MINIMUM AGE OF CRIMINAL RESPONSIBILITY: INTERNATIONAL/REGIONAL INSTRUMENTS. African Charter on the rights and Welfare of the Child, 1990

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1 MINIMUM AGE OF CRIMINAL RESPONSIBILITY: INTERNATIONAL/REGIONAL INSTRUMENTS Article 17 Administration of Juvenile Justice African Charter on the rights and Welfare of the Child, There shall be a minimum age below which children shall be presumed not to have the capacity to infringe the penal law. Article 40 Convention on the Rights of the Child, States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law, and, in particular: (a) The establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law; General Comment No 10(2007): Children s rights in juvenile justice The Committee has recommended States Parties not to set a minimum age of criminal responsibility (MACR) at a too low level and to increase an existing low MACR to an internationally acceptable level. From these recommendations, it can be concluded that a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable.

2 Algeria Angola Benin Botswana Penal Code, 1966 Article 49: a minor of may not be a subject to measures of protection or reeducation A minor13 to 18yearscanbesubjected to either protective or reeducation measures, or attenuated sentences 14 years Criminal Code, 2006 Article 17(Liability in respect of age) 1. Children under 14 years are exonerated from criminal liability. 2. The legal measure of worth is reduced by half or two-thirds in its limits, minimum and maximum, if the offender is under 18 or 16 years old, respectively. 3. In judicial determination of the penalty to be applied to the minor referred to in the preceding paragraph the needs of rehabilitation and social reintegration of the agent shall be taken into account. Order concerning the judgment on offenses committed by juveniles under eighteen years, 1969 Article 23: A minor under age 13 who commits an offence can only be subjected to supervision, surveillance or re-education measures. He may not be subjected to any penal sanction 14 years Children s Act, 2009 Section 82 (1): A child under the age of 14 years shall not be presumed to have the capacity to commit a criminal offence unless it can be proved that at the time of committing the offence the child had capacity to know that he or she ought not to

3 do so. Burkina Faso Burundi Cameroon Penal Code, 1996 Article 63: The age of criminal majority is fixed at eighteen years. Article74: There is no crime or offense when the offender was under the age of thirteen, at the time of the commission of the offense. Educational and safety measures can be taken on a minor under the age of and one between 13 to18 years who acted without discernment. 15 years Penal Code, 2009 (amendment) Article 28: Minors under the age of fifteen are criminally irresponsible. The offenses committed by them produce only civil liability. 10 years Penal Code, 1997 Article 80 -The minority (1) A minor of ten years is not criminally responsible. (2) A minor ten to fourteen years can be made criminally responsible and subjected to one of the special measures provided for in law. (3) Criminally liable minor above the age of fourteen and under eighteen benefits from the mitigating excuse. (4)The major of eighteen years is fully responsible. (5) The age of the author calculated the date of the commission of the offense.

4 Cape Verde Central African Republic Chad 16 years Penal Code, 2004 Article17: (Exemption from criminal liability by reason of age) only individuals who have completed the age of sixteen are capable of criminal responsibility. 14 years Penal Code, 2010 Article.9: When a minor under 18years commit an offense, it shall be referred to the Magistrate Judge that has the power to inform the child and which may then: - condemn the minor by the penalties laid by this Code or - impose the minimum of simple sentences -pronounce judgment and take any action it deems appropriate to ensure rehabilitation of the minor. However, the minor under14 years of age may only be the subject of rehabilitation measures under the conditions laid down by a special law. Penal Code, 1967 Article 51: Measures provided for in the preceding articles cannot be taken towards minors under the age of thirteen years. The courts, however, may order any refunds and civil liability for the victims of the crime or offense committed by the minor. Article 53:Individuals aged18 years are considered adults under criminal law

5 Comoros Congo Brazzaville Cote d Ivoire Democratic Republic of Congo Penal Code, 1995 Section 51: If due to circumstances of the offender's personality, it is decided that a minor over the age of thirteen years should be criminally convicted, the penalties will be imposed as follows. Child Protection Code, 2010 Article73:a child under thirteen years is presumed not to have the capacity to infringe the penal law. Measures of protection, assistance and surveillance under the conditions set by this Act can be taken. 10 years Penal Code, 1995 Article 116: The acts committed by a child at or under the age of 10 years are unlikely to qualify for prosecution. Minors10 to will be put under protective measures, support, supervision and education required by law. The mitigating circumstance or acquittal of minority benefits for minors16 and 18yearsas provided by the Code of Criminal Procedure. In terms of crime and offense, the mitigating factor In terms of offense, excludes any custodial sentence and allows the judge to not impose a reprimand. 14 years Child Protection Code, 2009 Article 95: a child under 14yearsof age benefits from an irrebuttable presumption of irresponsibility in criminal matters.

6 Djibouti Egypt Equatorial Guinea Eritrea Penal Code, 2011 Article 32: minors guilty of offenses shall be subjected to measures of protection, assistance, monitoring and education determined by a special law. This law also determines the conditions under which sentences may be imposed on minors over the age of thirteen. The custodial sentences for these minors may not exceed the half of those incurred by the major. A person under the age of eighteen years is minor within the meaning of this code 12 years Child Law, 2008 Article 94: Criminal responsibility shall not apply to the child who has not reached the age of twelve (12) years at the time of committing the crime. 16 years Penal Code, 1963 Article 8 minors younger than sixteen years: When a minor who has not reached this age commits an act punishable by law the case must be given to the special jurisdiction of the juvenile courts. 9 years Transitional Penal Code of Eritrea, 1957 Article 52: Infancy: Exoneration from Criminal Provisions The provisions of this Code shall not apply to infants not having attained the age of nine years. Such infants are not deemed to be responsible for their acts under the law. Where an offence is committed by an infant, appropriate steps' may be taken by the family, school or guardianship authority.

7 Ethiopia Gabon Gambia Ghana 9 years The Criminal Code, 2004 Article 52: Infants who have not attained the age of nine years shall not be deemed to be criminally responsible. The provisions of this Code shall not apply to them. Where a crime is committed by infant, appropriate steps may be taken by the family, school or guardianship authority. Penal Code, 1963 Article 56:-When a minor under thirteen years is guilty of offenses the case shall be referred to the presiding judge who will decide by order the delivery of the child to his parents, guardian, the person who had custody or a trustworthy person or placement in an institution or a public or private educational or training institution or in a medical facility. These measures may be reported or modified in the same manner. 12 years The Children Act, 2005 Section 209: the minimum age of criminal responsibility is 12 years 12 years When a Child is Incapable of Committing Crime. Criminal Code, 1960 Section 26: Nothing is a crime which is done by a person under twelve (12) years of age.

8 Guinea 10 years Penal Code, 1988 Article64: The acts committed by a person under the age of 10 years are not likely to qualify for criminal prosecution. A minor of if found guilty benefits from law freeing themfromtheminority.minors10 to may be given protective measures, support, supervision and education provided by law. The acquittal or mitigating circumstance of minority benefits to minors from 16 to18 years as provided by the Code of Criminal Procedure. Article61:A minor under the age of 13whichischarged with a crime or misdemeanor may, as appropriate, being subjected to measures of supervision, monitoring, and assistance reform ordered by the President of court ruling in Chamber board. Article 66: The minor over age 13 and under 16 years who is convicted of a crime: If it is decided that he acted with discernment, the following penalties will apply to it: - 10 years imprisonment if he incurs the penalty of death or that of life imprisonment; - 5 years imprisonment if he incurs the penalty of imprisonment for time or criminal detention; - 1 to 2 years imprisonment if he incurs the penalty of civic degradation. Child Code, 2008 Article 338: The criminal responsibility is 18years. The age of the child is determined from the date of the commission of the offense. It is also determined by the production of civil status documents, judgments in lieu or any other documents corroborated by medical expertise. Int he event of conflict, the court discretion to assess the offender's age. If the act of civil status indicates that the year of birth, it will be considered as on 31 December of that year. If the month is specified, it will deemed made on the last day of that month. Article 339:The Child charged with an offense classified as a felony or misdemeanor will not be referred to the criminal courts of common law. It will not as well be amenable to juvenile courts. Acts committed by a child of 10yearsare not likely qualified for prosecution.

9 Guinea- Bissau Kenya Lesotho Liberia Libya 16 years Penal Code, 1993 Article 10 individuals: Individuals are liable to criminal responsibility only from 16years onwards. Article 12 young delinquents: The delinquents over 16andunder 20 years will be applicable to mitigated abstract penalty for the type of illicit violated 8 years Penal Code of Kenya, 2008 Section 14: A person under the age of eight years is not criminally responsible for any act or omission. 10 years Children's Protection and Welfare Act, 2011 Section 79(1): No child below the age of ten years shall be prosecuted for a criminal offence. 16 years Penal Code, 1963 Section 4.1 immaturity: A person is not criminally responsible for his behavior when he was less than sixteen years of age. In any prosecution for an offense, lack of criminal responsibility by reason of immaturity is an affirmative defense. A person under eighteen years of age commits an act which would be an offense if committed by a person over eighteen shall be subject to the provisions of the Juvenile Court Procedural Code (Judiciary Law, Ch. 11). 14 years Penal Code, 1953 Article 81: a juvenile who at the time of the commission of the offense had completed 14 years but had not completed the

10 Madagascar age of 18 years and had the capacity of conscience and volition is criminally responsible but the penalty is reduced by two thirds Ordinance on Child Protection, 1962 Article 4: The age of criminal responsibility remains fixed at eighteen years of age assessed from the day when a minor committed the offense. Article 6: If the minor is under the age of thirteen, he can be given a caution by the police. Malawi Mali Mauritania 10 years Penal Code Amendment Act, 2011 Section 14(1): A child below the age of 10 years is irrebutably presumed to be criminally irresponsible. (2) It shall not be presumed that a child aged 10 or over is incapable of committing an offence. Section 14(2)):A child up to the age of 14 is presumed to be irresponsible unless proved otherwise Code of Child Protection, 2002 Article 95: The age of criminal majority is 18 years. Article 98: A child under thirteen(13) years is presumed irrevocably not to have the capacity to infringe criminal law 7 years Ordinance on the Judicial Protection of the Child, 2005 Article 2: A child under seven (7) years shall conclusively be presumed to have no capacity to infringe the penal law, the

11 Mauritius Morocco presumption becomes rebuttable for children aged seven (7) years or old. However, children whose age is between seven and fifteen years only may be subject only to protection measures. 14 years Criminal Code, 1838 (Amended 25/01; 30/01; 5/02; 12/03; 22/03; 30/03; 34/05; 24/06) Article 44: Where an accused person is under the age of 14 and it is determined that he acted without discernment, he shall be acquitted, but shall, according to the circumstances of his case, be handed over to his relation or placed in a reformatory to be brought up and detained during such number of years as the sentence may determine, which period shall in no case exceed the period at which the accused will have reached the age of 18.Where it is decided an accused person under the age of 14 acted with discernment, he shall be condemned to imprisonment in a reformatory for such time as shall be determined by the judgment. 12 years Penal Code, 1962 Article 138: A minor under twelve is considered criminally irresponsible by default judgment. Mozambique 16 years Article 42 Absolute imputability Crimes of the following persons are not imputable 1st. a child who have not completed sixteen years; 2nd. -Crazy people who do not have lucid intervals Penal Code, 1886

12 Namibia Niger Nigeria Rwanda 7 years Initial state party report on the Convention on the Rights of the Child: Namibia, 1992 A child over the age of 7 years can in theory be convicted of a crime in Namibia Penal Code, 2004 Section II -. Criminal minority. Article.45: Minors under the age of thirteen are not criminally responsible. 7 years Criminal Code Act, 1990 Article30: A person under the age of seven years is not criminally responsible for any act or omission. A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission. A male person under the age of twelve years is presumed to be incapable of having carnal knowledge. 14 years Article 58: minimum age of criminal responsibility Law relating to the Rights and Protection of the Child, 2011 A child under fourteen (14) years old shall not be held criminally responsible for his/her deeds. Damages resulting from an infringement committed by a child are guaranteed by his/her parents or guardian in accordance with laws.

13 Sao Tome & Principe Senegal Seychelles 16 years Penal Code, 2012 Article9 [Special provisions for youth]: Standards laid down in special legislation apply on those over16 and under 21. Article19 [unimputability on grounds of age]: Those under16 years are criminally incompetent. Criminal Procedure Code, 1965 Section 567: The juvenile court may decide, in some cases, the measures of protection, assistance, monitoring and education as appropriate to be taken. It may, however, when circumstances and personality of the minor require the court may consider the case in accordance with sections 52 and 53 of the Criminal Code in respect of an offender over thirteen years. These measures and sentences are always likely to change in the conditions specified below. Penal Code, 1965 Article 53:Ifthe offense committed by a minor over the age of thirteen years is a misdemeanorr or a contravention, the penalty to be pronounced against it under the conditions ofarticle52shall not, under the same subject, rise above half of that to be imposed if he had attained eighteen years. 7 years Penal Code, 1955 Section 15. A person under the age of seven years is not criminally responsible for any act or omission. A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission. A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.

14 Sierra Leone Somalia 14 years Child Right Act, 2007 Article 70: In any judicial proceeding in Sierra Leone, a child shall not be held to be criminally responsible for his actions if he is below the age of fourteen years. 15 years Article 10 Criminal Capacity: Juvenile Justice Law No. 36/2007 Notwithstanding the provisions of the Penal Code or any other law: Whoever, at the time he committed an act, had not attained fifteen years of age shall not be liable A child who attained fifteen years of age until eighteen years may be liable for criminal responsibility in accordance with the Penal Code, but not full criminal responsibility 10.3 Whoever, at the time he committed an act, had attained eighteen years of age shall have complete criminal punishment and shall not be recognized as child or youth.

15 South Africa 10 years Child Justice Act No. 75, 2008 Section 7(1) Minimum age of criminal capacity: A child who commits an offence while under the age of 10 years does not have criminal capacity and cannot be prosecuted for that offence, but must be dealt with in terms of section. (2) A child who is 10 years or older but under the age of 14 years and who commits an offence is presumed to lack criminal capacity, unless the State proves that he or she has criminal capacity in accordance with section (3) The common law pertaining to the criminal capacity of children under the age of 14 years is hereby amended to the extent set out in this section. Section 8 Review of minimum age of criminal capacity: In order to determine whether or not the minimum age of criminal capacity as set out in section 7(1) should be raised, the Cabinet member responsible for the administration of justice must, not later than five years after the commencement of this section, submit a report to Parliament, as provided for in section 96(4) and (5). South Sudan 12 years Article 138: Minimum Age of Criminal Responsibility. Child Act No 10, 2008 (1) No child under the age of twelve years shall be prosecuted for a criminal offence as it shall be conclusively presumed that he or she is incapable of committing an offence. Penal Code Act 9, 2009 Article 30: Children under Twelve Years of Age not Criminally Liable. A child under twelve years of age, shall be deemed to lack criminal capacity and shall not be tried for or convicted of any offence, which he or she is alleged to have committed.

16 Sudan Swaziland Tanzania Article 31: Criminal Capacity of Children of Twelve and under Fourteen Years of Age. A child who is of twelve, but under fourteen years of age, at the time of the conduct constituting any offence which he or she is alleged to have committed, shall be presumed criminally liable, unless the contrary is proved beyond reasonable doubt (a) to lack the capacity to form the intention necessary to commit the offence; or (b) Where negligence is an element of the offence concerned, to lack the capacity to behave in the way that a reasonable adult would have behaved in the circumstances. 12 years Child Act, 2010 Article 5 (2,i): a Child, who is alleged to have violated the Penal Code, or is charged therewith, or the same is proved against him, shall have the right to be treated in such a way, as may be compatible with upgrading his sense of his dignity and status; and he is innocent, until his conviction is proved; and his trial aims at his social re-accommodation, and shall not criminally be responsible, unless he attains twelve years of his age, but shall be subject to one of the care measures, in accordance with the provisions of this Act. 7 years Initial state party report on the Convention on the Rights of the Child: Swaziland, 2005 Common law presumes children below the age of seven years to be incapable of committing a crime as, legally, they are doliincapax and thus cannot form the intention, which the law requires for the commission of a crime. They cannot therefore be deprived of their liberty under any circumstances and are as such protected from the stigma of being addressed as criminals. This presumption however is rebuttable between the ages of 7 and 14 years. 10 years The Sexual Offences Special Provisions Act, 1998 (Replacement of section 15 of the Penal Code, 1981)

17 Zanzibar Togo 115.-(l) A person under the age of ten years is not criminally responsible for any act or omission. (2) A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission. (3) A male person under the age of twelve years is presumed to be incapable of having sexual intercourse.'' 12 years Child Act, 2011 Article 35(1) Age of criminal responsibility: A child under the age of 12 years is not criminally responsible for any act or omission. Penal Code of Zanzibar, 2004 Article 14(1): A person under the age of twelve years is not criminally responsible for any act or omission. (2) A person under the age of fourteen years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission. (3) A male person under the age of fourteen years is presumed to be incapable of having carnal knowledge. 14 years Children s Code, 2007 Article 302: Children of fourteen (14) years are criminally irresponsible. The juvenile court may on request take judicial safeguards.

18 Tunisia Uganda Zambia Zimbabwe Child Protection Code, 1995 Article 68: A child under the age of thirteen years is irrebuttably presumed not to have the capacity to infringe the penal law; this presumption is rebuttable for children aged thirteen to fifteen years old. 12 years Children Act, 1997 Article 88 Age of criminal responsibility: The minimum age of criminal responsibility shall be twelve years 8 years Penal Code, 1931 Section 14 (1): A person under the age of eight years is not criminally responsible for any act or omission. 7 years Criminal Law Codification and Reform Act,2004 Section 6 Children under seven years of age not criminally liable: A child below the age of seven years shall be deemed to lack 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.

19 References ACPF (2012), Harmonisation of Children s Laws in West and Central Africa: County Briefs ACPF (2012), Harmonisation of Children s Laws in Eastern and Southern Africa: Country Briefs ACPF (2011), In the Best Interests of the Child: Harmonising Laws on Children in West and Central Africa available at ACPF (2008), In the Best Interests of the Child: Harmonising Laws on Children in Eastern and Southern Africa, available athttp:// ACPF (2010), Child Law Resources Volume I: International and Regional Laws on Children, ACPF (2012), Child Law Resources, Volume 2: Reporting Status of African States, available at