Measuring progress and plugging gaps: Towards a child-friendly criminal justice system in Zimbabwe

• Citation: (2023) 36 SACJ 379
• DOI: https://doi.org/10.47348/SACJ/v36/i3a2
• Published date: 13 March 2024
• Pages: 379-405
• Author: Moyo, A.
• Date: 13 March 2024

Measuring progress and plugging

gaps: Towards a child-friendly

criminal justice system in

Zimbabwe

ADMARK MOYO*

ABSTRACT

This art icle takes stock of the progress made a nd challenges confronted by

Zimbabwe in domesticati ng international chi ld justice standard s relating

to general principles of chi ldren’s rights, the mini mum age of crimin al

responsibility, and pre-tr ial detention. It demonstr ates that the countr y

has largely incorporated gene ral principles of child ren’s rights and their

implications for child just ice norms, standards and practices at the domest ic

level. In addition, the article po sits that the legislatur e should raise the

minimum age of cr iminal respo nsibility to at least 14 years to har monise

domestic law with regional and i nternational chi ld law. In the context of

pre-trial detent ion, it is argued that the con stitutionalis ation of the twin

principles of detention as a measu re of last resort and for the shorte st

appropriate period are designed to en sure that an alleged chi ld offender is

solely detained if there a re no less restrictive mean s for securing the chi ld’s

attendance during t rial proceedings. It is a lso shown that pre-diversion

assessments of child of fenders enable key players in the justice system

to craft individu alised, evidence- based interventions t hat respond to the

treatment needs of each chi ld offender. Fi nally, the a rticle reiterates that the

state should urgently enact the C hild Justice Bill, al locate more resources,

and build relevant infr astructu re for pre-trial, ch ild-friendly just ice to

become a reality.

1 Introduction

There are several international and regional instruments that entrench

child justice standards. Of these, the two most prominent hard law

instruments are the Convention on the Rights of the Child (CRC)1 and

the African Charter on the Rights and Welfare of the Child (ACRWC).2

To add to these, the United Nations has adopted numerous standards

of a soft law variety that include the Guidelines for the Prevention of

* LLB (UFH) LL M PhD (UCT); Senior Lec turer, Department o f Private Law, Stellenbosch

University.

1 General Assem bly Resolution A/R ES/44/25, adopted 20 November 1989 entered

into force 2 September 1990.

2 Adopted on 11 July 1990 entered into force 29 November 199 9.

https://doi.org/10.47348/SACJ/v36/i3a2

379379

(2023) 36 SACJ 379

© Juta and Company (Pty) Ltd

Juvenile Delinquenc y (The Riyadh Guidelines),3 the Standard Min imum

Rules for the Administration of Juvenile Justice (The Beijing Rules),4

and the United Nations Rules for the Protection of Juveniles Deprived

of their Liberty (JDL Rules).5 The CRC and the ACRWC entrench four

principles of children’s rights which govern all issues concerning

children. These principles are equality and non-discr imination;6 the

best interests of the child;7 the right to life, sur vival, and development;8

and the child’s right to be heard in all matters concerning them.9 The

scope of these principles under international law; their implications for

domestic child justice systems and the ex tent to which the Zimbabwean

legal system complies with them, are briey discussed below.10

One of the core objectives of a child-friendly justice system is the

promotion of the rights and well-being of the child offender.11 A child

rights oriented juvenile justice system should promote the sense of

worth and dignity of chi ldren alleged as, accused of, or recognised

as having infringed the penal law.12 In doing so, it must take into

account the child’s age and the desirability of promoting the child’s

reintegration and assuming a constructive role in society.13 A child

rights-oriented justice system should guarantee the centrality of the

child’s well-being,14 ensure that a child in the cr iminal justice system

maintains contact with their family,15 that the right of the child to

3 United Nations ‘Guideli nes for the Prevention of Juveni le Delinquency’ ( The

Riyadh Guideli nes), adopted by the General Assem bly Resolution A/R ES/45/112 on

14December 1990.

4 ‘United Nations Sta ndard Minimum Rules for the Adm inistration of Juvenile Justice’

(Beijing Rules), adopted by the General A ssembly in its resolution A/RES/40/33 on

29 November 1985.

5 ‘United Nations Rules for t he Protection of Juveniles Deprived of thei r Liberty’ (J DL

Rules), adopted by the General Ass embly Resolution 45/113 on 14 December 1990.

6 Articles 2 of t he CRC and 3 of the ACRWC.

7 Articles 3 of t he CRC and 4(1) of the ACRWC.

8 Articles 6 of t he CRC and 5 of the ACRWC.

9 Article 12 of the C RC.

10 See s 2 of this ar ticle.

11 See generally a rts 37 and 40 of the CRC , and art 17 of the ACRWC.

12 See arts 40 (1) of the CRC and 17(1) of the ACRWC.

13 See art 40(1) of the CRC.

14 See art 40 (3)( b) of the CRC.

15 Article 9 (3) of the CRC provides that ‘States Par ties shall respect the r ight of the child

who is separated from one o r both parents to maintain p ersonal relations and direc t

contact with bot h parents on a regul ar basis, except if it is cont rary to the ch ild’s

best interests’. Simi larly, art 37(c) stipu lates that ‘every child deprived of l iberty shall

be separated from adu lts unless it is con sidered in the chi ld’s best interest not to

do so and shall have the rig ht to maintain cont act with his or her fa mily throug h

380 SACJ . (2023) 3

https://doi.org/10.47348/SACJ/v36/i3a2

© Juta and Company (Pty) Ltd