Department of Justice & Constitutional Development on Child Justice Bill & Child Justice Project Workshop

JOINT MONITORING COMMITTEE ON IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF CHILDREN, YOUTH AND PERSONS WITH DISABILITIES
19 June 2002
DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT ON CHILD JUSTICE BILL AND CHILD JUSTICE PROJECT: WORKSHOP

Chairperson: Mr T Setona

Documents handed out:
Briefing of the Joint Monitoring Committee on the Improvement of the Quality of Life and Status of Children, Youth and Persons with Disabilities on the Child Justice System [Appendix 1]
Highlights of work undertaken by the Children and Justice Project (Swedish International Development Cooperation Agency, Sida) [Appendix 2]
Programmes To Support The New Child Justice System In The Areas Of Diversion And Alternative Sentencing In South Africa [Appendix 3]

SUMMARY
Department of Justice & Constitutional Development held a workshop on the Child Justice Bill, focussing on the following; children awaiting trial, work done by Child Justice Project (United Nations technical assistance), work done by Children and Justice Project and work done to develop programmes to support the Child Justice System.

MINUTES
Ms O Sewpaul of the Department of Justice and Constitutional Development presented a workshop on how the Department was dealing with the issues affecting child justice.

Children awaiting trial
Ms Sewpaul read through the section of the document dealing with this issue.

Discussion
Ms Rajbally asked how children who were awaiting trial were kept occupied. She asked if they were able to attend school or rehabilitation centres.

Ms Sewpaul replied that positive steps were being taken at Westville. Eight child and youth care workers employed by the Department of Social Development had introduced life skills programmes. However these programmes were not sustainable since children move in and out of the prison. Westville was trying to provide further programmes.

Mr Dlamini noted that there was a discrepancy between Departments regarding the definition of a 'child'.

The Chair agreed and asked how the Department defined a 'child'.

Ms Sewpaul answered that the Department's definition included children under the age of eighteen. This complied with the Constitution and the Child Justice Bill.

Ms W Newhoudt-Druchen (ANC) said that the statistics provided did not indicate that these figures would include children with disabilities. She asked how many children with disabilities were in prisons.

Ms Sewpaul replied that she did not have these statistics available. Department officials had visited four provinces in 2000 and had not encountered many children with disabilities. There were however a few with very ill health. These statistics could be made available to the Committee.

Ms Newhoudt-Druchen insisted that she was aware of many deaf children in prisons. She asked what access these children had to sign language interpreters.

Ms Sewpaul promised to look into this issue. The children referred to by Ms Newhoudt-Druchen could have been sentenced children. There were however not many awaiting trial children with disabilities.

Ms E Gandhi (ANC) referred to a briefing held the previous day by the Western Cape Department of Safety and Security. According to the briefing 26 000 children who had been arrested for gang-related crimes had been released back into the communities without proper rehabilitation. She asked how the Department dealt with this.

Ms A Skelton, the Project Co-ordinator of the Child Justice Project, said that this had been addressed at a conference held in Port Elizabeth. There were concerns that giving children benefits in the system would result in children being used by adults to commit crimes. This is because there would be lesser consequences for children. The Directorate however argued that the adults should be punished in these cases.

Mr Swart asked how often diversion was used, especially by prosecutors.

Ms Sewpaul replied that 15 000 children had been diverted already. In addition the Independent Prosecuting Authority had been established and a special programme put in place for the training of prosecutors with a view to further encouraging its implementation.

Mr G Lucas (ANC-Northern Cape) referred to the fact that various interventions had taken place in KZN. Ms Sewpaul had however indicated that there were problems in the Eastern Cape as well. He asked how these were being dealt with.

Ms Sewpaul replied that positive steps had been taken in the Eastern Cape. 'Stepping Stones' is an example of a one-stop Youth Justice Centre. The backlog in cases involving children can be attributed to the fact that many of these cases fell within the jurisdiction of the regional court (where cases take longer to be heard).
Stepping Stones had been upgraded to the status of a regional court in children's matters.

Mr S Dithebe (ANC) asked if the Department, together with other Departments planned to work with private sector organisations to establish alternative care facilities.

Ms Sewpaul said that this would be answered in the subsequent presentations.

Mr Maxwell asked how many children awaiting trial were street children. He asked if they are able to contact their families in order to make family group conferences possible.

Ms Sewpaul replied that she did not possess national figures. However the figures from the Durban Reception and Referral Centre indicate that 26% of children awaiting trial at the centre were street children.

The Chair referred to the Department's intersectoral approach. He asked how the different approaches would be converged.

Ms Sewpaul answered that the Directorates had previously worked well with the Inter-Departmental Committee on Youth Affairs when dealing with the issue of the definition of a child, despite the fact that their definitions differed.

The Chair asked what the relationship was between the Directorate and the National Youth Commission.

Ms Sewpaul replied that, as a member of the Inter-Departmental Committee on Youth Affairs, the Directorate worked with the National Youth Commission.

The Chair referred to the National Programme of Action and the intersectoral approach. He asked what would happen if all Departments came with different approaches. He suggested that the Justice Department alone should deal with these issues, as an intersectoral approach could lead to work becoming redundant, duplication and competitiveness.

Ms Sewpaul answered that all child justice issues fell under the National Programme of Action Steering Committee. The Child Justice Directorate of the Department was a sub-committee of this Committee. The Directorate feeds into the national structure.

Mr N Raju (DP-KZN) asked if there was medical attention available to awaiting trial prisoners. He referred to the case where a very sick child was seen at a prison in Port Elizabeth during a Departmental visit.

Ms Sewpaul replied that fortunately a magistrate had been a part of the visit. He had seen to it that the child got to court immediately and the child had received medical assistance.

Mr Dithebe asked if children received medical attention in secure care centres.

Ms Sewpaul said that the Department of Correctional Services (DCS) dealt with this. This is a complex issue, as children in these facilities tend to fall through the cracks, since standards for basic health are only enforced in prisons. These facilities should also adhere to basic health standards.

The Child Justice Project (UN technical assistance)
Ms Skelton read the section of the document dealing with this issue and then dealt with what the objectives of the project had been.
Objective one: Work was done to enhance the availability of the programme to support the child justice system. This was done via:
-the indaba's
-programmes with data collection and instruction manuals
-research
-a workshop on child sex offenders

Objective two: Assist government to develop and monitor systems and minimum standards regarding children deprived of their liberty. This was done via:
-inter-sectoral work
-protocol for the management of children
-developing data analysis methods
-collecting current minimum standards to analyse and recommend
-reform school

Objective three: Plan for the implementation of the Bill. This was done via:
-costing
-budget and implementation strategies
-workshop on service level agreements in the Child Justice System in May 2002
-secure care facilities and their need to comply with minimum standards

Objective four: raise awareness of the Child Justice System among criminal justice professionals and the public. This was done via:
-promotional materials
-presentations to magistrates and prosecutors
-practice manual
-workshop held with civil society and government on promoting informed debate regarding child justice

Objective five: develop a monitoring system for the child justice system
-held workshop on monitoring structures
-framework for collection and analysis of data is underway


Discussion
Mr Dithebe referred to a nine-week programme aimed at rehabilitating sex offenders. He asked what the success rate of such programmes was and whether it could be piloted around the country.

Ms Skelton referred to the 'Say Stop' programme, which is a six-week programme. Children who confess were sent to this programme and did not go to court. The success rate could not be judged, as a programme should run for at least five years before this was possible. However these programmes helped children to open up.

Ms Gandhi referred to the briefing by Molo Songololo, which addressed the issue of child trafficking. She asked if the Bill addressed this issue.

Ms Skelton said that this is covered in the Child Care Act.

The Chair asked how often the Department gets reports and statistics on children awaiting trial.

Ms Skelton replied that DCS provides monthly reports. These however have to be verified and therefore do not reach the Department immediately. Reports on specific prisons are available from those prisons immediately.

The Chair said that NGO's had strategies to influence their role-players and may sometimes exaggerate certain issues, e.g. the child trafficking issue. He asked if the Department was able to verify information from these groups.

Ms Skelton referred to the Child Justice Alliance, which was an organised group that conducted research and provided reliable information on their perspective of the issues. There is much inter-link between their work and that of government.

Children and Justice Project (Sida)
Ms L Holmqvist, project advisor, directorate: children & youth affairs read the section of the document dealing with the Children and Justice Project (Sida). This project included the use of one-stop Child Justice Centres. This was introduced in Port Elizabeth first and had just been introduced in Bloemfontein the previous day. There was a 24-hour police presence at these centres. There were also cells to house the children. These were very different to prison cells. Children also have access to magistrates and prosecutors. This indicated a shift towards integrated service delivery. There were plans to introduce a Centre in the Western Cape as well.

The project facilitates experience sharing. The advantages of the project are:
-Children are properly assessed
-Diversion is used
-Children are moved through the system swiftly

Partnerships have been developed with the Legal Aid Board in order to facilitate access to legal representation. Sida funds training for legal representatives to enable them to deal adequately with matters affecting children.

This project emphasised Restorative Justice in order to make the system more child sensitive. There was limited information on Restorative Justice in SA. Restorative Justice included reconciliation, restitution and responsibilities of children with the assistance of their families. Although it could be a diversion option, it was also becoming a sentencing alternative.

Discussion
Mr Dithebe said that although there was no authoritative literature on Restorative Justice, it did not mean that it was not part of SA law. Indigenous law emphasises conciliation rather than retribution. He asked if Indigenous law had been taken into account in the research.

Ms Holmqvist explained that the Directorate supported the development of material. Although the training on Restorative Justice thus far focuses on foreign material the Centre in Pretoria that had been established to deal with this issue was working toward incorporating indigenous law.

Mr Raju asked how successful the Restorative Justice has been thus far.

Ms Holmqvist replied that the Department was still gaining experience, as this was still a new concept.

Mr Raju asked how Restorative Justice could be applied to street children, since its implementation required family conferencing.

Ms B Mbamba, the Assistant Project Co-ordinator of the Directorate reded that the Secure Care Centre acted as guardian to the child, hereby making family group counselling possible.

Ms Gandhi asked if the Directorate had come across ways of dealing with the issue of refugee children, since it is not dealt with in legislation.

Ms Sewpaul answered that the United Nations Human Rights Commission had held talks with the Directorate on this issue. In March a national workshop had been held, at which all the country's Children's Court Commissioners were present. An expert from the University of Cape Town had addressed the workshop on this issue.

Programmes Developed to support the Child Justice System
Diversion Programme
Ms Mbambo explained that the Child Justice Bill proposes a wider use of programmes, especially community-based programmes aimed at diversion, as well as alternative sentencing. It promotes the use of community-based sentences, which allow children to remain in open society.

A National forum will provide the programmes needed. NICRO was the main option for diversion, but others are needed. Thus provincial indaba's were undertaken to ensure the availability of programmes enabling diversion. A database has been used to establish a profile of programmes and potential programmes. Even prosecutors have begun to use the diversion option. The Diversion programme could be used in schools where it could be used as a preventative mechanism. The programme also requires the development of a resource manual to increase the use and development of programmes. There were already people supervising and dealing with youth, e.g. at Church youth groups. These youth leaders can also be brought into the system.

Developmental Life Skills Programme
Many youth clubs were already involved in their own programmes, which were preventative in nature. They taught life skills and focus on issues such as decision-making, sexuality.

Peer Youth Mentorship Programme
This focuses on matching the child with a peer, youth or adult mentor. The mentor would serves as a role model, while guiding, befriending and advising the child.

Restorative Justice
Other programmes could also be used in a Restorative Justice setting such as life skills.

Victim/ Offender Mediation
Facing the victim of one's crime would force the person to reflect on the consequences of his/her actions.

Counselling, Therepeutic and Treatment Programmes
These are programmes that support children with specific emotional and behavioural needs.

Family-based programmes
Children are dealt with in the context of their families. It provided support to families and parents of the child. Intensive home-based supervision (house arrest) restores power to the parent.

Entrepeneurship Development Programme
Children are taught vocational skills.

School-based support programmes
Life skills are taught in schools. It could also include school-based mentoring. This could be used as a preventative mechanism.

Discussion
Ms Gandhi asked how the Directorate aimed to replicate these programmes. She asked if these programmes could be introduced at university in the training of social workers.

Ms Mbambo answered that there is a user-friendly resource manual, which could be used by universities. This is in fact happening already, but this should however be formalised.

Mr Dithebe asked if there was a programme in place to ensure networking to other 'service providers', such as Lovelife.

Ms Mbambo replied that the Directorate contacted these organisations. The database provided information on the programmes.

Mr Lucas asked if programmes were accredited.

Ms Skelton replied that the Department ensured that programmes were registered. Tight monitoring took place to ensure that it served its purpose. There would be penalties if duties were not performed.

The meeting was adjourned.

Appendix 1
Presentation To The Joint Monitoring Committee On The Improvement Of The Quality Of Life And Stautus Of Children, Youth And Disabled Persons- Department Of Justice And Constitutional Development
(By Ooshara Sewpaul)
Director
Directorate: Children and Youth Affairs
Department of Justice and Constitutional Development)

On behalf of the Director-General, we wish to thank the Joint Monitoring Committee for extending an invitation to the Department for a Briefing on the Child Justice Bill and its work in respect of the child justice system. The Directorate indicated telephonically to the Honorable Chairperson that at this stage the Department is not in a position to brief the Committee on the Child Justice Bill as it is still under scrutiny by the State Law Advisers. The Directorate will however facilitate a "mini workshop" on issues pertaining to child justice.

The Director-General: Justice and Constitutional Development established the Directorate: Children and Youth Affairs on 1 May 2000. The Directorate is responsible for facilitating the implementation of Section 28 of the South African Constitution, the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and other relevant human rights instruments pertaining to children in the Justice Sector. The Department of Justice and Constitutional Development is one of the key components of the National Programme of Action for Children in South Africa (NPA) chaired by the Presidency in South Africa. The Directorate represents the Department at the National Programme of Action for Children Steering Committee (NPASC) which seeks to create and build an environment where children are nurtured and can grow up to be the best they can be; and to develop a new culture where children can be given the priority they deserve in all walks of life: at home, at school and in the community.

• Integrate the rights of children and youth into mainstream activities of the Department by ensuring children's practical access to justice;
• Facilitate the implementation of Section 28 of the Constitution, the Convention on the Rights of the Child, the African Charter on the Rights and Welfare of the Child and other relevant human rights instruments pertaining to children, in so far as it has a bearing on the Department's line functions;
• Facilitate the transformation of a legal system that is child sensitive;
• Develop a policy on the management of children in the justice system;
• Monitor and facilitate the implementation of the National Plan of Action for Children;
• Integrate policy development through the facilitation of organisational change to ensure the implementation of existing and future departmental policies;
• Ensure that legislation on budget programmes, procedures and practices relating to service delivery is responsive to children's needs and concerns;
• Facilitate implementation on all legislation that affect children within the justice system;
• Contribute towards the development and implementation of a national and international agenda to promote the protection of children; and
• Facilitate relations between the Department and other State Departments, relevant constitutional bodies and civil society, including NGOs and CBOs.

The Directorate: Children and Youth Affairs has two international donor funded projects in the field of children and justice. The UN Child Justice Project and the Swedish Sida Children and Justice Project. The UN Child Justice Project is designated to provide technical assistance to the South African Government on the improvement of the functioning of the child justice system and therefore provides capacity to key state departments and NGOs. The Swedish Sida Children and Justice Project provides capacity directly to the Department of Justice as it is tasked with the implementation of envisaged legislation pertaining to children in areas that have an impact on the Department. It thus focuses on the justice sector, whereas the UN Child Justice Project is working directly with all relevant departments and with NGOs.

1. Motivating factors for establishment of the project

In June 1995, South Africa ratified the United Nations Convention on the Rights of the Child. The Constitution of South Africa Act was passed in 1996, containing a Bill of Rights with specific clauses relevant to the treatment of children accused of crimes. This created an international and constitutional law framework for the development of a new juvenile justice system in South Africa. In December 1996, the Minister of Justice appointed a project committee under the auspices of the South African Law Commission to draft a comprehensive new statute detailing procedures for children accused of crimes. The Minister also requested technical assistance from the United Nations for capacity building in the area of juvenile justice. The motivation for this was that although South Africa was well poised to develop policies and laws in this area, the issues relating to implementation would need to be well-supported. The field of juvenile justice is also dependent on an integrated, inter-sectoral approach between a number of key government departments and with non-governmental organisations providing services in this area.

2. The signing of the agreement and the setting up of the project

The project agreement was signed in 1999 by the parties, namely the South African Government, UNDP, UNOPS and CICP. The project is a United Nations technical assistance project of the Government of South Africa, with the Department of Justice and Constitutional Development being the government co-operating agency. The project is a three year project with a total budget of US$ 628 000. The major donor is the Swiss Development Co-operation, having donated US$ 528 000, with UNDP having contributed the balance of US$100 000.

The project is located in the Directorate: Children and Youth Affairs, Department of Justice and Constitutional Development. A project co-ordinator was appointed and the project commenced on 1 October 1999. The project now employs, in addition to the national co-ordinator, an assistant project co-ordinator and an administrative assistant.

3. Expected end of project situation

The project agreement reflects the following as the expected end-of-project situation:

"The new legislation on child justice will have been successfully implemented. It will be operated by trained personnel and will be supported by an integrated service delivery system, appropriate programmes and effective monitoring. The public, including children, will be well informed about the new system."

The target beneficiaries are those providing services to children accused of crimes; these include the personnel of the departments of Justice, Safety and Security, Social Development, Correctional Services and Education, as well as the non-governmental and community-based organisations working with these issues. The ultimate beneficiaries will be the children whose contact with the criminal justice system is less damaging and whose development as productive and law-abiding citizens is enhanced.

5. Development objective

The development objective is described as follows:

"To provide assistance to the South African Government for the implementation of a new children justice system in accordance with articles 37 and 40 of the Convention on the Rights of the Child and other relevant international instruments such as the UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the UN Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines) and the UN Rules for the Protection of Juveniles Deprived of their Liberty."

This project assists the Government and the non-governmental sector in the development of adequate responses to young offenders by (1) enhancing capacity and use of programmes for diversion and appropriate sentencing, (2) increasing protection of young people in detention, (3) strengthening the implementation of Child Justice legislation, (4) raising awareness among professionals in the criminal justice system and the general public of the transformation of child justice, and (5) establishing an independent monitoring process.

7. Critical incidents indicating the project's achievements during the first 18 months of operation.

The following are highlights of the project's achievements during the 18 months of operation:

• The draft Child Justice Bill was completed with assistance of the project for the Minister for Justice and Constitutional Development. An updated costing of the Child Justice Bill was commissioned by the project in order to provide background information to guide government budgeting processes relating to implementation of the Bill.
• The project has provided accurate information to government and non-government role players in order to ensure readiness for implementation of the proposed new law, and has played an inter-mediary role with the various departments' when preparing for the medium term expenditure framework.
• The project has succeeded in getting government departments to work co-operatively on issues related to planning for the implementation of the Child Justice Bill as well as on the monitoring of children in the criminal justice system.
• The project has made a critical intervention by co-ordinating government efforts to investigate the reasons for rising numbers of children being held in prison awaiting trial. A number of recommendations were formulated by government, and these have been accepted at the level of government Ministers and Directors-General. These efforts have contributed to a reduction in the number of children awaiting trial in prison from 2716 to 1989.
• The project has done substantial work on developing a data base of existing or potential programmes available to support the Child Justice system. A national Indaba involving both government and NGOs was organised by the project, which looked at the development of programmes as well as issues relating to minimum standards, funding and registration of such programmes.

The Project Capacity Building in the Field of Children and Justice is based on an agreement between the Government of Sweden, through Sida, and the Government of South Africa. The agreement was signed on 16 February 2001.

This Children and Justice Project is located in the Directorate: Children and Youth Affairs, Department of Justice and Constitutional Development. The Project commenced on 1 October 2000 and runs for three years, ending 30 September 2003. A Swedish Project Advisor is appointed to assist the Directorate in managing the implementation for the first two years.

Sweden supports the Children and Justice Project within an amount of ten million Swedish kronor (SEK 10 000 000), which is around ten million Rand (R10 000 000).

The overall objective of the programme is to alleviate the problems experienced within the criminal justice system in respect of children in such a way so as to ensure that there is no further negative impact on children and the justice system. It is envisaged that this project will contribute to a transformed integrated service delivery system based upon the Constitution of the Republic of South Africa and relevant international human rights instruments.

The purpose of the Project is to provide assistance to the Department of Justice and Constitutional Development on the improvement of the criminal justice system in relation to children's issues and to develop adequate responses to young offenders with a view to ensuring that the principles of the best interests of the child is protected.

The Sida Project provides capacity to the Department of Justice in particular and is tasked with supporting the implementation of envisaged child justice legislation in areas that have an impact on the Department of Justice. The efforts made are sustained by empowering and enhancing the capacity of the officials engaged in the implementation of the Project.

The Children and Justice Project also identifies practical aspects of enhancing capacity and use of diversion, for example the piloting of the Preliminary Inquiry (as envisaged by the South African Law Commission) and the replication of the One-Stop Child Justice Centre Stepping Stones in Port Elizabeth to other important and problematic regions. The Project facilitates the developing of national inter-sectoral guidelines for the One-Stop Child Justice Centres.

As the Project focuses on enhancing capacity in the justice sector, there is an effort on training of the magistracy, the prosecutorial service and other court officials. Raising awareness amongst these role-players on child rights includes training on child development, building on communication skills with children etc, and experience sharing with Sweden. A training manual will be developed in this regard. The main objective of these activities is to engender and support a spirit of child rights in the legal system. The experience sharing seminars held in the clusters are conducted in an integrated way with magistrates and prosecutors participating as well as representatives of the other role-players.

The Children and Justice Project assists in ensuring that children receive legal representation and assistance. In this respect, legal aid guidelines and policy on the prioritisation of children are developed. The Directorate: Children and Youth Affairs has established a partnership with the Legal Aid Board and has held an initial Training Workshop on Legal Representation for Children for legal practitioners from all the Justice Centres in the country.

The Project supports efforts made by the UN Child Justice Project to establish and implement an effective monitoring and evaluation mechanism for child justice.

The Project has identified out-reach campaigns aiming at sensitising on the developments in the Justice System around children's issues. The Children and Justice Project assists in developing legal material for children and families. One example of the activities is that a simplified version of the Convention on the Rights of the Child has been produced for children.

The project outputs are, in short:

• A legal system that is sensitive and responsive to the needs of children, while being effective;
• Children not being absorbed into the criminal justice system but diverted into suitable diversion programmes;
• Children receiving legal representation and assistance, as required by the Constitution and the Convention on the Rights of the Child;
• An effective monitoring and evaluation mechanism on children in the Justice System; and
• A transformed and integrated service delivery to children in the Justice System.

The Directorate: Children and Youth Affairs in the National Department of Justice and Constitutional Development co-ordinates an Inter-sectoral Committee on Child Justice. The Committee is made up of representatives from the Departments of Justice, Social Development, Correctional Services, Education as well as the South African Police Service. The National Prosecuting Authority is also represented. This Committee was formed in the year 2000 in response to concerns about children awaiting trial in prison. The Committee monitors the numbers of children in prison awaiting trial and has undertaken specific interventions as and when necessary.

During 2000 it became apparent that the numbers of children awaiting trial in prison were steadily rising, and in April they had reached an all-time high of 2716. An inter-sectoral team was set up to gather information and make recommendations for specific intervention. The team was led by the Department of Justice and was made up of representatives from the departments of Justice, The NDPP's office, Social Development, Correctional Services, Safety and Security. The four provinces with the highest numbers of children awaiting trial were visited, namely; Kwa Zulu Natal, Eastern Cape, Western Cape and Gauteng. A set of recommendations was drawn up which have formed the basis of an ongoing monitoring process regarding children in prison awaiting trial. The recommendations were approved by key line function Ministers.

Following on the recommendations of the inter-sectoral team, an Inter-sectoral Protocol for the Management of Children Awaiting Trial was launched at a special session of parliament to mark the International Day of the Child, 1 June, in 2001. Minister of Justice, Penuell Maduna said in his speech that "Although a new law to deal with child offenders is in the pipe-line, legislation on its own will never solve these problems which are systemic. It is thus necessary to develop a sustainable model for monitoring and intervention."

• effective inter-sectoral management of children who are charged with offences and who may need to be placed in a residential facility to await trial
• appropriate placement of each child based on an individual assessment
• correct use of the different residential options available
• the flow of information between the residential facilities and the courts
• that managers of facilities are assisted to keep the numbers in facilities manageable
• that communities are made safer through appropriate placement of children, effective management of facilities and minimisation of abscondment
• that the situation of children in custody is effectively monitored
• that appropriate procedures are established to facilitate the implementation of the proposed new legislation, once it has been passed by parliament.

The Directorate and the other departments distributed 8 000 copies of the Protocol nationwide during 2001. Questionnaires have been developed and sent out to the relevant role-players to assist in evaluating the efficacy of the Protocol in the child justice system. Responses from magistrates and prosecutors are currently being evaluated by the Department.

Following on the investigation, the numbers were reduced during the year 2000 from 2716 children awaiting trial in prison to below 2000 children. Inter-sectoral monitoring and management of the issue during 2001 saw the figure remain constant at around the 2000 children mark. However, figures for the last three months of 2001 show a disturbing upward trend, with 2260 children in prison awaiting trial in December 2001.

The four provinces that have struggled most with the issue of children in prison awaiting trial are Gauteng, Kwa Zulu Natal, Eastern Cape and Western Cape. Since June 2000, however, both Gauteng and the Western Cape have managed to turn things around, reflecting a drop on numbers of imprisoned children. Eastern Cape and KwaZulu- Natal continue to struggle, with Durban showing an alarming upward trend. There has been considerable support and intervention in the city, including the setting of two additional dedicated courts to deal with the backlogs in juvenile cases, but the intake of new cases is rising, and despite efforts on the ground, the picture is not really improving. In March 2002 the number of children in Westville prison alone is hovering around the 700 mark - almost one third of the national total.

In an effort to improve the situation in Kwa Zulu-Natal, a meeting was held with the Director for Public Prosecutions where a number of options was explored. The situation of children in prison in KwaZulu- Natal has been a matter of concern to the Inter-sectoral Committee from the outset, and the Committee has visited Durban and met with officials on more than one occasion. Two additional courts were set up to deal with the backlog. Nevertheless, the number of children in KwaZulu- Natal (the majority of whom are in Westville Prison) continues to be cause for alarm. See graph for a provincial comparison of children awaiting trial in prison. Almost one third of the country's children awaiting trial are in prisons in KwaZulu- Natal. This province does not, however, have the highest number of arrests in the country. The highest number of arrests of children, according to statistics provided by SAPS, are in the Western Cape, followed by Gauteng, followed by KwaZulu- Natal. See graph attached.

A summary of the causes that have been determined through discussions with the main stake-holders is as follows:

• The majority of children in the Westville prison are awaiting trial on regional court matters. The awaiting trial periods for these cases are long, thus children are not moving out of the system, whilst others are coming in.
• With regard to the district court cases, there may be some incorrect placements where children charged with offences that are not included in schedule 2 of the Correctional Services Act.
• There is a lack of alternative facilities. The Excelsior secure place of safety can take approximately 70 children, and is usually fully occupied. The provincial department of Welfare has plans to up-grade Valley View Place of Safety, but this will only add a further 40 beds.

The problem requires a multi-pronged approach, involving the Directorate of Public Prosecution, the Department of Justice, the Department of Correctional Services, SAPS and probation services.

• Case Review Team

At previous meetings with stake holders it has been agreed that a case-review team approach should be used to identify children whose cases could be dealt with by the additional court that had been set up. This was done, and the additional court has managed to finalise between 20 and 30 cases per month. However, the case review team is no longer functioning. Consideration should be given to restarting a case review team. Such a team could assist in identifying children suitable to be dealt with in terms of the measures set out below.

• Application of section 63A of the Criminal Procedure Act 51 of 1977

This section, promulgated in December 2001, makes provision for the release of accused persons from prison (or amendment of their bail conditions) on account of prison conditions such as over-crowding. The Head of the Prison is empowered to make application to the court which determined bail and request:

-reduction of bail

-placement of the accused under the supervision of a correctional official in terms of Section 62(f) of the CPA

-the release of the accused on warning.

Identification of suitable candidates for an application by the prison head is dependent on bail having been set, and the offence being listed in schedule 7 to CPA.

The conditions in Westville prison (in the section where the children are being held) are deemed to be such that the Head of the Prison can make the application. A perusal of the current inmate lists provided by Westville prison indicate 24 children in respect of whom such an application could be made.

• Identification of children who wish to plead guilty

There may be numerous children in Westville prison who wish to plead guilty. In order to establish this in a way that is in keeping with the children's due process rights, a legal representative should interview the child to establish whether he in fact does admit the charge or charges against him. One possible stumbling block to this is the fact that the Justice Centre in Durban is very over-stretched. If they are unable to free up legal representatives who could go to the prison and carry out these interviews, other possibilities could be considered such as the involvement of the University legal aid clinics, lawyers employed by non governmental organizations, or attorneys offering their services on a voluntary basis.

• Community-based alternatives to imprisonment

In terms of section 71 of the Criminal Procedure Act, a child may be released under the supervision of either a probation officer or a correctional official. This legislation (brought about by an amendment in to the CPA) has been existence since 1991, but is rarely utilized. In the Western Cape, a highly successful programme has been utilized in which children are placed under "house arrest" and are then regularly visited by an assistant probation officer. The children continue to attend school or work, but must be home at all other times. There have been very few abscondments, and the courts have in fact been using this programme in relatively serious offences. The probation services co-ordinator in Durban has expressed interest in establishing such programme in Durban. In addition to such a programme, consideration could be given to such programmes also being run by correctional officials (employed by Correctional Services) in the Durban region.

The meeting resolved that the Senior Public Prosecutor at Durban Magistrate's Court will prepare a Business Plan taking into account the above-mentioned possible solutions.

The Child Justice Bill is currently under scrutiny by the State Law Advisers and will be introduced in Parliament by the end of June 2002 (Youth Month). Once introduced, the Director-General of the Department of Justice and Constitutional Development will brief the Portfolio Committee on Justice on the contents of the Bill and present the Implementation Strategy for the Bill.

The Directorate of Children and Youth Affairs has co-ordinated an inter-sectoral forum dealing with child justice issues, called the Inter-Sectoral Committee for Child Justice. This committee has done extensive integrated planning towards the effective implementation of the Child Justice Bill.

The process of planning for the implementation of the Child Justice Bill has been very innovative and should serve as a model for every piece of legislation that comes before Cabinet and Parliament. Firstly, the planning and budgeting process started early in the process of law-making. Each decision made during the drafting and development phase was costed and weighed in terms of cost implication and cost benefit. The Bill was the first one ever to be costed whilst still in development at the South African Law Commission.

When the Bill was placed before Cabinet, it was accompanied by an implementation strategy framework. This document provided a gap analysis, and an indication of what each of the relevant government departments will need to do between now and when the Bill is put into operation in order to allow for smooth implementation.

The next step of the planning process looked at what the expected expenditure would be for the first three years of the Bill's operation. Assisted by an economist, whose services have been contracted by the Child Justice Project, the Departments have embarked on a detailed implementation strategy and budget, linked to the Medium Term Expenditure Framework.

A spread sheet has been prepared that includes the current budgetary allocations relating to children who are moving through the criminal justice process. It then runs a comparative analysis of the new activities required by the Child Justice Bill. Budgets to cover these new activities are then set out under the headings of "reprioritised funds" and "new funds" with columns showing the first three year cycle of the life of the new system. This allows for a phased and incremental approach to allocations for new requirements, although there are obviously certain fundamentals that will be required for effective implementation. For the system to work, these requirements must be made available from the initial date of implementation.

In addition, donor funds are also specified in a separate column, to clearly indicate where donor funding has already been earmarked for use in relation to certain activities such as training and monitoring. This column is also useful because it shows the participating departments when the functions covered by donors have to be integrated into the relevant institutional budgets of each Department.

All of the participating Departments are in the process of completing their own spread-sheets - each using an identical template. The Department of Social Development, being a provincial competency, has engaged all nine provinces in this process. The end result will be a planning instrument that will provide a complete financial and planning picture at any point of the implementation process. This overall picture of the entire child justice system can, at any point of the implementation process, be broken down into cross-sectoral phases or into individual department components that fold out over a time continuum.

Appendix 2
Highlights of work undertaken by the Children and Justice Project (Swedish International Development Cooperation Agency, Sida)

(By Lena Holmqvist

Project Advisor

Sida Children and Justice Project)

As has been described to you, the Directorate: Children and Youth Affairs has two international donor funded projects in the field of children and justice. The UN Child Justice Project and the Swedish Sida Children and Justice Project were at some stage developed side by side and much effort was put into ensuring that the projects are not duplicating or overlapping each other. Instead they support, strengthen and compliment each other. To take one example, Ann Skelton has mentioned the objective to develop a monitoring system or mechanism. One of the objectives of the other Project is then to support the implementation of this system.

This Children and Justice Project provides capacity directly to the Department of Justice and Constitutional Development as it is tasked with the implementation of envisaged legislation pertaining to children in areas that have an impact on this Department. It thus focuses on enhancing capacity in the justice sector.

We are here to talk about children's issues, and especially criminal justice issues, and not the projects as such, but please let me tell you very short about the background. When the Swedish Minister for Justice Laila Freivald visited her South African colleague then Minister Dullah Omar, they decided that Sweden would support two areas, one being para-legals, and the other one child justice and the Department of Justice.

The capacity building Children and Justice Project is focusing some specified areas, and I will give you some examples since the objectives are listed in the first presentation already given.

The Inter-Ministerial Committee on Young People at Risk (IMC) pilot project Stepping Stones, the first One-Stop Youth Justice Centre, in Port Elizabeth is sustained. The One-Stop Child Justice Centre Mangaung in Bloemfontein opened yesterday, 18 June 2002. The date was chosen to celebrate Youth Day (16 June). The Mangaung Centre has 24 hours police service, offices for probation officers, magistrate and prosecutor, a court room and holding cells. Residential facilities will soon follow. The official opening was a remarkable event and now South Africa has two One-Stop Child Justice Centres. We are hoping that such Centers, with centralised services for children accused of crimes, will be established in more places.

It is a cost-effective way to protect the children and to ensure adequate integrated service delivery to them, by the departments of Safety and Security, Social Development, Correctional Services, and Justice and Constitutional Development with the National Prosecuting Authority (NPA), and by the Legal Aid Board (LAB).

We know that people are preparing and planning for Centres in various parts of the country in an inter-sectoral manner. In some places, it may be that a Reception, Assessment and Referral Centre (RAR) develop into a One-Stop Child Justice Centre. The Inter-Sectoral Committee on Child Justice, mentioned by earlier speakers, is developing a Framework for the establishment and running of Centres, as one way to support the process. The Children and Justice Project initiated an evaluation of the Stepping Stones, which was done by the CSIR Crime Prevention Centre. What a project like this can do is to facilitate experience sharing meetings and to provide training opportunities.

The experience we have of One-Stop Child Justice Centres show us that one result is that children are properly assessed, and another is an extended use of diversion programmes and children are not being absorbed into the criminal justice system. It is a speedier and more efficient way of ensuring that children move through the system swiftly and in accordance with South African and international law.

The Directorate: Children and Youth Affairs has established a partnership with the Legal Aid Board (LAB). As you know, the Board has been transformed during the last years. Since Sida was supporting this transformation process, it seemed logical for Sida to continue to fund training for the legal practitioners.

The first much appreciated training workshop on legal representation for children, addressing the growing number of Justice Centres, took place in the Child Protection Week last year, and the second one will follow later this year. In May last year, 24 Justice Centres were operating. Now they are 31, and 7 more are scheduled to be launched this year. This development shows a hefty shift from Judicare.

The Law Clinic of the University of Western Cape facilitated the first training workshop. We hope to repeat the successful co-operation, but also to have Swedish colleagues participating and sharing their experience.

Specialised training for legal practitioners at the Justice Centres was identified as a priority, but we are also discussing other ways, including developing a practice manual, to ensure improved legal representation for and assistance to children, as required by the Constitution and the Convention on the Rights of the Child (CRC).

Since one of the components of transforming the juvenile justice system into an effective and child sensitive child justice system is restorative justice, but there is limited South African material available, we have initiated to have training and information material on restorative justice developed by the Restorative Justice Centre (RJC). Restorative justice is the promotion of reconciliation, restitution and responsibility through the involvement of the child, the child's parents, family members, victims and communities - within a framework of minimum standards (mentioned earlier). Restorative justice programmes, for instance family group conferencing and victim offender mediation, are a diversion option, but may also be a sentencing alternative. Buyi Mbambo will soon tell you more about the programmes. A video and a book will contribute to improving understanding and awareness, and thus support training, but may also serve information purposes.

To show that the relevant departments are working in the same direction, guided by the same principles, I remind you that in November 2001, the Department of Correctional Services launched restorative justice as its strategy. SAPS is putting greater emphasis on crime prevention that can draw on the philosophy of restorative justice. The Department of Social Development is promoting family group conferencing.

One major part of the Children and Justice Project is training and experience sharing. Thus Ooshara Sewpaul made reference to this funding when she described implementation and budget planning.

To give another example of what the Project has achieved as part of the Outreach Sub-programme, we have brought you copies of a book the Directorate: Children and Youth Affairs has developed. This colourful version of the Convention on the Rights of the Child, the CRC, is written for children. It starts "This Convention is for the children of the world. It is your Convention…" Each article has got one page, with a picture and an activity giving ideas on things to talk about and do. The Minister and Deputy Minister for Justice and Constitutional Development have written a text for children, as well as the Director-General for Justice and Constitutional Development and the National Director for Public Prosecutions. After the special event in Parliament when the CRC written for children was launched on 1 June last year, the International Day of the Child, the Minister for Education has also contributed with a message addressing the children.

We are now printing more copies of this English version to send to schools. At the same time, we are discussing to translate it into other languages and Braille. Unicef has also printed the book and is distributing it. Let me finally borrow a sentence from the foreword by the ministers. It starts with serious words about children's rights and the respect for rights, and ends with "And make sure you have a lot of fun at the same time!"

Appendix 3
Programmes To Support The New Child Justice System In The Areas Of Diversion And Alternative Sentencing In South Africa

(By Buyi Mbambo

Assistant Project Coordinator

United Nations Child Justice Project)

Central to the success of the new child justice system, is the wider use of programmes, especially community-based programmes for diversion and alternative sentencing. The Child Justice Bill proposes that children accused of crimes be diverted from the criminal justice system to community-based non-custodial programmes as much as possible. Further, it promotes the use of community-based sentences, which allow children to remain in the open community.

According to the Child Justice Bill, diversion has the following purposes:

1. Encourage the child to be accountable for the harm caused;
2. Meet the particular needs of the individual child;
3. Promote the integration of the child into the family and the community;
4. Provide an opportunity to those affected by the harm to express their views on its impact on them;
5. Encourage the rendering to the victim of some symbolic benefit or the delivery of some object as compensation for the harm;
6. Promote reconciliation between the child and the person or persons or community affected by the harm caused;
7. Prevent stigmatising the child and prevent adverse consequences flowing from being subject to the criminal justice system; and
8. Prevent the child from having a criminal record.

The Bill further sets out a range of diversion options, including less intense interventions that can be implemented through a range of orders issued. Examples of orders include compulsory school attendance orders, family time orders, placement under guidance or supervision and a compulsory school attendance order. These orders are meant to encourage positive behaviour in children and are meant amongst other things to support parents in their parenting and guidance functions. Even though these orders may look uncomplicated, they are serious and serve a serious function. There has to be an individual in the family, community or a community-based organisation or a community leader to supervise the implementation of these orders.

Other diversion options are more intense. They include, for instance, compulsory attendance at a specified centre or place for specified vocational training, performance of duties without remuneration for the benefit of the community under the supervision of an individual or an institution. Referral to a Family Group Conference or a Victim Offender Mediation programme is also an option.

More intense diversion options include referral to a programme with a residential component, performance of duties without remuneration and referral to counseling or therapeutic intervention.

As is evident from the above brief exposition, the new system is designed to cater for the majority of children who have committed crimes and offers an innovative way of dealing with them based on appropriate assessment by the Probation Officer. Diversion through these different levels is meant to address the individual needs of each particular child who enters the system. In preparing for the implementation of this new system, it is important therefore to ensure that there are adequate programmes to service the system adequately, there has to be wider availability of programmes as well as equitable access to programmes at different levels in different localities.

The UN Child Justice Project has as one of its objectives the enhancement of the capacity and use of programmes for diversion and alternative sentencing of children. The work the Project has been doing towards fulfilling this objective has been to conduct an audit of available diversion programmes in the country. We are also looking beyond currently available diversion programmes by identifying other good practice youth development programmes, which have the potential to offer diversion albeit with some adjustments and strengthening.

It is estimated that approximately 10 500 children were diverted to NICRO's community-based programmes during the financial year 2000. During the same period, approximately 4 000 children were diverted to programmes run by Probation and Assistant Probation Officers employed by different provincial Departments of Social Development throughout the country. However once diversion becomes part of the new legislation, the implications are that the system will require availability of programmes to be used for diversion and alternative sentencing more than are currently available. This means that more creative and innovative programmes should be identified, designed and strengthened to support the system. Programmes should be seen and used in a holistic sense - as prevention, early intervention, diversion, alternative sentencing as well as for reintegration into family and community.

Through the audit the following categories of programmes have been identified:

1. Developmental Life Skills Programmes

Programmes in this category include a wide range of life skills education covering topics such as personal awareness and growth, communication skills, conflict resolution and effective mediation, sexuality, crime awareness and crime prevention, gender sensitivity, leadership development, family life and many more. What is important is that at every community there is some form of life skills education for children or youth that goes on. It is common to find youth clubs as well as church-based youth groups running such programmes. Many life skills programmes are packaged in the form of a "course" that goes on for a specified number of hours or days. These vary from one programme to the other.

The interesting thing about these programmes is that they are usually offered in conjunction with other activities such as music, drama and different forms of sport. Therefore developmental life skills offer children a range of creative developmental opportunities over a period of time. They also give children a sense of belonging and attachment to the community, since the life skills facilitators or leaders end up forming strong relationships with children over a period of time.

2. Peer/ Youth Mentorship

These programmes make use of peer, youth and adult Mentors from the community. Some programmes refer to these Mentors as Youth Leaders. Basically Mentors are assigned to a child or a young person and they develop a unique relationship with them. They offer guidance, they play the role of big brother or big sister, and they offer friendship to the child. They also help the child negotiate his or her way in the school and with other systems such as the family. In most programmes Mentors have an accountability function, reporting back to the programme manager on the progress of the child. A few programmes we have come across use Mentors to also run life skills programmes and facilitate Family Group Conferences. Some Mentors have been especially trained in counseling skills and they offer a range of services to children. What is important here is the nature of the relationship between the Mentor and the child. It should be a flexible and easygoing relationship that can also turn formal if there is a need. It depends on the needs of the child. These models also enhance the fact that peers have an important role, children learn more from their peers than from adults.

 

3. Wilderness /Adventure Therapy programmes

These programmes offer education, leadership and even therapeutic support through outdoor experiential education. Currently only a few organisations running such programmes are recognised and utilised by courts. However the audit has found that there are a few other such programmes run by NGOs that target youth mostly as prevention programmes. The use of adventure journeys also varies depending on the nature of the organisation. Some organisations offer short journey over a few days, which would correspond with lower levels of diversion. However, some organisations have structured intense adventure programmes.

4. Vocational Skills training and entrepreneurship programmes

These programmes offer vocational skills training in skills such as computers, hairdressing, arts and crafts, motor mechanics, catering, bookkeeping and basic office maintenance, to mention a few. It should be noted that many of these programmes target youth, especially unemployed and out-of-school youth older than 18 years. Assistance with obtaining employment or starting their own businesses is also provided as a follow up to training. Many such programmes can be adapted to serve children of 14 years to 18 years. These programmes are also available in both urban and rural areas in different parts of the country.

5. Restorative Justice programmes

Restorative Justice programmes include Family Group Conferencing (FGC) and Victim Offender Mediation (VOM) types of processes. Only a few of these exist in limited parts of the country. There is a challenge to develop a range of these. Interestingly though, we must mention the fact that courts are beginning to recognise FGC and VOM and there are NGOs which have succeeded in delivering quality restorative justice programmes. This field needs to be developed and strengthened further.

6. Counseling/ therapeutic and treatment programmes

Many children who commit crimes have behavioural problems as well. They need intensive counseling. Some children abuse substances to the extent that no programme can effectively help them unless substance abuse treatment is offered. Another area in which children need intensive therapy and treatment is when they have committed sexual offences. Some children need serious mental health services to address emotional and behavioural problems they face. There is a need to develop more programmes in this category especially for children. Most existing programmes serve adults at the moment. Children in rural areas especially have little or no access to such services.

7. Specialised Family-based programmes

This is a special category of programmes that are family based. The child is either placed back into his or her family with the condition that specific support services are rendered to the child and the family. Such services are referred to as Intensive Family support services or Family Preservation services. Intensive Family Support Services are intense in nature and operate according to certain principles in line with the family preservation movement. They are also of specific time limited duration. The way they work if they are used to support the child justice system is that after an assessment a recommendation to place the child under intensive family support services is made. The Family Support personnel then have a responsibility to report to court the progress the child and the family is making.

Another interesting type of family-based programme is a specialised form of foster placement, Professional Foster Care. This is a special temporary placement for children with serious behavioural and emotional challenges who need to be placed in families, but whose own families are not in a position to handle them. As a diversion option, the child is placed with Professional Foster Parents who are specially trained in childcare strategies (as professional parents). A range of services is offered to the child. The idea is that these "professional parents" have competencies to deal with the challenges presented by the child and are in a position to supervise some of the court orders in a way a professional would do. Professional Foster Parents also receive ongoing training and support whilst the child is in their care. Family-based support services need to be replicated and be available to courts, as they would also relieve places of care to which children are sent to in the absence of strong family support initiatives. Available models are proving to be highly effective and can be used with success to support the child justice system.

8. Combination Programmes

These are programmes that are structured in a way that they combine different categories as part of one comprehensive programme. For example the child may be exposed to life skills programme, FGC, Mentorship, vocational skills training, family support for children and adventure therapy. Some organisations have managed to successfully package their programme in a way that provides an enriching experience to the child. Such programmes should however be used with caution and care must be taken not to overload the child. Also, referral to such programmes should be based on the needs of the child.

9. Other Creative Programmes

1. The need for registration of programmes

For effective delivery of programmes and evaluation of the impact thereof, there is a need to ensure that all programmes for diversion and alternative sentencing are registered and that they adhere to prescribed minimum standards as set out by the relevant and responsible department.

2. Monitoring and Quality Control

It is important to note that developing a diversion option does not necessarily require a complicated infrastructure or a massive injection of resources. Indeed there are certain specialised programmes that require such resources but a lot of options can be developed and implemented with limited resources. The notion that when there is no formally registered organisation to render a programme then it means that diversion cannot take place in that particular community is actually a myth. There is no community that has no resources. Each community has inherent strengths which can be tapped into for the provision of diversion services and other services for the child justice system. It is possible to develop a good community-based option "out-of-nothing" by using the existing strengths, capacities and local wisdom and culture. Young people are in fact one inherent strength that needs to be tapped on and utilised positively for the child justice system. Therefore diversion can take place in every community even in the most economically deprived communities. Community service is a good example of diversion that builds on the strengths of the community and enables children to contribute positively to uplifting the lives of members of the community.

What is important for any service provider in the child justice system is to ensure that:

• The nature of the programme is clearly defined - the courts need to know what will be happening to children when they have been referred to the programme, for how long and whether the programme will meet the identified needs of the child.
• Accountability - the courts need regular feedback since diversion is based on a formal agreement or contract between the child, the court and the programme.
• Programme credibility and a good track record ensure that the court as well as the community has faith in the programme.