Even before it began the rocky climb through the parliamentary process, the Child Justice Bill was considered to be internationally path-breaking legislation. It was born in the euphoria of the early 1990s in a country where youth had been considered politically lethal, whipping was a sentence, imprisonment the standard response to wrongdoing and torture considered a legitimate interrogation method.
The new legislation sought to provide restorative justice by diverting child offenders from this punitive justice system and keeping them out of prisons, which simply hardened criminality. It devised ways to work with offenders and victims to restore harmony in the community where the crime took place. Punishment would be tailored to the crime and dealt in a way that maintained the self-respect of the offender as well as the approval of both community and victim.
It recognised the need to be proactive in crime prevention, by placing an increased emphasis on the rehabilitation and reintegration of children to minimise the potential for re-offending. It also balanced the interests of children and those of society with the rights of victims.
In Parliament, the Bill was torn to pieces by lawyers and politicians schooled in punitive justice. It languished for years on the cutting-room floor of the justice portfolio committee. It was rescued by mounting pressure from civil society organisations such as the Child Justice Alliance, Nicro, Usiko and the Centre for Child Law. It was put back together and afforded a presidential signature in May 2009. The department of constitutional development and justice and the department of social development were given a year to get the requirements of the Act up and running, with implementation taking place on April 1 2010, a day widely described as historic in the protection of the children’s rights in South Africa.
Sixteen months later, how is it faring? Sadly, not well.
Restorative justice needs to function in an atmosphere of tolerance and reconciliation; it must be administered by police, prosecutors and magistrates well versed in its principles.
Post-apartheid South Africa, besieged by unemployment, official graft and rising crime, has delivered the opposite. The ANC’s commitment to a progressive approach to crime is slipping away. The restorative philosophy underpinning the Act is being undermined by a “war on crime” and a return to apartheid-style policing in the townships. Yet, seemingly in contradiction to this trend, as the bureaucratic wheels of the Act slowly turn, fewer young people under the age of 18 are being arrested.
Centre for Child Law director Ann Skelton, one of the drafters of the Bill, thought the legislation would bring a flood of children into restorative services, but it hasn’t.
“What I’m picking up is uncertainty,” she says. “Police, prosecutors and magistrates don’t understand the Act and don’t seem to know what to do. Police have the idea it means they shouldn’t arrest children so they just wag their fingers in children’s faces — or worse — and don’t bring them in. So it may look good on paper that fewer kids are being booked but it means they’re not going to be linked to services. The police were never intended as gatekeepers to the whole system.”
James Albanie, programme manager for social crime prevention at the Western Cape’s department of social development (DSD), says police are confused about arresting children — “and who wants to go through all the admin process of arrest when you know the child will be referred to a social worker and you don’t like it? Or police are in too much of a hurry to arrest, don’t collect sufficient evidence, so the kids are released.”
The effect of the drop in arrest rates has had a major impact on non-governmental organisations (NGOs) that developed diversion programmes in line with the Act. Nicro, which works with offenders, has seen a huge and worrying fall-off in referrals. Usiko, a rites-of-passage NGO in Stellenbosch, begged court officials to divert offenders but only three children were referred to it at the beginning of the year and seven in June.
“There’s no fall-off in child offending,” says social worker Arina Smit of Nicro, “but a marked drop of kids coming into the system. The police are supposed to refer a child to a prosecutor but there aren’t enough prosecutors or probation officers. So they just give a verbal warning and let them go.”
Another problem has been accreditation of diversion organisations. The Act was drafted in the knowledge that civil society had robust NGOs capable of delivering youth programmes. These simply needed to be accredited by the DSD and would be contracted to provide services.
Amid rising scepticism about “soft law” and concern for child rights, the DSD raised the bar so high that no organisations have been accredited. Applicants are issued with a Facilitators’ Manual, a Participants’ Manual and an Instruction Manual, with requirements Usiko director Saskia van Oosterhout describes as excessive. “There are so many boxes to tick and so much documentation required that I don’t know any organisation that has a hope of compliance. Don’t they want diversion services?”
“They’re micromanaging,” says Smit. “I think it’s a control issue — they see us as less compliant, not always agreeing with what they want us to do. And they shifted accreditation from national to local level. So instead of accrediting an organisation, they have to accredit each programme in every area separately. It’s a bureaucratic nightmare.”
Jacqui Gallinetti of the Child Justice Alliance found the process disheartening. “Government departments seem almost unwilling to use civil-society organisations for child justice. That’s crazy, because they’ve been in the business for years, with huge experience.”
Albanie agrees that the norms and standards were “too idealistic and set way too high. We’ve reviewed them and are waiting for a reply from the minister,” he says. “And we haven’t yet worked out a funding model. We don’t know how much diversion programmes cost.”
Seemingly unsure about entrusting young offenders to NGOs, the department has developed its own short diversion programmes run by probation officers. These include swimming lessons, skills training and weekend camps. “I can’t tell you if they’ve been successful because they haven’t been documented,” says Albanie, “but we’ve developed manuals and hope to put 5 000 children through our programmes next year.”
Whether these will be subjected to the same intense accreditation scrutiny as NGOs remains to be seen.
Soraya Solomon, who heads Nicro national, says the DSD “are fast-tracking, because it shows up well on their court rolls. But we can’t compromise. I mean, can you turn a kid from crime in a weekend? They don’t seem to know what restorative justice means.”
According to University of Cape Town researcher Andy Dawes, who was involved in the development of minimum standards for the Act, “the problem is that in the absence of evidence, DSD could be throwing good money at ineffective interventions which will not produce good outcomes. It’ll create the impression that diversion programmes don’t work.”
The Act requires the development of child justice courts, one-stop processing centres, victim-offender mediation and family group conferencing. Two one-stop centres were created in the country, but then the national budget for these ran out — the one projected for Cape Town came with a R63-million price tag.
There are special child justice courts, though some are merely an office, and there are few in the countryside where magistrates and prosecutors are itinerant. Family group conferences, central to the restorative process, simply aren’t happening.
There is training of officials administering the Act but this is still way below what’s needed. An Open Society Foundation report by Charmain Badenhorst this year found a worrying lack of implementation training among police and probation officers, prosecutors, magistrates and court clerks. “This lack of training has an impact on all aspects of the child justice system and is a serious challenge for the successful implementation of the Act,” she says.
Out of a force of nearly 200 000 police, she found that only 3% (6 279 officers) had been trained in child justice procedures, and that there were 484 probation officers in the DSD servicing 388 magisterial courts, the high courts and 299 periodical courts.
Trying to work out the effectiveness of the Act from statistics is almost impossible. A police report says a total of 75 435 children were charged during the period April 1 2010 to March 31 2011. A parliamentary report notes that 15 588 were diverted during that period — which leaves 59 847 young people missing in the process.
According to Albanie, their cases could have been withdrawn, referred to the children’s court, or the children could have been sentenced to residential options or prison. This leaves a lot of young people not getting the services the Act was designed to provide. During a recent parliamentary debate on the Act, ANC MP John Jeffrey said the fundamental question was whether the Act was working — “but you can’t gather this from the [DSD] report. The statistics are all over the place.”
Skelton says that, in her experience, some sections aren’t working. Before the Act, prosecutors would divert children, now they are not. “Overall, I don’t think the system is creaking to a halt. It can be fixed. But the numbers the government has put together to explain that system just don’t work, so we can’t assess. It’s a failure of data collection.”
Bronwyn Pithey, senior state advocate for the National Prosecuting Authority, insists that any judgment of child justice needs to be tempered by the Act’s newness. “It’s quite a big mind shift from a system that is perpetrator based — arrest, prosecute, incarcerate – to a system that must regard children in a more protective way. There’s nervousness about not following all the procedures, so police don’t arrest and prosecutors don’t divert but go for a preliminary inquiry instead. Everyone errs on the side of caution.”
According to Albanie, the Act is “an excellent piece of legislation with some teething problems”. But as social programmes decline, poverty and unemployment increase, gangs rule the townships, attitudes to youth crime harden and police shoot to kill, the progressive notion of restorative justice at the heart of the legislation is at risk. The Act is in danger of losing its bite. It may be time for NGOs to take up the fight for child justice yet again.