Liberia Publications

Portfolio Committee Briefing by the South African Human Rights Commission

South African Human Rights Commission Commissioner Charlotte McClain-Nhlapo briefs the Parliamentary Portfolio Committee on Correctional Services on the situation of children and youth in prisons.

The Republic v Gorman and Others (2004) AHRLR 141 (GhSC 2004)

"Drawing on our general analysis of the law above, we summarize our holdings as follows: 1. The constitutional presumption of innocence embedded in article 19(2)(c) of the 1992 Constitution does not import an automatic right to bail. 2. The constitutional duty of the Court under article 14(4) of the Constitution, to grant bail to the accused if he is not tried within a reasonable time, is applicable irrespective of the nature of the accusation or the severity of the punishment upon conviction. 3. In the cases falling outside the direct duty to grant bail under 14(4), there is a constitutional presumption of grant of bail drawn from the spirit of the language of articles 14(1) and (3), and 19(2)(c), in further protection of persons charged with offences in situations which do not mandate the grant of bail. 4. The said constitutional presumption of grant of bail is rebuttable; and it is in fact rebutted by a statutory provision that expressly disallows bail, such as the circumstances outlined in section 96(7) of the Criminal Procedure Code. 5. Outside the strictures of section 96(7) of the Code and article 14(4) of the Constitution, the presumption of the grant of bail is still extant, and is exercised under judicial discretion which is itself fettered by other provisions of section 96. 6. There is no prima facie inconsistency between the relevant provisions of the Code and the 1992 Constitution. 7. Considerations of the nature of an accusation and the severity of punishment upon conviction, as part of the decision not to grant bail under section 96(5) and (6), are constitutional; and that the gravity of an offence may be viewed as an aid in understanding and categorizing the nature of an accusation. 8. The Court of Appeal, in arriving at its judgment of 3 March, 2004 to rescind bail in this matter, at variance with the judgment in the Benneh case to grant bail, did not violate the constitutional provision on stare decisis; and 9. The Supreme Court is not bound by the specific result of the Benneh case since the factual contexts are distinguishable.

CSPRI Newsletter No. 6 - June 2004

In this issue: Prof. Julia Sloth-Nielsen writes about Parole and the separation of powers: the implications of S v Botha (Case no 318/03)

Review of the Judicial Inspectorate of Prisons of SA (Research Paper No. 4)

This report provides a detailed analysis of the legal mandate and powers of JICS. A number of recommendations are made to enhance its independence, efficiency and effectiveness. Report by Saras Jagwanth

Report on the evaluation of the Independent Prison Visitors System

The report provides a detailed analysis and evaluation of the Independent Prison Visitors (IPV) system of the Judicial Inspectorate for Correctional Services (JICS). Recommendations focus on the appointment process of IPVs; the performance management system for IPVs; the quality of feed-back given to prisoners; the training of IPVs; Interaction between IPVs and DCS officials; additional IPVs or the allocation of more time; Interaction with prisoners and work outside mandated duties, and political oversight. Report by Jacqui Gallinetti

Power-point Presentation on the Review of the Judicial Inspectorate of Prisons of South Africa

The presentation provides an overview of the research conducted to assess the efficacy of the Judicial Inspectorate for Prisons in South Africa.

State Violence in Morocco: Alternative Report to the United Nations Committee on Torture

This report on state violence and torture in the Kingdom of Morocco was presented at the 31st session of the Committee against Torture, which took place in Geneva from 10-21 November 2003 and during which the Moroccan Government’s report was examined. This report was jointly prepared by three Moroccan human rights NGOs: • The Democratic Association of Moroccan Women (ADFM), • The Bayti Association, • The Moroccan Prison Observatory (OMP).

Council of Europe - 2004 - European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment - The CPT Standards

The CPT is required to draw up every year a General Report on its activities, which is published. In a number of its General Reports the CPT has described some of the substantive issues which it pursues when carrying out visits to places of deprivation of liberty. The Committee hopes in this way to give a clear advance indication to national authorities of its views regarding the manner in which persons deprived of their liberty ought to be treated and, more generally, to stimulate discussion on such matters. The "substantive" sections drawn up to date have been brought together in this document.

Access to Justice for the Poor of Malawi? An appraisal of the access to justice provided to the poor of Malawi by the lower subordinate courts and the customary justice forums

This report by Wilfried Schärf, Chikosa Banda, Ricky Röntsch, Desmond Kaunda, and Rosemary Shapiro sought to inform Malawi Law Commission deliberations. "In rural areas the study found that customary justice forums handle some of the criminal cases as well as the vast majority of civil disputes occurring throughout the country. Proceedings are guided by locally-based customary rules. This despite the fact that since 1995 chiefs and traditional authorities have been stripped of their formal adjudicative powers by their exclusion from any formal judicial duties."

CSPRI Newsletter No. 5 - February 2004

In this issue: The Prison Report by the Law Society of South Africa, as well as upcoming events, and the SA prisons at a glance.

CSPRI Newsletter No. 3 - December 2003

In this issue: A brief overview of South African prisons; The Constitutional Court's decision on the right of prisoners to vote.

Prisoners' Rights Litigation in South Africa Since 1994, a Critical Evaluation (Research Paper No. 3)

Prisoner's rights litigators face serious challenges when they take on the Department of Correctional Services. There is a lack of respect for the Rule of Law within prison services, which means existing rules are disobeyed, court orders ignored and corruption and misconduct condoned or covered up; representatives of prison services often fear taking responsibility and therefore often fail to act, passing on cases to court in an attempt to "pass the buck"; the leadership in the Department often does not know what is going on in individual prisons; the public and the newspapers have little sympathy for prisoners and there is little publicity for the plight of prisoners and consequently representatives in the prison service feel that they can get away with actions that would otherwise not be tolerated; and conditions of overcrowding in the prisons are often caused by problems in the criminal justice system and must be addressed if one wants to improve the conditions under which prisoners are kept. This means that at present litigation against the Department of Correctional Services seldom brings lasting changes in the conditions of prisoners and/or in the way prison officials and the political leadership in the Department operate. Despite these problems, prisoners' rights litigation could be a powerful weapon deployed to address the lack of respect for the Rule of Law, which lies at the heart of the problems faced by the Department. Other non-legal strategies could be used alongside litigation strategies to place ever more pressure on relevant officials and the political leadership in the Department. Such pressure would then force the prison leadership to act because inaction would become impossible.

Policy Developments in South African Correctional Services 1994 - 2002 (Research Paper no. 1)

The period 1994 to 2002 in South African Correctional Services history is reviewed in this paper and was prompted by the apparent confusion characterizing correctional policy during this period. During this period substantial policy changes were adopted, such as the privatization of prisons, but with limited debate and oversight. The paper records for historical purposes important trends and mistakes made during this period, but also serve as a clear reminder of the importance of transparent knowledge-based policy development.

Optional Protocol to the Convention against Torture and Other Cruel and Inhumane Treatment (Research Paper No. 2)

South African ratified the UN Convention Against Torture in December 1998 and played a significant role in the drafting of the Optional Protocol to the Convention against Torture (OPCAT). The UN General Assembly adopted the OPCAT in December 2002 and since February 2003 the OPCAT has been open for signature. By October 2005 there have been 48 signatures and 13 ratifications. The Protocol requires 20 ratifications to become binding on UN members. The OPCAT is a powerful international human rights instrument as it provides for national and international visiting mechanisms to all places where people are detained. This includes prisons, police cells, immigration centres, and psychiatric hospitals, amongst others. Regular visits to such facilities have been proven as an effective measure against torture and the ill treatment of people deprived of their liberty. This paper investigate the implication for South Africa should it sign and ratify the OPCAT.

A Review of Civilian Oversight over Correctional Services in the Last Decade (Research Paper No. 4)

The restricted and hidden nature of the prison regime was dramatically apparent in apartheid South Africa, where prisons shunned outside scrutiny and engagement in all correctional matters. The correctional system was an inherent part of the political apparatus that upheld the apartheid state. Prisoners were segregated according to race, and the staff hierarchy echoed similar racial lines. The adoption of the Bill of Rights in firstly the interim and then the final Constitution in 1993 and 1996 finally established the right of prisoners to be treated with human dignity and set out the mandatory minimum rights of people deprived of their liberty and those held in custody. These guideline principles, later amplified in the Correctional Services Act of 1998, seek to define how the Department of Correctional Services (DCS) should implement its correctional mandate in keeping people in custody. Recognising the importance of accountability and oversight mechanisms in respect of public institutions, the Constitution created vehicles for civilian oversight. Mechanisms were also created to focus exclusively on prisons. A decade after this transition, it is timeous to evaluate how these mechanisms are functioning, and to what extent they are serving their envisaged purpose.

CSPRI Newsletter No. 4 - October 2003

In this Issue: Draft discussion document towards a Green Paper on Correctional Services in South Africa; Reintegration in South African Corrections

Combating Torture: A Manual for Judges and Prosecutors

This manual outlines the duties and responsibilities of judges and prosecutors to prevent and investigate acts of torture, and other forms of ill-treatment, to ensure that those who perpetrate such acts are brought to justice and to provide redress for their victims. It also provides practical advice, drawn from best practice, about how torture can be combated at a procedural level. Although primarily aimed at judges and prosecutors, it can be used as a resource by defence lawyers and others concerned with the prevention and investigation of acts of torture. A well-informed and sensitised legal profession has a vital role to play in eradicating torture and this manual is also aimed at helping its members to fulfil that professional function.

Penal Code of Niger (2003)

Loi N° 2003-025 du 13 Juin 2003 modifiant la loi N° 61-27 du 15 Juillet 1961, portant institution du Code Pénal, Journal Officiel Spécial N° 4 du 7 Avril 2004

Ghana Criminal Procedure Code 1960

As amended by the Criminal Procedure Code (Amendment) Act 2002 (Act 633) and the Juvenile Justice Act 2003 (Act 653)

Constitution of Togo (1992)

Adopted by Referendum on 27 September 1992. Promulgated on 14 October 1992. Revised by Law no. 2002-029 of 31 December 2002

Egypt and the Age of the Triumphant Prison: Legal Punishment in 19th Century Egypt

by Rudolph Peters, University of Amsterdam Published in Annales Islamologiques, 36 (2002), pp. 253-285

Egypt and the Age of the Triumphant Prison: Legal Punishment in 19th Century Egypt

by Rudolph Peters, University of Amsterdam Published in Annales Islamologiques, 36 (2002), pp. 253-285