Child-rights Bill 'drops off Parliament's schedule'

Comprehensive legislation that would prevent child criminals from mixing with adult offenders and provide rehabilitation alternatives remains unenacted nearly three years after its preparation.

The Child Justice Bill, which received widespread public backing in 2003 and enjoyed cross-party support, has seemingly dropped off Parliament’s schedule, child-rights organisations say.

Child offenders are currently tried in terms of the Criminal Procedure Act. 

“The last time we heard of it [Child Justice Bill] was just before Parliament went into recess [in 2003], just before the 2004 election.
After the elections, we got a new minister and a new parliamentary portfolio committee on justice. Nothing has happened since then,” said Jackie Gallinetti, coordinator of Child Justice Alliance, a child rights advocacy group.

South Africa’s Constitution calls for the use of prison sentences only as a last resort in cases involving children, but the alliance’s statistics indicate that there are 1 069 children serving prison sentences. A further 1 138 are awaiting trial in prisons. The justice system currently does not separate children from adult offenders during pre- and post-trial detentions.

According to the International Centre for Prison Studies, there were 157 402 people incarcerated in South Africa last year, in a prison system designed to hold 114 796 people. About 41% of inmates were HIV-positive. 

“Child offenders are held in inhumane, overcrowded prisons with all sorts of hardened adult criminals and repeat offenders,” Gallinetti said. “They can be abused sexually and even physically. Regular gang violence and competition for resources is a major problem in prisons. This forces child offenders into survivalist situations that are not good for them.”

There is an urgent need for children to have separate detention and prison centres, where restorative justice, which focuses less on the punishment and more on the rehabilitation of the offender, can be implemented, she said, but “this cannot be done without a law to compel all relevant government departments to provide such services”.

The restorative justice system follows international guidelines, which consider the social, cultural, economic, psychological and educational background of the offenders. It also sees the “diversion” of offenders away from a criminal mindset, so that the child can become a productive member of society through interactions with the police, prosecutors and social workers.

Last year, NGOs instituted the restorative justice model and so far about 30 000 children have been inducted into it, according to the alliance. “The system is working but it is limited to a few organisations. We want to see it rolled out across the country at government level as well. This can happen within a legal framework, as offered by the Child Justice Bill,” Gallinetti said.

“We would like Parliament and Cabinet to revisit the Bill as a matter of urgency and enact it. That is all that remains to be done, because budgeting for the implementation plan has also been done. The government departments have given their support, but the delay is in Parliament,” she commented.

South Africa’s crime rate has led to growing public calls for more severe penalties and even the reintroduction of the death penalty.

Professor Jaap Doek, of the United Nations Committee on the Rights of Children, said more children are becoming involved in serious crimes. He told a recent workshop on child rights that there is an urgent need for enactment of the Bill, as many adults are using children to commit crimes, and the traditional approach of detaining and jailing offenders is proving too costly and ineffective.

“They [child offenders] should be diverted to community service, be made to apologise to those involved and repair what was damaged. The child should be diverted away from the traditional ways of dealing with crime,” he said.

Human Rights Watch (HRW) reported earlier this year that juveniles continue to be incarcerated while awaiting trial in South Africa. This is a violation of international legal requirements that child offenders should not be detained except as a last resort. HRW also supported the urgent need for adoption of the Child Justice Bill.

“International standards stipulate that juveniles should be held in separate quarters from adults; however, this is not always the case in South Africa. Children in detention are reportedly victims of sexual abuse, violence and gang-related activities. The Child Justice Bill, deliberated in the South African Parliament in 2003, proposes a restorative justice approach in an attempt to move children out of the criminal justice system,” the HRW report recommended.

There was no response from the government or the portfolio committee on justice on why the Bill was delayed.—Irin

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