Ann Skelton on litigating children's rights in South Africa

seth — Fri, 27 Nov 2009 16:32:00 GMT

Happy Thanksgiving to all the Americans out there, and TGIF to everyone else! As part of our preparation for Reblaw 2010, the Reblawg will be featuring commentary from our panelists on topics they will be discussing at the conference. Ann Skelton, a human rights lawyer in South Africa specializing in the rights of juveniles in the criminal justice system, was kind enough to send us some material in anticipation of her exciting panel on the same topic.

Strategic litigation of children's rights in South Africa: A focus on sentencing of children

by Ann Skelton

Children were involved in the forefront of the struggle against apartheid. Iconic pictures and anecdotes of the Soweto riots provide pungent memories of this. As the end of apartheid lurched into view, rebellious lawyers in South Africa began to turn their attention towards the shaping of a new system for children in the criminal justice system, with a heady mix of protest, advocacy, and legal proposals for change. The coming to power of a democratically elected government in South Africa spelt great hope for the future. After 1994 rebellious lawyers donned sober suits and got down to the work of drafting laws and planning with government for effective implementation of systems that would improve the treatment of child offenders.

Incremental improvements were seen during the democratic government’s first 15 years - increased diversion of child offenders, the growth of restorative justice options, a reduction in the number of children awaiting trial in prison. In addition, a comprehensive new law, the Child Justice Act (soon to come into operation) was drafted). However, the struggle to ensure fair and appropriate treatment of child offenders was not over. ‘Tough on crime’ agendas were persuasive to politicians, and so South Africa saw the introduction of legislated minimum sentences, which were applicable to 16 and 17 year olds, as they were to adults. These sentences included automatic life imprisonment for certain categories of murder, rape and robbery. A life sentence in South Africa means that a prisoner must serve 25 years in prison before being considered for parole, and this pre-parole period is applicable to prisoners below or above the age of 18 years.

The Centre for Child Law has been undertaking strategic litigation on children's rights since 2003. The work was found to be necessary to close the gap between the promises made to children and the actual reality on the ground, and to shore up children’s rights in situations where new laws are introduced that are not in their interests, such as the minimum sentences laws. In a sense, this kind of litigation in the children's rights field presents a partial return to rebellious lawyering, within a democratic governance context. Strategic litigation, sometimes also called impact litigation, involves selecting and bringing a case to the courtroom with the goal of creating broader changes in society. People who bring strategic litigation want to use the law to leave a lasting mark beyond just winning the matter at hand. This means that strategic cases are as much concerned with the effects that they will have on larger populations and governments as they are with the end result of the cases themselves. South Africa had a vibrant history of strategic litigation dating back to the Apartheid era, and we have the advantages (since 1994) of a Bill of Rights in the Constitution which contains an impressive array of fully justiciable rights, relatively relaxed rules on standing, an inclusive approach to litigation and an independent judiciary. The rule of law and the separation of powers, whilst occasionally seeming precarious, are generally upheld.

In Centre for Child Law v Minister of Justice (National Institute for Crime Prevention and Reintegration of Offenders and Amicus Curiae) 2009 (6) SA 632 (CC), the Centre successfully challenged the constitutionality of minimum sentences (long terms of imprisonment including life) for 16 and 17 year olds. The court declared certain subsections of the minimum sentences Act to be invalid insofar as they referred to 16 and 17 year olds. The effect going forward is that when a court is sentencing any person who was below 18 years at the time of the commission of the offence, the court has full discretion and must follow the Constitutional injunction to use imprisonment as a last resort and for the shortest appropriate period of time. This judgment and its implications going forward will be discussed in detail during the panel presentation.

Reblaw2013 : ann skelton, criminal sentencing

Ann Skelton on litigating children's rights in South Africa