Court/Judicial body: High Court of Swaziland
Date: 25 November 2009 CRC
Provisions: Article 40: Administration of Juvenile Justice
Domestic provisions: Sections 18 & 29 of the Swaziland constitution showing that children are in a special category and must for that reason, be treated with a measure of care.
Background: A herd boy was charged with raping the 7-year-old daughter of the family that he lived with. The boy represented himself at trial because as he was unable to pay for legal assistance. The prosecution relied on a number of aggravating factors, including the fact that the victim was a minor child, that she was a virgin, that the defendant took advantage of their relationship of trust, and others.
Issue and resolution: Juvenile justice. The court determined that the boy is guilty of the offence and sentenced him to 14 months’ imprisonment.
Court reasoning: Although the court found that the boy had committed the essential elements of rape, it withheld convicting and sentencing the boy until an examination could be conducted to determine the boy’s age. The judge raised the issue of the boy’s age, even though the boy had not raised it in his own defence as he determined that it would have been unjust to ignore the issue, given the fact that the boy is not versed in law. After hearing contradicting expert testimonies, the boy’s exact age could not be agreed on, but the court proceeded on the premise that the boy is a minor, aged at least 14 and is subject to criminal responsibility. The judge rejected the aggravating factors put forward by the prosecution on the basis that these cannot be applied to the boy because of his young age. For example, the court reasoned that a 14-year-old boy would not be expected to know of, procure, and use a condom. On the issue of sentencing, although the court recognised the serious nature of the crime and its severe impact on the victim, it levied a sentence of 14 months already served because of the boy’s age and these mitigating factors. The judge repeatedly cited to cases for the contention that incarceration should only be used as a last resort when sentencing children, and that the sentence should be for the shortest amount of time possible to achieve justice. Further, the judge stressed that the government should ensure legal representation for juvenile defendants. In this case the mother of the victim had sought diversion from the criminal courts, but the police refused. The court noted that “restorative justice must be considered as a good end in some of these matters, where the interests of both the child perpetrator and the child victim are adequately catered for”. Finally, the court called for the creation of a juvenile justice system: “The present scenario where children and juveniles are dealt with in the ordinary Courts as if they were adults is completely unacceptable.” Further, the judge called for state-provided legal representation for minors. Excerpts Citing CRC and Other Relevant Human Rights “In this regard, Article 40 of the . . . convention is instructive. It provides that child offenders should be ‘treated in a manner that is consistent with the promotion of the child’s sense of dignity and self-worth, which reinforces the child’s respect for human rights and fundamental freedoms of others and takes into account the child’s age and the desirability of promoting the child’s integration and the child’s assuming a constructive role in society.'”
Follow up: Although the Swaziland Ministry of Justice announced in 2011 that it would establish child-friendly courts (http://www.crin.org/en/library/news-archive/swaziland-ministry-justice-set-child-friendly-courts), these do not appear to be functioning as of the beginning of 2016.
CRIN comments: CRIN believes this decision is consistent with the CRC as the court took into account the defendant’s age and the requirements of the Convention with regard to juvenile justice.
Citation: R v Mndzebele (213/2007)  SZHC 247 (25 November 2009)
Link to full judgement: http://www.swazilii.org/sz/judgment/high-court/2009/247/