HIGH COURT OF LESOTHO
Case No. 55/2002 C. R. NO. 17/2002
Order No. 4/2002 In Mafeteng District
learned Chief Magistrate has forwarded the record of proceedings in
this matter and requested that it be placed before a judge for
review. The learned magistrate's concern had nothing to do with the
"accused" having not been dealt with as "a child"
or the Court having not sat as a children's court. (See section 2 and
5 of Children Protection Act No.6 of 1980) It was something else. It
was that: "The JTC authorities have expressed their problems
about handling a detainee of that age." This was confirmed by
Mr. Moteoa and Mrs Khati of the Prisons Service.
detention of young offenders is receiving a curious attention of the
Department of Prisons in the Ministry of Justice. This is so despite
overwhelming constraints and inadequacies. See the following Lesotho
Prison Service monographs:
Framework Towards Improved Corrections in Lesotho. A Human Rights
based Approach on the care, Safety and Security, Humane Treatment,
Training, Reformation, Rehabilitation and Reintegration of Offenders
into the Society, as Law-Abiding and Self-Supporting Citizens, on
page 9 under "J-Juvenile Justice Basic Guiding Principles.
Reform - September, 2001, on page 2 under "5. Alternative ways
of Dealing with juveniles.
Human Rights in Prisons or Protection of Persons Subjected to
Detention or Imprisonment. (International Human Rights Documents
Protecting Fundamental Human Rights of Prisoners) at page 11 under
"16 Children's Rights."
Dr. I Kimane says in Community Based Care for the Children in Need
Special Protection and Care (An issue paper commissioned by Child
Legislation Reform Project, Lesotho Law Reform Commission, May 2002
at page 17):
"The TTC is to all intents and purposes a prison, yet in reality
even children who are not in conflict with the law have also been
admitted to it on a regular basis." (My emphasis)
involves a twelve (12) years old boy who has been sentenced to be
detained at the Juvenile Training Centre (JTC) "for a period not
exceeding 3 years." The boy who I called "Master Teboho
Mohapi" was brought before me on two occasions. He looks shorter
and smaller for a child of 12 years old. One would suspect that he
could not be beyond 10 years old judging from his size and
26 of the Children's Protection Act specifically prohibits punishment
by imprisonment, Lisebo Chaka-Makhooane in Administration of Justice
('An issue paper submitted to the Law Reform Commission - Child
Legislation Reform Project - February 2002) says at page 11:
"In practice many Courts sentence children for a term of
imprisonment (3 years) under the guise of JTC. This facility is
meant to qualify on an approved school where juveniles should undergo
a period of training and rehabilitation. Pursuant to section 29 of
CPA, JTC is supposed to be supervised by Chief Probation Officer
while section 30 mandates that every approved school shall be
classified according to the discipline and training required by
children to be detained herein. The situation envisaged by section 29
and 30 respectively does not exist."
generally Children in Institutional Care (A paper submitted to the
Law Reform Commission) by 'Matora Ntimo-Makara.
Teboho Mohapi was convicted on two counts of housebreaking with
intent to steal and theft for which he was sentenced as already
learned Chief Magistrate was bold to say the arrangement for review
was done at his instigation after consulting the trial magistrate.
Master Teboho Mohapi's case had also affected the concern of the
JTC's authorities and the Probation Officer Miss Seithati Motsamai
although for different reasons. I noted that Probation Officers have
a social workers training and background.
attention was brought to the JTC's officials and Miss Motsamai that
matter was allegedly reviewable merely because the JTC's officials
were not accustomed to and equipped to handle a child of that age,
Miss Motsamai, on her part, replied as follows:
Mafeteng police had been troubled by the recurrence of cases reported
to them about Master Teboho Mohapi's criminal conduct they had
approached the Public Prosecutor and the magistrate through the
Probation Office to say that the background of Master Teboho Mohapi
had to be investigated. The learned magistrate proceeded with the
case despite those overtures. I agreed therefore that a review had to
be instituted against the above background. The story turned out to
be more sordid.
12th June 2002 there were present before me in my Chambers Mrs
Motsamai (Probation Officer), Mr. Moteoa (Prisons Department), Mrs M
Khati (Prison Service), Master Teboho Mohapi and Miss L Kali (Deputy
Registrar). It was noted that the learned trial magistrate was not
provided with relevant and sufficient information in the absence of a
report by a probation office. Secondly Mafeteng police had shown
concern about "a small boy of about 12 years of age who was
involved in a number of cases of theft on different occasions.
before the 12th June 2002 Miss Motsamai confirmed that she had had
around the circumstances of the family of Master Teboho Mohapi but
she opined that more had to be done in that regard. Unfortunately
when he approached the presiding magistrate the said sentence (for
detention by the JTC) had already been passed.
other concerns the Prison Officers asked whether it was possible to
take or place Master Teboho Mohapi in other institution like SOS
other than the JTC due to the delicateness of the boy's age. As they
reiterated, according to their statistics Master Moahpi was the
youngest of all inmates of the JTC ever. They never had a boy of this
age before." As the officer pointed out there were no
reformatory schools or even approved schools. (See section 26 and 27
of Children Protection Act No.6 1980)
clear that even at the stage when the matter had already been sent
for review as aforesaid the Probation Officer still had to do more
investigations into the family background of Master Teboho Mohapi.
One indication was that Master Teboho Mohapi had at one time lived
with one Mr Mosoang who was in Mafeteng at that time. One further
indication was that he lived with his mother (his father having died)
and a number of siblings. An investigation along this line would
determine whether it was best if Master Teboho Mohapi was sent back
to the care of his parents or whether he ought to
removed from parental care. This Court therefore resolved that the
matter be adjourned to the 28 June 2002 at 9.30 am pending the report
by the Probation Officer.
28th June 2002 all were present as before (as on 12th June 2002). A
most elaborate and enlightening report was provided by the Probation
Officer (Miss Motsamai). The Probation Officer had sourced
information from the police, parental grandmother of Master Mohapi
Probation Officer's report dealt extensively with Master Teboho
Mohapi's family background, educational background, personality,
offences. It also dealt with finding based on information from most
of the sources, the police, and Master Teboho Mohapi's version. It
ended up with remarks and recommendations. At the section on
"Remarks", the probation office had this to say:
"It was also observed that the boy's behaviour is a result of
lack of proper parental guidance. His mother's self esteem needs to
be boosted with the assistance of the Probation Unit. She needs to be
empowered through counselling on parental skills to enable her to be
open-minded about child raising and life in general."
Probation Officer was candid enough to disclose that more cases of
Master Teboho Mohapi's criminal conduct were being reported. This
with reports that some complainants were in a threatening mood. This
added to a situation of limited options which would have been
available more especially this one of parental care. I was however
more concerned with the Probation Officer's recommendations. She
"Rule 18.2 of the UN standard minimum Rules For The
Administration of Juvenile Justice (Bergin Rules) stipulate that: No
juvenile shall be removed from parental supervision whether partly or
entirely unless circumstances of her case makes this necessary: Rule
19 highlights that institutionalization is to be the last resort for
a juvenile and it needs to be used for the shortest possible time.
Teboho despite his age has reached a stage where close supervision is
required. He needs basic intensive counselling and guidance, which
lacks in his family. If he continues to live within the community, he
will fail to get access to the above-mentioned intervention and his
problems with the society are likely to be intensified. He will
ultimately, after a short period go back home a changed person faced
with anew and acceptable home environment"
this kind of a studied approach by the Probation Officer a serious
made as to why learned magistrates in this country will not take
their time to refer deserving cases to probation officers before
dealing with problems of children. However as the learned author of
Community Based Care For The Children in Need of Special Protection
pointedly says at page 17:
"Whenever the care and protection of children are concerned one
expects to have the social work profession playing a central role.
However, a closer examination of the CPA and other relevant pieces of
legislation (e.g. the Adoption Proclamation - 1950, Girls and Women's
Protection Proclamation 1949) give no place to the profession. This
is viewed as serious gap in the legislation because it gives no
mandate to social workers to intervene with a purpose of promoting
the rights of children."
Legal Protection of Children's Rights in Lesotho (Constraints and
Inadequacies) by Hon. Mr. Justice M L Lehohla OMMON, at page 22. This
case of Master Teboho Mohapi cried out loud for such an approach.
This was even the feeling of the police officers who contacted the
Probation Officer, as said before, before the case was processed.
There is therefore urgent need for change of attitude.
considered all the circumstances of the case I was persuaded that
there was however no need to change Master Mohapi's detention as
ordered. And I made the following order on the 28th June 2002:
"Circumstances indicated that Master Teboho Mohapi who is 12
years of age, presently in custody of the Juvenile Training Centre in
Maseru, ought to be removed from parental care "partly"...........".
partly in the sense that if it appears that the rehabilitation
procedures which Master Teboho Mohapi will be subjected to has
worked. Master Teboho Mohapi will be released. The further
observation which is also a condition, will be to consider whether or
not Master Teboho Mohapi's mother has reacted positively towards
counselling to be provided by the Probation Unit on parental skills.
If it is in the affirmative then Master Teboho Mohapi will be
released from detention. The two (2) sentences made by the magistrate
are varied to read "Master Teboho Mohapi to be detained at the
above kind of order I thought Master Teboho Mohapi's situation stood
a chance of being corrected for the better.
reading the above materials which were submitted to the Law Reform
Commission I noted a special and pervading concern which was also
expressed by most people who have an intimate knowledge of the
problems of detention of delinquent children. It was this. That it
might mean or it means that most of the inmates of the JTC are
illegally detained in the institution despite the good intentions of
all concerned. If this is so it can also mean that that it is an
extreme kind of embarrassment to the government and the concerned
department. Consequently this situation needs to be investigated as
soon as possible.
O/C Police Mafeteng
O/C Prisons Mafeteng
O/C Central Prison
Director of Prisons
Director of Public Prosecutions
C.I.D. Police Headquarters
All Public Prosecutors
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