Juvenile Justice In Sadc Countries Botswana

Published Date: 02 Nov 2017

In the practice to adapt the (CRC) United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, the Parliament of Botswana passed the Children’s Act in April 2009. The Act is set in Juvenile Courts to deal with persons between the ages of 14 to 17 who are accused of illegal conduct, they are known as juveniles. A person below the age of 14 generally does not have criminal blame (except in exceptional cases) and they usually appear in Children’s Courts where their delinquencies and wellbeing are given attention. Therefore, it is those between the ages of 14 to 17 who usually appear in Juvenile Courts on unlawful charges.

However, the juvenile justice system is not inadequate. Rather than focusing on the needs and vulnerabilities of juveniles, it tends to apply the same practical and bureaucratic rules applicable in adult courts. There are only a few legal necessities that take the condition of juveniles into account. These include excluding the public from trials conducted in courts; requiring offenders to appear with their parents or guardians; requiring that offenders must be under the supervision of a probation officer; the possibility of sending offenders to schools instead of prison. It must be noted that the role of the parents and guardians, (such as assisting the offender during the trial) has not been an important issue by the legal system. Further, the system is sometimes characterized by incarceration during the period that the offender is waiting to be charged to court. Sometimes, incarceration of the offender extends throughout the trial. The trial itself might be characterized by delays and postponements thereby making the period of incarceration rather extended.

The system also involves the official process of spoken evidence. In this regard, the offender sits in court and sees witness after witness enter the witness box, take the oath and give evidence against him or her. The seriousness of this process is undoubtedly intimidating to the young person. After the testimony of each witness, the offender will have to question them if she is not represented by a lawyer. While judicial officers have the duty to assist unrepresented persons, this cannot be coordinated with the detailed attention that a lawyer will give to the defense of his or her client. Therefore, young offenders often have to conduct their own cross-examination. It must be noted, that recently built magistrates courts have been allocated special rooms for cases involving children and juveniles. Some of the trappings of the usual courts do not form part of these rooms. They do not have witnesses boxes, docks (a special box where the offender sits throughout the trial), nor does the judicial officer sit on a high pedestal (giving her an intimidating presence). This is a step in the right direction and to some extent reduces the intimidating atmosphere of court room. However, these rooms cannot be said to be child friendly courts. For example, there are no facilities to protect child witnesses and victims from adverse questioning. Clearly, the present system still does not really suit the vulnerabilities of the young offender. . Botswana needs to focus on prevention measures to ensure that children do not break the law, by involving families and communities in their care, as required by international standards

Zimbabwe

The Zimbabwean position is that probation officers, who fall under the Department of Social Welfare in the Ministry of Labour and Social Welfare, are called upon by the police and the courts to carry out assessments of juvenile offenders. Under the Children's Protection and Adoption Act [Chap. 33] a child is defined in section 2 as any person (including infants) under the age of 16 years. On the other hand, under the Legal Age of Majority Act, 1982, any Zimbabwean under the age of 18 years is a minor. A person between the age of 16 years and 18 years, though a minor, is defined as a young person under the Children's Protection and Adoption Act. It has been suggested that the Children's Protection and Adoption Act should now be amended to reflect only one age, i.e. 18 years in order to avoid confusion.

Zimbabwe ratified the Convention on the Rights of the Child (CRC) in 1990, while the African Charter on the Rights and Welfare of the Child (ACRWC) was ratified on the 19th January 1995. It ratified ILO Convention No. 182 on the Worst Forms of Child Labour in 2000 and ILO Convention No. 138 on the Minimum Age of Employment,

The police make such a request in all cases involving juveniles below the age of 14 years. The assessments are passed to the Attorney General in order for him or her to decide whether or not to prosecute a juvenile offender. If a case is referred to the Attorney General without this report, it will be returned to the police to enable them to obtain the report. The courts request probation officers to provide an assessment report on the risk of recidivism and rehabilitation before passing sentence. Probation officers are professionals and presiding officers are accordingly guided by their recommendations in passing sentence.

Zimbabwe has fragmented legal procedure on juvenile justice for instance the right to be represented by a parent or guardian when police record a warning and during trial. There are no specific courts to deal with juvenile offenders and inadequate facilities for their detention. In relation to the right to legal representation, in some countries, it is available only at the juvenile’s expense. The result is that most juvenile cases are disposed legal advice. In Zimbabwe, legal representation is only provided by the State in particular cases.

Current laws in Zimbabwe do not specifically provide diversion of juvenile offenders. However, there is provision for prosecutors to decline prosecution in trivial cases using the de minimis non curat lex principle (the law does not concern itself with trivialities). The problems or challenges with this system are that it has no provision for the juvenile offender to take responsibility for what he or she has done; thus, the offender is not sent for corrective and/or rehabilitative treatment. The diversion programme proposed by the National Committee on Community Service has provision for the victim and offender to meet under victim offender mediation (VOM) and Family Group Conferencing (FGC). These provide a platform for the victim to be heard.

Juvenile justice in Developing countries

Australia

Over the last ten years, there has been a decrease in the number of cases heard in Australian children’s courts due to the increasing trend of diverting juveniles during the early stages of processing. Such diversionary measures typically include conferencing, drug and alcohol courts and programs, juvenile justice teams and special courts and programs for Indigenous young people. The most common types of offences for which juveniles are adjudicated in children’s courts include burglary or theft, assault and dangerous or negligent driving. Of all juvenile defendants who appeared in Australian children’s courts during the 2006-07 financial years, ninety-two percent received a criminal conviction and eighty-two percent pleaded guilty. Hence, 92% convicted juvenile offenders received non-custodial penalties such as fines, good behaviour bonds or community supervision orders. Thus, 5% of convicted juvenile offenders were ordered to a period of time in a correctional facility and one percent received a suspended sentence or ordered to custody in the community.

Community supervision is undertaken through Youth Justice Units which are means of providing support and supervision to young people on community-based correctional orders and represent a realistic alternative to institutional custodial care. Community-based orders consist of: Probation – usually given to young people who have offended once or twice before, Youth supervision orders – for serious or chronic young offenders, Youth attendance orders – for serious or chronic offenders. A youth attendance order is a direct alternative to being locked up, so it is a very serious order and parole – allows young people to serve part of a custodial sentence given by a magistrate or a judge back in the community under the supervision of a parole officer.

The Youth Residential Board and Youth Parole Board facilitate reintegration of young offenders into the community and into youth custodial facilities from prison on referral by the Adult Parole Board. Decisions of the boards are made on the basis of consultation with custodial and parole officers and within a framework which considers individual detainee needs as well as community safety53.

In August 2000, Victoria undertook its Juvenile Justice Reform Strategy with a focus on:

diversion of young people from entering the criminal justice system;

rehabilitation of high risk young offenders; and

support to assist young offenders to establish crime-free lifestyles after their release through better pre-release and post-release support programs.

As part of these reforms, the Victorian government has developed the Vulnerable Youth Framework which outlines an approach to strengthen prevention and early identification of vulnerable youth who may exhibit truancy, low-level offending, alcohol and other drugs (AOD) misuse or family conflict as well as promote youth engagement in education, training, employment. The Vulnerable Youth Framework is founded on an evidence-based understanding of precursors to youth vulnerability including genetic and environmental factors.

A recent audit conducted by the Victorian Auditor-General examined the extent to which diversionary and rehabilitation services provided by DHS and the Magistrates’ Court of Victoria maximise diversion of young offenders from the criminal justice system, reduce the risk of reoffending and improve rehabilitation and reintegration into the community. The audit found that there are "indications of success, including the diversion of young offenders from custodial sentences, demonstrated good practice with respect to need identification, case management and the delivery of rehabilitation programs, and increased access to pre- release, transition and post-release programs". While the audit found that the reform aims and objectives are being worked towards, there are no performance and outcome reporting frameworks to measure the success of the reforms. The audit also noted that there are multiple government and non-government agencies involved in the delivery of youth justice services; however more formal planning arrangements would benefit the youth justice system.

England and Wales

The English juvenile justice system focuses on early identification and intervention with young people at risk, and intensive intervention with young offenders who persist in committing youth crime. Recently England introduced multi-agency Youth Offending Teams, and underwent a policy shift towards preventing youth crime as the primary aim of intervention with young offenders (Gladstone, B, Kessler, I, Stevens, A. 2006).

Early intervention approaches include the ‘On Track’ program and services for ‘high risk’ children in deprived communities between the ages of 4 and 12. Community-based prevention programs are also provided such as leisure activities, mentoring and educational training for ‘high risk’ children.( Gray & Seddon 2005 in Gladstone, B, Kessler, I, Stevens, A. 2006.)

Further, the Youth Justice Board (YJB) has developed a focus on prevention and is developing an evidence-based approach to working with young offenders. It has also created training programs for people who work with young offenders on how to implement this research (Gladstone, B, Kessler, I, Stevens, A. 2006) .However, as Welsh and Farrington’s note, there is no agency whose primary mandate is the prevention of crime and most crime prevention initiatives in recent years have narrowly focused on ‘high risk’ individuals and areas, such as burglary reduction through targeted policing, or are probation or prison oriented (Welsh and Farrington 2004 in Gladstone, B, Kessler, I, Stevens, A. 2006).

Furthermore, statistics show that more children are imprisoned in England and Wales than in any other western European country. Across England and Wales, 23 children per 100,000 are incarcerated compared with 6 in France and 0.2 in Finland (Allison, E. 2009).

Although the number of youth incarcerated in the UK decreased by 12.7% in the twelve months to August 2009, this figure is only 0.4% lower than in April 2000 (Youth Justice Board. 2009). The high rate of youth incarceration in England and Wales exists despite a longitudinal study of over 4,300 youth offenders conducted by Edinburgh University which clearly demonstrated the ineffectiveness of youth incarceration in reducing juvenile crime.

While there is a growing awareness that alternatives to youth incarceration should play a greater role, especially community-based diversion and prevention programs, there still are significant cultural barriers within England’s juvenile justice system which are preventing the increased use of these alternatives. For example, in 2008, Frances Done, head of the Youth Justice Board noted that judges and magistrates do not feel confident that community sentences are "robust enough alternatives to locking people up" and urged courts to make greater use of community penalties (BBC News. 2008).