whether or not the period ends on a Saturday, Sunday or public holiday.15 Section 84 of the Children’s Act [Chapter 5: 06] governs pre-trial detention of children as follows: “84 Detention of Juvenile (1) A child or young person who is charged with an offence shall not before conviction be detained in a prison or police cell or lock-up unless his detention is necessary and no suitable remand home is conveniently available for his detention. (2) In deciding the suitability of any place for the detention of a person mentioned in subsection (1), regard may be had to the nature of the offence with which he is charged and to his age, sex, race and character.” The Constitution further provides that “no person may be subjected to physical or psychological torture or to cruel, inhuman or degrading treatment or punishment.” 16 This right is absolute and non-derogable. It provides that no law may limit and no person may violate the right not to be tortured or subjected to cruel, inhuman or degrading treatment or punishment. The Constitution is supported by the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), Criminal Procedure and Evidence Act [Chapter 9:07] (CPE Act), Children's Act [Chapter 5:06] and the Prisons Act [Chapter 7:11]. These provide for substantive and procedural protection to children who come in contact with the law. The Criminal Code contains the provisions on criminal capacity. According to Section 6 of the Criminal Code, “a child below the age of seven years shall be deemed to lack the criminal capacity and shall not be tried for or convicted of any crime which he or she is alleged to have committed before attaining that age.” Children between the age of 7 years and 14 years are presumed to lack the capacity to form the intention to commit an offence. Alternatively, where negligence is an element of the crime concerned, they are presumed to lack the capacity to behave in the way that a reasonable adult would behave in the circumstances.17 This presumption may be rebutted depending on the circumstances of each case. The onus is on the State to establish beyond reasonable doubt that the accused child was mature and did understand that the act constituting the offence was wrongful. Section 231 of the Criminal Code however provides that “no proceedings in respect of any crime shall be instituted or continued against any person who is under the age of fourteen years, other than proceedings for the purpose of remand, without the authority of the [Prosecutor]-General.” Children above the age of 14 years are presumed to have the capacity to form the necessary intention to commit any crime or, where negligence is an element of the crime concerned, to behave in the way that a reasonable person would have behaved in the circumstances of the crime.18 These children can therefore be tried for offences. There is therefore no presumption of criminal incapacity for children over the age of fourteen years. As such they can be arrested and tried subject to safeguards of them still being children below the age of 18 years. The CPE Act compels a police officer, unless otherwise directed by a Magistrate, upon arresting a person under the age of 18 years or warning such a person to appear before the court, to warn the parent or guardian of such a child to also appear in court. This does not apply to a person who is under the age of 18 years but emancipated in terms of the law.19 A child’s parents or guardians must be notified of the arrest of the child so as to ensure their involvement early in the process and to provide general psychological and emotional assistance to the child during the proceedings.20 15. Section 50 (2) of the Constitution. 16. Section 53 of the Constitution. 17. Section 7 of the Criminal Code. 18. Section 8 of the Criminal Code. 19. Section 142(5) of the Criminal Procedure and Evidence Act [Chapter 9:07]. 20. UN Committee of the Rights of the Child, General Comment No. 10 (2007) Children’s Rights in Juvenile Justice. 11 ‘Hear them Cry ’ – An Analysis of State Violence Against Children During the January 2019 Protests