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A RIGHTS-BASED JUVENILE JUSTICE SYSTEM

Under the old juvenile justice system, the language of rights was excluded in favor of the application of welfare principles for children in conflict with the law. The enjoyment of rights by persons accused of crime was given a constitutional basis in the 1992 Constitution,[1] and this necessitated the adoption of a more rights-based approach to the handling of juveniles in conflict with the law.

Between 1998 and 2003, Ghana made great strides with respect to the law of the child by first amending the existing law on the age of criminal responsibility and the age of consent and then a Children’s Act, 1998 (Act 560),[2] with its regulations,[3] and a Juvenile Justice Act, 2003 (Act 653) to replace the provisions in the Criminal Procedure Code 1960 (Act 30) (now Criminal and Other Offences (Procedure) Act of Ghana) (Act 30). These pieces of legislation, in particular the Children’s Act, were largely based on commitments assumed under the International Convention on the Rights of the Child, and the Organisation of African Unity’s (OAU), now the African Union (AU), Charter on the Rights and Duties of the African Child changed the fundamental assumptions underlying the legal system’s approach to issues concerning children. Beginning with setting the age of childhood as 0-18 years, it set a national legal framework for promoting the enjoyment of rights by the child, as well as introducing new philosophies and institutions for dealing with problems relating to the child.[4]

The creation of separate legal regimes for the treatment of children in need of care and who come to the notice of the law, from that for those who come into conflict with the law and thus the proper subjects of the juvenile justice regime, marked a philosophical break from old ideas that conceptualized the neglected or abused child as one leaning toward criminality that justified the intervention of the state. Thus distancing children of unfortunate social circumstances from those who had actually committed infractions of the law removed the tag of “delinquency” (which was only a euphemism for “criminality”) on children deemed to be in moral danger on account of their own chosen lifestyles or lifestyles imposed upon them by the extreme poverty or even depravity of their parents. It also separated issues of child welfare, from child reform and rehabilitation issues, and achieved a separation of the “unguided” from the “misguided.” In addition to altering the philosophy underlying the system of management of children at risk or in moral danger, the Act also made a bold attempt to introduce methods that would enable a child in conflict with the law avoid having to be processed through the main system, by introducing a number of diversionary mechanisms calculated to prevent or delay the juvenile’s entry into the formal justice system by providing a forum for victim-offender mediation.

On its part, the Juvenile Justice Act, 2003 (Act 653), provided a statutory basis for separating the treatment of breaches of criminal law by children, from the adult regime governing crimes. Specifically, it altered the juvenile justice system by making the welfare of the juvenile the primary concern of the system rather than the interest of society in punishing criminal conduct[5] and prescribed that in all decisions affecting a juvenile, the best interests of the juvenile should be the guiding principle and paramount consideration.[6] It set the scene by defining “juvenile” as a child under the age of 18 years in conflict with the law and thus raised the age of “juvenile” from under 17 years as prescribed under the old regime,[7] to under 18 years. [8] It also incorporated the provisions of the international human rights instruments to which Ghana was a state-party, as well as constitutional requirements as prescribed under the fair trial provisions of Article 14 of the 1992 Constitution. These human rights provisions moved the system from an interest-based welfare system to a rights-based one, as in the adult system.

  • [1] 1992 Constitution, article 19
  • [2] Children’s Act, 1998 (Act 560)
  • [3] Child Rights Regulations 2002, Legislative Instrument 1705
  • [4] Esmeranda Manful and Patrick McCrystal, “Ghana’s Children’s Act 560: A Rethink of itsImplementation?” 19 International Journal of. Childrens Rights, 151 (2011)
  • [5] Except in special circumstances as under section 17
  • [6] Section 2
  • [7] Act 30, Section 314 now repealed by Act 653
  • [8] Act 560, Section 1 (1)
 
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