interpreter if he does not understand the
language spoken. Children are entitled to
freedom from compulsory self-incrimination; 6
should not be subjected to torture, cruel,
inhuman and degrading treatment meant to
force an admission or confession, and are
entitled to legal representation and other
appropriate assistance.7 There should be
adequate time and facilities for the preparation
of the defence.
As is the case with Article 3 of the UNCRC and
Article 4 of the ACRWC, Section 81(2) of the
Constitution provides that “a child’s best
interests are paramount in every matter
concerning the child.”
In the context of juvenile justice, the principle
means that the “traditional objectives of criminal
justice (repression/retribution) must give way to
rehabilitation and restorative justice objectives in
dealing with child offenders.” 8 This takes into
account the physical, emotional and
psychological vulnerability of children. The
Constitution of Zimbabwe further provides for
the right of the child to be heard.9 The UN
Committee of the Rights of the Child, has
explained that in the context of judicial
proceedings, implementation of this right
involves five stages which are preparation, the
hearing, assessment of the child’s capacity,
information about the weight given to the child’s
views and availability of complaints or appeal
procedures and remedies.10 This right requires
that proceedings should be conducive to the
best interests of the child and conducted in an
atmosphere of understanding which allows the
child to participate therein and to express
himself or herself freely.11It is crucial to consider
the child’s age, maturity and other special needs
in dealing with effective child participation
hence courtroom procedures and practices may
have to be modified in dealing with children so
that the environment is conducive for the child’s
participation.
The Constitution of Zimbabwe has elaborated
on the right to be informed promptly of the
charge to include the right to be given sufficient
details to enable a person to answer to the
charge. 12 Among the national objectives
contained in the Constitution of Zimbabwe is
legal aid provision. The State is enjoined to take
all practical measures, within the available
resources, to provide legal representation in
both civil and criminal cases to people who need
it and cannot afford legal practitioners of their
choice.13 The Constitution goes further to
enshrine as a fundamental human right of
everyone to choose a legal practitioner who can
represent them at their own cost and to be
represented by a legal practitioner assigned by
the State and at its expense where substantial
i n j u s t i c e w o u l d o t h e r w i s e r e s u l t .14 T h e
Government of Zimbabwe enacted the Legal Aid
Act [Chapter 7:16] whose objectives are to
ensure that all deserving persons are able to
obtain legal assistance without having to pay the
legal fees through an entity known as the Legal
Aid Directorate (LAD). It is possible for the court
to refer a child in conflict with the law to the
Legal Aid Directorate so that he or she makes an
application for legal aid in terms of the Legal Aid
Act. However, Zimbabwean law does not
provide for a specific right to legal representation
for children in conflict with the law, that is,
children do not have a right to free legal
representation at all times at the expense of the
State.
The Constitution provides that any person
arrested or detained who is not released must be
brought before a court as soon as possible and in
any event not later than forty-eight (48) hours
after the arrest took place or the detention begun
6. Article 40 (2)(b)(iv) of the UNCRC.
7. Article 40 (2)(b)(ii) of the UNCRC; Article 17 (2)(ii) of the ACRWC; section 70(1)(d) of the Constitution.
8. United nations Office on Drugs and Crime Justice in Matters Involving Children in Conflict with the Law: Model Law on Juvenile
Justice and Related Commentary United Nations New York 2013 page 3.
9. Section 81 (1)(a) of the Constitution.
10. Committee of the Rights of the Child, General Comment No. 12 (2009), The Right to be Heard, U.N. Doc. CRC/C/GC/12.
11. United Nations Standard Minimum Rules for Administration of Juvenile Justice (the Beijing Rules) Rule 14.2.
12. Section 70(1)(b) of the Constitution.
13. Section 31 of the Constitution.
14. Section 70(1)(d) and (e) of the Constitution.
10 ‘Hear them Cry ’ – An Analysis of State Violence Against Children During the January 2019 Protests
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