Defining Child in Eyes of the Law a Tough Task for Drafters of Bill

Even a cursory look at the evidence before the Jali commission will tell you that South African country's prisons are not nice places to be.

This is so even for those accused and convicted of the most serious of crimes, let alone children suspected of petty ones.

Any step that seeks to keep children out of prison, indeed out of the formal criminal justice system, must be welcome. Simply because time in prison can mean either a life sentence through contracting HIV/AIDS or extra lessons in how to become a better criminal.

The Child Justice Bill now before Parliament's justice committee aims to create a system which will divert children away from the criminal justice system and prison.

The idea is if a child is guilty of stealing a loaf of bread because he or she is hungry they do not get to sit in a prison or police cell before going into a magistrate's court to be tried. Makes perfect sense to me why, after all, place children in a position where any chance of a fulfilled life is going to be lost.

The first problem in designing a law governing justice for children is to decide the definition of a child. It might sound easy, but, in reality, is quite a complex matter.

For example some suggested that because you only reach your majority and become capable of entering into contracts at 21 this age should be the limit. Others argue that once the age of 18 is reached a person is allowed to vote in elections and that this is the proper limit. The bill has defined a child as someone under the age of 18.

There is an argument for applying diversion to those between 18 and 21, as is being argued behind the scenes in the committee. It is quite possible for someone in this group to make a silly mistake for which they should not have to pay the really heavy price which the criminal justice system imposes even before any sentence is passed. However, the public of SA will shriek its protest because there are plenty of people in this age bracket who have committed very serious crimes indeed.

Those deliberating on the bill have expressed concern that someone in this group could be diverted away from the system and be released only to commit a serious crime. The question could then arise as to whether the state would be legally accountable in a case of this nature?

A second problem arises in trying to decide at which age the child understands that it is committing a crime. The existing situation is that seven-year-olds are considered capable of committing crimes. This really does seem absurd. Yes, a seven-year old might swipe a sweet from the local café but it definitely does not understand that it is a crime. It merely saw a huge pile of nice things and took one.

The new suggested limit is 10. In addition between the ages of 10 and 14 the state would have to prove criminal capacity on the part of a child offender. Even this has come under fire for being too low. It has been suggested that 12 should be absolute minimum age of criminal capacity and that SA is still in the dark ages for not recognising this.

The problem is that there have been any number of serious crimes committed by very young people. At present there are 14-year-olds in prison for murder and rape.

Before there are cries of outrage it must be stressed that there are three schedules of crimes in the bill children accused of the most serious of these crimes (schedule 3) cannot be considered for diversion away from the criminal justice system. Unless of course they are 10 or younger.

If they are between 10 and 14 the state would have to prove the children understood they were committing offences. These include murder, rape, theft with aggravating circumstances (for instance, hijacking), dealing in drugs valued at more than R50000 and dealing in arms and ammunition.

While this safety net also attempts to recognise that organised crime syndicates might use children to do their dirty work it also points at a serious problem which is troubling some MPs. If children will almost automatically be released or diverted for some crimes then it is certain that syndicates will use them to either carry, or peddle. For example housebreaking, robbery, theft and drug offences to a value of R20000 are in schedule two.

Children accused of schedule two offences can qualify for diversion and can be released if the police and the prosecutor agree.

Countries which don't even bother to pay lip service to human rights have been known to use children in their armies. Some in Africa have used them in death squads. That the child is not old enough to understand that what it is being asked to do is a crime will be of cold comfort to the victims.

MPs' concerns are not misplaced. Children are already being used in housebreaking syndicates because they can get through small gaps. They could also be used to exploit any weaknesses in the new law.

There is no question that our laws governing children should be dragged into the 21st century. But few would have believed that this would be such a stressful tightrope.

9 April 2003

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