It was conceived in passion, praised as being ahead of its time, grown with wisdom, damaged, lost, found, rebuilt and finally signed into law.
The Child Justice Bill finally became an Act on May 11. Though its signing into law by Kgalema Motlanthe — one of his last official acts as president — was completely ignored by the media, the Act will have a far-reaching effect on South Africa’s justice system and young people in trouble with the law.
By international standards the Act is both sophisticated and radical, raising the age of criminal capacity (the age children are presumed to know the law), diverting arrested youngsters away from courts and prison to community-based structures and forcing wrongdoers to face their victims and to make reparations.
If South Africa’s existing legal framework can be said to be punitive, the new legislation is restorative, favouring negotiation over punishment, reparations over imprisonment and community healing over social abandonment. It should have been passed years ago, but official nervousness about its implications — and a country baying for the incarceration of criminals — saw it continually rewritten and sidelined in the parliamentary mill. It may hold the record in South Africa for spending the longest time between its inception and becoming law.
The reform process that was to underpin the Act began in the early 1990s, initiated by non-governmental organisations and academics concerned that children were being imprisoned (sometimes among adults) and brutalised in the absence of a separate criminal justice system for them.
Plans for an appropriate system were drawn up, not from Western legislative models, but from traditional and even ancient ways of dealing with troublesome adolescents. These included ideas from Xhosa, Zulu, San, Maori, Fijian and Inuit cultures, and involved extensive research and international cooperation.
Dr Ann Skelton — who, with me and social worker Rosemary Shapiro, were the principal drafters of the originating document — followed the process through the inter-ministerial Committee on Youth at Risk set up under the Mandela government. Skelton was then appointed to the project committee of the South African Law Reform Commission tasked by the new Minister of Justice, Dullah Omar, to draft legislation on juvenile justice.
The new Bill raised the minimum age of criminal capacity from seven to ten. It provided a legislative framework to assess all children in criminal procedure, introduced a preliminary inquiry process and a legislative framework for diversion. It would ensure that children were only imprisoned as a last resort.
The Bill was introduced for parliamentary debate six years ago and, while it churned its way through the Justice Portfolio Committee, non-governmental organisations began preparing non-prison diversion programmes for the expected flood of youngsters. Despite delays in its passage innovative programmes were tested and established by organisations such as Nicro, Usiko, Khulisa, the Restorative Justice Centre and Educo, using wilderness rituals, community confrontation through family group conferences and creative shaming to work with young people caught up in the justice system.
In the Justice Portfolio Committee, however, the Bill hit hard times and was refashioned (some say mangled) by the then-deputy justice minister, Johnny de Lange, who attempted to make it more punitive. After that, it was dropped from the agenda, badly battered, and became lost in the system.
Last year constant questions and submissions about the Bill by a grouping of NGOS, the Child Justice Alliance — and patient but persistent pressure from Skelton, now director of the Centre for Child Law — got it back into the Portfolio Committee. With the assistance of Skelton and others, it was painstakingly reconstructed to reflect its original intentions and finally, on the eve of the new government, signed into law.
Its passing was clearly assisted by the appointment of a new head of the Justice Committee, Yunus Carrim, a sociologist by training.
‘There is now substantial consensus on [the Bill’s] content among Parliament, the executive, NGOs and academic and other experts,â€ he told the National Assembly.
‘While the Committee regrets the delay in finalising the Bill, we would like to think the delay served to, ultimately, produce a better Bill.â€
The Act will come into effect in April next year, giving the justice and welfare departments as well as NGOs time to set up a system for the assessment and diversion of young people in trouble with the law.
Despite the view of its early detractors it’s not going to be soft on crime and allows for trial and imprisonment for serious crimes committed by older adolescents. For youngsters toughened by poverty and gang affiliations, though, prison has become a rite of passage; a way to prove their manhood and a school for crime.
If the Child Justice Act does no more than keep adolescents out of prison it will have the effect of reducing crime. But it aims to do much more.
By involving communities in solving the problems of delinquency, forcing wrongdoers to face their victims, diverting children from punitive justice and providing them with a context in which to change their antisocial ways, it stands to lay the foundations for a much safer, healthier society.
Dr Don Pinnock is a criminologist and one of the principal drafters of the child justice White paper. He is editor of Getaway magazine