JUVENILE JUSTICE PROVISIONS OF THE LESOTHO CHILD PROTECTION AND WELFARE BILL 2004
4.2 The Incorporation of the General Principles of the Convention on the Rights of the Child in the Bill
Unlike the current legislation, the Bill gives recognition and incorporates the general principles of the CRC as detailed below. These principles are general interpretation standardsof the Bill. In the light of discussions in chapter 2,general principlesshould be applied systematically with the provisions of administration of juvenile justice in arts 37 and 40 of the CRC.5
4.2.1 Best Interests of the Child
The Bill proposes that the best interests of the child should bethe primary consideration in all actions concerning the child." This should be applied by all courts, all persons including parents and institutions or other bodies in any matters and actions concerning the child.' This provision goes beyond the standards of aJ13 of the CRC, by giving the best interests of the child paramount importance," The best interests of a child is a principleof interpretation, 'which should guide the treatment of all children in conflict with the law.,9
This elevated standard of the best interests of the child has the potential to improve the present administration of juvenile justice by puttingchildren's need for protection above other interests which the CPA did not. As seen in chaptertwo, making best interests the primary consideration in the CRC has been met with resistance, one reason being the
5Chapter 2 note 12 and correspondingtext.
(,Clause4(I).
7Clause 4 (2).
HChapter 2 part 2.2.I.
l)AmnestyInternational 'TheBestInterests oftheChild'HumanRights and theJuvenileJusticeSystemat 2 at www.amnesty.org/en/library/info/ACT76/006/1998accessedon the15th November 2008.
potential conflict between the interests of child offenders and society." Similarly this proposal may introduce tensions with the interests of society,if the provision is enacted as it is, it is not certain how it will be applied and it is open to constitutional challenge because it is not protected under the Constitution and may therefore be successfully attacked as unconstitutional. One solution wouldbe to amend s 32 of the Constitution in order to give a more comprehensive protection of children's rights and include the best interests of a child as the primaryconsideration in all matters concerning the child.
The proposed best interests of the child would transform the Lesotho juvenile justice system. This principle would guide procedures in the justice systems such as in diversion, restorative justice and the judicial process." Itsgeneral aim would be to protect children's fundamental rights and to provide possibility of rehabilitation and reintegration into society.l''
4.2.2 Non- Discrimination
Clause 5 of the Bill proposes that a child should not be discriminated against on the grounds of gender,race,age,religion,disability, health status,custom,ethnic origin,rural or urban background, birth, socio-economic status or other status. Like the best interests principle, the non-discrimination is a new principle and an improvement to the CPA standards. Of concern in this discussion is discrimination based on nationality and social status.
The Bill has not included citizenship as one of the grounds for discrimination, perpetuating therefore a weakness of the Constitution.':'The likely impact is that foreign children will not be treated equally with nationals in the juvenile justice system which would contravene art 2( 1) of the CRC which provides that non discrimination should apply to all children within the jurisdiction of the state.14
10Chapter 2 note 14 and corresponding text.
11AmnestyInternational (note 9 above) at 4.
121bid.
13Constitution of LesothoAct No. 5 of 1993ins18(4)allows discriminationon the basisof for non-
?ltizenship at www.lesotho.gov.ls/documents/Lesotho_Constitution.pdfaccessed on the 10th April 2008.
Chapter 2 in part 2.2.2.
The proposal would likely remedy the current discriminationagainst children inthe rural areas." These children do not currentlybenefit equally from the services offered by the probation office because those serviceshave not been successfullydecentralized." Other services that need decentralisation to ensure that rural children do not suffer discrimination are detention centres and the legal aid office." Another discriminatory practice is the denial of diversion option for street children, this is a status based discrimination which though prohibited in clause5 above, has specifically been allowed in clause 132 (1) which denies street children diversion as it will be seen in the discussions on diversion below.
4.2.3 Participation
Clause 13 of the Bill incorporates art 12 of the CRC.18 It proposes that a child should have a right to express his or her opinion freelyin any matter or procedure affecting him or her and to have that opinion taken into account and given due weight in accordance with the age and maturity of the child. Discussion in chapter three showed that this principle is not fully recognized in the current juvenile justice system." Although this principleappliesto the entire provisions of the Bill, itis an improvement over the current system; moreover,it is included in specific clauses relating to juvenile justice.
Additional guarantees for child participation are contained in provisions pertaining to juvenilejustice,in compliance with art 12(2)of the CRC. For example,in consideringthe assessment report and submissions by the prosecutor or any other party, the inquiry magistrate 'must take account of the principle that the child has the right to participate in all decisions affecting him or her.,20 The Bill specificallyproposes a child friendlycourt to allow the active participation of the child in proceedings." Further proceedingsshould be carried out in an informal manner to encourage maximum participation of the child and to ensure that the child's procedural rights are observed." Further, the judicial
15For example,clause 131(1) specificallyprovide thatindiversion nochild maybe unfairly discriminated against.
16Probationservices referred to arediversion,pre sentencing reports,counseling andsupervision.
17In chapter two it was discussed that childrenJTCandLegalAidare in Maseru and not accessibleto most children in the rural areas.
IXChapter 2 note 38 and correspondingtext.
19Chapter 2 in part 2.2.3.
20Clause114(3).
21Clause 137 (3).
22Clause142 (3).
officers should assist the children to participate in the proceedings, by protecting them from'hostile or intimidating cross-examination' where it is prejudicial to the wellbeing of the child or the fairness of proceedings.r' If the child's participation is hampered by the presence of parents or guardians; in the best interests of the child the parents or guardian should not be in court." These will be an improvement over the current juvenile justice system which does not provide the procedure to be followed to allow for effective participation of children."
Further clause 142(5) of the Bill proposes that children should speak in their own languages with the assistance of the interpreter, where necessary, and the presiding judicial officer should ensure that the children are addressed in the language that they understand. While this is not a new provision as it is provided in s 12(d) of the Constitution," being proposed specifically for children in conflict with the law reinforces the right in the juvenile justice system. The Bill has proposed that an expert in sign language should be engaged to assist children with speech or hearing impairments." This is an improvement to the current laws and practice in regard to participation rights. These proposals for child participation will enable children to take part and be heard in all decisions affecting them in compliance with art 12 of the CRC.
Mandatory use of English in courts has not, however, been challenged in the Bill. This means that although children and magistrates might speak the same language, communication will continue to take place through interpreters." This has been a serious oversight which needs to be attended to preferably before the Bill is enacted to avoid future amendments.
4.2.4 Development
Clause 10 of the Bill proposes that the child should have access to education preventive healthcare services, adequate food, clothing shelter, medical attention and services required for the child's development. This principle like the others, is general to the provisions of the Bill and therefore applies to juvenile justice provisions as
23 Clause 142 (12).
2-l Clause 142(4).
25Chapter3note 48- 50 and corresponding text.
26Chapter three in 'Participation Rights and Interpreters'.
27 Clause 146 (6).
2X Chapter3 note78and corresponding text.
well.The principle is reflected in clause 107 of the Bill which is discussedin detail in part 4.4 below.
With the best interest of the child guiding all decisions taken in the juvenile justice system and the children given the opportunities and support to participate in those decisions which affect them and all children given equal treatment,juvenile justice as proposed by the Bill if enacted will considerablyincrease the chances of rehabilitation for all children which is the main aim of juvenile justice.