Browsing by Author "Lukas, Muntingh"
Now showing 1 - 20 of 29
Results Per Page
Sort Options
Item Alternative sentencing in South Africa: an update(Institute for Security Studies, 2005) Lukas, MuntinghWith South Africa’s ever growing prison population, the hope is often expressed that non-custodial sentencing options or ‘alternative sentencing’ will relieve the overcrowding and its associated ills. The current situation in our prisons is, however, not the result of a lack of creative alternative sentencing options – indeed, these have been on the statute books for decades. Instead, prison overcrowding is caused by the slow administration of justice, resulting in a large awaiting trial population. Another factor is the propensity of South African courts to hand down long prison and prison-based sentences. The introduction in 1997 of legislation prescribing minimum mandatory sentences has also led to an increase in the sentenced prison population. On average 62% of convicted offenders receive a sentence that is in some way connected to imprisonment or direct imprisonment.Item The betrayal of Steve Biko – South Africa’s initial report to the UN Committee against torture and responses from civil society(Law, Democracy & Development, 2008) Lukas, MuntinghThis article will focus on State Party obligations in respect of reporting to the UN Committee against Torture (the Committee) under article 19(1)17 of CAT and more particularly on civil society’s interaction with the Committee in respect of South Africa’s Initial Report. It will be argued that the provisions of CAT, the Rules of Procedure of the Committee, and the Working Methods of the Committee are in fact facilitative and supportive of civil society participation in the work of the Committee. Using the submissions made by six civil society organisations during the Committee’s consideration of South Africa’s Initial Report, evidence is provided that the majority of the issues raised by civil society organisations found their way into the Committee’s Concluding Remarks in respect of the Initial Report. This is regarded as a positive step towards greater transparency and accountability in respect of the protection of the right to freedom from torture in a global human rights framework.Item Child justice(South African Journal of Criminal Justice, 2018) Lukas, MuntinghAlthough the period under review is not an extensive one, it must be noted that cases in which higher courts have pronounced on aspects of the Child Justice Act remain, in the view of the author, rather few. In some high courts, there is no case law during the period under consideration. Whilst this phenomenon could be the product of seamless implementation of the Act’s provisions, it is rather probably related to the dwindling numbers of child justice cases entering the criminal justice system in the first place (see J Sloth-Nielsen ‘Child Justice’ in CJ Boezaart (ed) Child Law in South Africa 2ed (2017) 725), coupled with the widespread use of diversion which then obviates further contact with the criminal justice system. According to the annual reports filed by the Department of Justice and other stakeholders on the implementation of the Child Justice Act, the numbers of charges against children aged below 18 years dropped from 75 000 in 2011/2012 to 45 000 in 2015/6 (the South African Police Services do not keep data on the number of arrests, only on the number of charges). The declining numbers permeate all aspects of the child justice system: there are fewer children in diversion programmes, fewer assessments and preliminary inquiries, and fewer children’s trials being held. The question as to why the numbers of children in contact with the law has shrunk so markedly is one issue that the study team exploring the implementation of the Act will attempt to answer.Item Children deprived of their liberty: protection from torture and ill treatment(Tygerberg: Medical Research Council, 2012) Lukas, MuntinghChildren deprived of their liberty by the state are, as a result of state officials’ action or inaction, at the risk of death, torture, and ill treatment. Three types of places of detention are discussed, namely prisons, police cells, and child and youth care centres. The Chapter accepts the UN Convention against Torture (CAT) as the legal anchor point and proceeds to give a more detailed description of rights violations against children in detention, focussing on deaths in custody; torture and assaults; harsh conditions of detention; solitary confinement and detention incommunicado; illegal and inappropriate means of maintaining discipline; separation of categories of detainees; trafficking. The Chapter concludes with a number of recommendations focussing on improving the collection of data pertaining to children in custody; the criminalisation of torture; the need for comprehensive and continuous staff training; the regular review of policies, procedures and practices; promoting transparency and establishing independent oversight; establishing effective complaints mechanisms; the need for prompt and impartial investigations; and obtaining effective redress.Item Corruption in the prison context(Civil Society Prison Reform Initiative, 2006) Lukas, MuntinghThe point of departure of this paper is that, in general, corruption is a human rights issue, which is accentuated in the prison context given the nature of imprisonment. Three factors create an intrinsic risk for corruption in prisons. Firstly, the all-encompassing nature of imprisonment regulates every aspect of prisoners’ daily lives: from having the most basic necessities to having access to luxury items, or even illegal items and activities. This unavoidably creates a situation where some goods are scarce, and demand and reward exists for their supply. Secondly, the state as the controller, establishes a highly unequal power relationship between the prison bureaucracy (represented by the warder) and the prison population. Thirdly, the closed nature of prisons and their general marginalisation from the public eye and political discourse do not assist in making prisons more transparent. Against this backdrop, poor management, weak leadership or organised crime can have a devastating impact on the overall operation of a prison system and, ultimately, on the human rights of prisoners.Item The criminalization of torture in South Africa(Journal of African Law, 2016) Lukas, Muntingh; Lovell, FernandezThis article describes the politics related to the criminalization of torture in South Africa. It studies the differences between torture as an international crime and as a crime under international human rights law. The South African anti-torture law is analysed and critiqued against the standards and provisions set out in the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The article recommends amendments to the South African law, aimed at making the combating of torture more effective.Item The effect of sentencing on the size of the South African prison population(Open Society Foundation for South Africa, 2006-10) Chris, Giffard; Lukas, MuntinghThat South African prisons are experiencing serious and growing overcrowding problem is well-known to anyone with an interest in the criminal justice sector. Particularly since 2000 the widening gap between available prison space and the total number of prisoners has been well publicised, particularly by Judge Fagan during his tenure as Inspecting Judge of Prisons. This paper examines the link between sentencing practice and the size of the prison population. In particular, it examines the role played by the minimum sentences legislation as a driver of the total prison population. In addition, it examines the nature of the impact of these changes, in order to gain an understanding of how larger trends affect the situation at individual prison level, and not merely at the more abstract level of averages and percentages.Item Ex-prisoners' views on imprisonment and re-entry(Civil Society Prison Reform Initiative, 2009) Lukas, MuntinghThis research project gathered information from ex-prisoners about their experiences during and after imprisonment. Knowing what prison system users think and say about the system is important because they are ultimately the individuals who should benefit from the prison system. Moreover, listening to them deepens our understanding of what is being done correctly and should be built upon, but also where improvements are required. In the private sector such research is common in the form of client satisfaction surveys as well as more sophisticated analyses of customer views. It is in this sense that this research set out to gather information on the views of the “customers” of the correctional system in South Africa. Although this study involved only a limited number of participants, several important findings can already be made, based on what the customers of the DCS are saying.Item Guide to the UN Convention against torture in South Africa(Civil Society Prison Reform Initiative, 2008) Lukas, MuntinghThis publication is a guide to the UN Convention against Torture and Cruel, Inhuman and Degrading Treatment or Punishment (CAT) for the South African context. The guide is furthermore aimed at civil society organisations and those interested in human rights. Such a guide is necessary in order to give CAT meaning and significance in the local context. It is not only a guide, but also a reflection on the growing body of work done by stakeholders in South Africa over the past five years in preventing and combating torture. This publication aims to provide guidance on how the CAT can be used as a resource in South Africa to eradicate torture and ill-treatment. To achieve this objective, three stakeholders need to cooperate with this common purpose in mind. These are government, the national human rights institutions (NHRI) and civil society organisations.Item Juvenile justice review 1998(South African Journal of Criminal Justice, 1999) Julia, Sloth-Nielsen; Lukas, MuntinghThe 1998 Juvenile Justice Review charts developments in juvenile justice law and practice in South Africa from October 1997 until October 1998. However, the release of the South African Law Commission discussion paper on juvenile justice (Project 106) on 14 December 1998 paves the way for an introduction to the contents of the discussion paper, and more especially an overview of the proposed new child justice system, as reflected in the draft bill attached to the discussion paper. The draft bill will be extensively debated with relevant departments, members of the profession, academics and other interested parties during 1999, with a view to producing a final report to the Minister of Justice during the latter half of 1999.Item Juvenile justice review 1999-2000(South African Journal of Criminal Justice, 2001) Lukas, Muntingh; Julia, Sloth-NielsenThe two years covered in this review have seen major developments in the juvenile justice sphere. Not only have several important judicial decisions been handed down, but the process of law reform has advanced significantly with the completion of the South African Law Commission's Report on Juvenile Justice which was presented to the Minister of Justice in August 2000. Draft legislation (entitled the Child Justice Bill) to establish a separate procedural system for children in conflict with the law is proposed in that document, and its contents are destined to be debated in Parliament in the second half of 2001.Item NICRO diversion options(National Institute for Crime Prevention and the Rehabilitation of Offenders, 2000) Lukas, MuntinghSince 1994 South Africa has faced many challenges but none so widely experienced as crime. The day-to-day perceptions of living in South Africa are characterised by crime, violence and uncertainty. The criminal justice system is undeniably overloaded. Not surprisingly, the criminal justice system is seen by many to be biased, unrepresentative and unjust. However, there are signs of a shift away from punitive and retributive criminal justice practices towards rehabilitative, educational and restorative options. The aim of this booklet is to introduce and describe diversionary options available to the criminal justice system through NICRO. The booklet will simultaneously serve as an educational tool and a manual for practitioners in the field of criminal justice. In addition it will enable practitioners to start diversionary options in their own regions.Item Offender rehabilitation and reintegration: taking the White Paper on Corrections forward(Civil Society Prison Reform Initiative, 2005) Lukas, MuntinghRehabilitation and reintegration, as contemplated on the scale articulated in the White Paper, will indeed require a very careful approach and consideration would have to be given to the major challenges, such as resource constraints, that may effect implementation. This paper is an attempt to describe and highlight some of the key theoretical and research findings on offender rehabilitation to assist in the implementation of the task outlined in the White Paper. It is also a central theme of this paper that offender rehabilitation and reintegration is more complicated than what is often held as “common wisdom” in the field and expressed as simplified linear relationships of cause and effect. Underlying the approach taken in this paper is acceptance of the position that a more punitive approach will not contribute to reducing crime levels, nor will longer prison sentences facilitate rehabilitation. With more than 6 000 sentenced prisoners being released from South African prisons monthly, a planned and rigorous approach is required, if the expectation that rehabilitation will have an impact on crime levels is to be fulfilled. It is of the utmost importance that a strategic approach to the implementation of offender reintegration and rehabilitation be based on scientific knowledge that informs decision-making in relation to the target group, the scale of implementation, definitions of success, and what is regarded as good practice and what is not.Item The prevalence of HIV in South Africa's prison system: some, but not all the facts, at last(Civil Society Prison Reform Initiative, 2008-05-26) Lukas, MuntinghThe lack of reliable research data and more specifically, data on intervention impact evaluations, present a particular challenge in respect of evidence-based law and policy reform. In resource-constrained environments it is indeed risky for government to develop or adjust policy and legislation in the absence of evidence, continued research and evaluations. On the other hand, a quick perusal of the policy documents, guidance notes and technical commentaries developed by international agencies over the past two decades on HIV/AIDS indicate a demanding agenda for developing countries, and in particular for Africa, which has the least resources but carries more than two-thirds of the HIV burden. In this CSPRI Newsletter, the key results of the Department of Correctional Services HIV Prevalence Survey are presented and comments made in response. For a detailed description of the methodology followed and related matters, the full report should be consulted.Item Preventing and combating torture in South Africa: a framework for action under CAT and OPCAT(Centre for the Study of Violence and Reconciliation & Civil Society Prison Reform Initiative, 2008) Lukas, MuntinghThis booklet aims to provide more information to decision-makers and stakeholders on the challenges relating to preventing and combating torture; and also outlines South Africa’s obligations under CAT and OPCAT. These two instruments are valuable resources in the quest to prevent and combat torture. This booklet is a rough guide to this task. It should be kept in mind that over the past 50 years there has been much research and writing produced on this subject, and for more detailed information there are many sources to consult; some of which are listed at the end of the booklet. The style of the booklet is one of question-and-answer; hopefully this will make what are often complicated issues more understandable and accessible. The first part of the booklet deals with torture and CAT, focusing on the definition of torture, the crime of torture, the obligations under CAT and the role of civil society in the work of the UN Committee against Torture. In CAT the emphasis is on criminalisation, prosecution and punishment of perpetrators. OPCAT on the other hand, which is dealt with in the second part of the booklet, places emphasis on prevention. The importance of visits as a preventive measure, obligations under OPCAT and possible steps to take OPCAT forward are dealt with.Item Prisoner re-entry in Cape Town - an exploratory study(Civil Society Prison Reform Initiative, 2008) Lukas, MuntinghThis study is concerned with the immediate post-release period and asked a very simple question: “What happens to people immediately after they have been released from prison?” The question is aimed at gaining a deeper and empirical understanding of what prisoner re-entry and reintegration into society mean and what the obstacles are to successful reintegration. When people’s lives have effectively been put on hold for several months or years, how do they pick up the strings where they had left them, if there are indeed strings to pick up? Increasingly scholars are using the term ‘re-entry’ to describe the process of coming back to society from prison and being part of daily societal life. When discussing prisoner re-entry and reintegration it is important to understand that prisoners and ex-prisoners are not a representative sample of the total population. Apart from the obvious demographic characteristic that 98% are male and that they are predominantly between the ages of 18 and 35 years, they have other characteristics placing significant hurdles in the path of re-entry and reintegration. From research done in the UK it is known that ex-prisoners have behind them a history of social exclusion.Item Prisoners' access to anti-retroviral treatment(Civil Society Prison Reform Initiative, 2006) Lukas, Muntingh; Christopher, MbaziraPrisoners are susceptible to a number of illness and diseases. This may relate to the conditions of prisons themselves (e.g. poor ventilation is associated with TB), life style (e.g. poor nutrition and substance abuse), and sexual violence (e.g. male rape in prison). From a healthcare perspective, prisons present a particular challenge. From 1996 to 2005, the number of prisoners dying from natural causes per year increased from 211 to 1507. HIV/Aids has contributed to this increase. The rate of HIV infection amongst prisoners is unknown and the Department of Correctional Services (the Department) has commissioned a research project to establish this. In the absence of accurate and publicly accessible data, it is difficult to make any accurate assessment of the size and scope of HIV infection and persons living with AIDS in our prisons. What we do know is that prisoners’ access to anti-retroviral treatment (ARV) is extremely limited. To date only one accredited ARV treatment centre has been established by the Department at Grootvlei Correctional Centre in the Free State. In September 2005, the Department briefed the Parliamentary Portfolio Committee on Correctional Services regarding prisoners’ access to ARV with reference to the “HIV/Aids Policy for Offenders”. It reported that the Department was not accredited to provide ARV to prisoners. It also noted that the ARV roll-out centres were located off-site at the Department of Health facilities, which created security concerns as a result of lack of staff and logistics (e.g. transport). In essence, the Department's position was that, while it would like to provide access to ARV, it lacked the resources (staff and infrastructure) to do so. The applicants in the present case sought to remove all obstacles preventing the prisoners from accessing ARV.Item Prisoners’ right of access to antiretroviral treatment(ESR Review, 2006) Christopher, Mbazira; Lukas, MuntinghPrisoners are susceptible to a number of illness and diseases due, in part, to poor living conditions in prisons (e.g. overcrowding and poor nutrition), substance abuse and sexual violence (e.g. male rape). The rate of HIV infection among prisoners is unknown and the Department of Correctional Services (the Department) has commissioned a research project to establish this. In the absence of accurate and publicly accessible data, it is difficult to establish the size and scope of HIV infection and the actual number of persons living with AIDS in our prisons. What we do know is that prisoners’ access to anti-retroviral treatment (ARV) is extremely limited. To date, only one accredited ARV treatment centre has been established by the Department, at Grootvlei Correctional Centre in the Free StateItem Prisons in South Africa's constitutional democracy(Centre for the Study of Violence and Reconciliation, 2007-10) Lukas, MuntinghIn this article it will be argued that to make prisons compatible with a constitutional democracy, as understood in South Africa, four requirements need to be met. First, the prison system must have an underlying philosophical framework derived from the Constitution. Such a philosophical framework needs to set out the justification and purposes of imprisonment. Secondly, prisons must not violate the rights of prisoners listed in the Table of Non-derogable Rights (section 37) and the rights enumerated in section 35 in the Constitution. These are the rights to equality (section 9), to human dignity (section 10), to life (section 11), freedom and the security of the person (sections 12[d], 12[e] and 12[c]), freedom from slavery, servitude and forced labour (section 13); the rights affording special protection to children (section 28[1][d] and [e], 28 [1][g][i–ii], and 28[1][i]); and the rights of arrested, detained and accused persons (section 35), with specific reference to section 35(2). The emphasis placed on the non-derogable rights and the rights in section 35 should not be regarded as an attempt to lower the standards in respect of prisoners’ rights, but is done for purposes of emphasis and in order to keep the analysis manageable in scope. It is accepted that all the rights in the Bill of Rights apply to prisoners unless a limitation is justified in respect of section 36. Third, the executive must be accountable in respect of prisons. Such accountability refers at a horizontal level to the institutions and practices created by the state to hold governments accountable. Vertically, accountability is directed to the electorate, the media, civil society and international treaty bodies. Four, prisons must function in a transparent manner. At minimum this means that those affected by decisions of officials in the prison system, as well as other stakeholders with an interest or mandate in respect of prisons, must have access to not only the basic facts and figures, but also insight into the mechanisms and processes of decision-making. A consequence of this is that officials in the prison system (and related sectors) have a duty to act visibly, predictably and understandably (Transparency International, Internet resource). For the purposes of this article, it is accepted that South Africa is a constitutional democracy, and that the Constitution reflects the set of political values and aspirations needed to protect liberty through the existence of internal and external checks and balances on the government in power (Heywood, 1997: 279). It is not within the scope of this analysis to assess the merits of the model of constitutional democracy chosen; it is accepted that these are the “rules of the game” reflected in a codified constitution, a bill of rights, the separation of powers, a bicameral and freely elected Parliament, and the decentralisation of power with designated oversight structures enshrined in the Constitution, or created by statute (Heywood, 1997: 279). In the following, each of the four requirements will be explored. The intention is not to provide an overview of the South African prison system as others have done this eloquently (Sloth-Nielsen, 2007: 379–401), but rather to focus on the requirements of compatibility with a constitutional democracy and the stumbling blocks en route to creating a prison system meeting these requirements. It should also be borne in mind that when enquiring about the prison system in a constitutional democracy, the discourse is historically bound but also transient in its focus. The question of prisons in a constitutional democracy should thus be a continuous enquiry to enrich our understanding and knowledge of the challenges facing the prison system. Prison systems change and so must our understanding of them. Lastly, there are theorists arguing for the abolition of the prison and credible arguments have been forwarded in pursuit of this objective (Wilson, 2005). This article will not address this question; it is accepted that prisons will, for the medium-term at least, be part of the South African landscape.Item Prosecutorial attitudes towards diversion(NICRO National Office, 1998) Lukas, MuntinghThis report investigates a number of issues relating to diversion in an effort to make certain recommendations with regard to the running and management of diversion with a particular emphasis on the discretionary powers of prosecutors. The key questions are: To what extent does prosecutorial discretion influence decisions on diversion, and what systems or guidelines should be put in place to facilitate the expansion of diversion? The call for developing guidelines and criteria for diverting juvenile criminal cases is not a new one but there are other issues emerging such as who should apply these guidelines, and are prosecutors in fact positioned correctly in the system to make decisions regarding diversion? Other suggestions have been made with regard to decision-making such as giving Family Group Conferences a central role, but these have not found wide support to date.