Pre-trial diversion: A blessing or a curse?

BY FARAI MATIASHE

JUSTICE minister Ziyambi Ziyambi recently launched a national pre-trial diversion (PTD) programme aimed at advancing a non-custodial system for child offenders to ensure that the mistakes of youths would not stalk young people for the rest of their lives.

Currently, people under 18 in Zimbabwe can be jailed, although the Prosecutor-General has the power to halt the imprisonment of juvenile offenders.

The PTD programme, which was first introduced in 2009, will see child offenders no longer subject to incarceration, but will be placed under rehabilitation.

“The Child Justice Bill, which sets the minimum age of criminal responsibility at ten year, but we can raise it, establishes a mechanisms of dealing with
children who lack criminal capacity, establishes child courts, enhances diversion of children in conflict with the law from the formal criminal justice system,
promotes the best interests of the child and prevents child delinquency through restorative justice,” Ziyambi said.

“Once the Bill becomes law, the objectives of diversion, which include preventing future criminal activity among young offenders by diverting them from
traditional processing into community supervision and services, and saving prosecutive and judicial resources for concentration on major cases, will be
achieved.”

National Prosecuting Authority PTD programme co-ordinator Tafadzwa Makwande-Havazvidi said she hoped there was going to be PTD programme-raising awareness
campaigns.

“When the programme started, we faced resistance from communities, particularly those victims who would want to see the offenders prosecuted,” she said.

Some government training institutions also use criminal record as selection criteria in their enrolment processes.

Although it would be unfair to have a situation where a crime committed in childhood — and sometimes out of ignorance — prevent a child from accessing job
opportunities in government institutions and the civil service in adulthood, some people who spoke to NewsDay Weekender felt offending children should pay the
price for their crimes.

“If a child steals my cell phone, that child is a criminal and should be send to jail. That child does not belong to the society,” Grace Nyamupinga from Mbare
said.

Trish Hungwe, who resides in Chitungwiza, said by diverting children who commit crimes they would be denying justice to the victims.

“There is nothing called minor crime. A crime is a crime; usually it is the victim who suffers, because they would want to see justice prevail. It is painful
to see someone who offended you walking freely in your community,” she said.

Kennedy Mharapara, a parent from Epworth, said such children would influence others in society.

“The danger of keeping children who commit crimes in a community is that they influence others to commit similar crimes. Let us consider the power of peer
pressure in influencing children. Those few children are harmful to society if not incarcerated,” he said.

University of Zimbabwe Social Work Department senior lecturer Vincent Mabvurira, however, said the PTD programme was of paramount significance as it prevented
first time young offenders, who commit minor offences, from having a criminal record, which may haunt them the rest of their lives.

“It favours non- custodial sentences. Custodial sentences may be harmful to children, as they may be hardened by interacting with hard-core criminals in
juvenile prisons,” he said.

Justice goes beyond custodial sentences and includes alternatives like warning, community service or reparation, Mabvurira said.

He said he was hopeful that with enough political will government had capacity to implement the programme nationwide.

Zimbabwe National Council for the Welfare of Children programmes manager Maxim Murungweni said PTD programme was a child rights based system, which puts the
best interest of the child first.

“It recognises the influence that the child’s environment plays in shaping and influencing their behaviour as such it seeks to give children in conflict with
the law a second chance. It also makes sure that first time juvenile offenders receive the necessary rehabilitation so that they do not break the law again,”
he said.

Murungweni said there was need for massive community sensitisation on the programme and get more community support to ensure that there is no resistance.

Plan International Zimbabwe child rights and protection advisor, Blessing Mushohwe, said PTD appreciated that children committed wrongs for various reasons,
but simultaneously recognised how a brush with the criminal justice system can be traumatic for them.

“Diversion appreciates the potential that every child has to reform given an opportunity,” he said.

“Our system should still design rehabilitative ways of dealing with such children putting the best interests of the child at the centre.”

Plan International Zimbabwe believe in the power of dialogue and raising awareness in communities because some of the resistance that may be faced may simply
be as a result of lack of understanding of the concept of diversion.

He said PTD was also about promoting dialogue and making peace with the aggrieved family in the best interest of the child.

“In its complete set, it says that having been diverted, you are also required to undergo a programme with a set of activities for restoration or
rehabilitation or reparations such as Victim-Offender Mediation and Family Group Conferences, which are meant to bring the offender and the victim or their
families to a roundtable for discussion and possibly bring closure to the victim,” Mushohwe said.

He said PTD should be funded and implemented the same way any other justice processes was being funded.

Save the Children child protection programme officer Sharon Mukanyi said PTD played a role in ensuring that one would not bear a criminal record for life,
considering that most employment required police clearance, so, if one is found with a criminal record one lose opportunities for life.

PTD guaranteed a second chance to reform and do things the right way through being given other alternatives outside the formal criminal justice system, Mukanyi
said, adding that it also ensured children were held accountable for their actions while root causes of offending were addressed.
Statistics from the NPA shows that since introduction of PTD 4 000 children have been diverted.

According to the Constitution under Section 8(1)(I)(i) every child under the age of 18 has the right not to be detained except as a measure of last resort and
if detained to be kept separately from detained persons over the age of eighteen years and be treated in a manner and kept in conditions that take account of
the child’s age.

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