SOUTH AFRICA: Child justice bill welcomed by rights alliance

Summary: Media statement from the Child Justice Alliance

[CAPE TOWN, 25 June 2008] - The Child Justice Alliance has welcomed the passing of the Child Justice Bill in South Africa.

This signals the recognition of the need for a separate criminal justice procedural system for children who commit crime that aims to ensure an individualised approach to children as well as serving public safety through crime prevention.

The Alliance was originally concerned that the Bill, as approved by Cabinet in 2007, did not allow for certain processes - such as assessment, the preliminary inquiry and diversion - to be applicable to all children.

However, the Bill that was passed this week ensures that all children will be assessed; all will appear before a preliminary inquiry for certain decisions to be made - such as whether the child should be released or detained awaiting trial; and that all children can be considered for diversion, although children charged with more serious offences will only be diverted in exceptional circumstances.

The overall outcome means that South Africa has established a child justice system that will potentially reduce crime; promote the accountability of children with a view to breaking the cycle of violence; treat children in a manner appropriate to their ages whilst holding them accountable for their actions; balance the needs of the child, the victim and society; and create a safer society for all.

The Alliance says that there are still certain aspects of the Bill that are of concern. Firstly, the Bill continues to allow for minimum sentences to be applicable to children aged 16 and 17 years. This is despite the fact that the Constitution states that children should be detained only as a last resort and for the shortest appropriate period of time, whereas minimum sentences, by their nature are a first resort.

Secondly, the sentencing provisions, while creating a system of sentencing that seeks to ensure children to whom minimum sentences are not applicable are imprisoned as a last resort, specifically allows for a court to impose a sentence of imprisonment of up to 25 years on a child, even for less serious offences provided substantial compelling reasons exist.

This, coupled with the fact that minimum sentences still include life imprisonment, means that children of 14 years and older may be sentenced to 25 years, whilst 16 and 17 year olds can be jailed for life. In terms of international practice, 25 years imprisonment is considered to be a very long time for a child offender to be sentenced, and the UN Committee on the Rights of the Child has called for life imprisonment of child offenders to be abolished.

A further concern relates to the over-formalisation of diversion.

Diversion is an internationally recognised practice that allows offenders to be channeled away from the formal justice system to programmes that address the harm and that aim to prevent re-offending.

Although the Bill provides that all children can be considered for diversion, the system of diversion itself is extremely tightly regulated. While we acknowledge that there is a need for checks and balances to ensure that the system of diversion is credible and a viable alternative to the formal criminal justice system, the level of regulation that is now contained in the Bill, was not originally envisaged. In our view this detracts from one of the major advantages of diversion, which is that it provides an informal way to deal with less serious crimes, and simultaneously takes pressure off the criminal justice system. Too much red tape may pose a threat to the effective realisation of diversion.

In addition, while we appreciate the fact that the minimum age of criminal capacity has been raised from seven to 10 years, we are disappointed that the Committee failed to make use of the opportunity to raise it to the internationally accepted norm of 12 years of age.

However, we are pleased to see that this issue will be reviewed in five years from the date of implementation of the Act.

Finally, the Alliance wishes to express its deep appreciation to the Portfolio Committee on Justice and Constitutional Development for the level of engagement it allowed with civil society. While not all of civil society's submissions to the Committee were heeded, the Committee certainly gave serious consideration to the inputs made - though at times they still were constrained to disagree, citing their duty as law makers for an electorate concerned about crime.

Jacqueline Gallinetti, the Alliance spokesperson and project coordinator, Child Rights Project, Community Law Centre, University of the Western Cape says that the Alliance members are of the opinion that the participatory approach adopted by the Committee is a best practice example of parliamentary participation and exemplifies that spirit of the Constitution which entrenches the notion that public involvement in legislative and other processes must be facilitated. It has ensured that the Bill was rigorously debated and has culminated in a fairly balanced piece of legislation, reflecting both a child -rights based approach and a concern for the safety of society as a whole.

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