Adv. Ann Skelton, Programme Manager, UNDP Office for Child Justice, South Africa
I AM A THIEF. These were the words which, everyone at the family group conference agreed, should be emblazoned on a tee-shirt to be worn by a boy who admitted stealing from a shop. This case occurred in Canberra, Australia, but we don’t have to stretch our imaginations very far to picture this kind of thing happening in South Africa. Just last year two children were painted white and silver respectively by community members who suspected them of stealing, and another was forced to eat his own faeces. A boy was locked in a cold room by the owner of a shop he was suspected of having stolen from. Another boy had petrol poured on him by a shop owner, was set alight and died of his injuries.
The role of communities
Diversion means giving communities a bigger stake in justice “and this is particularly so when the diversions are of a restorative justice nature. When we divert children we are saying that we don’t think that they need to go through the criminal justice system. We are of the view that the guidance of families and communities, supported by professionals and specific interventions, can sufficiently make children understand the impact of their crimes on others, and ensure that they put the wrong right “to victims where this is appropriate, or to society. By giving communities a role in the process and outcomes of justice we make them more aware of their role in raising young people appropriately. It has been shown in other countries that victims who voluntarily participate in diversion programmes such as victim-offender mediation or conferencing often report a higher satisfaction with these types of processes than they do with the outcomes reached in the mainstream criminal justice system. These are all the reasons why those working in the area regard diversion as a good idea, and why it is a central aspect of the draft Child Justice Bill that will serve before the South African Parliament this year.
However, we need to realise that when we take children out of the criminal justice system to give them a chance, or to work with them in ways that we believe may have more impact on them, we also remove them from a system with finely-tuned procedural safeguards. The criminal justice system has, over hundreds of years, developed rules which ensure that offender’s rights are restricted only according to firmly enforced procedures.
We must also realise that involving communities in justice processes and outcomes does not automatically mean that the results will be more restorative. Communities are capable of very retributive actions. We therefore need to build in measures to re-educate communities, and processes involving communities must be carefully managed and monitored.
Having accepted that diversion entails a certain amount of risk, we, as professionals working in the field, must ensure that any possible risks to the rights of offending children are managed and contained. The draft Child Justice Bill sets out a number of provisions to do exactly that.
Rights in the diversion process
Firstly, the Bill has certain rules about referral of children to diversion, to ensure that children's rights are protected, and that they are not coerced into opting for diversion. The draft Bill says the following at section 51:
(1) A child suspected of having committed an offence may only be considered for diversion if “
(a) such child voluntarily acknowledges
responsibility for the offence;
(b) the child understands his or her right to remain silent and has not been unduly influenced in acknowledging responsibility;
(c) there is sufficient evidence to prosecute; and
(d) such child and his or her parent or an appropriate adult, if such person is available, consent to diversion and the diversion option.
Secondly, the draft Bill sets out minimum standards applicable to diversion and diversion options at section 49:
(1) No child may be excluded from a diversion
programme owing to an inability to pay any fee required for such
(2) A child of ten years or over may be required to perform community service as an element of diversion, with due consideration for the child's age and development.
(3) Diversion options must:
(a) promote the dignity and well-being of the
child, and the development of his or her sense of self-worth and ability
to contribute to society;
(b) not be exploitative, harmful or hazardous to a child's physical or mental health;
(c) be appropriate to the age and maturity of the child; and
(d) not interfere with the child's schooling.
(4) Diversion options must, where reasonably possible:
(a) impart useful skills;
(b) include a restorative justice element which aims to heal relationships, including the relationship with the victim;
(c) include an element which seeks to ensure that the child understands the impact of his or her behaviour on others, including victims of the offence, and may include compensation or restitution; and
(d) be presented in a location reasonably accessible to children; and children who cannot afford transport in order to attend a selected diversion programme should, as far as is reasonably possible, be provided with the means to do so.
Registration of programmes
The draft Bill also provides that diversion programmes that are offered on a regular basis by a government department or a nongovernmental organisation must be registered in terms of regulations to this Act. The regulations will then spell out standards for diversion in more detail than the proposed legislation does. The draft Bill does not set out exactly how the registration process will be managed, and the details about that will still have to be negotiated.
Although standards are clearly necessary, we must also be cautious as there are negative aspects of setting standards too. Non-governmental organisations may be worried that the State will have too much control if the State is to set minimum standards, and it is true that too much State control can crush creativity. It is essential that community organisations and NGOs continue to develop innovative programmes as they have done in the past. Also, registration processes can put the brakes on the development of more indigenous models “community structures, especially if linked to traditional justice processes, may resist any form of registration. There should be as much consultation as possible in the formulation of detailed standards and regulation procedures.
However, in the final analysis, we need to be able to be proud of our diversion programmes, we need to be able to sing their successes, we need to be sure that children are safe when they are diverted. Bad practice will seriously endanger diversion as a credible alternative to taking children through court processes. Setting standards and providing for registration, along with professional development and training of diversion service providers will lay the foundation for a lasting and successful diversion service in South Africa.
Acknowledgements: Article 40: The Dynamics of Youth Justice and the Convention on the Rights of the Child in South Africa. Vol.3 No.1, March 2001, pages 8-9