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Wednesday, 9 October 2013

Legislative Folly in Zambia (Part 2) - Criminal Children

I noted yesterday that many laws in Zambia are foolish. Another good example of this exercise in folly is the the criminalisation of children in law. Zambia currently has over 2% of children in prison (over 340 persons). The distribution of these children is “normal” with at least 20% below the age of 14 years. These numbers are facilitated by a law that allows young children to be sent to prison.

Under Section 14.1 of the Penal Code, Part I, Chapter 87 of the Laws of Zambia a child above 8 years old is criminally responsible for his/her actions. This is partially qualified by the fact that a person under the age of 12 years is not criminally responsible for an act, unless it is proved that at the time of committing the act or making the omission s/he had capacity to know that he ought not to do the act or make the omission.

There is an urgent need to increase the minimal age of criminal responsibility. There are five reasons why I believe must be done urgently. First, it makes international sense. Our minimum age of criminal responsibility is far too low compared to many countries. A quick glance at the international evidence shows that Zambia must look to catch up with Spain, Japan, Belgium, Luxembourg and other countries that have set their age of criminal responsibility at 16 and above. My view is that we need to move it to 18 years.

Secondly, it is common sense. In Zambia we have real difficulty establishing the real age of the child accused of or having infringed the penal law, since the age claimed by children does not always correspond to the reality or because they sometimes are not aware of it. The difficulty in establishing ages of children coming into conflict with the law is a result of many children whose birth has not been registered. As a result we are sending far too many children to prison.

Thirdly, it makes justice sense. A higher criminal age of responsibility would reduce criminal justice costs. Juvenile cases in general are more expensive than adult cases due to the need for expert evidence. Given Zambia’s poor state reducing the number of cases associated with juvenile would lead to substantial cost savings.

Indeed, rehabilitation or reformation are more critical at that young age because the youths have much to offer. The revision of the age of responsibility may fit with the goal of ensuring sentencing policies are designed with greater emphasis on ensuring the cost of future rehabilitation is minimal. Early criminalisation may be seen as contrary to that objective as some evidence suggests early contact with the justice system can make it difficult to break out of the system.

Fourthly, it is makes economic sense. The goal of criminal justice policy in economics is to internalise the costs of crime. A key consideration in this approach is the concept of “rationality”. This is usually assumed to be the case for adult criminals but for children debate remains on whether that is the case. Where uncertainty remains on the “rationality” of agents interventions would not have a desired effect i.e. we would be punishing young people without internalising the external cost of crime.

However, even where rationality may be argued to be present, severe sentences may be suboptimal (or “ineffective”) where some limitations exists e.g. incompleteness of detection ; low acquisitive costs (the ease of doing the crime); and distorted incentives across different crime types. Severe sentences may not deter crimes but rather it may simply increase the social cost. Expert advice in this area increasingly suggests that certain ages better accord with the concept of criminal responsibility.

In other words it extremely uncertain whether someone below 10 years old understands what the minimum age of criminal responsibility is to actually dissuade them from committing a crime. In Zambia’s case, there has been no extensive studies to determine appropriate psychological states of children in order to inform policy design. It should therefore be the case that Zambia should side with caution and revise this minimum age upwards. Not only is that more humane, but it fits in with the idea of greater “rational” confidence.

Finally, it makes policy sense. Increasing the age of criminal responsibility would help solve the other problem – lack of proper child-friendly courts. Currently, there are no judicial rules on the procedures and practices that regulate the administration of justice in child-friendly courts – so the sitting magistrate uses his or her discretion in disposing of such cases. One study showed that the lack of specialisation in this field by judicial officers, and the transfer of trained officers to other departments within the judiciary, hampers the operations of child-friendly courts. Due to these inadequacies, it takes a long time to finalise cases. As a result justice is being denied to our children.

At the end of the day Zambians have a choice. We can continue to tolerate the madness of these laws or we can begin to push for change. The ball is in your court!

Chola Mukanga | Economist
Copyright © Zambian Economist 2013

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