Generally, according to Section 125 of the Evidence Act, all persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause.
If a magistrate or judge suspects that a potential witness may not be able to understand the questions or give rational answers thereto, the Court must determine whether such a witness is competent. Due to this, an issue that may arise is how a child adducing evidence is to be treated and how exactly they can adduce evidence.
This discussion will attempt to address these issues, and will be divided into two sections, first dealing with a child of tender years and concluding with a child above the age of tender years.
a) Child of Tender Years
While the Evidence Act does not define who a child is, Section 2 of the Children’s Act defines them as a human being under the age of eighteen years. The same section goes on to define a child of tender years as a child under the age of ten years.
This definition however, has been subject to debate in the courts whereby the Court of Appeal of Eastern Africa in Kibangeny Arap Kolil v R held that the phrase “a child of tender years” meant a child under the age of 14 years. This was further affirmed by the Court of Appeal in the 2014 cases of Patrick Kathurima v R and Samuel Warui Karimi v R stated categorically that the definition in the Children Act is not of general application; it was only intended for the protection of children from criminal responsibility and not as a test of competency to testify.
Whether a child of tender years is to be considered as one who is below 10 years or 14 years, one thing remains clear, which is that a voir dire examination must be carried out before they adduce evidence. Statutorily, this is found in Section 124 of the Evidence Act as read with Section 19 if the Oaths and Statutory Declarations Act which provide that a child of tender years is competent to testify as a witness unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions. This child may give evidence even if they do not understand the nature of oath taking, but they can understand the importance of speaking the truth.
However, an accused cannot be convicted on this evidence alone as it must be corroborated by other material evidence. If this evidence is received but it is found that it was false, the child shall be guilty of an offence and liable to be dealt with as if he had been guilty of an offence punishable in the case of an adult with imprisonment.
Case Law regarding Children of Tender Years
The courts in Peter Kariga Kiume vs R stated that where in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voir dire examination, whether the child understands the nature of an oath in which event his sworn evidence may be received. The court went on to state that if the court is not so satisfied, his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event, an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him.
In Kibangeny Arap Kolil v R, the evidence of the prosecution came from two children aged 9 and 14 years. The accused was convicted on this evidence alone, causing him to appeal based on the fact that the evidence was not corroborated.
In Oloo s/o Gai v R, the 12-year-old daughter of the deceased was deemed to be sufficiently intelligent to understand the importance of telling the truth, and was found to have understood the nature of an oath. Similar to the above cited case, the accused in this case was convicted on her uncorroborated evidence, hence the conviction could not stand.
Conversely, in R v Kasemas Ogenda, the accused was convicted of the rape of an 8-year-old girl based on the evidence given by the child as well as medical evidence that she had contracted a venereal disease that the accused also had. The accused appealed this conviction but the appellate court held that the child’s evidence had been sufficiently corroborated.
b) Child above Tender Years
This section discusses the adducing of evidence by children above the age of tender years. From the definitions provided above, it can then can be concluded that children above tender years are those above the age of 10 or 14, but below the age 18.
Drawing from the previously cited Section 125 of the Evidence Act, all persons are generally competent to testify in court, including children above the age of tender years. However, in Gabriel Maholi vs R, the East African Court of Appeal averred that even in the absence of express statutory provision it is always the duty of the court to ascertain the competence of a child to give evidence. The courts went on to state that it is not sufficient to ascertain that the child has enough intelligence to justify the reception of the evidence, but also that the child understands the difference between the truth and falsehood.
Correspondingly, the court in David Muiruri Maingi v R cited R v Lal Khan where Lord Justice Bridge said:
“The important consideration…when a judge has to decide whether a child should properly be sworn is firstly, that the child had sufficient appreciation of the particular nature of the case and, secondly a realization that taking the oath did involve more than the ordinary duty of telling the truth in ordinary day to day life.”
If the child has an understanding of the difference between truth and falsehood and the importance of telling the truth, they can give a sworn statement. If they do not have this understanding, they can give unsworn evidence, but it must be corroborated in order for the accused to be convicted. A similar opinion was expressed by the Court of Appeal in England in R v Campbell which stated:
“If the girl had given unsworn evidence, then corroboration of those issues was an essential requisite. If she gave sworn evidence, there was no requirement that her evidence had to be corroborated but the jury had to be directed that it would not be safe to convict unless there was corroboration.”
Conclusion
From the discussion above, the Courts have opined that when it comes to minors as per the definition in the Children’s Act, a voir dire examination must be conducted. During this examination the court assess whether the child is fit to make a sworn statement. If the child passes the criteria, then the sworn statement is made and accepted. If the child does not do so, then it becomes an unsworn statement that needs corroboration in order to convict the accused.