Regulating the sentencing of young offenders convicted of serious crimes: Case law from South Africa and the United States of America

Zita HansunguleAuthor:  Zita Hansungule
Assistant Project Co-ordinator, Centre for Child Law, University of Pretoria

Is it constitutional to sentence young offenders according to laws providing for mandatory or minimum sentences? This was the central question raised and answered in two important judgments from the highest courts in South Africa and the United States of America.

On 25 June 2012, the Supreme Court of the United States ruled that the sentencing of youths convicted of murder to mandatory life terms (without the possibility of parole) was in violation of the Eighth Amendment to the United States Constitution. The court had before it two cases involving men who had been convicted of murder and sentenced to life imprisonment without the possibility of parole when they were both 14 years old. In both cases the courts sentencing them did not have the discretion in law to impose different punishments, as State law directed they “die in prison”.

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Fumbling Justice: ICC Sentences former Congolese Warlord, Thomas Lubanga Dyilo to 14 years and criticizes Ocampo’s handling of the case

Rebecca BrowningAuthor: Rebecca Browning
LLM candidate, University of Amsterdam

The International Criminal Court in The Hague, the Netherlands issued its first sentence since its inception in 2002, sentencing Thomas Lubanga Dyilo (see sentencing judgment), former president of the Union Patriotes Congolais (UPC) to a 14 years jail term on child soldier charges. The sentence is in sharp contrast to the 50-year sentence handed down to Charles Taylor for his involvement in sponsoring the civil war in Sierra Leone in May this year, and reactions were varied, with some calling it too lenient and others praising the measured and coherent sentence and its reasoning.

Lubanga was found guilty on 14 March 2012 of conscripting, enlisting and using children under the age of 15 years to participate actively in hostilities in the Ituri Region of the Democratic Republic of Congo (DRC) between 1 September 2002 and 13 August 2003.He was arrested and transferred to The Hague in 16 March 2006 for his involvement in a long-running civil war for political and military control in the Ituri region in the eastern DRC after being referred to the ICC by DRC President Kabila. Mr Lubanga will receive credit for time served in detention, and will effectively serve an 8-year sentence unless the sentence is overturned by an appeals chamber.

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Should the African Union be accountable and answerable to the African Court on Human and Peoples’ Rights?

Roopanand Amar MahadewAuthor: Roopanand Amar Mahadew
Doctoral candidate, Department of Political Science, University of Delhi

The African Court on Human and Peoples’ Rights (the Court) has recently delivered a judgment in the case of Femi Falana v The African Union. The judgment is rather controversial on various levels. Firstly, the Court decided to interpret Articles 5(3) and 34(6) which, read jointly, imply that individuals or Non-Governmental Organisations (NGOs) can have access to the Court only if the state from which they are has deposited the declaration accepting the jurisdiction of the Court in accordance with Article 34(6). This was certainly not the issue in the Falana case. What had to be determined was whether the African Union (AU), which is not a state party to the African Charter on Human and Peoples’ Rights or the Protocol establishing the African Court (the Protocol), could be sued and such an interrogation required the interpretation of Articles 3, 30 and 34 (1&4) of the Protocol. Secondly, the Court, at the very onset, failed to consider whether or not it has jurisdiction ratione personae and decided to proceed to judicial consideration of the applications which is procedurally flawed.

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