South Africa

ANALYSIS

Edwin Cameron: SA law enforcement is in a ‘frightening vortex’ and we must change how we deal with punishment

Alternatives to harsh prison conditions and minimum sentences might seem like a counterintuitive solution to deal with the shocking dissolution of law enforcement in South Africa. But this is exactly what retired Constitutional Court judge Edwin Cameron has suggested we do to deal with abysmal conviction rates as low as two percent for serious crimes.

Retired judge Edwin Cameron delivered his 2019 Rabinowitz Lecture at the University of Cape Town’s Faculty of Law on 13 September 2019, the same week the NPA and SAPS presented their annual reports to Parliament.

Writing in Daily Maverick, Marianne Merten remarked that it was unprecedented in democratic South Africa for the SAPS to release crime stats without tabling its annual report.

The annual report is crucial to the bigger picture of crime patterns in South Africa as it includes data such as detection rates, trial-ready dockets, reaction times, recovery of stolen items and forensics capability.

The key to unlocking the abysmal performance, however, of crime enforcement in South Africa could be found in the NPA’s annual report which indicated that conviction rates for serious offences have been as low at two percent.

Over and above, this pattern has emerged that indicates that South Africa’s regional and district courts are barely functioning while shoddy investigations and cock-ups by prosecutors have resulted in a whopping 103,760 criminal cases being simply withdrawn.

It seems officialdom’s definition of service delivery to crime survivors includes not prosecuting,” Merten opined.

Helen Swingler reported on Cameron’s address for UCT News but the retired judge’s thoughts have not received wider media exposure.

Cameron, in his address, said urgent debate was required about reforming the country’s “fatally flawed and defective criminal justice system”.

The “institutional disintegration” of law enforcement, he said, was a result of “criminal syndicates taking over the government and institutions, at the very highest level”.

This, he added, had led to the collapse of capacity in the SAPS, particularly crime detection and follow-up services, and of the NPA, “sharply aggravated in the Zuma years”.

During this time, “public trust in police and the administration of justice sank as botched and malevolently inspired appointments undermined basic functioning”, said Cameron.

The country had also been distracted from the “duties of efficient, publicly-directed governance and institutional build, distracted from important moral debates about crime and punishment” and that crime had become rampant “because of corrupt and incompetent policing and police intelligence”.

The approach to crime by the current criminal justice system is so ineffective and counterproductive that the country found itself “in a frightening vortex”, said Cameron.

We are terrified by crime, so terrified that we are trapped in our futile responses, our own self-interest to find solutions that will affect and reduce crime.”

The solution?

Better prison conditions and fewer minimum sentences.

Minimum sentences are pointless and divert us from what we should be doing,” said Cameron, adding that the focus should rather be on “institutional regeneration, improvement in police intelligence, improvement in crime prevention, improvement in prosecutions, and improvement in police response”.

The real and only solution to the overwhelming crime rate was to recognise that “the sole inhibiting institutional response to criminal conduct is the certainty of detection, the certainty of follow-up, the certainty of arraignment, the certainty of prosecution – and the certainty of punishment”.

In this chain of events, said Cameron, the length of a prison sentence played “no role whatsoever”.

He said that South African prisons were not places of rehabilitation “but overcrowded institutes of pointless punishment” where each prisoner, whether in remand or sentenced, cost the taxpayer R10,000 a month.

The blunt point is this: We do no good at all by finding and prosecuting a haphazard segment, a sliver of rapists and murderers, and sentencing them to life, jamming our prisons. We have 18,000 lifers in our prisons (in 1995 there were 400). What possible point is there to having 18,000 people [sentenced] to life in prison when we have 20,000 murders every year?”

The solution was the “long, slow process” of improving police capacity, and not numbers, as “we have enough police people, and 450,000 private security officers”.

What needed to be improved was “competence, responsiveness and skill. We must restore crime intelligence, unmask criminal syndicates and improve the turnover in the National Prosecuting Authority (NPA). We need, at a neighbourhood level, police responsiveness and competence.”

Cameron suggested the immediate abolishment of minimum sentences for all lower-level, non-violent crime, particularly fraud, extortion and drug offences.

Second, release elderly offenders, those over the age of 50, when the risk of recidivism diminishes markedly. This should be done according to individual assessment.”

Bail conditions too could be made better and more efficient and a sentencing council should be constituted “to articulate clear sentencing principles…on a flexible basis, not to tie us up in rigid knots”.

We are struggling so much to stop ourselves from drowning that we aren’t learning to swim. We are so stuck in our crisis that we are not seeing the solutions available to us,” said Cameron.

He pointed to the example fo the “highly practical” recommendation of Justice Kate O’Regan’s Khayelitsha Commission Report.

None [of the recommendations] have been implemented… in a township where the murder rate is 71 per 100,000 people, against a national rate of 33 per 100,000 and three per 100,000 in New York.

There was no point, he added, to calling for the death penalty, and Cameron said he honoured “those politicians who have had the courage to say it”.

While democratic South Africa had hoped to create more humane prison conditions, “the anticipated reduction in crime levels did not happen. In the first decade after democracy crime rose by 30%.”

This shift, Cameron said, saw the adoption of a new legislation, “harsh new policies embodied in harsh new laws”.

Minimum sentencing provisions were introduced. Getting bail became a lot tougher, the Correctional Services Act complicated police processes, and the Prevention of Organised Crime Act cast a much wider criminal net.”

He said former Minister Dullah Omar’s appointment of a committee of the South African Law Reform Commission had offered a “glimmer of hope” but that “the new government didn’t wait for the report”.

Instead, he said, new sentences were deliberately introduced which included harsher punishment, limiting access to bail, increasing sentence jurisdiction, lengthening prison terms, limiting cause for discretion and lengthening parole periods.

Minimum sentences included non-violent crimes and worse, all drug offences. The minimum sentences regime was meant to tide the country over to restore confidence in the criminal justice system.

Like temporary classrooms, these became permanent and are still here 20 years later. No thought has been given to the impact on sentencing patterns and carceral conditions in terms of overcrowding. The impact is evident in the great increase of the numbers of people detained and the lengths of incarceration.”

With all of this as the bleak backdrop, people were still calling for harsher sentences, to which Cameron replied, “It’s a human response, but an entirely futile response.

It will not assist the crime wave… I don’t suggest violent criminals don’t deserve harsh sentences, but the point is that in determining justified punishment, minimum sentences are entirely and utterly misdirected.”

South Africa was “shovelling prisoners into a prison funnel and they are not being released”.

Today we have 18,000 people serving life sentences that are pointless. And there is a harsh pre-parole period. Medical parole is now harder to get, complicated by the distinguished history of Mr Schabir Shaik.”

The increase in the prison population had not been matched by institutional capacity.

Overcrowding affects the well-being of prisoners and impedes good governance. There is also a link between violence and maladministration. Prisons are known sites of communicable diseases like tuberculosis. Mental health is a problem from carceral conditions and there are high rates of recidivism, estimated to be between 60–90% (NICRO 2014).”

He said that prisons might be a microcosm of South African society but if South Africans wanted to tackle “violence, drug addiction, gang violence, gender-based violence, HIV and other social problems, we must take sufficient care of the prison population.

Our dismay and anger at the horrors criminals inflict on us paralyse us and paralyse us dangerously and counterproductively.”

Cameron likened the current high levels of violent crime to the AIDS crisis after 1994.

It was a real threat to our democracy, not because of the viral impact … but because we mishandled it so catastrophically. The same applies to crime.” DM

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