On 16 June 1995, South Africa ratified the 1989 United Nations Convention on the Rights of the Child (hereafter referred to as the CRC). This has implications for South Africa not only in terms of the obligation to enact legislation dealing specifically with child justice as outlined in Articles 37 and 40 of CRC but also in terms of the rights of children to be heard enshrined in Article 12.
During the initial drafting process, the view was taken by the South African Law Commission (SALC) and the Project Committee on Juvenile Justice that public consultation would be critical to the development of appropriate and relevant legislation. It was therefore decided that those people directly affected by the proposed new laws should be afforded the opportunity to comment on the draft Bill. Children (and particularly children in contact with the criminal justice system) were recognised as being important constituents whose opinions could play a vital role in the development of the Child Justice Bill. In 1999 NICRO was commissioned by the SALCís Project Committee on Juvenile Justice to consult with children on the draft legislative proposals that preceded the Child Justice Bill, outlined in Discussion Paper 791.
Consultation with children about legal issues is a relatively new experience in this country, but proved to be an extremely valuable exercise for those involved in the drafting of the Bill. The observations of the children not only breathed life into the tenets of the Convention but also emphasised the very real discrepancies between what is proposed in the international instruments and what is happening in our police cells and prisons on a daily basis. The human rights abuses and procedural failures in our judicial system as identified by the children emphasised the need for urgent and far-reaching law reform.
The information gathered through the 1999 consultation with children helped to inform what would eventually become the draft Child Justice Bill.
Given the success of the previous round of consultation, it was decided that children should once again be asked to provide their opinions with regard to the Bill in its current form, prior to its submission to Parliament. The purpose of this exercise was to inform parliamentarians and policy-makers of the specific experience of children at the hands of the criminal justice system, and to illustrate how the Bill will remedy the problems in the system. A report has been produced as a result of these consultations and this will help to bring the voices of children to the discussions and debates in Parliament.
For the purposes of the 2001/ 2002 study, it was decided to consult with children at various stages in the criminal justice process. They ranged from those who had not had any contact with the formal legal system to those who had been convicted and were already serving residential sentences. The children were selected from a range of institutions (such as prisons) and schools situated in four provinces in South Africa, namely Western Cape, Eastern Cape, North West and Northern Province (now Limpopo). These provinces were selected because they provided a balance between well-developed criminal justice infrastructure, staff capacity, procedures and systems (the Western Cape and Stepping-Stones in the Eastern Cape) and under-developed infrastructure (Northern Province and the North West).
Age and capacity
As regards age and criminal capacity, it is interesting to note that the majority of the children in this study were in favour of raising the age of criminal capacity. This view correlates strongly with that of the children interviewed in 1999. In the previous study there was almost unanimous agreement that children below the age of ten were incapable of planning and carrying out a crime with a full understanding of the moral issues involved. Some of the comments from the recent study included:
"Maybe they are having family problems, e.g. they donít get food at home so they go steal." Thabo, 16 years old.
"His mind is not matured to do such crime unless he has seen someone at home or a neighbour do a criminal offence." William, 17 years old.
The South African community has long viewed the South African Police Service with suspicion and fear. The findings of the 2002 report indicate that while there are police personnel who operate within the law, there are many who disregard the basic human rights of children in their custody and operate with brutality and undue force. Some of the most shocking examples of police abuses during the arrest process included placing a child in a plastic bag and pushing him under water, a child who was given electric shocks and two children who were assaulted and then placed in the boot of a car.
"They put you in the van after finish to hit you and police phone the dog unit and take the dog, put in the van with you." Andile, 18 years old.
"I was beaten up and forced to admit some other things which I donít know. I had no chance to tell my side of the story" Lubalo, 17 years old.
Deprivation of liberty
With regard to arrest and detention it is very clear from what the children have said that the holding of children in police cells, particularly when they are not separated from adults, places them in physical danger and deprives them of their basic rights as outlined in the Constitution and the CRC. The new legislation as outlined in the Bill will severely curtail this practice, thus protecting children held in custody awaiting trial.
"I was so afraid and we were bad influenced by the three adults making us their channel of dagga [marajuana) when we were visited" Ayanda, 17 years old.
"They were beating the new people. The boss of the cell take your meat and clothes. And some they want wives and make us wives." Alfred, 18 years old.
"That two men told me they want to sleep with me. When I say no he told me the police they close the door and thereís none can help you." Omar, 16 years old.
The responses of the children with regard to all forms of detention, be it in police cells, places of safety or in prison, clearly endorse the position of the Bill that children should be incarcerated as a measure of last resort. The children in this study reported human rights abuses at all stages of the criminal justice process in situations where they were detained. These ranged from physical assault at the hands of adults as well as of other children to deprivation of their basic needs, psychological trauma and even death - there have been twelve deaths of children in detention in the past three years. 2
"Prison is a place where you try and get through the day alive. Your heart dies in this place. You get hard and learn not to trust." Adriaan, 19 years old.
"There is kids that is 15 and 16 and every day I see them. I see the hurt in their eyes. Not I nor them can cope with this place, only bricks and steel survive in this place." Adenaan, 18 years.
Restorative justice and diversion
Restorative justice is one of the underlying principles informing the development of the Bill, and diversion forms a major part of the proposed new legislation. As could be expected, the responses of the children with regard to diversion were positive. More importantly, it is clear from the responses of the participants that many children are not being assessed prior to being asked to plead and thus the option of diversion is not being considered for them. The preliminary inquiry has been included in the Bill in part to address this issue and to ensure that all children are assessed. It is important to note that a lot of work needs to be done to improve the current situation with regard to assessment and diversion in order to ensure a smooth transition once the Bill is implemented.
"Diversion is to talk about life skills and how you must change your life away from crime. Like a social worker programme to solve problems." Lance, 17 years old.
"Diversion is good because some children do things before thinking and after, when they arrested they think back." Jonathan, 18 years old.
Children's perceptions of the criminal justice system are clearly illustrated in their descriptions of court proceedings. It is evident from what the children said that the formality of the courtroom situation often inhibits their ability to speak freely. Their poor understanding of proceedings results in a situation where they are left with a sense of disempowerment and of not being heard. The adversarial nature of adult court proceedings appears to have the effect of putting the child on the defensive, with the truth being used only as a measure of last resort. Suggestions made by the children regarding the development of a dedicated child justice court are useful in that they provide insight into the type of environment in which children would feel most comfortable, thus allowing the prosecution to make informed decisions regarding diversion, conviction and sentencing. Comments include:
"I was afraid to speak because of the clothes. They are adults all of them." Sipho, 17 years old.
"They were speaking big words that I donít understand. I was very frightened. It was a very cold atmosphere." Terence, 15 years old.
In conclusion, people often question whether consultation with children is useful with a subject as complex as law reform. The quote below is extracted from the last round of consultations done in 1999 and refers to the publication that resulted from this study. It has been included in this article because its significance has not faded and the message is still as relevant as it was three years ago.
"There is much that the human rights community in South Africa can learn from children's participation, which goes far beyond the bland formality of giving effect to Article 12 of the CRC. The views expressed here bring us face to face with the despair, terror and loneliness experienced by children in conflict with the law. We must allow our children to speak. We must teach ourselves to listen 3."
1. NICRO (1999), The Draft Child Justice Bill: What the Children Said. University of the Western Cape: Community Law Centre.
2. Skelton, A (2002), Personal correspondence. Child Justice Project, United Nations Technical Assistance Project to the South African Government.
3. NICRO (1999), The Draft Child Justice Bill: What the Children Said. University of the Western Cope: Community Law Centre
This feature: Ehlers, L. (2002) Consultation with children on the Child Justice Bill. Article 40: The dynamics of youth justice and the Convention on the Rights of the Child in South Africa, 4 (1) pp. 6-7