Determining the competency of children with developmental delays to testify in criminal trials
- Authors: Van Niekerk, Hester Aletta
- Date: 2015
- Subjects: Child witnesses -- South Africa , Developmentally disabled children -- South Africa , Children -- Legal status, laws, etc. -- South Africa , Evidence (Law) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3722 , http://hdl.handle.net/10962/d1017878
- Description: In South Africa children are required to testify under oath or admonition. The shortcomings of the competency test are of particular relevance to children with developmental disabilities, since courts are not equipped to adequately assess the competency of these children to give evidence. One component of testimonial competency, namely the understanding of the concepts truth and lies, is overemphasised and is examined with questions that are developmentally inappropriate for child witnesses in general. For children with cognitive disabilities, such questions create barriers for participation in the truth-seeking process. Consequently, convictions have been set aside on appeal owing to procedural irregularities found in the implementation of this test. In the literature review on testimonial competency, attention was given to restrictions that specific developmental disabilities impose on the perceptual, cognitive, communication and moral development of children. Two of four components – narrative ability and moral capacity – were studied in a sample of 184 children in middle childhood. Participants’ ability to give coherent and detailed accounts of events, their understanding of the concepts truth, lies, promises and the oath, and the Lyon and Saywitz oath-taking competency test, were investigated. Quantitative and qualitative methods were used for data analysis. Three groups were identified: those children with very limited, average or full testimonial competency. Their capacities were found to be related to maturation of cognitive functions and level of intellectual functioning. Participants were better able to demonstrate their understanding of truth and falsity by responding to the oathtaking test than giving verbal descriptions of these concepts. Whereas 1 percent of participants had a conceptual understanding of an oath, 15 percent understood the concept of a promise. Syncretism and confabulation compromised the narrative accounts of a substantial number of participants. Syncretism relates to immature narrative ability: correct details are combined in an illogical fashion. Confabulation refers to filling memory gaps with fabricated information. Guidelines on the competency determination of children with developmental disabilities were compiled. It is suggested that the competency examination be replaced by a formal, pre-trial competency assessment. The court should also receive expert evidence on how to facilitate meaningful participation when a child with sufficient testimonial competence is the witness.
- Full Text:
- Date Issued: 2015
- Authors: Van Niekerk, Hester Aletta
- Date: 2015
- Subjects: Child witnesses -- South Africa , Developmentally disabled children -- South Africa , Children -- Legal status, laws, etc. -- South Africa , Evidence (Law) -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3722 , http://hdl.handle.net/10962/d1017878
- Description: In South Africa children are required to testify under oath or admonition. The shortcomings of the competency test are of particular relevance to children with developmental disabilities, since courts are not equipped to adequately assess the competency of these children to give evidence. One component of testimonial competency, namely the understanding of the concepts truth and lies, is overemphasised and is examined with questions that are developmentally inappropriate for child witnesses in general. For children with cognitive disabilities, such questions create barriers for participation in the truth-seeking process. Consequently, convictions have been set aside on appeal owing to procedural irregularities found in the implementation of this test. In the literature review on testimonial competency, attention was given to restrictions that specific developmental disabilities impose on the perceptual, cognitive, communication and moral development of children. Two of four components – narrative ability and moral capacity – were studied in a sample of 184 children in middle childhood. Participants’ ability to give coherent and detailed accounts of events, their understanding of the concepts truth, lies, promises and the oath, and the Lyon and Saywitz oath-taking competency test, were investigated. Quantitative and qualitative methods were used for data analysis. Three groups were identified: those children with very limited, average or full testimonial competency. Their capacities were found to be related to maturation of cognitive functions and level of intellectual functioning. Participants were better able to demonstrate their understanding of truth and falsity by responding to the oathtaking test than giving verbal descriptions of these concepts. Whereas 1 percent of participants had a conceptual understanding of an oath, 15 percent understood the concept of a promise. Syncretism and confabulation compromised the narrative accounts of a substantial number of participants. Syncretism relates to immature narrative ability: correct details are combined in an illogical fashion. Confabulation refers to filling memory gaps with fabricated information. Guidelines on the competency determination of children with developmental disabilities were compiled. It is suggested that the competency examination be replaced by a formal, pre-trial competency assessment. The court should also receive expert evidence on how to facilitate meaningful participation when a child with sufficient testimonial competence is the witness.
- Full Text:
- Date Issued: 2015
Head of state immunity under the Rome statute of the International Criminal Court: an analysis of the contemporary legal issues and the African Union’s response to the prosecution of African heads of state
- Authors: Oyugi, Phoebe Akinyi
- Date: 2015
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7746 , vital:21292
- Description: This research examines the impact of head of state immunity on the relationship between Africa and the International Criminal Court (ICC). Thus, it investigates the position of heads of state immunity before international criminal tribunals with special regard to the ICC and assesses the response of African States Parties to the Rome Statute of the International Criminal Court (Rome Statute) to their cooperation obligation under article 98 (1). In addition, it seeks to ascertain the extent to which the African Union (AU) decisions impact on the decision of African States Parties to the Rome Statute to cooperate with the ICC and determine the legality of Article 46 bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Amendment Protocol). Thereafter, it appraises the possible impact of these developments on the application of the principles of international criminal justice in Africa and finally, makes recommendation on ways in which the AU-ICC relationship can be improved. The thesis begins by discussing immunity as a rule of customary international law and the exceptions to its application with regard to international criminal law. This paves way for the analysis of the cooperation regime of the ICC and exceptions thereto with special focus on immunity under article 98 (1) of the Rome Statute. The factors arising from the AU decisions relating to cooperation with the ICC are also discussed with a view to determine their justification under international law. The thesis draws on examples from Chad, Kenya and Malawi to illustrate the manner in which African States Parties to the Rome Statute respond to their cooperation obligation and to what extent this response is affected by the AU position. Lastly, the position of article 46 A bis of the Amendment Protocol, which safeguards immunity based on official capacity, is analysed with a view to determine how the introduction of this new provision is likely to affect the application of international criminal law in the African continent. Drawing on the study of the issues above, the thesis comes to the following conclusions. First, the application of immunity before a particular tribunal depends on the factors influencing its establishment and its mandate as provided for in the constitutive instrument. Secondly, states parties to the Rome Statute can rely on article 98 (1) to deny the ICC request for the arrest and surrender of President Bashir because he is the head of a non-party state. Thirdly, the AU’s position does not have a direct impact on the decisions by African States Parties to the Rome Statute on the issue of the arrest and surrender of President Bashir to the ICC. Fourthly, some of the AU grievances against the ICC have justification in international law and therefore deserve the attention of the ICC and the international community. Fifthly, article 46 A bis is in line with the principles of international law on immunities. Given these findings, the thesis recommends that the AU-ICC relationship should be mended in the interest of international criminal justice. And that this can be done by: strengthening the capacity of African States and Africa as a region to deal with international crime occurring in Africa; forging a deeper cooperation between the AU and the United Nations Security Council (UNSC) in ICC related matters; and by the ICC adopting a broad interpretation of its discretion during the prosecution of heads of state. This would allow the ICC to mete out justice without jeopardizing the proper functioning of the states whose heads are on trial.
- Full Text:
- Date Issued: 2015
- Authors: Oyugi, Phoebe Akinyi
- Date: 2015
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10962/7746 , vital:21292
- Description: This research examines the impact of head of state immunity on the relationship between Africa and the International Criminal Court (ICC). Thus, it investigates the position of heads of state immunity before international criminal tribunals with special regard to the ICC and assesses the response of African States Parties to the Rome Statute of the International Criminal Court (Rome Statute) to their cooperation obligation under article 98 (1). In addition, it seeks to ascertain the extent to which the African Union (AU) decisions impact on the decision of African States Parties to the Rome Statute to cooperate with the ICC and determine the legality of Article 46 bis of the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (the Amendment Protocol). Thereafter, it appraises the possible impact of these developments on the application of the principles of international criminal justice in Africa and finally, makes recommendation on ways in which the AU-ICC relationship can be improved. The thesis begins by discussing immunity as a rule of customary international law and the exceptions to its application with regard to international criminal law. This paves way for the analysis of the cooperation regime of the ICC and exceptions thereto with special focus on immunity under article 98 (1) of the Rome Statute. The factors arising from the AU decisions relating to cooperation with the ICC are also discussed with a view to determine their justification under international law. The thesis draws on examples from Chad, Kenya and Malawi to illustrate the manner in which African States Parties to the Rome Statute respond to their cooperation obligation and to what extent this response is affected by the AU position. Lastly, the position of article 46 A bis of the Amendment Protocol, which safeguards immunity based on official capacity, is analysed with a view to determine how the introduction of this new provision is likely to affect the application of international criminal law in the African continent. Drawing on the study of the issues above, the thesis comes to the following conclusions. First, the application of immunity before a particular tribunal depends on the factors influencing its establishment and its mandate as provided for in the constitutive instrument. Secondly, states parties to the Rome Statute can rely on article 98 (1) to deny the ICC request for the arrest and surrender of President Bashir because he is the head of a non-party state. Thirdly, the AU’s position does not have a direct impact on the decisions by African States Parties to the Rome Statute on the issue of the arrest and surrender of President Bashir to the ICC. Fourthly, some of the AU grievances against the ICC have justification in international law and therefore deserve the attention of the ICC and the international community. Fifthly, article 46 A bis is in line with the principles of international law on immunities. Given these findings, the thesis recommends that the AU-ICC relationship should be mended in the interest of international criminal justice. And that this can be done by: strengthening the capacity of African States and Africa as a region to deal with international crime occurring in Africa; forging a deeper cooperation between the AU and the United Nations Security Council (UNSC) in ICC related matters; and by the ICC adopting a broad interpretation of its discretion during the prosecution of heads of state. This would allow the ICC to mete out justice without jeopardizing the proper functioning of the states whose heads are on trial.
- Full Text:
- Date Issued: 2015
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