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The latest, reworked version of the Child Justice Bill has been assessed by the Justice and Constitutional Development Portfolio Committee in the South African parliament. The purpose of the bill is to establish a criminal justice process where the rights of those under 18 and accused of a crime are protected. The aim is also to help break the broader cycles of crime and violence in the country by focusing on restorative justice. The Child Justice Alliance, a civil society initiative designed to assist the Child Justice Bill and made up of the majority of the most important NGOs, community-based organisations and academic institutions dealing with children's rights, is optimistic that the bill could be law before the end of the year. But parliamentary committee chairman Yunus Carrim warned "we have a responsibility to look at what the capacity of the state is to do what the NGOs want. We're concerned about what's do-able." The committee, he added, "might differ with civil society stakeholders on how we find the balance between the rights of children accused of crime and the interests of the victims of crime and society as a whole". The bill places limitations on which children could be considered for diversion - the practice of referring children away from the court system and involving the often angry community and victims in helping the child realise and take responsibility for the harm they have done. The Child Justice Alliance stresses that this is "no soft option", and could demand much more emotionally of the convicted child, who would have to go through a process of public shaming and healing, instead of being sheltered from the community in prison. 'Innovative' The bill sets out a variety of innovative diversion options in three categories. Level one could include anything from letters of apology to symbolic restitution. Level two would have an added dose of community service, while level three, applying only to over 14s, could include even more hours of community service and some time living away from home at a selected place. But for this to be done, the child needs to be sent for an assessment. This involves determining the child's home situation and the circumstances of the crime. Determining a person's age is also important, because there have been many cases where young-looking adults without ID documents have passed themselves off as children to avoid going to the tougher adult prison. The portfolio committee has not yet reached agreement on the age of capacity. Lukas Muntingh of the Civil Society Prison Reform Initiative said the age of criminal capacity should be raised to 16. The bill currently puts the age at 12. The new bill excludes children charged with serious crimes like murder and rape from assessment, steering them straight towards youth prison. The bill provides that the arresting officer should send a child for assessment by a probation officer within 48 hours of arrest, to determine age, home circumstances, the prospect of diversion, if the child is in need of care, and recommendations for release. It is confidential and parents or guardians have to be present during the interview and confession. Probation changes But the Child Justice Alliance says less than half of the children consulted during the drafting of the bill said they had been assessed by a probation officer. "In practice arresting officers do not routinely inform probation officers of the arrest of a child. "The bill therefore sets out responsibilities and powers of probation officers." the alliance wrote on its website. The next step proposed in the bill is a preliminary inquiry. A probation officer is joined by a professional, like a psychologist, to determine if a child can be released. Incarceration is seen as a solution of last resort and should be imposed for the shortest possible time. It is also supposed to focus on proper age determination, on which sentencing and criminal capacity is dependent. One important new feature in the bill is the possibility that a child's criminal record can be wiped clean after conviction. The bill says a magistrate must issue an order to say if, when, why and under what conditions a record must be expunged when sentencing a child. This does not apply to those charged with very serious schedule three crimes like murder, rape, indecent assault, weapons smuggling or trafficking of drugs over the value of R50 000. About half of the children consulted felt that a criminal record did not necessarily act as a deterrent, but instead made it difficult for ex-convicts to find work, open a bank account and get credit from the bank and shops, leading many back to crime. "Expunging is an important edition to the present system, as it will provide a light at the end of the tunnel for children so that they may get on with their lives and not forever be stigmatised by actions committed as a child," the Child Justice Alliance said. The bill also provides for children's courts and one-stop child justice centres, for all children except those charged with serious offences such as treason, murder or rape. These courts would be in existing court buildings in each magisterial district. Child-friendly proceedings Proceedings have to be conducted in a language the child understands; everything asked and said should be appropriate to the child's level of development and it should be informal and friendly, to help the child relax and participate. These children will not be leg-ironed, handcuffs will only be permitted in exceptional circumstances and no-one will be held in cells with adults. The bill provides that children are entitled to legal representation and that those in detention, awaiting trial, have to be provided with legal representation at state expense. Muntingh said there were 875 sentenced children in South Africa last month and about 1000 were awaiting trial. Of those sentenced, 286 were under the age of 16. There was space for about 550 children at secure care facilities. "It is a very manageable problem," he said. He said about 25 percent of the wider prison population was awaiting trial, while 59 percent of children were awaiting trial. "Children are really pulling at the short end of the stick. "The department of justice puts in them in prison while awaiting trial, but Correctional Services don't really want them there." One positive fact was that there were very few cases over the last few years of children coming into contact with adults in prison, which is outlawed by the constitution. Further information
If the sentence involves a "residential requirement" or if the child is under 14 years but criminal capacity is established, children may not waive the right to have a state-funded lawyer.