Liberia Publications

A sort criterion
Recommendations for reform of the National Prosecuting Authority
Author: Jean
Published: Nov 11, 2020

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.

Alternativas à prisão em Moçambique: A implementação do trabalho socialmente útil
Author: Jean
Published: Oct 07, 2020

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.

Alternatives to imprisonment in Mozambique: The implementation of community service orders
Author: Jean
Published: Oct 07, 2020

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.

Recommendations for reform of the National Prosecuting Authority
Author: Jean
Published: Aug 31, 2020

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.

Fact Sheet 17: The right of prisoners to vote in Africa (Updated)
Author: Janelle
Published: Jul 13, 2020

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.

Resources on South African Criminal Justice System: Prisons
Author: Janelle
Published: Mar 11, 2020

Africa Criminal Justice Reform (ACJR) has produced research on the South African criminal justice system relating to prisons. This resource list contains summaries and links of work that we have produced in recent years on the topic of prisons.

Resources on South African Criminal Justice System: Police
Author: Janelle
Published: Mar 11, 2020

Africa Criminal Justice Reform (ACJR) has produced research on the South African criminal justice system relating to the police. This resource list contains summaries and links of work that we have produced in recent years on the topic of police.

Powers of arrest curtailed by Constitutional Council of Mozambique – the impact of the 2013 decision
Author: Jean
Published: Sep 02, 2019

This report assesses the consequences of the 2013-decision of the Constitutional Council of Mozambique, which limits to judges the authority to order pre-trial detention for cases falling outside of flagrante delito (where the accused is caught in the act of committing the offence). Although the decision represents a progressive change in the jurisprudence of Mozambique’s highest court, judges, prosecutors and police encounter operational challenges in implementing the decision, in a country with a population of more than 28 million people. In 2017, there were 344 judges, 18 of which were Judges of Criminal Instruction, responsible for issuing warrants of arrest for cases outside of flagrante delito. Concerns were raised in relation to lack of financial and logistical resources for prosecutors, which are mandated to monitor the legality of police detention. As the criminal justice system is under-resourced, police officials have to wait for a judge to issue a warrant of arrest for cases falling outside of flagrante delito. Despite the decision, unlawful arrests continue to happen although there is anecdotal evidence that these have decreased. The 2013-decision has clarified who has the power to authorise arrest in these cases, but the situation is far from being resolved.

ACJR Submission to the Zondo Commission on the National Prosecuting Authority
Author: Jean
Published: Jun 24, 2019

"The current legislation, structure, policies and operations of the NPA result in the outcome that few persons are convicted of serious crimes, and that state officials, in particular, are more likely to escape prosecution. That is, state officials experience impunity for rights violations and for offences related to state capture."

Liberty not the only loss - The Socio-Economic Impact of Remand Detention in the Western Cape
Author: Jean
Published: May 28, 2019

The evidence in this study suggests that the criminal procedural system metes out a disproportionate ‘punishment’ in the form of infringement of the socio-economic rights of the families of detainees, regardless of guilt or innocence.The study recommends a number of interventions to seek to ensure that remand detention is used only for short durations or when absolutely necessary, thereby minimising socio-economic harms.

Rights Behind Bars: A Study of Prison Conditions in Zimbabwe
Author: Jean
Published: May 09, 2019

The primary objectives of this study were to assess the compliance of selected prisons with international and domestic standards on conditions of detention; to consolidate the findings from the prison monitoring project conducted by the Zimbabwe Human Rights NGO Forum (the Forum) and its membership; to make recommendations for reforms and propose key priority areas. This was from 2018 was publicized in May 2019.

Fact Sheet 12: The independence and structure of the prosecuting authority
Author: Jean
Published: Feb 19, 2019

This factsheet maps the history and structure of the prosecution authority before and after 1994 showing that the independence of the prosecution authority oscillated between extreme points with reference to the relationship with the executive. The historical developments of the prosecution authority must be seen against the devolution and centralisation of prosecutorial power and its independence, or not, from political control and interference.

Fact Sheet 14: Visible policing: Clarifying concepts and expectations
Author: Jean
Published: Feb 19, 2019

This fact sheet unpacks the idea of visible policing in South Africa. In so doing, it highlights that the concept should be engaged with critically. It suggests that the SAPS sector policing philosophy, which is problem-oriented and data-led, should be the focus of the Visible Policing programme.

Fact Sheet 9: Failing to discipline in SAPS
Author: Jean
Published: Feb 19, 2019

This fact sheet looks at accountability in SAPS by firstly outlining the accountability framework with reference to the Constitution. Quantitative data is presented on disciplinary code enforcement in SAPS and comparisons are drawn with the Department of Correctional Services (DCS). The relationship between the Independent Police Investigative Directorate (IPID) and the National Prosecuting Authority (NPA) as two important players in the accountability architecture is considered.

Discussion Document: NPA Accountability, trust and public interest
Author: Jean
Published: Feb 19, 2019

This discussion document deals with three key concepts associated with the National Prosecuting Authority (NPA) and its relation to the public, namely accountability, public interest and trust. It is suggested that for the NPA to be regarded as a legitimate institution it needs to enjoy trust and in order to enjoy such trust, it needs to be seen and perceived to act in the public interest in an accountable manner.

Fact Sheet 7: The appointment and dismissal of the NDPP
Author: Jean
Published: Oct 24, 2018

The recent announcement by President Ramaphosa to call together a committee of experts to assist him to appoint a new National Director of Public Prosecutions (NDPP) is unprecedented, and an extremely important move in the right direction towards greater transparency and accountability at South Africa's National Prosecuting Authority. An earlier report by ACJR dealt in detail with the problems at the NPA and, amongst others, recommended that the appointment procedure of the NDPP be reformed. In this fact sheet the current procedure for the appointment and dismissal of the NDPP is set out and problems identified. This should inform debate and stimulate ideas on the reforms we would like to see.

Solitary Confinement - A review of the legal framework and practice in five African countries
Author: Jean
Published: Oct 23, 2018

This report investigates the legal frameworks of five African countries (Kenya Malawi, Mozambique, South Africa and Zambia) as they relate to the use of solitary confinement. The effect of long periods of solitary confinement have been shown to have severe impacts on a prisoner’s mental and physical well-being. The UN Human Rights Committee (UNHRC) has noted that the use of prolonged solitary confinement may amount to torture or to cruel, inhuman or degrading treatment or punishment, in breach of Article 7 of the International Covenant on Civil and Political Rights (ICCPR). In December 2015, the UN General Assembly adopted the revised United Nations Standard Minimum Rules for the Treatment of Prisoners, also known as the Nelson Mandela Rules (‘2015 UNSMR’). The 2015 UNSMR addresses a key shortcoming in the protection and treatment of people in places of detention, as it, for the first time, sets down norms and limitations on the use of solitary confinement. The report concludes that there are major areas of non-compliance in each of the countries and this requires urgent attention.

S v Frederick & S v Maxhongo
Author: Jean
Published: Jul 11, 2018

S v Frederick & S v Maxhongo, Judgment on Review 11 July 2018, Review 18531 and Review 18532. The Court asked that in cases where there is a long history of drug use and abuse, the prosecution should rather request a probation officer’s report to investigate the accused’s circumstances and the desirability or not of prosecution.

ACJR Submission on the Independent Police Investigative Directorate Amendment Bill (2018)
Author: Jean
Published: Jun 28, 2018

It is our submission that the issue to be addressed, namely the independence of IPID also relates to the relationship between IPID and the National Prosecuting Authority (NPA) and this submission focuses on that relationship as described in section 7(4-5) of the IPID Act. It will be submitted below that the effectiveness and impact of IPID is essentially at the mercy of the NPA.

Journal article: Modest beginnings, high hopes: The Western Cape Police Ombudsman
Author: Lukas
Published: Jun 01, 2018

In 2013 the Western Cape legislature passed the Western Cape Community Safety Act (WCCSA) to improve monitoring of and oversight over the police. One creation of the WCCSA is the Western Cape Police Ombudsman, which became operational in 2015. This article reviews its history and context, as well as results from its first year. The Police Ombudsman, the only one in the country, must be seen as one of the results of efforts by the opposition-held province to carve out more powers in the narrowly defined constitutional space, and in so doing to exercise more effective oversight and monitoring of police performance, and improve police–community relations. The Ombudsman must also be seen against the backdrop of poor police–community relations in Cape Town and the subsequent establishment of a provincial commission of inquiry into the problem, a move that was opposed by the national government, contesting its constitutionality. Results from the Ombudsman’s first 18 months in operation are modest, but there are promising signs. Nonetheless, the office is small and it did not do itself any favours by not complying with its legally mandated reporting requirements.

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