CHILDREN were among the scores of suspects arrested for violence and looting in aftermath of the January 14, 2018 protests sparked by shock fuel increases. The protests had been pitted as a peaceful three-day-job stayaway and shutdown, but it turned violent when widespread looting and vandalism ensued on the first day. The police confirmed having arrested at least 36 minors for an assortment of crimes, including looting and vandalism. The police spokesperson Commissioner Charity Charamba told the Press that all the children had been released to their guardians. However, this does not mean the charges against them were dropped.
There have been appeals from many quarters to drop all charges against them, amidst assertions that arresting children was illegal and violated human rights. We discuss the criminal capacity of children and whether or not they can be held liable for crime and be arrested, tried and convicted.
Children are capable of committing crimes, with some of them commit very serious crimes. Children the world over, including in Zimbabwe, committing crimes like theft, assault, rape, drug dealing, drug abuse and other violent crimes like robbery and even murder. The youngest ever recorded child convicted for murder in history was a mere six-years-old.
Zimbabwe has its fair share of juvenile criminals, with a few murderers amongst them. In 2008, a 17-year-old boy from Ruwa was convicted of the premeditated cold-blooded murder of his parents as they were sleeping. In 2014, a 14 year- old Gweru boy killed the house maid by bludgeoning her with a hoe and hiding her body in the family toilet.
Criminal capacity of under sevens
In terms of the Criminal Law (Codification and Reform) Act, Chapter 9:23, children below seven years have no criminal capacity. Criminal capacity denotes responsibility and children younger than seven do not have the capacity to take responsibility for all their actions, so they cannot be held liable for crime even if their actions are unlawful. The majority of children in this age group are toddlers and the police cannot open dockets for toddlers. Toddlers cannot have criminal records. Nevertheless, all unlawful conduct must be reported to the police because there can be consequences such as death or injury. If the police arrested or detained children below seven during the recent protests, it would be wrong.
Criminal capacity of those between seven and 14 years
Similarly, children between seven and 14 years of age are also presumed to lack criminal capacity. However, children who have some awareness of the unlawfulness of their actions can be liable for criminal conduct, otherwise they are incapable of forming the necessary intent to commit crimes wilfully. Where negligence is an element of the crime, they are deemed to lack the capacity to behave in the way a reasonable adult would have behaved.
An example would be of an eight-year-old child in a stationary car parked on a hill who releases the handbrake and the car rolls back, killing people down the slope. A reasonable adult would have known that such an outcome was likely and, therefore, would not have done it unlike the eight-year-old. Ordinarily, no criminal charges are proffered against children between ages seven and 14, unless there is sufficient and convincing evidence which shows that the child intended to commit the crime and was aware that it was unlawful. That is a matter of evidence and opinion of a court or people with the expertise to work with children. Each individual case is assessed on its own merit.
In the present case, if the children arrested for looting and stealing knew it was wrong and unlawful, but continued doing it anyway, officers would be they would be liable for their behaviour. There was a group of children arrested in Bulawayo for stoning police officers. The children who simply did it out of fun, ignorance and without knowing the unlawfulness of their action, would not be criminally liable. However, those children among them who knew it was unlawful to stone policemen and intended to harm them, would be liable.
