Juvenile Justice in Limbo: Quo Vadis Namibia?

WHERE does Namibia stand in respect of the ways in which young people in conflict with the law are being handled? Namibia appears to go nowhere.

As can be gleaned from the article ‘Police cells hell on earth’ in The Namibian of 21 February 2007, Namibia has not made much headway towards the development and implementation of a proper Juvenile Justice System. The National Council Committee on Constitutional and Legal Affairs reportedly found not only on various occasions that “cells countrywide are overcrowded”, but also that “Because of a lack of cells, juveniles are being kept in the same cells with adults, and it is reported that they have become lovers of adult offenders”.The most extreme case is that of 12-year-old children who reportedly have been kept as sex slaves at Tsumkwe.And so, in retrospect we find that the situation in which children and young people were detained in 1997 was not much worse than it is today.However, in the wake of the 1994 report of the UN Committee on the Rights of the Child, the Namibian Government is still red-faced at having allowed the development of a situation which Gail Super, then researcher at the Legal Assistance Centre (LAC) described as embarrassing, against the background that Namibia had ratified the Convention on the Rights of the Child (CRC), and so accepting the obligation to establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law.Government then facilitated the cooperation of considerable efforts to bring about a Juvenile Justice System, which would allow treating young offenders in accordance with internationally agreed standards, if not also in line with Namibia’s own constitutional aspirations.The Inter-Ministerial Committee on Juvenile Justice (IMC) brought together not only the Ministries involved, i.e.Justice, Home Affairs, Social Welfare, but also NGOs and scholars from academic institutions, i.e.the Polytechnic of Namibia.The LAC launched its Juvenile Justice Project, and the Austrian government invested several millions of Namibian dollars in the development of a sustainable Juvenile Justice System, which was to include not only the development of the normative framework, but also the definition and establishment of necessary support and service delivery systems, without which no law, however good its text, can be implemented.The Austrian initiative became known under the name ‘Juvenile Justice Programme Namibia – Project D’.During the lifetime of the two projects a Draft Child Justice Bill was crafted, a Manager was found for Project D, and under the leadership of Dr H Huaraka, then special advisor to the then Minster of Justice T Tjiriange, it seemed that considerable momentum was built up, which was thought would eventually lead to the adoption of a law called Child Justice Act.The Draft Child Justice Bill was tabled at a special retreat of Ministers involved in May 2003.The fate of the Draft Bill, internationally applauded for being modern, development and child-oriented at the meeting of Ministers, is not known.But it appears that the then Ministers put forth the argument that the Draft Bill had a ‘soft’ approach to child and juvenile delinquency, and would therefore be symbolically counter-productive in the combating of criminality.It was thought that treating delinquency differently from adult crime would send the wrong message to society.At face value this assumption is not devoid of any truth.But on second thoughts one would argue that bringing an important social project to a halt because of difficulties with getting the right message across, is throwing out the baby with the bathwater.A serious approach would have explored all possible avenues for reshaping the prevalent images of crime in the Namibian society; images which are superficial, simplistic and most often wrong.Namibia would not be the first country, but rather one of the last countries in the world, to embrace a notion of child/juvenile delinquency which is different from adult crime, and which for the sake of minor children in conflict with the law requires another and different subsystem within the Criminal Justice System (CJS).While the Ministers’ retreat may have been wrapped in illusions as to technical problems of presentation of a new policy to the public, this might have been nothing other than the reflection of a lay perspective to a social problem.This perspective demands always more of the same: more police, more and harsher punishment, more prisons – although all this alone and by itself has never brought the intended results.But whereas it is perhaps too much to expect from Government Ministers to embrace wholeheartedly scientific evidence for an etiological nexus between external detrimental circumstances, like poor socio-economic conditions, and delinquency, it may be argued that governments should certainly not sacrifice the rightful entitlements of young persons in conflict with the law on the altar of upholding the image that our Government is serious in its endeavour to “combat crime in Namibia”.However, in the wake of the aforesaid Ministers’ retreat, the process towards a new system which would bring Namibia in a position to act in line with its international obligations became stalled, and has not been restarted since then.It appears to me today that the embarrassment which was so strongly felt ten years back, together with the momentum once built up, faded away, latest with the expiration of the Juvenile Justice Programme – Project D, which interestingly seems to have coincided with the drying up of the Austrian donor money.Way back in 2002, I could still write in a chapter contribution to an international publication on Juvenile Justice: “It is now hoped that by 2003/2004 the Juvenile Justice Programme … will have been carried out and, in the process become integrated in the functions of government” – in retrospective this was wishful thinking.Against the backdrop of donors pulling out it has become somewhat fashionable to declaim that the donors “have failed us”.I have heard this argument for instance in connection with reports on HIV-AIDS orphans, who would have to go hungry because insufficient donor money came in towards the end of the year 2006.This amounts to a sort of complacency rather than assuming responsibilities for our own affairs.Yes, it may be agreed that in parallel with the continuing globalisation, hitherto national responsibilities and obligations gradually shift towards other centres – at the same time national governments claim sovereignty and non-intervention whenever it suits them.What the development since 2003 suggests, and this can likewise be observed with other projects funded with the support of international donors, is that Namibia at no point in time has truly appropriated, neither the way nor the objectives, of the Juvenile Justice Programme.To my knowledge, apart from the in-kind contributions from the Namibian Government little to no financial commitment was made in the national budget.In such situations the initiative of individual functionaries at lower levels in the administration becomes crucial for the question whether and for how long a project will be seen through.And even then, donor countries get frustrated and terminate their engagement as in the case of the French Government, which had for some time supported another Criminal Justice project, i.e.The Namibian Pilot Project on Community Corrections.As far as I know, this important project, which has been conceived with the aim of reducing prison overcrowding in a sustainable way, did not receive at the time this project was supported by the French any direct financial attention from the Namibian Government either.Some may say that this has been purely coincidental, but it remains to be seen how long the current Finnish sponsor will hold out if the Namibian Government does not engage more substantially in the near future.Interestingly, in respect of another project, the National Action Plan on the Reduction of Small Arms and Weapons (SALW), the Namibian Government has after years of relentless lobbying by SaferWorld/SaferAfrica come up with an own budget allocation as from 2008.The long-time sponsor SaferWorld/SaferAfrica acknowledges this engagement by making available an amount which at least matches, if not surpasses, the contribution by the Namibian Government.But then, SaferWorld/SaferAfrica is an NGO with a particular objective to attain, a task which intrinsically requires the cooperation of states.In other instances the sponsored project is often a project which also could have been something else, because funds which have been allocated by donor countries are often only generally earmarked for projects of a specific category, without a particular ambition of the donor in respect of the precise project.Then, after a while, and if no substantial support from the recipient government comes forth, the donor may get tired, pull out and the funds are allocated elsewhere, where more commitment is hoped to be received.What may be concluded against this background, and as a working hypothesis: If the Namibian Government does not demonstrate its endorsement of specific projects by means of meaningful budget allocation, it is highly probable that such projects or programmes will fail.What does this all hold for the stalled Juvenile Justice Project? First, the Namibian Government should make an effort to revive the nominally still existing, but after the departure of Dr.Huaraka, defunct IMC.Second, after reassessing the priorities of the Juvenile Justice Programme an even modest budget allocation should be made for 2008.Third, the IMC should then again approach donors/donor countries for financial support for a new attempt.What has to be kept in mind is that what is at stake here is not just an object of political preference, but the risk of failing in a primordial governmental duty which stems from the Rights of the Child in terms of Namibia’s own Constitution, as well as the very Convention on the Rights of the Child to which Namibia is signatory.It is high time for role players and stakeholders in the Namibian CJS, i.e.NGOs and Government Departments, to reinvigorate the process which had been so promising some time ago, the process towards a real system to manage young people in trouble with the law.Provided sufficient interest can be mustered from the respective Government departments, a stakeholder workshop with the aim to assess the state of affairs of Juvenile Justice in Namibia after the demise of the Juvenile Justice Programme Namibia could be hosted and facilitated by the Polytechnic of Namibia through its Department of Legal Studies.Please direct any communication in the above to: * Dr Stefan Schulz is the Head of the Department of Legal Studies at the Polytechnic of Namibia.The National Council Committee on Constitutional and Legal Affairs reportedly found not only on various occasions that “cells countrywide are overcrowded”, but also that “Because of a lack of cells, juveniles are being kept in the same cells with adults, and it is reported that they have become lovers of adult offenders”.The most extreme case is that of 12-year-old children who reportedly have been kept as sex slaves at Tsumkwe.And so, in retrospect we find that the situation in which children and young people were detained in 1997 was not much worse than it is today.However, in the wake of the 1994 report of the UN Committee on the Rights of the Child, the Namibian Government is still red-faced at having allowed the development of a situation which Gail Super, then researcher at the Legal Assistance Centre (LAC) described as embarrassing, against the background that Namibia had ratified the Convention on the Rights of the Child (CRC), and so accepting the obligation to establish laws, procedures, authorities and institutions specifically applicable to children in conflict with the law.Government then facilitated the cooperation of considerable efforts to bring about a Juvenile Justice System, which would allow treating young offenders in accordance with internationally agreed standards, if not also in line with Namibia’s own constitutional aspirations.The Inter-Ministerial Committee on Juvenile Justice (IMC) brought together not only the Ministries involved, i.e.Justice, Home Affairs, Social Welfare, but also NGOs and scholars from academic institutions, i.e.the Polytechnic of Namibia.The LAC launched its Juvenile Justice Project, and the Austrian government invested several millions of Namibian dollars in the development of a sustainable Juvenile Justice System, which was to include not only the development of the normative framework, but also the definition and establishment of necessary support and service delivery systems, without which no law, however good its text, can be implemented.The Austrian initiative became known under the name ‘Juvenile Justice Programme Namibia – Project D’.During the lifetime of the two projects a Draft Child Justice Bill was crafted, a Manager was found for Project D, and under the leadership of Dr H Huaraka, then special advisor to the then Minster of Justice T Tjiriange, it seemed that considerable momentum was built up, which was thought would eventually lead to the adoption of a law called Child Justice Act.The Draft Child Justice Bill was tabled at a special retreat of Ministers involved in May 2003.The fate of the Draft Bill, internationally applauded for being modern, development and child-oriented at the meeting of Ministers, is not known.But it appears that the then Ministers put forth the argument that the Draft Bill had a ‘soft’ approach to child and juvenile delinquency, and would therefore be symbolically counter-productive in the combating of criminality.It was thought that treating delinquency differently from adult crime would send the wrong message to society.At face value this assumption is not devoid of any truth.But on second thoughts one would argue that bringing an important social project to a halt because of difficulties with getting the right message across, is throwing out the baby with the bathwater.A serious approach would have explored all possible avenues for reshaping the prevalent images of crime in the Namibian society; images which are superficial, simplistic and most often wrong.Namibia would not be the first country, but rather one of the last countries in the world, to embrace a notion of child/juvenile delinquency which is different from adult crime, and which for the sake of minor children in conflict with the law requires another and different subsystem within the Criminal Justice System (CJS).While the Ministers’ retreat may have been wrapped in illusions as to technical problems of presentation of a new policy to the public, this might have been nothing other than the reflection of a lay perspective to a social problem.This perspective demands always more of the same: more police, more and harsher punishment, more prisons – although all this alone and by itself has never brought the intended results.But whereas it is perhaps too much to expect from Government Ministers to embrace wholeheartedly scientific evidence for an etiological nexus between external detrimental circumstances, like poor socio-economic conditions, and delinquency, it may be argued that governments should certainly not sacrifice the rightful entitlements of young persons in conflict with the law on the altar of upholding the image that our Government is serious in its endeavour to “combat crime in Namibia”.However, in the wake of the aforesaid Ministers’ retreat, the process towards a new system which would bring Namibia in a position to act in line with its international obligations became stalled, and has not been restarted since then.It appears to me today that the embarrassment which was so strongly felt ten years back, together with the momentum once built up, faded away, latest with the expiration of the Juvenile Justice Programme – Project D, which interestingly seems to have coincided with the drying up of the Austrian donor money.Way back in 2002, I could still write in a chapter contribution to an international publication on Juvenile Justice: “It is now hoped that by 2003/2004 the Juvenile Justice Programme … will have been carried out and, in the process become integrated in the functions of government” – in retrospective this was wishful thinking.Against the backdrop of donors pulling out it has become somewhat fashionable to declaim that the donors “have failed us”.I have heard this argument for instance in connection with reports on HIV-AIDS orphans, who would have to go hungry because insufficient donor money came in towards the end of the year 2006.This amounts to a sort of complacency rather than assuming responsibilities for our own affairs.Yes, it may be agreed that in parallel with the continuing globalisation, hitherto national responsibilities and obligations gradually shift towards other centres – at the same time national governments claim sovereignty and non-intervention whenever it suits them.What the development since 2003 suggests, and this can likewise be observed with other projects funded with the support of international donors, is that Namibia at no point in time has truly appropriated, neither the way nor the objectives, of the Juvenile Justice Programme.To my knowledge, apart from the in-kind contributions from the Namibian Government little to no financial commitment was made in the national budget.In such situations the initiative of individual functionaries at lower levels in the administration becomes crucial for the question whether and for how long a project will be seen through.And even then, donor countries get frustrated and terminate their engagement as in the case of the French Government, which had for some time supported another Criminal Justice project, i.e.The Namibian Pilot Project on Community Corrections.As far as I know, this important project, which has been conceived with the aim of reducing prison overcrowding in a sustainable way, did not receive at the time this project was supported by the French any direct financial attention from the Namibian Government either.Some may say that this has been purely coincidental, but it remains to be seen how long the current Finnish sponsor will hold out if the Namibian Government does not engage more substantially in the near future.Interestingly, in respect of another project, the National Action Plan on the Reduction of Small Arms and Weapons (SALW), the Namibian Government has after years of relentless lobbying by SaferWorld/SaferAfrica come up with an own budget allocation as from 2008.The long-time sponsor SaferWorld/SaferAfrica acknowledges this engagement by making available an amount which at least matches, if not surpasses, the contribution by the Namibian Government.But then, SaferWorld/SaferAfrica is an NGO with a particular objective to attain, a task which intrinsically requires the cooperation of states.In other instances the sponsored project is often a project which also could have been something else, because funds which have been allocated by donor countries are often only generally earmarked for projects of a specific category, without a particular ambition of the donor in respect of the precise project.Then, after a while, and if no substantial support from the recipient government comes forth, the donor may get tired, pull out and the funds are allocated elsewhere, where more commitment is hoped to be received.What may be concluded against this background, and as a working hypothesis: If the Namibian Government does not demonstrate its endorsement of specific projects by means of meaningful budget allocation, it is highly probable that such projects or programmes will fail.What does this all hold for the stalled Juvenile Justice Project? First, the Namibian Government should make an effort to revive the nominally still existing, but after the departure of Dr.Huaraka, defunct IMC.Second, after reassessing the priorities of the Juvenile Justice Programme an even modest budget allocation should be made for 2008.Third, the IMC should then again approach donors/donor countries for financial support for a new attempt.What has to be kept in mind is that what is at stake here is not just an object of political preference, but the risk of failing in a primordial governmental duty which stems from the Rights of the Child in terms of Namibia’s own Constitution, as well as the very Convention on the Rights of the Child to which Namibia is signatory. It is high time for role players and stakeholders in the Namibian CJS, i.e.NGOs and Government Departments, to reinvigorate the process which had been so promising some time ago, the process towards a real system to manage young people in trouble with the law.Provided sufficient interest can be mustered from the respective Government departments, a stakeholder workshop with the aim to assess the state of affairs of Juvenile Justice in Namibia after the demise of the Juvenile Justice Programme Namibia could be hosted and facilitated by the Polytechnic of Namibia through its Department of Legal Studies.Please direct any communication in the above to: * Dr Stefan Schulz is the Head of the Department of Legal Studies at the Polytechnic of Namibia.