Judging Ubuntu and Africanisation of the Child Justice Act

1. INTRODUCTION

The attention for the child justice system in the new South Africa has not only been inspired by the new constitution-based rights of children in conflict with the law, but also international law and the general principles of ubuntu and jurisprudence of African traditional justice. In compliance with the precepts of international law and the 1996 Constitution, the national parliament promulgated the Child Justice Act 75 of 2008 (CJA) to establish a criminal justice system for children. The CJA also expands on and entrenches the principles of restorative justice. Previously in South Africa, the Children’s Protection Act 25 of 1913 (CJ) was the embodiment of the trend towards child justice. This act permitted the presiding officer to decline to continue with a criminal trial against a child and to then commit the child to a government industrial school.

This procedure, formerly in section 254 of the Criminal Procedure Act 51 of 1977 (CPA), continued to serve as the principal act governing the way in which child offenders would be dealt with in South Africa. The CJA marked a paradigm shift from CJA. The CJA also alters a number of common law positions that are currently in place and is appropriate piece of legislation dealing with the child offenders on the landscape of criminal justice system in South Africa. This article discusses the implication of ubuntu and the traditional justice system on the landscape of the regime of CJA.

2. BACKGROUND PERSPECTIVES

South Africa ratified the United Nations Convention on the Rights of the Child in 1995. This treaty enjoins South African government to enact legislation that gives effect to Article 40 of the Convention. Article 40 (1) reads as follows:

‘State parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.’

Both the Interim Constitution and the 1996 Constitution of South Africa enshrined an elaboration of rights for children that included rights pertinent to children in conflict with the law. In 2008, the South African parliament promulgated CJA to give effect to the 1996 Constitution and Article 40 of the United Nations Convention on the Rights of the Child (see The United Nations Guidelines for the Prevention of Child Delinquency, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, the African Charter on the Rights and Welfare of the Child). The CJA came into force on 01 April 2010.

3. UBUNTU AND CONSTITUTIONAL JURISPRUDENCE OF CJA

The CJA took its cue from the 1996 Constitution. Therefore, the CJA is mindful of the Constitution as the highest law of the country and aims to improve the quality of life of all its people and to free the potential of every person by all means possible.

The Constitution emphasises the ‘best interests’ of children and guarantees their special protection within the ambit of criminal justice system. (Apart from the provisions of the Constitution Section 28(1) (g) of the Constitution it affords children in conflict with the law special safeguards such as; not to be detained and if so for the shortest period of time possible; to be treated and kept in conditions taking into account the child’s age; and to be kept separately from adults.)

In Centre for Child Law v Minister for Justice and Constitutional Development and Other [2009] ZACC 18, the Constitutional Court stated that the constitutional injunction that a child’s best interests are of paramount importance in every matter concerning the child means that the child’s interests are ‘more important than anything else’, but not that everything else is unimportant. The Constitutional Court further stated that the entire spectrum of considerations relating to the child offender, the offence and the interests of society may require incarceration as the last resort of punishment.

The Act also give effect to the Constitution in particular sections 28(d), which enjoins that every child has the right to be protected from maltreatment, neglect, abuse or degradation. Amongst other things, section 28 of the 1996 Constitution protects children against the undue exercise of authority. The CJA establishes a criminal justice system for children who are in conflict with the law, in terms of the values underpinning the Constitution and the spirit of ubuntu. Ubuntu negates any form of maltreatment abuse or degradation. In S v Makwanyane 1995 (3) SA 391 (CC), Langa J stated inter alia that:

‘[Ubuntu] ….. suggests a change in mental attitude from vengeance to an appreciation of the need of understanding; from retaliation to reparation and from victimisation to ubuntu.’

It is in this context that the CJA diverts matters involving children who have committed offences away from the criminal justice system in appropriate circumstances while children whose matters are not diverted are dealt with in the criminal justice system in child justice courts. At the centre of the CJA, the spirit of ubuntu echoes its values, which safeguard the dignity of child offenders.

4. ANATOMY AND SECTIONS OF CJA

The CJA is divided into 14 Chapters. Chapter 1 deals with definitions, objects and guiding principles. Chapter 2 is divided into three parts. The main focus of Part 1 deals with the application of the Act, the manner of dealing with children who are alleged to have committed offences and the seriousness of offences. Part 2 deals with criminal capacity of children under the age of 14 years pertaining to (i) minimum age of criminal capacity (ii) review of minimum age of criminal capacity (iii) manner of dealing with children under the age of 10 years or older but under the age of 14 years (v) proof of criminal capacity. Part 3 deals with age estimation, age determination and error regarding age. Chapter 3 deals with written notice, summons and arrest.

Chapter 4 is divided into 3 parts. Part 1 focuses on matters pertaining to release or detention of the child. Part 2 deals with placement of child prior to sentence and related matters. Part 3 deals with factors to be taken into account by the presiding officer regarding further detention and placement at preliminary inquiry or child justice court.

Chapter 5 deals with assessment of children. Chapter 6 deals with diversion by prosecutors in respect of minor offences. Chapter 7 places a special emphasis on preliminary enquiry, namely (i) nature and objectives of preliminary enquiry, (ii) persons to attend preliminary inquiry, (iii) confidentiality of information furnished at preliminary inquiry, (iv) failure to appear at preliminary inquiry, (v) procedure and postponement of preliminary inquiry, orders at preliminary enquiry, and (vi) referral of children in need of care and protection to children’s court.

Chapter 8 is almost important in broad terms for child justice namely (i) objectives of diversion, (ii) consideration of diversion, (iii) diversion options, (iv) selection of diversion options, (v) minimum standards applicable to diversion, (vi) provision and accreditation of diversion programmes and diversion service providers, (vii) compliance and diversion order, (viii) failure to comply with diversion order, (ix) legal consequences of diversion, (x) register of children in respect of whom diversion order has been made, (xi) family group conference, and (xii) victim-offender mediation.

Chapter 9 deals with trial in Child Justice Court. Chapter 10‘s main focus is sentencing. Chapter 11 deals with legal representation while Chapter 12 is central to appeals and automatic review of certain convictions and sentences. Chapter 13 deals with records of conviction and sentence. Chapter 14 deals with general provisions of the CJA and is followed by 5 Schedules to the Act.

4. GOALS AND PURPOSES OF THE CJA

The CJA entrenches the notion of restorative justice in the criminal justice system in respect of children who are in conflict with the law. This legislation inter alia defines restorative justice as follows:

‘An approach to justice that aims to involve the child offender, the victim, the families concerned and the community members to collectively identify and address harms, needs and obligations through accepting responsibility, making restitution, taking measures to prevent a recurrence of the incident.’

The CJA provides for several diversion options in an attempt to humanize the child justice system and protect the rights of children. The CJA facilitates diverting offenders under the age of 18 away from the mainstream criminal justice. Diversion alternatives include family group conferencing and victim offender mediation. The objectives of diversion programme must inter alia impart useful skills, include a restorative element which aims at healing relationships, include the relationship with the victim, and include an element which seeks to ensure that the child understands the impact of his or her behaviour on others, including the victims of the offence and may include compensation or restitution.

The CJA makes special provision for young offenders showing remorse by addressing the original crime in such a way that the offender does not enter a continuous cycle of crime and violence. The CJA provides for both community and restorative justice sentences. For example, children under the age of 10 years old committing an offence must be referred to a probation officer for assessment. The Act further enjoins that preliminary inquiry must be held after assessment.

The CJA aims to create a new procedural framework for dealing with children who came into conflict with the law. It represents a right-based approach to children accused of crimes, but also seeks to ensure accountability, respect for fundamental freedoms of others, prevention of crime and promotion of public safety through the use of diversion, alternative sentencing and restorative justice.

5. IMPLICATIONS OF UBUNTU AND TRADITIONAL JUSTICE SYSTEM ON CJA

Section 2 of the CJA provides inter alia that the objects of this Act are to promote the sprit of ubuntu in the child justice system through: (i) fostering children’s sense of dignity and worth, (ii) reinforcing children’s respect for human rights and the fundamental freedoms of others by holding children accountable for their actions and safe-guarding the interests of victims and the community, (iii) supporting reconciliation by means of restorative justice response, and (iv) involving parents, families, victims and where appropriate other members of the community affected by crime in procedures in terms of this Act in order to encourage the reintegration of children.

Furthermore, the Preamble of the CJA recognises the fact that before 1994, South Africa did not give many of its children, particularly black children, the opportunity to live and act like children and also that some children as a result of circumstances in which they find themselves have come into conflict with the law. It is in this context that the CJA among many others entails driving principles of ubuntu aimed at establishing a criminal justice system for children who are in conflict with the law in accordance with the values underpinning not only the Constitution but also the spirit of ubuntu.

The thrust of CJA is to keep together shattered relationships in the community and encourage child offenders across the board to respect the basic norms of human and social independence. It is for this reason among many others that the focus of CJA is restorative justice premised on the principal of ubuntu. The CJA permeates through traditional modes of dispute resolution often directed at facilitating peaceful resolution to problems, which impact negatively on the harmonious co-existence of the community as a whole.

The CJA promotes a practical humanist disposition towards the world and denotes compassion, tolerance and fairness. In S v Makwanyane and Another 1995 (3) SA 391 (CC), the Constitutional Court stated inter alia that:

‘….Generally, ubuntu translates as humanness. In its most fundamental sense, it translates as ‘personhood’ and ‘morality’….while it envelopes the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective unity, in its fundamental sense it denotes humanity and morality. Its spirit emphasises respect for human dignity, marking a shift from confrontation to conciliation (underling supplied)’

The CJA suggests a change in the child justice system from vengeance to an appreciation of the need for reconciliation and negates victimization while at the same time embraces the values of ubuntu. The heartbeat of the CJA is the expansion and promotion of the principles of restorative justice in the criminal justice system for children who are in conflict with the law. Restorative justice forms a key tenet underpinning the approach taken in the CJA. This legislation does not only define restorative justice and entrenches its philosophy as fundamental, but also provides directly for restorative justice outcomes such as family group conferences and victim-offender mediation.

Ubuntu places an important emphasis on restorative justice rather than retributive justice. Restorative justice is the process which involves, to the extent possible, those who have a stake in a specific offence, and collectively identifying and addressing harms, needs and obligations in order to heal and put things as right as far as possible. The outcome of the CJA through restorative justice encourages reparation of the harm done and involves victims in the resolution of criminal incidents that have led to breaches in relationships.

The expectations of restorative justice echoed by CJA are important for the future judgments of South African courts. According to Gibson in his book titled ‘Overcoming Apartheid: Can Truth Reconcile a Divided Nation?’ (2004 Rassel Sage Foundation USA) 263, restorative justice is significant in the African context of ubuntu. Therefore, Gibson stated that:

‘In traditional African thought; the emphasis is on restoring evil doers to the community rather than on punishing them. The term ubuntu, which derives from the Xhosa expression Umuntu ngumuntu ngabantu (people are people through other people) conveys the view that an environment of right relationships is one which people are able to recognise that their humanity is inextricably bound in other humanity. Ubuntu emphasises the priority of “restorative” as opposed to “retributive justice”.’

Gibson further quoted Desmond Tutu describing ubuntu as follows:

‘Ubuntu says l am human only because you are human. If l undermine your humanity l dehumanize myself. You must do what you can to maintain this great harmony, which is perpetually undermined by resentment, anger desire for vengeance. That is why African jurisprudence is restorative rather than retributive.’

The CJA emphasis on restorative justice is tantamount to processes such as restoring the dignity of the victims. One important form of restoration involves an apology. An apology can be influential, since an apology is a gesture through which an individual splits himself into two parts, the part that is guilty of an offence and the part that dissociates itself from delict and affirms a belief in offended rule.

Ubuntu as the main fulcrum of the CJA perceives the role of child justice in the light of reconciliation that the wheel of child justice revolves around. The jurisprudence of child justice as pronounced in the CJA is deeply rooted in the notion of responsibility and accountability. Therefore, the objectives of the CJA tied with the spirit of ubuntu are centred around the key principles of: (i) rehabilitation of the offender, (ii) promotion of peace within the community, (iii) promotion of reconciliation and inquisitorial procedure, and (iv) facilitation of medication and compromise.

The procedures articulated in the CJA follow the ones practiced in traditional courts, which were designed specifically to effect compromise and reconciliation. For example, the spirit of CJA promotes inter alia the Lobedu custom of Lu Khumelwa (to beg pardon of one another). According to Rakate in his article titled ‘The Status of Traditional Courts Under the Final Constitution’ (unpublished paper written as part of law research in the Constitutional Court of South Africa 1996 8), under the custom of Lu Khumelwa reconciliation is reached by an emissary who intervenes between the two parties. This granting of pardon stops court procedure. The CJA is conciliatory and persuasive.

In this regard, the CJA is tied into the inner chambers of custom and principles of ubuntu. The CJA sets out diversion programmes, which form part of the sentencing options. These diversion programmes provided for in Chapter 10 of the CJA are integral part of the values embodied in the notion of ubuntu. For example, the sentencing options such as community-based options, restorative justice sentences (i.e. family group conferences and victim-offender mediation) constitute the core principles of ubuntu. The CJA balances the rights and responsibilities of the child offender, the victim, the family and the community.

The CJA takes into account the impact of the offence on the victim by means of a victim impact statement. The statement reflects the physical, psychological, social, financial or any other consequences of the offence for the victim. This provision of the CJA allows for a healing and a conciliatory process to take place and further entrenches the notion of restorative justice, which is enveloped in the inner chambers of ubuntu.

6. CONCLUSION

It is evident from the above that the CJA ensures that children in conflict with the law turn their lives around and become productive members of society. The new child justice dispensation attempts to deal with the peculiar challenges facing children, such as their inability to understand the consequences of their actions. The CJA balances the rights and responsibilities of the child offender, victim, the family and the community. Most importantly, it allows for healing and a conciliatory process to take place on the basis of the values of ubuntu and the principle of the indigenous African traditional justice system.