Since being introduced to Parliament in 2002, the Child Justice Bill has had a rough passage. It’s been an on-off thing for years, passed to and fro like a hot potato — tinkered with, watered down and chewed over by the portfolio committee on justice and constitutional development and, particularly, by the now Deputy Justice Minister Johnny de Lange.
It tends to get tacked on to the end of the debate list and falls off when time runs out. This year it hasn’t made the list and isn’t even going to be debated by the portfolio committee. According to committee secretary Lolly Sibisi, the Bill is being withheld on instructions from the justice ministry. Its future looks dim.
There’s no inherent problem with the Bill, drawn up by the law reform commission. It has even been costed for implementation — a parliamentary first. In fact, the Bill is one of the most progressive pieces of juvenile justice legislation in the world.
The difficulty is that politicians are worried about public opinion, and an understandably frantic public is clamouring for tougher measures against criminals. So instead of trying to solve the social conditions that give rise to crime — which the Child Justice Bill does admirably — we’re back to the old days of raids and crime swoops.
The early days of South Africa’s democracy were highly consultative and based on a belief in human rights — especially for children. In 1994 then-president Nelson Mandela promised that “the basic principle from which we will proceed from now onwards is that we must rescue the children of the nation and ensure that the system of criminal justice must be the very last resort in the case of juvenile offenders”.
Within a few years, however, the pressure of keeping the electorate happy began to show in the government’s mixed messages on criminal justice. In what criminologist Dirk Van Zyl Smit called an erratic flirtation with hard-line measures, responses ranged from the enlightened National Crime Prevention Strategy to “an almost farcical police undertaking to arrest thousands of known criminals in a short period, through the introduction of mandatory minimum sentences to the bizarre (and only half-heartedly denied) suggestion that disused mine shafts be used for dangerous prisoners”.
Human-rights-based change gradually gave way to what Smit termed “popular punitiveness”. Child rights lawyer Ann Skelton has shown that, as crime and control became a pivotal theme in South Africa, policymakers came to increasingly embrace “law and order” ideas borrowed from the United States — to a point where they overrode previous policy commitments.
Between 1995 and 2000, sentences for children got longer. It’s clearly far easier for the justice system to demonstrate its “effectiveness” by putting more people behind bars than through the healing effects on a community of restorative justice.
The Child Justice Bill, if it ever gets implemented, would create the context for community and victim involvement, protection of young people after arrest, diversion programmes that would teach offenders different values, alternative role models, and restorative justice for victims, offenders and the community.
This type of justice has infinitely more chance of breaking the cycle of crime than prison, as demonstrated by the community-based Usiko programme in Stellenbosch. More than 300 at-risk youngsters have passed through and none, as far as can be ascertained, have rejoined gangs. Other programmes have had similar results. All these are based on understandings from which the Child Justice Bill was derived.
Politicians, however, are going in the other direction, seeking regulation rather than relying on the discretion of prosecutors and magistrates on the ground. The portfolio committee has been tightening control of the Bill and has linked diversion to complicated schedules of “graded” offences.
De Lange, who has maintained tight control over the Bill’s bumpy ride in Parliament, seems to be particularly opposed to this legislation.
In committee he brooks little opposition. He has, in various meetings, objected to the wording of the Bill, inserted a minimum sentencing clause and had problems with the cost implications.
Finally, last year, despite the Bill’s creation by some of the finest judicial minds in the country, he completely rewrote it, though the result is not accessible to the public. This year, it seems, neither the original Bill or De Lange’s rewrite is going to see the light of day.
And Mandela’s promise of ensuring that the system of criminal justice would be the very last resort for juvenile offenders is again on hold.
Don Pinnock, a criminologist, was part of the inter-ministerial committee on child and youth care