Tough on crime and strong on human rights: The challenge for us all, pp 121-135
Author/s: Calland, Richard and Masuku, Thabani
Richard Calland and Thabani Masuku argue that being tough on crime and strong on human rights is demanded by the Constitution and possible within the constitutional jurisprudence that has emerged. Fighting crime means preventing criminals from infringing the rights of ordinary people and from undermining stability and good governance. However, this must be done within the constitutional paradigm without unjustifiably limiting the rights of criminal suspects. Hysteria against crime and the need to see that something is being done can promote the anti-rights agendas of vigilante groups. Being tough on crime, it is concluded, also requires being tough on its causes by seriously addressing socio-economic development.
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Pre-trial detention: Its impact on crime and human rights in South Africa, pp 209-220
Author/s: Steyn, Esther
Esther Steyn critically examines the restrictive 1997 law on bail and the Constitutional Court's failure to uphold the internationally recognised right of a suspect to liberty while awaiting trial. The perception that bail is granted too easily, that this contributes significantly to crime and that restrictive bail laws are therefore necessary, however, does not stand up to scrutiny. A major reason for the prevalence of crime is the poor functioning of the criminal justice system. The author concludes that the Constitutional Court, which should act as the primary protector of liberty as enshrined in the Constitution, has marred its progressive record by upholding draconian legislation. While the right to bail is not absolute and accused persons should be incarcerated where the state can provide strong reasons for this, the effect of the judgment could be to allow pre-trial detention whenever it is alleged that an accused has committed a serious offence.
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The pathological malaise within the criminal justice system: Why the courts are not seen to be delivering, pp 199-208
Author/s: Fernandez, Lovell
Lovell Fernandez argues that predictability must be restored to the justice system: potential offenders must know that if they commit a crime, there is a very strong possibility that they will be arrested, convicted and sentenced. The article outlines efforts being made to improve the functioning of the courts. A pre-trial information system has been piloted in several courts to ensure that all the information needed for a speedy trial is available. The idea of reception courts has also been mooted to deal with administrative aspects of new cases that tend to bog down court proceedings. To respond to the need for effective witness management, Citizens Advice Desks have been set up. However, many of these programmes have been donor-funded and, it is argued, the authorities must include them in future state budgets. Joint training programmes of prosecutors with police investigating officers are also urged, as well as addressing the divided accountability of prosecutors to the Department of Justice on the one hand and the National Director of Public Prosecutions on the other.
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Local capacity policing, pp 191-197
Author/s: Shearing, Clifford
Private sector security companies now routinely provide services that used to be the sole preserve of the police. Clifford Shearing argues that this is a positive development because people can choose which policing service to buy, enabling them to gain greater control over their lives. While acknowledging that the poor cannot afford private security, he counters the view that government must re-establish a monopoly on policing in order to ensure equality of access. Instead, he suggests, people should be given greater control at local level over how state resources earmarked for a particular function are spent, thus giving them more choice in allocating money to services that most effectively meet their needs. The author outlines the 'Zwelethemba model' of community-controlled peace committees who are responsible for the governance of security and are paid for their work, and notes that the South African Law Commission is currently preparing legislation that will recognise key elements of the model.
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The role of the ICD in dealing with crime and human rights within the SAPS, pp 181-190
Author/s: Salojee, Riaz
The Independent Complaints Directorate is an independent body that monitors and investigates complaints against the South African Police Service. Riaz Salojee discusses the legal framework, activities, successes and challenges that have faced the directorate and explains how he sees the ICD supporting the development of an approach to policing which is both effective and which respects human rights. While apartheid-era policing was characterised by routine abuses, the advent of democracy called for police to be impartial, fair and effective. An effective police service, the author argues, is one that is sensitive to human rights, accountable for its actions, well-resourced, highly skilled, service-oriented and au fait with the latest technology. Where invasive techniques are required, appropriate checks must be in place. However, policing is not just the responsibility of the state; every citizen has a role to play in addressing crime so that policing can move to a more comprehensive approach which addresses the root causes of crime.
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Should fighting organised crime be a priority as South Africa deals with crime and human rights, and does the need to combat crime justify extraordinary measures that may limit rights?, pp 173-180
Author/s: Redpath, Jean
Jean Redpath, who has systematically visited police stations and interviewed police officers, classifies crime as economic and violent crime. Most economic crime, in her view, is opportunistic. Violent crime is divided into five categories: 1) murder, attempted murder and assaults; 2) domestic violence; 3) gang and organised crime-related violence; 4) violence for the sake of violence, and 5) 'civil intolerance', 'inter-group violence' or 'urban terrorism'. A common complaint of the police officers interviewed was a severe lack of resources and personnel. While government has prioritised fighting organised crime, this emphasis on well-resourced high-visibility policing ignores the importance of providing sufficient resources at local level so that ordinary policemen and women can do their jobs properly.
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Irreconcilable differences? Building a human rights culture and dealing with crime in post-apartheid South Africa, pp 137-150
Author/s: Pigou, Piers
Many people, Piers Pigou argues, have very limited awareness of human rights. While many agree that crime is a symptom of social inequality, a number of myths have arisen a» for example, that the Constitution contributes to crime because it protects criminals or that capital punishment will reduce crime. Many people, Piers Pigou argues, have very limited awareness of human rights. While many agree that crime is a symptom of social inequality, a number of myths have arisen a» for example, that the Constitution contributes to crime because it protects criminals or that capital punishment will reduce crime. Politicians have contributed to a climate hostile to human rights by feeding some of these myths. Public confidence in the police is very low and vigilante action is on the increase. But even though strict adherence to the regulatory and rights framework may be difficult, the author argues, it is designed to provide protection against abuse, not to make policing more difficult.
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Fighting crime while promoting human rights in the police: The court and the prisons in South Africa, pp 151-172
Author/s: Sarkin, Jeremy
Jeremy Sarkin argues that the high levels of crime in South Africa undermine good governance and have a negative impact on the economy and on human rights, The problem is exacerbated by a poorly functioning criminal justice system. However, government has taken steps to address many of the problems. The author stresses the importance of government remaining focused, as it is constitutionally obliged to do, on the protection of human rights. Bowing to public pressure to 'get tough on crime', it is argued, will not reduce the level of crime; it will undermine the development of a human rights culture which is the foundation of a democratic and stable society.
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FORUM CONTRIBUTION: A new constitution and a bill of rights, pp 115-120
Author/s: Langa, Pius
Deputy Chief Justice Pius Langa argues that, while the advent of the constitutional era is very significant, the Constitution is only a guideline for nurturing the life of the nation. With rights go responsibilities. Being able to exercise our rights also requires us to respect the rights of others. The courts, legislature and executive can create the space for citizens to engage with the project of building a new society, but it is up to the citizens to work with others to create the kind of society in which all the people are able to maximise their personal potential and fully enjoy their rights
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