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SOUTH AFRICA – The fragility of the children’s rights agenda
Carolyn Hamilton
Professor of Law, University of Essex, Director, Children’s Legal Centre
Developments in South Africa demonstrate how the interaction between the media,
the public, the government and NGOs can work for the benefit of children and for the
promotion of children’s rights. However, subsequent developments in South Africa
also illustrate how easily positive public opinion, regarding children and children’s
rights, can be eroded, adversely affecting the government’s approach to juvenile
justice.
Developments in juvenile justice before 1994
In the ‘70s and ‘80s, many children were at the forefront of the political struggle
against Apartheid, and large numbers of these children were held, often without trial,
in connection with their political activities1. Juveniles, charged with political offences
and ordinary crimes, often spent long periods in pre-trial detention in terrible
conditions.2 Juveniles seldom had legal representation at their trials, and sentences of
whipping and imprisonment were often handed down.3 During this period, political
organisations and human rights lawyers supported and campaigned for children
detained for political offences.4
Nearing the end of Apartheid, in the transition period during the late ‘80s and early
90s, the number of juveniles and adults detained for political activities fell. However,
the prisons remained overcrowded because of the high crime rate. A very large
proportion of those detained were juveniles, most of whom had only committed minor
offences. Separate legislation for children in conflict with the law did not exist and
children were treated as adults, with little concession being made to their age.5
- the NGO influence
The ground for juvenile justice reform in South Africa was prepared before the first
democratically elected government took office in 1994. This was in a large part due to
the efforts of a group of NGOs, which sought to capitalise on the positive public
attitude to reform in the early 90s.
NGOs, who had campaigned for children detained for political activities now turned
their campaign efforts to children detained for ordinary offences, focussing on those
held in pre-trial detention6. In 1992, NGOs launched a ‘carefully orchestrated
campaign’7 (‘Justice for the children: No child should be caged’) to draw attention to
the plight of children detained for non-political offences, which included releasing
Skelton A.: ‘Juvenile Justice Reform: Children’s Rights and Responsibilities versus Crime Control’
in ‘Children’s Rights in a transitional society’ Proceedings of a conference hosted by the Centre for
Child Law in Pretoria, 30 October 1998, Protea Book House, ed CJ Davel
2
Juvenile Justice in Africa, South Asia and the Caribbean: A review of the literature prepared for Penal
Reform International, March 1999
3
Juvenile Justice drafting consultancy, Cape Town 1994 cited in Juvenile Justice in Africa, South Asia
and the Caribbean: A review of the literature prepared for Penal Reform International, March 1999
4
Skelton A.: ‘Juvenile Justice Reform: Children’s Rights and Responsibilities versus Crime Control’
in ‘Children’s Rights in a transitional society’ Proceedings of a conference hosted by the Centre for
Child Law in Pretoria, 30 October 1998, Protea Book House, ed CJ Davel
5
Sloth-Nielsen J.: ‘The Juvenile Justice Law Reform Process in South Africa: Can a Children’s Rights
Approach Carry the Day?’ in 18 Quinnipiac Law Review, 469, 1999.
6
ibid.
7
ibid.
1
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individual stories of certain children being held in pre-trial detention to the press.8 The
NGOs’ campaign was assisted by the media’s positive reaction to the stories, which
generally published pieces in favour of the reform of the criminal justice system.
Alerted to the plight of children in pre-trial detention, the public responded
sympathetically and backed the NGOs’ demands for action. This support translated
into pressure on the government to make the necessary changes to law and policy.
The campaign’s demand for urgent action was given credence by the tragic death, in
1992, of Neville Snyman, who was beaten to death by an older cellmate, while on pretrial detention. He was 13-years-old and had been detained on house breaking
charges. His death resulted in increased media interest in the issue and greater public
concern for these children.
Following his death, the NGOs9, involved in the campaign, published a report entitled
“Justice for the children: No child should be caged”. This report called for a reform
of the juvenile justice system, which would not only uphold the rights of children but
would be centred on the rights of children, (even though the Government had not
ratified the CRC).10 The NGOs extended their campaign by organising seminars and a
conference which resulted in the publication of “Juvenile Justice for South Africa:
Proposals for Policy and legislative Change” in 1994, which laid out a new vision of
a juvenile justice system, which upheld children’s rights.
In 1992, the National Institute for Crime Prevention and Reintegration of Offenders
(NICRO) had also begun to run pilot schemes offering alternatives to the courts to
detention, which promoted and developed the idea of diversion. Even though these
schemes were not accompanied by enabling legislation, they were widely accepted by
the courts as providing viable alternatives to detention11 and therefore represented an
important step forward in juvenile justice development. These pilot schemes were
accompanied by an awareness campaign, which resulted in general public acceptance
that it is desirable to divert children from the criminal justice system and detention12
Politicians, from all the parties, came out in support of reforms in response to the
NGOs’ campaigning and lobbying. Consequently, the positive approach to children’s
rights was further cemented in society13. Further, before 1994, the government at the
time, had begun to respond to these calls for reform, initiating discussions with the
NGO sector about developing alternatives to imprisonment. Although the pre-1994
The Lawyers Committee for Human Rights also ran the ‘Free a Child for Christmas’ campaign, which
raised public and media awareness about the situation of these children at a time of year most likely to
elicit sympathetic responses. In August, On the television ‘Agenda’ was broadcast which highlighted
the plight of children on pre-trial detention. Juvenile Justice Drafting Consultancy: ‘Juvenile Justice for
South Africa: Proposals for policy and legislative change’, Juvenile Justice Drafting Consultancy, Cape
Town November 1994
9
Community Law Centre (University of the Western Cape), NICRO, and Lawyers for Human Rights
10
Skelton A.: ‘Juvenile Justice Reform: Children’s Rights and Responsibilities versus Crime Control’
in ‘Children’s Rights in a transitional society’ Proceedings of a conference hosted by the Centre for
Child Law in Pretoria, 30 October 1998, Protea Book House, ed CJ Davel
11
Skelton, A and Potgieter, H., ‘Juvenile Justice in South Africa’,Juvenile Justice Systems:
International Perspectives, 2nd ed, ed J Winterdyk, Canadian Scholars Press: Toronto, 2002.
Forthcoming. However, as pointed out in this article, concerns were raised that, because these
diversionary schemes were not accompanied by law or clear guidelines, inconsistencies between courts
and cases arose.
12
Sloth-Nielsen J.: ‘The Juvenile Justice Law Reform Process in South Africa: Can a Children’s Rights
Approach Carry the Day?’ in 18 Quinnipiac Law Review, 469, 1999.
13
ibid.
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government did not make any concrete changes, their consultative approach began a
process of reform, which the newly elected Government carried forward.
Juvenile Justice Reforms Post Apartheid – Successes14 and Failures
Society emerged from Apartheid hungry for reform of the country’s infrastructure.
There was a strong political will to uphold, and be seen to be upholding, rights and
fair practice in the new South Africa. In this context, reforming existing institutions
and systems, which had denied people their fundamental rights, was imperative. The
criminal justice system represented a tool of oppression under the old regime and its
failings needed to be addressed. Children’s issues and rights were also high on the
political agenda. Consequently, the question of children’s rights in the criminal justice
drew a lot of political attention and “probably attracted more debate and development
resources than any other criminal justice issue”15. NGOs also intensified their calls
for juvenile justice reform at this time.
- The end of pre-trial detention
When Nelson Mandela became president of in 1994, his rhetoric focused on the rights
of children, and in particular the plight of children in detention. In his first address to
Parliament Mandela said, “the Government will, as a matter of urgency, attend to the
tragic and complex question of children and juveniles in detention and prison. The
basic principle from which we will proceed from now onwards is that we must rescue
the children of the nation and ensure that the system of criminal justice must be the
very last resort in the case of juvenile offenders”. Cross party political will to prevent
the detention of children wherever possible was strong because, among other reasons,
many of the new leaders had been detained in the appalling conditions of South
Africa’s prisons.
Reflecting this political will, the South African Constitution ultimately contained an
article dedicated to children, including a provision regarding the detention of children:
Section 28(1)(g) states that every child has the right “not to be detained except as a
measure of last resort, in which case, in addition to the rights the child enjoys under
section 12 and 35, the child may be detained only for the shortest possible
appropriate period of time, and has the right to be (i) kept separately from detained
persons over the age of 18 years, and (ii) treated in a manner, and kept in conditions,
that take account of the child's age”.16
Following the 1994 election, NGOs used President Mandela’s words to lobby for
change, to advocate for children’s rights and to remind politicians of their
14
In 1995, the sentence of whipping was abolished, as it was held to be unconstitutional (as interpreted
in light of the Interim Constitution), by the newly established South African Constitutional Court (S.
vs. Williams and others 1995 (7) BCLR 861 (CC)). The loss of one of the main sentencing options
open to judges, and their fears they would be forced to sentence juveniles to terms of imprisonment,
now they did not have the option of whipping, encouraged the development of diversions and a leaning
towards a system of restorative justice. (SA Law Commission, 1998: 26 cited in Juvenile Justice in
Africa, South Asia and the Caribbean: A review of the literature prepared for Penal Reform
International, March 1999)
15
Van Zyl Smit, D (1999) ‘Criminological Ideas and South African Transition’ BJC, Vol 39, Issue 2,
198-215
16
Constitution of the Republic of South Africa, As adopted on 8 May 1996 and amended on 11
October 1996 by the Constitutional Assembly, Act 108 of 1996
3
responsibilities towards children.17 Existing political will to reform the criminal
justice system for children was encouraged by this lobbying, as well as by the support
of the public and the media. Within the first year of the new Government coming into
office, Parliament had passed one of the most significant developments for children in
conflict with the law. The amendment to section 29 of the Correctional Services Act18
“… prevented the holding in police cells or prisons of children under 18 years for
longer than 24 hours after arrest with the proviso that children over 14 and under 18
years charged with serious offences, which were listed in a schedule to the Act) could
be held for 48 hours. The aim of the legislation was that children should be sent home
to await their trials. Where this was not possible the new law provided that they
should be accommodated in a Place of Safety”19. This initiative was welcomed across
all the parties and passed unanimously.
Despite this initial enthusiasm, political will did not turn the amendment into practice
until the press reawakened the interest in the plight of children in pre-trial detention20.
In May 1995, seemingly almost overnight, the legislation was turned into a reality and
1500 children were immediately released from prison.
However, the Government had not ensured that the necessary systems for
safeguarding and supervising these children were in place to cope with the number of
children suddenly released from detention. The ‘Places of Safety’, in which a number
of these children were accommodated, were homes used to accommodate children in
the midst of care proceedings and were not specifically designed for youth offenders.
The staff, at the institutions, were not trained to adequately deal with juvenile
delinquents and the houses themselves were not secure. 21 The staff, dismayed at their
new role, demonstrated outside the magistrates’ courts. The youth justice system and
the care system were thrown into chaos.22
Many children absconded from the ‘Places of Safety’ and a number of children, who
had been released, committed serious violent offences. “Children accused of serious
and violent offenses appeared in court, only to be released onto the streets as it
became apparent that there were simply no available alternatives to detention in
prison. A few released children caught on quickly that they would not be held
accountable for their crimes, and thus began a cycle of arrest and immediate release,
without intervening criminal proceedings ever proceeding to finality.”23
Skelton A.: ‘Juvenile Justice Reform: Children’s Rights and Responsibilities versus Crime Control’
in ‘Children’s Rights in a transitional society’ Proceedings of a conference hosted by the Centre for
Child Law in Pretoria, 30 October 1998, Protea Book House, ed CJ Davel
18
No. 17 of 1994: Correctional Services Amendment Act 1994
19
ibid.
20
Sloth-Nielsen J.: ‘The Juvenile Justice Law Reform Process in South Africa: Can a Children’s Rights
Approach Carry the Day?’ in 18 Quinnipiac Law Review, 469, 1999. “The amendments were,
however, not brought into effect at once. Instead, provision was made for them to be brought into
operation by proclamation in individual magisterial districts. The intention clearly was that the
amendments would only be brought into effect when alternative places of detention were available for
serious juvenile offenders” Van Zyl Smit, D (1999) ‘Criminological Ideas and South African
Transition’ BJC, Vol 39, Issue 2, 198-215
21
Skelton A.: ‘Juvenile Justice Reform: Children’s Rights and Responsibilities versus Crime Control’
in ‘Children’s Rights in a transitional society’ Proceedings of a conference hosted by the Centre for
Child Law in Pretoria, 30 October 1998, Protea Book House, ed CJ Davel
22
Sloth-Nielsen J.: ‘The Juvenile Justice Law Reform Process in South Africa: Can a Children’s Rights
Approach Carry the Day?’ in 18 Quinnipiac Law Review, 469, 1999.
23
ibid.
17
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While the public had been initially supportive of the proposal to release children on
pre-trial detention, there was a public outcry, following the media reports of crimes
that these children had committed while on bail. The media, who had also been
supportive of the new initiatives, now enthusiastically reported this public backlash.
Instead of depicting these children as ‘poor incarcerated urchins’, as they had done
previously, these children were now depicted as ‘teenage thugs’, who were primarily
responsible for the rising crime rate.24 “Newspaper headlines screamed; ‘Lock up
these wild kids!’, ‘Teen gangs on crime spree!’, ‘Youths run riot!’ and ‘Place of
Safety – absconder’s paradise’”.25
Despite Mandela’s comments barely a year earlier on the reform of juvenile justice,
politicians responded to the public’s outcry and fears about rising crime by
backtracking and passing another amendment26. The amendment in 1996, allowed
courts to detain certain children while awaiting trial27. This move was “indicative of
wavering political will where children’s rights were in conflict with fears about
crime”28.
This failure of the pre-trial detention release initiative had a detrimental effect on the
momentum for the reform of the criminal justice system in terms of children’s
rights29. Firstly, in response to this public backlash against juvenile offenders,
political will somewhat waned with regards to initiating reform. Parliamentarians
were incredibly cautious about developing provisions that would release juveniles
charged with serious offences back into communities, who were “vociferously
expressing their dissatisfaction with crime and the failings of the criminal justice
system”30. Further, as public fear about crime rose, and criticisms that the new
constitution resulted in soft treatment of criminals increased, the Government
responded by using rhetoric couched in more punitive terms and by introducing
harsher measures31. This illustrated a move away from “a balanced human rights
24
ibid.
Skelton A.: ‘Alternatives to Imprisonment: The South African experience’, Juvenile Justice
Worldwide – the International Network on Juvenile Justice, Vol No.1 Summer 1998
26
No 14 of 1996: Correctional Services Amendment Act, 1996
27
The Amendment was made to section 29 of the Correctional Services Act, which took effect on May
1996. However, this power only extended to children aged 14 years and above. This option to detain
children was supposed to lapse after 2 years (envisaging that new places of safety would have been
established), but due to a drafting error, the provision still stands. Skelton A.: ‘Juvenile Justice Reform:
Children’s Rights and Responsibilities versus Crime Control’ in ‘Children’s Rights in a transitional
society’ Proceedings of a conference hosted by the Centre for Child Law in Pretoria, 30 October 1998,
Protea Book House, ed CJ Davel and Sloth-Nielsen J.: ‘The Juvenile Justice Law Reform Process in
South Africa: Can a Children’s Rights Approach Carry the Day?’ in 18 Quinnipiac Law Review, 469,
1999.
28
Sloth-Nielsen J.: ‘The Juvenile Justice Law Reform Process in South Africa: Can a Children’s Rights
Approach Carry the Day?’ in 18 Quinnipiac Law Review, 469, 1999.
29
The failure of the initiative also had a direct effect on children in conflict with the law. When the
1996 amendment was passed, the magistrates over used their discretionary power to remand children to
prison to await trial. While in 1996, on any given day, there were approximately 600 children in pretrial detention in 1998 this figure had more than doubled, standing at 1600.29 In April 2000, this figure
had reached 2716, but had declined to under the 2000 mark by July of that year. 29
30
Sloth-Nielsen J.: ‘The Juvenile Justice Law Reform Process in South Africa: Can a Children’s Rights
Approach Carry the Day?’ in 18 Quinnipiac Law Review, 469, 1999.
31
Minimum sentencing laws, tighter bail laws and anti-gang legislation were passed from 1997.
Skelton A.: ‘Restorative Justice as a Framework for Juvenile Justice Reform: A South African
perspective’, British Journal of Criminology 2002, forthcoming
25
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approach to an approach in which fighting crime was the overwhelming
consideration”32
NGOs, campaigning for children’s rights, were also affected by this public backlash.
They responded by taking a far more pragmatic line in their demands for reform and
they were noticeably less vocal on the situation of children in pre-trial detention.33 In
fact, they began to highlight how the focus on children in detention had detracted
from the situation for all children in conflict with the law.
- Child Justice Bill
On the face of it, the enthusiasm in the early 90s for the implementation of children’s
rights and the reform of juvenile justice has not translated into reality.34 The
Government’s initial desire to push through reform has been tempered by the change
in public opinion and increased media criticism.
However, despite the damage that the pre-trial release initiatives had caused to the
juvenile justice movement, positive steps35 were being taken, even while the
Government was responding to public demands with harsh new measures36 and ‘get
tough’ rhetoric.
The most significant of these developments was the drafting of the Child Justice Bill.
In 1996, the Minister of Justice appointed a five-person project Committee, under the
auspices of the South African Law Commission. The Project Committee was charged
with developing legislation for a separate juvenile justice system, (no separate
legislation existed) that complied with international conventions and in particular the
CRC. Most of the members of the five-person Committee were drawn from the NGO
sector, which had been active in calling for juvenile justice reform.
In 1997, NGOs and politicians came out in support of the very progressive South
African Law Commission Report37, which supported full implementation of
children’s rights in the criminal justice system and the principles of restorative justice.
Their recommendations guided the work of the Project Committee. The fact the
Skelton, A and Potgieter, H., ‘Juvenile Justice in South Africa’, Juvenile Justice Systems:
International Perspectives, 2nd ed, ed J Winterdyk, Canadian Scholars Press: Toronto, 2002.
Forthcoming
33
Sloth-Nielsen J.: ‘The Juvenile Justice Law Reform Process in South Africa: Can a Children’s Rights
Approach Carry the Day?’ in 18 Quinnipiac Law Review, 469, 1999.
34
Skelton A.: ‘A promise for a better way of dealing with children accused of crimes in South Africa’,
International Association of Youth and Family Judges and Magistrates Chronicle, No.1 Vol 9, July
2000)
35
The failure of the pre-trial detention scenario did lead to the setting up of an inter-sectoral committee
(The Inter-Ministerial Committee on Young People at risk) to look at policy development which would
seek to divert children out of the criminal justice system as early as possible.
36
Several policies were introduced from 1997. Parliament was influenced by the US ‘three strikes and
you’re out’ policy. NGOs lobbied to ensure the under 18 were not included in the ambit of the new
laws, and were partially successful. The Government’s punitive stance on youth crime was also
reflected in the refusal to exclude under 18s from the new bail legislation. Tough anti-gang legislation
was also passed. Skelton A.: ‘Restorative Justice as a Framework for Juvenile Justice Reform: A South
African perspective’, British Journal of Criminology 2002, forthcoming
37
South African Law Commission, Juvenile Justice issue paper; no. 9 (1997)
32
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Minister of Justice warmly endorsed the report suggests that, in 1997, politicians were
still in favour of substantial reform of the criminal justice system38.
Although the work of the Project Committee continued despite increased fears over
crime and political backtracking, the content of the Bill was affected. The Project
Committee39 was acutely aware of the political climate within which the Bill would
be debated, and therefore drafted a Bill that, while upholding the rights of the child,
balanced, and was seen to be balancing, the interests of crime control.40 The need to
reassure the public that they would be protected from dangerous juveniles can be seen
in the provision that allows “children charged with serious, violent offences to be
tried in a criminal court at a higher jurisdictional level, to be imprisoned both during
the awaiting trial-period and as a sentence option…. [and] that criminal records for
serious and violent offences should not expunged”41. However, the Project Committee
ensured that these measured were framed in terms of detention being as a last resort,
reflecting section 28 of the Constitution and Article 37(c) of the Convention on the
Rights of the Child.
The Child Justice Bill is scheduled to come before Parliament in June 2002, with the
bulk of its reforms in tact so far42. The Bill, when passed, will at last create a separate
system for dealing with juveniles in conflict with the law and plug the gaps which
exist in the current legislation, scattered in various criminal justice and child welfare
instruments, that provide only limited additional protection for juveniles.43 Despite the
care taken by the Project Committee to produce a politically viable document, it is
inevitable that in the current political climate, where the government want to be seen
to be ‘tough on crime’ and the public are calling for the death penalty to be
reinstated44, attempts may be made to dilute the proposals aimed at reform. NGOs
have formed the Child Justice Alliance to support the Bill as it proceeds through
Parliament and to counteract possible moves to weaken its provisions.
The work of the Project Committee, therefore, has ensured that reform of the criminal
justice system has continued outside, although not unaffected by, changing public
opinion and weakening political will.
Skelton A.: ‘Juvenile Justice Reform: Children’s Rights and Responsibilities versus Crime Control’
in ‘Children’s Rights in a transitional society’ Proceedings of a conference hosted by the Centre for
Child Law in Pretoria, 30 October 1998, Protea Book House, ed CJ Davel
39
The South African Law Commission also recognised the impact of public perception on policy
development: “The realisation has grown, as the investigation has unfolded against a backdrop of
rising public concern about crime, that in order to give the majority of children (those charged with
petty or non-violent offences) a chance to make up for their mistakes without being labelled and treated
as criminals, the Bill would need to be very clear about the fact that society will be protected from the
relatively small number of children who commit serious, violent crime” South African Law
Commission. (2000), ‘Report on Juvenile Justice’, Project 106, Pretoria.
40
Sloth-Nielsen J.: ‘The Juvenile Justice Law Reform Process in South Africa: Can a Children’s Rights
Approach Carry the Day?’ in 18 Quinnipiac Law Review, 469, 1999.
41
Skelton, A and Potgieter, H., ‘Juvenile Justice in South Africa’, Juvenile Justice Systems:
International Perspectives, 2nd ed, ed J Winterdyk, Canadian Scholars Press: Toronto, 2002.
Forthcoming
42
See footnote 39
43
see Skelton, A and Potgieter, H., ‘Juvenile Justice in South Africa’,Juvenile Justice Systems:
International Perspectives, 2nd ed, ed J Winterdyk, Canadian Scholars Press: Toronto, 2002.
Forthcoming
44
Hunter-Gault C.: ‘South Africans Ponder a Return to the Death Penalty’, CNN online, April 24, 1999
38
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The Media
Initially, the media championed the cause of children in pre-trial detention, depicting
them as victims of society. However, the press was quick to change its stance when
the initiative to release children from detention failed. From then on, the media
responded to the growing crime rate by over-reporting crime and vilifying the
juveniles, who committed them.
“Newspapers comment daily on the ‘crime epidemic’, regularly using the ‘crime
problem’ as a headline with which to sell their wares. These newspapers provide …
‘statistics’ on recent increases in crime, and they relate the ‘human stories’
associated with ‘criminal’ incidents”.45 The media has further claimed that juveniles
are responsible for 80% of this rise in crime. The media has failed to offer a balanced
opinion, focussing on the impact of crime and crime fighting policies, while largely
ignoring the underlying factors that cause crime46. The press has also been extolling
the initiatives of other States, who have implemented ‘get tough’ measures, such as
the United States.47
While the media has excessively covered the rising crime rates in a sensational
manner, they have been more muted when stories have come to light of maltreatment
of children held in prison cells. Skelton details the cases of under-18s who have been
killed in prisons and police custody and of children who have committed suicide
while awaiting trial. “The media did not reflect these deaths with the outrage that
should be forthcoming in such situations. The public reaction was low-key – the
government’s response has been weak”48. This is in stark contrast to the sympathetic
coverage of and response to the death of Neville Snyman, in 1992.
The coverage by the media has not only adversely affected public opinion, but their
change in approach to youth crime from the early 90s has “… created an arena in
which progressive reform towards the creation of a new juvenile justice system is all
the more difficult to achieve”.49
Public opinion
Records of the Human Sciences Research Council, which has conducted regular
surveys of public opinion since the early 90s, show that people’s feelings of personal
safety began to increase in the run up to the free democratic elections in 1994, with a
huge surge in feelings of security immediately following the election. This is because
fear of political violence had fallen. However, these feelings of safety diminished
Baderoon A.: ‘The representation of the crime question in Cape Town’,
http://www.uct.ac.za/depts/religion/crime.htm
46
ibid.
47
Skelton A..: ‘Juvenile Justice reform: children’s rights and responsibilities versus crime control’, in
Children’s rights in a transitional society, Proceedings of a conference hosted by the Centre for Child
Law in Pretoria, 30 October 1998, Protea Book House, ed CJ Davel
48
Skelton A.: ‘A promise for a better way of dealing with children accused of crimes in South Africa’,
International Association of Youth and Family Judges and Magistrates Chronicle, No.1 Vol 9, July
2000)
49
Sloth-Nielsen J.: ‘The Juvenile Justice Law Reform Process in South Africa: Can a Children’s Rights
Approach Carry the Day?’ in 18 Quinnipiac Law Review, 469, 1999.
45
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significantly in the year following the election, as increasing fear about crime
replaced fear of political violence50.
The public’s fear over crime is not imagined or simply media fuelled on the basis of a
few high profile cases. Crime has been fluctuating, with some types of crime rising
significantly51. The increase in some types of personal crimes52 and the prevalence of
gang violence in communities is inevitably going to heighten public fears and lead to
demands for action, as people want to live in a society where they feel secure. While,
public perception of the crime wave far outstrips the number of crimes committed in
reality53,“the fact remains that even in terms of officially reported statistics, rates are
very high, and that fear of violent crime in particular has reached a level where the
government is faced with the reality that investment and the retention of highly skilled
labour within the country are threatened”54.
Dissatisfaction and frustration over rising crime in communities has reached such
levels that people have taken justice into their own hands, carrying out violent
reprisals. In one case, a 14-year-old-boy, suspected of breaking and entering a shop
with 3 other boys, was locked with them in a storeroom. The storeowner then poured
petrol on the children and lit a cloth. The 14-year-old died of his burns. The idea in
South African society used to be that ‘it takes a village to raise a child’. Skelton
asserts that such examples suggest that this philosophy is mutating into ‘it takes a
village to punish a child’55.
In 1999, in the run up to the general election, these concerns were picked up on by the
political parties, with crime forming one of the leading campaign issues.56 Public
opinion polls showed that less than 10% of the public were satisfied with the way
crime was being handled.57 Indeed, CNN reported that 71% of the public were in
favour of a return to the death penalty, a sentencing option supported by a number of
Human Sciences Research Council: ‘The Democratic Transition and Crime in South Africa: the
Record of the 1990s’ Nedbank ISS Crime Index, Volume 3 1999, Number 2, March-April
51
Between 1994-1997 violent crime stabilised, however rape and robbery increased significantly.
During 1998 the number of attempted murders and robberies with aggravating circumstances increased.
Murders had been dropping since 1994 but this decline halted in 1998. Schonteich, M. & Louw, A.
‘Crime Trends in South Africa 1985-1998’, Paper commissioned by the Centre for the Study of
Violence and Reconciliation as part of a review of the National Crime Prevention Strategy carried out
for the Department of Safety and Security, June 1999. However, it is suggested that actual crime has
not increased, but that in the new South Africa people are more inclined to report crime to the
authorities. Schonteich M.: Sentencing in South Africa: Public Perception and the Judicial Process’,
Institute for Security Studies, Occasional paper, No 43 – November 1999
52
Schonteich, M. & Louw, A. ‘Crime Trends in South Africa 1985-1998’, Paper commissioned by the
Centre for the Study of Violence and Reconciliation as part of a review of the National Crime
Prevention Strategy carried out for the Department of Safety and Security, June 1999.
53
Interestingly, the public’s fear of political crimes has largely followed empirical trends regarding
political violence.
54
Van Zyl Smit, D (1999) ‘Criminological Ideas and South African Transition’ BJC, Vol 39, Issue 2,
198-215 citing NEDCOR/ISS (1997), ‘Crime Index’ Midrand: Criminal Justice Information Centre
55
Skelton A.: ‘Restorative Justice as a Framework for Juvenile Justice Reform: A South African
perspective’, British Journal of Criminology 2002, forthcoming
56
Human Sciences Research Council: ‘The Democratic Transition and Crime in South Africa: the
Record of the 1990s’ Nedbank ISS Crime Index, Volume 3 1999, Number 2, March-April
57
Decoding South Africa’s 1999 Electoral Geography, Stephen Rule, Human Sciences Research
Council, Paper presented at Third Biennial International Conference of the Society of South African
Geographers, Windhoek, Namibia, 5-9 July 1999.
50
9
parliamentarians58. This dissatisfaction was creating a demand for tougher
government action to deal with crime and criminals and in response, the political
parties promised tough action on youth crime, if they were elected.
The public’s low opinion of the criminal justice system in tackling crime, is in part
due to the reports of rising crime, but is further compounded by their belief that the
judiciary is far too lenient in its treatment of young offenders. However, a Survey
carried out by the Institute for Security Studies and the Institute for Human Rights and
Criminal justice Studies at Technikon South Africa, showed that the public is neither
more nor less punitive than the current judiciary. The misconception that the judiciary
is too lenient has arisen through lack of communication and information sharing,59
and misinformation disseminated by the media.
International influence
South Africa ratified the Convention on the Rights of the Child in 1995 and was the
first international convention to be ratified by South Africa (unable to ratify under the
previous regime). The review of legislation pertaining to children, therefore, enjoyed
high political profile and support.60 The juvenile justice articles of the CRC, have
informed and shaped debates on the reform of the juvenile justice system and has
encouraged the establishment of a separate system of justice for children (Child
Justice Bill). The juvenile justice supporting instruments of the CRC61, have also
informed policy development62. The CRC was used by NGOs as a guiding document
for children’s rights, even before the Government had ratified it.
Although the CRC was the initially used in the CRC to promote and ensure children’s
rights, South Africa tends to favour the African Charter, which was ratified in 2000. It
does not substantially differ from the CRC but it does focus more on responsibilities
and rights and the collective idea of rights and justice, seen as more appropriate to the
cultural context in South Africa than the individualised approach of the CRC.63 The
African Charter also fits well with the concept of restorative justice, which has been
formally piloted in recent years64 in order to divert children away from the criminal
Hunter-Gault C.: ‘South Africans Ponder a Return to the Death Penalty’, CNN online, April 24,
1999. This figure was taken from a poll conducted a few years before the election.
59
Schonteich M.: Sentencing in South Africa: Public Perception and the Judicial Process’, Institute for
Security Studies, Occasional paper, No 43 – November 1999
60
Sloth-Nielsen J.: ‘Children’s Rights and Law Reform in South Africa: An update from the juvenile
justice front’ Julia Sloth- Nielsen, Visiting Fellow, Centre for Public and International Law, Australia
National University (Member: SA Law Commission Project Committee on Juvenile Justice)
61
The UN Standard Minimum Rules for the Administration of Justice (UN Res. 40/33 – Beijing
Rules), the UN Rules for the Protection of juveniles Deprived of their Liberty (UN Res. 45/113 – JDLs
1990 Annex 4), the UN Guidelines for the Prevention of Juvenile Delinquency (UN Res. 45/112 –
Riyadh Guidelines 1990 Annex 3), Guidelines for Action on Children in the Criminal Justice System
(ECOSOC Res. 1997/30, Administration of Juvenile Justice)
62
See generally National Institute for Public Interest Law and Research Juvenile Justice Instruments
1996; Inter-Ministerial Committee on Young People at Risk In Whose Best Interests? Report on Places
of Safety, Schools of Industry and Reform Schools (1996); cited in Juvenile Justice reform: children’s
rights and responsibilities versus crime control Ann Skelton, in Children’s rights in a transitional
society, Proceedings of a conference hosted by the Centre for Child Law in Pretoria, 30 October 1998,
Protea Book House, ed CJ Davel
63
Skelton A.: ‘Juvenile Justice Reform: Children’s Rights and Responsibilities versus Crime Control’
in ‘Children’s Rights in a transitional society’ Proceedings of a conference hosted by the Centre for
Child Law in Pretoria, 30 October 1998, Protea Book House, ed CJ Davel
64
“In 1992 NICRO began to introduce the idea of diversion of children away from the criminal justice
system, and they promoted this using the language of restorative justice. In 1995 the Inter-Ministerial
Committee on Young People at Risk set up a pilot project on Family Group Conferences in Pretoria.
58
10
justice system and detention, but has existed in the country’s traditional justice system
for a very long time.65
The influence of international children’s rights instruments can be seen in the Child
Justice Bill. The Law Commission also recommended raising the age of criminal
responsibility, from seven years to 10 years, reflecting the concerns of the Committee
on the Convention on the Rights of the Child that the minimum age of criminal
responsibility should not be set too low. However, the international principles used
have been Africanised to reflect the importance of the family and community. 66 In this
way the South African public do not feel that they have had foreign concepts of
justice, and the treatment of their children, thrust upon them.
South Africa has looked to laws and practices in other countries to inform the juvenile
justice debates, with mixed results. While the Project Committee have drawn
beneficially from examples of progressive reforms in juvenile justice in other
countries, South Africa has recently been influenced by the tough crime controls in
the United States, to the detriment of children’s rights in South Africa.67
CONCLUSION
The children’s rights movement and the campaign to reform the criminal justice
system, began before South Africa had ratified the Convention on the Rights of the
Child, and almost a decade before they became State Party to the African Charter on
the Rights and Welfare of the Child. The desire to protect the rights and welfare of
children went hand in hand with the transition into a democratic society. Public
consciousness was deeply affected by positive rhetoric about children in conflict with
the law and the wheels for reform were set in motion with public support. Further,
idea of restorative justice, which has driven much of the juvenile justice reform, fitted
in with a society attempting to reconcile and move on from the atrocities committed
under the Apartheid regime.
Although, it must be acknowledged that the honeymoon period for children’s rights,
following the first democratic election was short lived, and the issues of crime control
now seem to somewhat overshadow the children’s rights agenda, the legacy left by
this positive attitude to children’s rights in this period is still evident. Children’s rights
rhetoric is still prevalent in the speeches of a number of politicians, even though the
action is sometimes lacking,68 and the Child Justice Bill reflects many of the reforms
The project ran 42 family group conferences, testing the setting up of conferences, mediation,
outcomes, community participation, and victim and offender satisfaction. The report of the project
provides a valuable resource indicating the practical implications of making family group conferences
part of a future juvenile justice system.” 64 Skelton A.: ‘Juvenile Justice Reform: Children’s Rights
and Responsibilities versus Crime Control’ in ‘Children’s Rights in a transitional society’ Proceedings
of a conference hosted by the Centre for Child Law in Pretoria, 30 October 1998, Protea Book House,
ed CJ Davel
65
ibid
66
Skelton, A and Potgieter, H., ‘Juvenile Justice in South Africa’, Juvenile Justice Systems:
International Perspectives, 2nd ed, ed J Winterdyk, Canadian Scholars Press: Toronto, 2002.
Forthcoming
67
ibid.
68
Skelton A.: ‘Juvenile Justice Reform: Children’s Rights and Responsibilities versus Crime Control’
in ‘Children’s Rights in a transitional society’ Proceedings of a conference hosted by the Centre for
Child Law in Pretoria, 30 October 1998, Protea Book House, ed CJ Davel
11
that the NGO community was campaigning for, suggesting that child rights arguments
have been able to hold out against the descent into a ‘get tough’ system. 69
The NGO movement has been instrumental in promoting children’s rights, raising
public awareness through its campaigns and by manipulating the media. As concerns
about fear have risen, the NGOs have tried to counteract the media portrayals of
children in conflict with the law. Their efforts have also ensured that the Government,
in responding to public fears and demands for tough action, has not significantly
increased the punitiveness of the juvenile justice system and that the rights in the
Child Justice Bill have not, as yet, been significantly eroded. At the same time the
NGOs have recognised that they must, to some extent, ‘play the political game’ and
work with the current political climate and use politically correct language in order to
promote children’s rights. South Africa is therefore an important example of how
effective NGOs can be in the implementation of the CRC in a State.
While public opinion, as it stands, is detrimental to the implementation of the juvenile
justice articles of the CRC, appeasing public demands has not prevented the
development of a juvenile justice system (i.e. Child Justice Bill). However, such
strong public opinion will continue to impact on juvenile justice policy because the
government priority is to maintain the support of the majority of the country. In order
to fully implement the CRC, the government must take on the responsibility of
making the public more willing to accept reform. The government needs to counter
the negative images of juvenile criminals that exist. Responsible publication of crime
statistics would help put public fear over crime into perspective. They must also
promote the Child Justice Bill as a document that will provide children with the
safeguards that they are entitled to, while reassuring the public that the new system
will not represent a soft option or put society in any danger. As previous experience
has shown, the government must ensure that the necessary structures and systems
exist to cope with the new legislation before it is implemented, otherwise there will
inevitably be a public backlash against what could prove to be a very beneficial
document for children’s rights in South Africa.
69
ibid.
12
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