Liberia Publications

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.

"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."

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.

This fact-sheet provides a brief update on the right of prisoners to vote in Africa. It is evident that there have been substantive advances and breakthroughs in the promotion of this right in Africa, with prisoners in Ghana, Kenya, Nigeria and South Africa being able to vote.

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.

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.

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.

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.

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.

Crianças em Conflito com a Lei em Moçambique

Although this first edition published in 2015, this became available in electronic form in January 2019.

The Equality Court in Cape Town declares unfair discrimination in the allocation of police resources in the Western Cape.

This fact sheet considers the performance of the National Prosecuting Authority since inception. The data suggests increases in investment have not brought commensurate returns.

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

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, 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.

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.

In late May 2018 the Department of Correctional Services in South Africa hosted a roundtable to discuss its “Position paper: a revised parole system for South Africa”. Submissions were invited prior to the round table and ACJR made a submission critical of the position paper. Key problems identified, amongst others, are: the lack of quantitative data in the position paper making it difficult to formulate policy in the absence of fact; the large number of prisoners serving life imprisonment received scant attention; and that proposed separate legislation to govern parole may not solve problems in the current system.

Since 2009 the Criminal Procedure Act provides for the expungement of certain criminal records depending on the sentence that was imposed. This fact sheet describes the requirements and process in relation to adults.

The Child Justice Act since 2008 makes provision for the expungement of criminal records for offences committed by a child. Eligibility for expungement depends on the offence that was committed and certain offences cannot be expunged. This fact sheet describes the requirements and the process.

There was a miscarriage of justice on several grounds, namely the denial of the accused’s right to a properly qualified interpreter, the refusal to allow his son to testify, and the negative bias of the presiding officer. The accused was not afforded a fair trial and his murder conviction therefore cannot stand.

This article assesses developments in the prevention and eradication of torture in Mozambique. Despite several positive efforts and advances made, acts of torture and other cruel, inhuman and degrading treatment and punishment are still perpetrated by members of the security forces, especially police officials, often with impunity. The culture of impunity for such serious offences is a direct threat to human rights and the rule of law in the country and seriously compromises the country’s public integrity. Two issues are of deep concern and require more efforts by the state, namely: a) addressing impunity and ensuring prompt and impartial investigations of all allegations of torture and other ill-treatment, and b) protecting victims and providing the necessary restitution, rehabilitation and compensation. In conclusion we provide recommendations on how to improve the situation. These are: engaging in outreach and advocacy; improving and strengthening the national legislative framework; strengthening institutions; developing mechanisms for the reporting of torture: monitoring and evaluating existing reporting mechanisms; improving conditions of detention; establishing effective oversight over places of detention, and by maintaining records to improve transparency and availability of information.

The publication of this report is intended to draw attention to the absence of the State Report and place pressure on the government to comply with its reporting obligations and other substantive obligations as required by the ICCPR.

Inmates' rights in South Africa

In 2017, the Principles on the Decriminalisation of Petty Offences in Africa were adopted by the African Commission, becoming the latest development in a broader regional effort to articulate standards for acceptable human rights practices, specifically concerning matters of access to justice.These Principles seek to guide States on measures that can be taken to enhance human rights protections at the critical intersection of poverty and criminal justice.

The presumed link between the rule of law and development suggests that an operational justice system is key to development. The research sought to understand and quantify how the decision to detain an accused person affects his or her socio-economic situation. Data was collected in Kenya, Mozambique and Zambia. The findings suggest that the use of the coercive power of the state exercised through the deprivation of an individual’s liberty has serious socio-economic consequences. While detention pending trial is justifiable sometimes, we argue that it is over-used, frequently resulting in excessively long detention. The deprivation of liberty interferes with the ability of individuals to be agents of their own development, infringing on socio-economic rights of individuals and their dependents. States can justify such infringements only if their coercive power is used within the ambit of democratic and rights-respecting laws complying with human rights standards. Access the journal article here: https://link.springer.com/article/10.1007/s40803-017-0062-1

Report on the Symposium on Legal and Administrative Reforms to address Congestion in Correctional Facilities in Lusaka, Zambia between the 13th and 14th of September 2017, by the Programme for Legal Empowerment and Enhanced Justice Delivery (PLEED).