C. Broad Directional Perspective

1. Banning of MNCs / corporations found guilty by the Economic Justice Constitutional Court from operating in South Africa, and the prosecution of their directors, as well as civil servants who collude with them in whatever way.

2. Establishing equality before the law by abolishing the bail system and allowing all accused to await trial at home, or at state places of safety.

3. Making justice a social effort by introducing a community-centred awaiting trial system involving the police, community policing forum, the family of the accused, the state social worker or psychologist, and where applicable, a religious official.

4. Establishing state places of safety for the accused who do not have a home to await trial from.

5. De-commoditise legal services by regulating it for accessibility to all.

6. Abolish the current system of high sentencing which abuses sentencing, reducing it to deterrence; and restore the punitive concept of just deserts, in collaboration with psycho-social and criminology experts

6. Make justice a social function accessible to all by establishing regulating the establishment of Magistrate Courts per municipality.

7. Transforming the legal system into a true Afrocentric social function by introducing all nine African languages into the written code of the law, thereby doing away with interpreters and for the first time, enabling Africans to access the law within their context.

8. Establishing only two types of correctional facilities, the closed and the open penitentiary.

9. Prioritise rehabilitation, correctional behaviour and counselling as the fundamental programmes of correctional services, with skills development and academic training as the resultant privileges of progress in behaviour training.

10 Establish social interaction for all prisoners at the open prison stage, such private family visits, the right to work and pay, the right to support dependants, the right to self-dignity – i.e. to procure and prepare own food, pay for own accommodation (as provided by the prison) and guarantee its upkeep.

11. Establish a pyscho-social community re-integration programme, form the open prison, from where parole is also administered.

12. Establish separate budgets for all Chapter 9 institutions, viz. The Public Protector, The South African Human Rights Commission, The Commission For Gender Equality, The Auditor General, Electoral Commission, Public Service Commission, Financial And Fiscal Commission, Pan South African Language Board, Independent Commissions Authority Of South Africa, Commission For The Promotion And Protection Of The Rights Of Cultural, Religious And Linguistic Communities. This in line with ensuring the independence of such institutions, so that they can provide proper oversight on the executive.

An Afrocentric social justice and penal system where the legal service is not commoditised but accessible to all, everyone is equal before the law and the penal system is rehabilitative.

To establish an equitable judicial system where awaiting trail is a choice for all through the abolition of the bail system and high sentencing, where sentencing is for just deserts limited individual crime, and where incarceration is for correctional and rehabilitative purposes only.

South Africa has inherited a security industry that was geared and organised towards the maintenance of White minority rule, suppression of freedom and the perpetuation of limited freedom of knowledge and choice, in order to mask the crimes of the state. Therefore the security industry was both segregated and militarised. It was also harsh and ruthless towards the Black majority, especially Africans.

Post 1994, both justice and correctional services were de-militarised, but they remained an industry in which in true capitalist fashion, profit remained an activity embedded within the system. For example within justice, the number of awaiting trail prisoners (ATP) or remand prisoners, increased as poor people could not afford bail as low as a thousand rands, while the rich exercised their right of choice as whether they wished to wait trial at home or in prison (meaning they could afford bail). Last year former Minister Ndebele said “on average, 15 to 20% of awaiting-trial detainees were in custody because they could not afford bail”. ¹

Poor people’s choice of a lawyer was also curtailed as most were forced to rely on state defence lawyers and legal aid, while the rich could select a lawyer of choice and pay accordingly. This situation has given rise to the criticism that the country’s justice is designed by the rich, for the rich. Another legacy of the post-1994 justice system has been the high-sentencing characteristic of the abolition of the death sentence, which gave sway to sentences very high sentences in order to justify deterrence. The critics refer to this as abusing sentencing by using it as a crime deterrence, an opposite of the concept of just deserts.

Regarding Correctional Services, the biggest criticism has been the ensuing overcrowding, estimated at “133% on June 8, 2013 at 02:29pm”,² resulting from thousands of ATP and long-sentences serving prisoners. The current limit for ATP or remand prisoners is two years, itself a serious problem as it is too long to keep someone behind bars before the actual court case. Overcrowding has in turn led to conditions of chaos, where rehabilitation is difficult ad slow, while gang violence thrives as inmates exploit this cramped environment which lacks adequate security and order. It is a vicious cycle of violence in which inmates are coerced into gangs in order to attain protection from both staff (warders) and fellow inmates There are also issues of repeat-offending, or recidivism, obviously resultant from lack of thoroughgoing rehabilitation programmes. Not all prisoners work, in fact “many inmates are kept locked up for 23 hours a day, with only an hour outside their cell. Some prisons go into lockdown as early as 3 or 4 p.m., leaving prisoners cooped up for 12 hours or more at a stretch”.³ Not all of them vote too. The community service leg of the department is also not fully functional, so is the parole and community re-integration process.

Background: Contrasting Pre and Post-apartheid Judiciary and Penal Systems

The resultant problems with the South African Justice and Penal Systems has been its methodology and premise, in that is has always been based on the traditional colonial systems. “In 1911, after the creation of the Union of South Africa, the Prisons and Reformatories Act consolidated earlier colonial legislation, and strict segregation was enforced throughout the system. In 1959, major new legislation governing the prison service was passed by the National Party government. The Prisons Act reiterated the rules for segregation in prisons, in line with the policy of apartheid being enforced in all parts of South African life”.⁴

Sentencing was used as punishment, not as just deserts, like the common ‘warehousing’ method applicable to most maximum security offenders. It is a type of sentencing that completely strips the inmate of any inter-personal contact, rehabilitation and post-release programme. Therefore sentences were high and prisons full to overcrowd. For example during apartheid the minimum sentence for violent crimes involving house breaking and theft (HBT), robbery with aggravated circumstances, murder, etc., was nine to fifteen years. As a result prisoners spent years upon years behind bars, exposed to ‘hardening’ and gang initiation. Generally the correctional service warders abused their powers, and much violence ensued.

Moreover, the apartheid government was estranged to any concept of constitutional democracy because the military overruled the rule of law. Security was defined as state-centred, viz. protecting the apartheid state in its undemocratic quest to protect white minority rule at all cost, including fighting illegal secret wars, assassination of activists, illegal detentions, etc. The judiciary was not independent, as it bent according to the dictates of the state-centred security institution.

In the aftermath of 1994, the country saw the introduction of the Constitutional Court, and the separation of powers between the Executive (President and Cabinet) and the Legislative (the National Council of Provinces). With its mandate to enforce and uphold the Constitution, and by default, the human rights, which became the buzz word for the post-1994 Republic as enshrined in the Constitution; the Constitutional Court remains the highest authority, binding on all organs of government, including the parliament and the presidency. This court can declare an Act of Parliament null and void if it conflicts with the constitution.

However this introduction has not fundamentally changed the justice system, and by default, the penal system too. For example, the post-apartheid drive for democracy should have been the transformation of the repressive and secretive state-centred security, upheld and protected by justice and other related organs like the police, the prisons, defence and intelligence. Correctly so, this was the demonstrated political will, on the surface at least, because instituions were established to protect constitutional democracy. Such institutions, referred to as Chapter 9, include The Public Protector, The South African Human Rights Commission, The Commission For Gender Equality, The Auditor General, Electoral Commission, Public Service Commission, Financial And Fiscal Commission, Pan South African Language Board, Independent Commissions Authority Of South Africa, Commission For The Promotion And Protection Of The Rights Of Cultural, Religious And Linguistic Communities, all gave hope that the state would no longer be able to abuse its powers and dictate to the judiciary.

There was hope and euphoria, until the Adhoc Committee on the Review of Chapter Institutions, chaired by Professor K. Asmal, then a Member of Parliament (MP), pointed the country to an anomaly in 2007. The Committee found that the Chapter 9 Institutions “followed different and inconsistent funding processes,”⁵ via other state departments, and warned that this could be a potential source of compromise; it rendered the institutions dependent on the executive. Its recommendation was categorical, “these institutions’ budgets should be part of parliament’s Budget Vote to ensure independence from the executive, so that their oversight over the executive could be enhanced”.⁶, Professor Asmal’s recommendations have not been implemented, and it includes this current fifth parliament. For example 41% of the posts on the Public Protector’s official structure remain unfunded. Moreover there remains a vast disparity between what she budgeted for 2014/2015, i.e. R300 million, and what she was finally allocated, i.e. R217 million. She is on record stating that her core business is affected by this, yet business continued as usual.

Conclusively then, while the apartheid government overtly abused state power and channelled security to protect the state’s illegal wars and at times unconstitutional actions, the current African National Congress (ANC) has established mechanisms to hold the state accountable, and institutions to protect the constitution. Yet at the same time, it has managed to exercise its hold on these institutions by curtailing their financial independence, thereby subjecting them to Executive authority.

This could explain why despite strides forward, it has always been one forward and two backwards, when it comes to the justice and penology matters in this country. The system remains punitive, with high sentencing, bail-based release or remand custody for ATP, leading to overcrowding, prison violence, prison gangsterism, prisoner-hardening and high recidivism.

One could almost argue that there is no other way, that this remains the only tried and tested judicial and penal system. On the contrary, there are several alternatives.

1. 
   The Traditional Justice and Penal System Versus Emerging Alternatives
   

Meanwhile “the United States incarcerates more citizens per capita when compared to other European countries. In addition to the high incarceration rate, the U.S. also maintains a relatively high rate of recidivism, suggesting the U.S. prison system does not effectively rehabilitate American prisoners”.⁸ Langan & Levin, (2002) argue that many US inmates are re-arrested within three years of their release, and that the majority of US prisons exist to protect the public by punishing the offender, with fewer prisons actually engaged in rehabilitating inmates to reduce recidivism.⁹

On the other hand, like Norway, the Danish model’s success is dependent upon its “ability to secure potential employers. For example, the Danish welfare state has effectively embedded policies that keep their prison model functional within the surrounding community”.¹⁰ Prisoners are assisted in finding jobs that will sustain them post their release, making them to look forward to that time, with good behaviour and emotional preparedness to start afresh. The Nordic (Norway, Sweden and Denmark) justice and penal systems are generally acclaimed for recidivism reduction; scoring very low on repeat offenders, on the incidence of inmate violence, prison gangs, and prisoner hardening. It is rated as the most successful at deterring future criminal activity when compared to the U.S. It is rehabilitative centred, with low to medium sentencing and a typically small inmate ratio per prison. Basically there are two types of prisons, the closed and open categories. The latter is the more punitive-styled prison, which receives the prisoner at inception, but halfway or three thirds towards the sentence, the prisoner is released to the open prison where they begin the journey of not only intense rehabilitation but also community re-integration. In the open prison inmates live in communes of between six and ten per house, with private individual bedrooms and communal ablutions as well as kitchen. They earn a living, and they are responsible for their own groceries and food, often purchased on sight at a departmental store within the base (prison).¹¹

According to Kenis et al., 2010; and Pratt, 2008, Finland sends eligible inmates to ‘labor camps’ where they too, earn a living wage for work done. They are then responsible for their total expenses and taxes. These prisoners are said to be often able to support themselves as well as their families. This makes it easy for them to re-accepted back upon release, but it also ensures that their dependants are not left in the cold, due to their incarceration.¹²

Another success experiment based on more or less the same model, has been the ”Dutch prison was created to minimize costs and increase inmate success following release, where inmate rights are of paramount concern and the ultimate goal is to teach offenders that their choices have consequences, both good and bad”,¹³ and it worked.

To conclude on context, there are alternative criminal justice and penal systems or programmes. For instance if applied efficiently and effectively, restorative justice allows for offender and victim dialogue, facilitating remorse and therefore beginning the process of rehabilitation. For a country like South Africa, with a history of statutory violence, and unfulfilled political promises, the culture of entitlement can remove remorse from the offender, who might have a disconnection with the concept of having offended the state when they feel the state owes them anyway.

Lastly, the concept of just deserts can also be a viable option in the African continent, including SA, where the state is often not rich enough to afford a huge prison population like the USA. Just deserts ensures that sentencing fits the crime, instead of using sentencing as a statement to deter potential or would be criminals. Research has proved that high sentencing does not actually deter crime but leads to a ‘prison population / nation’, often costly on the state because the more they are, the more unmanageable they are. This is what leads to lockdown, due to safety issues, which denies prisoners their right to work, while embedded in work is also the inalienable emotional therapeutic process that takes place when a human being works.

B. Unethical Vs Ethical Justice and Correctional Services Policy

It is incumbent upon policy makers to act ethically, undertake formal policy analysis, and avoid promoting ad hoc, arbitrary, and irrational policy solutions, resulting from reactive rather than proactive policy formulation.

There are numerous examples both locally and internationally, which indicate that Justice and Correctional Services Policy Makers could add salt to an open wound if not careful and sensitive to the application and outcome of the laws they promulgate.

For example, there exists both in SA and internationally, a type of sentence termed, “mandatory sentencing”. This type of pre-fixed sentencing denies the courts of treating each case in its own merits, reducing the Judges to mere administrators of the law. This type of sentencing has its origins in the apartheid era.

“Statutory provisions that deprive the courts of their discretion in imposing sentence have been known to exist in the history of South African criminal justice. By way of illustration you may refer to the following examples:

• The mandatory imposition of corporal punishment under particular circumstances (1952).

• Imprisonment for corrective training (minimum of 2 and maximum of 4 years' imprisonment) and the prevention of crime (minimum of 5 years and maximum of 8 years' imprisonment), which were mandatory penalties where the accused's criminal record met certain requirements (1959).

• Act 41 of 1971 prescribed various mandatory sentences for drug related offenses”.¹⁴

Unfortunately the 1997 Criminal Law Amendment Act 105, did not abolish this practice but upheld it in the imposition of mandatory minimum sentences:

“The amendment act lists certain serious crimes such as murder, robbery and rape and describes actual situations in which mandatory sentences, including life imprisonment for murder and rape, must be imposed, except where courts find "compelling and substantial" circumstances which justify a lesser sentence. An important advantage of this amendment act is that it expressly specifies that certain serious offenses must be severely punished in particular circumstances - a fact that can promote consistent sentences and equality before the law. On the other hand, the provisions have also created new problems, for instance diverging interpretations of "compelling and substantial circumstances" by the courts”.¹⁵

Section 51 of the 1997 Criminal Law Amendment Act 105, prescribes minimum sentencing for murder, rape and robbery to 25, 15 and 10 years respectively. This means a guaranteed parole after the minimum sentence for the lesser crime has been served. Through the years, life imprisonment has become mandatory in South Africa for premeditated murder, gang rape, serial rape, as well as rape where the rapist knowingly infects the victim with HIV, and if the victim is under 18 and/or mentally disabled.

The role of mandatory sentencing in the criminal justice system as a whole is arguable, in that it has led to an explosion of the prison population, this at a time when states are considering and investing in private penitentiaries. Of notable highlighting is the United States of America (USA), which has championed mandatory sentencing while at the same privatising prisons, turning the whole system into an industry driven by profit. Its effect on crime reduction is equally arguable, with most researchers stating that its crime deterrence outcomes are negligible, and with years such outcomes equal to naught:

Critics argue that there is no society that has ever imprisoned its citizens like today’s USA. That is what happens when the justice system is commoditised into business. Moreover, mandatory sentencing leads to ‘plea bargains’, which can in turn be aborted justice, because unknowing citizens could be lured into accepting this by cunning and / or corrupt lawyers. These lawyers could either be in cohorts with the corrupt system, which seeks to generate a surplus of cheap labour for big business, or be plain incompetent. The plea bargain has ensnarled too many unsuspecting suspects, who only realise with hind sight that the system ‘crooked’ them.

“It is routinely noted that the impact of harsher sentencing regimes on general deterrence of crime is difficult to isolate and measure. Writing from an international perspective, Tonry states that: The evidence is clear and weighty, that enactment of mandatory penalty laws has either no deterrent effect or modest deterrent effect that soon wastes away. Equally clear and consistent are findings that mandatory minimum laws provoke judicial and prosecutorial stratagems, usually by accepting guilty pleas to other non-mandatory penalty offences or by diverting offenders from prosecution altogether that avoid their application”.¹⁷

Therefore the EFF committee on Justice and Correctional Services must exercise caution in finalising this policy. Care should be taken to second competent commissars in this committee, so that the mistakes of both the National Party and the ANC, are never repeated.

Below is a case study which shows how easily and quickly mandatory sentencing can be manipulated as an instrument of racial exploitation, stereotyping and discrimination.

CASE STUDY 7.1 AN EXAMPLE OF UNETHICAL POLICY MAKING IN THE UNITED STATES OF AMERICA (USA)

Legislation enacted in 1986 shaped the War on Drugs by prescribing mandatory minimum penalties for drug trafficking based on the amount of drugs involved and by making a distinction between possession of cocaine and possession of crack cocaine.

A penalty was imposed of a minimum of 25 years imprisonment for possession of 5 or more grams of crack cocaine (the form of cocaine for which African Americans are disproportionately arrested). In contrast, an offender found guilty of possession of powder cocaine (the type commonly used by middle- and upper-class whites) would only be liable for a mandatory minimum sentence of 5 years if the amount of cocaine exceeded or equalled 500 grams.

By the mid-1990s, three out of four persons doing time for drug offenses were African American, and in the federal courts, 94% of persons tried for drug offenses were African American. In 1995, the U.S. Sentencing Commission urged that there be parity in penalties for the different forms of cocaine, explaining that there was no rational basis for this differentiation in sentencing (Glassner 1999: 136). The commission’s recommendations had never before been refused, but the White House and Congress aggressively opposed these recommendations, which were struck down in the House of Representatives by a vote of 332 to 83. Rather than give equity to African Americans charged with drug offenses, the White House and Congress preferred to avoid being labelled as “soft on drugs.”¹⁸