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The legal framework on the pre-trial diversion programme
Justice for Children Trust
April 07, 2012

Zimbabwe's international obligation to implement the pre-trial diversion programme is based on two instruments which the government has ratified. These are the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). To implement the pre-trial diversion programme, the Constitution of Zimbabwe, the Criminal Procedure and Evidence Act (Chapter 9:07) (CP& E Act), the Criminal Law (Codification and Reform) Act (Chapter 9:23) and the Children's Act (Chapter 5:06) will be used.

In addition to the UNCRC and the ACRWC, there are in place a number of international rules and guidelines which are recommendatory and non binding but, taken together, constitute a comprehensive frame work for the care, protection and treatment of young offenders. These are the United Nations Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guideline for the Prevention of Juvenile, delinquency (the Riyadh Guidelines) and the United Nations Rules for the protection of Juveniles Deprived of their Liberty.

The UNCRC provides a comprehensive listing of the legally binding obligations towards children that states are required to implement. Article 37 deals with the issue of liberty of the young offenders and that the young offenders may only be incarcerated as a last resort. Article 40 more specifically covers the treatment of the young offenders from the moment an allegation is made, through investigation, arrest, charge, trial and sentence. The Article requires state parties to promote a distinctive system of juvenile justice with specific provisions for dealing with young offenders outside the formal justice system by the provision of alternative dispositions of institutional care.

Article 17 of the ACRWC provides for the administration of juvenile justice and that the essential aim of treatment of every child during the trial and also if found guilty of infringing the penal law shall be his or her reformation, re-integration into his or her family and social rehabilitation.

Zimbabwe has partly domesticated the UNCRC and the ACRWC under the Children's Act (Chapter 5:06). In terms of section 76 of the Constitution of Zimbabwe, the Attorney General has powers to institute or discontinue criminal proceedings. The Attorney General also has powers in terms of section 9 of the Criminal Procedure and Evidence Act to decline to prosecute any matter. Section 10 of the CP& E Act provides that the Attorney General may order the liberation of an accused person and stop the prosecution.

Where the young offender is already appearing in Court and it comes to the attention of the Attorney General or his representative that the young offender meets the requirements for diversion, charges will be withdrawn before plea and the matter is referred to the pre-trial diversion officer. Where an accused has been arrested by the police and the young offender meets the requirements for diversion, the police will press charges against the young offender, a docket will be opened but no prosecution will take place. The police will continue to give police cautions in terms of their rules and regulations. Section 351 of the CP& E Act provides for the manner in which young offenders will be dealt with and provides that a young offender may be committed at a training institute or at a reform school.

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