Bridging the gap between child and adult criminal justice systems in South Africa: Encouraging adult offender accountability via legislated diversion procedures.

Abstract

Globally, juvenile offender diversion and rehabilitation, as opposed to retribution, are the norm. It is rooted within restorative justice approaches, which strive to ensure their responsibility and accountability for crimes committed. In 1997, the South African Law Reform Commission highlighted that a restorative justice approach was of great importance to restore legitimacy to the criminal justice system and to assist in the fight against crime. Three years later it was proposed that, in addition to traditional punitive measures, restorative justice measures should be considered in all criminal cases. Yet, little progress ensued outside the child justice system. In this paper we argue that the gap existing between the child and adult justice systems could not be justified and should be narrowed, and that the taking of responsibility, via a diversion option, should also be encouraged amongst adult offenders. The benefits and challenges of such practice for both offenders and victims are explored, whereafter national and selected international (e.g. Victoria and Queensland in Australia) procedural avenues towards adult offender accountability are investigated. It is proposed that adult diversion should be actively promoted and that legislation in this regard be considered. Extending legislated diversion mechanisms to adult offenders will not only broaden the use of restorative justice principles within the South African criminal justice landscape, but will, when offenders participate, contribute to their dignity and well-being and thereby underscores a core constitutional value. Finally, by showing accountability, they will demonstrate respect for the human rights and fundamental freedoms of others. This aspect of restorative justice targeting adult diversion will serve to strengthen existing focus on rehabilitation during incarceration and Throughcare programming on release into the community.