Probation
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The Probation
Unit is a division within the Ministry of Justice and Law.
The unit was established by Section 4(1) of the repealed Children's Protection
Act No. 6 of 1980; subsequent to the celebration of the International Year of
the Child in 1979. Currently the duties of Probation, institutions and their
administration are clearly spelt out in the provisions of the Children’s
Protection and Welfare Act no. 7 of 2011.
Objectives:
1.To assist the courts of Law to make informed decisions;
2.To facilitate the establishment and use of community based Justice initiatives( Restorative Justice and Diversion, Community Service Order and Probation Order);
3.To facilitate and participate in Crime Prevention activities at Secondary and Tertiary level, and;
4.To participate in Child Protection and Welfare activities.
Clientele:
1. Children in conflict with the law;
2. Children at risk of offending;
3. Liaising and partnering with relevant stake holders to conduct campaigns on crime prevention and delinquency;
4. Referring clients to relevant service providers for appropriate intervention.
The Process of dealing with a Child in Conflict with the Law
1. Each and every case involving a child is reported to the chief, who will then refer it to the Village Child Justice Committee or to the Police. The committee will then handle the case or further refer it depending on the merits of the case;
NB: A case involving a child in conflict with the law shall not proceed without a "proof of birth" of the child in question or in the absence of a parent/ guardian
2. Arrest:
At pre-trial stage, the police may apply RJ processes or further refer the case to a Probation Officer (within 24hrs) to conduct a Bio-psychosocial assessment with the purpose of determining the eligibility of diverting the case for diversion or to Prosecution for opening of a Preliminary Enquiry;
3. Preliminary Enquiry:
Once the case has been referred to the children's court, the Probation Officer is involved to facilitate the Preliminary Enquiry before the Enquiry Magistrate; to further determine whether the case can be diverted and to prepare the child for the proceedings of the court (Presentation of the Assessment Report and recommendations thereof);
4. Children's Court:
The Children's Court should:
1. Children in contact with the law(child witnesses, child victims etc);
2. Adult offenders eligible for Community Service Order;
3. Conflicting families and communities.
Affiliations:
All relevant Government Ministries, Non-Governmental Organizations, Faith-Based Organizations, Community-Based Organizations and the International Development Partners ( UNICEF, EU, Global Fund etc)
Daily Duties:
· Conducting Bio-Psychosocial assessments for children in conflict with the law; in order to determine their eligibility for prosecution or diversion;
· Conducting Social Enquiries for compilation and Presentation of Social Enquiry Reports, Community Service Suitability Reports, as well as Assessment Reports and Presentence Reports to the Courts of Law; in accordance with the provisions of the Children's Protection and welfare Act no. 7 of 2011(CPW Act, 2011);
· Providing Psychosocial support to young and adult offenders, children at risk of offending, victims and their families;
· Conducting assessments and facilitate referral of clients to relevant Restorative Justice processes and programs;
· Providing sensitization and training to communities and relevant stakeholders on Restorative Justice and Diversion;
· Facilitating the Restorative Justice Processes;
· Facilitating the establishment of Child Justice Committees as required by the CPW act, 2011;
· Overseeing the implementation of non- custodial sanctions(Probation Order, Community Service Order, Restorative Justice and Diversion);
· Sensitizing and empowering communities in a quest to enhance crime prevention initiatives;
· Conducting assessments for children at risk of offending;
· Formulating supervision plans and appropriate intervention strategies for identified communities (schools, social groups, communities etc)
(d) the children's court is a specialized court and the personnel serving the institution should be appropriately qualified and equipped with all the necessary skills required for execution of the duties thereof.
5. Sentencing:
The following should apply when sentencing a child:
(a) A Pre-Sentence Report compiled by a Probation Officer;
(b) Use of community based sanctions and other sentencing options are usually considered ie. RJ processes and Diversion, Probation Order (with or without supervision), Community Service Order, Caution and Discharge etc. This implies that institutionalization is always considered as' the last resort' when all diversionary measures have been exhausted, and should be for the shortest possible time
NB. The maximum detention period for a child in the institution(JTC) is 3 years; with possibilities of release after a period of 9 months depending on the child's positive reception and compliance to rehabilitation processes
Institutions: There are currently no Probation Hostels or approved schools. However, preparations for erection of regional Probation Hostels in Botha-Bothe and Quthing are underway.
· What is Probation?
Probation is a privilege which allows law offenders to avoid prison and serve their sentences in their respective communities; under supervision of an assigned official (Probation Officer). The goal of Probation is to rehabilitate offenders and guide them back into society while minimizing the likelihood that they will commit a new offence.
Sentencing Options
· Probation Order
Probation Order is a non custodial sentencing option from a Court to abide by certain conditions for a specified period of time. The requirements of such an order are to keep peace, be of good behavior, be cooperative with your assigned Probation Officer (supervisor), and report any change in address or any additional conditions thereof.
Failure to abide by the order implies breach of probation and can result in a charge of breach of probation as articulated in Children's Protection Welfare Act, 2011. Additionally, before imposing an order, the court considers recommendations of a Pre-sentence Report compiled by a Probation Officer; of which are in the "best interests of the child".
· Assessment Report
An Assessment report is a written record of the discussions between the Probation Officer, offender, victim and all concerned parties; and recommendations that happened during the assessment.
· Presentence Report
A Pre-sentence Report is an enquiry into the legal and social backgrounds of a person found guilty of a crime before sentencing; to determine if there are extenuating circumstances which should lighten the person's sentence or increase the severity of the sentence. The report is prepared by the Probation Officer
· Social Enquiry Report
A Social Enquiry Report is a report on a person and his or her circumstances, which may be required by the court before sentencing or for any other civil matter as may be required; and is made by a Probation Officer or Social Worker from a local authority
· What is Restorative Justice (RJ)?
RJ is a victim centered problem solving approach to crime, wherein the concerned parties themselves (victim, offender and community) are in active relationship with the criminal justice organs. Contextually, this approach has a lot in common with the Cultural Basotho Justice and hence its principles of accountability, inclusion, humanism, proactivity and holism; while it also empowers community structures for participation. Additionally, it also encapsulates re-engagement of positive cultural practices of preventing delinquency. On the other hand, the aim is to promote peaceful co-existence and communal decision making which are integral to the provisions of Lesotho's Vision 2020 and it is also the corner stone of Juvenile Justice in Lesotho.
· Diversion:
Diversion implies the channeling of child offenders away from the formal court system into re-integrative programs. The advantages of Diversion are that it protects the juvenile from criminalization by the hard core criminals, guards against stigmatization and brutalization, and in the event the child avoids a criminal record; while it also reduces recidivism
Community Service Order:
Community Service order is a non - custodial sentencing disposition whereby an offender serves his sentence by performing a prescribed hours of community Service/ unpaid work; as articulated in the Lesotho Community Service Rules of 1999. It is an alternative to imprisonment and before imposing an order, the court considers a Community Service Suitability Report compiled by a Probation Officer.
· Community Service Suitability Report:
A Community Service Suitability Report is a report on an offender and his or her circumstances, which may be required by the court before sentencing in order to determine his/her suitability for a Community Service Order.
Level of Decentralization
In addition to the management, the establishment list of the Probation Unit also comprises 10 Senior Probation Officers.
Moreover, in an effort to effect decentralization of services, in the year 2015, the unit devolved services to 4 more districts namely Botha- Bothe, Leribe, Berea, and Mafeteng respectively. More to the point, the 4 districts Offices are headed by Senior Probation Officers and currently do not have any establishment lists. As thus, the Senior Probation Officers heading the District Offices are being supervised by the Principal Probation Officer positioned in Maseru.
On the other hand, in
Qacha's nek, Thaba- Tseka and Mokhotlong, the Probation services
are currently rendered when there is an exigency; while cases in Mohale’shoek
and Quthing are attended fortnightly by Senior Probation Officers
positioned in Maseru. This situation is
attributed to the current lack of experienced human resource within the unit;
as a result of a high staff turnover that the unit experienced recently.