9 September 1996
The snap debate on juvenile justice this week puts the spotlight back
on the complex issue of how to deal with children awaiting trial. There
is general agreement that society should avoid locking children up in prison
- especially children who are still awaiting trial. But there is also agreement
of the need to detain young people accused of serious offences in secure
care, for their own welfare, to prevent them from absconding before trial
and to protect the general public from further offences.
The History Of The Problem
For decades, the National Party Government locked children up in prison
for lengthy periods, often without trial. There, unconvicted (and often
innocent) children were brought into contact with convicted adult prisoners
in "universities of crime". One of the ANC-led Government`s first
acts was to end this mistreatment of unconvicted children. The 1994 Correctional
Services Amendment Act, Section 29, stated that "an unconvicted person
(between 14 and 18) shall not be detained in a prison or a police cell
or lock up". Instead, awaiting-trial 14 to 18 year olds were to be
kept in properly-equipped secure care facilities, with trained staff, once
such facilities were available.
But IFP Correctional Services Minister Dr Sipo Mzimela insisted on implementing
the legislation immediately, rather than waiting for the secure care facilities
to come on stream. So awaiting-trial young offenders were released from
prisons into places of safety, run by the Department of Welfare. But places
of safety are intended for the care of abused or difficult children, not
for the secure detention of unconvicted offenders. A new crisis developed
in which some young people escaped to commit more crimes, and others were
disruptive, or intimidated other children and staff.
IFP Minister Mzimela did nothing to contain the crisis. So ANC
Chair of the Correctional Services Portfolio Committee, Carl Niehaus MP,
proposed a Private Member`s Bill to amend the Correctional Services Act
to permit - for one year only - the detention in prison of children accused
of serious offences, until adequate secure care facilities become
available. This interim measure was passed in March 1996, and will expire
in April 1997. The Welfare Department is now well on the way to providing
adequate secure care facilities to which these children can soon be transferred.
Children in Prison - Who Can Be Detained?
According to the 1996 Act, only children aged 14 to 18 accused of serious
offences may be detained in prison, and then only if there are no secure
care facilities within a reasonable distance of the court and if the magistrate
has reason to believe detention is necessary both in the interests of justice
and for the safety and protection of the public. Serious crimes under Schedule
- assault, where a dangerous wound is inflicted
- breaking or entering premises with intent to commit an offence
- drug-related offences, such as supplying
- conspiracy or incitement to commit any of the above offences.
Criticisms and Responses
There are many criticisms of the ANC-led Government`s handling of this
issue. Here are some responses:
CRITICISM: Unconvicted children should not be sent to prison.
RESPONSE: Agreed. Young people accused of serious offences
who pose a danger to the public, or to other children or welfare staff
in places of safety should be detained in secure care facilities. These
are currently being erected by the Welfare Department. But where they do
not yet exist, prison must be used as a short-term alternative.
CRITICISM: The ANC is locking up children as young as 11 and those
accused of petty offences.
RESPONSE: The Act does not allow unconvicted children under
14 or children accused of petty offences to be imprisoned. If they are
being detained in prison, they should be identified and transferred out
immediately and the courts must be engaged to stop such practices.
IFP Minister Mzimela should be ensuring that his prisons refer such
children back to the courts - but he isn`t.
CRITICISM: Unconvicted children are being thrown together with hardened
RESPONSE: The 1996 Act requires the Department of Correctional
Services to ensure that children are kept separate from adults and older
juveniles, and are given access to social workers, adequate food and regular
Where this is not being done, then IFP Minister Mzimela is failing
to carry out the law.
CRITICISM: Unconvicted children should be sent to places of safety
and not to prison.
RESPONSE: A place of safety is a sanctuary for abused, difficult
and disturbed children. It would be wrong to expose these children to potentially
violent young criminals.
CRITICISM The Department of Welfare has failed to cope with awaiting-trial
children in its care and has let young criminals loose on the public.
RESPONSE: Welfare staff in places of safety are trained to
look after difficult and abused children, and have not been trained as
prison warders for young offenders. Welfare staff in new secure care facilities
are being appropriately trained to deal with unconvicted children who may
be violent or abusive or may try to abscond.
This crisis is the fault of IFP Minister Mzimela, who ordered
the transfer of children out of prison before secure care facilities were
CRITICISM: Nothing is being done to resolve the issue.
RESPONSE: Not true. The Welfare Department is preparing secure
care facilities and training staff. The Portfolio Committees on Welfare
and Correctional Services are addressing the issue of the unlawful detention
of accused petty offenders and under-14 year olds through joint hearings.
The Department of Justice is overhauling the whole system of juvenile justice.
Only IFP Minister Mzimela is dragging his heels, failing to
refer young children and children accused of petty crimes back to the courts;
failing to ensure the safety and separation of unconvicted children from
adults in prisons; failing to report on the issue to Parliament as required
by the Act; and failing to work together with the Departments of Welfare
and Justice for a workable solution.