Child friendly Law for Young Offenders
After a heft process of widespread grassroots and technical consultation across the ten province of Zimbabwe. The Inter-Ministerial Taskforce on the Alignment of Legislation to the Constitution (IMT) finally conducted a two-day write-shop on the alignment of the Child Justice Bill to the Constitution at Holiday Inn Mutare.
The write-shop was supported by the UN-EU’s Spotlight Initiative, UNICEF Zimbabwe and with technical support from the Centre for Applied Legal Research (CALR).
The write-shop is a platform for key stakeholders to give input as well as confirming incorporation of consultations recommendations into the layman Child Justice Bill. A write-shop is a drafting platform chaired by the Legislative Drafting Division in the Attorney General’s Office housed under the Ministry of Justice, Legal and Parliamentary Affairs (MoJLPA). In principle this workshop is attended by technical experts to peer review each provision of the Bill. And after this stage the Bill will go back to Legislative Drafting Division (LDD) and then back to the responsible ministry so that it will be sent for cabinet approval.
The workshop was attended by key stakeholders such as MoJLPA Constitutional and Parliamentary Department, MoJLPA as the instructing and administering ministry, representatives from the Ministry of Labour and Social Welfare as well CSOs representatives working with children in conflict with the law in their respective mandates such as Justice for Children Trust, Care at The Core of Humanity (CATCH) and UNICEF Zimbabwe representatives.
The bill is anchored on establishing a separate juvenile justice system exclusively for children allegedly in conflict with the law and incorporate principles of restoration and reintegration.
In her opening remarks Ms T. Chiwenga (Chief Law Officer, Strategic Policy Planning and Legal Research in the MoJLPA) reiterated that this law is new in Zimbabwe, currently child offenders are treated in accordance with the normal criminal justice system that ignore their age, maturity and inalienable rights provided by the Constitution. The proposed law seeks to come with an exclusively criminal justice system for children in conflict with the law.
She added that, this law must ensure that detention is a measure of last resort and if detained, the child must be separated from adult offenders.
Speaking on the sidelines of the write-shop with journalists, Mr Mukaratirwa (Director Legislative Drafting Department in the Attorney General’s Office) highlighted that the MoJLPA is mandated to co-ordinate the alignment of legislation to the constitution under the IMT. The IMT which is chaired by the Attorney General of Zimbabwe is an instrument established by Cabinet and tasked with the process of aligning of laws to the constitution.
The Child Justice Bill is a product of a series of massive grassroots consultations on the children Amendment Bill, the Children’s Act was reviewed across the countries ten provinces, recommendations and input gathered from these consultations led to a proposal to come up with a Child Justice Act, a new act which will be different from the Children’s Act.
The Children’s Act addresses issues about the care and well-being of children and is administered by the Ministry of Labour and Social Welfare whilst the Child Justice Bill will exclusively handle issues to do with children in contact with the law and the Act when passed, will be administered by the MoJLPA.
Mr Mukaratirwa added that, “children cannot be treated in the same scale as adults, they have no criminal capacity, and have an absence of intention to commit crime,” these are some of the factors which necessitated the coming up of the Child Justice Bill.
Research has indicated that criminality among children is a result of circumstances in which the children grow and develop from and often not of their own making, the environment shapes children’s’ behavior so the Bill intends to curb juvenile delinquency.
Stakeholders felt that there was a need to have a Child Justice Act which is centred on reformation and social integration of child offenders, the child justice system as established in the draft bill should avoid penalization of children in conflict with the law.
“proposals in the working draft bill are based on a number of principles, the major principle is about the best interest of the child … the principle of restoration is also key in the bill,” added Mr Mukaratirwa during his side note interview with journalists on the sidelines of the Child Justice Bill write-shop .
The thrust of the bill is to avoid a punitive system and detention for children in conflict with the law. The bill places best interests of the child importantly as provided for in section 19 as read with section 81 of the Constitution. The Bill also complies with international and instruments such as the United Convention on the Rights of Children and African Charter on The rights and welfare of the Child.
The Government of Zimbabwe with support from UNICEF Zimbabwe and Save the Children came up with a Pre-Trial Diversion Programme (PTD) as a restorative measure for children in conflict with the law in 2015.
The programme started as a pilot test but a number of children in conflict with the law have benefited from the PTD programme. It started in Harare, Bulawayo and Gweru and it has now cascaded to all the provinces, children are being diverted from the formal justice system and dealt with extra judicial systems in an educative, restorative and rehabilitative way. This pilot programme also enhanced the need to have a specific justice system to deal with children in a restorative and integrative way and it will also be provided for within this envisaged law.
Some of the notable provisions in the draft bill include a need to raise the age of criminal capacity from the current 7 years to 12 years in line with regional and international best practices. The bill has provisions not to have children in conflict with the law incarcerated but to be rehabilitated and divert the child offenders from the normal cumbersome and intimidating criminal procedure.
The draft bill also places the family as a key group in the restorative techniques for child offenders, family conferences in which the child in contact with the law, the victim, the child’s family, community and interested persons are brought together and a process of reconciliation, intergration and re-integration is initiated.
The Bill also introduce effective monitoring and evaluation strategies in order to track the re-intergration and restorative implementation initiatives by establishing Child Justice Committees.