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 African Commission’s Guidelines on Pre-trial Detention: Implications for Angola and Mozambique(Community Law Centre, University of the Western Cape, 2014) Lorizzo, TinaOn 8 May 2014, in Luanda (Angola), the African Commission on Human and Peoples’ Rights (ACHPR) adopted the Guidelines on the Use and Conditions of Arrest, Police Custody and Pre-trial Detention in Africa (hereafter the Guidelines). The Guidelines represent an important milestone in addressing three of the most vulnerable phases of the criminal justice process faced in African countries: arrest, police custody and pretrial detention. The Guidelines add to the body of regional soft law (e.g. the Robben Island Guidelines) and seek to guide states on the rights of arrested and detained persons. In this regard African states face significant implementation challenges.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 appointment and dismissal of the NDPP: Instability since 1998(Dullah Omar Institute, 2018) Africa Criminal Justice ReformThe position of National Director of Public Prosecutions (NDPP) has emerged since 1998 as one of the most unstable positions in government. This can to a large degree t be ascribed to how appointments and dismissals are made. Instability at the top of the NPA and several acting NDPPs gives credence to claims of political interference. Not one NDPP has served the full term of ten years. Since 1998, when the National Prosecuting Authority (NPA) came into being, there have been five permanently appointed NDPP’s and three acting NDPPs. The longest serving NDPP was Bulelani Ngcuka who was in the position for 6 years, followed by Mokothedi Mpshe in an acting capacity at nearly three years and Vusi Pikoli for just more than two and half years.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 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 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.Item The changing face of life imprisonment in South Africa(Civil Society Prison Reform Initiative, 2008) Jamil Ddamulira, MujuziThis article investigates the meaning and use of life imprisonment in South Africa in four major legal historical eras: life imprisonment at the time when the death penalty was still lawful in South Africa (including life imprisonment as early as 1906); life imprisonment in the immediate aftermath of the abolition of the death penalty (1994-1998); life imprisonment following the introduction of the minimum sentences legislation (1998-2007); and life imprisonment after December 2007, when the sentencing jurisdiction of the regional courts was extended to include life imprisonment. In assessing the meaning and use of life imprisonment during these four historical periods, the report looks at the law in place at the time and how courts interpreted it to justify the imposition of life imprisonment. It also looks at the relevant statistics to provide and overview of the extent to which life imprisonment was imposed. The report illustrates that despite its evident simplicity, the meaning of life imprisonment in South Africa has changed over time and particularly in the last 20 years. These changes, especially since the early 1990s, were the result of two macro political forces. On the one hand was the democratisation of South Africa with the enactment of a new constitution, with a progressive Bill of Rights and protection of the right to life and provision for the right not to be subjected inhumane and degrading punishment or treatment. Pulling in the other direction was government’s reaction to crime, characterised by its over-emphasis on punishment and retribution. By 31 March 2008, South Africa’s prisons were home to 8092 prisoners serving life sentences. In the last 10 years South African courts sentenced more people to life imprisonment than they had done in the previous century. The meaning of life imprisonment has also changed drastically during this period. The increase in the number of prisoners serving life and the consequent changes in the meaning of life imprisonment did not happen by themselves, and this issue will be interrogated in this article.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 The Child Justice Act: a detailed consideration of section 68 as a point of departure with respect to the sentencing of young offenders(Potchefstroom Electronic Law Journal, 2012) Stephan, TerblancheThe Child Justice Act 75 of 2008 establishes a criminal justice system for child accused, separate from the criminal justice system which continues to apply for adult accused in South Africa. The Act aims to keep children out of detention and away from the formal criminal justice system, mainly through diversion. When these interventions would be inadequate or unsuccessful, the Act provides for child offenders to the tried and sentenced in child justice courts. Until now there has been little discussion of the details of the provisions dealing with sentencing. Sentencing in a child justice court is regulated by chapter 10 of the Act and section 68 is the first section in this chapter. This section effectively amounts to the “jurisdictional” provision of the new child sentencing system: it not only mandates child justice courts to impose their sentences in terms of the Act, but also provides the first set of boundaries (or the first part of the framework) within which sentencing should take place. Despite its brevity, section 68 is not without interpretative challenges. Of course, it has to be interpreted within the context of the entire Act. Explaining this context is the first function of this article. The various aspects of section 68 are further critically explored and discussed.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 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 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 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(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(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 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 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(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.