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Child witness

Can a minor be a witness in Court?

We shall answer this question by answering a few leading questions first.

What is a minor?

A minor is a person who has not reached full legal age which in Uganda’s case is 18 years of age and is still considered a child or a juvenile.

What is a witness?

According to Black’s Law dictionary, a witness is one who sees, knows, or vouches for something or one who gives a testimony under oath or affirmation in person by oral or written deposition. A witness must be legally competent to testify.

Something else you need to know about witnesses…

All ordinary witnesses are compellable to testify on matters asked of them during proceedings but the law has a few exceptions in the Evidence Act in Section 117 where it provides that all persons shall be competent to testify UNLESS the court considers that they are cannot understand the questions put to them or if they cannot give rational answers to these questions because of their tender age, disease (of body or mind), or any other cause of the same kind.

This means a child who is not of tender years can be a witness in court. In previously decided cases, tender years have been explained to mean ages below 14 years even though a child under the law is someone below the age of 18 years.

When a court is faced with a child witness, it is expected to determine if the child:
• understands the nature of an oath
• has sufficient capacity or intelligence to give reliable evidence
• distinguishes between what’s right or wrong

Recommendations regarding prosecution of child related offences and instances where children must give evidence are provided for in the Handbook for Public Prosecutions, and these are some of them:
• Children should have the opportunity to give evidence in criminal cases without the presence of the alleged perpetrator.
Alternatively, the court room can be modified so that the child does not have to see the perpetrator or even anyone else in the court room. Screens can be used to shield the victim from other participants in the process, especially the accused.
Alternatively, the examination of the child can take place in another room and proceedings relayed to the court room via camera.
• The existence of less strict rules on giving evidence such as absence of the requirement for oath or other similar declarations, or other child-friendly procedural measures, should not in itself diminish the value given to a child’s testimony or evidence.
• Interview protocols that consider different stages of the child’s development should be designed and implemented to underpin the validity of children’s evidence. These should avoid leading questions and thereby enhance reliability.
• Regarding the best interests and well-being of children, it should be possible for a judge to allow a child not to testify.
• A child’s statements and evidence should never be presumed invalid or untrustworthy by reason only of the child’s age.
• The possibility of taking statements of child victims and witnesses in specially designed child friendly facilities and a child-friendly environment should be examined and the language adapted to suit the child’s age and understanding.

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