Does access to justice enhance development?

Watch this short video by Open Society Foundations talking about the link between access to justice and economic development.

In September 2000, world leaders came together at the United Nations Headquarters in New York to adopt the United National Millennium Declaration, committing to eradicating extreme poverty. The 8 goals – with a set target date of September 2015 – that originated from the UN Millennium Declaration were as follows:

Goal 1: Eradicate extreme poverty and hunger

Goal 2: Achieve universal primary education

Goal 3: Promote gender equality and empower women

Goal 4: Reduce child mortality

Goal 5: Improve maternal health

Goal 6: Combat HIV/AIDS, malaria and other diseases

Goal 7: Ensure environmental sustainability

Goal 8: Develop a global partnership for development

As the expiration date (September 2015) of the Millennium Development Goals (MDGs) looms closer, Open Society Foundations advocate for the inclusion of access to justice and good governance in the post-15 development agenda.

For more, visit OSF website.

Here’s what The Citizen Justice Network will do

FutureJournalism-LN-BLOGS-2008-2010

 

 

 

 

 

 

 

 

On Thursday Bricks Mokolo and Paul McNally went on The Wits Justice Show on Thetha FM to talk about what The Citizen Justice Network will do for legal journalism and community radio in general.

FullSizeRender (1)

 

 

The new venture from Wits Justice Project is going to bring together radio stations, community advice offices, municipalities and listeners so people can get better legal assistance, radio journalism can be improved and our government can become more aware of what’s going on.

 

 

 

Listen to the interview here:

Who is a child?

Extra Protections for Convicted Juveniles: U.S. and South Africa Agree – And Don’t

By: Jennifer Rae Taylor (visiting researcher at the Wits Justice Project, and staff attorney at the Equal Justice Initiative based in Alabama, USA)

At a first glance, two 2014 constitutional law decisions out of the United States and South Africa established the same rights for children convicted of sex crimes. However, at a closer look the two countries actually disagree on a fundamental and simple question that can either reinforce or nullify the rights of children: who is a child?

IMG_0572 - Copy

Eastern Cape boys – Photo by Kyla Herrmannsen

 

In South Africa, under section 50(2) of the Criminal Law Amendment Act, passed in 2007, anyone convicted of a sexual offense against a child or mentally disabled person must be included in the national sex offender registry. In the United States, all fifty states and the District of Columbia have some sex offender registration policy, and many use the nation’s federal statute – Sexual Offender Registration and Notification Act (SORNA) as a model.

On May 6, 2014, the South African Constitutional Court considered the case of a 14-year-old boy convicted of rape, sentenced to imprisonment, and added to the national sex offender registry. In J v. National Director of Public Prosecutions and Another [2014] ZACC 13, the Court held that the registration law is unconstitutional when applied to convicted children because it severely infringes upon their constitutional right to have their best interests protected without providing an opportunity for them to counter the assumption that they are a continuing danger.

On December 29, 2014, the Supreme Court for the state of Pennsylvania considered challenges in six consolidated cases brought by children who were 14-17 years old when convicted of sex offenses.  This court also concluded that the state’s law requiring registration of “juvenile sex offenders” unconstitutionally creates a dubious presumption of child dangerousness that can’t be rebutted.

Unlike Section 28 of the South African Constitution, which sets out specific rights for children including the right to be treated in age appropriate ways, the American Constitution doesn’t include heightened protections for children.  But over the past decade, the United States Supreme Court has gradually established that the constitutional prohibition against cruel and unusual punishment requires treating children differently than adults when assigning criminal punishment.  The Pennsylvania court relied on those decisions.  As a result, children in South Africa and the U.S. now have a strikingly similar right to try to disprove continuing dangerousness before being required to register as sex offenders.

However, there is a striking difference between the two countries when it comes to the definition of who is a child. The definition of a child is relatively straightforward in South Africa, where the Children’s Courts hear criminal cases against everyone 10-17 years old, regardless of how serious the crime charged.  All people within this age range are children, covered by the constitutional protections of Section 28 and the Constitutional Court’s decision in J v. National Director of Public Prosecutions.

United States Constitution

US Constitution against an American flag

In America, a child is defined by behaviour and not just age.  On the one hand, each state and the District of Columbia has a separate court system for children.  Like the South African Children’s Courts, these “juvenile justice systems” are directed to prioritize rehabilitation over punishment and protect the child’s best interest.  On the other hand, in the last three decades states have passed laws to circumvent the juvenile courts’ protections by authorizing children to be prosecuted “as adults.”  In most jurisdictions, prosecutors can petition juvenile court judges to transfer children to adult court based on their age or the severity of the offense.  In some cases transfer is automatic and in some states there is no minimum age for transfer.

The Pennsylvania Supreme Court is the first in the U.S. to hold that children’s constitutionally-distinct status requires extra protection from sex offender registration context.  But even they acknowledge that the decision’s impact will be limited by the narrow definition of child.

We note that the category of “individual convicted of a sexually violent offense” generally refers to adults but will also include certain juveniles prosecuted in criminal court. Specified juveniles are automatically subject to criminal prosecution, rather than delinquency adjudication, if they were at least fifteen years old when they allegedly committed the relevant crimes of rape, involuntary deviate sexual intercourse, or aggravated indecent assault (or the related inchoate crimes) and the crime was committed with a deadly weapon or if they have previously been adjudicated delinquent of such offense, subject to transfer to juvenile court if in the public interest. Additionally, a juvenile who is at least fourteen years old at the time of the relevant conduct is subject to transfer from juvenile court if “there are reasonable grounds to believe that the public interest is served by the transfer of the case for criminal prosecution.” These provisions will exempt from the term “juvenile offender” some of the more dangerous youths, who will instead be subject to SORNA as individuals convicted of sexual violent offenses.

In fact, Human Rights Watch reports that every single jurisdiction in the United States requires juveniles convicted of sex offenses to register, if they were convicted in adult court.  Even after this ruling, Pennsylvania will remain in that group.

The refusal to see some children as children shapes U.S. criminal justice, where adult prosecution of children is now common and widespread.  The wildly popular American public radio podcast, Serial, spent twelve weeks broadcasting an investigation into whether Adnan Syed was wrongfully convicted of murder in the state of Maryland in 1999; though seventeen years old when arrested, Syed was prosecuted as an adult and sentenced to life imprisonment. The United States is in fact the only country on Earth that sentences children to life imprisonment without the possibility of release.  Some were as young as 13 years old when charged and most are children of colour.  American children were even eligible for the death penalty until 2005, when the Supreme Court ruled it unconstitutional to execute a juvenile.  Even today, the U.S. continues to refuse to sign the UN International Convention on the Rights of the Child.

Of course, the tendency to see “dangerous” and “child” as opposites is not uniquely American. Few of us imagine children as people who commit acts of violence from whom society needs protection. And when children do those kinds of things – especially older children – it is tempting to declare that they are not truly children at all. In 2007, the South African Parliament tried to make minimum sentence statutes applicable to 16- and 17-year-olds convicted of certain crimes – effectively stripping them of their child status before age 18.  In 2009, in Centre for Child Law v. Minister of Justice and Constitutional Development and Others [2009] ZACC 18, the Constitutional Court rejected the law:

The Constitution draws the sharp distinction between children and adults not out of sentimental considerations, but for practical reasons relating to children’s greater physical and psychological vulnerability.  Children’s bodies are generally frailer, and their ability to make choices generally more constricted, than those of adults.  They are less able to protect themselves, more needful of protection, and less resourceful in self-maintenance than adults. These considerations take acute effect when society imposes criminal responsibility and passes sentence on child offenders.  Not only are children less physically and psychologically mature than adults: they are more vulnerable to influence and pressure from others.  And, most vitally, they are generally more capable of rehabilitation than adults.

These are the premises on which the Constitution requires the courts and Parliament to differentiate child offenders from adults.  We distinguish them because we recognize that children’s crimes may stem from immature judgment, from as yet unformed character, from youthful vulnerability to error, to impulse, and to influence.  We recognize that exacting full moral accountability for a misdeed might be too harsh because they are not yet adults. Hence we afford children some leeway of hope and possibility.

This is not to say that children do not commit heinous crimes.

In South Africa, the nation’s constitutional vow to protect all children has been declared and defended, and there is much work to do before it is realized.  In the United States, even the philosophical commitment to child protection remains an issue of semantics.

IMG_1452

SA Constitutional Court artwork – Photo by Nooshin Erfani-Ghadimi

 

 

Criminal Justice and Wrongful Convictions from around the World

“Better that ten guilty persons escape than that one innocent suffer.” – Sir William Blackstone

Below are quick clicks on global cases of wrongful convictions…

In prison since 2003, yet authorities knew man wrongfully convicted in 2007

Dutch citizen, Romano van der Dussen, was found guilty of three sexual assaults in 2003. He has shockingly remained in prison despite DNA evidence in 2007 proving he was not the perpetrator. Van der Dussen was convicted in May 2005 and sentenced to 15 and a half years imprisonment, in addition to being remanded for 1 year and 7 months.

“I Didn’t Know What the Sky Looked Like Any More”: Ricky Jackson Exonerated After 39 Years in Jail

“An Ohio man has been freed from prison after spending 39 years behind bars for a crime he didn’t commit. Ricky Jackson, a 59-year old African-American man, had been jailed since 1975 on a murder conviction. The prosecution’s case was based on the testimony of a 13-year-old witness. After a 2011 investigation, the witness recanted his testimony, saying he had implicated Jackson and two others under police coercion.”

New York City, state, housing authority to pay $9 million to end lawsuits by wrongly convicted, imprisoned pair

Danny Colon (50) and Anthony Ortiz (44) spent 16 years behind bars for a crime they did not commit. A $9 million settlement will be paid to the pair after they successfully sued New York City, the state, and the city housing authority for verdicts which put them in jail and left them there for 16 years despite their innocence. Ortiz will receive $6.5 million and Colon will get $2.5 million, according to The Wall Street Journal report.

For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully Convicting an Innocent Man

Former Texas prosecutor and state judge, Ken Anderson, who intentionally withheld evidence that could have cleared Michael Morton – an innocent man who, as a result, spent 25 years in prison- agreed to spend 10 days in prison and complete 500 hours of community service.

“I give speeches about the Innocence Movement, and tell stories from real cases, all around the world. No matter where I am, when I finish speaking the first question usually is, “What happened to the police/prosecutors who did this to the poor guy?” The answer is almost always, “Nothing,” or worse, “The police officer was promoted and now is the chief of his department.” The adage that the powerful go unpunished is no truer or more visible than with police officers and prosecutors in America–even when they send innocent people to prison from their misconduct,” writes Mark Godsey, Carmichael Professor of Law and Director of the Ohio Innocence Project at the University of Cincinnati College of Law.

 

 

 

 

I did not speak out

I did not speak out

*Inspired by the editorial in today’s TimesLive.

 

 

 

WJP scoops Webber Wentzel Legal Journalist of the Year Award

Ruth Hopkins, senior journalist at the Wits Justice Project

Ruth Hopkins, senior journalist at the Wits Justice Project

 

Ruth Hopkins, winner of the print category, and Pierre de Vos, Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town

Ruth Hopkins, winner of the print category, and Pierre de Vos, Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town

 

 

 

 

 

 

 

 

 

For the fourth year in a row, the Wits Justice Project has been awarded the prestigious Webber Wentzel Legal Journalist of the Year Award.

On 5 November 2014, our senior journalist, Ruth Hopkins was named winner in the print category for her two stories: Presumed innocent, rotting in jail and  Seven years stuck in jail.

Read the 2014 Legal Journalist of the Year Award press release here.

Justice for Breakfast: Reflections on the complexities of policing in South Africa today

Justice for Breakfast Roundtable discussions have been running since late 2012

Justice for Breakfast Roundtable discussions have been running since late 2012

On 27 November 2014, the Wits Justice Project, together with Wits Public Safety Programme, hosted their regular Justice for Breakfast Roundtable discussion, where practitioners, academics, and activists, come together to talk about a particular issue at hand and deliberated on possible solutions.

The discussion focused on the broader value of the findings of the Khayelitsha Commission of Inquiry for policing in South Africa. The discussion also highlighted parallels between the Commission’s findings and the research conducted by the Wits Justice Project into police/community relations in Sophiatown.

Lead discussant Amanda Dissel, Secretary to the Khayelitsha Commission of Inquiry and delegate in South Africa for the Geneva-based Association for the Prevention of Torture (APT), got the ball rolling by giving a background of the commission.

Amanda Dissel

Amanda Dissel presenting findings of the Khayelitsha Commission of Inquiry

 

The Khayelitsha Commission was established on 24 August 2012 by the Premier of the Western Cape to investigate allegations of inefficiency of the South African Police Service (SAPS) stationed at three Khayelitsha police stations (Khayelitsha Site B, Lingelethu West and Harare). The Commission was also asked to look into the breakdown of the relationship between the Khayelitsha community and members of the SAPS working in the area.

The Commission zoomed in on the day-to-day technical complexities of policing and how they affect the community.

Some key Issues/Findings:

  1. There was an evident breakdown of effective policing
  2. Lack of allocation of sufficient human resources. The Commission found out that the ratio of police officer to community members was 111:100K
  3. There was an absence of strategy on how members of the SAPS should be policing at informal settlements. There was no on-going relationship between the police and informal settlement dwellers, resulting in negative association
  4. Detective Services:  Extremely low conviction rate when it comes to serious crimes.

Poor investigation

Very high workload: 10 new detectives have been reallocated to Khayelitsha, but they had to be taken from another police station.

Huge backlogs

Lack of crime intelligence

  1. Relations and role of the community: Community Policing Forums (CPF) was functioning poorly due to lack of resources and political contestation within the community.

The Commission came up with 20 recommendations, which can be read on the final report.

Questions and Comment emanating from the floor

  1. Public bystanders: what does it mean to be a bystander in South African context and what effect does it have to be continuously exposed to crime and violence? Are we not creating a country of traumatized citizens?
  2. Would a Commission appointed by the ANC come up with the same or similar findings?
  3. Who benefits from the instability of Khayelitsha?
  4. Should we be allocating resources into strengthening the police or the community?
  5. Community-based approaches to policing have a potential, but there is a lack of data to measure their effectiveness.
  6. Money is at the core of everything. People can easily evade being punished for breaking the law through bribery. If you have money, you can buy ‘justice’.
  7. The aim is not to put people in prison. It’s about giving regular folks the dignity, enshrined in the constitution, to feel safe at their homes and surroundings.

Both the Wits Justice Project’s investigation of Sophiatown and the Khayelitsha Commission revealed that there is a breakdown in the relationship between the police and the community they serve. There is loss of trust in the police’s ability to perform their job effectively. It is clear from the discussion that policing is a multifaceted issue that needs meaningful engagement from all stakeholders involved.

Follow

Get every new post delivered to your Inbox.

Join 2,785 other followers