Rex v. Malefetsane Mohlomi, Khenene Mphutlane, Tsepo Ketseletso, Khotsang Hlapane
High Court of Lesotho
14 March 2013
Other International Provisions:
African Charter on the Rights and Welfare of the Child
Children's Welfare and Protection Act: section 79, which establishes the judicial procedures for children suspected of being in conflict with the law.
The four defendants were convicted and sentenced for the crime of rape as adults because the Prosecutor and Trial Court believed the police report which stated all the accused were over 18. After the trial, authorities learned that two of them - Tsepo Ketseletso and Khotsang Hlapane - were under the age of 18 at the time of the crime. Ketseletso and Hlapane appealed their convictions because the trial court had not followed the proper procedure for prosecuting children suspected of being in conflict with the law when it tried, convicted and sentenced them as adults.
Issue and resolution:
Juvenile justice. The Court held that Ketseletso and Hlapane were under the age of 18, meaning that they must be prosecuted under the juvenile system established Children's Welfare and Protection Act (CWPA). Since they had not been prosecuted in accordance with CWPA, the conviction against them is not valid and they must be tried again in accordance with CWPA.
The Court provided a very detailed explanation of the juvenile justice system put in place by CWPA and the the purpose behind it. The CWPA establishes a parallel process for trying juveniles, mandates the court endeavours to promote the best interest of the child and requires the court to develop a pre-sentencing report executed by a probation officer before any child is sentenced to residential detention. Finally, the courts must explore all prospects for non-residential diversionary sentencing.
It was held that in the present case the trial court and prosecution improperly disregarded these procedures and treated the two children as if they were adults and that this oversight on the part of the trial court invalidated the conviction and sentences it imposed against the children but not against the two adult accused. Therefore the Court ordered that the children are tried again in accordance with CWPA.
Excerpts citing CRC and other relevant human rights instruments:
 . . .Their child status is assigned in terms of Sec 3 of the Children Protection and Welfare Act 7 of 20111 (CPWA). The meaning is, in the background, foreshadowed in the United Nations Convention on the Rights of the Child (CRC), The African Charter on the Rights and Welfare of the Child (ACRWC) and other International instruments.2
 The content and the form of the CPWA should be perceived against the background of The 1989 United Nations Convention on the Rights of the Child (CRC),4 The 1990 African Charter on the Rights & Welfare of the Child (ACRWC), other international instruments, protocols, standards and rules on the protection and welfare of children to which Lesotho is a signatory. This is sanctioned in Sec 2 (1) of the CPWA which provides that:
The objects of this Act are to extend, promote and protect the rights of children as defined in the 1989 United Nations Convention on the Right of the Child, the 1990 African Charter on the Rights and Welfare of the Child and other international instruments, protocols, standards and rules on the protection and welfare of children to which Lesotho is a signatory.
2 The CRC defines a child as every human being below the age of 18 years old even if majority is reached earlier under domestic law. Article 24 (1) of the International Covenant on the Civil and Political Rights (ICCPR) bears the same meaning. Article 2 of the ACRWC [African Charter on the Rights & Welfare of the Child] maintains the same definition.
4 Article 40 (2) (a), (b) (i) to (vii) & 3 provide a special procedural regime for the rights & the protections to be accorded to a child who is suspected of being in conflict with the law. This transcends all the phases of the Criminal Justice system.
CRIN believes this decision is consistent with the CRC. Children who are accused of committing a crime when they are under 18 years old must never be tried as adults. Furthermore, the CRC states that juvenile justice systems must promote the child's sense of dignity and worth, take the child's age into account and aim at his or her reintegration into society.
In the Matter between Rex v. Malefetsane Mohlomi, Khenene Mphutlane, Tsepo Ketseletso, Khotsang Hlapane, CR No. 10/2013 (High Court of Lesotho, March 2013).
Link to Full Judgment:
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