Child Justice Bill [49-2002]
Submission
to the Justice & Constitutional Development Portfolio Committee, National
Assembly, 31 January 2008
Introduction
The South African Human Rights Commission (SAHRC)
welcomes the Child Justice Bill. The
Bill contains many positive aspects which will bring
In spite of its general
appreciation of the Bill, SAHRC does have several concerns with the Bill, which
are detailed below. The SAHRC would
particularly like to emphasize its concerns relating to the diversion of sexual
offenders, the detention of children in police cells for longer than 48 hours,
and the provisions of the Bill exempting some children from assessments.
The
mandate of the SAHRC
The Constitution sets
out the functions of the SAHRC. Section 184(1) states:
“The South African Human
rights commission must-
(a)
Promote respect for human rights and a culture
of human rights;
(b)
Promote the protection, development and
attainment of human rights, and
(c) Monitor and assess the
observance of human rights in the Republic.”
It is within this
mandate that the SAHRC monitors the legislative process at a parliamentary and
government department level. Where necessary the Commission will respond to
requests for comments and submissions on proposed legislation, regulations, and
policies. In this instance, the SAHRC
writes to draw the attention of the Committee to several requirements relevant
to the treatment of children who come into contact with the justice system. These requirements are set forth in national
and international law.
1.
Diversion and restorative justice
Diversion
and restorative justice provisions are welcomed
The Commission warmly welcomes the diversion and
restorative justice provisions in the Bill.
Diversion and restorative justice have been mandated by the UN Committee
on the Rights of the Child as key elements in the creation of a child justice
system that emphasizes rehabilitation and operates in the best interests of the
child. Accordingly, the diversion
provisions in this Bill enhance
The Commission would like to emphasize that diversion
should not be viewed as a chance or a once off. The purpose of diversion is to
provide an appropriate response in order to prevent reoffending. Accordingly,
diversion must respond to the individual needs of the child. A range of
responses are necessary in order to meet each child’s individual needs. Additionally, diversion programs should be
structured to promote accountability of children.
Diversion should not be treated as part of a criminal
record and used in future criminal matters at sentencing (clause 53). This is required for internal consistency, as
clause 52(j) lists preventing the child from having a criminal record as one of
the objectives of diversion. It is also
consistent with the recommendations of the UN Committee on the Rights of the
Child.[1]
The Bill should be modified to state clearly that a
child can be diverted more than once.
This makes particular sense as a child may commit two very different
crimes for very different reasons, and it will be in the best interests of the
child to divert in both cases. Likewise,
the state could send a child to a diversion program that is not the best fit,
and another attempt might be needed to rehabilitate the child through a more
appropriate diversion program.
Clause 57
– Diversion of certain sexual offences cases by child below 14 years is in conflict
with the constitution, international law, and domestic legislation.
The SAHRC is strongly concerned by the provisions in
clause 57 that limit the prosecutor’s authority to pursue diversion for
children who commit certain sexual offences. This provision violates the
Constitution and best practices of child justice as set forth in international
law. It also amounts to an amendment of
the National Prosecuting Authority Act 32 of 1998.
Firstly, it is not constitutionally permissible to
prescribe that a prosecutor cannot exercise the option of diversion when
exercising her or his prosecutorial prerogative. Section 179(2) of the
Constitution grants the prosecutorial authority to prosecutors, including the authority
to determine when to divert a case.[2] Thus, legislation that prescribes that the
prosecutor may not consider diversion interferes with the separation of powers
doctrine. Parliament cannot interfere with the prosecutor’s role as dominus litis and should not be
arbitrarily limiting the prosecutorial prerogative of the Prosecutor.[3]
To the extent that the Committee would
prefer some limit on the prosecutor’s discretion in an individual case, Prosecutorial
Guidelines could be developed.
Additionally, as currently drafted, the exclusion of
sexual offences is so irrational and arbitrary that it undermines the rule of
law.[4] This is because some of the crimes excluded
from diversion are far less serious than other crimes where diversion is
permissible. A 15-year-old girl who
kisses her 15-year-old boyfriend, for example, would have committed a sexual
offence and be ineligible for diversion.
However, if she burned down his house, she would qualify for diversion. Because eligibility for diversion “bears no
relation to the gravity of the offence . . . the offender is being used
essentially as a means to an end and the offender’s dignity assailed.”[5]
Prohibiting consideration of diversion for children also
runs contrary to the Convention on the Rights of the Child.[6] The Convention emphasizes the importance of
diversion programs and requires equal treatment under the law for children and
adults.[7] South African law does not prohibit diversion
for adults in sexual offences cases.
Thus, prohibiting consideration of diversion for children is unequal treatment. Moreover, this inequality runs contrary to
the goal of facilitating rehabilitation through diversion and makes little
sense as children come to appreciate the nature of sexual offences at a later
stage from that of other crimes.
In addition to the constitutional and international
law concerns, clause 57 amounts to a de facto amendment of the National
Prosecuting Authority Act.[8] This Act expressly gives the National
Director the authority to institute, conduct and discontinue criminal proceedings.[9]
Rules guiding the exercise of the
prosecutor’s discretion in this regard are to be determined by the National
Director rather than Parliament.[10]
The Act also encourages prosecutors to exercise
their prosecutorial authority by diverting cases, particularly cases involving
children.[11]
For the reasons stated above, the SAHRC strongly
advises that this provision be eliminated or be made consistent with other
provisions in the Bill that address issues of prosecutorial prerogative. Section 42, for example, uses non
prescriptive language, such as “may”, “decide”, and “is of the opinion”, which
is appropriate in the context of the prosecutorial prerogative.
2. Conditions
of detention
The Bill
should state explicitly that children cannot be detained in police cells for
longer than 48 hours (clauses 26 and 28)
It is critical that children be detained in police
cells only as a measure of absolute last resort and for the shortest possible
time. Currently there is no system of
regular monitoring visits to police cells. This is of concern given the fact
that 698 people died in police custody in fiscal year 2006/07, an 11 percent increase
over the preceding year.[12] In order to rectify this situation,
Protection
of children detained in police custody
Clause 28 is welcomed.
However, the clause needs to cover mental abuse and neglect. The Constitution, in section 28(1)(d), provides
that children should be protected from abuse and neglect. Accordingly, neglect should be included in
this sub clause. Neglect could include
for example, inadequately warm clothing or bedding or lack of nutritious
regular meals. Additionally, mental
abuse or suffering should be added to clause 28(2)(a).
Remove
the word lock-up from the Bill
It is unclear what a lock-up actually is. Dictionaries
define the word in a variety of ways, including “a jail,”[13]
“a place where someone cannot escape,”[14]
and “a place where persons under arrest are temporarily locked up; a
watchhouse.”[15] This makes the concept subject to
interpretation by police officials and thus could potentially lead to children
being detained in unsuitable places.
Accordingly, the SAHRC recommends that the word lock-up be removed from
the entire Bill and be replaced with “designated place.” The phrase “designated place” could then be
defined in terms of regulations that would mandate, for example, what kind of
room could be used for detention and what types of things should be in the
room.
Conditions
of detention at preliminary inquiry or child justice court
This section on the whole is welcomed. However, it
needs to be pointed out that whilst children are being transported they are
still being detained and thus they may never in terms of the constitutional
stipulations be transported together with adults (section 28(g)(i)). The words
“if reasonably possible” should accordingly be removed form clause 34(2)(c).
Children
who are detained awaiting trail are not provided with access to basic education
The Commission remains concerned that detained
children awaiting trial do not receive access to basic education. This is in
clear violation of the constitutional right to basic education (clause 29) and
the recommendations of the CRC.[16] The violations of the child’s right to
education could be quite severe as the Act provides for pre-trial detention of
up to two years. The Commission
recommends that a provision requiring access to basic education for children in
detention be added to Chapter 4, Part 2.
All
children in detention should be provided with adequate, age-appropriate
stimuli.
Unlike adults, children can often not entertain
themselves for long periods of time.
Accordingly, it is essential that all children in detention, including
children in police detention, be provided with adequate and age-appropriate
stimuli consistent with the recommendations of the Committee on the Rights of
the Child.[17]
3.
Assessments
All
children below the age of 14 years should be assessed
The SAHRC welcomes the assessment requirements in the
Bill. The SAHRC considers assessments to
be a critical component of ensuring that criminal matters relating to children
are handled in accordance with the best interests of the child, as required by
the Constitution (clause 28(2)). Fulfilling
the best interests of the child requires an individualized analysis of the
child’s needs, which is what an assessment provides. Thus, the decision whether or not to assess a
child should not be based on the charge.
All children should be assessed unless performing an assessment is not
in the best interests of the child. Accordingly,
clause 9 should be modified so that all children below the age of 14 years are
assessed.
Qualified
persons who are not probation officers should be authorized to perform
assessments
Because of the shortage of qualified probation
officers and the importance of handling matters relating to children quickly, as
discussed in other parts of this submission, the persons who conduct
assessments should not be limited to probation officers but should include
other suitable qualified persons. (This
could be further extrapolated and prescribed in regulations.)
4.
Criminal Capacity
The
capacity of a child vs the decision to prosecute must not be conflated.
The UN Committee on the Rights of the Child has warned
that children who commit serious crimes are often prosecuted regardless of
their actual criminal capacity.[18] The current form of the Bill raises
particularly strong concerns that children may be prosecuted unlawfully because
section 9(2) appears to combine the inquiry as to whether the child has
criminal capacity with the inquiry about whether the case should be
prosecuted. Dealing with both of these
issues within one clause is likely to result in confusion and the conflation of
the issues. This could be remedied by
creating a new section within section 9(2)(b) with an appropriate heading.
Criminal
capacity of children is too low (clause 6)
In terms of international law and commentary from the UN
Committee on the Rights of the Child, criminal capacity is recommended to be
set at 12 years of age. The Committee
has explained that countries should set the minimum age of criminal
responsibility to “12 years as the absolute minimum age and to continue to increase it to a
higher age level.”[19] Moreover, the Committee specifically
recommended that “
Treatment
of some 18 to 20 year olds as children
The Commission would like to commend the Committee for
the inclusion of clause 4(2)(b). This
clause is consistent with the recommendations of the Committee on the Rights of
the Child, and forwards
5. The
Bill should be more onerous on police officials to ensure that parents are
informed about the alleged criminal activities of their children.
Parental notification is important under both South
African and international law. A right
to parental notification is implicit in clause 28(1)(b) of the Constitution,
which guarantees the right to family or parental care, as a parent cannot provide
appropriate care if unaware of allegations that his or her child is involved in
criminal activity. The Committee on the
Rights of the Child also recommended that
The right to parental care is particularly critical
for children involved in the child justice system, as parental care is an
important component of preventing recidivism.
Additionally, children are unlikely to have the knowledge to protect their
own rights and often need the assistance of a trusted adult. The Bill itself recognises the importance of
parental involvement in the juvenile justice system. See, for example, clause 48(7).
Accordingly, the words “where circumstances permit”
ought to be removed from clause 18(3)(d). Should parental notification be
considered impractical in a particular case, the police official should be
required to provide a report to the court indicating the steps that were taken
to inform the parent of the child’s’ arrest.
6. The
maximum time periods awaiting trail contained in clause 67 should be decreased.
The 2-year time period provided in 67(2)(a) is unduly
long. This is particularly true in light
of 67(2)(b), which requires that trial be completed within one year of the
child pleading to a charge. Clauses 67(2)(a)
and (b), viewed together, would allow for children to be held for a full year
without even pleading to a charge, even though the Convention on the Rights of
the Child requires that children who are detained be charged within 30 days.[22]
Moreover, there is the danger that stipulating the maximum period will make it
the norm and will inhibit efforts to ensure that children are detained for the
shortest appropriate period of time as prescribed by the constitution (section
28(1)(g)).
7. Sentencing
Minimum sentencing legislation
should not apply to children (clause 78).
Applying minimum sentencing to children is contrary to
The
maximum sentence should be reduced from 25 years (clause 78)
The SAHRC would like to draw the attention of the
Committee to the fact that the maximum sentence of 25 years, provided in
section 78(5) is quite lengthy for a child.
Whilst it may be appropriate for a court to impose such a lengthy
sentence, the Committee should ensure that the children in such cases come
regularly before the parole board as recommended by the Committee on the Rights
of the Child.[24]
8. The
drafting style of the Bill is convoluted and makes it difficult to read and
understand.
Examples:
- Many definitions refer to clauses of the Bill which contain the
actual definition. This defeats the object of a definitions section, makes
a reading of the Bill difficult, and may lead to ambiguities. For example, the definition of “child”
in Chapter 1 states that child “in certain circumstances, means a person contemplated in section 4(2)(a)
or (b).” Section 4(2)(a) states, in
full, “only Part 1 of this Chapter applies to any person who, at the time
of the commission of the alleged offence, was under the age or 10
years.” This suggests that “child”
can only include persons under 10 years of age in Chapter 1, part 2. However, other sections of the Bill use
the term child when referring to children under the age of 10. For example, paragraph 35.
- Many of the clauses with “or” do not expressly provide for the
alternatives, but rather seem to rely on context. For example, clause 31(1)(a) appears to
say that all children who are not sent to prison can be sent to a secure
care facility or place of safety.
If this is the case, it is not clear why 31(1)(b) specifies certain
types of crimes. Likewise, clause
67(2)(a) does not make clear what brings the 2-year detention period to a
close. Conviction? Sentencing? As it reads currently, it could be
interpreted as saying that no child can be held for more than two years,
regardless of whether that child has been sentenced. Additionally, the placement of
subclauses 67(2)(b)(i) and (ii) make them seem to apply only to 67(2)(b),
not 67(2)(a). If these subclauses
are maintained, they should be renumbered for clarity.
- Clause 8 is complicated and it is not clear from a reading of the
clause what is being said.
- It is unclear how clause 50(4) relates to the subject of Clause 50,
“consideration of diversion.”
Perhaps 50(4) should be moved or renumbered.
- The reference to section 95(4)(a)(i)(bb) in Clause 57(1)(b) does
not make sense. Perhaps the
reference should be to section 95(5)(a)(i)(bb).
- Clause 6(2) seems to be missing a word at the end of the clause.
- The Bill is unclear as to what happens to a child whose preliminary
inquiry is postponed under section 49 and not held within 96 hours. The Bill should be modified to make
clear that such children still have preliminary inquiries and are eligible
for diversion at that time.
- 57(2)(b)(i) states that, in diverting a child under section 57,
only a diversion option under 58(5) can be considered, but 58(7) states
that a child can be sent to a family group conference or victim-offender
mediation in lieu of or in combination with any of the options under 58(5). This creates confusion as to whether a
child under section 57 can be sent to a family group conference or
victim-offender mediation.
- The title of Clause 7 (“Manner of dealing with child below 10 years
of age”) and of Chapter 2, Part 2 (“Children below 10 years of age”) are
misleading given that children aged 10 to 13 who lack criminal capacity
can also be handled under this Part.
(See 9(1)(c)(ii)).
- See also clause 25(4), especially (4)(a), and clause 42(1)(a).
9. Miscellaneous
- The Children’s Act needs to be
incorporated into the Bill; currently the Bill refers to the Child Care
Act 74/83. E.g. clauses 1, 13, 51, 64, and 96.
- There is a need to insert a definition of ‘service provider’, which
is used in clauses 41, 45, 54, 62 and 96.
- Clause 31 should come before Clause 30 to promote the
constitutional rights that children only be detained as a measure of last
resort (section 28(1)(g)). The more drastic option of placement in a
prison should thus come last within the sequencing of the clauses.
- Children below the age of 14 years should never be placed in prison
awaiting trial. Unless the children
have criminal capacity, they are to be treated in the same way as children
under 10 and accommodated in suitable homes and treatment facilities. Since children under 14 are presumed to
lack criminal capacity (clause 9(1)(a)), they should be treated like
children under 10 unless and until the state proves criminal capacity in
trial. Doing otherwise might run
afoul on the constitutional requirement that children are only to be
detained as a measure of last resort, section 28(1)(g), since children who
lack criminal capacity can be handled outside the prison system.
- Clause 41(2) is unnecessary. The magistrate must merely be advised
by the probation officer and/or the prosecutor that it has been confirmed
that space is available. At many facilities, the population changes on a
daily basis. It is quite conceivable that from the time the sworn
statement is drafted and the date of appearance of the child that the
space available at the facility has changed.
- The clauses on preliminary inquiry do not clearly describe what the
preliminary inquiry is about (clause 44).
- Clause 54 – Provision and accreditation of diversion programmes,
service providers and register of previous diversions, are very detailed
and could be placed in Regulations in order to simplify the drafting style
of the Bill. Also, sexual offences diversion should not be singled out for
special treatment (clause 54(3)). These programmes require a high level of
expertise in order for their efficacy to be assessed and it would be more appropriate
for this to be done by suitably qualified experts rather than
parliamentarians.
- Pre-sentence reports should be made available sooner in cases of
children who are detained (clause 72). For example these reports could be
made available within three weeks whilst children who are not detained the
time period could be 6 weeks. This would giver further effect to the
constitutional provision that children should be detained only for the
shortest appropriate period of time (section 28 (1)(g)).
- The Committee on the
Rights of the Child has commented that “every child arrested and deprived
of his/her liberty should be brought before a competent authority to
examine the legality of (the continuation of) this deprivation of liberty
within 24 hours.”[25] The Committee has also commented that the child should be charged
and brought before a court not later than 30 days after he or she is
detained.[26] This Bill presents the opportunity to
implement these recommendations in advance of
- The drafter should seek to provide fewer schedules in order to
simplify the Bill.
- Bestiality appears in both schedule 1 and schedule 2, and the Bill
is unclear about the distinction between the schedule 1 and schedule 2
offences. This is problematic, as
78(4)(b) and 88(3) specify different treatment for children who commit
schedule 1 and schedule 2 offences.
- Clause 16 is ambiguous as to the treatment of children thought to
be 18 but found to be 10-13. Sections
16(4)(a) and 16(4)(b) both apply to these children, but require different
proceedings. The same is true for
16(3)(b) and 16(3)(e). Perhaps
16(3)(e) and 16(4)(b) should be modified to apply only to children aged
14-17.