Child Testimony and Its Admissibility in Criminal Proceedings: A Comparative Analysis Between Common Law and Islamic Law Systems

Sowed Juma Mayanja

doi:10.7176/jlpg/84-13

Abstract

Despite all International and National efforts to safeguard the child, a number of children worldwide are facing sexual abuses, some of which are committed by their near relatives or caregivers. The matter, however, gets worse when there is no any other evidence to implicate the offender in courts of law except the testimony of the child who is the victim of the offence. This paper examines the admissibility of child testimony in criminal proceedings and its effect in implicating the offender. It makes a comparative analysis of the Common law and Islamic law systems. It analyses the conditions stipulated for the admissibility of child testimony in both systems and comes up with proposals to lighten some of those conditions so as to render justice to children who are victims of sexual offences by adults, yet such children do not meet the stipulated conditions. Keywords: child testimony, sexual abuse, corroboration, voire dire , Aql , Bulugh , oath, conviction. DOI : 10.7176/JLPG/84-13 Publication date : April 30 th 2019

Highlights

Despite all these efforts to safeguard the child, a number of children worldwide are facing sexual abuses, some of which are committed by their near relatives or caregivers
This paper examines the admissibility of the testimony of a child in criminal proceedings and its effect in implicating the offender
From the foregoing discussion, it has been seen that child testimony is admitted in both common Law and Islamic Law but there are stringent conditions attached to its admissibility

Summary

Introduction

The UN Convention on the Rights of the Child (CRC) 1989 stresses that the best interest of the child shall be a primary consideration in all undertakings concerning children whether undertaken by public or private social welfare Institutions, courts of law, administrative authorities or legislative bodies.. This, means that when a child of tender years appears as a witness, the judge or magistrate before hearing his evidence must satisfy himself that the child understands the nature of an oath.. This, means that when a child of tender years appears as a witness, the judge or magistrate before hearing his evidence must satisfy himself that the child understands the nature of an oath.5 This position was well explained in the case of Jisho and Another v. The Court of Appeal for East Africa held, among other things, that the trial Judge should himself question the child in order to ascertain whether the child understands the nature of an oath and is possessed of sufficient intelligence to justify reception of his evidence and understands the duty of telling the truth. This is the view of Imam Malik and one of the views of Imam Ahmad. 3 This view is based on necessity; in that if the testimony of a child is not admissible under such circumstances, there would be no any other way of proving such cases as all other means of evidence are not available.

Discussion

Conclusion