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The real issue around remissions of sentence concerns women and children behind bars

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

We must, as a nation, contemplate a holistic strategy that emphasises presidential pardons and remissions of sentence initiatives tailored specifically to women and children.

The notion of remission of sentence boasts an ancient lineage that extends back through the annals of history – a heritage that finds its roots even within the pages of the Bible. The tale of Barabbas, a compelling narrative chronicled in the New Testament, stands as an intriguing example of sentence remission dating back to biblical epochs.

In the wake of President Cyril Ramaphosa’s endorsement of remission of non-violent offenders, the aftermath has unfolded a tapestry of eager reactions and varying public sentiments. This range of impassioned responses, coupled with an array of legal and political analyses, serves as a testament to the intricate nature of pardoning or mitigating criminal sentences. 

This incident reinforces the enduring reality that complexities are bound to enshroud such acts, regardless of the context.

For me what caught my attention, and to which I think Ramaphosa must pay attention, is that while in a bustling location where hawkers and small-business mothers gather, a chorus of concerned voices emerged, lamenting the recent news of remissions of sentence for prisoners.

Among the names that caught their attention was that of former president Jacob Zuma, triggering a range of emotions and opinions. Some were expressing happiness that at least the country can breathe a sigh of relief and that the elder statesman can be left to enjoy his retirement.

But as I listened more, it became apparent that these women were articulating a shared frustration – one that resonates deeply with the challenges faced by those living on the fringes of South African society. 

Their perspective illuminated a pressing issue: the disheartening disparity that often characterises the lives of the impoverished, especially women when they encounter the nation’s judicial system.

The resounding sentiment was that, within the intricate fabric of South Africa’s social landscape, the convergence of economic vulnerability and gender identity can disproportionately result in prolonged incarceration for what many perceive as minor transgressions.

The women’s candid reflections serve as a stark reminder that, in the ongoing pursuit of justice, there remains an essential imperative to ensure that the scales of fairness are calibrated equitably for all members of society.

In my view, the discourse surrounding the legal and political dimensions of Jacob Zuma’s remission has reached saturation point, rendering additional commentary unnecessary. Already, the remission has been called an insult to the rule of law, a political solution and a mockery of justice that puts the ANC before the country. Some have fallen just short of calling the recent decision treasonous.

Spending too much time in the national discourse on forging connections between Ramaphosa’s sentence remission for Zuma and the purported bastardisation of remission law is akin to pursuing a misleading diversion of attention from the plethora of pressing issues inherent in the South African criminal justice system.

Within this complex framework, one conspicuous concern stands out for me: the apathetic pace at which we have harnessed the power of law and justice to propel gender equality forward, and to address gender-based violence (GBV).

As a nation, we are failing the imperative to combat the vulnerabilities systematically imposed upon women by an overtly chauvinistic society. 

Redirecting our focus towards rectifying this long-standing imbalance merits far more attention and action than wasting time on weaving webs of connections of the ANC trying to save face.

Rather than delving into the intricacies of the well-worn legal and political discourse, we must as a nation contemplate a holistic strategy that emphasises presidential pardons and remissions of sentence initiatives tailored specifically to women and children.

This would be a proactive step towards grappling with the complex challenges of gender-based and juvenile justice concerns. In a country such as ours, such a comprehensive strategy holds the promise of fostering robust social justice, forging pathways to genuine gender equality, and ultimately safeguarding the welfare of those among us who find themselves in vulnerable positions.

Taking proactive strides, certain nations have elevated their efforts to address specific offences with a targeted approach. For example, steering toward a more equitable criminal justice landscape, Indonesia has extended its scope of compassion by granting presidential pardons to women ensnared in the clutches of drug-related charges. These are women who, coerced by circumstances or exploitation, found themselves unwittingly serving as couriers.

This enlightened approach underscores Indonesia’s commitment to mitigating the complex interplay of gender and societal disparities within the criminal justice realm. Such measures constitute integral components of a wider strategy aimed at rectifying systemic imbalances, resonating with Indonesia’s pursuit of a fair and just society for all.

Another urgent focus for our legislators should be to address the question of whether the power of remission was being exercised in a constitutional, reasonable and rational manner, considering the individual circumstances of the case.

We should get an answer to the question of whether the decision on recent remissions was based on objective criteria and factors, including the nature of the crime, the demonstrable behaviour of the prisoners, and how it was determined that they have the potential for rehabilitation.

In the same way that the courts that sentenced these individuals considered the importance of balancing the rights of the accused with the interests of society and justice, so should the authority deciding on remissions.

The recent release of adults through remissions holds little sway over my concerns, as the present course has left little room for reversal or alteration. My focal point gravitates towards a more probing enquiry, and the information that the government must immediately make public: Did the department extend a deliberate prioritisation to incarcerated children and women during the contemplation of remissions?

An even more granular query emerges: How many among the ranks of imprisoned minors and juveniles have been beneficiaries of this process? 

Statistics recently released by the Judicial Inspectorate for Correctional Services yield poignant insights: as of 31 May 2023, a count of 55 children remained in remand detention, with 3,105 juveniles awaiting trial and a further 42 children sentenced. The data continue with 1,503 juveniles sentenced.

When contextualised, figures spanning from 2019 to 2020 reveal the magnitude of the situation: 2,058 sentenced juveniles and 3,724 juveniles in remand, alongside 65 sentenced children and 58 in remand status.

These statistics cast a stark light on the reality we confront as a country. 

The reality is that the plight of women and children in African prisons has largely been ignored and, South Africa, for the ordinary person on the streets, is no different.  

This status quo comes as no surprise given that the senior leadership in African prison administrations continues to be predominantly male, perpetuating the existing gender disparity. DM

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  • Rona van Niekerk says:

    Dear Prof. Thank you so much for bringing the plight of women and children to the attention of those of us who read DM. I hope that includes our President…

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