BILL WATCH 22/2022
[29th May 2022]
The Child Justice Bill
The Child Justice Bill was published in the Gazette on the 3rd December last year and is currently awaiting its Second Reading in the National Assembly; it can be accessed on the Veritas website [link]. According to its memorandum, the Bill’s objective is to establish a distinct criminal justice system for dealing with children in conflict with the law and to afford such children protection in line with the Constitution and Zimbabwe’s international obligations.
The Constitution and International Law on Children
According to sec 81 of the Constitution:
· Children (i.e. boys and girls under the age of 18) have the right to equal treatment before the law, including the right to be heard – which means they have a right to express their views and have their views considered in legal proceedings
· Children should not be detained, except as a last resort, and if they are detained it should be for the shortest appropriate time and they should be kept apart from adults
· In all matters affecting children, their interests must be regarded as paramount, i.e. of overriding importance.
International al law
Zimbabwe is a party to two international instruments dealing specifically with child justice:
· The UN Convention on the Rights of the Child: Article 40 of this Convention states that children who infringe the criminal law must be accorded the same basic rights to which all accused persons are entitled in terms of sec 70 of the Constitution. The Convention in addition provides that children:
o must be treated in a manner that reinforces their respect for other people’s rights, takes account of their age, and promotes their re-integration into society, and
o must have legal or other appropriate assistance in the preparation and presentation of their defence.
The Convention also urges member States to deal with such children without recourse to ordinary criminal trials and instead to rely on counselling, probation, vocational training and similar measures.
· The African Charter on the Rights and Welfare of the Child: Article 17 of this Charter gives further specific rights to children who infringe the law, in particular:
o Their guilt or innocence must be determined as speedily as possible,
o The public and press must be excluded from their trials, and
o The essential aim of any treatment must be to reform the children, to re-integrate them into their families, and to rehabilitate them into society.
Outline of the Bill
The Bill proposes to give substance to these rights by establishing procedures and systems to deal specifically with child offenders, recognising that they are not adults and that they need to be reformed and reintegrated into society. The most important changes the Bill will make to the existing law are:
· To alter the age at which children become responsible for their crimes,
· To limit the circumstances in which children can be arrested,
· To limit the circumstances in which children can be detained, and to ensure that, if detained, they are kept separate from adults,
· To provide for child offenders to be dealt with outside the court system,
· To provide for the legal representation of children,
· To encourage restorative rather than retributive justice,
· To establish child justice courts.
· To provide for sentences that may be imposed on children who are convicted of crimes.
We shall deal with each of these in turn.
Criminal Capacity of Children
Under the Criminal Law Code, children below the age of seven are regarded as incapable of committing crimes, i.e. they are not legally responsible for their criminal conduct and cannot be prosecuted. Older children, aged between seven and 14 years, are presumed to be incapable of forming the necessary intent to commit crimes, but if evidence at their trials shows that they can form such an intent then they can be found guilty and dealt with accordingly.
The Bill proposes to amend the Criminal Law Code to alter these ages: children under the age of 12 will be legally incapable of committing crimes, and children aged between 12 and 14 will be presumed incapable unless the contrary is proved. For children between the ages of 14 and 18 (and as we mentioned earlier, the Bill regards everyone under the age of 18 as a child) the usual rule will apply, namely that they will be regarded as fully capable unless they are shown to be incapable through, for example, mental disability.
Comment: It may be noted that the South African Child Justice Act, 2008, fixes the age of criminal capacity at 10 rather than 12 years.
Assessment of age
Obviously it is important for the age of a child to be assessed, and the Bill contains elaborate provision for this to be done – over-elaborate in fact, because it entails the police referring young children whose age is in doubt to child protection officers, who have to assess their age and fill in reports in the prescribed form which will have to be sent to diversion committees, prosecutors and magistrates before the children can be brought to court – or indeed before anything else can be done with them.
Comment: This procedure is too complex and lengthy to be practicable. It should be simplified.
Arrest of Children and Bringing them to Court
The Bill restricts the circumstances in which children can be arrested and encourages the use of other methods of bringing them to justice:
· Clause 12 of the Bill prohibits police officers from arresting children under the age of 12. Instead of arresting them police officers must convey them to an institution designated as a place of safety under the Children’s Act and notify their parents or guardians.
· Clause 14(1) appears to prohibit police officers from arresting children, whatever their age, for a crime listed in the First Schedule to the Bill [the clause calls them “minor offences”, though theft – which is one of the listed crimes – can be very serious indeed]. We say “appears to prohibit” because the clause is unclear and may mean that children can be arrested for minor crimes if there are substantial and compelling reasons justifying the arrest. The point needs to be clarified.
· Clause 14(2) will oblige police officers to consider alternative methods of bringing children to justice before arresting them for crimes listed in the Second Schedule [these are more serious crimes such as culpable homicide, robbery and indecent assault].
· Under clause 14(4) private persons will be entitled to arrest children of any age for any crime, though they will not be allowed to use force to make the arrest.
· Clause 15 will allow warrants to be issued for the arrest of children but the clause makes reference to the “holding over” of such warrants – it is not clear what that means; again the point needs to be clarified.
· Children who are arrested by the police will have to be informed of their rights in the presence of their parents or guardians, and within 12 hours after arresting a child the police will have to inform a child protection officer of the arrest.
Comment: These provisions are designed to ensure that children are arrested only as a last resort – which is admirable – but there are problems with them aside from their lack of clarity:
o It will not be possible for the police to arrest children under 12, even to stop them committing crimes.
o The provisions apply only to arrests by police officers, not by other officials who are given arresting powers by the Criminal Procedure and Evidence Act. Those other officials will continue to have untrammelled power to arrest children of all ages. So too will private persons.
Detention of Children
The general effect of the Bill will be that children – young people under the age of 18 – may be detained only as a last resort and, if they are detained, should be treated humanely and kept separately from adults – and boys and girls will have to be detained separately. In addition, the Bill will make the following changes to the law:
· The police will have to keep registers identifying all children held in police stations [clause 23]. It is not clear to what extent these registers will be open to inspection by interested parties.
· Children held by the police for minor crimes will have to be released into the custody of their parents or guardians before their first appearance in court, unless exceptional circumstances warrant their continued detention [clause 24].
· Any complaints that a child has been injured or traumatised while in police custody will have to be recorded and referred to the Zimbabwe Human Rights Commission for investigation [though who is to refer such complaints to the Commission is not stated]. If complaints of injury are made in court, the presiding officer will have to send the child to be medically examined [clause 22].
· If children are remanded in custody pending trial they will not be detained in prison unless there is no alternative, and if they are detained in a prison they will have to be kept separate from adults. They will be remanded at most for periods of seven days at a time, not the usual 14 days, and at each court appearance the presiding judge or magistrate will have to go into the question of whether they must be kept in custody [clause 25]. They should normally be released after 30 days [ clause 26].
· Normally children will be released into the custody of their parents or guardians rather than held in custody [clauses 26 and 29].
Comment: Generally these provisions are admirable. Even if they are not wholly implemented they should reduce the psychological and sometimes physical trauma suffered by children who come into contact with the criminal justice system.
Assessment and Diversion Procedures
“Diversion” in the context of the Bill means dealing with children outside the formal court system, and the Bill will encourage this to be done where possible.
Assessment of children
Before being diverted children will have to be assessed to determine their personal circumstances and whether they are suitable for diversion [clause 34 of the Bill]. Assessments will be conducted by diversion officers and child protection officers [diversion officers will be social workers and other professionals designated by the Minister of Justice, while child protection officers will be what are now called probation officers].
Having assessed a child, the officers will prepare a report and send it to the diversion committee established for the area in which the crime was committed. [Disconcertingly, the Bill does not say how diversion committees are to be established or who their members will be. This omission must be remedied, because the committees will perform an important role in implementing the Bill’s provisions]
Admissions and confessions made by children while being assessed will not be used in evidence against them in subsequent legal proceedings [clause 40 of the Bill].
Diversion of children
A diversion committee will consider assessment reports sent to it by diversion officers or child protection officers, and if the committee considers the children concerned suitable for diversion it will refer them to diversion officers to be dealt with in accordance with the committee’s decision. A committee will not however be able to divert a child who is charged with a serious crime unless there are special circumstances and the Prosecutor-General has agreed to it [clauses 43 and 45 of the Bill]. There is also a suggestion in clause 43(3) that a child cannot be diverted unless he or she has admitted committing the crime – this point needs to be clarified.
Diversion options are set out in clause 42 of the Bill and include:
· For less serious crimes specified in the First and Second Schedules to the Bill: apologising to the victim, being cautioned by the police, counselling and therapy, attending victim-friendly mediation sessions or family group conferences, compulsory education or training for up to six months, and being ordered not to go to a specific place or area.
· For more serious crimes specified in the Third Schedule: any of the options previously mentioned, as well as service to the community or the victim for up to 250 hours, and referral to victim-offender mediation or to a family group conference.
It will also be possible under clause 70 for a criminal court to refer children to a children’s court established in terms of the Children’s Act.
The Ministry of Social Welfare will be obliged to keep a register of all diversions; the entries will be deleted after two years if the children who have been diverted have not re-offended [clause 44].
It should be noted that children may be diverted even after they have appeared in court, so long as the prosecutor consents [clause 68].
Comment: Making provision for the diversion of children out of the criminal justice system is admirable, but as we have pointed out, the provisions need to be clarified in several respects.
It will be remembered that the UN Convention on the Rights of the Child states that children must have legal or other appropriate assistance in the preparation and presentation of their defence.
Part VIII of the Bill, which deals with legal representation, is a bit equivocal. Clause 57(1) goes no further than section 70 of the Constitution, which states that everyone accused of a crime is entitled to be represented by a lawyer at their own expense. If a child or his or her parents cannot afford a lawyer, the Bill gives three options:
· The child may be represented by a lawyer provided by a child-rights organisation [clause 57(3)], or
· The child may be represented by a child protection officer [clause 59(2)], or
· The State may – not must – provide the child with a lawyer under the Legal Aid Act [clause 59(1)].
On the other hand, according to clause 59(3) a child may not be called on to plead in a trial until a legal representative – a term which usually means a lawyer – has been appointed.
Further confusion is added by clause 63(1), which states that children must be assisted during court proceedings by their parents, guardians or custodians.
Comment: Legal representation is so important in ensuring that justice is done, particularly to children, that these provisions must be clarified.
The Bill defines restorative justice as “the promotion of reconciliation, restitution and responsibility through the involvement of a child, the child’s parent, family members, victims and communities”. Although the definition does not expressly cover compensation for victims, the Bill clearly envisages it as an aspect of restorative justice.
There are two mechanisms by which the Bill will deliver restorative justice:
· Victim-offender mediation, to give victims the opportunity to tell child offenders the harmful effect of their crimes and allow offenders to apologise and make amends. Mediation sessions will be organised by diversion officers or child protection officers, though they will be held only if the offenders and the victims agree to attend [clause 48]. The person who convenes a mediation session will have to keep a record of it and of its outcome, and the record will be sent to a diversion officer or child protection officer for the area in which mediation took place.
· Family group conferences, which will be held if a child offender is referred to one by a diversion committee, a prosecutor or a court [clause 50 of the Bill]. According to clause 52 the people entitled to attend a family group conference will include the child, his or her parents, guardians and lawyer, the victim, the prosecutor, child protection officers, diversion officers, police officers and paralegals (though the Bill does not explain who they are). The family, in short, may be overwhelmed by officials. Family group conferences will be expected to come up with a plan for dealing with child offenders in a way that is appropriate for the children, their families and local circumstances [clause 54].
Although the Bill does not say so, it seems that the child will have to admit the crime before either of these procedures can be resorted to.
Comment: These procedures for dealing with children outside the court system, by involving family and victims in the process, are admirable.
Child Justice Courts and Their Procedure
According to clause 61, provincial and regional magistrates courts and the High Court will be child justice courts for the purposes of the Bill. In regard to provincial magistrates courts, this is regrettably vague because it could mean either that:
· All courts established for a province under section 4(2) of the Magistrates Court Act are to be child justice courts, whether those courts are presided over by ordinary magistrates, senior magistrates or provincial magistrates, or
· Only courts presided over by magistrates of the grade of provincial magistrate will be child justice courts, which will mean that more junior magistrates will have no jurisdiction to try criminal cases against children.
The ambiguity must be removed.
Courts other than child justice courts will have power to try criminal cases brought against children only if the children are alleged to have committed their offences together with adults and a court has decided that there are compelling reasons for them to be tried jointly with the adults [clause 66].
Procedure at trials in child justice courts will be informal and “child friendly”. In particular:
· The children will be assisted by their parents, guardians or custodians, where they can be found. If any of those persons fail to come to court after being warned to do so, they will be liable to punishment [clause 63(5)].
· The children must be informed of the allegations against them and of their rights, in particular of their right to legal representation [clause 64(1)].
· The court must help the child in examining witnesses so as to elicit the truth [clause 64(2)].
· Trials of children must be dealt with quickly and given priority on the court roll [clause 67(2)].
· The public will not be allowed to attend trials of children and, except in special circumstances, the proceedings will not be published [clauses 64(10) and 69].
Sentences to be Imposed on Children
The Bill will require sentences imposed on children to be appropriate to their age and to promote their reform and reintegration into society; detention will be imposed only as a last resort and for the shortest possible time [clause 72].
Except for petty crimes specified in the First Schedule to the Bill, and to avoid undue delay, a court will have to get a report from a child protection officer or social worker before sentencing a child, and should generally follow the recommendations contained in the report [clause 73].
The sentences that may be imposed on children will be:
o any of the diversion options we mentioned above, e.g. referral to victim-offender mediation or family group conferences [clause 74]
o service for the community or for an individual, presumably the victim of the child’s crime [clause 74]
o a fine, which may be imposed with an alternative of compensating the victim, performing a service or “symbolic restitution” – though the Bill does not explain what that means [clause 79]
o being sent to a place of safety or remand home [clauses 75 and 76] and
o being sent to prison – though this will only be imposed for serious crimes where there are substantial and compelling reasons for such a sentence, and sentences of imprisonment will never exceed 12 years [clauses 75 and 77]. If they are sent to prison children will have to be segregated from other prisoners and sexes accommodated separately.
o All sentences involving detention will have to be reviewed by a judge of the High Court.
A court sentencing a child may under clause 83 of the Bill make an order that the record of the case should be expunged, i.e. destroyed, after a stated period so long as the child complies with conditions such as not committing further crimes.
Comment: These provisions, like many others in the Bill, are to be applauded.
As we have shown in this bulletin, the Bill will introduce reforms into the criminal justice system which, if implemented, will greatly improve the treatment of children and young persons. There are, however, problems with the Bill and hurdles to be overcome before it can be implemented:
· The Bill is carelessly drafted. We have mentioned many anomalies and ambiguities that will have to be rectified, but there are a great deal more. Statutes that deal with criminal procedure, as the Bill does, need to be particularly clear and precise to avoid mistakes being made in the course of trials. The Bill will have to be amended extensively at the Committee Stage to remove the anomalies and ambiguities; perhaps it should be withdrawn and redrafted.
· Some of the provisions in the Bill seem impractical and time-consuming: the procedures for arresting or apprehending children are particularly so.
· Everyone involved in law enforcement – police, prosecutors, magistrates, judges and prison officers – will need extensive and continuous training to understand the law and be able to carry out their duties under the Bill. Without such training, the Bill may become little more than a pious aspiration.
· A lot of extra trained staff will have to be employed at public expense. There will have to be enough child protection officers and diversion officers in every district to implement the Bill.
These problems and hurdles are not insurmountable, and if they can be overcome the Bill will allow children to receive real justice appropriate to their age.