Our criminal justice system is tough. Clearly, it was not made for children. However, unfortunate things happen sometimes, and children get involved with the criminal justice system and they are required to testify as witnesses. This is often disorienting for the children, and very disturbing for parents and guardians of the children involved.
Generally, all persons are competent to testify in a court of law. The only exception to this rule is any person whom the court declares unfit to testify. Section 125 of the Evidence Act provides that:
“All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause.
A mentally disordered person or a lunatic is not incompetent to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them”.
As a means of compliance with social policy, child witnesses and complainants are given special protection under the law. Child witnesses and complainants are afforded special protection under the law.
During investigations, the police must take care not to put the child in danger. For example, when a child must identify a criminal, utmost care must be taken, as we suggest here.
Upon arraignment of the accused, if the accused pleads “not guilty”, then the child witness will be required to give testimony during the trial.
Before taking the evidence of the child, the court must establish that the child knows what they are doing and appreciates the importance of speaking the truth. This is done in a legal process known as a voir dire. If the child is found competent, then the court may take their evidence.
It is also a general rule that all court proceedings must be held in open court. However, an exception is made for children. A judicial officer may require that the proceedings be held in private. For example, during the testimony of a child, only the child’s parents and or legal counsel, together with the other party and their legal representation may be present. A judicial officer presiding over such a trial must make sure that the picture of the child is not taken while the child is testifying. More so, the accused, if he intimidates the child, may not be present as the child testifies. What most courts do, however, is that a child testifies from a remote room where they cannot see the accused.
The purpose of this is to reduce the stress the court system may have on a child, and to reduce the chances of trauma on the child.
Children are also entitled to witness protection, especially if their abusers or the persons against whom they shall testify may harm them. For example, where a child has been sexually abused by its father, the child may be given an alternative home if its father is given bail, pending the hearing and determination of the suit.
It is also not necessary for the child to attend court throughout the whole trial.
Children are delicate. When dealing with them, the justice system should take care not to hurt them. Care should be taken at the time of reporting, during investigations and during trial. If indeed children are the future, we must treat them in a way which can facilitate them to have a good future.
BY SAMALI BITALA
This article appears in our law newsletter Vol 3 Issue 1 of March 3rd 2018. To receive The Deuteronomy in real time, click HERE