Issued by: Portfolio Committee on Correctional Services
CHILDREN IN PRISON? - A DISCUSSION OF THE PROPOSED AMENDMENT OF SECTION 29 OF THE CORRECTIONAL SERVICES ACT
THE CENTRE FOR HUMAN RIGHTS UNIVERSITY OF PRETORIA 20 JANUARY 1996
By Carl Niehaus, MP
Chairperson of the Portfolio Committee on Correctional Services
Chairperson
Ladies and Gentlemen
The problems attending the change in legislation regarding the detention of juveniles charged with serious crimes is one that has received much publicity. I would immediately like to acknowledge that there are many and important reasons why juveniles should not be put in jails or cells.
The first relates to the general principle that, until an accused is found guilty, there is always the presumption of innocence and the possibility that one may be detaining an innocent person. Obviously in this regard, society has a special responsibility with regard to children.
Secondly is the concern that, through associating with hardened criminals and indeed the prison system itself, children very often become brutalised by the experience as well as being exposed to recruitment by gangs and other criminals. Ideally then children who have committed criminal offences should be placed in institutions aimed at rehabilitation - providing specialised programmes for children and juveniles.
I do not think there is any fundamental disagreement that children should not be detained in prison - not because any particular Minister decides that -, but because it is essentially a violation of human and child right. The fact that Section 29 of the Correctional Services Act of 1959 was amended last year in an effort to achieve exactly that, was a morally and legally correct action.
Unfortunately the amendments to Section 29 was promulgated in isolation of other relevant policy and legislation with regards to addressing the entire system of providing for children at risk. Children were released from prison into places of safety without preparing staff, and at a time when these places were already overcrowded and generally staffed by personnel who have received inadequate training. Promulgation should essentially have been followed by the establishment of the resources to effectively achieve its aims. Such resources involve effective secure care facilities which offer both security and therapeutic intervention, sufficient probation services, and a range of diversion and alternative sentencing options. Thus, the release and transfer of children should have been an integrated effort involving the various departments such as welfare, Correctional Services, Safety and Security, and Education.
In the implementation of a correct ideal, serious mistakes have been made. Mistakes which led to a public outcry and counter reaction, which has the potential to threaten the important gains that we have made with regards to an approach to children who come into conflict with the law, which is for the first time in the history of this country in line with international standards. For the sake of a realistic understanding of the problem that we are faced with, it must be pointed out that media hype has created the impression that a large number of children commit serious crimes, and that many of them escape from places of safety. Neither of these impressions are correct, we are talking about relatively small numbers, and it is totally wrong to say that the implementation of Section 29 led to a big increase in crime. The statistics do not support this assumption that has been created in the public mind. However, Government has got a responsibility to protect society, a responsibility that it cannot try to escape - even when the number of children who commit serious offences and escapee from places of safety are fairly small.
The Interministerial Committee for Children at Risk (IMC), chaired by Deputy-Minister Geraldine Fraser-Moleketi, has correctly taken the decision not to take a piecemeal approach to the crisis. It was not simply a matter of providing security guards and "quick fix" training of staff without addressing personnel and systemic issues. Such an approach would have served very little purpose. They were correct in insisting that it is not simply a matter of building more - and secure - places of safety, and that proper attention must be given to appropriate and adequate staffing, training and programmes. Places of Safety do not operate in isolation of children's homes, Schools of Industry, child and family welfare, families, communities etc.
Correct as this approach is, it does mean that money and time are needed in order to do the task at hand properly. A substantial amount of money has been allocated from the Reconstruction and Development Fund, and the IMC has moved as fast as possible with considerable progress.
However, in the meantime a number of children continue to escape or, because of a lack of space, are released effectively onto the streets where they have to fend for themselves and may commit further crimes. After much agonising about what to do, it became clear during the latter part of 1995 that INTERIM measures are needed in order to protect the public while the full programme of the IMC is put into place.
Therefore the private member's bill that I am introducing in Parliament proposes a shorter term measure to specifically distinguish between children who are accused of serious crimes such as murder and rape, and those who have committed minor crimes. The measure is specifically designed to protect communities against young people who threaten safety and stability, while facilities are being prepared. The bill therefore proposes that young people accused of serious crimes can, for the time being (as an interim measure) be detained in police cells or jails if the person in question is a threat to the public and where no alternative place of safety exists. It is, therefore, self-limiting in that, as facilities for the detention of juveniles improve, so will the need to keep them in prison and police cells be phased out.
The bill takes the form of a departure, or amendment, to Section 29 of the Correctional Services Act and proposes that juveniles accused of certain serious offences may be detained in a prison or police cell or lock-up if;
1) the offence committed is a serious offence of a category determined by the Minister of Justice by notice in the Government Gazette;
2) the presiding officer is convinced that the detention is necessary in the interests of the administration of justice;
3) there is no suitable place of safety available for the detention.
In terms of the amendment, the court must also review such a detention order on a weekly basis.
To ensure that it does not become a permanent feature of the justice system, the measure will expire after one year, unless it is extended by Parliament for one further year.
The EXTRAORDINARY INTERIM MEASURE FOR THE DETENTION OF CHILDREN, therefore, responds to an exceptional and temporary situation where no suitable place of safety exists and where the safety of the public is threatened.
It is not a long-term solution for the problem of children who commit serious crimes and therefore cannot be seen as a permanent feature of our legislation and will be phased out as and when secure places of safety are made available for the detention of juveniles accused of serious offences. As I have already indicated, due to the chronic lack of such facilities and the general historic neglect of juveniles in the justice system, it has become inevitable that such emergency measures are needed in the short term.
The EXTRAORDINARY INTERIM MEASURE must also be seen in the broader context of the development of the system of juvenile justice whose principle is the diversion of children and juveniles from the justice system. Community care and rehabilitation are essential features of this system and community structures will need to be strengthened and resources developed to deal with offending children/juveniles. In the case of children accused of serious crimes, proper facilities must be developed so that the safety of other children can be protected.
In discussing this measure I believe it will be wrong to simply resist this measure, because it is so obviously not the ideal. I can assure you that I am introducing this Private Member's Bill with great hesitation, and it gives me no pleasure to think that certain categories of child offenders in accordance with it's provisions will again probably be locked up in jail or police cells. However, we cannot ignore the responsibility that any democratic government has to find ways of protecting the community. What all of us should dedicate ourselves to is to ensure that this emergency measure will only be law for the shortest possible period. It should never again become a permanent feature of the administration of justice in our country, whose stated principle it is to ensure the right of children and juveniles according to the norms and standards of international human rights law.
Thank you.