Children’s Institute
University of Cape Town

  
Progress Report on the Children’s Bill
 25 November 2003
 
Paula Proudlock, Children’s Institute, UCT

 
Latest developments
 
On the 14th November, the Portfolio Committee on Social Development discussed the possibility of holding public hearings on the Children’s Bill. The dates of 8, 9 and 10 December were proposed. As these dates fell outside of Parliament’s session, when members of parliament were supposed to be devoting time to their constituencies and party political campaigning, the permission of the Speaker was recquired before the final decision could be made and a public advert placed in the newspapers. On the 19th November the Chairperson of the Committee, Mr Cas Saloojee announced that permission had not yet been given and that there was now insufficient time to give the public the necessary three weeks notice to prepare their submissions. He said that the hearings in all likelihood would no longer be taking place and that the Bill would have to be dealt with after the April 2004 elections.
 
However, this is not yet official because the Minister has been out of the country and still has to be formerly consulted.
 
In October, the Minister called for the Bill to be fast-tracked through Parliament in order for it to be passed before the April 2004 elections. Civil Society organisations expressed alarm and urged Parliament to rather deal with the Bill after the April 2004 elections in order to ensure that the Bill received the priority it deserved.
 
The Minister of Social Development has been calling for Parliament to fast-track the Children’s Bill so that it is passed before the April 2004 elections. However, the Children’s Bill Working Group, a national network of all the major children’s sector alliances and NGOs, is of the opinion that children’s needs would be better served if the Bill was tabled and processed by Parliament after the elections when Parliamentarians have more time and are under less pressure.
 
If the Bill is dealt with by Parliament in late 2003 or early 2004, it will effectively receive a maximum of 3 weeks of Parliament’s time. A Bill of this size (300 sections) and complexity, would normaly take 6 months to a year to go through the Parliamentary process.
 
Members of Parliament, as the elected representatives of the people, are primarily responsible for making the laws. In a normal parliamentary process, Parliament consults with civil society and legal experts and conducts research. Then each political party and the relevant parliamentary committees deliberate each issue at length before making decisions. This process is necessarily long and thorough in order to ensure that informed decisions are taken. However, in a fast-tracked process, Parliament’s law making role can be severely undermined with the Executive arm of government, effectively departmental officials, becoming the law makers. This is contrary to the principle of separation of powers and section 44 of the Constitution.
 
Furthermore, if the Children’s Bill is fast-tracked, it would mean that civil society’s right to participate in the law making process will also be undermined. Civil society organisations have invaluable information and advice to contribute to the law making process due to their experience of the daily problems that children face and how the law and child protection is presently failing them. In the children’s sector, with NGOs performing the majority of child care and protection social work services, this information and experience is particulalry valuable and should be afforded priority attention in the decision making process.
 
The Children’s Bill Working Group, is concerned that a fast-tracked process will not allow for the Bill to be restored to the January 2003 South African Law Reform Commission version, the version of the Bill that was welcomed and supported by the sector. A fast-tracked procedure would force Parliament to have to defer to the departmental officials who are bound by Cabinet to support the excisions that have been made to the January 2003 version. This would result in the severely diluted version of the Bill, dated August 2003, becoming the country’s new Children’s Act.
 
The law making process so far
 
The South African Law Reform Commission (SALRC) researched, consulted and developed a draft bill over a period of 6 years (1997 – 2002). The drafting committee consisted of representatives from various government departments and representatives of civil society with expertise in children’s rights and needs. In January 2003, the SALRC handed the draft Bill to the Department of Social Development. The SALC Draft Bill was welcomed by the children’s sector.
 
The lead Department, Social Development, then entered into a process of negotiations with other affected Departments and produced a new version of the Draft Bill. This negotiation process resulted in the excision of a number of key chapters and provisions from the SALRC Draft Bill. This new version was submitted to Cabinet and Cabinet requested more excisions. The next version was then drafted by the Department and is dated the 12 August 2003. This version of the draft Bill was published for public comment in the Government Gazette in August and comment had to be sent to the Department by 7 September 2003. This deadline was extended to 30 September 2003.

Before comment from the public was read or incorporated, the 12 August 2003 Draft Bill was sent to the State Law Advisors for certification. It was certified at the end of October. The State Law Advisors expressed the legal opinion that the Bill was a “mixed” bill in that it contained elements of both a section 75 and a section 76 bill. A section 75 bill is a bill that regulates areas that fall under exclusive national government competence such as justice, safety and security, international issues, defence. A section 76 bill is a bill that regulates an area that falls under the concurrent competence of national and provincial government, such as education, welfare, health or the environment. As Parliament does not have a procedure for mixed bills, the State Law Advisors recommended that the Bill should be split into two bills and then finally amagamated into one Children’s Act. The recommended that the section 75 bill should be tabled now and processed by Parliament by April 2004. The section 76 bill should be tabled in the new Parliament after the elctions as an amendment to the first bill.

The section 75 Bill was tabled in Parliament and the Portfolio Committee had three briefings from the Department.
 
Where are we now in the law reform pipeline?
 
There is uncertainty as to whether the Bill will proceed through Parliament before the April 2004 elections. All indications show that the Bill will only come to Parliament mid next year.
 
Civil Society’s response so far
 
In January 2003, the Children’s Institute and RAPCAN organised a workshop that brought together representatives of national child sector organisations that were already working on the Children’s Bill, to discuss and plan a way of working together. An interim working group was established and this group helped to plan a National Workshop on the Bill that was aimed at giving civil society an opportunity to engage with the SALRC drafters and discuss content and strategy issues.
 
At this national workshop, held in March 2003, and attended by 80 representative of the children’s sector, the Children’s Bill Working Group was formerly constituted with the members from the interim working group and new volunteers. Extra members have also been co-opted to ensure that all sub-sectors are represented. The Working Group meets every three months and communicates daily via e-mail to ensure a co-ordinated and strong response from the children’s sector.
 
The Working Group consists of the following organisations:

The Working Group’s role is to co-ordinate awareness raising, education and advocacy around the Bill in the general public sector, relevant government decision maker sector and children's sector in particular. The Working Group is co-ordinated by a Secretariate which is led by the Children’s Institute and SASPCAN and each sub-sector has a Co-ordinator who is responsible for a defined topic.
 
The list of co-ordinators and their contact details is provided below for anyone who wants to contact them:

Sub-group Co-ordinator Tel no. Fax no.
Prevention, early intervention and protection from abuse and neglect Jackie Lofell 011-298 8500 011-298 8590
011-643 8537(h)
Primary prevention of abuse and neglect Carol Bower 021-448 9034/5 021-448 9042
International Issues Raygaanah Barday 021-959 2950 021-959 2411
Local Government Raygaanah Barday 021-959 2950 021-959 2411
Children's Protector Joan van Niekerk 031-312 0904 031-312 6008
National Policy Framework (Inter-departmental planning, budgeting and service delivery) Joan van Niekerk 031-312 0904 031-312 6008
Child rights chapter Paula Proudlock 021-685 1583 021-689 8330
Health and nutrition Kashifa Lagerdien 021-689 5404 021-689 8330
Social security (grants and subsidies) Solange Rosa 021-685 7441 x104 021-689 8330
Corporal punishment Daksha Kassan 021-959 2950 021-959 2411
Courts Jacqui Gallinetti 021-959 2950/1 021-959 2411
Street children Annette Cockburn 021-788 1472
Children with disabilities and chronic illnesses Sue Philpott
Sandra Ambrose
033-386 4796 033-386 4796
Early childhood development Mary Newman 021-762 7500 021-320 2949
Foreign children (refugee and undocumented foreign children) Claudia Serra 012-320 2943 021-320 2949
Child and youth care centres Merle Allsopp 021-762 6076 021-762 5352
Child labour Karen Allan 011-836 9942 011-836 9944
Trafficking Carol Bower 021-448 9034/5 021-448 9042
Parenting rights and responsibilities Raygaanah Barday 021-959 2950 021-959 2411
Children affected by HIV/AIDS Sonja Giese 021-689 5404 021-689 8330
Foster care Jackie Lofell 011-298 8500 011-298 8590
011-643 8537(h)

Each sub-group co-ordinator is responsible for producing a discussion document, two submissions (one to the Department and one to Parliament), engaging the executive and legislative decision makers, consulting with the affected sectors and conducting advocacy activities.
 
From August to October , Discussion Papers on most of the topics listed above were drafted and circulated for input. These then formed the basis for submissions that were sent to the Department of Social Development in September. The latest edition of ChildrenFIRST provides summaries of the main issues raised in the various submissions. All the Discussion Papers, Submissions and other relevant information can also be accessed on the Children’s Institute website: www.uct.ac.za/depts/ci or you can contact the Secretariate for any of the documents.
 
Besides writing discussion papers and submissions the Working Group has been engaging in extensive media advocacy to popularise the Bill to the general public. A major part of the media advocacy has been aimed at preventing the Bill from being tabled until after the 2004 elections to prevent it being compromised through a fast-tracked parliamentary process.
 
The Working Group has also sent letters to Parliament, and the Minister and has had discussions with key Parliamentary decision makers.
 
Possible scenarios and the way forward
 
There are a few possible scenarios with regards to the future of the Children’s Bill.

(a) Public hearings could be held in December 2003. This is highly unlikely.
(b) Public hearings could be held in January 2004. This is also highly unlikely
(c) The Bill will be sent back to the Department for further work and taled after the April 2004 elections in about June 2004.

Taking these various scenarios into account, advocacy efforts of the Working Group are currently focussed on:

Despite a dedicated intention to do so, the pace at which the process has been moving over the past year, has prevented the Working Group from dedicating sufficient time to popular awareness raising on the Bill and broad consultation with everyone who may be interested in the issues that the Bill is addressing.
 
However, all the national umbrella bodies have been consulted and are actively participating in the process. If the Bill is not fast-tracked, and we have six months ahead of us, the Working Group is planning a number of workshops and discussion opportunities to facilitate broader consultation.
 
Please contact Paula Proudlock or Elizabeth Myburgh at the Children’s Institute if you want to be added to the Children’s Bill list for updates on progress, new documents and invites to workshops (, or tel. 021 – 689 5404).
 
If you feel that you views have not yet been heard by the Co-ordinator in charge of an area that you are particularly interested in, please contact them. Your interest, views and participation will be greatly valued by the Working Group and will help ensure that the final Children’s Act is in the best interests of children.