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CRI/T/59/2002
IN THE HIGH COURT OF LESOTHO
In the matter between:
REX Dominis Litis
And
THABANG MOEKO Accused
For the Crown : Mr. T. Mokuku
For the Accused : Mr. B. Thabane
JUDGMENT
Delivered by the Honourable Mr. Justice T. Monapathi On the 24th day of February, 2004
I will show, in the end, why this inquiry should not even have gone as deep and extensive as it did, in view of the powers of the Director of Prisons under the Prisons Proclamation No. 30 of 1957. (Prisons Proclamation)
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The twisted but not necessarily complex question was the following: Since the Accused had been tried and sentenced as an adult was it proper that he had to be lodged in the Juvenile Training Centre by order of the Commander of the Central Prison in Maseru? See also section 5 and section 26 of The Children's Protection Act, 1980 about the situation in the Subordinate Court if an accused is tried as a child and the vexed question of "an approved school" as provided in section 27 of the ACT.
The question was not that the Court had wrongly sentenced the Accused on the basis that he was an adult while he was in fact a youth as Counsel argued. Having corrected this misunderstanding it is only fair to comment on all the issues raised in Court.
Thabang Moeko (Accused) who is Accused in this matter, had initially been charged with murder of Thabiso Olifant who died on the 25th April, 2001. Accused pleaded not guilty. At the close of the defence case Accused changed his plea to that of Capable Homicide. This was accepted by the Crown and the Court.
Accused was on the 21st May, 2003 sentenced to three years term of imprisonment without option of a fine. Accused had been recorded as being sixteen years of age on his first remand which was in April, 2001. He was therefore not less than eighteen years of age at the time of commencement of his trial as Mr. Mokuku confirmed that this was even made part of the record of proceedings. Moreover it had not been disputed.
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On Accused's committal he was then sent to the Central Prison in Maseru whereupon prison officials rejected the Accused because he was perceived to be a juvenile that is, he was below eighteen years of age. They sent him to a Juvenile Training Centre (the Centre) in Maseru. The Centre is defined as a prison and reformatory . See sections 1(h) and (j) of the Prisons Proclamation. There Accused was lodged.
This matter was referred to me by the Juvenile Training Centre officials who are also officers of the Prisons Department of Ministry of Justice. It was being suggested that he was apparently under eighteen years of age. If so the Director of Prisons would still be entitled to lodge the Accused in the Juvenile Training Centre in terms of Prison Rule 116 (see Government Notice No. 27/1957) as a prison or part of a prison set aside for "the detention of young prisoners under the age of eighteen years, if he thinks it is to the advantage of the prisoner.
Although no official communication was recorded but there was no dispute that the Centre's officials wanted this Court to make a ruling whether the Accused could rightly be lodged at the Centre. This is also on account of the fact that lodgers at the Centre are put in for detention for an unspecified five period and should be below the age of twenty one years. See section 8(1) of the Prisons Proclamation.
An approach was therefore needed to inquire into the matter. In this regard Counsel were unfortunately quite unhelpful in addressing the issue whether the Court could make this kind of investigation when the proceedings had infact been completed. Equally unhelpful was the Accused's father and mother about actual date of birth of the Accused. In
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the end the Priest in charge of local Roman Catholic Mission of St. Magdalena was called in the person of the Reverend Father Israel Ralethoko.
Father Ralethoko testified on oath. He was supported by a baptismal register which reflected as follows amongst other particulars under item no. 6261. Vitalis Thabang Moeko was born on the 27th October, 1982 at Ha Nkhahle. He was baptised by Father Houle Rolland OMI on the 8th March, 1983.
I was satisfied that Father Ralethoko was the right person to reliably testify in respect of the affairs of mission church. His duties included solemnization of marriages, baptismal or baptising of children and the keeping of all official records of that church. I could therefore safely rely on his testimony that the baptismal register proved the birth of the Accused as the 27th of October, 1982.
This means that on the day of the judgment of this Court, before this Court, the Accused was twenty years and six months of age while he had been eighteen years and five months on the date of his first remand.
The Crown therefore contended that Accused was fit to be admitted, as being above the age eighteen years in the Central Prison Maseru or any adult prison in the country. Furthermore that the Accused was correctly found as being an adult and not a child. I agreed with respect.
Section 340(a) of the Criminal Procedure and Evidence Act 1981 (the CP&E) reads as follows:
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" If in any criminal proceedings the age of any person is a relevant fact of which no or insufficient evidence is available the court may estimate the age of that person by his appearance or from any information which is available, and the age so estimated shall be deemed to be the correct age of that person unless -
It is subsequently proved that the estimated age is incorrect; and
............................................." (My emphasis)
I was unpersuaded by the Defence Counsel that I could rely on section 340(a) and "to consider in reality that the Accused who looks young and young at hear coupled with his high level of illiteracy things like and for all in terms and purposes is a young adult". And in addition to "consider the amount of damage that the prison conditions will cause to the Accused young man and if he should be sent to prison." I could not sympathize with the above moral considerations more so because the real investigation had been whether the Accused was over the age of eighteen or not, for the ultimate purpose of whether the prison officials would lodge him in an appropriate institution.
I thought Mr. Thabane's submission that "in accordance with section 340 of the CP&E the Court estimated Accused's age at or near or around sixteen years of age" was not correct. This cannot be so on the facts. As I have said the age of the Accused had all along been estimated at eighteen years of age from the date of his first remand. It has accordingly not been "subsequently proved" that the estimated age of the Accused is incorrect. See section 340(a) of the CP&E.
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The question whether this Court would be empowered to investigate the age of the Accused after sentence has to be answered in the negative despite the finding that I have already made. It is based on the ground that since there were strictly speaking no "criminal
proceedings pending before this Court the age of the Accused could not be "a relevant factor."
In addition treatment of the offenders according to the Prison Rules is in so far as lodgement of convicted prisoners is concerned, is not dependant on the decision or determination of the Court. The Director of Prisons administers the Prisons Rules in his own discretion, which is in order, except if injustice, bias or discrimination may be proved. See also section 4 of The Prisons (Amendment) Order 1970 : "General Powers of Director."
In my opinion the answer therefore to the serious question whether the issue of the age of the Accused is open to adjudication in the present circumstance is that it is not.
It is largely an administrative matter, as I concluded, as to where a prisoner may be lodged by prison authorities as long as he is placed in a lawful prison.
The matter remains, in my view, in the hands of the prison officials who shall deal with the matter in the way they see fit, while recognising that the Accused cannot be lodged or incarcerated for a period exceeding three years.
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T. Monapathi
Judge
24th February 2004
Gentlemen Assessors : Mr. T. Mojela, Mr. R. Matete
