Port Said rape case raises questions about Child Law
 
 
Zeina Arafah's parents leaving court, January 26 2014 - Courtesy: We are all Zeina Arafah Facebook page
 

On November 13, five-year-old Zeina Arafah was found dead in the coastal city of Port Said with her bones crushed, severed brachial arteries, haemorrhages and signs of shock due to free fall. News of her death shook the country as it was later discovered she had been sexual assaulted and thrown off the eleventh floor by her doorman, 17-year-old Mahmoud Kasbar and his friend, 15-year-old Alaa Gomaa.

The Port Said Juvenile Criminal Court sentenced both boys to 15 years in prison on February 16 — the maximum sentence allowed by law for minors. 

Due to the violent nature of the crime, the sentencing has stirred controversy with some advocating that child laws be amended to impose life sentences — 25 years — or the death penalty for minors older than 15-years in cases of such “heinous crimes.”

While acknowledging the atrocious crime, child rights’ advocates claim that the public and authorities cannot let this incident cloud their judgment and must ensure that the rights of minors remain protected.

Article 111 of the 2008 amendment to the 1996 Child Law and Article 17 of Egyptian criminal law stipulate that “no accused person shall be sentenced to death, life imprisonment, or forced labour if, at the time of committing a crime, he has not reached the age of 18 years.”

Following the verdict, Azza el-Ashmawy, the head of the National Council for Childhood and Motherhood called for the amending of the law, saying justice has not been served for Arafah. Meanwhile, Arafah’s family said they would be filing a lawsuit against the government in order to amend the law to allow the death penalty for minors.

“We have been protesting almost every day to demand justice for Zeina,” says Mahmoud Magdy, a family friend of Arafah who also created a Facebook page with over 20,000 followers in remembrance of her.

“What these boys did was so immensely cruel and they deserve the death penalty,” he said.

Magdy, Arafah’s family members and other residents of Port Said have been putting up posters of Zeina, distributing flyers and organizing sit-ins in front of all governmental buildings on a daily basis. They also collected over 900,000 signatures to put pressure on authorities to allow the death penalty for minors.

“She was the light of the family,” he added. “How can we accept it when an innocent child, who had her entire life ahead of her, is killed and raped in such a way. These minors should pay the heaviest price because they do not deserve a second chance.”

Magdy claims that Arafah was raped repeatedly as both boys took turns before killing her.

Magdy warns that in 15 years they would be released and then commit the same crimes with other young girls.

“I know that if there is an appeal, they might even get half the sentence one day. We can’t allow this to happen.”

However, childrens rights advocates deemed calls to amend the laws “irresponsible” and warned that ratifying them would be a setback for the rights gained for children in recent years.

“Laws for minors exist to rehabilitate children and integrate them back into society,” says Ahmed Meselhy, a lawyer from the Egyptian Coalition for Child Rights (ECCR),  “We urge everyone — including courts and media — to not think emotionally and realize what implications for children’s rights this would have. Children are meant to have their own prosecution, courts and places for rehabilitation for this reason.”

Meselhy notes that minors cannot be legally treated in the same manner as adults, and that it would contradict the new constitution.

According to Article 80 from the 2013 Constitution, “All those who have not reached the age of 18 shall be considered children.” It also stipulates that, “The state shall commit to establishing a specialized judicial system for victims and eyewitnesses who are children. Children may not be held criminally accountable or detained except in accordance with the law and for the time period specified by the law. Legal assistance shall be provided to children, and they shall be detained in appropriate places separate from adults.”

Egypt also ratified the Convention on the Rights of the Child in 1990 and the African Charter on the Rights and Welfare of the Child in May of 2001. Both international treaties led to milestones in amending the Child Protection Law following the death of a child due to Female Genital Mutilation (FGM) in 2008. Her death was symbolic and lead to milestones in improving Child Rights laws.  Some improvements include preventing children committing crimes from being tried on the same basis as adults, and restricting corporal punishment, amongst other gains.

Human rights advocates emphasize that amending the law in favor of harsher sentences would be detrimental and will add to violations and unfair trials already taking place. They believe that state authorities and families should be held responsible for their incompetence in dealing with minors. 

Kasbar, for example, had been a suspect in five felonies, and yet had not received any psychological support, rehabilitation or punishment for the crimes he allegedly committed.

Meanwhile, before a verdict was reached, media outlets published the photographs of the accused minors all over Egypt, another punishable violation of the Child Law.

According to Meselhy, many governorates, especially in rural areas, do not provide rehabilitation centers or psychological support for children prone to crime or who have committed crimes.

In fact, while this specific case was deemed a fair trial, according to lawyers, many claim that, in other cases, the law in itself is not guaranteed to protect children and many violations take place in implementing it.

Maha Maamoun, a child rights activist, claims that the vague wording of the law as it is leads to unfair trials and violations in its application, which means that many children who may be innocent or have committed petty crimes may receive harsher penalties.

“Adding a death penalty or life sentence means that a child who is, for example, charged with murder when he violated the protest law, could be sentenced to death; this would be truly disastrous,” she warned.

Meselhy claims that the vague wording of the law leaves room for violations by state authorities as children are often arbitrarily detained, tried in adult courts and imprisoned in adult prisons, in violation of Egyptian Law.

According to lawyers from the ECCR, over 623 children have been detained between July 3 and February 1 and only a small fraction have been released. This compares with over 300 children arrested during protests between June 2012 and November 2013, during Mohamed Morsi’s year in power. Many of these have not been given a fair trial and were given harsher sentences than deserved.

Maamoun claims that while there have been gains on the legal front in the past decade, the situation became worse on the ground for children’s rights in the past year.

“Victims of random arrests are mostly children because they are the most vulnerable and the easiest targets.” She claims that 20-35 percent of those subjected to random arrests are children.

On the third anniversary of the January 25 revolution, 228 defendants, a large number of whom are minors, were arrested in Abdeen Square, downtown Cairo, for protesting there and are being charged with murder alongside adults. Should the law be amended and the death penalty applied, they would be charged for the same crimes that are punishable by the death penalty as adults, explains Meselhy.

Many detained children have been tortured, electrocuted, beaten and sometimes sexually assaulted. The greatest fear for human rights advocates such as Maamoun and lawyers such as Meselhy is that, should the amendments take place, children would be on the same playing field as adults in terms of state violations of human rights.

“As much as I find the killing of Zeina Arafah horrendous, we cannot allow this amendment to take place,” adds Maamoun, “it would be a huge step backwards for children in Egypt.” 

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