South Africa's Child Rights Bill, a revolution in the making

INTERVIEW/ Jacqui Gallinetti

In a nation with no child or youth justice court, where children may be charged with crimes as early as age 7, and no guidelines for their detention or for exercising judiciary discretion, there is a revolution in the wings: the South African Child Justice Bill. The product of a series of popular consultations held since 1996, and uniquely and significantly, a piece of legislation that incorporates a cost assessment of what it takes to enact the law and train the justice professionals who will enforce it, the Bill is expected to pass by the end of the year.

Once passed, the Child Justice Bill will make it possible to uphold the Convention of the Rights of the Child through enforceable domestic law, - it establishes a youth court, it balances retribution based justice with progressive measures that incorporate Restorative Justice and Ubuntu, a humanistic, holistic approach to social relations based on African traditions.

 “It treats children in a manner appropriate to their ages while holding them accountable for their actions. It balances the needs of the child, the victim and society, and establishes the minimum age of criminal capacity, and contemplates proposed preliminary inquiry, assessment, diversion and sentencing,” said Jacqueline Gallinetti (photo) representative of the Child Justice Alliance, a network of NGOs, CBOs, academic institutions and individuals working to ensure that the Child Justice Bill is passed by the South African parliament, in an exclusive interview given to Comunidad Segura.

What has the role of civil society been in the creation and support of this bill?

Civil society and child justice have a long history. It is thought that this law reform process was initiated by non-governmental organizations in the early 1990’s that launched advocacy campaigns to focus attention on children who were being detained for allegedly committing common criminal offences as opposed to offences that were political in nature and linked to the struggle against apartheid. These campaigns included the ‘Release a Child for Christmas Campaign’ and he ‘ No Child Should Be Caged’ as well as the efforts of the Community Law Centre, which contracted university students to intervene informally in the criminal courts and provide assistance to arrested children, specifically in the form of trying to secure their release from custody awaiting trial. One example of a particularly innovative initiative to bring about change in the criminal justice system, as it pertains to children, was the establishment of diversion programmes by NICRO.

A further aspect of the impact of civil society in the law reform process around child justice relates to the fact that when the Project Committee of the SA Law Commission was appointed in 1996 to investigate juvenile justice, all of its members were comprised of representatives from the NGOs that had been involved in the lobbying campaigns around children in detention. This ensured a direct contribution by civil society to the drafting of new legislation aimed at improving the situation of children. It further illustrates the fact that NGOs have the necessary insight and practical experience to identify areas of the law that require change and the ability to effect that change.

How did you yourself get involved?

I became involved in the civil society advocacy process when I was asked to start and co-ordinate the Child Justice Alliance in 2001. The Alliance is a collaboration of NGOs, CBOs, academics and individuals across the country committed to seeing change in the field of child justice. The purpose of the Child Justice Alliance is to advocate and lobby to garner support for the Bill and the implementation of its new child justice system. The ultimate goal of the Alliance is to ensure that it is evident there is civil society support for the Bill as it passes through Parliament and is debated. Support needs to be gathered from NGOs and civil society and this must be achieved through informed debate and the dissemination of accurate information about child justice issues.

The Alliance co-ordinated submissions to parliament in 2002 and in 2008; has made numerous submissions on the Bill; has produced publications on certain issues; serves on a national inter-sectoral committee on child justice under the Department of Justice; has co-ordinated child justice research on the present child justice system; has organized many workshops on child justice and the Bill (including a national conference in 2006 where Jaap Doek, the then Chair of the UN Committee on the Rights of the Child was the key-note speaker) and has generally supported efforts and developments in child justice in South Africa for the last 7 years.

How does civil society interact with representatives and with congress?

In South Africa, our Constitution contains a number of provisions that facilitate the participation of civil society in interaction with government in order to achieve both accountability and transparency. These provisions provide a formal legislative framework that civil society can harness in any attempts to lobby or monitor government and can be of particular use in moving for the reform of laws. Section 59 of the Constitution states that the National Assembly must facilitate public involvement in its legislative and other processes as well as those of its committees.

Even with these mechanisms, there are no quick results...

 
This interaction with the legislative process can be rewarding or frustrating. In 2003, the Committee on Justice and Constitutional Development in parliament that was dealing with the Bill was not at all receptive to civil society submissions and effectively side-lined meaningful participation.

However, the present Committee (with a different chairperson) in 2008 has facilitated a high level of participation. The Chairperson of the Committee has encouraged civil society participation and in certain respects we believe his approach should be considered a good practice of parliamentary participation by civil society. The insistence of the Chairperson of the Justice Portfolio Committee that representatives of civil society be present at all deliberations, and the concurrent opportunity afforded to them to present a summary of the submissions to the Committee during the clause-by-clause reading of the Bill is just one example of how he has given life to the Constitutional requirements around participation in Parliament.

How do you see Child Justice in South African law now, prior to the enactment of the bill?

At the time of the appointment of the project committee and still today, there exists NO dedicated legislation addressing children that come into conflict with the law. The various departments, policies, and laws that currently guide the way in which child offenders are handled is problematic and incoherent, and often causes serious violations of the basic children’s rights.

There is no distinction in the law as it stands now?

Children in the criminal justice system are dealt with in terms of the Criminal Procedure Act 51 of 1977, which applies to children and adults alike. There are some provisions specific to children such as the requirement that trails 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 this law does not constitute a separate procedural criminal justice system for children.

The Child Justice Alliance calls attention to the fact that the Bill includes aspects of restorative justice that are in keeping with African traditions and customs, would you comment on this?

The Child Justice Bill lists the promotion of restorative justice and ubuntu (humanidade, solidariedade, generosidade) as being one of its objectives. This plays out in various ways, particularly in relation to the provision of a legislative framework for diversion and alternative sentences. Restorative Justice is now one of the guiding principles of various of our criminal justice government institutions such as the Department of Justice and the Department of Correctional Services. By including restorative justice so expressly in the Child Justice Bill, government is seen to be moving away from a purely retributive approach to criminal justice.

What is the age of criminal responsibility for children and youths in South Africa, and does that change with the Bill?

The age of criminal capacity is presently regulated by our common law. A child below the age of 7 years is irrebuttably presumed to be doli incapax, a child between the ages of 7 and 14 years is rebuttably presumed to be doli incapax (DOLI CAPAX. Capable of deceit, mischief, having knowledge of right and wrong) and a child older than 14 years is regarded as having full criminal capacity.

In terms of the Child Justice Bill, a child who, at the time of the alleged commission of the offence, is below the age of 10 years cannot be prosecuted.

The Bill also stipulates that a child between the ages of 10 and 14 years at the time of the alleged commission of the offence is presumed not to have criminal capacity unless it is subsequently proved beyond a reasonable doubt that the child had such capacity at the time of the alleged commission of the offence. Children older than 14 years continue to have full criminal capacity.

The South African Judge Eberhard Bertelsman has recently called for new solutions to ensure the safety of child crime victims and witnesses, does the Bill include dispositions of this nature?

Not specifically. The Bill does provide mechanisms and procedures for child offender’s rights to be protected within the criminal justice system specifically, but not direct provisions on safety of children.

We do have a Victim’s Charter, but this is merely a policy document and not force of law. There are other provisions to protect child victims in the new Sexual Offences Bill of 2007 and the new Children’s Act 38 of 2005, but these are not promulgated yet.

When do you think the Bill will be passed? What needs to happen for it to be enacted?

Not sure. Hopefully by the end of the year it will at least be enacted. Regulations will have to be drafted, and parliament satisfied that the departments are ready to implement before it is promulgated.

Any further comments?

It is a very long process, which has been quite fraught at times. Civil society has luckily been very pro-active and achieved much as far as advocacy and information dissemination is concerned. Government departments have also been implementing parts of the Bill even though it is not enacted, such as assessment, and there is generally good co-operation between government and civil society. It is very unfortunate that certain policy makers in the Department of Justice have deviated from the original vision of the Bill in 2002 by introducing an amended version in 2007, but hopefully the ethos of the 2002 version will be re-instated when the parliamentary debates are finalized this year. 

From Comunidad Segura:

Dossier: The United Nations Report on Violence Against Children

Read Further:

The Child Justice Alliance