Background to the the Child Justice Bill

The Report on Juvenile Justice and the draft Child Justice Bill, released by the South African Law Commission on 8 August 2000, heralds a significant and definitive moment in the process of reforming laws that apply to children who have come into conflict with the law. The date on which the Report and draft Bill were made publicly available, also marks the end of a structured process of consultation that took place over the period 1996 - 2000. The reform process undertaken by the South African Law Commission commenced with the appointment by the Minister of Justice, in 1996, of a project committee on juvenile justice. The Commission is a statutory body chaired by a judge of the High Court, with six other members (representing the legal profession) serving in a part-time capacity. The project committee on juvenile justice was tasked with investigating proposals for law reform relating to this subject. Currently there is NO dedicated legislation addressing children that come into conflict with the law. The various departments, policies, and laws that currently guide the way in which child offenders are handled is problematic and incoherent, and often causes serious violations of the basic childrens rights.

The process commenced with the preparation and publication of an Issue Paper, which was released by the South Africa Law Commission in May 1997. The Issue Paper contained very broadly framed questions in regard to which respondents were invited to provide comment. Following upon the release of the Issue Paper, the Commission embarked on an intensive process of consultation. A video was commissioned and used as the basis for introducing the issues relevant to juvenile justice reform. Not only were 13 workshops and briefings convened, but the project committee also prepared a simplified questionnaire that was widely distributed. The aim was to canvass a wide range of views. In November 1997, the Commission hosted what has been described as a 'well attended and vibrant' international drafting conference to debate in detail the content of the Issue Paper prior to the formulation of a Discussion Paper. The proposals contained and developed in the Discussion Paper incorporated the responses obtained and issued raised in the consultative process of the Issue Paper, as well as the recommendations of the international drafting conference. The Discussion Paper provided concrete proposals in the form of draft legislation, which included thorough motivation for the policy options that were selected, and was submitted for further public debate. The Discussion Paper was a far more extensive document, not only reviewing in detail the existing law, the available literature, and comparative law, but also providing comprehensive motivation for the content of the draft Child Justice Bill.

The Discussion Paper on Juvenile Justice was released by the Commission in December 1998, and thereafter subjected to intensive public consultation. In contrast to the first phase of consultation that followed the release of the Issue Paper, the second phase was characterised by specific focus group workshops, rather than general regional workshops. Thus, State Departments that would bear responsibility for the implementation of new legislation were consulted, a briefing was held with representatives of non-governmental organisations, with persons concerned with the provision of legal aid, and with members of various Parliamentary Portfolio Committees. The Report recorded that 12 workshops in all were held. Further, a dedicated two-day conference to examine social, political and anthropological factors influencing the setting of a minimum age of criminal capacity was co-hosted by the Centre for Child Law at the University of Pretoria and the project committee. A consultation process with children (mainly children who had had some contact with the criminal justice system) was commissioned to elicit children's views on the proposals contained in the Discussion Paper. Finally, a large number of written comments on the Discussion Paper were received from various academics, practitioners and institutions.

The responses and views expressed at workshops and in written comments were then taken into account in the preparation of the final Report, which again provides detailed argument concerning the content of the law reform proposals, and also contains the fully developed Child Justice Bill. The Commission's handing over of the Report to the Minister of Justice marked the end of the Commission's formal involvement in the law reform process. The three-stage process described above spanned a period of nearly four years from the date of appointment of the project committee.

Another important and unique aspect of the drafting process was a study undertaken to analyse the financial feasibility of the proposed legislation. The Applied Fiscal Research Centre (AFReC) of the University of Cape Town published a research monograph detailing the costing implications of the implementation of the draft Child Justice Bill. This research has played an important role in ensuring that the legislative proposals are workable within the existing resource allocation. The draft Child Justice Bill is thus the end-product of an extensive process of consultation, research and development, involving a broad cross section of South African interest groups, role-players, and stakeholders.

The draft Bill will soon enter Parliament, where it will be exposed to further discussion and debate. It is therefore important to ensure that the many voices of practitioners, members of civil society, police, magistrates, and children, amongst others, are not lost or forgotten in the turbulence of political expediency or party politics.