Righting the wrongs for children in detention

A report on a recent international study indicated that more children in secure care centres (SCCs) in South Africa were awaiting trial, many were undergoing residential diversion and a relatively small number of them were serving a sentence.

• For more information on the University of Pretoria’s research, click here.

This breakdown is concerning and warrants further investigation as detention of children should, in terms of section 28(1)(g) of the Constitution and international law, be a measure of last resort and for the shortest appropriate period.

“For some years, the Centre for Child Law (CCL) had been concerned about the rights of children in these centres,” says Karabo Ozah, Director of the CCL in the Faculty of Law at the University of Pretoria (UP).

New information derived through Professor Manfred Nowak’s 2019 report on the ‘Global Study on Children Deprived of Liberty’ submitted to the United Nations General Assembly prompted the CCL to undertake its own baseline study.

“The report revealed that although South Africa had performed well in reducing the number of children in correctional centres, there remained a considerable number in SCCs, and it was important to assess the conditions of their detention,” Ozah says.

The CCL collaborated with the National Preventative Mechanism (NPM), housed in the South African Human Rights Commission (SAHRC), and published a research report to help the NPM enhance its monitoring obligations as the oversight mechanism on SCCs.

As an output of the same project, the researchers presented a model to guide the process of independent oversight of the SCCs. The model sets out the principles for child rights-compliant oversight and provides practical guidance for visits, including enhanced participation by children themselves in a manner that also provides protection against the risk of reprisals.

The model aims to promote prevention of torture and cruel, degrading and inhuman treatment; establish a procedure for dealing with abuses that may be uncovered through visits; and improve the system of secure care for children.

“A specialised model is necessary because children deprived of their liberty are in a situation of dependence and cannot protect themselves to the same degree that adults can,” Ozah says.

“The power differential is very strongly in favour of staff/adults. For example, children do not communicate in the same way that adults do about what is happening to them, and this reticence may be linked to their past experiences or to their distrust of ‘the system’.”

Some recommendations from the ‘Proposed Model for Independent Oversight of SCCs in South Africa’ are:

• Train the NPM monitoring team and SAHRC provincial members on the relevant laws, standards and practices applicable to children and to children in SCCs.
• Create a safe space for children to disclose abuse and eliminate risks of reprisals.
• Facilitate the participation of children by interviewing them in focus groups, smaller groups and individual interviews, or carry out surveys, depending on what is most comfortable for each child.
• Make available a confidential complaints mechanism to allow children to lodge complaints to the head of an institution/SCC manager without fear of reprisal.
• Inform staff members of the applicable laws and standards regarding complaints, and their role in supporting the complaints. A child-friendly version must be given to children upon their arrival and should be displayed on noticeboards in the child’s space.
• Undertake annual visits over two-day periods and subsequent unannounced visits on a biennial basis to gather information from all role players within the SCCs, and report information to the Department of Social Development.
• Adopt special measures for public health emergencies and natural disasters.

Why this research matters

Both the National Preventative Mechanism and state government have an obligation to monitor secure care centres and ensure that children are safe, adequately cared for and that the centres implement a non-punitive, educational and therapeutic approach.

The ‘Proposed Model for Independent Oversight of SCCs in South Africa’ outlines a monitoring process that aims to protect children during visits, as well as a complaints mechanism within the institution and externally to an independent body like the South African Human Rights Commission.

For more information on the University of Pretoria’s research, click here.