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Durban - Child rights activists believe the minimum age of criminal capacity of children, which is 10 years old, is far too low and should be raised to international standards.
Joan van Niekerk, president of the International Society for the Prevention of Child Abuse and Neglect, said the government was reviewing the minimum age.
This was in line with a provision in the Child Justice Act that the age be reviewed five years after the act came into operation.
The act became operational in 2010. The report on the age review was presented in Parliament last month.
According to the act, children younger than 10 are deemed to not have criminal capacity and are referred to a probation officer who has various options for how to deal with them.
Children between the ages of 10 and 14 are assessed and the prosecution has to prove that the child has the criminal capacity.
Van Niekerk said the test for criminal capacity was often misunderstood.
“It is not about whether the child can understand right from wrong. It is about maturity level and whether the child is able to act in accordance with it.” She added that looking at education and IQ to assess criminal capacity was not helpful as there were psychosocial factors that could affect the child more than other factors.
“We are very keen for the age to be increased. There is inconsistent decision making in terms of how courts decide on criminal capacities, and children who are between the ages of 10 and 14 have to wait months to be assessed.”
Ann Skelton, of the Centre for Child Law, agreed that the minimum age should be increased.
“When the Child Justice Act was drafted, there was already a concern that 10 was rather low, but at the time the Justice Parliamentary Portfolio committee felt there was not enough evidence about how many crimes are committed by children at what age. This is what the report had to throw light on.”
She said South Africa was “out of step with the world trend”.
“The argument is made that this limit is lower than the recommended minimum age of 12 years, proposed in the UN Convention on the Rights of the Child.
“Yes, this is a strong reason - in world terms, even in African terms, 10 is very young. There is developmental psychology support for raising the age to 12 as well, because most children below 12 who are assessed by a psychologist are found to lack criminal Âcapacity.”
Last week the UN Committee on the Rights of the Child, in its report on the country’s progress in complying with the convention, recommended that the age be raised.
Skelton said there were several problems with assessment of criminal capacity, including the lack of standardised psychological tests to determine criminal capacity and limited personnel, such as child psychologists and psychiatrists.
“In many countries there is no such assessment - the law simply sets an age below which children cannot be prosecuted. But the question still to be asked is: What age? If it is 12 - which is what the department recommends - then we would need to keep some sort of protection for 13- and 14-year-olds. The children’s rights lobby will be resistant to a lessening of the rights of 12- and 13- year-olds, so they will probably argue that the new cut-off age for prosecution should be 14.”
The Mercury
