Abstract
The justice system for minors who come into conflict with the criminal law has seen tremendous change in normative terms over the last decade and a half. The redesigning of the system of protection and justice for minors in Ghana has been occasioned by the adoption of a new national constitution, and the International Convention on the Rights of the Child as domesticated under the Children’s Act, 1998 (Act 560) and other national legislations enacted to support their implementation. These normative changes have resulted in a shift in philosophy regarding the treatment of children under the laws of Ghana. This shift has led to the removal of proceedings affecting children from the Criminal Procedure Code and has resulted in the setup of separate legal regimes for children who come to the attention of the law due to personal circumstances and those who come into conflict with the law as lawbreakers. Unfortunately, the changes have not manifested themselves in practice, thereby creating a gap between the law and practice, which must receive attention if the affected children are to benefit from the improvements occasioned by constitutional and statutory changes in the laws on juvenile justice.
Unfortunately the normative and other changes have not manifested in changed practices, thereby creating a gap between the theory and practice which must receive attention if the affected children are to benefit from the improvements occasioned by constitutional and statutory changes in the law on juvenile justice.
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Notes
- 1.
In 1993–2003, 10,488 juveniles, i.e., children up to the age of 18 years, were processed through the criminal justice system.
- 2.
ICRC article 40 provides that every child accused of having infringed the penal law should enjoy the usual guarantees of rights for persons accused of crime.
- 3.
H.J.A.N. Mensa-Bonsu “Human Rights and The Juvenile Justice System—The Ghanaian Experience” 7 ASICL Proc. (Proceedings of the Annual Conference of African Society of International and Comparative Law) 1995, p347
- 4.
Government of Ghana/UNICEF Study, p26. Although there may have been other factors, such as police collusion with juveniles to inflate their ages, the fact remains that an unduly high number of juveniles went to adult prisons when the juvenile courts disappeared as an entity. They have since been restored.
- 5.
This change in name was occasioned by the recommendations of a Statute Law Revision Project which was established to rationalize the law on the statute books of Ghana following the adoption of a new national constitution.
- 6.
The history seems to be reflective of the models in all the commonwealth countries. See H.J.A.N. Mensa-Bonsu, Ghana’s Juvenile Justice System … Making Progress with Painful Steps and Slow, Ghana Academy of Arts and Sciences, Accra, 2005; Allison Morris and Loraine Gelsthorpe, “Towards Good Practice in Juvenile Justice Policy in the Commonwealth 32 Commwealth. Law Bulletin 27 2006; Hakeem Ijaiya, “Juvenile Justice Administration In Nigeria” 2 NUJS L. Rev. 573 2009; HEINONLINE, accessed on 28 August 2015.
- 7.
The first juvenile court was reputed to have been established in Cook County, Chicago, Illinois, in 1899. See Caldwell Robert G, “The Juvenile Court: Its Development and Some Major Problems.” in Juvenile Delinquency, Rose Giallombardo (ed.) p393, John Wiley and Sons, U.S.A., 1976; Thomas F. Geraghty “The Children & Family Justice Center’s 20th Anniversary: Splendid Accomplishments and a Wonderful Future” 6 Nw. J. L. & Soc. Pol’y (2011) 402 at p404.
- 8.
Nicholas Bala and Rebecca Jaremko Bromwich, “Introduction: An International Perspective on Youth Justice” in Juvenile Justice Systems An International Comparison of Problems and Solutions Nicholas M.C. Bala, Joseph P. Hornick, Howard N Snyder (eds.) Thompson Educational Publishing Inc, Toronto, p6
- 9.
Vedder CB: “Juvenile Offenders” Charles Thomas, Springfield Illinois, 1963, p146, supra
- 10.
Caldwell Robert, op. cit. supra, pp399–400
- 11.
By the middle of 1940s, specific provision had been made for them in the Courts Ordinance of the Gold Coast Colony (now Ghana). See the Courts Ordinance 1935 as amended by Ordinance No.23 of 1944 and No.26 of 1946. Sections 61–73 of Cap. 4.
- 12.
Robert Kwame Ame, “The Rights of Children in Conflict with the Law in Ghana,” (2011) 19 International Journal of Children’s Rights 27–293 HEINONLINE, accessed on 28 August 2015
- 13.
This was by the enactment of the Criminal Code (Amendment) Act 1998, Act 554.
- 14.
Criminal Offences Act, 1960 (Act 29), Section 26
- 15.
H.J.A.N. Mensa-Bonsu, “The Young Offender and the Criminal Justice System,” (1990–92) vol. XVIII University of Ghana Law Journal, 49–71 at 50–51
- 16.
Criminal Procedure Code, 1960, Act 30
- 17.
1992 Constitution, article 19
- 18.
Children’s Act, 1998 (Act 560)
- 19.
Child Rights Regulations 2002, Legislative Instrument 1705
- 20.
Esmeranda Manful and Patrick McCrystal, “Ghana’s Children’s Act 560: A Rethink of its Implementation?” 19 International Journal of. Children’s Rights, 151 (2011)
- 21.
Except in special circumstances as under section 17
- 22.
Section 2
- 23.
Act 30, Section 314 now repealed by Act 653
- 24.
Act 560, Section 1 (1)
- 25.
Christopher Slobogin & Mark R Fondacaro, “Juvenile Justice: The Fourth Option” 95 Iowa Law Review 1, (2009–2010) pp17–21; HEINONLINE, accessed on 28 August 2015
- 26.
Max Assimeng, The Social Structure of Ghana, A Study in Change and Persistence, Ghana Publishing Corporation, Tema, 1999; Chapter III on kinship in Ghana
- 27.
Stephen Adongo, Alois Kyaakpier,Gianna Da Re, Brother Jos Vandinther, Vida Asomaning Amoako, Irene Engmann, Census on Street Children in the Greater Accra Region, Ghana, Dept of Social Welfare, Ricerca e Cooperazione, Catholic Action for Street Children & Street Girls’ Aid, Accra, 2011; 61,492 street children were identified and interviewed. Under causes of Streetism migration and parental divorce are listed as prominent causes. See, p33.
- 28.
Ellen B.D. Aryeetey, Stephen Afranie, Paul Andoh, Daniel, Thomas Antwi-Boasiakoh, Edward Amponsah- Nketia & Mavis Dako-Gyeke, Telling the Untold Story. A Study of the Situation of Orphans and Vulnerable Children in Ghana, UNICEF, Accra, 2011, pp18–19
- 29.
Ibid., at pp18–19. These figures appeared to have been supported by another study that put the number of children living with both parents at 60 %; 21 % with the mother only% 4 with the father only and 15 % living with neither.
- 30.
Census on Street Children in the Greater Accra Region, Ghana, supra, p33
- 31.
Telling the Untold Story, supra, p35
- 32.
Social Protection and Children. Opportunities and Challenges in Ghana, UNICEF/Ministry of Employment and Social Welfare, July 2009
- 33.
Ibid., p35.
- 34.
Adobea Yaa Owusu, John Kwasi Anarfi & Eric Yeboah Tengkorang, “The Socio-Cultural Contexts of Sexual Socialization and Sexual Behavior of Young people Within the Family Setting in Ghana,” Ghana Social Science Journal, (2013) vol 10 Numbers 1&2, pp156–182 at p170
- 35.
“The Juvenile Sex Offender and the Juvenile Justice System” 35 Am. Crim. L. Rev. 279 1997–1998, at p332
- 36.
Section 11 (1), (2), and (3)
- 37.
Section 13 (3)
- 38.
See H.J.A.N. Mensa-Bonsu, “The Young Offender and the Criminal Justice System” (1990) vol. XVIII University of Ghana Law Journal, pp49–71
- 39.
Section 14 (1)
- 40.
An application for bail may be made to a district court in the absence of a juvenile court. See Section 17 (2).
- 41.
Where a court is unsure as to age, it may seek medical assistance to do so under section 19; however, this may happen only if the child looks too young to be eighteen years and above. Therefore where the suspicions of the court are not aroused in any way, there would be no challenge.
- 42.
[1971] G.L.R.34
- 43.
Section 24
- 44.
D.E.J. MacNamara, in Juvenile Offenders (supra) foreword, page X; Francis Allan, “The Juvenile Court and the limits of Juvenile Justice” in Juvenile Delinquency op. cit. (supra), p414. This was a quotation adapted from Judge Mack’s article: “The Juvenile Court” 23 Harvard Law Review (1909).
- 45.
Act 653, Section 24
- 46.
[1977] GLR 373, per Osei-Hwere J (as he then was)
- 47.
Act 653, Section 17(2)
- 48.
Act 653, Section 17(3)
- 49.
Act 653, Section 17(4)
- 50.
Act 653, Section 18
- 51.
Section 37(1)
- 52.
Vedder, supra, p31
- 53.
Section 37(3)
- 54.
A Report on the State of Juvenile Justice Administration in Ghana 1993–2003. A Government of Ghana/UNICEF Study, 2005, established that 10,488 juveniles were kept in police cells within the decade 1993–2003.
- 55.
Article 15 (4)
- 56.
The Commission on Human Rights and Administrative Justice (CHRAJ) was established under the 1992 Constitution of Ghana to act as ombudsman and also to exercise jurisdiction in matters involving the violation of human rights of the individual. Since its establishment, the CHRAJ has been conducting annual checks on police cells with a view to improving the lot of suspects in police custody. Despite this effort, most police cells are still in a deplorable state, and their conditions are almost primitive.
- 57.
Section 15 (1)
- 58.
Section 15 (5)
- 59.
Section 15 (3)
- 60.
Section 15 (6)
- 61.
Section 43 (1)
- 62.
Section 49
- 63.
Section 46 (1)
- 64.
Section 314 Act 30 repealed by Act 653
- 65.
Sections 39 and 41
- 66.
This is the inscription on a monument erected at the main entrance to the Senior Correctional Centre.
- 67.
Sometime in September 2015, a case was reported in the newspapers of an inmate who followed a prison officer who was going off duty and with whom he had had a disagreement out of the center and stabbed him.
- 68.
Escapes are common since the residential facilities of the officers have literally encroached on the center’s premises, making it easy for an inmate to escape without detection. In 2004, as many as 27 boys escaped from custody.
- 69.
Section 31 (1) and (2)
- 70.
Section 31 (5)
- 71.
Section 31 (3) and (4)
- 72.
Children in Ghana, Ministry of Women and Children’s Affairs/UNICEF, 2009, p136
- 73.
Chute, L.C., “Objectives of the Juvenile Courts” in Juvenile Offenders, Charles Thomas, Springfield, Illinois, 1963, p191
- 74.
Section 38 (5)
- 75.
Act 560, Section 29
- 76.
Act 560, Section 28. The minor offenses are defined under section 62 of LI 1705 as “petty theft, petty assault or on a threatening offense.”
- 77.
Act 560, Section 32
- 78.
LI 1705 supra, Section 9 (2). This legislative instrument is intended to actualize the Children’s Act, 1998, Act 560.
- 79.
Section 12 (1)
- 80.
Section 26 (1)
- 81.
Section 28 (2)
- 82.
Section 30 (1)
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I am indebted to my research assistant Cletus Alengah for the many hours of research he has invested in this project.
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Mensa-Bonsu, H.J.A.N. (2017). Ghana. In: Decker, S., Marteache, N. (eds) International Handbook of Juvenile Justice. Springer, Cham. https://doi.org/10.1007/978-3-319-45090-2_1
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