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This summarised version is used with permission from Acta Juridica .The full article will be published in Acta Juridica in 2003. Many thanks to Acta Juridica for allowing the Child Justice Alliance to publish this summarised article.
“THE BUSINESS OF CHILD JUSTICE” SUBMITTED FOR PUBLICATION IN ACTA JURIDICA, 2003 [Full article written by Prof. Julia Sloth-Nielsen, Law Faculty, University of the Western Cape]
1.Introduction
In this paper, the author points out the influential role that non-governmental organizations in South Africa’s juvenile justice law reform process played in the first half of the 1990s leading to the eventual preparation of the Child Justice Bill No. 49 of 2002. The Bill seeks to provide a separate juvenile justice system for South Africa. The author notes that the actual commencement of the formal law reform process was however recognized by the appointment at the end of 1996 of the Project Committee of the South Africa Law Commission. At the time of completion of its task, the Committee had produced 3 principal documents viz; an Issue Paper, a Discussion Paper and the Draft Bill.
The paper notes that, overall, key themes of these documents had three distinctive features. Firstly, they highlighted the importance of restorative justice principles (in relation to diversion, sentencing and the overall objectives of the Bill). Secondly, the Bill, in consonance with the provisions in section 28 of the South African (Final) Constitution internalized the bulk of international legal principles on the subject of juvenile justice. The third feature is the novel attempt to provide a legislative framework and regulation for diversion.
However, the author’s argument in the paper does not seek to delve into a value judgment of the Bill’s provisions from either a theoretical or philosophical perspective. Rather, the modest attempt of the paper is to move into a discussion of how system management and business principles shaped the legislative provisions in the Child Justice Bill.
2.The main themes of the article
While conceding the profound influence of the contemporary (children’s) human rights mantra, the paper proceeds to investigate the extent to which the provisions mirror a throw-back into the realms of early theories of juvenile justice. These are the theories of “corporatism” and “managerialism”, rooted in the need for system management and business/economics principles.
The writer notes that corporatist theorists envisaged a juvenile justice system that “strived to achieve the most effective and efficient way of managing juvenile delinquency”. Such a juvenile justice system would be characterized by “ever greater administrative decision-making, greater sentencing diversity, growing decentralization of authority, increasing involvement of non-juridical and voluntary sector agencies, and, in contrast to this, high levels of containment and control in sentencing programmes where youth were convicted of more serious offences”. “Corporatism” also involved a multi-agency delivery involving a number of role players.
In similar vein, these efficiency and economic imperatives formed the basis of the “managerialist” theory that did not rely on a fundamental commitment to norm/principle to justify features of the youth justice system (for example diversion) but rather that the features (like diversion) made sense on the grounds of value for money.
The author bases her discussion on two suggestions. Firstly that, “despite the rhetoric of children’s international and constitutional rights, restorative justice, and diversion as principled reactions to ensuring the best interests of the child in the future child justice system, corporatist kinds of considerations have in fact played a far more substantial role in influencing the content of the Bill than has been recorded thus far”. Secondly, she posits that “these (hitherto unacknowledged) managerialist slant of the proposals will prove to be both a necessary precondition for successful political passage of the Bill through Parliament, and the single most important aspect underlying the eventual implementation of the legislation”.
The author supports these propositions on the basis of six principal arguments briefly discussed here below.
3.The “managerialist” elements manifest in the historical background
preceding the Bill
Firstly, by drawing from a historical background of the South African child justice system the writer points to strategies depicting aspects of managerialist practices. The writer details South Africa’s transitional youth justice system through a revisit of legislative amendments to juvenile justice detention laws occurring in 1994 and 1996. She traces the genesis of management practices aimed at efficiency in the child justice system to the passing of legislation in 1994 that prohibited the pre-trial detention of children. The concomitant effect of the prohibition was that courts were forced to release detained children (especially those under the age of 14) for a want of adequate alternatives in welfare/safety places.
In reaction the cabinet in order to implement the 1994 legislation later formed the Inter-Ministerial Committee on Young persons at Risk (IMC) with the mandate of managing the crisis around awaiting trial youth. The Committee resorted to a number of measures including the formation of a Committee to specifically manage the problem of children awaiting trial, the contracting of NGOs to visit certain prisons on a regular basis for investigation of prison conditions, and the initiation of Project Go later in 1998 to free up places in welfare institutions so as to create space for detained youth. In spite of their unique features and flaws, all these measures pointed squarely to the need for systematic management of awaiting trial children, which was to become a key government policy before and during the development of the law reform proposals.
This spirit was evidently carried post the IMC period as attested to by the government’s drafting (with the assistance of the UN Child justice Project) of the National Interim Protocol for the Management of Children Awaiting Triallaunched in 2001, which also leaned in favor of a corporatist stance with its inter-sectoral blend.
4.Dealing with the key determinants of the present crisis of the criminal justice system
Second, the author supports her argument on the managerialist and corporatist flavor of the Bill by citing contemporary and recent strategies in dealing with the key determinants of the present crisis facing the juvenile justice system. This is particularly with reference to the constraint of a burgeoning prison population (including juveniles detained awaiting trial) as a result of delays in the finalization of criminal cases in court.
In the attempt to resolve the problem of enormous numbers of pre-trial detainees in the general criminal justice system including juvenile justice, the author discusses a plethora of initiatives. These, the author argues, are illustrated by three examples. These are firstly, the integrated justice system pilot projects aimed at the improved management and co-ordination between the police, the prosecution and the courts. Second is the introduction of ‘canalisation courts’ to route all newly arriving cases from the point of first appearance to appropriate fora and to better manage the system internally. Third is the introduction of plea bargaining legislation to permit speedy finalisation of trials in exchange for agreed sentences.
5.The Child Justice Bill and its features in support of systems management
At the third level, the author also supports her arguments based on the actual provisions of the Bill that bear a managerialist slant in that they sought to improve the management of the juvenile justice system.
The author notes that the Law Commission’s Issue Paper posed the question of how an effective and distinct step in the usual criminal procedure could be devised to provide for a discrete opportunity to establish whether a juvenile case could be diverted (as proposed in the Bill) rather than proceeding to court. She finds an answer to this issue in the introduction of the pre-trial procedure of a preliminary inquiry as is incorporated in the Bill.
While the author notes the “spin-off effect” of child right’s theory, particularly the CRC’s requirement that children be detained as a matter of last resort in the introduction of the preliminary inquiry, she points also to the overt managerialist justifications for the new proposed procedure. The writer explains that the Law Commission’s Discussion Paper clearly justified the introduction of the preliminary inquiry based on the need for this procedure to serve as the decisive forum for the decision on whether to divert thus avoiding the exorbitant cost in terms of time and money expended on trials. Further, the other justifications rested on improving efficiency in the management of the juvenile justice system by involving a co-coordinated team of all the role players, by requiring inter-departmental monitoring, by proposing the development of specialist inquiry magistrates (presiding over the inquiries).
6.Economic realpolitik
At the fourth level, the author supports her arguments based on the actual process of costing the Bill. Here the writer points to the Afrec Report compiled by economists who had been contracted by the Law Commission to undertake the task of costing the proposals in the Discussion Paper.
In this regard, she highlights the significant issues of efficiency and cost that were at the heart of the Afrec Report’s conclusions. These conclusions indicated that the introduction of the preliminary inquiry would inter alia, “result in substantial overall costs savings with the promise of increased use of diversion, lower court case loads, less recourse to detention facilities (both prisons and welfare places of safety), and less police expenditure on transporting children between places of safety, prisons and courts pending finalisation of their trials”.
Further, the author highlights the role of the Afrec Report as a powerful “justifier” that underpinned the Law Commission’s Report on Juvenile Justice as seen in three other spheres, in addition to the above conclusions on the imminent cost-saving aspects of the preliminary inquiry. These, firstly, include the Afrec’s Report dismissal of the fear that decarceration of children from prisons necessarily implied building new places of safety and secure facilities to provide alternative accommodation for awaiting trial children. In contrast, the report pointed to the expected drop in demand for accommodation in places of safety and secure facilities due to the envisaged growth in access to diversion and a greater operational efficiency expected of the new envisaged juvenile justice system.
Secondly, the Afrec Report adopted the language of management, with terms illustrating “the creeping dominance of the parlance of business rather than the rhetoric of rights”. And thirdly, the AfrecReport’s conclusions on the proposed One-Stop Child Justice Centres to the effect they not only had the potential of enhancing efficiency (in the sense that one such center could be allowed to service several neighboring magisterial districts to achieve the threshold size required for effectiveness) but would also be the most cost effective model for government in effecting major savings through savings on transport costs, court time and detention costs.
7.Enhancing efficiency through the restructuring of discretion
Beyond the above macro-management proposals of the Bill which suggest a general theme embedded in systems management, the author also argues that the Bill proceeds with this theme at the level of specifics in redefining the roles of a number of players. That these role players include the magistrate, probation officer, private providers of diversion programmes and legal representatives. The redefinition of roles is termed by the author as “micro-management at ‘shop-floor’ level”.
Thus the author points to the Bill’s intention to restricting and restructuring the discretion of a number of role players in significant ways, with the purpose of enhancing efficiency in terms of the speedy handling of matters, improving accountability for various decisions and inculcating inter-sectoral links between role players. For example, the significant watering down of the usual common law “distinct bent towards judicial freedom” is illustrated vividly in the sentencing regime proposed by the Bill with the upshot that judicial recourse to detention is highly restricted.
At another level, the author submits that the provision requiring the registration of diversion programmes “paves the way for far greater bureaucratic involvement in the child justice system as a whole, a trend identified by the corporatist [model of justice]”.
In similar vein, the restriction as regards the exercise of discretion extends to the Bill’s provision requiring accreditation of legal representatives acting on behalf of children and introducing a set of minimum standards to be complied with by all such legal representatives.
8.Planning, forecasting, scoping and budgeting
Last but not least, the author supports her analysis based on the novel element that the Bill’s future implementation was also costed in order to forecast and plan on both the fiscal and practical aspects prior to its introduction into Parliament. This was with the assistance of the UN Child Justice Project, as a follow-up to the Afrec study. In the period between the conclusion of the recommendations for law reform and the parliamentary debates (which are presently ongoing), the UN Child Justice Project has also spearheaded (behind the scenes) a number of technical assistance projects related to the implementation of the Bill (including workshops with government departments).
The author argues that these initiatives plus the element of costing not only bear a managerialist slant in the reform process but will also prove crucial in the process of emphatically giving support to the legislative passage of the Bill. The author points out that the aim of the process of costing was not only to ensure that future fiscal provision is made for the Bill’s implementation by government departments, but also to sway “any doubting Thomas on the Parliamentary benches”.
9.Conclusion
While the article admits the continued dominance of the view that the new Child justice Bill has been strongly influenced by the recognition of children’s rights and restorative justice principles, it acknowledges that the language of business and economics have provided an equally (if not more) powerful justification for the law reformers and government advisors. This is inherent in the significance of processes related to economic modelling and cost efficiency, as witnessed in both the law reform process and indeed in the actual content of the Bill.
In the author’s opinion, therefore, the lessons that emerge point to the complementary (and not competing) nature of children’s rights ideology, on the one hand, and management philosophies, on the other.
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