Juvenile justice in Zimbabwe: Rehabilitation vs punishment

RUTENDO MANHIMANZI

In a seemingly intimidating courtroom in Masvingo, a teenage boy stood nervously before the magistrate, accused of theft. Instead of being sent to prison, he was refered to a community counseling program.

His story reflects a growing shift in Zimbabwe’s juvenile justice system from one rooted in punishment to one leaning toward rehabilitation.

A System Once Anchored on Retribution

For decades, Zimbabwe’s legal system treated juvenile offenders little differently from adults. Detained children were often held with adult inmates, exposed to abuse, trauma, and a revolving door of criminal behavior. The few juvenile detention centers that existed were underfunded and offered limited rehabilitation services. This punitive approach began to change with landmark reforms.

The Constitution and International Law on Children

Compliance with constitutional provisions regarding child protection, including against sexual exploitation, child labor, and other forms of abuse has prompted the amendment to child laws. This constitutional amendment enshrined key rights for children, including equal treatment before the law, the right to be heard, and the principle that detention should be a last resort and for the shortest appropriate time, with children kept separate from adults. The child’s best interests must be paramount. The Constitution also outlawed the death penalty for juveniles.

Section 19 which affirms the best interest of the child as paramount, right to personal security, which includes protection from all forms of abuse. Section 81, which specifically addresses the rights of children, emphasizes the importance of protecting children from economic, sexual exploitation, abuse, and any form of violence or maltreatment. The high court as the upper guardian is also mandated with a duty to protect children adequately. Further, children should not be detained, except as a last resort, and if they are detained it should be for the shortest appropriate time, and they should be kept separately  from adults.

Through the Presidential Powers (Temporary Measures) Act a statutory instrument was promulgated which makes it a criminal offence for anyone to initiate, have any sexual or indecent relations with anyone under the age of 18 years.

Legislative Reforms

Child Justice Bill:

• A major development is the Child Justice Bill, which aims to establish a distinct criminal justice system for children in conflict with the law. This bill seeks to increase the minimum age of criminal responsibility to 12 (currently a child under 7 is not subject to legal processes, and between 7 and 14, criminal capacity is considered with situational factors).
•   Emphasize restorative and rehabilitative principles.
• Provide for separate courts to deal with children’s cases.
• Ensure that children’s vulnerabilities, including those with disabilities, are taken into account.
• Abolish the death penalty for convicted child offenders.
• Ensure the right to free legal representation and participation in judicial proceedings for children.

Amendment to Section 13 of the Children’s Act provides for the punishment of any person including a parent or guardian of a child who encourages a child to commit an offence; or trains a child in the commission of an offence; or knowingly provides a child with facilities to commit an offence; or being a parent or guardian of a child fails to take reasonable steps to ensure that the child does not commit an offence where the parent or guardian of the child was in a position to take such steps; shall be guilty of an offence and liable to the penalties that could have been imposed on him or her had he or she been guilty of the offence that the child committed.

International  law

Zimbabwe is a party to international instruments dealing specifically with child justice:

The United Nations Convention on the Rights of the Child:

Article 19 of the UNCRC emphasizes the right of children to be protected from all forms of physical or mental violence, including abuse and neglect. It requires States Parties to take necessary legislative, administrative, social, and educational measures to protect children from such harm. Article 40 of this Convention states that children who infringe the criminal law must be accorded with the same basic rights to which all accused persons are entitled, which is in tandem with section 70 of the Constitution.  The Convention further provides that children:

• must be treated in a manner that reinforces their respect for other people’s rights, takes account of their age, and promotes their re-integration into society, and
• must have legal or other appropriate assistance in the preparation and presentation of their defense.

The Convention also urges member States to deal with such children without recourse to ordinary criminal trials and instead to rely on counselling, probation, vocational training and similar measures.

The African Charter on the Rights and Welfare of the Child:

Article 17 of this Charter gives further specific rights to children who infringe the law. Every child accused or found guilty of having infringed penal law shall have the right to special treatment in a manner consistent will the child’s sense of dignity and worth and which reinforces the child respect for human rights and fundamental freedoms of others. State parties shall have a duty to;

• ensure that no child who is detained or imprisoned or otherwise deprived of his/her liberty is subjected to torture, inhuman or degrading treatment or punishment
• ensure that children are separated from adults in their place of detention or imprisonment.
• ensure that every child accused of infringing the penal law shall be presumed innocent until duly recognized guilty.
• shall be informed promptly in a language that he understands and in detail of the charge against him.
• shall be afforded legal and other appropriate assistance in the preparation and presentation of his defense.
• their guilt or innocence must be determined as speedily as possible.
• the public and press must be excluded from their trials, and
• the essential aim of any treatment must be to reform the children, to reintegrate them into their families, and to rehabilitate them into society.

Article 21 states that the minimum age of marriage should be 18 years, and parties should ensure that there is no discrepancy between minimum age requirements for marriage for boys and girls

The Pre-Trial Diversion (PTD) program

Pre-Trial Diversion (PTD) allows children who commit minor offenses to be diverted from the formal criminal justice system. Instead of prosecution, they receive counseling and support in order to make them more responsible and accountable for their actions, thereby giving them a second chance. The PTD program has been successful in supporting thousands of children nationally as it offers first-time juvenile offenders a chance to avoid court and receiving a criminal record early in their lives. Pre-trial diversion programs have been introduced to unlock judicial process for education, rehabilitation and reintegration. Instead of a criminal record, youths are guided through counseling, vocational training, community service and an opportunity for reparation.

Rehabilitation and Reintegration:

The system focuses on rehabilitating young offenders through established channels, prioritizing human protection and the rights and welfare of children. The system is focused on addressing the underlying problems or issues motivating offending behavior. Rehabilitation includes counseling, victim-offender mediation, reparation, and community service.

Alternatives to Institutionalization: There has been advocacy to expand non-custodial options beyond fines and community service, such as the establishment of Juvenile Schools that offer life skills courses as an alternative sentencing option.

Challenges to Overcome

• Infrastructure gaps: Insufficient infrastructure for child-friendly justice processes, particularly for pre-trial assessments and community-based interventions. Currently of the 62 districts, only 38 offer diversion services.
• Limited professional support: There are too few trained probation officers and child psychologists to support court recommendations.
• Resource constraints: Limited resources hinder the full implementation of reforms, including expanding diversion programs to all provinces, developing new institutions, and adequately funding and staffing existing ones. Funding for vocational programs, therapy, and child-friendly courts is scarce.
• Cultural resistance: Some communities and law enforcement officers still view harsh punishment as necessary deterrence. Traditional practices can hinder the full realization of children’s rights to express their views freely.
• Prolonged Detention in Adult Prisons: Children sometimes spend lengthy periods in adult prisons while awaiting trial or repatriation to juvenile institutions due to resource limitations.
• Reintegration Challenges: Children released from rehabilitation institutions face socio-economic challenges, stigma, and a risk of re-offending. There is a need for robust support systems, including livelihoods, mental health services, and family/community support for successful reintegration.
•  Lack of Awareness: There’s a need for increased awareness-raising on children’s rights among the public and key stakeholders.

Conclusion

Juvenile offenders are not hardened criminal they are mere children who, more often than not, are victims of poverty, trauma, or neglect. Giving them a second chance is not just a legal necessity, it is a moral imperative. Significant inroads have been made, notably with the ongoing development of the Child Justice Bill and the successful implementation of pre-trial diversion programs, all underpinned by the progressive provisions of the Constitution. However, there is need to expand and fund Pre-Trial Diversion programs across all districts.

Challenges such as resource limitations, the need for enhanced training of professional probation officers, legal aid lawyers, and social workers must seriously be taken into cognizance. The collaborative effort to fully develop and implement reintegration programs offering therapy, skills training, and family support must be emphasized. By continuing to prioritize the best interests of the child, invest in community-based alternatives, and raising public awareness about the rights of child offenders and the benefits of rehabilitation Zimbabwe can further solidify a juvenile justice framework that truly nurtures young lives.

Rutendo Manhimanzi is a registered Legal Practitioner, and she practices in Avondale, Harare under the Law Firm Ruzvidzo Legal Counsel. She can be reached on +263 773 589 263 or email rmanhimanzi@yahoo.com