The aim of CJA
he aim of the CJA is to set up a child justice system for children in conflict with the law. This means that children under the age of 18, who are suspected to have committed crime, will not be dealt with in terms of the normal criminal procedure which is used for adults, but the child justice process will be followed.
Implementation of the Child Justice Act
The Centre for Child Law is calling for proper implementation of the Child Justice Act when dealing with children who allegedly contravene the law due to substance use. It believes that emphasis should be placed on treating children for drug dependency rather than criminalising, incarcerating and punishing them. Isabel Magaya from the Centre for Child Law said 2019 court ruled in the Prince matter essentially decriminalizing the use and possession of cannabis or certain amounts of cannabis by adults in private settings.
Children’s rights are entrenched in Section 28 in the Bill of Rights in the Constitution of South Africa. These rights are in the best interest of all children under the age of 18 years old.
She continued saying the constitutional court did not engage with issues dealing with such conduct by children, which ended up happening is that children who were caught using or in possession of cannabis were incarcerated or were treated as criminals, she said.
Centre for Child Law through Isabel Magaya felt that the Drug Trafficking Act is not adequately protecting the children’s rights by allowing them to be sentenced or to be held as criminals, because their only crime is possession not necessarily a crime for adults. She believed that a criminal justice system is a harmful place to deal with children who have substance abuse. She said holistic approach to children’s issues should allow them to actually engage or to be given an opportunity to be rehabilitated and to receive services and programs that would allow them to get help and get over the substance abuse and Centre for Child Law is of the view that the criminal justice system exposes them to harm.
She added saying we might ending up with children leaving the criminal justice system or jail as hardened criminals as opposed to rehabilitated former offenders.
The CJA is specifically intended for children between the ages 10 and 18. The CJA states that:
- A child under the age of 10 years cannot be arrested! This means that a child under 10 years does not have criminal capacity and cannot be charged or arrested for an offence. In such a case, the child will be referred to the Children’s Court.
- A child older than 10 years but below the ages of 14 years is presumed to lack criminal capacity unless the state proves that he/she has criminal capacity. Such a child can be arrested.
- A child above 14, but under 18 years of age, is said to have criminal capacity and can be arrested.
Children who come in conflict with the law need to be informed about their rights. Preventive measures can improve children’s understanding of their responsibilities under the law and help them avoid conflict.
Centre for Child Law felt that the case was about whether it was constitutionally permissible for children to be subjected to criminal sanctions in order to prevent and deter them from using cannabis. Advocate for Centre for Child Law also said that when a child was found in possession of cannabis, the system that must deal with the child was not the criminal justice system.
Children in conflict with the law may be portrayed as ‘wicked’ or threatening, and presumptions of character need to be challenged. The establishment of appropriate juvenile justice system can be difficult if public opinion favours tougher responses and harsher sentences.
Services should be in place offering community based and family-focused assistance so that children can achieve rehabilitation and avoid repeat offences.
For more about CJA please read more by clicking the link https://www.justice.gov.za/vg/childjustice.html
Children’s Rights is one of seven focus areas identified by the South African Human Rights Commission as requiring a dedicated focus in order to effectively fulfil its mandate of promoting, protecting and monitoring the realisation of the rights of children in South Africa. The SAHRC is mandated to monitor and influence progress by all organs of State in the realisation of the constitutional rights of children.
The review of the age of criminal capacity creates the ideal opportunity and obligation to ensure that the choices made are in the best interest of children in conflict with the law. The majority of challenges mentioned in this article are not new. It is recommended that challenges should not only be recorded in the Department of Justice and Constitutional Development’s annual reports on the implementation of the Child Justice Act, but that feedback should also be given in succeeding reports on how these challenges were addressed. As Badenhorst aptly states, even though challenges will be part of the process, the true measure of success lies in the way these challenges are dealt with and how they are eliminated.
