Child Justice Act undercut from within
Oct 07, 2011
Even before it began the rocky climb through the parliamentary process, the Child Justice Bill was considered to be internationally path-breaking legislation. It was born in the euphoria of the early 1990s in a country where youth had been considered politically lethal, whipping was a sentence, imprisonment the standard response to wrongdoing and torture considered a legitimate interrogation method.
The new legislation sought to provide restorative justice by diverting child offenders from this punitive justice system and keeping them out of prisons, which simply hardened criminality. It devised ways to work with offenders and victims to restore harmony in the community where the crime took place. Punishment would be tailored to the crime and dealt in a way that maintained the self-respect of the offender as well as the approval of both community and victim.
....The department of constitutional development and justice and the department of social development were given a year to get the requirements of the Act up and running, with implementation taking place on April 1 2010, a day widely described as historic in the protection of the children's rights in South Africa.
Sixteen months later, how is it faring? Sadly, not well.
....The restorative philosophy underpinning the Act is being undermined by a "war on crime" and a return to apartheid-style policing in the townships. Yet, seemingly in contradiction to this trend, as the bureaucratic wheels of the Act slowly turn, fewer young people under the age of 18 are being arrested.
Centre for Child Law director Ann Skelton, one of the drafters of the Bill, thought the legislation would bring a flood of children into restorative services, but it hasn't.
"What I'm picking up is uncertainty," she says. "Police, prosecutors and magistrates don't understand the Act and don't seem to know what to do. Police have the idea it means they shouldn't arrest children so they just wag their fingers in children's faces -- or worse -- and don't bring them in. So it may look good on paper that fewer kids are being booked but it means they're not going to be linked to services. The police were never intended as gatekeepers to the whole system."
....Another problem has been accreditation of diversion organisations. The Act was drafted in the knowledge that civil society had robust NGOs capable of delivering youth programmes. These simply needed to be accredited by the DSD and would be contracted to provide services.
Amid rising scepticism about "soft law" and concern for child rights, the DSD raised the bar so high that no organisations have been accredited. Applicants are issued with a Facilitators' Manual, a Participants' Manual and an Instruction Manual, with requirements Usiko director Saskia van Oosterhout describes as excessive. "There are so many boxes to tick and so much documentation required that I don't know any organisation that has a hope of compliance. Don't they want diversion services?"
....The Act requires the development of child justice courts, one-stop processing centres, victim-offender mediation and family group conferencing. Two one-stop centres were created in the country, but then the national budget for these ran out -- the one projected for Cape Town came with a R63-million price tag.
There are special child justice courts, though some are merely an office, and there are few in the countryside where magistrates and prosecutors are itinerant. Family group conferences, central to the restorative process, simply aren't happening.