation. Children in these institutions are eventually released to the society ill-equipped to handle challenges of life upon completion of their terms of confinement. It is important to note that this treatment meted out to child offenders is most deplorable, especially when children legislations recognise that children alleged to have committed an offence require special care and protection. The system of child justice has been based on a balance between the need to punish or control young offenders and to encourage them to be accountable for their actions. The system also employs strategies which take account of many problems which may have led to the involvement of children and young persons in crime (otherwise known as welfare-based approach). It also carries out intensive monitoring as an effort to control and limit the opportunities for criminal activity.
Child justice system has evolved over the years from the assumption that children that violated criminal laws should be treated distinctly from adults.4 However, the major challenges that have continued to besiege the entire criminal justice system are lack of separate and adequate custodial facilities for child offenders in Nigeria5 unlike South Africa.6 In addition, the system contends with the serious challenges of poor child justice administration, with a large number of child offenders incarcerated in grimy prison yards and mostly deprived of the salutary impact of reformative and rehabilitative custodial environments.
An examination of the existing materials on child justice administration shows that the sector of child justice has remained a weak area without much priority within the adjudicatory system. Also, lack of separate and specific courts dedicated to child justice in Africa and poor legal representation during prosecution of child offenders most often results in many of them being incarcerated with adults.
Implementation of the existing laws in the child justice system is also another problem. This manifests in the absence of support services to weak families which becomes a major factor in turning their children into delinquency. For example, greater emphasis was laid on institutional organisations as compared to non-institutional services in the Nigerian Children and Young Persons Act 1958.7 The study has shown that the facilities and services in these institutions in different States of the federation of Nigeria are found to possess no yardstick for standardisation.8 There is also a dearth of services and programmes for children of special needs. Furthermore, there is no form of measurement of index of performance of institutions in the area of child justice. Therefore, there is no means of ascertaining the quality of performance of these segments of child justice in Nigeria.
Although there are few research materials that establish and provide lines of argument on the legal and institutional frameworks for child justice administration, there are substantial provisions of law (and other strategic initiatives) both at the national and international levels that adequately address the issues across Africa. For example, in Uganda, the Bill of Rights in the Ugandan Constitution makes unique provision for children’s right. Apart from the general rights in the Constitution, there are also specific rights for children. The Ugandan Children (amendment) Act 2016 also reforms child justice administration generally. The Rwandan government has also demonstrated strong commitment towards children’s right. Apart from it being a signatory to numerous international conventions with support of its Constitution and other legislation, the government of Rwanda has developed a National Integrated Child Rights Policy. Egypt has also made significant strides in this regard being a signatory to human rights conventions. In addition, Egypt has hosted quite a number of human rights-related dialogues. With regard to domestic legislation, Egypt has enacted a comprehensive Childhood Law in 1996 which was further strengthened by amendments in 2008. For Kenya, the 2010 Constitution of Kenya9 (Article 53) recognises the need for all children to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhumane treatment and punishment, and hazardous or exploitative labour.10 Kenya being a signatory to many conventions on the protection of the right of children, enacted the Children’s Act11 in compliance with international best practices.
In similar manner in Nigeria, efforts have been made to reform laws on the rights of the child in order to comply with the principles contained in the United Nations Convention on the Rights of the Child (CRC) which the country has ratified. But despite the domestication of CRC, the enactment of the Child Rights Act 2003, the Children and Young Persons Act (CYPA) just like the South African Child Justice Act and Children’s Act, remain the most important legislations in the countries dealing with the treatment of child offenders. Nigeria is therefore, one of the countries that have...