The seminal Child Justice Bill, introduced to Parliament in 2002, was finally passed by the National Assembly last week.
The quality of a democracy and the prospects of its future are, in no small measure, reflected in the way it treats its children. So the Child Justice Bill tells more about us as a country than we might acknowledge.
If it is important to pass laws that are pragmatic, practicable and do-able, it is also important not to abandon identity, principle, values and goals. If this Bill is about many balances, it must be pragmatic and aspirational, within the framework of an implementable strategy.
It is, in fact, a highly civilised Bill. Which is why, though issues of crime persistently divide political parties, all the parties voted for it.
The Bill strikes a balance between the constitutional rights of child offenders and their victims as part of an overall approach to ensure the safety and security of the community.
The committee is aware of public anxieties about crime levels and perceptions of the state’s failure to curb it. But we cannot shape legislation on a new sustainable model of child justice with immediate and long-term goals solely on the basis of emotions. The committee was careful to avoid being populist and ”short-termist” while recognising the need to act decisively against crime.
Being tough on child offenders has to be part of a process of preventing and reducing crime over time and ensuring that children do not constantly re-offend.
We should not be romantic about children in our country or ignore the extent to which children, especially older children, subjectively choose to commit crime and must be held accountable. Nor should we downplay the state’s responsibility to ensure the safety and security of both the potential victims of crime and society.
But we should also avoid an ”exceptionalism” that borders on suggesting that South African children, basically African children, are inherently worse than children universally and are incapable of being rescued from a predilection to committing crime, which borders on neo-racist theories.
A significant part of crime by children has fundamental material and structural roots — and unless we adequately address these systemic issues, we won’t be able to reduce crime levels effectively. Clearly, there needs to be short, medium and long-term programmes, measures and targets as part of a sustainable long-term strategy to reduce crime by children as part of a broader approach to reduce crime generally.
In terms of the Bill all child offenders have to be assessed by probation officers. Children under 10 cannot be prosecuted but, depending on the offence, have to be attended to by their parents and probation officers. The state has to prove ”criminal capacity” in the case of a child older than 10 but younger than 14.
A key part of the Bill is the ”diversion” of children who commit offences away from the ordinary criminal justice system. This would take a variety of forms, including residential detention in a child and youth care centre where the child has to undergo specific programmes for specific periods. However, children older than 14 can be impriÂÂsoned for serious offences.
Serious offences may be diverted away from the criminal justice system only in exceptional circumstances and only with the approval of the director of public prosecutions in terms of national policy. Moreover, the victim or his or her family must be consulted on whether the matter can be diverted and also on the diversion option. The police have to be consulted as well. The magistrate also has to approve. It won’t be easy to divert serious offences.
While the state has obligations to children, it cannot substitute for parents. Unless we have stable, functional families it will be difficult to reduce crime by children. The state will have to deal with capacity, resources and other constraints in implementing the Bill. There has to be a pragmatic, sensible implementation strategy. The Bill comes into effect only on April 1 2010.
We regret the delay in finalisng the Bill, but hopefully it is a better product. Certainly, it’s the outcome of considerable negotiations and there is substantial consensus on it between Parliament, the executive, NGOs and experts. The challenge now is for us all to work together to implement the Bill effectively. We owe this to the children of our country and we certainly need it to consolidate our democracy.
ANC MP Yunus Carrim chairs the National Assembly justice portfolio committee