CHILDREN’S RIGHTS AND LAW REFORM IN SOUTH AFRICA: AN UPDATE FROM THE JUVENILE JUSTICE FRONT
Julia Sloth- Nielsen Visiting Fellow Centre for Public and International Law Australia National University (Member: SA Law Commission Project Committee on Juvenile Justice)
South Africa ratified the Convention on the Rights of the Child (“CRC”), shortly after the advent of democratic rule, in June 1995. In the process leading to the formulation of the
National Programme of Action that followed ratification, the matter of law reform for children was identified as an important priority. The most pressing reason for this was the need to eliminate
overt discrimination, especially racial discrimination, from the statute book, but there were other compelling factors as well. Not the least of these was the need to the harmonise the laws of the
so- called “independent bantustans” created under apartheid with those of the rest of South Africa, and the desire to take legislative account of the provisions of the Convention itself.
Since the CRC was the first international convention to be ratified by South Africa, previously denied accession to UN treaties, the review of legislation pertaining to children enjoyed high
political profile and support.
One of the first legal changes- triggered by the adoption of South Africa’s 1994 constitution - was the abolition of corporal punishment, both in schools, and as a sentence that could be imposed
upon juvenile offenders. Prior to 1994, whipping was the sanction most often used by judicial officers in cases involving juveniles, and in 1993, over 43 000 sentences of this nature were imposed
upon children. [ see breakaway box here] Subsequent to the abolition of corporal punishment, interim amendments have been brought about in a range of areas relevant to children’s rights,
including a ban on commercial sexual exploitation of children and new legislation prohibiting child pornography. Extensive regulatory provisions to protect children in the residential care system
have also been passed by Parliament.
These were all brought about by limited amendments to existing legislation, namely the Child Care Act 74 of 1983 and the Films and Publications Control Act of 1991. However, the first major stand-
alone law review project aimed at entrenching children’s rights has recently been completed: the South African Law Commission accepted the Report of the Project Committee on Juvenile Justice on
1 April 2000.
The Project Committee on Juvenile Justice, appointed by the Minister of Justice in 1996, had the task of developing (for the first time) legislation for a separate juvenile justice system for the
country, in accordance with international human rights standards. Until now, no separate statute or procedures have existed for children charged with offences, and they have generally been subject to
the same criminal process as adults. Interestingly, because of South Africa’s unique history, most members of the 5 member Project Committee were drawn from the NGO sector: they had all
been involved in children’s rights campaigning and anti- apartheid work prior to the African National Congress’s accession to power.
The Project Committee published two consultative papers during the course of its three year investigation, the second of which was a substantial Discussion Document which included a 120 page Draft
Bill. Despite the fact that the original name of the project committee related to juvenile justice, the Bill was termed the Child Justice Bill, to emphasis the focus on children’s rights and avoiding the stigmisation inherent in the word “juvenile”.
The procedural system proposed in this Bill was both revolutionary - for South Africa, and possibly more widely - and, at the same time, cognisant of the severe resource constraints facing the
country. The Project Committee was of the opinion that it was unlikely that government would be able to inject vast capital resources into the setting up of a new juvenile justice system.
A further point of interest was that the Bill, for the first time in South Africa, referred to, and entrenched, diversion and aspects of restorative justice. Drawing to some extent on the New Zealand
model of conferencing, and Australian research on restorative Justice processes, and building on indigenous processes of dispute resolution, the Bill attempts to provide the widest possible framework
for the development of these alternatives to formal court procedures, without going as far as to introduce them as a compulsory step..
The Bill formed the focus of country wide consultations during 1999, and provided the Project Committee with a unique opportunity to address departmental and magisterial concerns about aspects of the
Bill in advance of the parliamentary process (which still lies ahead). Without derogating from the overarching concern that the legislation reflects an approach consistent with international
children’s rights (evident especially from the clauses dealing with the principles and objectives of the juvenile justice system), three major themes emerged from the consultations with
officials from the Departments of Justice, Police, Correctional Services and Welfare. These had to be addressed by the Committee in the formulation of final legislation proposals.
The first anxiety was that a system of obligatory consideration of diversion before plea by a judicial officer, as first proposed in the Discussion Paper, could consitute a possible encroachment upon
constitutionally entrenched prosecutorial powers, and consequently, an objectionable leaning towards judicial decision- making in what is correctly the prosecutorial sphere. This issue has now been clarified in the Report: the Bill now specifies that the prosecution may, after the round table “conference” at which diversion must be considered, nevertheless indicate that prosecution is warranted.
Second, concerns were expressed by both civil servants and NGO’s about the capacity of government to implement the legislation. This sentiment is by no means limited to the juvenile justice or
children’s rights arena, but has been a general complaint about the performance of government in the period immediately following democratic rule: much good law has been passed by Parliament in
the creation of a new democratic order, but the benefits to and changes in society at large have still to be felt by most. The failure to deliver is often ascribed to the difficulties – fiscal
and otherwise – of the implementation of legislation by a bureaucracy which itself has undergone rapid transformation since 1994. Also, the macro- economic climate has changed since legislative
drafting commenced, and government austerity, cut- backs on social spending and reduction of the civil service are all now elements of prevailing economic policy.
The Project Committee was fortunate in obtaining donor funding to undertake pre-emptive steps to alleviate at least some aspects of the fear that government may not have the capacity to implement the
Draft Bill. Early on, the need for some kind of an economic cost-benefit analysis was identified by the team drafting the legislation, chiefly to be used as an advocacy tool in support of the
passage of legislation in the parliamentary process. Rather than vaguely asserting that the proposed legislation was indeed within the country’s capacity and available resources, we thought it
desirable to have facts and figures upfront to justify and support any claims made regarding the fiscal prudence of the proposed provisions . An additional thought was that in areas where government would need
to spend money (e.g. in expanding diversion programmes), the relevant department would be empowered to budget for and allocate the necessary expenditure with full knowledge of future spending
In what is a first for legislative processes in South Africa, the Report to the Law Commission is now accompanied by a full economic analysis of the juvenile justice system proposed in the earlier
working paper. To the great delight of the Project Committee, the scenario analysis appears to show that the proposed procedures for children accused of offences will ultimately entail reduced costs for government. Perhaps not entirely unexpectedly, despite increased projected expenditure on welfare services, diversion programmes and probation officers, huge overall cost savings will be brought about by limiting incarceration costs. This is achieved through limiting the time that children may spend in pre-trial detention in police custody, limiting the age at which children may be detained on remand, limiting the remand time for non-serious offences, and limiting the use of imprisonment as a sentence to convictions for serious and violent offences, and then only for children above a certain age.
The end result of these reforms is that detention and prison costs - and all the associated costs of e.g. transport to courts - to the Correctional Services and Police Departments will be
cut by approximately half. Perhaps tellingly, the costing study shows that adherence to international human rights norms need not entail extraordinary expenditure, but can actually result in savings
to government! In addition, the study clearly states that only direct costs have been calculated, so that the predicted savings do not take the social costs of reducing incarceration, and increasing
access to diversion, into account.
The third concern, expressed repeatedly during consultations on earlier versions of the Bill, and perhaps a familiar strain in debates here, is whether the proposed legislation sufficiently protects
the public from children convicted of (or charged with) serious offences. The “crime problem” in South Africa has been the topic of much national and international media attention,
and the climate for the liberalisation of laws concerning child offenders has undoubtedly suffered set backs in recent years. The Project Committee has, throughout the Bill, emphasised that all
decisions regarding diversion, transfer to the welfare system, sentencing and even the proposed possibility of expungement of juvenile criminal records must be individualised, and not linked to a
prior number of convictions or a list of serious offences. It is nevertheless clear, though, that courts will be able (within this framework) to detain and sentence children charged with very serious
offences to prison. Thus the small minority of children who are charged with murder, hijacking and armed robbery will receive the benefits of treatment under a legal regime which accords with
children’s rights standards, and protects their best interests during the trial process: however, they may not escape eventual imprisonment as a sentence.
The development of South Africa’s first youth justice statute has provided a valuable starting point for the enshrinement of international children’s rights norms in our domestic
legislation. Also, the law reform process has given us the opportunity to experiment with advocacy initiatives, such as the costing study described above. A consultation process with children on the
tenets of the Bill was also conducted, and the children’s views were incorporated in detail in the final report.
Austrialia’s mandatory sentencing laws, the subject of such intensive debate since my arrival here, seem to run in a contrary direction to the path South Africa has set out to follow:
individualised responses to child offending, consideration of the best interests of the child, the expansion of diversion as a positive step towards addressing the causes of offending, and the
injunction of the Convention that incarceration should be used only as a matter of last resort, and then only for the shortest period of time, are all negated by a mandatory sentencing regime. I can
only wish DCI well in its efforts to ensure the reversal of this legislation.
[Biographical note: Julia Sloth-Nielsen runs the Children’s Rights and Advocacy Project at the Community law Centre, attached to the Faculty of Law, University of the Western Cape, South Africa.
Established in 1990 to oversee the incorporation of children’s rights in the emerging constitution, the Centre undertakes a wide range of advocacy initiatives in the legal field. Julia is also
a member of the SA Law Commission Project Committee undertaking a review of the Child Care Act, and was involved in drafting legislation on commercial sexual exploitation and on child pornography.
The Centre publishes wide range of materials, including a quarterly juvenile justice newsletter called ARTICILE 40, which profiles best practice in juvenile justice in South Africa and Africa. The
report on children’s views of the Child Justice Bill described above was also published recently by the Centre in a booklet called : What the children Said….”]