South Africa

OP-ED

Prosecutions and the rule of law are under pressure during Covid-19 pandemic

National Director of Public Prosecutions Shamila Batohi. (Photo: Chanel Retief)

The risk to the rule of law is especially acute when state officials, politicians and those with commercial interests misuse the Covid-19 crisis for political or financial gain.

First published in The Guardian

The Covid-19 pandemic will have far-reaching implications for prosecution services worldwide. Many places are already experiencing significant changes in crime patterns and forms of criminality, and a reallocation of criminal justice resources to deal with lockdown-related public order issues.

The operations of the courts will be disrupted for months to come. Postponed trials will become commonplace as accused persons, witnesses, law enforcement officers, prosecutors, defence lawyers, judicial officers and other court staff infected with coronavirus are placed in quarantine, or are required to self-isolate.

More profoundly, Covid-19 poses long-term risks to the rule of law. It is imperative that prosecution services confront the pandemic’s challenges and take a leading role as defenders and guardians of the rule of law.

In many places – especially in the developing world – the economic impact of Covid-19 will be severe. The UN Secretary-General, António Guterres, has warned the international community of a recession “perhaps of record dimensions”. In South Africa, GDP growth, already anaemic before the onset of Covid-19, is expected to contract by some six percent in 2020.

It will likely take years before South Africa’s economic output is restored to pre-Covid levels. Until then, a variety of socio-economic ills, including unemployment, poverty and inequality will worsen. This has important implications for prosecutions. At the National Prosecuting Authority, we may need to consider possible changes in our operations to deal effectively, yet compassionately, with an expected increase in poverty-related crime.

Beyond its economic impact, Covid-19 has significant implications for the rule of law and good governance. During times of crisis, there is a risk that emergency powers mandated by political executives become the new normal.

Policies driven by fear – albeit legitimate at the time – and, enacted in a hurry, can become blunt and repressive instruments of state coercion, and ultimately exacerbate problems rather than promote recovery. The UN Human Rights Office has raised concerns about the excessive use of force employed by security forces in some countries to enforce Covid-19-related lockdown regulations.

Coercive, arbitrary or clumsy state responses to Covid-19 undermine public trust in the state and its institutions – precisely at a time when it is needed most. This is especially dangerous in societies where the poor and marginalised bear the heaviest burden – both in the enforcement of lockdowns and the resulting economic impact. It is a recipe for social strife and civil unrest.

The risk to the rule of law is especially acute where state officials, politicians and those with commercial interests misuse the Covid-19 crisis for political or financial gain.

Vast sums of money are being mobilised to resuscitate economies devastated by Covid-19. This creates opportunities for fraud and corruption in the procurement of state tenders, the distribution of public welfare funds, and the building of state-funded health-related infrastructures.

Covid-19 and its public security, economic and political ramifications places a particular responsibility on prosecution services to ensure the rule of law – that everyone is subject to the law and no one is above the law – is upheld.

Those who break the law and abuse their authority or power must be prosecuted without fear or favour.

Where the enforcement of Covid-19-related regulations are arbitrary, excessive or discriminatory, prosecutors should proceed with caution and ensure prosecutions are in the public interest and serve the interests of justice.

Covid-19 and its socio-economic disruption enjoins prosecutors to deal with persons accused of minor poverty-driven crimes with empathy. Custodial sentences should be pursued as a last resort. Diversion should be preferred over lengthy trial processes which potentially burden minor offenders, possibly driven by desperation, with criminal records. Sentencing options permitting convicted offenders to engage in economically productive activities should be pursued.

A core tenet of the rule of law – the presumption of innocence – has become a vital public health consideration. Crowded prisons serve as vectors in the spread of Covid-19. Prosecutors must ensure pre-trial detention is used in exceptional circumstances only and for as short a duration as possible.

To contribute to their jurisdictions’ post-Covid-19 economic recovery, prosecutors must vigorously pursue serious cases of corruption, especially involving state officials. Where available, asset forfeiture and recovery laws must be used to ensure proceeds of crime are put to productive economic use and stolen assets returned to their rightful owners.

Organised criminals will seek to exploit the public health crisis and its economic aftermath. Reports abound of criminal networks intensifying their operations in the fields of cybercrime, human trafficking, and corruption in the public health sector.

In places with poor or weak governance, there is a heightened risk that law enforcement may collaborate with criminal gangs to enforce lockdown measures. Prosecutors must be particularly vigilant of such tendencies, especially where state officials are co-opted by, or collude with, criminal groups.

There are reports worldwide of increases in certain forms of crime against societies’ most vulnerable, including domestic violence, child and elder abuse, and internet-based sexual exploitation. Prosecution services will need to make additional resources available so that such crimes are effectively prosecuted, and their victims treated with care and compassion.

In the era of Covid-19 it is vital that prosecution services are – and are seen to be – upholders and defenders of the rule of law. Prosecution services need to be independent of overbearing political executives to fearlessly prosecute society’s most powerful. Independence must be modulated by accountability to ensure prosecutors’ actions are beyond reproach. DM

Advocate Shamila Batohi is national director of public prosecutions at the National Prosecuting Authority (NPA) of South Africa. Prior to her appointment in late 2018, Batohi was senior legal adviser to the prosecutor at the International Criminal Court in The Hague and provincial director of public prosecutions in KwaZulu-Natal.

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