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Open Access journal
ISSN (Print) 1562-4382
Published by Sabinet Online Ltd [188 journals]
- South Africa reports to the African Committee of Experts on the Rights and
Welfare of the Child (ACERWC) : focus on the Child Justice System
Authors: Usang Maria Assim
Abstract: Under article 44 of the UN Convention on the Rights of the Child (CRC), State Parties are required to submit an Initial Report within two years of ratification of the Convention and thereafter submit periodic reports every five years. South Africa ratified the CRC on 16th June 1995. Consequently in line with article 44, it submitted its Initial Report to the CRC Committee on 4th December 1997. The Report is available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G98/162/94/PDF/G9816294.pdf?OpenElement. The second, third and fourth periodic reports were therefore due in 2000, 2005 and 2010 respectively. Although these long overdue reports are yet to be submitted, the Government has taken steps towards the preparation of these reports (as a combined second, third, and fourth periodic report spanning 1998 to 2014) and it is hoped that they will be submitted to the CRC Committee in 2015.
Authors: Usang Maria Assim
Abstract: In this edition, we begin with a feature on South Africa's reporting obligations in terms of the African Charter on the Rights and Welfare of the Child (ACRWC) before the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) - with a focus on the Child Justice System. At the end of October 2013, the Government of South Africa submitted its initial report before the ACERWC while a delegation of civil society representatives submitted a 'complementary' or 'shadow' report.
- RAPCAN's Child Witness Project : advocating for a child rights based
Authors: Christina Nomdo; Blanche Rezant, Loraine Townsend Samantha Waterhouse
Abstract: Sexual abuse of children results in short- and long-term psychological and behavioural problems as well as the risk of, for example, later sexual and physical abuse and domestic violence. Few child victims of sexual abuse are resilient and able to lead relatively normal lives following the traumatic event/s.According to the South African Police Service (SAPS) Annual report, 63 067 sexual offences were recorded in 2012/13; 25 446 of these against children (40.3%). Unreported offences are thought to be much higher. The conviction rate of reported offences is very low: 9%. In order for the perpetrator to be successfully prosecuted, the South African Criminal Justice System requires child victims to be witnesses in court. The children are forced to deal with the trauma of having to repeatedly relive the ordeal by retelling their stories of abuse at several stages of the investigation, including during in-court testimony.
- Calling for a global study on children deprived of liberty
Authors: Anna D. Tomasi
Abstract: International human rights law and in particular the United Nations Convention on the Rights of the Child (UNCRC), establish the clear obligation for states to use detention as a last resort, for the shortest period of time and to apply measures that are in the best interests of the child that aim at rehabilitation. These obligations, however, are continuously violated. It is estimated - although this number is out trotted - that over 1,000,000 children are in criminal detention worldwide; this number does not include the many cases that remain unreported or the various other forms of deprivation of liberty. Deprivation of liberty is indeed quite a broad concept and would entail "any form of detention or imprisonment or the placement of a person under the age of 18 in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority". Children are, for instance, also detained in the context of immigration, based on their or their parents' migration status. Immigration detention of children always constitutes a child rights violation. Children may also be confined for physical and mental health, among other, reasons.
- Criminalising consensual sexual activities of adolescents in South Africa
Authors: Christina Nomdo
Abstract: RAPCAN - Resources Aimed at the Prevention of Child Abuse and Neglect - has been committed, for over two decades, to ensuring that the protection (nurturance) and participation (autonomy) rights of children are realised. Since 2010, the organisation became involved in the court case that challenged the constitutionality of certain sections of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 ('Sexual Offences Act'). RAPCAN believes these sections of the Sexual Offences Act were aimed at limiting children's sexual autonomy rights by intervening in the private details of their consensual sexual relations with peers. Criminalisation of these acts also undermined children's right to dignity.
- Welcome to another insightful edition of Article 40, the first edition in
2014 : editorial
Authors: Usang Maria Assim
Abstract: It is now over four years since the Child Justice Act came into operation, and the Child Justice Alliance continues with the important role of monitoring and measuring the impact of the Act on the administration of justice for children in South Africa.
- Recognising the existence of a court based child sensitive criminal
justice system before the advent of the Child Justice Act
Authors: Zita Hansungule
Abstract: The introduction of the Child Justice Act 75 of 2008 ('the Act') brought certainty on the procedures to be followed by the courts and those in the criminal justice system when in contact with children in conflict with the law. The Act establishes a criminal justice system for children in conflict with the law in accordance with the Constitution. However this does not mean that before the advent of the Child Justice Act, children in conflict with the law were left completely at the mercy of a criminal justice system that was suited to adult offenders only. The courts had, before the Act, developed progressive attitudes towards children in conflict with the law as a result of the influence of the Constitution, in particular section 28 dealing with the rights of the child.This point is important in instances where courts have to hear cases that began before the commencement of the Child Justice Act 75 of 2008, and courts are required to turn to the approach used before the commencement of the Act in order to formulate their judgments.
- Monitoring the Child Justice Act : oversight of National Parliament
Authors: Lorenzo Wakefield; Samantha Waterhouse
Abstract: Beyond developing legislation, the Constitution requires Parliament to exercise oversight over and ensure accountability of the Executive, as well as ensure public engagement in Parliament's functions.The Child Justice Act 75 of 2008 (the Act) includes important provisions that embed parliamentary oversight over its implementation. Section 96(3) requires that the Minister responsible for Justice, in consultation with ministers for safety and security, social development, correctional services, education and health submit reports to Parliament annually. This provision can be seen as an attempt by the legislature to respond to the rising concerns regarding poor implementation of new laws in general.Regular reporting by the range of departments responsible for its implementation should allow for identification of flaws or gaps in the law itself and to identify problems with programmes and plans required for its implementation. This includes monitoring the budgets allocated to these departments, and the capacity of departments to spend the allocation well.
- It still 'takes a village to raise a child' - an overview of the
restorative justice mechanism under the Children's Protection and Welfare
Act, 2011 of Lesotho
Authors: Edmund A. Foley
Abstract: In a globalised world, a number of traditional societal idiosyncrasies are being influenced by other national and international approaches to how society functions. The justice system is one of society's arms which has witnessed such transformation. In child justice, international norms and national best practice have introduced new ways of dealing with children in conflict with the law. Nevertheless, the traditional, communal approach to child development and wellbeing, captured in the African adage, 'it takes a village to raise a child', has been put into practical effect for children in conflict with the law in Lesotho's Children's Protection and Welfare Act, 2011 (No 7 of 2011) (hereafter CPWA). The CPWA has innovatively integrated restorative justice from the village level into the child justice system established under the Act. This article gives a descriptive over-view of the Village Child Justice Committee system established by the Act. It begins with a brief introduction to restorative justice in Lesotho and proceeds to give a description of the village child justice committee structure and restorative justice processes under the CPWA. It concludes with the highlights and challenges of the restorative justice framework under the CPWA.
- African Child Law Reform website - updated! : noticeboard
Abstract: The Community Law Centre's Children's Rights Project continues to host the African Child Law Reform website, an initiative of the Community Law Centre and UNICEF Eastern and Southern African Regional Office.
- The Mpofu case - sentencing of child offenders in serious cases
Authors: Ann Skelton
Abstract: Sentencing of child offenders in serious cases came under consideration by the Constitutional Court in the recent appeal of Mandla Trust Mpofu v the Minister of Justice and Constitutional Development and Others (Centre for Child Law as amicus curiae) CCT 124/11  ZACC 15. Mpofu had been sentenced to a term of life imprisonment, coupled with 28 years imprisonment (to run concurrently). His crime was a serious one - he had killed a man in the course of a house robbery. He also had a prior conviction for robbery. The sentence was handed down in 2001, and his appeal rested on his claim that he had been below the age of 18 years at the time of the commission of the offence, an issue to which the court had paid little attention. His appeal rested on a violation of his rights under section 28 of the Constitution. The Centre for Child Law entered as amicus curiae in the Mpofu case, in order to reiterate the different approach to sentencing of child offenders required by the Constitution and international law.
Abstract: A warm welcome, dear reader, to the first edition of Article 40 for 2013!This year marks the third anniversary of the implementation of the Child Justice Act of South Africa and the Child Justice Alliance continues to keep a sharp focus the impact of the Act on the administration of justice to children in South Africa.
- New report sheds light on the situation of children in South Africa's
Authors: Clare Ballard
Abstract: In 2012 the Civil Society Prison Reform Initiative (Community Law Centre) published the "Report on Children in Prison in South Africa." The report is a situational analysis of children in prison and arose from the perceived need to update domestic statistical information on children in conflict with the law as well as test and record compliance on the part of the Department of Correctional Services (DCS) with the prescripts of the Child Justice Act 75 of 2008 (the Act). The findings in the report are based on both qualitative and quantitative data from 41 DCS facilities and structured according to the "child justice indicators applicable to imprisonment" developed by the United Nations Office on Drugs and Crime.
- Fulfilling Article 40 of the CRC under the Tanzanian Law of the Child Act
2009 - the case of Elizabeth Michael Kimemeta Lulu v Republic (of
Authors: Usang Maria Assim
Abstract: States Parties obligations under the Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child (ACRWC) include the harmonisation of all laws concerning children, to ensure their compatibility with the provisions of both the CRC and the ACRWC. Many African states including Tanzania have in recent years embarked on a law reform process in response to the recommendations of the CRC Committee in terms of Article 4 of the CRC, which provides: 'States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.' Similarly, the ACRWC in article 1 obliges States Parties to 'adopt such legislative or other measures as may be necessary to give effect to the provisions of this Charter.'
- African Child Law Reform website : noticeboard
Abstract: The African Child Law Reform website is an initiative of the Community Law Centre at the University of the Western Cape and UNICEF, Eastern and Southern African Regional Office.