Browsing by Author "Redpath, Jean"
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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 Constructing pre-trial detention indicators for African contexts: Problems and proposals(Dullah Omar Institute, 2015) Redpath, JeanThis discussion paper arose from the conundrum faced by a paralegal organisation working in an African country in demonstrating both that pre-trial detention is a problem in that country, and that their work has an impact on the problem. The indicators currently employed by states and organisations relating to pre-trial detention have a range of shortcomings in the African context. These shortcomings need to be understood in interpreting indicator values. Indicators should be adjusted, and additional indicators should be incorporated into data collection practice in order to provide a more complete and accurate picture of pre-trial detention in Africa. This paper is intended as a starting point for a broader discussion of the pitfalls and possibilities for the development of indicators in relation to pre-trial detention in Africa.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 Parallel Policies: Policies relevant to child safety(Centre for Justice and Crime Prevention, 2007) Redpath, JeanThe Centre for Justice and Crime Prevention’s 2005 National Youth Victimisation Study indicated the need to explore existing policy impacting on children from a social crime prevention perspective within a rights-based framework. This policy analysis was commissioned to undertake that analysis. A social crime prevention perspective is one which views crime as a social problem, stemming from the socio-economic environment and facilitated by through the situation in which crime occurs. The risk factors associated with both victimisation and offending of children are such that policy in the poverty alleviation, health, education and criminal justice sectors are relevant to social crime prevention. Poverty is widespread among children. The current social grants framework does not appear equal to the realities of poverty in South Africa. Problems include the exclusion of children over 14 from child support, the overburdening of the foster system as a result of pressure driven by HIV/Aids, and limitations on the availability of the care dependency grant. The overall health of children is poor and appears to be deteriorating. While free primary health care is available, access in terms of transport, medicines and availability of medical staff is problematical. Preventative care may have been neglected in the drive to provide free primary care. There is a lack of recognition that health is influenced by such factors as housing, access to water and sanitation. There is also no single overarching child health policy. Education funding policy may be having the unintended consequences of exclusions, school drop-outs, and trapping poor children in the weakest, poorest schools. Criminal justice and child protection policy have been hampered by a swing to a ‘tough on crime’ approach, which may be exacerbating the social conditions that lead to crime. Children as victims are not yet adequately protected in the system and they are being imprisoned for longer periods, despite imprisonment being ‘a measure of last resort’. Given the matrix of social risk factors South Africa’s children are exposed to – poverty, disrupted families, poor health conditions, inadequate schooling – it is no surprise that children are at risk from both victimisation and offending perspectives. The current policy framework falls short of meeting the challenges posed by these risk factors. There is much to be done from a social crime prevention perspective.Item Pocket Guide to Arrest and Detention in Malawi, Lilongwe(Paralegal Advisory Services Institute (PASI), Catholic Commission for Justice and Peace (CCJP), Centre for Human Rights and Rehabilitation (CHRR), the Centre for Human Rights Education, Advice and Assistance (CHREAA), and the Community Law Centre (CLC) of the University of the Western Cape, 2015) Redpath, JeanThis guide is for anyone who needs a quick reference to the laws around arrest and detention in Malawi. This may include police, court clerks, prosecutors, magistrates, paralegals and detainees. First there is an orientation to the criminal justice system and a diagram and summary of what happens in Malawi around arrest and detention, page 1. The main part of the book focuses on what the Criminal Procedure and Evidence Code says. It starts with when and how arrest can happen and possibilities for release at the police station, page 4. This is followed by a section on how things happen in court and how people can be released by the court, page 12. There are special sections on the arrest and release of children, pages 7 and 11. There is also a list of children’s offences that are considered serious, see page 34, and there is a section on the maximum times allowed for the commencement and duration of trial, page 16. The rights of every person in Malawi, as well as the specific rights of those who have been arrested and detained are described, pages 18 - 21. The meanings of legal words can be found in the glossary near the back, page 22. At the very back is a long list of all the offences for which someone can be arrested in Malawi. These offences are divided into those that need a warrant for arrest, and those that do not, page 26.Item Race, class and restorative justice: achilles heel, glass ceiling or crowning glory(Juta Law, 2004) Sloth-Nielsen, Julia; Gallinetti, Jacqui; Redpath, JeanThis article reports on a research project aimed at assessing the impact of race and class disparity in restorative justice processes in South Africa. It was conducted against the backdrop of the inclusion of family group conferencing and restorative justice policy in the Child Justice Bill 49-2002 and in various governmentally supported initiatives. All known facilitators who had convened family group conferences in the preceding year were requested to complete a questionnaire and to report on specific cases in which a family group conference had been held where victims and offenders were from different class or racial backgrounds. Six of the returned case studies are detailed in the article. The authors conclude that, while inter-race and inter±class restorative processes occur less frequently than might be predicted, the fact of these differences is not necessarily an impediment to success. However, numerous other factors, including language differences and transport difficulties, can limit the effectiveness of this method of resolution of criminal justice disputes.Item Reaching A Verdict: The impact of minimum sentencing(South African Crime Quarterly, 2007) Redpath, Jean; O’Donovan, MichaelThe so-called ‘temporary’ minimum sentencing legislation introduced into South African law in 1998 is still in place. The legislation was passed largely in response to high crime rates at the time and the perceived leniency of the courts, and prescribes minimum sentences ranging from five years’ to life imprisonment for a variety of offences (including murder and rape and a range of other crimes, some of which are non-violent). Given the current furore over crime, it is highly likely that in April this year the legislation will be renewed for another year. But what has the impact of the legislation been and what legislative changes should be considered?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 South Africa's Heart of Darkness: Sex crimes and child offenders: some trends(South African Crime Quarterly, 2003) Redpath, JeanIt is a source of great concern that the number of sexual offences committed by children is apparently on the increase. Given that the Child Justice Bill provides for a separate criminal justice process for children, and stricter provisions for child sex offenders, this article explores some of the relevant trends in this regard. The management of child sex offenders appears inconsistent, and very often no appropriate intervention is made at all. Calculating the actual incidence of child sex offenders is difficult, but some data suggests that children might be responsible for a significant proportion of sexual crimes committed against other children.Item 'Unconscionable and irrational': SAPS human resource allocation. South African Crime(Institute for Security Studies (ISS), 2015) Redpath, Jean; Nagia-Luddy, FairouzThe Khayelitsha Commission revealed that areas that are predominantly populated by people who are poor and black are systematically allocated only a small fraction of the average per capita allocation of police personnel in the Western Cape. These areas also suffer among the highest rates of murder and serious violent crime in the province. The allocation of human resources to policing impinges on various constitutional rights. Given the inequity and irrationality apparent in the allocation of police personnel, the Khayelitsha Commission recommended that this method be urgently revised. This article reviews the evidence heard on the allocations and the method currently used to allocate police personnel, suggests an alternative method, and calls on the government to heed the recommendation of the Khayelitsha Commission that the state urgently revise its method of allocation of policing resources.Item Unconscionable and irrational: SAPS human resource allocation(South African Crime Quarterly, 2015) Redpath, Jean; Nagia-Luddy, FairouzThe Khayelitsha Commission revealed that areas that are predominantly populated by people who are poor and black are systematically allocated only a small fraction of the average per capita allocation of police personnel in the Western Cape. These areas also suffer among the highest rates of murder and serious violent crime in the province. The allocation of human resources to policing impinges on various constitutional rights. Given the inequity and irrationality apparent in the allocation of police personnel, the Khayelitsha Commission recommended that this method be urgently revised. This article reviews the evidence heard on the allocations and the method currently used to allocate police personnel, suggests an alternative method, and calls on the government to heed the recommendation of the Khayelitsha Commission that the state urgently revise its method of allocation of policing resources.Item Unsustainable and unjust: Criminal justice policy and remand detention since 1994(Institute for Security Studies (ISS), 2014) Redpath, JeanThe 'tough on crime' approach embodied in bail and sentencing law has had a profound impact on the trends around remand detention, including prison overcrowding of such an extent that it is estimated to have contributed to an additional 8 500 natural deaths in custody. Ultimately the policies have led, in practice, to an 'Alice in Wonderland' effect: fewer people are being tried and sentenced, while more than ever are denied their freedom without ever being tried in a court of law.