The lack of national figures on children in trouble with the law hampers research on their right to education. Image: Creative Commons
With exam season in full swing, South Africa has no certainty as to how many children in trouble with the law are sitting for final exams, nor is there any reliable information on the quality of the education provided to children who are being processed through the criminal justice system and how they are accessing education.
According to officially listed figures by the Department of Social Development, secure centres dedicated to accommodating awaiting-trial and sentenced children have the capacity to house 2,454 children in 29 facilities. The current child justice regime in the country deals with children up to the age of 18.
An earlier report, released in 2014 by the South African National Institute for Crime Prevention and the Reintegration of Offenders, placed the number of children in secure centres at 846 with most being held for incidents relating to aggression, with economical crimes coming second.
Benny Ramoliki, who coordinates the education programmes for sentenced children in Gauteng, says there are 1,527 participants in technical skills programmes, 109 children of school-going age and 2003 attending classes for Grade 10 to Grade 12.
There are no readily available official national figures on the departments of social development and that of justice and correctional services’ websites that researchers and children’s rights advocacy organisations can access to inform their work.
Activist group Equal Education’s Law Centre in Khayelitsha has realised that although there are laws and a framework that guide how the justice system should deal with children, these do not paint a comprehensive picture on the status of the right to access education for those in trouble with the law.
Chandre Stuurman, an attorney at the centre, says they are currently conducting research, titled The Access Project, which looks into the model followed by correctional facilities in the Western Cape.
“The Access Project has a desktop research component, which produced a preliminary report, together with a field-based research component, which involves meeting with relevant government departments and on-site visits to child and youth-care centres as well as prisons such as Drakenstein, Brandvlei and Hawequa.”
The organisation plans to make the results of their research project public once it has been completed early next year and aims to explore how the findings of the study can be useful to other provinces.
Currently there are two different types of facilities that cater for the educational needs of children in trouble with the law. The first is through programmes run by the department of correctional services and accessed by pre-trial and sentenced children through the prisons system for those associated with serious crimes. The other set of diversion facilities is run by the department of social development.
Dr Anne Skelton, from the University of Pretoria’s Centre for Child Law, says the picture of child offenders’ access to education is mixed.
“We are aware that there are several facilities in the country where child offenders who are awaiting trial or serving sentences are not receiving education. There are a range of facilities that are not prisons, they fall under the department of social development. In prisons, education is usually accessible [though this is less true for children awaiting trial]. But in the Department of Social Development’s facilities, some do have education, and some do not.”
Dr Skelton, who also holds the Unesco chair for Education Law in Africa, referred to some gaps in the regulatory framework as challenges the child justice regime in the country faces. The Child Justice Act 2008 ushered in a separate regime for child justice.
“Even when you have a separate regime, different aspects are provided by different departments, so it is possible that there are disputes between the departments of education and social development about whose responsibility it is to provide education, and the law does not make this absolutely clear.
“The running of the child and youth-care centres falls under the Department of Social Development, and is governed by the Children's Act,” she added.
The Qumbu Secure Centre in the Eastern Cape has 15 children in their deviation programme. Their facilities have the capacity to handle an intake of 48 awaiting-trial child offenders who can then access vocational skills. The system they follow is different from the mainstream basic education programme followed by public schools.
Thamela Mangaliso, a social worker at the centre, says because of this difference they are not incorporated into the basic education’s exam campaigns at the end of the year.
“Our children do not write exams since we only run skills projects. So we don’t follow the same routine as regular schools. But our children do go home when it’s the holidays.”
Mangaliso says there’s normally an influx of young people in December that they have to anticipate at their centre because of the spike in law infringements by young people during the festive season.
“When someone needs to be part of our skills projects they approach the centre’s manager about their situation and we follow our processes before we can accommodate them,” Mangaliso said.
The courts in South Africa have had occasion to hear important cases involving the rights of children infringing the law.
The Child Justice Act 2008 ushered in a separate regime for child justice. Image: Creative Commons
In the Fredericks vs State case in 2011 the Supreme Court of Appeal was occupied with a matter involving Brian Fredericks who was sentenced at age 16 to an effective 25 years in prison for robbery with aggravated circumstances and two counts of rape. Fredericks was 14 years and 10 months at the time of his arrest and the Supreme Court had to establish whether the Western Cape High Court misdirected itself by imposing such a lengthy sentence on a child offender.
In reducing the sentence to twelve years Justice Jeremiah Shongwe reasoned that although the trial court took into account the seriousness of the crimes committed, the initial sentence was too severe under the circumstances.
“A sentence of imprisonment for 25 years for a 14-year-old first offender appears to me to be shockingly and disturbingly inappropriate. The disparity in this sentence as compared with the sentence which I would have imposed, if I had sat as the trial court, is so striking that I feel impelled to interfere with the sentence,” the judgment read.
The current dispensation under the Child Justice Act aims at ensuring that children who have run-ins with the law are still treated as children who have specific needs that need to be taken to account. Under the act children under the age of 10 are deemed incapable of appreciating the fuller impact of their actions and treatment, and that other forms of help should be sought for them.
For children older than 10 years probation officers are required to make an assessment of the child’s circumstances, including the reasons why they committed a given offence. Restitution through deviation programmes is recommended and imprisonment is only considered as a last resort.
Prof Benyam Dawit Mezmur, who heads the Children’s Rights Project at the Dullah Omar Institute at the University of the Western Cape, says the are many strong provisions in the act that protect children’s rights. Some of these are in the diversion options available.
“Diversion options are set out in two levels in the act. These levels are linked to the schedules which contain lists of offences based on the seriousness of the offence. Broadly speaking, Schedule 1 contains minor offences, Schedule 2 more serious offences and Schedule 3 the most serious offences. There are also maximum time limits for diversion set out in section 53(5) which are linked to both the level of the diversion option and the age of the offender,” Prof Mezmur explained.
Level 1 diversion options range from informal orders to admission to formal interventions and programmes. It includes compulsory attendance of vocational, educational or therapeutic programmes.
“In addition to the level 1 options, further level 2 options include compulsory attendance of vocational, educational or therapeutic programmes, which may include a period of temporary residence and referral to intensive therapy, which may include a period of temporary residence,” he added.