Browsing by Author "Petersen, Kristen"

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    An Assessment of the National Prosecuting Authority: A Controversial Past and Recommendations for the Future
    (Dullah Omar Institute, 2017) Muntingh, Lukas; Redpath, Jean; Petersen, Kristen
    The 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.
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    Democratic policing: A conceptual framework
    (LDD - Law, Democracy & Development, 2021) Muntingh, Lukas; Faull, Andrew; Redpath, Jean; Petersen, Kristen
    Democratic 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.
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    Punished for being Poor: Evidence and Arguments for the Decriminalisation and Declassification of Petty Offences
    (Dullah Omar Institute, 2015) Muntingh, Lukas; Petersen, Kristen
    The 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.
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    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, Tina
    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. 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.’