This discussion document deals with three key concepts associated with the National Prosecuting Authority (NPA) and its relation to the public, namely accountability, public interest and trust. It is suggested that for the NPA to be regarded as a legitimate institution it needs to enjoy trust and in order to enjoy such trust, it needs to be seen and perceived to act in the public interest in an accountable manner.
The Equality Court in Cape Town declares unfair discrimination in the allocation of police resources in the Western Cape.
Recent media reports showed again how police officials grossly misused their power and, against departmental prescripts, used a 'sjambok' to assault a man for apparently not wearing a mask. Such reports are not isolated and have a very direct impact on trust in the police and thus the legitimacy of the police. The core of the problem seems to be twofold (1) that SAPS managers are not enforcing the internal disciplinary code, and (2) the National Prosecuting Authority (NPA) very rarely prosecutes police officials, especially for human rights violations. We have updated ACJR Fact sheet 9 (originally published in February 2019) with statistics for the past two financial years and it appears that the situation has worsened. This does not bode well for general trust in the state and specifically in the police. There is little sense in tough talk about law enforcement when the police themselves are not being held accountable and increasingly regarded as hostile to the general public.
This fact sheet considers the performance of the National Prosecuting Authority since inception. The data suggests increases in investment have not brought commensurate returns.
The recent announcement by President Ramaphosa to call together a committee of experts to assist him to appoint a new National Director of Public Prosecutions (NDPP) is unprecedented, and an extremely important move in the right direction towards greater transparency and accountability at South Africa's National Prosecuting Authority. An earlier report by ACJR dealt in detail with the problems at the NPA and, amongst others, recommended that the appointment procedure of the NDPP be reformed. In this fact sheet the current procedure for the appointment and dismissal of the NDPP is set out and problems identified. This should inform debate and stimulate ideas on the reforms we would like to see.
This report investigates the legal frameworks of five African countries (Kenya Malawi, Mozambique, South Africa and Zambia) as they relate to the use of solitary confinement. The effect of long periods of solitary confinement have been shown to have severe impacts on a prisoner’s mental and physical well-being. The UN Human Rights Committee (UNHRC) has noted that the use of prolonged solitary confinement may amount to torture or to cruel, inhuman or degrading treatment or punishment, in breach of Article 7 of the International Covenant on Civil and Political Rights (ICCPR). In December 2015, the UN General Assembly adopted the revised United Nations Standard Minimum Rules for the Treatment of Prisoners, also known as the Nelson Mandela Rules (‘2015 UNSMR’). The 2015 UNSMR addresses a key shortcoming in the protection and treatment of people in places of detention, as it, for the first time, sets down norms and limitations on the use of solitary confinement. The report concludes that there are major areas of non-compliance in each of the countries and this requires urgent attention.
S v Frederick & S v Maxhongo, Judgment on Review 11 July 2018, Review 18531 and Review 18532. The Court asked that in cases where there is a long history of drug use and abuse, the prosecution should rather request a probation officer’s report to investigate the accused’s circumstances and the desirability or not of prosecution.
It is our submission that the issue to be addressed, namely the independence of IPID also relates to the relationship between IPID and the National Prosecuting Authority (NPA) and this submission focuses on that relationship as described in section 7(4-5) of the IPID Act. It will be submitted below that the effectiveness and impact of IPID is essentially at the mercy of the NPA.
In 2013 the Western Cape legislature passed the Western Cape Community Safety Act (WCCSA) to improve monitoring of and oversight over the police. One creation of the WCCSA is the Western Cape Police Ombudsman, which became operational in 2015. This article reviews its history and context, as well as results from its first year. The Police Ombudsman, the only one in the country, must be seen as one of the results of efforts by the opposition-held province to carve out more powers in the narrowly defined constitutional space, and in so doing to exercise more effective oversight and monitoring of police performance, and improve police–community relations. The Ombudsman must also be seen against the backdrop of poor police–community relations in Cape Town and the subsequent establishment of a provincial commission of inquiry into the problem, a move that was opposed by the national government, contesting its constitutionality. Results from the Ombudsman’s first 18 months in operation are modest, but there are promising signs. Nonetheless, the office is small and it did not do itself any favours by not complying with its legally mandated reporting requirements. By Lukas Muntingh
In late May 2018 the Department of Correctional Services in South Africa hosted a roundtable to discuss its “Position paper: a revised parole system for South Africa”. Submissions were invited prior to the round table and ACJR made a submission critical of the position paper. Key problems identified, amongst others, are: the lack of quantitative data in the position paper making it difficult to formulate policy in the absence of fact; the large number of prisoners serving life imprisonment received scant attention; and that proposed separate legislation to govern parole may not solve problems in the current system.
There was a miscarriage of justice on several grounds, namely the denial of the accused’s right to a properly qualified interpreter, the refusal to allow his son to testify, and the negative bias of the presiding officer. The accused was not afforded a fair trial and his murder conviction therefore cannot stand.
The Child Justice Act since 2008 makes provision for the expungement of criminal records for offences committed by a child. Eligibility for expungement depends on the offence that was committed and certain offences cannot be expunged. This fact sheet describes the requirements and the process.
Since 2009 the Criminal Procedure Act provides for the expungement of certain criminal records depending on the sentence that was imposed. This fact sheet describes the requirements and process in relation to adults.
This article assesses developments in the prevention and eradication of torture in Mozambique. Despite several positive efforts and advances made, acts of torture and other cruel, inhuman and degrading treatment and punishment are still perpetrated by members of the security forces, especially police officials, often with impunity. The culture of impunity for such serious offences is a direct threat to human rights and the rule of law in the country and seriously compromises the country’s public integrity. Two issues are of deep concern and require more efforts by the state, namely: a) addressing impunity and ensuring prompt and impartial investigations of all allegations of torture and other ill-treatment, and b) protecting victims and providing the necessary restitution, rehabilitation and compensation. In conclusion we provide recommendations on how to improve the situation. These are: engaging in outreach and advocacy; improving and strengthening the national legislative framework; strengthening institutions; developing mechanisms for the reporting of torture: monitoring and evaluating existing reporting mechanisms; improving conditions of detention; establishing effective oversight over places of detention, and by maintaining records to improve transparency and availability of information. Report by Tina Lorizzo and Vanja Petrovic
Este artigo avalia a evolução na prevenção e erradicação da tortura em Moçambique. Reportado por Tina Lorizzo e Vanja Petrovic
The publication of this report is intended to draw attention to the absence of the State Report and place pressure on the government to comply with its reporting obligations and other substantive obligations as required by the ICCPR.
In 2017, the Principles on the Decriminalisation of Petty Offences in Africa were adopted by the African Commission, becoming the latest development in a broader regional effort to articulate standards for acceptable human rights practices, specifically concerning matters of access to justice.These Principles seek to guide States on measures that can be taken to enhance human rights protections at the critical intersection of poverty and criminal justice.
The presumed link between the rule of law and development suggests that an operational justice system is key to development. The research sought to understand and quantify how the decision to detain an accused person affects his or her socio-economic situation. Data was collected in Kenya, Mozambique and Zambia. The findings suggest that the use of the coercive power of the state exercised through the deprivation of an individual’s liberty has serious socio-economic consequences. While detention pending trial is justifiable sometimes, we argue that it is over-used, frequently resulting in excessively long detention. The deprivation of liberty interferes with the ability of individuals to be agents of their own development, infringing on socio-economic rights of individuals and their dependents. States can justify such infringements only if their coercive power is used within the ambit of democratic and rights-respecting laws complying with human rights standards. By Lukas Muntingh and Jean Redpath
Report on the Symposium on Legal and Administrative Reforms to address Congestion in Correctional Facilities in Lusaka, Zambia between the 13th and 14th of September 2017, by the Programme for Legal Empowerment and Enhanced Justice Delivery (PLEED).
Challenges and Recommendations considering Legal and Administrative reforms
Presentation by Jean Redpath
Presentation by Lukas Muntingh
Apresentação de Gwen Dereymaeker
Apresentação de Kristen Petersen
Apresentação de Jean Redpath
O projeto procurou compreender e quantificar a forma como a decisão de deter um arguido afecta os direitos socioeconómicos, isto é, os recursos dos indivíduos, inclusive aqueles além das pessoas em prisão.
Apresentação de Lukas Muntingh
Fact sheet 10: Discussion Document - NPA Accountability, trust and public interest
