Peer-reviewed Publications

Journal Article: The End of Public/Private Partnership Prisons in the Department of Correctional Services of South Africa Journal Article: The End of Public/Private Partnership Prisons in the Department of Correctional Services of South Africa

South Africa has two fully privatised prisons, each housing some 3,000 prisoners. Their history has been mired in controversy from the start, and this has not improved over a period of nearly 25 years. Recent events affecting the security and integrity of the two facilities provide a useful opportunity to reflect on these private prisons as well as wider issues regarding private sector involvement in the prison system. The intersection of politics, organised labour, private sector interests, and corruption have in all likelihood rung the death knell for private prisons in South Africa. Muntingh L, The End of Public/Private Partnership Prisons in the Department of Correctional Services of South Africa, The Prison Journal, 1–17 (2024)

Journal Article: Prison protests in South Africa: A conceptual exploration

This article explores the nature and causes of prisoner protests, looking at it first from a sociological perspective and second, a rights perspective. The fact that people end up in prison following due process does not mean that their imprisonment is not a contested arena in the sense that prisoners are generally aware of their rights, even when curtailed. Importantly, this curtailment has boundaries - prisoners do not lose all their rights and it seems that this particular issue is frequently the locus of tension, and sometimes conflict, between prisoners and prison administration. There is nothing in South African law prohibiting prisoners from protesting as recognised by s 17 of the Bill of Rights. However, prisoners, with reference to the right to free speech and the right to peaceful demonstration, find themselves in a situation where they can claim these rights, but the enabling legislation is not only lacking, but there are strong indications that the operational procedures prevent them from exercising these rights. Muntingh, L (2022) Prison protests in South Africa: A conceptual exploration, SA Crime Quarterly, No. 71 (2022)

Book chapter: The Impact of Covid-19 on Prison Conditions and Penal Policy

The Impact of COVID-19 on Prison Conditions and Penal Policy presents the results of a worldwide exchange of information on the impact of COVID-19 in prisons. It also focuses on the human rights questions that have been raised during the pandemic, relating to the treatment of prisoners in institutions for both juveniles and adults worldwide. Muntingh, L (2022) ‘South Africa’ IN Dünkel, F., Harrendorf, S. and Van Zyl Smit, D. (eds) The Impact of Covid-19 on Prison Conditions and Penal Policy, Routledge.

Journal Article: Africa, Prisons and COVID-19 Journal for Human Rights Practice; Volume 12, No 2

Africa’s prisons are a long-standing concern for rights defenders given the prevalence of rights abuses, overcrowding, poor conditions of detention and the extent to which the criminal justice system is used to target the poor. The paper surveys 24 southern and east African countries within the context of COVID-19. Between 5 March and 15 April 2020 COVID-19 had spread to 23 southern and east African countries, except Lesotho. The overwhelming majority of these countries imposed general restrictions on their populations from March 2020 and nearly all restricted visits to prisons to prevent the spread of the coronavirus. The pandemic and government responses demonstrated the importance of reliable and up to date data on the prison population, and any confined population, as it became evident that such information is sorely lacking. The World Health Organization recommended the release of prisoners to ease congestion, a step supported by the UN Subcommittee on Prevention of Torture. However, the lack of data and the particular African context pose some questions about the desirability of such a move. The curtailment of prison visits by external persons also did away with independent oversight even in states parties to the Optional Protocol to the Convention against Torture (OPCAT). In the case of South Africa, prison monitors were not listed in the ensuing legislation as part of essential services and thus were excluded from access to prisons. In the case of Mozambique, it was funding being placed on hold by the donor community that prevented the Human Rights Commission from visiting prisons. The COVID-19 pandemic has highlighted long-standing systemic problems in Africa’s prisons. Yet African states have remained remarkably reluctant to engage in prison reform, despite the fact that poorly managed prisons pose a significant threat to general public health care.

Journal article: Democratic policing: A conceptual framework Journal article: Democratic policing: A conceptual framework

Democratic policing, as opposed to regime policing, must meet at least three requirements: there is democratic accountability of and for the police; the police adhere to the rule of law; and the police behave in a manner that is procedurally fair in service of the public. The article presents a conceptual framework of nine dimensions applicable to different contexts with a view to facilitate policies and practices towards democratic policing. It is argued that the ultimate result being sought is a legitimate police service. If legitimacy is the result, then trust is the outcome preceding it. Legitimacy is dependent on the public’s trust that State power will be used in the public interest. Public trust therefore fulfils an important legitimising function. Levels of trust in the police are driven by the police’s ability and performance record with reference to three outputs: objectivity, empathy and responsivity. The latter three outputs flow from five input variables, namely: knowledge of what works in creating a safer society from a policing perspective; rights-based policing; accountability of the policing (inclusive of transparency); efficiency and effectiveness of resource utilisation; and the police as citizens also entitled to rights and protections. The utility of the conceptual framework lies in providing a coherent and linked-up view to analyse police organisations and support the development of reform proposals.

Journal article: Modest beginnings, high hopes: The Western Cape Police Ombudsman

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. By Lukas Muntingh

Journal article: The SocioEconomic Impact of Pretrial Detention in Kenya, Mozambique and Zambia

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. By Lukas Muntingh and Jean Redpath

Journal Article: Ten years after the Jali Commission: The state of South Africa's prisons

Ten years have lapsed since the Jali Commission’s final report became publicly available, and it is therefore an opportune time to assess the state of South Africa’s prison system. The Jali Commission was appointed when it became clear that the state had lost control of the Department of Correctional Services (DCS). A decade on, some notable advances have been made in regaining control, and addressing corruption and maladministration. However, serious and persistent challenges remain. These are explored in this article, with a particular focus on policy development, the performance of the DCS against set targets, governance and human rights violations. In all four of these areas substantial shortcomings remain. Impunity for human rights violations is perhaps the most critical challenge, as the DCS has been reluctant to acknowledge the scale of this problem or to seriously address it. By Lukas Muntingh

Journal Article: Unconscionable and irrational: SAPS human resource allocation

The Khayelitsha Commission revealed that areas that are predominantly populated by people who are poor and black are systematically allocated only a small fraction of the average per capita allocation of police personnel in the Western Cape. These areas also suffer among the highest rates of murder and serious violent crime in the province. The allocation of human resources to policing impinges on various constitutional rights. Given the inequity and irrationality apparent in the allocation of police personnel, the Khayelitsha Commission recommended that this method be urgently revised. This article reviews the evidence heard on the allocations and the method currently used to allocate police personnel, suggests an alternative method, and calls on the government to heed the recommendation of the Khayelitsha Commission that the state urgently revise its method of allocation of policing resources. By Jean Redpath and Fairouz Nagia-Luddy

Journal Article: Unsustainable and unjust: Criminal justice policy and remand detention since 1994

The ‘tough on crime’ approach embodied in bail and sentencing law has had a profound impact on the trends around remand detention, including prison overcrowding of such an extent that it is estimated to have contributed to an additional 8 500 natural deaths in custody. Ultimately the policies have led, in practice, to an ‘Alice in Wonderland’ effect: fewer people are being tried and sentenced, while more than ever are denied their freedom without ever being tried in a court of law.

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