The Constitutional Litigation Unit of the Legal Resources Centre, on behalf of NICRO, has submitted an amicus curiae brief in the case of Centre for Child Law v Minister of Justice and Constitutional Development and others.

NICRO, the National Institute for Crime Prevention and the Re-integration of Offenders, supports the applicant’s constitutional challenge to the Criminal Law Amendment Act 105 of 1997, as amended by the Criminal Law (Sentencing) Amendment Act 38 of 2007.

The 2007 Act made several significant changes to the existing minimum sentence legislation. Critically, the 2007 Act extends the scheme of minimum sentences to 16 and 17 year-old children. As an organisation that works closely with young offenders, NICRO opposes this extension.

Under the previous (1997) Act, courts approached the sentencing of 16 and 17 year-olds with a “clean slate” (S v B, SCA 2005). Judges could exercise their discretion in sentencing adolescents. The statutory minimum was merely one factor of many to be taken into account. In contrast, persons over the age of 18 were automatically subject to the statutory minimum sentences, and these could only be varied if there were “substantial and compelling” reasons to do so.

The 2007 Act now applies the statutory minimum sentences to 16 and 17 year-old children. The government has not given any good reason for this new cut-off point of 16 years. The rule of law demands that legislation be rational. NICRO argues that it is irrational to draw the line at 16 years, rather than 18 years, for the following reasons:

• Section 28 of the Constitution provides special protective guarantees for all children under the age of 18 years. These include the right not to be detained except as a measure of last resort, and only then for the shortest appropriate time (s 28(1)(g)); and the right to be protected from maltreatment, neglect, abuse or degradation (s 28(1)(d)).
• Scientific evidence demonstrates that persons under the age of 18 are inherently less capable of mature and socially responsible decision-making than adults. The U.S. Supreme Court has already accepted this argument in the case of Roper v. Simmons 543 U.S. 551 (2005).
• The common law makes it clear that the impressionability, vulnerability and lesser moral culpability of children means that they require special protection. The scientific evidence shows that these characteristics apply not only to persons under the age of 16, but also to persons aged 16 or 17.

NICRO also argues that the 2007 Act irrationally differentiates between persons under the age of 16 and persons aged 16 or 17. This constitutes unfair discrimination on the grounds of age, as set out in section 9 of the Constitution.

NICRO therefore submits that the 2007 Act is unconstitutional, and concludes that the statute should be read so as to exclude 16 and 17 year-old children from the ambit of the minimum sentences scheme.

The matter will be heard in the Constitutional Court on 5 March.