6.1
Release of Juveniles without Bail
where there is no Guardian
At initial appearance in court, if a child has no parents or
guardians or if these are unable to be located, the child can be
released into the custody of the Department, and the
Department will house the child at one of its Children’s
Centres. Probation Officers would need to attend to the
police station or to the court, as the case may be, and take
custody of the child. During the #ZimShutDown arrests, the
police, particularly in Harare and Chitungwiza, did not
engage the Department of Social Welfare, despite also not
informing the children’s parents and guardians of the
children’s arrest. Fortunately, eventually all the children were
legally represented, and the parents and guardians were
notified by the lawyers and attended court to receive the
children. Thus, no children were released into the hands of
the DSW on account of unavailability of parents and
guardians.
6.2
Probation Officers’ Reports
In all matters before the courts involving children in conflict
with the law, Probation Officers are required to conduct an
inquiry and then come up with a Probation Officer’s report.
The report, a social and psychoanalysis of the child, should
entail the age of the child, personal circumstances and
upbringing of the child, the child’s educational
circumstances, the nature of the offence, comments about
the child’s capacity to commit the particular offence,
circumstances surrounding the commission of the offence,
attitude of the child towards the offence, and the
recommended intervention that would rehabilitate and
reform the child, among other pertinent issues. The
Probation Officer’s report will not bind the court; Probation
Officers’ reports are not definitive, and they do not
necessarily direct the court as to what it should do. Rather,
they are part of the evidence and information before the
presiding officer to allow the court to be in a better position to
exercise its discretion in an informed manner. The reports
serve as critical and useful guides to the Magistrate or Judge in
deciding on the appropriate approach, including the
appropriate intervention or sentence.
Importantly, the reports bring an extra-legal dimension in the
assessment of the juvenile in conflict with the law and the
influences surrounding that child, including criminogenic
influences. The law on juvenile justice considers the
empirical, agreed upon and acceptable socio-economic,
political and sociological influences surrounding children
committing offences, and the consequent need to bring back
such children into ideal citizenship. This was captured by
Justice Amy Tsanga in the High
Court case of S v Masuku HH 10615 wherein she stated that: “[T]he
reality is that law on its own in such
instances cannot be the panacea to
problems that have deep social
contexts. Law does not operate in a
vacuum”.
Justice Tsanga also highlighted in S v
FM (A Juvenile) HH 112-15 that: “It
is also the responsibility of all officials
involved both judicial and nonjudicial to be thorough in their
assessments so as to give each
accused child a real chance at being
justly treated”.
Many children were tried and
sentenced in the aftermath of the
January protests without probation
officers' reports. This protection
mechanism was dispensed with. As
a result, the courts that dispensed
with the need for the reports treated
children in a manner that
disregarded the legal and statutory
protections accorded to children.
In those cases where Probation
Officers’ reports were prepared,
some reports were furnished to the
courts timeously, while in some
instances the DSW cited lack of
transport funds to take the reports to
court.
In some instances, delays in
furnishing the reports delayed
commencement of trials. For
instance, at Tredgold Magistrates
Court in Bulawayo, cases of 9
children charged with looting were
postponement by a month to allow
for Probation Officers’ reports to be
furnished to court.
Thought it is required and desired
that a Probation Officer’s report is
presented before a court dealing
with a child, it is not fatal to a case to
31 ‘Hear them Cry ’ – An Analysis of State Violence Against Children During the January 2019 Protests
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