ACJR Publications

This section contains ACJR publications and those of CSPRI (Civil Society Prison Reform Initiative), its predecessor.
Prisoners' Rights Litigation in South Africa Since 1994, a Critical Evaluation (Research Paper No. 3)
Author: hannes
Published: Nov 11, 2003

Prisoner's rights litigators face serious challenges when they take on the Department of Correctional Services. There is a lack of respect for the Rule of Law within prison services, which means existing rules are disobeyed, court orders ignored and corruption and misconduct condoned or covered up; representatives of prison services often fear taking responsibility and therefore often fail to act, passing on cases to court in an attempt to "pass the buck"; the leadership in the Department often does not know what is going on in individual prisons; the public and the newspapers have little sympathy for prisoners and there is little publicity for the plight of prisoners and consequently representatives in the prison service feel that they can get away with actions that would otherwise not be tolerated; and conditions of overcrowding in the prisons are often caused by problems in the criminal justice system and must be addressed if one wants to improve the conditions under which prisoners are kept. This means that at present litigation against the Department of Correctional Services seldom brings lasting changes in the conditions of prisoners and/or in the way prison officials and the political leadership in the Department operate. Despite these problems, prisoners' rights litigation could be a powerful weapon deployed to address the lack of respect for the Rule of Law, which lies at the heart of the problems faced by the Department. Other non-legal strategies could be used alongside litigation strategies to place ever more pressure on relevant officials and the political leadership in the Department. Such pressure would then force the prison leadership to act because inaction would become impossible.

Policy Developments in South African Correctional Services 1994 - 2002 (Research Paper no. 1)
Author: hannes
Published: Nov 11, 2003

The period 1994 to 2002 in South African Correctional Services history is reviewed in this paper and was prompted by the apparent confusion characterizing correctional policy during this period. During this period substantial policy changes were adopted, such as the privatization of prisons, but with limited debate and oversight. The paper records for historical purposes important trends and mistakes made during this period, but also serve as a clear reminder of the importance of transparent knowledge-based policy development.

Optional Protocol to the Convention against Torture and Other Cruel and Inhumane Treatment (Research Paper No. 2)
Author: hannes
Published: Nov 11, 2003

South African ratified the UN Convention Against Torture in December 1998 and played a significant role in the drafting of the Optional Protocol to the Convention against Torture (OPCAT). The UN General Assembly adopted the OPCAT in December 2002 and since February 2003 the OPCAT has been open for signature. By October 2005 there have been 48 signatures and 13 ratifications. The Protocol requires 20 ratifications to become binding on UN members. The OPCAT is a powerful international human rights instrument as it provides for national and international visiting mechanisms to all places where people are detained. This includes prisons, police cells, immigration centres, and psychiatric hospitals, amongst others. Regular visits to such facilities have been proven as an effective measure against torture and the ill treatment of people deprived of their liberty. This paper investigate the implication for South Africa should it sign and ratify the OPCAT.

A Review of Civilian Oversight over Correctional Services in the Last Decade (Research Paper No. 4)
Author: hannes
Published: Nov 11, 2003

The restricted and hidden nature of the prison regime was dramatically apparent in apartheid South Africa, where prisons shunned outside scrutiny and engagement in all correctional matters. The correctional system was an inherent part of the political apparatus that upheld the apartheid state. Prisoners were segregated according to race, and the staff hierarchy echoed similar racial lines. The adoption of the Bill of Rights in firstly the interim and then the final Constitution in 1993 and 1996 finally established the right of prisoners to be treated with human dignity and set out the mandatory minimum rights of people deprived of their liberty and those held in custody. These guideline principles, later amplified in the Correctional Services Act of 1998, seek to define how the Department of Correctional Services (DCS) should implement its correctional mandate in keeping people in custody. Recognising the importance of accountability and oversight mechanisms in respect of public institutions, the Constitution created vehicles for civilian oversight. Mechanisms were also created to focus exclusively on prisons. A decade after this transition, it is timeous to evaluate how these mechanisms are functioning, and to what extent they are serving their envisaged purpose.

Fact Sheet 18: A guide to reading government annual reports
Author: Janelle
Published:

Government departments use annual reports to report on their performance against set objectives stated in their Annual Performance Plans (APP) and the Medium-Term Expenditure Frameworks (MTEF). Annual reports also serve the function of promoting accountability and transparency which should improve trust and confidence in government’s ability to deliver on services. It is especially for civil society organisations that annual reports can be invaluable when holding government accountable. There are, however, certain challenges that readers of annual reports encounter, most notably the fact that annual reports are generally long and complex. Furthermore, the issue of erroneous and intermittent reporting is cause of concern when it comes to analysing an annual report. This fact sheet serves as a guide on how to read government department annual reports and highlights key issues to consider.

Fact Sheets
  • Fact Sheet 17: The right of prisoners to vote in Africa (Updated)
    This fact-sheet provides a brief update on the right of prisoners to vote in Afr ... This fact-sheet provides a brief update on the right of prisoners to vote in Africa. There have been substantive advances and breakthroughs in the promotion of this right as courts in Ghana, Kenya, Nigeria, South Africa, Zambia and most recently in Uganda have granted prisoners the right to vote. In Mozambique, the Ombudsman has made a recommendation that measures be put in place to allow prisoners to vote in future elections. The enfranchisement of prisoners is a positive step in the promotion of their basic human rights, it is therefore important that countries on the continent that are still lagging behind consider the above examples and follow suit.
    Jul 13, 2020
  • Fact Sheet 25: Arrest without a warrant in Malawi
    This fact sheet deals with arrest without a warrant in Malawi. Currently in Mala ... This fact sheet deals with arrest without a warrant in Malawi. Currently in Malawi there remain laws on the statutes that have not been tested against constitutional requirements resulting in all likelihood in arrests that are not compliant with the Constitution.
    May 12, 2020
  • Fact Sheet 24: Arrest without a warrant in Kenya
    This fact sheet focuses on arrest without a warrant in Kenya. Currently in Kenya ... This fact sheet focuses on arrest without a warrant in Kenya. Currently in Kenya the situation has been complicated by the legislative powers granted to the counties and some have used this opportunity to expand policing powers.
    May 12, 2020
Reports & Articles
  • Alternativas à prisão em Moçambique: A implementação do trabalho socialmente útil
    Em Dezembro de 2020 entrarão em vigor em Moçambique o Código Penal revisto, o ... Em Dezembro de 2020 entrarão em vigor em Moçambique o Código Penal revisto, o novo Código de Processo Penal e o Código de Execução das Penas. Embora serão introduzidas mudanças substanciais relacionadas com as alternativas à prisão e especificamente ao trabalho socialmente útil (TSU), este relatório avalia a implementação do TSU em Moçambique entre 2015 e 2019. Examina o seu uso pelos tribunais e a implementação pelo Serviço Nacional Penitenciário (SERNAP). As conclusões apontam para vários problemas de implementação, como o seu uso pouco frequente pelos tribunais, bem como desafios na monitoria dos infractores pelo Serviço de Penas Alternativas à Pena de Prisão (SPAPP). Vários problemas sistémicos foram encontrados, como falta de gestão, directrizes processuais e formações e falta de recursos materiais e financeiros necessários para a implementação efectiva do TSU. Independentemente de uma nova estrutura legal, é evidente que será necessário retirar lições valiosas do período em análise. Nas conclusões, o relatório aponta algumas recomendações para abordar as deficiências.
    Oct 07, 2020
  • Alternatives to imprisonment in Mozambique: The implementation of community service orders
    In December 2020 a revised Penal Code and new Criminal Procedure Code and Code o ... In December 2020 a revised Penal Code and new Criminal Procedure Code and Code on the Implementation of Penalties will enter into force in Mozambique. While substantial changes related to alternatives to imprisonment and specifically to community service will be introduced, this report assesses the implementation of community service orders (CSO) in Mozambique between 2015 and 2019. It examines its use by the courts and implementation by the Department for Corrections. The findings point to several implementation problems, such as its infrequent if not rare use by the courts as well as challenges in monitoring offenders by the Service for Alternatives to Imprisonment. A number of systemic problems were found, such as the lack of management, procedural guidelines, and training; understaffing, and a serious lack of material and financial resources necessary for the effective implementation of CSO. Regardless of a new legal framework, it is submitted that valuable lessons need to be taken from the period under review. Based on the findings, the report concludes with recommendations to address the shortcomings.
    Oct 07, 2020
  • Recommendations for reform of the National Prosecuting Authority
    Following from previous work, this report looks at seven areas of reform for the ... Following from previous work, this report looks at seven areas of reform for the National Prosecuting Authority (NPA). By its own admission the NPA is facing a long list of challenges, internally and externally. This report proposes seven areas of reform that can over the short to medium term, if followed, make a substantial and constructive contribution to rebuilding trust in the NPA. The seven areas are: • the appointment of the NDPP and other senior officials • the dismissal of the NDPP • the prosecution policy directives • referrals from other agencies • informal mediation • structuring the clusters of the NPA • general oversight. An unavoidable conclusion is that law reform is needed since the current legal framework enabled the hollowing-out and misuse of the NPA.
    Aug 21, 2020
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