Civil Society Prison Reform
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The Civil Society Prison Reform Initiative, is a research and advocacy project focussing on prisons and places of confinement in the African region, with the aim of furthering constitutional and human rights imperatives within these settings.
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Item The death penalty in the Cape Provincial Division: 1986-1988(South African Journal on Human Rights, 1989) Julia, Sloth-Nielsen; Christina, MurrayThis article presents the data that we collected in four tables. These are explained in the first section below. The second part of the article examines three issues that emerge from the data. First, we note the disparity in the use of the death penalty by individual judges and argue that, in part at least, this must be attributed to the personal disposition of judges. Then we examine the figures relating to appeal procedures and conclude that the procedure should be reformed. Thirdly we comment on the reprieve process. The last section of the article suggests areas in which future research on the death penalty may fruitfully be conducted.Item Juvenile justice review 1994-1995(South African Journal of Criminal Justice, 1995) Julia, Sloth-NielsenThis review of the state of juvenile justice in South Africa introduces a new section to this journal in which annual developments relating to law and policy in the field of juvenile justice will be examined. Juvenile justice has long been a Cinderella topic in the South African legal and academic arena. Legislation relating to juvenile justice is spread out in various sections in the Criminal Procedure Act 1977, the Child Care Act, and the Correctional Services Act. No textbook for those practitioners concerned with juvenile justice has yet been published, and journal articles on aspects relating to juveniles in trouble with the law are sporadic. However, juvenile justice issues have for some years been the focus of media attention. Activists have drawn attention to the plight of children detained in prisons and police cells in particular. At an international seminar hosted by the Community Law Centre in 1993, the matter of comprehensive and radical legislative reform was mooted (see Report of the International Seminar on 'Children in Trouble with the Law', Community Law Centre, 1995). An outcome of the conference was the establishment of a drafting team, which set to work to produce innovative proposals for a new juvenile justice system. Published in November 1994 by the Drafting Consultancy as 'Juvenile Justice for South Africa: Proposals for Policy and Legislative Change' (discussed in D Pinnock, A Skelton, R Shapiro (1994) 3 SACJ 338-347), the document has inspired much of the current debate about legislative and policy reform for juveniles who come into conflict with the law.Item Juvenile justice review 1996(South African Journal of Criminal Justice, 1996) Julia, Sloth-NielsenThis review follows the 1995 review, the first in this journal, and similarly reviews the period until 30 September 1996. In the year presently under review the principle focus of juvenile justice concern was yet again the matter of pre-trial detention of arrested juveniles. The question as to where juveniles should be held pending finalization of criminal trials was the subject-matter of legislative reform in May 1996, when the Correctional Services Amendment Act 14 of 1996 was promulgated with immediate effect. The genesis and intended purport of this amendment is described in J Sloth Nielsen 'Pre-trial detention of children revisited: amending section 29 of the Correctional Services Act' (1996) 9 SACJ60. The content of the legislation allowing selected children to be incarcerated pending criminal trial will therefore not be raised again, but new practical and textual problems that have arisen with the implementation of the new section since May 1996 will be discussed.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.Item Juvenile justice review 1997(South African Journal of Criminal Justice, 1998) Julia, Sloth-NielsenThe 1997 juvenile justice review charts developments in juvenile justice law in South Africa from November 1996 until October 1997. The most significant development during 1997 was the release of the issue paper on Juvenile Justice by the South African Law Commission (Issue paper No 9, Project 106). It is expected that a discussion paper on the same topic, including comparative material and draft legislation, will be circulated for comment during 1998. Thereafter, the report of the Law Commission will be presented to the Minister of Justice, and it is expected that legislation will then be adopted.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 The Juvenile Justice Law Reform Process in South Africa: Can children's rights approach carry the day?(Quarterly Law Review, 1999) Julia, Sloth-NielsenThe impetus for juvenile justice law reform sprang originally from concern for the plight of child detainees in the dark days of apartheid in the 1980s. Children, who were at the forefront of the struggle for democratic rule and against apartheid, were liable to be detained without trial as punishment for their political activism. Many hundreds of children were detained without trial under the infamous security legislation of the time.' However, in the early 1990s, the political climate changed: detention without trial for political activity abated; a moratorium was placed on the execution of the death penalty; Nelson Mandela was released from prison; and negotiations for the transition to democracy began to get underway. Because the focus during the struggle had been to achieve basic human rights and the franchise for all South Africans, it was only after this period that attention turned from children as political detainees to securing procedural rights for children caught up in the conventional criminal justice system.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 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 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 South African prisoner's right to vote(Civil Society Prison Reform Initiative, 2004) Pierre, De VosThe South African Constitution states that every adult citizen has the right to vote. There has therefore been some legal controversy around the questions of whether it would be unconstitutional to limit the right of any prisoner to cast a vote in national elections. Before the last Parliamentary and Provincial national election in 1999 a group of prisoners challenged and order of the Electoral Commission which excluded all prisoners from voting. In the case of August and Another v Electoral Commission and Others. The Constitutional Court declared this action by the Commission invalid. However, the judgment did not authoritatively answer the question of whether prisoners could be denied the vote because the Court relied on the fact that the Commission had not acted in terms of a law of general limitation and their action could therefore not be constitutionally justified in terms of the limitation clause. When Parliament therefore amended the Electoral Act in 2003 to, in effect, deprive convicted prisoners serving sentences of imprisonment without the option of a fine of the right to participate in elections, it was predictable that the amendments would be challenged in Court. This duly happened and in Minister of Home Affairs v National Institute for Crime Prevention (NICRO) the Constitutional Court declared these amendments invalid. In this addendum I discuss the reasoning employed by the Court in this case, point out that the Court did not shy away from its Constitutional responsibilities to protect the unpopular and marginalised prison population and conclude that the case bodes well for any future prisoner’s rights litigation.Item Report on the evaluation of the Independent prison visitors (IPV) system(Civil Society Prison Reform Initiative, 2004-05) Jacqui, GallinettiThis report on the IPV system forms part of a larger study into civilian oversight of the correctional system. Saras Jagwanth has completed an evaluation of the Office of the Inspecting Judge, which should be read in conjunction with this report. Oversight of public functions, duties, and institutions can take many forms. In South Africa, the executive branch of government has great power and this must be held in check in order to make it accountable to the citizens of the country. Our Constitution provides a clear mandate to Parliament, specifically the National Assembly, to oversee the executive. There are also other bodies that play an oversight and monitoring function, namely, the so-called Chapter Nine institutions such as the South African Human Rights Commission and the Gender Commission. In addition, civil society can play an important role in monitoring the actions of the executive and the legislature and in holding both organs of state accountable.Item Surveying the prisons landscape - what the numbers tell us(Law, Democracy & Development, 2005) Lukas, MuntinghThis article will make observations and describe trends using available prison statistics in order to offer a quantitative perspective on the issues of democracy and human rights in South African prisons. In chis sense, we are asking the question: what can and should we expect of prisons in our constitutional democracy? The Correctional Services Act 1 1 of 1998 was promulgated in full in October 2004 after having been in limbo for six years. The legislative framework has now, for the first time. been brought into line with the Constitution. The key section in the Constitution in this regard is 35(2)(e), which states: Everyone who is detained, including every sentenced prisoner. has the right to conditions of detention that are consistent with human dignity, including at least exercise and the provision. at state expense, of adequate accommodation, nutrition. reading maternal and medical treatment.Item Policy and practice in South African prisons: an update(Law, Democracy & Development, 2005) Julia, Sloth-NielsenIn June 2003, the Civil Society Prison Reform Initiative (CSPRI) released a policy review concerning major developments in penal policy in South Africa since the advent of constitutionalism in 1994. This paper was widely disseminated and drew quite heated reaction from some quarters at the time. By and large the policies discussed pertained to previous corrections administrations and the fact that the new commissioner had been appointed in August 2001. This article gives an overview of the issues to which attention had been drawn in the earlier policy review and provides an update to some key changes that occurred subsequently.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 Prisoners' rights litigation in South Africa since 1994: a critical evaluation(Law, Democracy & Development, 2005) Pierre, De VosIt is a sad fact that there is often a huge gap in South Africa between the constitutional promise of a life lived with dignity and respect, on the one hand, and the actual lived reality of people who are supposed to be protected by that Constitution, on the other. The hearings at the Jali Commission of Inquiry into the system of corrections in South Africa have revealed that many prisoners' are incarcerated in circumstances that fall far short of those guaranteed them in the South African Constitution. This article is based, in part, on a number of interviews conducted with human-rights practitioners directly involved in prisoners' rights litigation in South Africa. To gather background information about the problems relating to the administration inside the Department of Correctional Services, I also interviewed other experts who have worked with the Department in the past.i- The article furthermore relies on academic writing and press reports.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 A Review of the Judicial Inspectorate of Prisons of South(Law, Democracy & Development, 2005) Jagwanth, SarasIndependent prison inspectorates and the oversight of prisons by laymen are designed to contribute to improving prison conditions and protecting the human rights of prisoners. The South African model, the Judicial Inspectorate of Prisons (hereafter: the Inspectorate), is no exception and forms part of an array of independent institutions set up to bolster and support democracy and human rights. This report examines and assesses the work carried out by the Inspectorate since its inception in 1998. The conclusion of this report IS that the Inspectorate IS making a significant contribution to improving the human rights of prisoners in South Africa, but there are several areas of its work (hat need to be improved and modified in order to maximise its effectiveness.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 Challenges to effective prison governance in South Africa(Law, Democracy & Development, 2006) Chris, TapscottIn an attempt to broaden the debate on prison reform in South Africa, this article reports on the findings of the investigation into the status of governance in selected prisons around the country. The study. which set out to identify instances of good practice in the management of prisons, was conducted in five state prisons and in two private prisons during 2004 and 2005. The state prisons were selected from a list of institutions designated 'Centres of Excellence' by the Department of Correctional Services (DCS). Although the management regimens in the two private prisons evidenced numerous instances of sound management practice (to be discussed below), the research, as a whole, was oriented to the governance of state prisons. Before proceeding to a discussion of this research, however, it is of value to briefly comment on some of the generic challenges to good governance faced by prisons worldwide.