25 November 2008
South Africa’s National Assembly last week passed the long-awaited Child Justice Bill, which deals with minors – children under the age of 18 years – who are in conflict with the law. The Bill has been sent to President Kgalema Motlanthe for approval.
The new Bill makes provision for a separate justice system for children, with a clear set of guidelines and procedures that are easily understandable and consonant with South Africa’s constitutional and international obligations.
New concepts and procedures
While retaining most features of the present criminal justice process, the Bill introduces a number of new concepts and procedures. In terms of the Bill, children below the age of 10 years should not be prosecuted, while those between the ages of 10 and 14 are presumed to lack criminal capacity.
However, the prosecution can bring evidence to show that a particular child has criminal capacity.
While 10 years is still considered to be a low age by world standards, the presumption of lack of criminal capacity will help to protect children who are immature.
The Bill further seeks to create a balance between protecting the accused child’s rights as a child and an individual, and protecting the human rights and fundamental freedoms of the community.
The Bill takes cognisance of the fact that when dealing with child offenders, one is dealing with human beings that are not yet fully developed. It also understands that adolescence is a time for testing limits, and that although many children will commit offences during their teens, most will grow up to be law-abiding citizens.
The new Child Justice Bill aims to give such children a chance to put right what they have done through diversion, which means they do not get criminal records. Even when children commit serious crimes, their age is a mitigating factor when it comes to sentencing, and there is a need for a wide range of sentencing options.
The procedure set up by the Bill gives criminal justice professionals an opportunity to deal with each case on an individual basis, giving them the discretion to deal with different cases and children differently, as the facts and circumstances dictate.
The Bill also limits the detention of children awaiting trial in prison, through the application of a schedule of offences for which children may be detained.
The Child Justice Alliance welcomed the legislation, saying that it recognised the need for a new justice system for children in conflict with the law, and was confident that the new legislation would support South Africa’s ongoing efforts to combat crime.