JOURNAL ISSUE 15

2007/2008

 

 

Children's Rights, Restorative Justice and South African Youth Justice Law Reform

Dr Brian Stout, Principal Lecturer
Community and Criminal Justice Division
De Montfort University, Leicester
United Kingdom, LE1 9BH.

Keywords: South Africa, youth justice, restorative justice, children's rights


Introduction


Restorative Justice and South Africa have become closely associated in the minds of academics and practitioners. Both the Truth and Reconciliation Commission and the proposed child justice law reforms have received considerable positive international approval and are often mentioned when restorative justice is discussed. This paper will explore the role of restorative justice in the transition of South Africa and its links to children's rights. It will start by discussing the children's rights context before describing how restorative justice has played a part in the campaign for children's rights in South Africa. In the final section it will explore some of the potential dangers of the emphasis on restorative justice in the South African criminal justice system.


In discussing restorative justice, children's rights and states in transition, there are obvious parallels that could be drawn between South Africa and Croatia. This paper will not attempt to draw such parallels; rather, it will be left to the reader to make such comparisons as might be appropriate.


South African Politics and Recent History


It is clearly not possible to do justice to the whole of South African history in a few short paragraphs; so, this section will concentrate on the aspects of the changes in the last decade that have most relevance for the present discussion. These consist of the political context, the Constitution and the Truth and Reconciliation Commission (TRC).


The recent political development of South Africa has been dominated by the fall of apartheid and the introduction of a new, democratic government. Apartheid, a policy of racial segregation and "separate development," was introduced in 1948, and for over five decades black people in South Africa were subjected to systematic discrimination in every sphere (Reader, 1998; Burger, 2003). Throughout the entire period of apartheid the discriminatory policies were opposed by a resistance movement led by the African National Congress (ANC). This national and international campaign culminated in eventual success in the 1990s with the release of Nelson Mandela, the unbanning of the ANC and the first democratic elections in 1994 (Burger, 2003). Apartheid's social policies generated violence and other crime, having a massive effect both on crime levels and the criminal justice system (Brewer, 1994; Shaw, 2002). Children in particular suffered violence, abuse and other trauma as a consequence of apartheid (Rock, 1997; Wedge, Boswell, & Dissel, 2000). That effect is still evident today since much of the inequality established under apartheid still prevails (Shaw, 2002).


The ANC emerged from the 1994 election with 63% of the vote (Stober & Ludman, 2004). It has increased its majority in the two subsequent elections, winning 66% of the vote in 1999 and 70% in 2004 (Stober & Ludman, 2004). The ANC-led government has been endeavoring to reconstruct the country, but the needs are so great and so varied that it has been a slow and sometimes frustrating process. As well as the criminal justice system, the government has had to give attention to economic empowerment, housing, education and health, including the impact of HIV/ AIDS (Burger, 2003). South Africa continues to be characterized by huge economic disparities; Human Rights Watch estimates that 22 million people, out of a population of 45 million, live in extreme poverty (Human Rights Watch, 2005).


The Constitution of the Republic of South Africa (Act 108 of 1996), took effect on February 4, 1997. A constitution sets the supreme law of the land, and South Africa's Constitution is now acclaimed as one of the most progressive in the world (Burger, 2003). Its stated aims include the establishment of a society based on democratic values, social justice and human rights, and the healing of the divisions of the past (Burger, 2003). The specific constitutional provisions relating to children who offend are outlined later in this article.


Since 1990 South Africa has been a country in transition. The relationship between crime and that transition is a complex one (Dixon, 2002, 2004), but it is clear that the criminal justice system has been affected in the need to devise new laws, create new institutions and respond to the requirements of the Constitution. The next section will outline how the child justice system developed through this period.


Children's Rights in South Africa


Scraton and Haydon (2002) argue that an emphasis on children's rights is a way of protecting the weak from the possible abuses of the strong and of promoting a welfare approach instead of merely a just-deserts approach. They identify three ways in which a children's-rights approach, in particular one based on the United Nations' Convention on the Rights of the Child (UN CRC; United Nations, 1989), should lead to a welfare approach to child justice. Firstly, the status of children means that they should receive a different response from adult offenders, simply by virtue of being children. Secondly, priority should be given to children's welfare so that they receive treatment and support rather than punishment or deterrence. Thirdly, children should be able to participate fully in decisions that affect them. A rights-based approach should protect and promote the interests of children.


In South Africa, the children's rights approach can be traced back to before the first free elections in 1994. Much of the emphasis on children's rights can be seen in the developments described in the earlier part of this article. Some of the advocates for the implementation of child-justice legislation became familiar with arguing from a children's-rights perspective in the, ultimately, successful fight against the use of corporal punishment in the criminal justice system. The use of whipping as punishment was declared unconstitutional in S. vs. Williams and others (1995), 3 SA 632 (Constitutional Court), in what was seen as an important recognition of the essential humanity of all South African subjects. This decision along with national and international legal developments, such as the adoption of the Constitution, informed the public debate on children's rights throughout the 1990s. Two high-profile events, the death of young person Neville Snyman in custody and the chaos caused by the premature release of child prisoners in 1994, also had a significant influence on debate. The advocates of a rights-based approach to child justice within South Africa saw the incorporation of Section 28 into the Constitution as a significant triumph for their campaign. Child-justice reformers also relied heavily on international instruments such as the UN CRC, which are referred to by the Law Commission in its recommendations for change that have become formulated in the Child Justice Bill.


The Constitution


Although the ascendancy of the children's-rights approach can be traced back to before the first democratic elections (Pinnock, Skelton, & Shapiro, 1994; Skelton, 1999; Van der Spuy, Scharf, & Lever, 2004) the campaign to develop and implement child-justice legislation in the new South Africa took its impetus from the enshrining of children's rights in the South African Constitution, 1996 (Act 108). The Constitution provides special rights to children and child-justice legislation, both new and existing, must be interpreted in light of the constitutional requirements (Singh, 1995; Sloth-Nielsen, 1996).


Section 28 of the Constitution provides for children's rights; the general principle that a child's best interest is of paramount importance is stated in s28 (2). Section 28 (1) deals specifically with children and provides that children should only be detained as a matter of last resort, for the shortest possible time period and kept separately from adults.


The advocates of a children's-rights approach to child justice within South Africa saw the incorporation of s28 into the Constitution as a major victory for their campaign (Sloth-Nielsen, 1996a; Skelton, 1998). However, as described below, both sentenced and unsentenced children continue to be incarcerated in adult prisons and other residential facilities (Sloth-Nielsen & Muntingh, 2001; Fagan, 2004). This can be put in a general context of the government seeking to implement the harshest possible criminal justice regime that can be permitted under the constitution (Van Zyl Smit, 2001).


International Law


As well as in its own constitution, South Africa is also committed to international instruments that enshrine the rights of children. South Africa ratified the UN CRC (UN, 1989) in 1995. This Convention deals with a broad range of children's rights and provides a framework within which the issue of child justice must be understood (Hammarberg, 1994; UNICEF, 1998; Sloth-Nielsen, 2004). By ratifying the Convention South Africa is now obliged, under article 40(3), to establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law. The UN CRC is a binding instrument and the South African Law Commission (SALC) lists other international instruments that have a bearing on children in conflict with the law in South Africa (SALC, 1996). These instruments include the UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines; UN, 1990a), the UN Rules for the Protection of Juveniles Deprived of their Liberty (UN, 1990b) and the Beijing Rules (UN, 1985). One of the aspects of the Beijing Rules that has been enthusiastically accepted in South Africa is the emphasis on diversion from criminal justice processing as the central principle of any future child-justice system.


The African Charter on the Rights and Welfare of the Child (African Children's Charter; Organization of African Unity [OAU], 1990) also deals with the Administration of Juvenile Justice in Article 17. The African Children's Charter does not differ substantively from the UN Charter but is sometimes preferred in South Africa because its more collective, rather than individualistic, focus fits in more closely with perceived African traditions of the interdependence of communities (Skelton, 1998; Viljoen, 2000). The African Children's Charter takes a more collective approach to rights, blending the rights of children with the rights of family and community.


The international instruments described above influenced the Law Commission in its drafting of the Child Justice Bill. There is recognition both inside and outside of South Africa that neither the obligations under international law nor the terms of the Constitution are being complied with (Kiessl, 2001; Fagan, 2004; McClain-Nhlapo, 2004). The introduction of the Child Justice Bill is expected to address these shortcomings.


The Development of a Children's-Rights Discourse


The ascendancy of a children's-rights approach in discussions of new child-justice legislation can helpfully be put in the context of the development of South African criminology. Historically there have been three major tendencies in South African criminological thought. Throughout most of the century the dominant criminological theoretical approach was a nationalist Afrikaner approach that justified apartheid as a means of crime control. The second approach was a form of liberal reformism, where lawyers and social workers recognized formal equality before the law and advocated managerial fairness without challenging the status quo. The third radical approach, to which Van Zyl Smit (1999) gives the title "criminology for a new democratic South Africa," challenged the status quo and opposed the apartheid state.


During and after the process of transformation in the 1990s, nationalist criminology rapidly declined; liberal and especially radical criminology became the dominant approaches. Progressive criminologists gave thought to issues such as policing, community involvement and the treatment of child offenders. A conscious attempt was made to build a coalition of progressive forces that could unite around new ideas for dealing with children. There was a recognition that more than just diversion was needed; the concerns of the community had to be taken into account, and this led to reformers advocating for a restorative justice approach. Van Zyl Smit (1999) emphasizes the importance of the reform of child justice to South African criminological thinking and to the country as a whole. He suggests that it attracted more debate during the transitional period than any other criminal justice issue and was connected to ideas about how a future South African society might be organized.


The campaign for children's rights was led by those who would, in other times, have identified themselves with either the liberal or the radical traditions. They have both engaged in theoretical debate and played a part in social reconstruction. Children's-rights campaigners have not merely concentrated on legislative change, but have also been involved in designing and implementing diversion programs, such as SAYStOP and the DIME project which anticipate the enactment of the Child Justice Bill. Other examples of criminological fields where this sort of engagement took place include work on peace committees and domestic violence legislation.


The emphasis on children's rights in the Child Justice Bill and the campaign to have it implemented is a product of the people who have been involved in drafting it and campaigning for it. Garland (2001) has described how penal-welfarism has lessened in popularity in the UK and USA due to the declining influence of the middle class professional elite; whereas in South Africa it could be argued that liberal professionals still have influence and have promoted a children's-rights approach.


In South Africa the main statutory influences on the Child Justice Bill have been the South African Constitution and the requirements of international instruments. It is the influence of professional elite that has achieved this emphasis on children's rights and this focus on national and international legal stipulations. This is true both for the content of the Bill and the public discourse around its implementation.


South African criminology has been able to influence the development of policy and legislation, particularly within the field of child justice, through the country's transition. In another transitional society, Northern Ireland, criminologists have been actively involved in developing restorative justice initiatives in communities where the police have not been accepted. It appears that societies in transition can be open to the influence of innovative criminological theory, allowing criminologists to become actively involved in the criminal justice decision making process in a way that would not otherwise be available to them. In South Africa the real influence that child-justice reformers have will perhaps not be truly known until it is clear if, when and in what form the Bill is implemented.


How does Restorative Justice fit into transitional South Africa?


Restorative justice has played an important role in the South Africa's transition from apartheid to democracy. It has proved to be a very attractive discourse to politicians, professionals and the public. This is partly because of its perceived links to traditional African justice and partly because of the coincidence between South Africa's transition and the immense worldwide interest in restorative justice in the 1990s. The relationship between restorative justice and transition will be outlined in relation to three aspects of South Africa:

  • The Truth and Reconciliation Commission
  • Traditional justice
  • Work with child offenders

The Truth and Reconciliation Commission


As a means to heal the wounds of apartheid and to instigate a commitment to accountability in South African public life, the government set up a Truth and Reconciliation Commission (TRC) under the leadership of Archbishop Desmond Tutu (Asmal, Asmal, & Roberts, 1997; Tutu, 1999; Boraine, 2000). The Commission reported in 2003; its report was accepted by the government and Parliament (Burger, 2003). Although by no means universally accepted as an unqualified success (Bell, 2001; Simpson, 2004), the TRC contributed to South Africa's relatively peaceful transition to a democracy and its perceived accomplishment has influenced the attitude toward restorative justice in South Africa's criminal justice system, including the child justice system (Skelton, 2002).


African Traditional Justice


It is claimed by advocates of restorative justice that it is a form of indigenous justice and that its introduction will be a way of integrating indigenous African justice with the formal legal system (Van Eden, 1995; Makhathini, 1996; Consedine, 1999; Tutu, 1999; Skelton & Frank, 2001; Christie, 2003). It is contrasted with a retributive criminal justice system, "imposed . by the former colonizers" (Stern, 1999, p. 239). Many examples are provided by restorative justice advocates of traditional African problem solving that is restorative and satisfies all parties to the conflict. These include examples of young people working on neighboring farms or parents donating cows to heal a hurt (Consedine, 1999; Van Eden, 1995).


However, it does not necessarily follow that a justice system that makes use of traditional African approaches and gives power to the community will always be restorative and promote the rights of children. Competing claims are made about the nature of African traditional justice, for example the claims of the vigilante group Mapogo. Mapogo claims, similar to the restorative justice advocates, to be dispensing distinctively African justice and describes African justice as placing an emphasis on instant justice for the victim, without a Western preoccupation with investigation and cross-examination. Mapogo has received support for this view from local traditional healers and leaders. The organization describes corporal punishment as being sanctioned by the ancestors and the only way to restore order and morality in communities (Ngobeni, 2001; Von Schnitzler et al., 2001).


Whether the intention is to seek a restorative approach or to advocate for the return of corporal or capital punishment, claims of representing traditional African justice are extremely problematic. There is no one African justice, just as there is no one African culture, but as many ideologies and traditions as there are tribes (Costa, 1998). To add to this diversity there is the complication that many African cultures have oral rather than written traditions, making any claim to historical veracity difficult to check (Costa, 1998). Attempts to link restorative justice to indigenous justice have been criticized as an appropriation of indigenous justice to strengthen the advocates' position (Tauri, 1999; Daly, 2002). Statements, such as the one referred to above, that a particular approach is sanctioned by the ancestors can have an extremely persuasive force, but are, by their nature, impossible to verify. Consedine's statement that African justice is "reconciling and healing"(1999, p.169) and Mapogo's philosophy that corporal punishment without due process is an African solution to crime, appear to be diametrically opposed but are probably both grounded in some truth.


Child Justice


Throughout the last decade South African child justice has been dominated by the drafting of new legislation: the Child Justice Bill and the campaign to enact this Bill. The Bill was drafted by the South African Law Commission as a means of complying with South Africa's obligations under international instruments and its own constitution. The Bill has been acclaimed internationally as a positive example of progressive legislation, based on restorative and progressive principles. However, the campaign to enact the Bill continues; although the Bill was introduced into Parliament in 2002, it has not yet been enacted.


Restorative justice has been a significant influence on the development of the Bill and on the provisions contained within it. In a similar way to other African countries, and in line with the recommendation of international instruments, the Child Justice Bill starts with a statement of principles and objectives. One of these objectives refers to restorative justice and relates it to the concept of ubuntu:


2. The objectives of this Act are to -
.
(b) Promote ubuntu in the child justice system through -
.
(iii) Supporting reconciliation by means of a restorative justice approach.


Archbishop Desmond Tutu provides an appropriate definition of ubuntu (1999, p. 34):


Ubuntu is very difficult to render into a Western language. It speaks of the very essence of being human. When we want to give high praise to someone we say "yu, u nobuntu;" "They, he or she has ubuntu." This means they are generous, hospitable, friendly, caring and compassionate. They share what they have. It also means my humanity is caught up, is inextricably bound up in theirs. We belong to a bundle of life. We say "a person is a person through other people."


To comply with the objective of promoting ubuntu through a restorative justice approach, the Bill makes specific provision for the use of family group conferences, victim-offender mediation and other restorative justice provisions at all stages of the criminal justice process (Skelton, 2002). Restorative justice processes can be used as a diversionary measure or as a sentence for minor and serious offenders, and for first time and repeat offenders; also, having previously participated in a restorative justice process will not be a barrier to being allowed to participate in another. Significantly, an earlier draft of the Bill did not seek to provide an exhaustive list of possible restorative interventions; it encouraged local communities and nongovernmental organizations (NGOs) to devise their own interventions (SALC, 1996). However, the provision that allowed the court to use non-specified, community restorative justice programs was removed from the subsequent draft of the Bill as the Department of Justice Portfolio Committee said that it was too vague a provision to be of use.


What are the potential dangers?


One of the concerns relating to restorative justice in the Child Justice Bill is the limited way that it provides for the needs of victims. This is mainly a consequence of the lack of similar reforms in other areas of the criminal justice system. There is a victims' movement in South Africa, but it is localized and fragmented, and the victims' interests often appear to be used to as a device to make wider political points about the failings of the South African government. Despite commitments from the government, many victims receive very little support, and any services that do exist tend to be delivered to victims of sexual assault or domestic violence (Lutshaba, Semenchuk, & Williams, 2002).


The issue of the protection of victims is of particular significance in cases of sexual assault, and recent South African research (Dissel, 2004) provides disturbing evidence that some victims may be re-victimized by Victim Offender Conferences. Dissel's (2004) research uncovered one case where a 15-year-old girl withdrew her complaint of rape at a conference where she did not appear to be offered appropriate support and advice, and a second case where the offender's parents verbally abused the victim. These examples highlight the need for conferences to be facilitated by appropriately trained staff, under supervision.


Another concern is that the restorative justice regime introduced by the Bill will fail to meet the most ambitious aspirations of the reformers and will simply be another sentencing or diversion option aimed at young, first-time, minor offenders.


Restorative justice interventions will not be indigenous schemes originating in the community, but will be accountable to the court and often facilitated by large, state-funded NGOs. The legislation permits such interventions to be used with all children who are diverted, or who receive diversion options as a sentence, and there is no specific prohibition on the type of offense or offender for whom it is available. However, there is no indication from the Department of Justice Portfolio Committee (PMG, 2003) that restorative justice interventions are any more likely to be used with high-risk children than any other diversion options.


My own research into the Child Justice Bill found that practitioners were aware of restorative justice, although schemes were not available in every area. Practitioners felt some reluctance about recommending restorative justice, particularly for a child who had previously received such an intervention. The Bill, diversion and restorative justice have become conflated in the minds of some of the practitioners so there is a strong correlation between the likelihood of considering restorative justice and the likelihood of considering diversion at all.


Restorative justice is popular, well understood and is likely to be well utilized with low-risk children. However, restorative justice may face the same effect as diversion in general: the law may prevent serious offenders from receiving a restorative justice intervention, certainly at least until after a court appearance, and the practices of child justice professionals may prevent restorative justice options from being made available to repeat offenders. What is certain is that restorative justice under the Bill will be tightly controlled, managed and accountable to the court. It will supplement the child justice system; it will certainly not provide a radical alternative. Although restorative justice elsewhere is used with serious offenders, there is nothing in the restorative justice discourse, as accepted by the South African child-justice system, which would allow any extra services to be provided for high-risk children.


As it is now late 2007 and the Bill has not yet been enacted it has to be acknowledged that the most significant risk to the development of children's rights in South Africa is that the Child Justice Bill might not be enacted.


What are the threats to children's rights in South Africa?


Although the children's-rights approach remains a significant ideology in current South African criminology and is a major informing ideology behind the draft Child Justice Bill, it is clear that political realities do provide significant resistance. The most dramatic victories of the 1990s have come not from radical criminologists but from liberal legal reformers who have succeeded in abolishing both capital and corporal punishment (Van Zyl Smit, 1999). The unfortunate release and absconding of child offenders, some of whom had committed violent offences, may have led to a public perception that promoting children's rights and preserving public safety were contradictory aims (Skelton, 1996). There is a dissonance between the language of children's rights used by campaigners and the public discussions of crime in South Africa.


A challenge to the emphasis on children's rights is posed by the social and political climate in which the child justice debate is occurring. Garland suggests that the UK and the USA have developed what he calls the "crime complex of late modernity" (2001, p. 163). This is a set of ideas and assumptions about crime that finds even more extreme expression in South Africa (Dixon, 2002). In South Africa the concern about crime is combined with a lack of faith in the state's ability to control it. In poor, rural areas individuals, and even businesses, will go to vigilante groups before they go to the police (Von Schnitzler et al., 2001) and in wealthier areas individuals rely on security firms for protection (Shearing & Kempa, 2001). This concern about crime and lack of confidence in the agents of the state makes it probable that at some point the state will "act out" the public view (Garland, 2001) and take a more punitive approach to child crime.


A threat to the children's-rights emphasis can be seen in incidents where child offenders were prematurely released. Van Zyl Smit (1999) has argued that the government's preoccupation with child crime and the criticisms that it faced after this incident could put the enactment of child justice legislation in jeopardy. The government demonstrated "wavering political will" when children's rights came into conflict with fears about crime (Sloth-Nielsen, 1999a, p. 475). The Bill still has obstacles to cross before its final enactment, and it is likely that the Act produced from the work of the Portfolio Committee will be vastly different to that submitted to it.


While child-justice reformers had some influence in drafting the content of the Bill, they have had less success in seeing that it is enacted and implemented. Sloth-Nielsen predicted that it would be "likely to be tabled in Parliament in 2001" yet it is 2007 and the Bill is still awaiting Parliamentary approval (2000, p. 393). Van der Spuy, Scharf and Lever (2004) argue that the twentieth century history of child justice in South Africa has been characterized by good intentions on the part of small numbers of individuals, which have not been implemented by the government. Perhaps this is the reason that children's-rights advocates have not solely concentrated on devising the legislation and campaigning for its implementation. They have also been involved in devising diversion programs that anticipate the Bill but are not wholly dependent on its implementation.


The amendments made by the Department of Justice Portfolio Committee demonstrate that the rights emphasis is not universally accepted within South Africa. Elected representatives, who are extremely sensitive to public opinion, are prepared to balance child rights against other demands, such as public protection and the need to be seen to punish (PMG, 2003). The Bill is framed within a children's-rights paradigm, but perhaps does not promote children's rights as strongly as it first appears to. As well as considering what the Bill says, it is important also to consider what is absent from it and the legal and social environment into which it will be introduced. Although the Bill does provide some new sentencing options for convicted child offenders, its emphasis is firmly on pre-trial diversion. After the Bill is implemented, serious or repeat offenders may find that they are dealt with in a very similar way to that in which they were dealt before its implementation. It is only first time offenders who have committed minor offenses who appear liable to be treated differently. The focus on diversion can be seen in the preparation of the various organizations for the Bill's enactment. Both NICRO and SAYStOP are targeting the bulk of their resources and their highest profile programs at the diversion level, with little, if any, work going into devising community interventions for sentenced serious and repeat offenders. There has also been no determined effort to build new places of safety or other residential accommodations for children who need to be detained. So there remains a risk that those who persist in offending or commit serious offenses may continue to be incarcerated in unsuitable accommodations. A commitment to universal children's rights will mean that consistent service will have to be offered throughout South Africa, and that children being treated in different ways depending on where they live will not be considered acceptable.
The system that may emerge could be similar to that referred to by the South African Law Commission as it explained the need to exclude some children from the new regime:


The realization 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 offenses) a chance to make up for their mistakes without being labeled 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. (SALC, 2000, p. 9)


The rights of children who commit serious offenses will have to be balanced against the rights of other groups in society. So, a children's-rights emphasis will not be sufficient, on its own, to protect all child offenders.


Conclusion


Restorative justice has played an important role in South Africa's transition. It can become an extremely important part of the South African child justice system, and can provide many benefits for victims, offenders, criminal justice professionals and the community. However, care should be taken in making the assumption that an approach that gives greater involvement to victims and communities is necessarily synonymous with the promotion of children's rights. Equally, it would be wrong to assume that a restorative approach that does promote the rights of the child will necessarily meet the needs of the community in all cases or reflect their ideas of what traditional justice is. The adoption of the United Nations Economic and Social Council (UNESC) Basic Principles on restorative justice (known as the Vienna Declaration; UNESC, 2002) would alleviate some of the concerns of those worried about human rights abuses, as these principles advocate consent, fairness and safety as part of the restorative process. However, this might also result in the loss of some claims to tradition and community leadership. As South Africa moves out of the initial transition phase and focuses on implementing legislation and embedding new institutions, it will need to continue to reflect on what sort of restorative regime it wants to promote.


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