8 April 2010

South Africa: 'Sensitive' Law Tries to Keep Kids Out of Jail

Photo: IRIN
A prison cell.

Johannesburg — THEY do not look like they could be accused of anything, let alone robbery, murder or rape. They look like children - some typically gawky teenagers, some little munchkins, some super-cool. They look like any other children, simultaneously fragile and resilient.

In fact, they are both: children, under 18, who are in "secure care" at the Walter Sisulu Child and Youth Care Centre and accused of committing some of the most serious crimes on the statute books.

The children troop in their blue track suits and stand in rows to sing for the April 1 event, when the Child Justice Act came into effect, a piece of legislation 10 years in the making.

The act sets up a separate, parallel procedure for children who get into trouble with the law in order to give them a chance to come right, and avoid prison and a criminal record. It has already been put under the spotlight as one of those accused of murdering right-wing extremist Eugene TerreBlanche is 15.

The only visible evidence of what the Walter Sisulu Centre's children may have gone through is one girl, of about 13, who has cuts up and down her arms. One is fresh, covered by a plaster.

In attendance is a high-powered government delegation, each dignitary representing an essential element for the effective implementation of the act. It needs the co-operation of the justice and social development departments, the prosecuting authority, magistrates, the Legal Aid Board and civil society.

Dr Ann Skelton of the Child Law Centre says the act has a different philosophical departure point from the Criminal Procedure Act: when a child comes into conflict with the law, there is an opportunity to intervene in the child's life in a way that seeks to ensure the child will become a law-abiding adult.

Lorenzo Wakefield, of the University of the Western Cape's Community Law Centre, praises the act, saying it brings SA in line with the constitution and international law.

At last Thursday's event, justice director-general Nonkululeko Msomi said the act was ready to be implemented.

All role-players - including magistrates, prosecutors and probation officers - had been trained, and practical guidelines and regulations issued.

Much is already in place as the act formalises and makes legal a programme that has been in operation for some years, under the Protocol on the Management of Children Awaiting Trial.

Under the act, children may not be arrested for minor offences, and may be detained in prison only in limited circumstances and when they are older than 14. Instead of appearing in court to be charged, a probation officer must first assess the child and present the assessment at a preliminary inquiry.

At the inquiry, the magistrate, the child, the parents or care- givers, a social worker and the prosecutor all try to find a way of "diverting" the child out of the criminal justice system. This involves principles of "restorative justice" - the child, if guilty, is encouraged to take responsibility for what he or she has done and somehow make amends.

The act lists numerous "diversion options". Depending on the individual's circumstances and the seriousness of the offence, this could include a simple apology or referral to counselling, a course on self-esteem or drug rehabilitation. Those programmes could last four years.

But Wakefield is concerned about the "overregulation" of diversion options, saying that as they are regulated by legislation and not policy, it is difficult to adapt them for individual cases.

Those who do not complete the programmes must appear before the magistrate to explain why, and they may be charged.

Those who have committed minor offences may be diverted immediately by the prosecutor. Others may be diverted by the magistrate.

But the magistrate may also, where the crime is serious, require that a child appear for trial at a Child Justice Court.

Skelton says the act is not necessarily less harsh than the criminal law that applies to adults, but it is more sensitive.

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