Research Reports

[Report] An assessment of the National Preventive Mechanism (NPM) in South Africa [Report] An assessment of the National Preventive Mechanism (NPM) in South Africa

After signing the Optional Protocol to UNCAT (OPCAT) in 2006 and ratifying it in March 2019, South Africa designated a National Preventive Mechanism (NPM), with the SA Human Rights Commission (SAHRC) being the coordinating structure. Since ratification in March 2019, it appears that to date, the NPM has not been fully functional and institutional arrangements for visiting places of detention under the banner of the NPM remain unclear. There is also uncertainty as to how the constituent parts of the NPM will fulfil the responsibilities under OPCAT. In view of the above, the members of the Detention Justice Forum (DJF) agreed to assess the operational functionality of the NPM in the respective sectors of the DJF member organisations. This also provided an opportunity to identify issues for clarification on the NPM’s mandate and its relations with other components as well as government departments responsible for places where people are or may be deprived of their liberty. This report provides the findings of the assessment performed amongst members of the Detention Justice Forum (DJF) based off a questionnaire that was developed. This report was prepared by K Petersen & J Mangwanda, December 2022

Summary report on consultations with civil society stakeholders: “The NPA that we want” Summary report on consultations with civil society stakeholders: “The NPA that we want”

Much of the media attention given to the National Prosecuting Authority (NPA) is centered on high-level corruption investigations, especially linked to the Zondo Commission’s findings and recommendations. While this is important, it should also be asked what happens at ground-level in our courts where ordinary cases are heard on a daily basis. The question can indeed be asked: What are our expectations of the NPA when having to engage with the criminal justice system as a victim, witness or even an accused? Do we know what we want from the NPA in real and practical terms? In June and July 2022 ACJR commissioned a series of consultation workshops with stakeholders to discuss these questions and develop descriptions of “the NPA that we want”. The consultations yielded valuable observations and insights, demonstrating on the one hand that people generally have a deep understanding of the challenges facing the NPA and, on the other hand, clear understandings of what they expect of the NPA, especially as these relate to the four core values of professionalism, independence, accountability, and credibility.

Report - Overview and key findings COVID-19 restrictions and the impact on criminal justice and human rights (Kenya, Malawi, Mozambique, South Africa & Zambia) Report - Overview and key findings COVID-19 restrictions and the impact on criminal justice and human rights (Kenya, Malawi, Mozambique, South Africa & Zambia)

This report makes a number of overview observations dealing with broader issues of governance, human rights, the socio-economic impact of the COVID-19 pandemic and the criminal justice system. A central lesson to be taken from these findings is the need for continued vigilance in seeking a balancing of rights and the importance of evidence-based policy-making, especially where there is the potential that those already socio-economically vulnerable may be pushed deeper into poverty. Report by L Muntingh, J Mangwanda & K Petersen

NPA Issue Paper 1: In search of strategy | by Lukas Muntingh NPA Issue Paper 1: In search of strategy | by Lukas Muntingh

This paper problematises the strategy environment of the NPA and raises questions about how strategy is developed, the priorities set and how performance is measured. The overall impression is of a situation where strategy priorities and objectives emanate from different sources, but that the most measurable is what drives performance at operational level and not necessarily the most needed or most important to make the country safer and build trust in the state. The NPA finds itself in a complex strategy environment: various strategy documents not only have different time frames but also emanate from different sources and fundamentally different purposes. Finding harmony and synchronicity in this strategy environment must be difficult for the NPA leadership.

NPA Issue Paper 2: Knowledge, skills and human resources | by Lukas Muntingh NPA Issue Paper 2: Knowledge, skills and human resources | by Lukas Muntingh

The capacity, knowledge, skills and experience of an organisation's workforce will determine largely the extent to which it is able to fulfil its mandate. The aim in this issue paper is to problematise this particular issue in a succinct manner with the view to build consensus on understanding the problem properly in order to develop effective short to medium term responses. Transparency and accuracy in reporting on the NPA's human resources is a notable problem. Three broad issues are explored, being vacancies, job satisfaction and skills requirements of prosecutors. The problems are not new and there is ample guidance from the literature and practice to address the issues.

NPA Issue Paper 3: Effectiveness and Efficiency | by Jean Redpath NPA Issue Paper 3: Effectiveness and Efficiency | by Jean Redpath

The question of the effectiveness and efficiency of the NPA is key to the proper functioning of South Africa’s democracy. This is because the NPA is the sole custodian of criminal accountability. Properly measuring effectiveness and efficiency is key to ensuring that the NPA does in fact functioning correctly. The evidence suggests that the way in which effectiveness has been measured has not only failed to do this, but has created perverse incentives which have undermined effectiveness. Effectiveness and efficiency are separate enquires and should be interrogated separately.

NPA Issue Paper 4: Transparency in high-profile corruption matters | by Jean Redpath NPA Issue Paper 4: Transparency in high-profile corruption matters | by Jean Redpath

The National Prosecuting Authority (NPA) tends to follow a highly secretive and confidential approach to all prosecutions, including those in relation to high-profile corruption. The problem with this approach is that it fails to take into account the reasons for confidentiality and secrecy, and whether or not those reasons still pertain in high-profile corruption cases. The approach also fails to appreciate the risks posed by an unnecessarily secretive approach in these kinds of matters. This Issue Paper will consider the special case of high profile corruption and comment on the nature and extent of transparency necessary in such cases.

NPA Issue Paper 5: Accountability of the NPA | by Jean Redpath NPA Issue Paper 5: Accountability of the NPA | by Jean Redpath

Public accountability is crucial to demonstrating and achieving independence. Accountability through public transparency can achieve the level of prosecutorial independence and accountability required to ensure that the public has confidence in the decisions being made, thus ensuring the trust of public. Various kinds of accountability apply to the NPA: internal accountability, accountability to Parliament, and public accountability. This Issue Paper argues that heightened public accountability, through clarity and transparency of policies and processes, are required to ensure an objective, independent, Constitutional prosecution service, which enjoys public trust.

RESEARCH REPORT: The Prosecution Service and the Provinces RESEARCH REPORT: The Prosecution Service and the Provinces

This paper explores the relationship between the provinces and the NPA by looking at the legal framework as well as a few case studies and examples of cooperation that have emerged. Recommendations are made for a way forward. Report by Lukas Muntingh

Research Report: Recommendations for reform of the National Prosecuting Authority Research Report: Recommendations for reform of the National Prosecuting Authority

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. Report by Lukas Muntingh and Jean Redpath

Alternatives to imprisonment in Mozambique: The implementation of community service orders 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 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.

Alternativas à prisão em Moçambique: A implementação do trabalho socialmente útil 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 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. Reportado por Vanja Petrovic, Tina Lorizzo e Lukas Muntingh

Powers of arrest curtailed by Constitutional Council of Mozambique – the impact of the 2013 decision Powers of arrest curtailed by Constitutional Council of Mozambique – the impact of the 2013 decision

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. Report by Tina Lorizzo and Vanja Petrovic

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