CHILDREN AS WITNESSES IN SEXUAL OFFENCES

With growing awareness of child abuse and a continual increase in reported abuse cases in Eswatini, the Sexual Offences and Domestic Violence Act of 2018 included provisions that deal with children as witnesses with the intention to benefit child victims.

However, despite all these provisions, children may remain unheard and re-victimized in criminal and delinquency courts. To decrease the stress, the self-stigma and the difficulty experienced by children when appearing in courts, various accommodations were developed and stated in the SODV Act. These best practice approaches represent huge progress for the Kingdom of Eswatini in further protecting our children from harm and ensuring that those who commit crimes against children are subjected to a more comprehensive legal process.

Violence

Violence in the home and directed toward children is responsible for a substantial proportion of court actions involving children. But because of the trauma and distress that the child may have gone through as a result of abuse, either as a victim or as a witness, then that child needs to be treated with special care and attention. The SODV Act, Section 161, when talking about interviews with children, states that; Any police officer undertaking investigations in relation to an offences under the Act shall; ensure that any child victims or witnesses are interviewed using an electronic recording device as soon as practicable after the offence was reported and shall …re-interview the child only if it is in the best interests of the child to do so, but only after that child has had the opportunity to received counselling.

The ability of children to provide trustworthy testimony must be considered in terms of a developmental context as well as the circumstances of the event precipitating a court appearance, the ongoing influences in the current home, and the environment and processes leading up to and including appearance in the courtroom. The ability to accurately recall events evolves throughout childhood, as does the ability to understand and contextualise these events, including the ability to distinguish an experience and thoughts as one’s own or as belonging to someone else. This is the reason why a child can be re-interviewed only if they have received counselling, as Section 161 (b) of the Act alludes: Any police officer undertaking the investigation shall: Ensure that the referral to counselling required under this Act is made as soon as practicable after the offence was committed and that the referral is made to a government or non-governmental agency providing counselling services to children.

But the law goes further still. In the rare cases where the child is required to present evidence in court, (in instances where video evidence or video statements cannot apply and the child has to be brought into court), then the public must be excluded from the courtroom. That means, all persons other than the essential persons will be asked to leave while the child is giving the evidence. This makes good sense – it is hard enough for an adult to give evidence, often face-to-face with a perpetrator. It must be terrifying for a child. In such a case, ‘essential persons’ refers to; a party to the proceeding and legal representative of that party, the prosecutor, a person whose presence is necessary or desirable for the proper conduct of the proceeding, a support person for the child and any person who applies to the court to be present, but whose presence would serve a proper interest of the person and would not be prejudicial to the interests of the child.

Proves

This section of the law fully proves that Eswatini law has come to recognize that children can be reliable witnesses. The law recognizes that as much as children can be witnesses, they still need support when presenting evidence. Section 166 (2) states; a person may be a support person to the child after that person has been approved by the court after an application by the party intending to call the child to give evidence. The Act provides that the support person can be in close proximity with the child, and within the sight of the child while the child is giving evidence.

Kwakha Indvodza discusses these provisions and others in the Act, in more detail during our specially designed Youth Trainings on the SODV Act. These fun, interactive trainings are specially designed for 12 to 25-year-old young men and women. They are conducted on the first and third Saturdays of the month at central locations around the country. Know the law! Protect yourself and your loved ones. In collaboration with the Times of Swaziland,Kwakha Indvodza writes a weekly column on the SODV Act and its implications on our lives. To respond to this article or more information on the SODV Act trainings we offer, please call +268 24042265 or email communications@kwakhaindvodza.com

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