|
|
INDICATORS FOR CHILDREN’S RIGHTS ZIMBABWE COUNTRY CASE STUDY INVIOLATA CHINYANGARA, ISRAEL CHOKUWENGA, ROSELYN G. DETE, LINDA DUBE, JOSHUA KEMBO, PRECIOUS MOYO & RATIDZAI SHARON NKOMO |
5. Juvenile justice, rehabilitation
and implementation
This chapter concentrates on issues of juvenile justice in terms of the
availability and the accessibility of existing data.
The first organised United Nations Congress on Crime Prevention and Treatment
of the Offender was held in 1955. Since then the UN has been holding such
congresses every five years, which has resulted in the drafting and adoption
of such important instruments as the UN Standard Minimum Rules for the Administration
of Juvenile Justice (The Beijing Rules) 1985; UN Rules for the Protection
of Juveniles Deprived of their Liberty 1990; UN Guidelines for the Prevention
of Juvenile Delinquency (The Riyadh Guidelines) 1990. In the Convention
on the Rights of the Child the main provisions for juvenile justice are
given in Article 40, although Article 39 on rehabilitation is also very
pertinent. In the African Charter the relevant Article is number 17.
In Zimbabwe there are two government Acts that deal with the issues of
juvenile justice. These are the Children’s Protection and Adoption Act(Chapter
33) and the Criminal Procedures and Evidence Act.(Chapter 57). The fact
that the country has two legal instruments that address issues of juvenile
justice provides a strong basis for the rights of children, but they need
to be synchronised so that they do not contradict each other. Although the
legal instruments may not be as desired they do provide the base on which
toe start from. These provide a yardstick against which juvenile justice
can be monitored. There is thus a considerable potential for the development
of the desired legal framework for the monitoring of the rights of children,
but it would be desirable to harmonize any domestic legislation on juvenile
justice to be in line with the Convention and the Charter.
Juvenile justice and rehabilitation are to a greater extend determined
by the way society perceives a child or a juvenile. This is also influenced
by the way society views a child offence and both are the result of the
historical context in which the laws on juvenile justice are developed.
While this chapter may not be in a position to discuss the Rhodesian laws
that produced current notions of the delinquent child, the influence of
this and colonial history must be noted. It is also important to take note
of such issues as the housing policies of the former colonial masters and
how these produced children who were labelled delinquent. It is also important
to note the impact on the statistical record of the advent of independence
in 1980 and the subsequent lowering of the age of majority from twenty-one
to eighteen years.
In general, societal laws tend to emphasize the protection of society
or the maintenance of order and stability rather than protecting the rights
of members of society, much less the rights of children. Zimbabwe is no
different. The laws tend to emphasize retribution and reparation (Kaseke
1993) and are seen as having two functions:
- To enforce societal norms, which Hoghughi defines as a set of behavioural
expectations, rules or guidelines shared by an identifiable social group
(Hoghughi, 1983); - To reinforce and perpetrate the status quo in which children
are treated as suspects all the time.
Historical development of the discourses and debates on juvenile justice
show that this field is a recent development – a twentieth century phenomenon.
According to one writer, referring to the development of perceptions of
delinquency as a prime social threat in Europe: ‘The delinquent has become
the demon of the twentieth century’ (Hoghughi 1983:13). This also had its
impact on the development of juvenile justice system in Zimbabwe, shaping
our notion of a child offender who has become synonymous with a juvenile
delinquent and lately ‘street children’.
According to Midgley, juvenile justice system is however, said to be
suffering from ‘identity crisis’. This is because on one hand the juvenile
courts were created to moot justice and protect the society from the criminal
individuals of society. On the other hand they were created to ensure that
the welfare of individual juveniles is promoted. Thus the two, criminal
justice and welfare objectives are often contradictory (Midgley, 1995).
The former focuses on retribution or reparation while welfare objectives
focus on rehabilitation or reform. A Juvenile justice system can not therefore
be fully realised unless this identity crises is resolved. Thus in Zimbabwe
we have the Children’s Protection and Adoption Act on one hand and the Criminal
Procedure and Evidence Act on the other. The former emphasises the protection
of children while the latter emphasises punishment of offenders and the
protection of society from bad elements.
As a result there is no distinction between delinquency and criminality.
Children continue to be detained in jails rather than children’s centres.
Even the so called children’s institutions are more like children’s jails
than children’s rehabilitation centres. Nevertheless, according to the interviews
we carried out, these rehabilitation centres are undergoing changes to accommodate
the new thinking. This is why the centres are being run by professional
social workers. This actually is an indicator on its own to show that government
takes child welfare seriously.
Official and customary views of childhood
With respect to juvenile justice, in general terms we identified two
types of definition – official and customary – which impact on each other
in the ways information about children is collected and disseminated (Figure
2).
Figure 2: Diagram showing the differences between official and customary
approaches to child offenders
| Official | Customary | |
| Principles |
Individual Clear-cut child/adult divisions in terms of chronological age |
Communal Childhood is a process, rather than an event; it is continuous and |
| Ages |
Under 18 years: a ‘minor’ Under 7 years: a child, not subject to legal process 7-18 years: a ‘juvenile’ subject to legal process, but with the subdivision |
An unmarried person, with no children has a low status regardless The administration of justice and punishment is left to families or, |
Existing data
At national level there are no purposeful and conscious indicators within
the data that we could access within the Department of Social Welfare. In
discussing issues of juvenile justice as it relates to indicators it is
important to understand from the onset that juvenile justice is part of
the child welfare work in the Department of Social Welfare. So as such any
statistics or data on juvenile justice are lumped together with the rest
of the child welfare data. Although there are no indicators per se,
there are data that can be used to develop children’s rights indicators.
However, some of the data at district level are disaggregated, particularly
those at rehabilitation centres, according to type of offences, personal
particulars of children where they come from and which juvenile court they
went to. Each child has a file in which these data are kept for the individual.
Yet it would appear that these data are not used for the benefit of children
or as a children’s rights issue but rather to serve the system. At one such
institute a deputy superintendent confessed to having no idea or to having
very little idea about children’s rights.
It is also important to realise that data on juvenile justice does not
stick out as in health or education sectors. We do not find these data represented
in graphical impressions for analytical purposes as in other sectors like
health or education where children become the main subjects rather than
part of the scenario.
Data on juvenile justice are mainly found within three major government
ministries. These are the Department of Social Welfare, The Police and the
Ministry of Legal and Parliamentary Affairs. Data on juvenile justice can
also be found within other organizations such academic institutions in form
of seminar papers or journals.
Data within the Police Department.
There are basically two pieces of legislation that the police use in
cases that involve children, the Children, Protection and Adoption Act and
the Criminal Procedures and Evidence Act. These are the major tools that
inform the police in terms of dealing with juvenile justice. The data spell
out the investigation procedures, the arrests of juveniles and the detention
or remand of juveniles. However a disturbing situation is that, the police
do not separate data on juvenile offenders or victims from that of adult
offenders.
- The Investigation
The police takes care of the investigations of crimes that are said
to have been committed by juveniles. There is no particular or specific
method of investigation followed when investigating cases involving juveniles.
This is important as it involves getting some evidence on which the juvenile
may win or lose her or his case. There are no data that are available that
address this. Most, if not all, of the interviews are one off events at
which children offenders give a cautioned statement. The investigation
process requires confidentiality, individuality, and acceptance of the
child offender, which cannot be developed in a single sitting.The investigating
officers should ensure that all the principles of casework are upheld,
and that the dignity and sanctity of the juvenile offender are well respected.
The investigation process could be used as a process indicator on its own
and can be measured qualitatively.
- The Arrest
There are no data about the process of arrest of juvenile offenders.
Juveniles are arrested just like adults, particularly when they have committed
what are termed adult crimes such as rape and murder. As in investigation,
arrests could be used as indicators both qualitatively and quantitatively,
the number of arrests made into a quantitative indicator. This indicator
will become more important if those working with children strive to know
the number of children in their areas. If all the demographic data on children
in a given area are known then using the number of arrests will be easier
to monitor which children are engaging in acts of delinquency.
- The Crime
The basic information about a juvenile offender is recorded in a crime
record book. Such data include sex, age, type of offence, date of committal
of the offence, place of committal of the offence and a voluntary statement
by the offender. A record of the police officer who would have handled
the case is also kept. A voluntary statement by the juvenile offender or
the juvenile victim is taken. Where the crime is classified as serious,
such as murder, this statement is recorded in the presence of a guardian
or parent in the case of juveniles below the age of fifteen years. However,
these statistics are not separated from those relating to adult offenders.
The Department Of Social Welfare
There is a considerable amount of data within this department, which
is the custodian of the Protection and Adoption Act, which forms the pivot
of Child welfare in Zimbabwe. There are several categories of data within
this department. There are data that come in the form of the probation officers’
reports to the Attorney General. This data form the core investigation of
the probation officer in terms of the circumstances of the juvenile offender.
The officer also makes some recommendations to the juvenile magistrate upon
his or her findings.
The Department also keeps data in form of sociological reports of juvenile
offenders. This is a detailed report that captures who the child is, where
the child comes from, child’s history age, sex, educational status.
The Department collects separate data on juvenile offenders, including:
- Record of Information
As the name suggests, a Record of Information is a form where all the
initial details of clients are recorded: personal details of the juvenile
offender, previous record, family record, family background, housing conditions,
family relationships, social history and personal development, what household
chores are delegated and to what extend these are done, religious affiliations,
recreational interests, state of health, psychological development, school
records and accomplishments, juvenile’s own story, summary of personality
traits and general comments.This record could be useful to the school authorities if the two departments
were to co-ordinate data on children. If a juvenile offends, the two departments
would simply liaise and share data about the juvenile. Even if the juvenile
had left the school his/her record will still be there.Through its form there are records on all those juveniles who are allegedly
reported to having committed an offence, is irrespective of whether or
not they are prosecuted. Thus one can see how many children have been in
conflict with the law and for what reasons.Many indicators could be developed from this initial case record. The
number of cases involving juvenile offenders or victims can be established
over a certain period, for example over a month in rural areas for a given
population. The data can be further be disaggregated by gender, religion,
level of education and so forth. There is thus a great potential for the
development of other indicators by using this tool.
- Delinquent/juvenile court Register: F H20.
This is a form on which all the juvenile offenders who have appeared
before a juvenile court are recorded together with those whose cases have
been dealt with outside the courts. These two pieces of data can be used
as monitoring indicators in their own right. They would indicate as to
the number of children that would have gone through the juvenile courts
over say a month or a year. This can be made a proportion of the overall
number of children in that area or district. On this form the age, sex
and race of the juvenile are recorded. The type of the offence, method
of disposal by criminal court, whether dealt with outside court by probation
officer, date of court are also recorded. If all the juvenile offender
and victims cases are recorded on this form it would be easy to make them
into one national statistic by the end of the day, with all the details
as shown above.One other very important piece of information is a record of whether
the juvenile is a repeat offender. This is an important indicator. It may
be used to measure the effectiveness of our input indicators. The institution
where the juvenile is sent for rehabilitation is also indicated on this
form.
- Report By A Supervisor on A Pupil Released on Licence From a Certified
Institution or Training Institute Under Section 34 of the Act. Children’s
Protection and Adoption Act Chapter 33.
These data are generally about the juvenile as observed by the probation
officer. There are statistics kept by the district office of children who
are on supervision. These data are basically about children who are on
supervision.
This could be used as a monitoring indicator. The probation officer has
the opportunity to observe and counsel the juvenile, as well as to develop
a working casework relationship with the juvenile. It would be possible
to better understand the dynamics of the case and the juveniles involved.
- Report for Submission to the Juvenile Court on a Pupil to be Released
on Licence Under Section 34 (1) of the Act before the Expiration of one
year of his Period of Retention.
This is a record of juveniles who are released before their period of
release is due, so that they can be supervised from home . Every district
keeps a record of such juveniles. This is actually an output indicator.This shows both the commitment on the part of the department of Social
Welfare and the Ministry of Justice legal and Parliamentary Affairs to
the upholding on the values of the Convention on the Rights of the Child
and the African Charter on the Welfare and Rights of the child. In this
instance these data could also be used as a process indicator.
- Leave of Absence of a pupil from a certified institution or training
institute: Probation Officer’s Report. Form 25.
This form contains data on children who leave institutions where they
are committed and could be used as both process and output indicators
- Monthly Case Contacts
This is a monthly record prepared by the district office for transmission
to head office via the provincial office. The cases involving juvenile
justice are usually lumped together as part of the general child welfare
cases.
- Statistical Returns
Each district and rehabilitation home or centre compiles monthly and
yearly statistical returns for transmission to head office through the
provincial office. This statistic is disaggregated by race and sex, though
they are not specifically on juvenile justice but on child welfare in general.
- Monthly and Yearly Reports (Head office)
Based on statistical returns from district offices, each head office
in turn prepares its own reports which encompass all the districts to give
a national picture of the situation. Head office compiles cumulative data.
There is no spread sheet on juvenile justice issues. Some of the data captured
at district offices are not processed to head offices.
Data in the Ministry of Justice, Legal and Parliamentary Affairs
This is the ministry the juvenile courts come under. There are clear
data that define the procedures to be followed when a juvenile is to be
brought for trial. The Criminal Procedure and Evidence Act does define the
process, structure of the juvenile courts, requirements, prosecution and
sentencing options and ages of children at which a juvenile can get what
kind of treatment. There is really a potential for the development of indicators.
The following are provided for in the Act and are some of the areas that
can be used to formulate indicators for monitoring of the rights of children.
- Review Orders.
This can be used as a monitoring indicator. By reviewing court orders
both the courts and social welfare can actually create a record of the
number of court orders that would have been reviewed over a specific time
period. It can also be established to see how many of these orders are
for girls or boys and from which part of the country. One can thus disaggregate
these data by time, age, sex, proportion over the rest of the committed
juveniles and by land use. This kind of disaggregation is not there. There
is however the potential for doing that because almost all the basic data
are there.
- Establishment of juvenile courts
The establishment of the juvenile courts is an indicator in its own
right. There are inbuilt indicators within this indicator. Currently variables
such as distances juveniles have to travel to court and the ratio of juveniles
per court are not specified. If juveniles are made to travel for long distances
to new environments, they will be greatly disadvantaged. The juvenile might
become frightened to give convincing evidence. Since our law requires that
one gives convincing evidence this situation will weigh heavily against
the juvenile.
- Offices of juvenile courts
The mechanisms of the juvenile courts could be used to input indicators
to show what kind of environment children are exposed to when they go for
trial both as offenders and victims. The state of the courts will show
how friendly the courts are and there showing whether the courts are children
centred or not. This will include the staff that deal with children such
as probation officers or magistrates could also give an indication as to
how much is being spent in terms of the maintenance of juvenile courts.
But because there are no specific juvenile courts per se this will
not be possible to establish.
- Duty to bring children before the juvenile court
The Act spells out that the child shall be brought to court as soon
as possible. ‘As soon as possible’ must be specified. This section can
be used as a process indicator to show the frequency at which children
are taken to courts when they offend and even when they fall victim to
an offence. It would be easier to monitor how soon children are taken to
courts and whether this is within the requirement of the Act. The statistics
developed can be disaggregated by gender, religion, time, land use, proportion
if this is deemed necessary.The record does not disaggregate the statistic in terms of percentages
of girls over boys or boys over girls. It does not calculate percentages
of what cases prevail over what areas of residence and over what period
of time. Statistics just show numbers which seems to be not quite meaningful
in terms of understanding the situation of children. The same goes for
statistics at children’s institutions. The data are all about promoting
officialdom, particularly at institutions and government departments.
Academic Data
Much of these data are a critique of the juvenile justice system. These
come in the form of journals and other data from other countries such as
South Africa. There is however, very little data of this nature within the
academic circles in Zimbabwe. There are other forms of data such as workshop
and seminar reports.
Availability and accessibility of data
Data on juvenile justice are very scarce in Zimbabwe, due to the fact
that this is a relatively new area of interest and study. As said earlier
in this paper there is basically two types of data. There are the legal
instruments and copies of reports on issues of juvenile justice.
Some data were easily accessible. We found that people writing on issues
of juvenile justice were more than ready to discuss the issue. Their reports
were very accessible, even though the government offices were not easily
accessibleto researchers because of bureaucracy. After the process of getting
the authority the information became relatively accessible. In some instances
statistics could were not accessible as this was said to be classified information.
Issues of juvenile justice are a new concept in Zimbabwe. It shown that
the data on juvenile justice is scarce and that much of that which exists
talks mainly of the trial process of juveniles. As a result the children
centredness of the data is highly questionable. In fact it is being argued
that the data concerns itself with issues of process and not the children
involved.
It becomes difficult to monitor any trends in juvenile justice. To this
end there are no indicators that are in place. That could be easily be developed
as much of the basic data are captured. Separate records of juvenile offenders
should be kept with the data well disaggregated in terms of what could be
in the interest of juvenile justice and not in the interest of administration.