JUVENILE
PRETRIAL
DIVERSION
DEFINITION OF TERMS
Hamilton (2011) defines a juvenile as a child or young
person who, under respective legal systems, may be
dealt with for an offence in a manner which is different
from an adult.
Juvenile justice refers to a system of laws, policies,
guidelines, customary norms, systems, professionals,
institutions and treatment specifically applicable to
children in conflict with the law (Kaseke, 1993; United
Nations Office on Drug and Crime, 2006).
Juvenile justice addresses the situation of children
who are alleged as, accused of, or recognized as
having infringed the penal law.
INTRODUCTION
In Zimbabwe children are incarcerated for crimes such as theft,
rape, malicious damage to property, assault and murder.
Delinquency and criminal behaviour is common among young
children as they negotiate the transition from childhood to
adulthood in an increasingly complex world.
There is need to provide legal assistance in cases where children
have allegedly committed a crime
A child-friendly justice system guarantees the respect and the
effective implementation of all children’s rights at the highest
attainable level and gives due consideration to the child’s level of
maturity and understanding the circumstances of the case
(UNICEF, 2013).
Lawyers provide legal assistance while social workers give
psychosocial support services for children who come in contact
with the law.
INTRODUCTION
Article 40, 3(b) of the CRC states that wherever appropriate and
desirable, measures for dealing with such children (in conflict
with the law) without resorting to judicial proceedings should be
employed.
Restorative justice diverts juveniles from the formal justice
system and incorporates elements of rehabilitation.
The Beijing Rules further state that the police, the prosecution or
other agencies dealing with the juvenile cases shall be
empowered to dispose of such cases at their discretion, without
recourse to formal hearing.
Different types of diversion exist.
They include diversion from arrest, from prosecution and from
being incarcerated.
PTD
Diversionary measures come into play at any stage: that is, at the
time of arrest or immediately before the foreseen court hearing
either as a generally applicable measure or on the decision of the
police, prosecutor, court or similar body (Dearing et al, 2013).
Diversion is not a new phenomenon in Zimbabwe. The Prosecutor
General or his representative has the power in terms of Section 9 of
the Criminal Procedure and Evidence Act (Chapter 9:07) to decline to
prosecute any matter if it satisfies the following conditions: accused
is below the age of 21 years, accused has, without any doubt,
admitted to the crime committed, and that the crime committed
would not usually attract a jail sentence of more than 12 months.
JPTD came into existence in 2009 after the Government of
Zimbabwe accepted the implementation of a pilot programme for
persons below the age of 21 but it was then formally adopted by
Government in 2016. (Ministry of Justice, 2013).
PTD
The Programme is guided by a set of principles which include:
• the best interest of the child to be the paramount interest,
• detention to be used as a measure of last resort and for the shortest possible
period of time,
• minimize the child’s contact with formal justice system,
• protection from abuse, exploitation and violence is to be respected all times,
• all children are to be separated from alleged and convicted adult offenders
throughout contact with the justice system
• and boys and girls are to be treated differently, where necessary, to ensure
maximum benefit from their participation in the diversion process
(Protocol on the Multi-Sectoral Management of Sexual Abuse and Violence in
Zimbabwe, 2012).
Pre-trial diversion is peculiar because it focuses largely on children and has
incorporated rehabilitative components such as counselling, victim-offender
mediation and constructive use of leisure time to prevent recidivism.
This has shaped a new field of social work where specialist social workers work
as diversion officers who deal solely with children in conflict with the law and
related aspects (Pre-trial Diversion Guidelines, 2012).
WHY PTD?
It seeks to keep children away from the harmful effects of the
formal criminal and penal systems; address the reasons behind
their offenses; and to provide victims of crime with re-dress and
rehabilitative interventions that allow them to re-integrate into
society.
The programme also seeks to make young persons responsible
and accountable for their actions, and to provide an opportunity
for reparation and prevent young offenders from receiving a
criminal record early in their lives (Ministry of Justice, 2013).
Diversion avoids stigmatisation, serves the child from being
involved in the rigorous process of judicial proceedings and is
also cost effective.
BACKGROUND
Being in contact with the law may trigger traumatic experiences for
adults let alone children, hence the need for social work
interventions to assist such children.
Youth who enter the juvenile justice system have high rates of
traumatic experiences and face a higher risk of mental health
problems than those in the general population.
The majority of children who are involved in the juvenile justice
system have experienced abuse and neglect, dysfunctional home
environments, destructive and inconsistent parenting practices,
poverty, school-related problems and exposure to delinquent peers
and community and societal problems.
BACKGROUND cntd…
The Zimbabwe Prison and Correctional Services 2010/2011 report as noted in
the National Legal Strategy for Children states that there are around 300
children in prison at any given time.
A considerable portion of these children were not represented by a lawyer or
supported by a probation officer during their trial.
Moreover, their cases have yet to be reviewed since the time of detention
(National Legal Strategy for Children, 2012).
Thus, children continue to be deprived of their liberty prior to trial, which is in
violation with the right to liberty as deprivation of liberty should be employed
as a measure of last resort.
UNICEF Zimbabwe 2013 Annual Report highlights that around 57% of
detained children remain in remand for up to two years. Arguably, these
statistics are only a tip of an iceberg as there is no study that has been
conducted on a national level to determine the magnitude of juvenile crime in
Zimbabwe.
(Ruparanganda and Ruparanganda, 2016)
LEGAL FRAMEWORK FOR
JUVENILE JUSTICE
There are a number of international instruments which guide the delivery of juvenile
justice and these include:
• the United Nations Convention on the Rights of the Child (UNCRC),
• United Nations Minimum Rules for the Administration of Juvenile Justice (Beijing
Rules),
• United Nations Guidelines on the Prevention of Juvenile Delinquency (Riyadh
Guidelines),
• United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana
Rules),
• United Nations Basic Principles on the use of Restorative Justice Programs in Criminal
Matters,
• and the Guidelines for Action on Children in the Criminal Justice System (Vienna
Guidelines).
The United Nations Convention on the Rights of the Child (UNCRC) forms the
bedrock for administration of juvenile justice
GLOBAL FRAMEWORK- UNCRC
Article 40 (1) – (4) of the UNCRC provide a comprehensive framework within which
states are obliged to design a juvenile justice system.
The UNCRC covers a wide spectrum of guidelines and principles such as
nondiscrimination, the child’s right to dignity and privacy, the need for children to
respect the fundamental rights of others, and the desirability of promoting the
child’s reintegration and assuming a constructive role in society.
The UNCRC supports equal treatment for children in conflict with the law including
non-discrimination on the basis of sex or race.
The UNCRC promotes the establishment of a separate criminal justice system for
children in conflict with the law, establishing minimum age of criminal capacity and
the need for creating alternatives to institutional care in a manner appropriate to the
child’s wellbeing and that are proportionate both to the child’s circumstances and
the offence.
The wide range of issues and rights contained in the UNCRC safeguard children in
conflict with the law from being treated as little adults and subjected to severe
punishments.
The UNCRC also recognises that every child is an individual and should be treated
and managed as such within the criminal justice system.
REGIONAL FRAMEWORK- ACRWC
The African Charter on the Rights and Welfare of the Child is the
regional instrument that guides administration of juvenile justice
and its provisions are similar to that of the CRC in that they both
promote the creation of a separate justice system for juveniles
and the system to be guided by the principles of participation,
non-discrimination, the best interest of the child and promoting
the survival and development of children.
ZIMBABWE LEGAL FRAMEWORK
In Zimbabwe, there are various pieces of legislation which inform
juvenile justice.
These include the Children’s Act [Chapter 5:06], the Criminal
Codification and Reform Act [Chapter 9:23] and the Criminal
Procedure and Evidence Act [Chapter 9:07].
Zimbabwe ratified the Convention on the Rights of the Child (CRC)
in 1990 and the African Charter on the Rights and Welfare of the
Child (ACRWC) in 1999 and both treaties oblige the state to develop
a juvenile justice system defined by the parameters set by these
instruments.
The Constitution of Zimbabwe Amendment (No. 20) Act 2013
(hereafter referred as the constitution) provides rights for people
alleged to have committed a crime including juveniles
Cntd…
The constitution provides for the participation of children in judicial proceedings.
Furthermore, it emphasises that the best interest of the child takes precedence in all
matters that affect the child.
In Zimbabwe, a child under seven years cannot be subjected to legal proceedings as
they are presumed incapable of committing a criminal offence.
Children between the ages of seven years but below 14 years can be charged with a
criminal offence but there is need to seek authority to prosecute from the Attorney
General’s office.
Those aged 14 to 17 can be prosecuted. When a juvenile is alleged to have
committed an offence, the law requires that the matter be referred to a probation
officer, who upon systematic investigation, prepares a social inquiry report
highlighting the socio-economic circumstances of the juvenile (Kaseke, 1993).
This flows from the fact that children are vulnerable due to their age and mental
immaturity.
Social inquiry reports are critical in explaining the special circumstances of the
juvenile. Hence the courts should seriously consider probation officer’s
recommendations in disposing cases of juveniles.
THE ROLE OF SOCIAL WORK
PRACTICE
Social workers are involved in three spheres in the juvenile justice
system that is the primary, secondary and tertiary levels (UNICEF,
2013).
The first sphere, that is the primary prevention, is concerned with
strategies that address the root cause of juvenile crime thereby
creating a protective environment for all children (UNICEF, 2013).
This sphere focuses on preventing juvenile crime through creating a
protective environment in which children are not exposed to crime and
are not pushed into criminal activity.
The primary sphere is a fundamental element in social work practice.
There is need for provision of holistic social protection system to tackle
the socioeconomic factors such as poverty that work against the
welfare of children pushing them into engaging in criminal activities
ROLES Cntd…
Secondary prevention strategies target children considered to be
at high risk of getting in conflict with the law, in order to remove
the propensity for committing offences (UNICEF, 2013).
Social workers address risk factors that make children
susceptible to crime such as dysfunctional home environments
and inconsistent parenting, abuse and neglect, and community
and societal problems.
In addition, social workers can be involved in training good
parenting skills through parenting clubs which enables children to
be raised in a stable family environment where they are accorded
adequate care and guidance necessary for their optimal physical
and psycho-social development.
ROLES Cntd…
The last sphere in which social workers are involved is the tertiary
sphere.
Tertiary prevention aims at preventing re-offending by children
already in conflict with the law and involves programmes that offer
rehabilitation of the child offender.
Social workers act as rehabilitation officers in juvenile incarceration
institutions such as young offender’s prisons, probation hostels and
training institutions.
In this regard, the core role of the social worker is to facilitate
rehabilitation of the child offender in order to prevent recidivism, that
is, the tendency to relapse into criminal behavior.
Counseling and other rehabilitative mechanism become indispensable
to social work practice.
ROLES Cntd…
The traditional role of probation officers is to prepare a social enquiry report on the child’s
circumstances. A role provided for under the Children’s Act (Chapter 5:01). These reports
typically provide background information on the child-family situation, health, education,
special problems and strengths to help determine the most appropriate course of action
regarding that particular child and the offence.
Social workers should provide support during custodial sentences linking the child to other
resource systems and ensure that the child is rehabilitated.
Further, they provide support consistent with the child’s needs which includes ensuring
that the child furthers education whilst incarcerated.
Social workers should prepare the child for release, facilitate family reunification and offer
post release support such as counseling to help the child re-adjust to the home
environment.
Social workers work as diversion officers. They divert first time juvenile offenders who
commit trivial cases from the rigors of the criminal justice system. Social workers are
important in the process of diverting juveniles in conflict with the law and offer counselling
and other necessary support services to address the presenting problem and the root
cause of delinquency. This is an important function of social workers as they aim to
rehabilitate the juvenile offender through counselling, victim-offender mediation and
encouraging juveniles to use their leisure time constructively
CHALLENGES IN JPTD
Kaseke (1993) noted that juveniles continue to be kept in remand prisons as well as the
convicted juveniles were kept in the remand prison with had core criminals while
awaiting repatriation to probation hostels and training institutions.
In the current turbulent economic environment that is highly volatile, government line
departments such as the Zimbabwe Prisons and Correctional Services and the
Department of Child Welfare and Protection Services are struggling to ferry convicted
juveniles in time.
This defies the constitutional provision article 81 (i) and 8 (i) (i) that detention of children
should be taken as a measure of last resort and if detained kept for the shortest period
of time as children continue to be kept in remand prison for a long time.
Only juveniles in Harare, Bulawayo and Gweru are benefiting from the programme
thereby prejudicing other children in small towns and remote areas who commit non-
serious offences and if convicted they have to live with a criminal record, a stamp that
affects their well-being for the rest of their lives.
The current juvenile justice systemis premised on fragmented pieces of legislation. There
is need to draft a comprehensive legislative instrument and or policy that specifically
caters for the juvenile justice system. This will improve understanding among
professionals and enhanced efficiency in dealing with cases of juvenile delinquency
REFERENCES
Dadier, N.; (2008). Juvenile crime. Indian journal of social work, 69 (1-2), 42-59.
Government of Zimbabwe; (2011). National Legal Assistance for Children Strategy 2012-2015.
Hamilton, C.; (2011). Guidance for legislative reform on juvenile justice. New York: United Nations
Children’s Fund (UNICEF).
Judicial Service Commission; (2012). Protocol on the multi-sectoral management of sexual abuse and
violence in Zimbabwe
Kaseke, E. (1993). Juvenile justice in Zimbabwe: the need for Reform. Journal of social development
in Africa, 8 (1):11-17.
UNICEF; (2002). Child care practices in Zimbabwe. Harare: UNICEF. UNICEF; (2013). Zimbabwe annual
report. Harare: UNICEF. UNICEF; (2013). Report on the role of social work in juvenile justice. Available
at: [Link] _report_on_the_role_of_social_work_in_juvenile_justice.pdf.
Accessed 13 June 2015.
United Nations; (1996). Concluding Observations of the Committee on the Rights of the Child,
Zimbabwe. Available:
[Link] Accessed 16 February 2016.
Ruparanganda, B and Ruparanganda, L., 2016 Reformations in Zimbabwe’s juvenile justice system.
African Journal of Social Work, Volume 6 Number 1 2016
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