control.
BIBLIOGRAPHY
Children's Protection and Adoption Act, Chapter 33 Criminal Procedure and Evidence Act Chapter 59 Legal Age of Majority Act 15 of 1982
Sentencing: The Bliner Aspect of Justice bz R.G. Nai rn: The Rhodesia Law Journal, October 1971.
PART TWO
THE ADMINISTRATION OF JUVENILE JUSTICE IN GHANA*
* Revised version of a report prepared by Osafo Sampong,
Principal State Attorney, Criminal Law Division, Ministry of Justice Ghana.
The opinions expressed in this report are the author's and do not necessarily reflect the position of the Ghana Ministry of Justice nor of the United Nations Economic Commission for Afri ca.
INTRODUCTION
The administration of juvenile justice in Ghana would be appreicated better within the context of judicial and historical developments. The system does not exist in isolation; rather it forms an integral part of the whole judicial structure. The available evidence suggests that Ghana's traditional system or customary law does not seem to cater for the administration of juvenile justice. It must be emphasised at the outset that
because of Ghana^'s colonial heritage, the bulk of the countryv's laws has some links with the English law, inherited from the
British with whom Ghana established contact in 1874.
STATUTORY AND LEGISLATIVE PROVISIONS
The first comprehensive legislation concerning the treatment of juveniles came into force in 1945. Before then, there were no special provisions in the statute books for the treatment of
juvenile offenders. Perhaps the only relevant provision was contained in the 1936 Ordinance (Child and Reformation). This
law empowered the judges and magistrates, to commit by a speci al mandate, children under sixteen years of age, to a training
school for boys administered by the Salvation Army in
Mapong-Akwapim, if they were found guilty of offences which if committed by adults would have been punishable by imprisonment without the opiton of a fine. There were no statutory provisions
for regulating the conduct and period of training at school.
Under this ordinance, the police were not given any power to handle juveniles who had not committed specific criminal
offences. As a result, they were selective on the type of cases they referred to courts. The first legislation was passed in 1944 to improve the situation. Accordingly, the Welfare Section of the Department of Social Welfare and Community Development was given the responsibility of handling the treatment of juvenile delinquency, but as there were no trained officers in the
Department at the time to operate this programme, the laws did not become operative until 1946.
The forerunners of the present statute relating to the treatment of juvenile offenders were:
(a) the Probation of Offenders Ordinance of 1944,
(b) the Probation Officers and Committees Regulations, 1945 and
(c) the Industrial Schools and Institutions Ordinance of 1945
(a) The Probation of Offenders Ordinance of 1944
Thi s ordinance empowered all courts of competent
jurisdiction (excluding native courts) to make probation orders in criminal cases where it was expedi ent to suspend the sentence, in vi ew of the offender's youthful age, character, antecedents, home surroundings, health, mental condi tions or of the nature of the offence or any extenuating circumstances under which the offences were commi tted.
(b) The Courts (Amendment) Ordinance of 1944
This Ordinance completely revolutionised the judicial treat ment of juvenile offenders, by defining for the first time, the term "juvenile" as a person under sixteen. (Thi s has since been raised to seventeen by the Criminal Procedure Code, (Act 30) 1960). This empowered the Governor to constitute from time to time, special courts which exercise jurisdiction similar to those of the District Magistrate's Court for hearing cases involving juveniles. The Ordinance also made provi si on for the appointment by the Governor, at his pleasure, of a panel of Juvenile Court Magi strates.
The Ordinance further made provision for the procedure in and jurisdiction of cases, including remand of cases to fit
persons or remand homes. Later in 1946, another enactment by way of an amendment qui te as important as the 1944 amendment was
passed to pave the way for the treatment by juvenile courts, of all categories of juveniles. This legislation opened a new era in Ghana on the reponsibility of the community towards minor citizens. It did not only define the status of the child in the community, but went further to define the role played by the state and the legal parents or guardian in the child's welfare and development. For the first time in the history of judicial handling of juveniles in Ghana, non-offenders - orphaned and destitutes, neglected, ill treated, wandering and begging
chiIdren or any other exposed to some form of moral or physical danger - become the subject of official judicial consideration.
(c) The Industrial Schools and Institutions ordinance of 1945
This provided for the establishment of industrial schools where juveniles might be detained and trained. It also provided for borstal institutions where "young persons" (aged 17 - 21) could likewi se be detained and trained. The ordinance further provided inter alia for the establishment of remand homes for temporary custody of juveniles and young persons, after-care by parents or guardians, and the upkeep and training of detained
juveniles and young persons.
In 1960 the Criminal Procedure code was passed. The
enactment repealed all earlier statutes and consolidated all what was contained in the previous ordinances. The age of a juvenile was raised from sixteen to seventeen years.
At present, the juvenile court is one of the special courts whi oh exerci se summary juri sdiction. Under S. 48 (1) of the Courts Act, the Chief Justice may, by legislative instrument, direct the constitution of special courts of summary jurisdiction for any pi ace, district or area specified in that instrument.
These courts, known as juveni1e courts, exercise such
jurisdiction as the Chief Justice may confer upon them with regard to hearing of charges against juveniles or disposal of matters affecting juveniles. However, whatever jurisdiction is conferred by the Chi ef Justice, it must not exceed that of a District Court. Accordingly, the juvenile court cannot try a case involving an offence which a District Court is not empowered to try and the jurisdiction of a juvenile court is limited to the area for which it was constituted.
Section 48 of the Courts Act (Act 372) 1971 empowers the Chief Justice to apply all or any of the provisions of any
enactment relating to the criminal courts or criminal procedure to juvenile courts. A panel of Juvenile Court Magistrates is appointed for each area for which a juvenile court is
constituted. This panel consists of the magistrate for the distict within which the juvenile court is situated or a lawyer appointed by the Chief Justice as chairman, and no less than two other members when it is sitting. It is the duty and
responsibility of this panel to decide the guilt or otherwise of a juvenile who is brought before the juvenile court. If found guilty, it is the responsibility of the court/panel to impose the
appropriate penalty. It has to be emphasised that the procedure followed is not as formal as is the case in ordinary courts.
Where the juvenile pleads guilty, admits the offence or his guilt is established by evidence, it is the duty of the juvenile court to obtain information about his general conduct, home
surroundings, school records, medical history as may enable it to deal with the case in the best interest of the juvenile.
The consequential orders are neither retributive nor
deterrent, but correctional. They are designed to correct rather than penalise the offender. If there is a juvenile court with the requisite jurisdiction in an area, then cases involving juvenile court within that jurisdiction, which are to be tried summarily, must be tried by that court. However, where a charge is made jointly against a juvenile and an adult, the trial must take place before a court of summary jurisdiction other than a juvenile court and that is normally in the District Court. In that case, if the juvenile is found guilty, the case has to be remitted to the juvenile court for sentence.
Comprehensive statutory provisions have been made under the Criminal Procedure Code (Act 30) 1960 to regulate the trial of and in dealing with juvenile offenders. As many as three
chapters of the Code namely Chapters IX, X, and XI have been devoted to this issue. Under these provisions no court of summary jurisdiction other than a juvenile court must hear any charge against or dispose of any matter affecting a person who
appears to it to be a juvenile, if the court is satisfied that the charge or matter is one in respect of which jurisdiction has been conferred on juvenile courts and that a juvenile court has been consti tuted for the place, district or area concerned.
Where that other court becomes satisfied, it must make order transferring the charge or matter to the juvenile court.
If, however, the charge is made jointly against a juvenile and a person who has attained the age of seventeen years, it must be heard by a court of summary jurisdiction other than a juvenile court.*
court.* IV But when such a trial takes place and the juvenile is convicted, the trial 'court cannot deal with him. Instead, it ought to remi t his case to the juvenile court for sentence. And the juvenile court will deal with the convicted juvenile in any manner in which that court could have done if it had been the court which had convicted him.
The court which remits the case to the juvenile court may give such directions as appear to be necessary with respect to the custody of the offender or for his release on bail until he can be brought before the juvenile court. In remitting the
juvenile, the court shall cause to be transmitted to the clerk of
1/ *However, the Public Tribunal Law 1984, PNDCL.78, confers on the Public Tribunal the power to deal with juvenile offenders.
Under the Public Tribunal law 1984, PNDCL.78, the Public
Tribunals operate a system which is slightly different from the practice in the juvenile court. Under Section 17 of this Law, nothing is a crime which is done by a person or or above seven and under 12 years of age but has not attained sufficient
maturity and under- standing to judge the nature and consequence of his conduct in the matter in respect of which he is accused.
The public Tribunal is precluded from imposing a sentence of imprisonment on a person who is under 13 years of age. It is also precluded from imposing a sentence of imprisonment on a person who is a first offender and has attained the age of 12 years but is .under the age of 18 years unless the Tribunal is of the opinion that no other method of dealing with that person is appropriate.
In performing these functions, the Tribuanl is enjoined to
obtain and consider information relating to the ci rcumstances of the offender and it is duty-bound to take into account any
infromation which comes before it and which is relevant to his character or his physical or mental condition.
Where it become necssary for a Public Tribunal to impose a sentence of imprisonment upon a juvenile, it must state the reason why in its opinion, no other method of dealing with the offender is apropriate. The sentence of imprisonment imposed on a young offender by a Public Tribunal shall be served in a
Borstal Institute or a Remand Home.
the juvenile court, a certificate setting out the nature of the offence and stating that the offender had been found guilty of
it, and further, that the case has been remitted for the purpose of being dealt with in accordance with the Criminal Procedure Code. For the purpose of appeal, any decision of the juvenile court by which the juvenile was convicted, goes before the High
Court.
It is noteworthy that under the Code, juveniles may be brought before a court even though they have not committed any offence. There is for example, provision to bring a juvenile who is an orphan or has been neglected or ill-treated by the person having care or custody of him, for the court to make an
appropriate care and protection order. Where, therefore, a
person, whether charged with offence or not, is brought before
any court for any purpose other than giving evidence, and itappears to the court that he is a juvenile, the court is obliged
to take such evidence as may be forthcoming at the hearing of the case. If it appears to the court that the person has attained the age of seventeen years, he shall be deemed not to be a juvenile.If he is, on the other hand, found to be under seventeen years, then the provisions of the Code on juvenile will be applied to him.
An order or judgement of a court, however, shall not be
invalidated by subsequent proof that the age of the person has
not been correctly stated to the court. The age presumed ordeclared by the court before which he is brought is, for the
purposes of the Part IX of the Code,* deemed to be the true age of that person. 2/A juvenile remanded in custody for any cause by a juvenile court, should, whenever possible, be committed by the court to the care of his parents or guardian or of any fit person, whether a relative or not, who is willing to undertake the care of him.
As an alternative, the court may commit him to the remand home.