Read more to understand the extent to which the social and economic environment affects children’s access to justice.
The recently promulgated Zimbabwe Constitution, Amendment No. 20 of 2013 brought about a new face to the rights of children. Children’s rights are now constitutionally enshrined in section 19 and section 81 respectively. The rights provided for include socio-economic rights of children as well. This constitutional injunction could not have come at a better time given the myriad of challenges which children in Zimbabwe particularly those who come in contact with the law encounter as they go through the justice system as survivors and perpetrators of crime. The Zimbabwean government should also be lauded for coming up with a Legal Aid Program under the NAP for Orphans and Vulnerable children which endeavors to ensure that children are assisted as they navigate the justice system. Historically children in contact with the law have always encountered challenges when they are arraigned before the courts either as perpetrators or survivors of crime. These include being tried in courts which are not child friendly, ill-treatment at the hands of law enforcement agents, delays in their matters being brought for trial, negative perceptions by some service providers who end up treating them as adults and reprisal by society who often view children who come in conflict with the law as social misfits and children who are survivors as liars who wrongly incriminate relatives or friends. .Though both male and female juvenile offenders encounter these challenges such challenges are pronounced for the girl child who comes in contact with the law. Female children especially those nearing puberty have specific requests that are crucial to their social-economic needs. Sanitary ware, protection from abuse by service providers who they come in contact with and discrimination by virtue of them being female. There is need however to ensure that incarcerated juveniles in prison or police cells that do. Furthermore section 81(2) and section 19(i) of the constitution provides that a child’s best interests are paramount in every matter concerning the child. These sections are mirrors of International law addressing the rights of children. The access to justice for children program started under National Action Plan for Orphans and Vulnerable Children II focuses on ensuring that children are better served and protected by justice systems as victims, witness’s and alleged offenders.
International law and regulations have considered that girls are particularly vulnerable and may face discrimination at all stages of the juvenile justice system. In terms of statistics there have been a few female children who come into contact with the law as offenders, most of the girls are victims of sexual abuse. Female juveniles who come into contact with the law as victims also require extra protection as they are usually victimized in the justice system and society as well. Most of the sexual abuses of the girl child are done by perpetrators who seem to have an economic upper hand over the victim.
Zimbabwe has been a party to the Convention on the Rights of the Child (hereafter the CRC) since 1991.The Convention on the Rights of the Child has influenced the development and drafting of pieces of legislation that address the rights of children in contact with the law. There are principles and guidelines and minimum standards that have given more detail to the broad principles addressed in the CRC relating to the children who come in contact with the law. Prominent ones on the aspect of juvenile justice are The United Nations (UN) Standards Minimum Rules on the Administration of Juvenile Justice Beijing Rules, The UN Rules for the Protection of Juveniles Deprived of their Liberty (UN JDL Rules), adopted in 1990 and United Nations Guidelines for the Prevention of Juvenile Delinquency, Guidelines for Action on Children in the Criminal Justice System.
Article 37 of the CRC provides that State parties shall ensure that no child is subjected to torture, inhuman and degrading treatment. Furthermore it states that no child shall be deprived of his or her liberty unless it is only a measure of last resort. When a child is deprived of his or her liberty they should have access to legal and any other form of assistance. Furthermore, every child deprived shall be separated from adults unless it is considered to be in the best interest of the child not to do so, such a separation of achild from adults when they are incarcerated is indeed indicative of the need to have such resources. In addition Article 40 of CRC also addresses the rights of children who have been alleged to have infringed penal law. The crucial aspect is the treatment of children in a manner consistent with the promotion of the child’s sense of dignity and worth. When a child is charged with an offence they should be guaranteed of being promptly informed of their charge and rights and have their matter determined without prompt delay.
However solace can be found in the General Comment NO 10 (2007) on Children’s Rights in the Juvenile Justice System by the Committee on the Rights of the Child where the Committee noted that in developing a comprehensive juvenile justice policy States should not be limited to the specific provisions of the CRC contained in article 37 and 40. In the objectives of the General Comment it is stated that the leading principles contained in article 2, 3, 6 and 12 of the CRC are of equal significance in addressing children in the justice system. Consideration of the best interests of children in the criminal justice system means that the traditional objectives of criminal justice such as repression and retribution must give way to the restorative and rehabilitation objectives when dealing with juveniles. Worth noting is section 81(2) of the Constitution which states that the best interests of the child shall be the paramount consideration in every matter concerning a child. Thus placing an obligation on policy makers, decision makers and budgeting to focus on creation an environment that focuses on ensuring that the socio-economic needs of children who come into contact with the law.
Zimbabwean Legislative position
The Constitution of Zimbabwe Amendment (No 20) Act 2013 has incorporated children’s rights in the declaration of rights thus bringing a new approach to rights of children in Zimbabwe. This comes as a positive development as there are comprehensive laws that are aimed at protecting children although issues of child abuse are still on the increase around the country. Section 19(1), (2) and 81 (1) (e), (f) provide for the socio-economic rights of children although there is a limitation clause “subject to the availability of resources” can be interpreted as a drawback as the government can use this in defence of failure to provide the requisite socio-economic rights of children. However it remains crucial for the State to progressively realize the socio-economic rights of children by at least providing the minimum core content of each socio-economic right.
The main legislative provisions in Zimbabwe that deal with juvenile justice in Zimbabwe are the Criminal Procedure and Evidence Act, The Children’s Act, and The Criminal Law (Codification and Reform Act) .In Zimbabwe children are arrested in the same manner that adults are arrested and detained in the same facilities and tried in the same courts as adults. The only difference is that when a matter involving a child is being heard it is held in camera and juvenile victims do not testify in an open court. Due to the unavailability of resources some children have to testify in the courts as some courts do not have the victim friendly units. However, the major challenge is lack of legislation that clearly addresses the rights of children and the handling of juveniles in the justice system. There is need for a positive action to meet the needs of children living in extreme conditions of poverty and ensure they get the minimum basic needs. The best interests of the child should remain a crucial consideration in the handling children in the justice system.
Children who appear before the courts facing criminal charges have to go to the probation officer who then prepares a social inquiry report highlighting the socio-economic circumstances of the juvenile. However there is a lot to be desired from the manner in which the probation officer’s reports are being prepared as the Department of Child Welfare does not have the resources to follow these children to their residence and just end up doing desk reports of the socio-economic status of the children. Without proper guidance and information the courts can end up handing down judgments that do no serve the interests of justice as socio-economic status is supposed to be taken into consideration in the disposal process in an effort to achieve juvenile justice.
It is trite that children should be incarcerated as a matter of last resort. If these children have to be held in custody they should be held in facilities that are child friendly and sensitive and this is crucial to the girl child’s needs. Due to the female make up, the facilities where girl children are held should be able to provide for the requisite sanitary needs of the girls. Currently as it stands, most prisons and holding centers in Zimbabwe were designed for males and without much of female friendly services. The status of the holding facilities in Zimbabwe is a nightmare for all prisoners or accused persons incarcerated. If the State cannot refurbish these facilities, the question that remains unanswered is whether it is practical that holding facilities that cater for juvenile offenders will be a reality soon.
Legal aid has been recognized as a right in the criminal justice system for those who cannot afford legal services so as to ensure a fair hearing. Under NAP for OVC II, provision of legal services for free for children has been part of the access to justice programme for children. However there is still limited personnel to represent every child offender who appears before the courts. The State has tasked the Legal Resources Foundation and the Legal Aid Directorate to assist children in conflict with the law. Failure by the State to provide all children who are in contact with the law with free legal representation is indeed an infringement of the children’s right to a fair hearing and their socio-economic rights as well.
Limitation of the pre-trial diversion programme to certain specific areas and delay in availing it to the whole of Zimbabwe remains a challenge to children who commit minor offences and still have to go through the criminal justice system. Most of the offences committed by juveniles are minor offences, a range of measures involving removal from the justice processing and referral to alternative social services remains critical. For the diversion programme to be effective, there is need for established reformatory institutions and programs where these diverted children can be referred to. The current system is failing to provide each province with such facilities and the ones that are already functional cannot accommodate these all of the children requiring such services.
Juvenile Witnesses and Victims
Zimbabwe as a nation has not fully recovered from the economic meltdown that hit the country during the past decade thus making it difficult for the State to be able to meet the socio-economic needs of girl children in the justice system. Victims of sexual abuse have to travel long distances to go and report sexual abuse or get medical care after an abuse resulting in many unwanted pregnancies and sexually transmitted infections that may never be treated or cured. The Multi-Sectoral Approach Protocol to the Management of Sexual Offences provides guidelines to the management of sexual offences but without the adequate resources the Protocol can remain a fantasy.
The other major worrying aspect is the absence of safe houses for victims of sexual abuse in the family setup. Most child victims are usually abused by close people they trust and really need to be removed from such an environment until the matter is finalized or proper counselling or rehabilitation is done. However, if these girls still have to go back to the same homes they came from there would be great interference of the public with State witnesses. There is need that appropriate measures be taken to require the reporting of those safety risks to appropriate authorities and to protect the child from risk before, during and after the justice process.
The socio-economic status of children has an influence on how she behaves or conducts herself. This may result in the child being a victim or an offender. In handling children who come into contact with the justice system there is need for an individualized assessment into the socio-economic needs of the children that could have resulted in the victimization or offending. The needs have to be addressed before the children are released back into society. Zimbabwe has guaranteed socio-economic rights of children in the Constitution and these should be met to the minimum core of each right to ensure that juvenile justice is served.
By Tinomuda Shoko – Centre Lawyer Gweru