ORAL SUBMISSION TO PORTFOLIO COMMITTEE ON JUSTICE
6 FEBRUARY 2008
Community Law Centre, Daksha Kassan and Jacqui Gallinetti
1. Thank
you for this opportunity. I am Daksha
Kassan from the Children’s Rights Project of the Community Law Centre, which is
a human rights research institute based at the University of the
2. Our
submission addresses 2 specific issues .
3. The
first being the detention of children under the age of 14 years in prison either awaiting trial or as sentenced children and
the second being the use of children by adults in the commission of crime which
was briefly alluded to yesterday by the Dept of Justice.
4.
Detention
of children under the age of 14 years in prison:
5. With
regard to the detention of children, we
wish to point out that international law (for example the CRC (art 37 (b) and UN
Rules relating the Administration of Juvenile Justice as well as the rules for
the protection of juveniles deprives of their liberty) as well as our Constitution in section
28(1)(g) is clear that the detention of children, as we constantly heard during
the deliberations yesterday, should only be as a measure of last resort and
only for the shortest appropriate period of time.
6. However,
international law also specifically places a strong emphasis on restricting the
USE of IMPRISONMENT for children and this is reflected in article 37(b) of the
CRC as well as in the UN Rules for the protection of juveniles deprived of
their
Children should not be in
correctional centres and should as far as is possible be diverted from the
criminal justice system. Where this is
not an option, they should be accommodated in secure care facilities that are
designed for children, and that
Children under the age of 14 years have no
place in correctional centres.
Diversion, alternative sentences and alternative detention centres run
by the Department of Education and Department of Social Development should be
utilized for the correction of such children.
Now this
submission, as I stated earlier,
specifically addresses the detention of children under the age of 14 years in prison either awaiting
trial or as sentenced children.
7. With
regard to the detention of children
under the age of 14 years in prison awaiting trial, the present law, in the form of section 29 of
the Correctional Services Amendment Act (Act
14 of 1996) – which has not been repealed by the new Correctional
Services Act of 1998 – prohibits the
detention of children awaiting trial in
prison who are under the age of 14 years.
This provision, following an initial amendment in 1994 that prohibited
the pre-trial detention in prison of all children, was enacted in the mid-1990’s when the
situation of children in prison was under intense focus, and prisons were seen
as unsuitable for children and rather more humane welfare institutions such as
places of safety and secure care facilities were envisaged for children who
required secure care whilst awaiting trial.
8. It should be noted that the 2002 version of
the Child Justice Bill, prohibited the pre-trial detention of children under 14
years in prison . This approach confirmed the current law contained in section 29 of the
Correctional Services Act, reiterated the principle of detention as a measure of
last resort and also that prison is not suitable for children and was in line
with the Department of Correctional Services White Paper that children under
the age of 14 years have no place in a correctional centre.
9. It is thus of great concern that the
current version of the Bill, in clause 30(2) allows for
children under the age of 14 years charged with certain offences (ie offences
listed in part 1 and part 2 of schedule 3 – murder, rape, treason) to be held
in prison awaiting trial. We submit that
this is a retrogressive as our present law in section 29 of the Correctional
Services Act forbids all children under the age of 14 years to be held in
prison awaiting trial irrespective of the offence allegedly committed.
10. Further,
it must be noted that this category of children, aged 10, 11, 12 and 13 are
rebuttably presumed to lack criminal capacity and so to place them in prison
awaiting trial exposes these most vulnerable children, as they may not be found
to be criminally responsible, to inappropriate and dangerous detention.
11. We thus
submit that it is NOT in the best interests of children under 14 years to be
held in prison awaiting trial and that if need be they should instead be
detained in places of safety or secure care facilities (soon to be renamed
Child and Youth Care Centres in terms of the Children’s Act 38 of 2005) given :
-
Their young age
-
the fact that they are rebuttably
presumed to lack criminal capacity;
-
the prevailing law and policy to
exclude such children from detention in prison awaiting trial – to allow such
detention would be a retrogressive step
-
the fact that the Department of
Correctional Services does not offer educational services to children awaiting
trial and under 14 year olds are still subject to mandatory schooling in terms
of the Schools Act; and
-
The fact that recent statistics
revealed yesterday by the CSPRI reflected 560 bed spaces were available in secure
care centres and places of safety, so therefore capacity to detain children in
these facilities is not a problem.
12.
We therefore submit that clause 30(2) be
removed from the Bill and that clause 30(1) be redrafted to state that only
children 14 years and above can be detained in prison awaiting trial.
13.
With regard to the
sentencing of children under 14 years to prison, the 2002 version of the Bill in clause
69(1)(a) recognised the vulnerability of young children and that imprisonment
is not an appropriate sentence for children below 14 years, thereby prohibiting
imprisonment as a sentence for such children.
14.
This approach is supported by certain research, data and
international trends.
15.
For example, a study was undertaken during the period
1995-1999 to analyse the perceptions amongst criminal magistrates regarding
juvenile offending had some interesting observations in relation to children
under 14 years of age, sentencing generally and imprisonment.[1]
These observations inter alia included:
·
Children under the age of 14 rarely appear in criminal
courts and the courts employ various procedures and strategies to keep them out
of the criminal justice system
·
Matters where a prosecution of a child aged below 14 occurs
are extremely rare and were described as “ hard cases”, “exceptions” or
unavoidable matters”
·
The general approach of magistrates appears to be to try keep
these juveniles out of prison
16.
Additionally, we submit that at present
17. Furthermore,
recent statistics, dated 31 July 2007, furnished by the Office of the
Inspecting Judge of Prisons to the Civil Society Prison Reform Initiative
indicated that 3 male children under 14
years were serving prison sentences at 31 July 2007 (2 for economic offences
and 1 for a sexual offence). Though this indicates that imprisonment of
children under the age of 14 years occurs rarely, this does not imply it is not
problematic. The principle should be that imprisonment is a last resort,
according to the Constitution, and children aged under 14 years should be
provided extra protection to ensure that this constitutional imperative is met.
18. Taken
with the presentation of CSPRI yesterday regarding the small percentage of
children sentenced to imprisonment under 16 years of age, we submit that it
appears that courts are in any event reluctant to send children to prison at
young ages. While we support CSPRI’s
submission that the minimum age of imprisonment be raised to 16 years, we
submit that at the very least the minimum age for admission to imprisonment
should be 14 years.
19. As far
as the concern of the Committee regarding young children who commit serious
offences and the need for them to be imprisoned as a sentence, we submit that
there are other sentences which are more suitable. For example, detention at a reform school or secure care facility
(which now under the Children’s Act can receive sentenced children). We also
wish to draw the Committee’s attention to the matter of DPP v P which Mr
Landers referred to yesterday. In that matter, a girl who at the time of the
commission of the offence (conspiracy to murder) was 12 years old. The sentencing
court and court of appeal used extremely innovative and restrictive conditions for
a suspended sentence that has resulted in the girl having completed her
sentence without any breaches of the conditions and reoffending.
20.
The 2007 version of the Bill has changed
the approach contained in the 2002 version by allowing children under 14 years
to be sentenced to prison . It is
submitted that this is neither in the best interests of children under 14 years
nor does it uphold the principle that imprisonment is a measure of last resort.
It is submitted that children under 14 years should not be sentenced to prison.
We submit that clause 78(1) of the Bill be amended a s
follows:
78. (1) (a) A child justice court, when sentencing a
child to imprisonment, must only do so as a measure of last resort.
(b) A sentence of imprisonment may not be
imposed unless –
(i) the child was over the age of 14 years at
the time of commission of the offence; and
(ii) substantial and compelling reasons exist
for imposing a sentence of imprisonment.
[1] Sloth-Nielsen, J and Mayer, V. Children
and criminal accountability: An analysis of judicial perceptions, 2001.