An historic step for Child Rights in South Africa

INTERVIEW / Jacqueline Gallinetti

“It is an historic occasion; on June 25, 2008 the National Assembly of the South African parliament passed the Child Justice Bill, unanimously approved by the various political parties. Although this is not the final step in the enactment of the Bill, it signals the highest level of parliamentary acceptance of the principles, rights and procedures contained in the Bill.”

The words are by Jacqueline Gallinetti of the Child Justice Alliance, a network of institutions and individuals that have been working towards the bill since consultations first held in 1996. In this interview Gallinetti reflects on the Bill’s strengths and shortcomings.

How do you see this step in passing the Child Justice Bill?

It means, overall that South Africa has finally established a child justice system that will potentially reduce crime; promotes the accountability of children with a view to breaking the cycle of violence; treats children in a manner appropriate to their ages whilst holding them accountable for their actions; balances the needs of the child, the victim and society and creates a safer society for all.

How does the Bill affect children?

It provides a legislative framework which incorporates due process rights together with the rights of children to be protected and treated in a manner that is appropriate to their age.

The Bill 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 will be detained awaiting trial; that all children can be considered for diversion, although children charged with more serious offences will only be diverted in exceptional circumstances.

Does the Bill do away with sentencing for children?

This aspect of the Bill is of concern. It still allows for minimum sentences to be applicable to children aged 16 and 17. This is despite the Constitution’s guarantee that children should be detained only as a last resort, for the shortest appropriate period of time. (Minimum sentences are by nature a first resort.)

What aspect of the Bill raises the most concern?

While the bill creates a sentencing system that seeks to ensure that those children to whom minimum sentences are not applicable are imprisoned only as a last resort, it specifically allows for courts to impose 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.

How does the Bill cover diversion?

I believe it over-formalizes diversion. Although the Bill provides that all children can be considered for diversion, the system of diversion itself is extremely tightly regulated. This level of regulation 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.

How did South African law see children prior to the Bill?

Before the Child Right’s Bill, in a country with no child or youth justice court, a child as young as seven could be charged in a court with no legislative guidelines for sentencing children. Historically, children in the criminal justice system have been dealt with in terms of the Criminal Procedure Act 51 of 1977, which applies to children and adults alike. There were some provisions specific to children such as the requirement that trials involving children be held in camera and that children (in addition to all the other sentencing possibilities) can be sentenced to a reform school, but the law does not constitute a separate procedural criminal justice system for children.

Read Further:

The South Africa Child Rights Bill, a revolution in the making