Browsing by Author "Muntingh, Lukas"
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Item Africa, prisons and COVID-19(Oxford University Press, 2020) Muntingh, LukasAfrica’s prisons are a long-standing concern for rights defenders given the prevalence of rights abuses, overcrowding, poor conditions of detention and the extent to which the criminal justice system is used to target the poor. The paper surveys 24 southern and east African countries within the context of COVID-19. Between 5 March and 15 April 2020 COVID-19 had spread to 23 southern and east African countries, except Lesotho. The overwhelming majority of these countries imposed general restrictions on their populations from March 2020 and nearly all restricted visits to prisons to prevent the spread of the coronavirus. The pandemic and government responses demonstrated the importance of reliable and up to date data on the prison population, and any confined population, as it became evident that such information is sorely lacking. The World Health Organization recommended the release of prisoners to ease congestion, a step supported by the UN Subcommittee on Prevention of Torture. However, the lack of data and the particular African context pose some questions about the desirability of such a move. The curtailment of prison visits by external persons also did away with independent oversight even in states parties to the Optional Protocol to the Convention against Torture (OPCAT). In the case of South Africa, prison monitors were not listed in the ensuing legislation as part of essential services and thus were excluded from access to prisons. In the case of Mozambique, it was funding being placed on hold by the donor community that prevented the Human Rights Commission from visiting prisons. The COVID-19 pandemic has highlighted long-standing systemic problems in Africa’s prisons. Yet African states have remained remarkably reluctant to engage in prison reform, despite the fact that poorly managed prisons pose a significant threat to general public health care.Item Are the rights of children paramount in prison legislation?(Juta Law, 2013) Muntingh, Lukas; Ballard, ClareThe principle, the rights of the child shall be of paramount importance in all decisions affecting the child, is established firmly in international law and, accordingly, reflected in the Constitution. Constitutional jurisprudence acknowledges the notion that children are physically and psychologically more vulnerable than adults and thus require treatment that is different from adults when they come into conflict with the law. It is this differentiation that lies at the heart of the Child Justice Act 75 of 2008, the legislation that sets out the criminal procedure specific to the needs of children, as well as the principle that children’s exposure to the criminal justice system should be limited wherever possible. The Correctional Services Act 111 of 1998 predates the Child Justice Act by approximately ten years – a period when legislators were perhaps less attuned to the needs of children in conflict with the law. When examined against the requirements of s 28(2) of the Constitution, there are, unfortunately, a number of shortcomings in the Correctional Services Act in relation to sentence administration and remand detention. These are discussed according to the following themes: (1) remand detention of children and how this is regulated by the Correctional Services Act and the Child Justice Act; (2) sentence administration with specific reference to the parole regime; (3) conditions of detention with reference to the privilege system and access to services.Item Arrested in Africa: An Exploration of the Issues(Dullah Omar Institute, 2015) Muntingh, LukasRecent research and advocacy efforts have drawn attention to the excessive use of and prolonged pre-trial detention in Africa. At any given moment there are roughly 1 million people in Africa’s prisons. Far more move through prisons each year. Their stay in prison, regardless of duration, starts with being arrested. Substantially more people are arrested than those who end up in prison for pre-trial detention. Pre-trial detention figures are thus a poor indicator of contact with the criminal justice system. The purpose of arrest and subsequent detention of a suspect is essentially to ensure the attendance of the person in court or for another just cause. The police’s powers of arrest are, in theory, curtailed to the extent that the arresting officer must be able to provide reasons for the arrest and continued police detention. Police officials have considerable discretion in executing arrests, especially when arresting without a warrant. This exploratory report focuses on arresting without a warrant and starts off with setting out the legal requirements in this regard by way of a case study. In order to understand current arrest practices, the report provides a brief description of the history of policing in Africa and concludes that much of what was established by the colonial powers has remained intact, emphasising high arrest rates, a social disciplinarian mode of policing, supported by myriad petty offences that justify arrest without a warrant. This combination enables widespread corruption and results in negative perceptions of the police. The report further argues that given the wide discretionary powers of the police to arrest without a warrant, it follows that not all people are at an equal risk of arrest, but rather that it is the poor, powerless and out-groups that are at a higher risk of arrest based on non-judicial factors. The report concludes with a number of recommendations calling for further research, decriminalisation of certain offences and restructuring of the police in African countries.Item An Assessment of the National Prosecuting Authority: A Controversial Past and Recommendations for the Future(Dullah Omar Institute, 2017) Muntingh, Lukas; Redpath, Jean; Petersen, KristenThe Constitution of South Africa provides for a single, independent national prosecution authority. The office of the National Prosecuting Authority (NPA) was formally established through the National Prosecuting Authority Act on 1 August 1998, replacing the former provincial Attorneys-General. The Constitution provides that the NPA has the power to institute and conduct criminal proceedings on behalf of the state; carry out any necessary functions incidental to instituting and conducting such criminal proceedings, and discontinue criminal proceedings. Twenty years into democracy, the independence of the NPA, in particular the National Director of Public Prosecutions (NDPP), has become a highly contested and politicised issue. The Constitutional Court has noted that ‘[t]he constitutional obligation upon the State to prosecute those offences which threaten or infringe the rights of citizens is of central importance in our constitutional framework’. This report focuses on the substantive problems and dilemmas facing the NPA. In the discussion that follows the major challenges that the NPA is facing and have faced are set out. The report unpacks these and presents possible solutions and recommendations. The first issue dealt with is the independence of the NPA and NDPP as it relates to the dismissal and appointment of the NDPP and it is argues that the process lacks transparency. Moreover, the lack of a transparent selection and appointment process has raised concerns about the ‘fit and proper’ requirement for the position of NDPP and other senior positions in the NPA. Interference by the executive in the work of the NPA has also emerged as a concern. The second issue dealt with is the accountability of the NPA and NDPP with reference to general proceedings and decisions to prosecute or not. Accountability is also examined in the light of the Prosecution Policy and Prosecution Directives. Thirdly, the question is raised whether the NPA is effective in holding offenders accountable. Data is presented that the institution’s performance is on a steady decline in pursuit of a high conviction rate, raising question about efficiency and effectiveness.Item Community safety, offender re-entry and local government(Community Law Centre, University of the Western Cape, 2012) Muntingh, Lukas; Naude, JohanThis paper examines the issue of “Community safety, offender re-entry and local government” in South Africa. The impact of the release of large numbers of prisoners back into society on a monthly basis poses particular challenges to the public and private sectors as well as civil society. It is of particular concern that such persons are prone to re-offending and, as such, any measures that could reduce or mitigate the risk of such occurrence demands serious consideration. It is argued that local government structures are potentially well positioned as the organ of the state that could most effectively facilitate the coordination and provisioning of resources and interventions with exoffenders to reduce the risk of re-offending.Item The criminalization of torture in South Africa(Cambridge University Press, 2016) Fernandez, Lovell; Muntingh, LukasThis 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 Criminalization of Torture in South Africa(2016) Fernandez, Lovell; Muntingh, LukasThis 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 Democratic policing: A conceptual framework(LDD - Law, Democracy & Development, 2021) Muntingh, Lukas; Faull, Andrew; Redpath, Jean; Petersen, KristenDemocratic policing, as opposed to regime policing, must meet at least three requirements: there is democratic accountability of and for the police; the police adhere to the rule of law; and the police behave in a manner that is procedurally fair in service of the public. The article presents a conceptual framework of nine dimensions applicable to different contexts with a view to facilitate policies and practices towards democratic policing. It is argued that the ultimate result being sought is a legitimate police service. If legitimacy is the result, then trust is the outcome preceding it. Legitimacy is dependent on the public’s trust that State power will be used in the public interest. Public trust therefore fulfils an important legitimising function. Levels of trust in the police are driven by the police’s ability and performance record with reference to three outputs : objectivity, empathy and responsivity. The latter three outputs flow from five input variables, namely: knowledge of what works in creating a safer society from a policing perspective; rights-based policing; accountability of the policing (inclusive of transparency); efficiency and effectiveness of resource utilisation; and the police as citizens also entitled to rights and protections. The utility of the conceptual framework lies in providing a coherent and linked-up view to analyse police organisations and support the development of reform proposals.Item Ex-prisoners' views on imprisonment and re-entry(Community Law Centre, University of the Western Cape, 2009) Muntingh, Lukas;In the past 15 years much research has been conducted on the prison system in South Africa focusing on governance, law reform and human rights. It is, however, of particular concern that the voices of prisoners and ex-prisoners had not been heard in the current discourse. This marginalisation of prisoners’ views is in all likelihood symptomatic of their marginalisation in broader society. This research project gathered information from ex-prisoners about their experiences during and after imprisonment.Item A guide to the rights of inmates as described in the Correctional Services Act and regulations(Community Law Centre, University of the Western Cape, 2010) Muntingh, Lukas;The Correctional Services Act (111 of 1998) was promulgated in 2004 creating a rights-based framework for South Africa’s prison system. In 2008 the Correctional Services Act was amended by the Correctional Services Amendment Act (25 of 2008). The purpose of this guide is to describe the human rights framework pertaining to inmates in South Africa based on the Constitution, Correctional Services Act and the Regulations accompanying the legislation. Large parts of this Act deal,for instance, with the operations and management of the Department of Correctional Service and do not have a direct bearing on the rights of inmates.Item Guidelines and principles on imprisonment and the prevention of torture under the African Charter on Human and Peoples' Rights - how relevant are they for South Africa?(Faculty of Law, UWC, 2013) Muntingh, LukasIt must be regarded as a peculiarity that the African Charter on Human and Peoples’ Rights makes no specific mention of prisoners’ rights and that these rights have to be inferred from overall reading of the Charter, and in particular Articles 4-6. There also does not exist in respect of Africa an instrument such as the UN Standard Minimum Rules for the Treatment of Prisoners or the European Prison Rules, which would operationalise normative law in a manner that is appropriate to the African context. This article assesses the relationship between the African Commission on Human and Peoples’ Rights and the South African prison reform debate with reference, first, to the prevention and eradication of torture and other ill-treatment in South Africa and the Robben Island Guidelines, and secondly, to the right to liberty and the recently announced guidelines from the Commission on police and pre-trial detention.Item Modest beginnings, high hopes: The Western Cape Police Ombudsman(South African Crime Quarterly, 2018) Muntingh, LukasIn 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.Item The numbering of days: Sentencing and prison population growth(Institute for Security Studies (ISS), 2007) Muntingh, Lukas; Giffard, ChrisOn 30 May 2007 the Criminal Law Amendment Bill (15 of 2007) was tabled in Parliament, proposing amendments to what has become known as the 'minimum sentences' legislation. The proposed amendments herald another chapter in the prison overcrowding debate in South Africa and will focus attention on the impact of sentencing on the size of the prison population.Item Punished for being Poor: Evidence and Arguments for the Decriminalisation and Declassification of Petty Offences(Dullah Omar Institute, 2015) Muntingh, Lukas; Petersen, KristenThe Ouagadougou Declaration and Plan of Action on Accelerating Prison and Penal Reform in Africa of 20031 endorsed recommendations calling for reducing the size of prison populations in Africa. The Plan of Action recommended the ‘[d]ecriminalisation of some offences such as being a rogue and vagabond, loitering, prostitution, failure to pay debts and disobedience to parents’ as a strategy to reduce the prison population. More than a decade has passed and few countries have made any progress in implementing this strategy endorsed by the African Commission on Human and Peoples’ Rights (ACHPR). Many of the offences identified by the ACHPR as ripe for repeal amount to nothing more than the criminalisation of poverty, homelessness, and unemployment. Certain offences, such as loitering and being a ‘rogue’ and ‘vagabond’, date back to colonial times and have no place in Africa anymore. They must be repealed. Their continued enforcement is disproportionately experienced by the poor and marginalised populations, including persons with disabilities. The existence of these laws, and their enforcement, are justified by proponents with unsubstantiated arguments based more on anecdote and bias than fact. Such proponents argue, for example, that arresting people for loitering prevents crime and has a deterrent effect on would-be criminals. It is similarly argued that arresting street children and persons with intellectual and psychosocial disabilities in so-called sweeping operations encourages them to return to their homes and families and relieves the public of the burden and inconvenience of such persons. There is no evidence to support these claims.Item Race, gender and socio-economic status in law enforcement in South Africa – are there worrying signs?(Community Law Centre, University of the Western Cape, 2013) Muntingh, LukasIn the South African context the right to equality has particular significance given the country’s history of statutory unfair racial discrimination. This paper investigates, based on quantitative data, how different sub-sets in the South African population experiences law enforcement. Accepting that formal and procedural discrimination according to race was entrenched under apartheid, especially in law enforcement, the paper enquires if different population sub-sets experience different criminal justice outcomes. Despite shortcomings in the data, there is sufficient evidence to indicate that there is reason to be concerned and that further research is required. The most reliable evidence of different outcomes in respect of race and gender is the profile of the prison population. Coloured people (adults) have a much higher rate of imprisonment (1932/100 000) than any other population group. Africans (adults) are imprisoned at a rate of 1042/100 000 while Indian and White adults are imprisoned at a rate of around 160/100 000. The high imprisonment rate for the Coloured population requires further research, but there is reason to conclude that the reasons are (at least) historical in nature as a result of the use of forced prison labour in the Western and Northern Cape and the high levels of institutionalisation of Coloured boys by the previous regime after WWII. The different population groups and genders also experience pre-trial detention differently, with Coloured females standing the highest chance of being detained pre-trial and White females the lowest chance. Although arrest data is not available per population group, a number of observations are made. The majority of the 1.6 million arrests made in 2011/12 were for non-priority crimes. If women and children are excluded from the arrest data it was calculated that one out of every 13 South African adult men were arrested in 2011/12. Arrest and detention place poor people at the risk of further marginalisation and exclusion, and when arrests and detention are concentrated in particular geographical areas, the effect becomes structural and inter-generational in those areas. There is little doubt that poor African and Coloured South Africans experience law enforcement, and ultimately the risk of pre-trial detention and imprisonment, very differently from Indians and Whites. Transforming the criminal justice system would require that the performance of the police and courts be assessed to determine why the trends created during apartheid apparently still persist and what steps need to be taken at policy and practice levels to turn this around. Twenty years after the end of apartheid it is simply not acceptable to practice criminal justice without asking questions about how the poor and historically disadvantaged are affected by the system that is supposed to make society safer.Item The right of prisoners to vote in Africa: An update(Africa Criminal Justice Reform, 2019) Muntingh, LukasBroadly speaking, universal suffrage refers to the rights conferred on adult citizens of a country to vote, however, there are always restrictions to a greater or lesser degree on who can vote in every democratic political system. Children are usually excluded as are people certified to be of unsound mind. In the twentieth century universal suffrage was slowly extended to include previously excluded groups of people (i.e. black/Africans as well as women). The debate regarding the extension of the right to vote to other marginalized groups in society, such as people with mental disabilities and prisoners, is on-going. For example, US senator Bernie Sanders recently proposed extending the right to vote to all prisoners resulting in fierce criticism across the political spectrum. Proponents of the extension of voting rights to prisoners rely on international, regional as well as domestic human rights standards recognising political participation as a fundamental human right.Item A Societal Responsibility : The role of civil society organisations in prisoner support, rehabilitation and reintegration(Institute for Security Studies and the Community Law Centre, University of the Western Cape, 2008) Muntingh, LukasCivil society organisations play a key role in assisting prisoners and ex-prisoners to reintegrate into society and may at present render the bulk of such services. It is especially in respect of post-release support services that non-governmental organisations play a critical role as the Department of Correctional Services does not have a strong focus on this aspect of reintegration work. The type of services and activities that civil society organisations engage in has not been documented on a national level. There is thus a need to describe the types of prisoner support and offender reintegration programmes rendered by civil society organisations in South Africa based on up-to-date fieldwork. A survey was conducted of 21 organisations working in the off ender reintegration and prisoner support field. This paper presents an analysis of the results which are based on the views of practitioners working in these organisations.Item The socio-economic impact of pre-trial detention in Kenya, Mozambique and Zambia(Springer Verlag, 2018) Muntingh, Lukas; Redpath, JeanThe 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.Item The Socio-Economic Impact of Pre-Trial Detention in Kenya, Mozambique and Zambia(Open Society Initiative for Southern Africa, 2016) Muntingh, Lukas; Redpath, JeanThe project was informed by an understanding of how socio-economic rights intersect with fair trial rights. The nature of the obligations on states, as set out in instruments such as the International Covenant on Economic, Social and Cultural Rights (ICESCR), are such that states should ‘respect’, ‘protect’ and ‘promote’ these socio-economic rights. The duty to respect entails an obligation not to interfere with the resources of individuals; their freedom to find a job; nor their freedom to take necessary action; and to use their resources to satisfy needs. Fair trial rights require inter alia non-arbitrary arrests; that the decision to detain is undertaken by a judicial officer; and that trial or release occurs within a reasonable time. In short, persons awaiting trial should not as a general rule be detained in custody. Socioeconomic rights intersecting with fair trial rights, essentially means that criminal procedural laws and practices must be designed and implemented in such a way as to ensure that the impact of interference with socio-economic rights on all persons, is minimised. Thus detention of an accused should only occur when absolutely necessary and for the shortest possible duration.Item Solitary Confinement - A review of the legal framework and practice in five African countries(Dullah Omar Institute, 2018) Petersen, Kristen; Mahomed, Safeeya; Muntingh, Lukas; Lorizzo, TinaThe 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. It has been remarked that ‘The Rules are reflective of an international community engaging with the many challenges faced by those deprived of their liberty.’