Children who commit minor unlawful behaviors were exposed to harsh punishment, therefore this is the inappropriate treatment for children in conflict with the law, as it disobeys act 108 of 1996 in section 28 of the constitution. In the 1990s South Africa introduced diversion to focus on the best interest of the child, providing appropriate treatment and punishment for children in conflict with the law (Steyn (2010). Z. K. Hamilton et al. (2006) define diversion as channel out, children in conflict with the law from the child justice system. According to Heidi Sauls (2018), South Africa experienced a transition when the Child Justice Act 75 of 2008 (CJA) was implemented in April 2010. Child justice act considers diversion as the backbone of the juvenile courts; it is essentially assisting the court to make decisions on how to treat young offenders and try to support young offenders with the goal that they could continue to have better lives (Mears et al. 2016).
According to Section 48 of the Bill of rights, the purposes of diversion are to: “encourage the children to be responsible of their unlawful behaviors; encounter individual needs; to reconcile with their families; victims are allowed to express their view and how the crime affected them and benefit from some form of compensation; promote reconciliation between the offender and people affected by the crime; prevent stigmatization and prevent adverse consequences flowing from being subject to the criminal justice system, and prevent the offender from having a criminal record”. The diversion process follows a restorative justice system, it discourages upcoming unlawful actions. According to Anderson (2003), restorative justice emphasizes the importance of consensus and reconciliation, it also restores the imbalance and creates peace within communities which is caused by the offender. It does not encourage punishment however it offers to heal the wounds caused by crime and mending the relationships that have broken. It involves all people affected by the crime, such as the victim, offender, and the community.
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Diversion is a voluntary program, so the person who is referred by the state attorney gets to decides whether to participate considering the benefits of the program (Muntingh, 2001). According to Anderson (2003), the Diversion process can also be called out-of-court contract settlement. it is considered as a contract between the offender and the prosecution whereby the offender's trial is withdrawn in exchange for participating in the diversion program and obeying the terms and conditions of the contract. The contract is a list of activities that are required to be done for the program to be successful. When the contract is completed the court diversion program informs the state attorney and the case is dismissed by the court. If the offender does not commit unlawful behavior after two years, the court will order the case sealed. If the contract is not completed the case will return to the state attorney to be prosecuted. The person will go to court for the original charge and may end up plea guilty of not (Muntingh 2001).
The two important components to all diversion programs are namely screening and assessment. The screening process helps program staff to be able to identify offenders that are appropriate to be diverted (Z. K. Hamilton et al. 2006). Assessments need to occur before the prosecutor decides to divert the young offender. The information that is shared during assessment helps to identify the appropriate diversion scheme for individual child offenders (Merwe & Dawes 2019).
Diversion can be used whereby the child understands and admits the charges against him/her and willing to plead guilty; where the caregivers do not consent to diversion; and where there is unsatisfactory evidence to prosecute (Nielsen & Gallinetti, 2004). According to P. Daniel Mears 2016 diversion may improve the lives of young offenders and decrease offending, however, if it is used inappropriately, it may worsen recidivism.
Steyn (2010) listed diversion intervention programs and their services namely:
- The Noupoort Youth and Community Development Project in the Northern Cape specialized in its life skills program. Lifeskills training focuses on providing skills that are needed everyday basis working effectively in society, skills on how to react healthily to live's stressors and be able to deal with conflicts excellently.
- The National Youth Development Outreach in Pretoria is known for its mentoring initiative. This service helps the young offender to deal with life’s challenges.
- The National Institute for Crime Prevention and Reintegration of Offenders (NICRO) in Bloemfontein popular for its outdoor intervention. It suggests nature-based experiences, using physical and emotional difficulties, that achieve the mental awareness that is needed to develop behavioral change.
- The Restorative Justice Centre in Pretoria is known for its family group conference program. Fixing the damage brought about by the offense and accommodating those influenced by the activity are two significant ideas in family bunch conferencing.
The life skills training, mentoring, and conferencing, involves young offenders ranging from 13 and 18 of age, whereas outdoor intervention involves young offenders from 16 to 18 years of age. From 1999 to 2000 diversion was still implemented in child justice courts (Wood, 2003). The aim was still to encourage children’s rights, and for children to be treated in a dignified manner to be respected self-worth (Merwe & Dawes, 2019). The most popular diversion intervention was found to be NICRO, it was also found to be the most effective intervention program due to fewer cases returning to court. NICRO still finds that the majority of its participants are pre-trial referrals (Wood, 2003). NICRO is South Africa’s largest diversion program established in 1910. it aims to assist offenders to be diverted from the criminal justice system by providing life skills training, community service, victim-offender mediation, and outdoor intervention. NICRO has branches all over South African in nine provinces. It focused on offender reintegration, community victim support, economic development, and diversion and youth development (Steyn, 2010).
Facilitation has a major contribution to the ineffectiveness of the diversion program (Gxubane, 2019). The probation officer's lack of specialized skills during the assessment process affected the quality and completeness of assessments. Specialized training in the field of probation was requested (Sauls, 2018). The other challenge of the diversion program is the staff shortage and insufficient organizational resources such as the venue for facilitation and aftercare services (Merwe & Dawes, 2019). Security of venues, transporting children to and from the programs, and the time schedules for the diversion programs have been identified as major challenges in implementing these programs (Sauls, 2018). Sauls (2018). The placement of child offenders' inappropriate diversion programs was also considered as a challenge, therefore children were placed on the available and suitable diversion programs being presented in the areas where they reside. Parents support has also found to be essential especially in life skills and outdoor processes where they need to be actively involved, without the support it has been discovering that children return to their unlawful behaviors (Steyn, 2010).
All societies have rules that abide by them; social rules define appropriate behavior for a specific group of people or society. According to Becker's (1963) labeling theory, deviating from social norms result in one being labeled as an outsider. Outsiders happen to have a different perspective and have accepted this label. Lemert (1951) argues that self-identification is essential to individuals, therefore being regarded as a criminal destroys the way an offender perceives themselves. According to Becker (1963) and Lemert's (1951) perspective of labeling, Patrick & Marsh (2005) argue that labeling offenders affect the juvenile as it increases recidivism. Hence, diversion aims to keep young offenders out of the criminal justice system and discourages labeling.
References
- Anderson, A.M., 2003, August. Restorative justice, the African philosophy of Ubuntu and the diversion of criminal prosecution. In 17th international conference of the International Society for the Reform of Criminal Law, The Hague, Netherlands (pp. 24-28).
- Becker, H., 1963. Outsiders-Defining Deviance.
- Van der Merwe, A., and Dawes, A., 2009. Toward good practice for diversion: the development of minimum standards in the South African Child Justice System. Journal of Offender Rehabilitation, 48(7), pp.571-588.
- Gxubane, T., 2019. Facilitation of residential diversion programs for youth sex offenders in South Africa. Southern African Journal of Social Work and Social Development, 31(2), pp.1-18.
- Hamilton, Z.K., Sullivan, C.J., Veysey, B.M., and Grillo, M., 2007. Diverting multi‐problem youth from juvenile justice: Investigating the importance of community influence on placement and recidivism. Behavioral sciences & the law, 25(1), pp.137-158.
- Lemert, E. M., 2010. Encyclopedia of Criminological Theory: Primary and Secondary Deviance, Issue @SAGE, p. 8.
- Mears, D.P., Kuch, J.J., Lindsey, A.M., Siennick, S.E., Pesta, G.B., Greenwald, M.A. and Blomberg, T.G., 2016. Juvenile court and contemporary diversion: helpful, harmful, or both?. Criminology & Public Policy, 15(3), pp.953-981.
- Muntingh, L.M., 2001. The Effectiveness of Diversion Programmes-a longitudinal evaluation of cases. Cape Town: NICRO.
- Patrick, S., and Marsh, R., 2005. Juvenile diversion: Results of a 3-year experimental study. Criminal Justice Policy Review, 16(1), pp.59-73.
- Sauls, H., 2018. An evaluation of the diversion program for young offenders, Cape Town: Western Cape Government Social Development.
- Sloth-Nielsen, J., and Gallinetti, J., 2004. Child Justice in Africa: A Guide to Good Practice, Community Law Center.
- South Africa. 2008. Child Justice Act, 2008 (Act No. 75 of 2008). Pretoria: Government Printer.
- Steyn, F., 2012. Challenges of diversion strategies in meeting the diversion objectives of the Child Justice Act (75 of 2008). Acta Criminological: African Journal of Criminology & Victimology, 2012(Special Edition 2), pp.76-86.
- Wood, C., 2003. Diversion in South Africa: A review of policy and practice, 1990-2003. Institute for Security Studies Papers, 2003(79), p.22.
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