THE RULE OF LAW AND TRANSITIONAL JUSTICE IN FRAGILE AND POST CONFLICT STATES

PRESENTATION BY ELIVERA DU PLOOY
THE RULE OF LAW IN POST APARTHEID SOUTH AFRICA: TRANSITION, DEVELOPMENT, CHALLENGES

Post 1994 (the year of the first democratic election in South Africa) the rule of law underwent radical change.

The Constitution became the supreme law of the country which made the lawful transition from apartheid to democracy possible. The changes it brought about to the rule of law were nothing short of revolutionary.

The Bill of Rights, enshrined in Chapter 2 of the Constitution, challenged the existing rule of law, compelling its development and evolution. This, however, came with countless challenges.

The purpose of this presentation is to discuss the transition, development and challenges from the perspective of a prosecutor as well as devices prosecutors can use in developing and protecting these rights which forms part of the rule of law.

The Constitution and The Bill of Rights

Nelson Mandela once said: ‘The human rights of all our citizens must be guaranteed under an entrenched and justiciable Bill of Rights, which should be enforced by an independent judiciary.’

The South African Constitution is probably one of the best written and comprehensive pieces of legislation in the world. It is a product of years of negotiation and compromise after the struggle against ‘Apartheid’.

The Bill of Rights is the cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom. The State must respect, protect, promote and fulfil the rights in the Bill of Rights– Section 7 of The Constitution.

Upon a mere reading of The Bill of Rights, it seems pure, uncomplicated and simple. The rights are set out specifically and one might think that the execution of these rights will be simple and uncomplicated. One will expect to see these entrenched rights reflected in the South African Society – this is, however, not the case.

Transition

Pre 1994 – South Africa was marred by political struggles. The first democratic election and the transition from ‘Apartheid’ to democracy were nothing short of a miracle. The Courts had to follow suit.

Freedom and equality was on everyone’s lips. All of a sudden people had all these entrenched rights, but there was uncertainty as to how it should be enforced. The new-born democracy was fragile and if not handled with the utmost care, risked failing miserably. It was paramount for strong measures to be put in place to guide South Africans across these troubled waters.

The negotiated Interim Constitution was one of the vehicles used for this purpose. Central to the implementation of the Interim Constitution was the establishment of the Constitutional Court to give effect to the supremacy of the Constitution and the Bill of Rights.

The Final Constitution drafting process entailed public participation that included public meetings and workshops. Prosecutors, per se, were not a group participating in this process. The Final Constitution was signed into law on 10 December 1996 – becoming the supreme law of the Republic of South Africa.

Development

When the Constitution became the supreme law, the pre 1994 rule of law had to be aligned with The Bill of Rights. Every provision in legislation/common law which was contra the Constitution was invalid.

Prosecutors were suddenly confronted with constitutional challenges on a daily basis. Accused persons challenge every charge, sentence and incarceration on the basis that it infringed on their entrenched constitutional rights. The new ‘buzz’ word in the courts was: ’unconstitutional’.

Although challenging – it created opportunities for prosecutors to become involved in the transition and development of the rule of law. These opportunities gave effect to some ground-breaking changes and developments. One such example is the presenting of evidence obtained in violation of an entrenched right of an accused person. Evidence obtained in such a manner would have been inadmissible without recourse. Currently due to, inter alia, prosecutors contributions, the admissibility of evidence obtained in such a matter can be argued before court and found admissible if it is in the interest of justice to accept it.

These opportunities, however, are limited as prosecutors normally do not have the platform to initiate constitutional challenges. There was (and is) no prosecutorial driven institution/body that on its own, has the capacity to institute challenges, strengthen constitutional democratic development and to advance the rule of law.

The Constitution makes provision for independent bodies/institutions: e.g. The Public Protector, The South African Human Rights Commission, The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and The Commission for Gender Equality. Other organs of state have to assist and protect these institutions and ensure the independence, impartiality, dignity and effectiveness of these institutions – Section 181 of The Constitution.

The Criminal Justice System deals with probably the greatest number of entrenched rights on a daily basis. Every crime will infringe some specific right of a victim while the arrest and trial of accused persons infringe another number of their rights. Surely, the prosecutor has a lot to contribute in this regard, but a limited platform exists for them.

Prosecutorial involvement in constitutional challenges is mostly limited to existing criminal trials during which these challenges are made. Mostly the infringements are argued during the appeal processes before the Supreme Courts, Supreme Court of Appeal and the Constitutional Court.

Section 36 of The Constitution provides: ‘The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’.

The limitation of rights, within a crime stricken country like South Africa, is one of the most significant areas wherein a prosecutorial institution/body can contribute in developing the Bill of Rights. A balance must be struck between the conflicting rights of accused persons and victims.

The injustices of ‘Apartheid’ tipped the scales of justice towards inequality and confinement.

The post Constitutional era therefore moved to rectify the past injustices. The position was delicate and an attempt was made to protect all interested parties’ rights as far as possible.

Challenges

Unfortunately South Africa became one of the crime capitals of the world. The entrenched rights are drowning in a sea of criminality. This is undoubtedly one of the biggest threats to our democracy.

The Courts are overloaded and under staffed, prosecutors are overworked and prisons overcrowded. It seems that the criminals have tipped the scales of justice in their favour. It is for that reason that earlier reference was made to fact that the entrenched rights are not always reflected in the South African Society.

The murder rate in South Africa is chillingly high with 30,9 South Africans in every 100 000 the victims of homicide. This means that the murder rate in South Africa is four and a half times higher than the world average of 6,9 murders per 100 000 people. (UNODC, 2011 Global study on homicide: trends, contexts and data, Vienna: United Nations Office on Drugs and Crime, 2011, 9). (Article ‘The SAPS Crime Statistics – What they tell us – and what they don’t ‘by Chandré Gould, Johan Burger and Gareth Newham from the Institute of Security Studies)

High rates of inter-personal violence (including domestic and youth violence) have been identified as having a significant negative impact on a country’s development. (World Bank, World Development Report 2011)

Prosecutors experience resentment towards the seemingly ‘sacred’ and limitless rights of accused persons and the limits it place on the prosecution of cases. Confronted by the victims of crime and their families, the question remains the same: ‘what about our entrenched rights?’ An example of the overemphasis of the rights of accused persons can be found in The Child Justice Act, where, despite committing horrendous crimes – juveniles are protected to the extreme.

It is submitted that the time is ripe for the development of the limitation of rights concerning crime and accused persons. Emphasis should be shifted from the rights of the accused persons to rights of the victims and broader Society – keeping the scales of justice balanced.

Conclusion

We have come a long way. Due to the commitment of the people of South Africa to a democratic society and the sturdy measures put in place for the transition, challenging and development of the rule of law – our story is mostly a successful one.

The challenges we face are hurdles which we shall overcome. In future, we hope to develop a prosecutorial institution/body – apart from the National Prosecuting Authority – with its foundation being that of the Bill of Rights and supported and protected by other organs of State to ensure the independence, impartiality, dignity and effectiveness of such an institution.

E du Plooy Power Point Presentation for IAP 2013

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