The Sunday Mail
Phillipa Mukome-Chinhoi
The release of a “layman’s draft” of the Child Justice Bill by the Ministry of Justice, Legal and Parliamentary Affairs in June this year, as well as subsequent stakeholder consultations held in Bulawayo and Harare, has stirred the interest of advocates of the child justice system.
Justice for Children (JCT) — a child justice-focused private voluntary organisation — held a breakfast meeting last month to discuss the new proposals and possible gaps that need to be addressed in the Child Justice Bill.
The discussions also fed off an analysis conducted by JCT.
Among the key stakeholders were the Judicial Service Commission, National Prosecuting Authority, Department of Social Welfare, CATCH Trust, Childline, the Pre-trial Diversion Programme and UNICEF.
The draft Bill seeks to establish a distinct criminal justice system for children who are in conflict with the law.
In essence, it is meant to ensure adequate protection of children in terms of the Constitution. The Bill deals with all procedural and substantive issues considered when attending to a child alleged to have committed a criminal offence.
Stakeholders who attended the meeting commended the Bill as a step in the right direction.
Dr Musa Kika, a lawyer with JCT, indicated that the new legislation proposes establishing child justice courts with specially selected and trained personnel to man them.
The Bill also creates a distinct set of criminal procedure for children.
Also, it proposes giving legal footing to the pre-trial diversion programme (PTD), which is currently operating as a policy. PTD, which is supported by UNICEF through the Child Protection Fund, seeks to keep children away from the harmful effects of the formal criminal and penal systems, address the reasons behind their offences, and to provide victims of crime with redress and rehabilitative interventions that allow them to re-integrate into society.
The draft Bill also proposes raising the age of criminal capacity (doli capax) from the current seven years to 12 years.
In particular, Clause 13(2) requires that for children presumed to lack criminal capacity (12 years to 14 years) a diversion officer or a probation officer must provide an assessment report on this matter.
Moreover, the Bill expressly recognises the role of stakeholders outside the formal criminal justice system, specifically non-governmental organisations and other communities involved in the delivery of child justice services.
Clause 21 of the Bill empowers the police, without involving the diversion officer or probation officer, to issue an informal “police caution” rather than resorting to criminal proceedings for minor offences which would, if tried in court, attract a prison sentence of not more than three months.
Clearly, the best interest of the child is recognised in the Bill as it gives provision for only confessions and admissions made in the presence of a parent, guardian, probation officer or a legal practitioner to be admitted in criminal proceedings against a child.
It also provides for the separation of trials, especially where children are jointly charged with adults.
Further, the Bill establishes a mechanism to monitor and coordinate implementation of the child justice system through multi-sectoral child justice committees at national, provincial and district level.
Criticism
However, despite the creation of child justice specialised courts, Schedule 3 offences — murder, rape and treason — will still be tried in normal courts, which defeats the purpose of creating a specialised court for children and leaves room for discrimination based on the delinquency or criminality without considering the circumstances leading to such misconduct. Critics argue there is need to ensure that the incarcerated children get education while in custody.
Police, they also opine, have to be trained on handling child offenders.
In one of the discussion forums, Christopher J. Mutasa, Junior Speaker of Parliament, said cases involving rape should be thoroughly and impartially investigated as society has a tendency of blaming boys, even in circumstances where the sexual act was consensual.
The Bill also does not specify the procedure in determining criminal capacity; the timeframes for completion of cases; specific rules of procedure; clear pre-trial mechanisms and procedures; the mode of transport to be used to ferry children in conflict with the law, which should be distinct from those used to ferry adults to court; including separation of duties of the diversion officer and the probation officer to avoid duplication.
Suggestions
Most child rights’ experts believe there is need to guarantee legal representation for children to ensure fair trials. They also advocate for clear referral pathways from one stakeholder to another to ensure children get comprehensive assistance.
Privacy during trials, which meant prohibiting recordings, taking videos and pictures, was also considered non-negotiable. There is also need for clear rules to guide procedure at the child courts.
For example, national co-ordinator of the Pre-trial Diversion Programme, Ms Sandra Sanyanga, emphasised the need to specify the type of work, duration and area where a community service had to be carried out in the event that it was prescribed.
So, while the Bill marks significant progress in the treatment of children in conflict with the law, it is, however, still fraught with glaring inconsistencies, omissions and shortcomings in meeting international best practice as provided for in the United Nations Convention on the Rights of the Child (UNCRC), the African Charter on the Rights and Welfare of the Child (ACRWC) and the Beijing Rules. Some of the convections provide for legal assistance and prescribe timeframes within which cases must be heard and completed.
