OpenUCT :: Browsing by Subject "Criminal Justice"

Browsing by Subject "Criminal Justice"

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Open Access
Analysis of legal issues arising from the principle of concurrent domestic and international jurisdiction : application to the Rwandan context
(2014) Theophile, Sugira; Woolaver, Hannah
In international criminal law, the application of the principle of concurrent jurisdiction necessitates the existence of two types of Courts: a national court and an international one. As a result of the uniqueness of the Rwandan context, there were more courts hearing matters that arose from the genocide.6 In Rwanda, such cases are tried by ‘conventional courts’ and the ‘Gacaca’ courts. Gacaca is defined as a system of transitional participative community justice, whereby the population is given the chance to speak about the committed atrocities, to prosecute, defend, judge and punish the criminals. The conventional courts are divided into ordinary courts and military courts. All these courts have the jurisdiction to prosecute genocide cases. Genocide cases were therefore heard in three different courts domestically but in concurrence with International Criminal Tribunal for Rwanda (ICTR). As a result of the particular context of the Rwandan Genocide of 1994, particular issues arise and will be explored in this study.
Open Access
Challenging challenges: a metaphysical redress of van den Haag's retributive axiom – unequal justice over equal injustice
(2009) Traub, Craig Michael; Van der Spuy, Elrena; Phelps, Kelly
For over thirty years Ernest van den Haag repeatedly asserted a controversial claim in favour of the death penalty. He argued that, regardless of the extent to which capital punishment sentences are unequally, arbitrarily, or even racially, maldistributed among offenders, capital punishment is always a morally valid sentence in se. His controversial claim is rooted in the theory of retributive justice, as he appeals to the offender's individual moral desert to justify capital punishment for the crime of (first-degree) murder. Thus, van den Haag summarised his claim into a logical axiom - that unequal justice (i.e. capital punishment) is always preferable to equal injustice (i.e. abolitionism or life imprisonment). Van den Haag challenged abolitionists to refute his axiom by using his same retributive foundation. This is something abolitionists have been unable to do without resorting to consequentialist or hybrid reasoning. This theoretical dissertation has sought to find the flaws in van den Haag's logic and dispute his axiom on his own retributive grounds utilising, particularly, racial maldistribution of capital sentences. In this dissertation four attempts are made to dispute his axiom and the following arguments are identified: (i) an internal inconsistency within van den Haag's axiom; (ii) an argument for an implicit illegitimate authority, as well as (iii) an argument for an explicit illegitimate authority; and finally, (iv) an argument concerning the subjective experience of the offender when presented with a sentence of death. It is, however, the final argument that carries the most weight in disputing van den Haag's axiom. Thus, this dissertation has met his challenge by rendering the death penalty immoral in itself, even when the justification for the death penalty is retributive.
Open Access
Compensation for victims of sexual violence in South Africa : a human rights approach to remedial criminal compensation provisions
(2013) Greenbaum, B; Barratt, Amanda
The author questioned why state attorneys, prosecutors and magistrates/judges in South Africa rarely review the compensation concerns of sexual violence complainants and witnesses in criminal sentencing matters, and in quasi-criminal civil forfeiture proceedings, as is frequently done for other classes of complainants (namely, commercial crime complainants and victims of violent crime in general). A conclusion was reached, after conducting extensive research for this thesis, that offender and state compensation processes were sparingly utilized in cases of sexual violence, in part, due to institutional biases that resulted in discrimination. The above finding was substantiated by way of twenty-seven (27) interviews with criminal justice role-players, eight (8) court file case studies and forty-seven (47) victim surveys. The above subject matter is important because failures by criminal justice state role-players to review the compensation concerns of sexual violence victims, on account of biases, causes real harm to these vulnerable complainants. For example, research in this thesis confirmed that state and offender compensation can assist sexual violence complainants with their cultural obligations, court appearances and post-assault health expenses and to pre-empt compensation reviews on account of biases disrupts victims' post assault recoveries. Further, compensation can assist sexual violence complainants with security related expenses, including relocation costs, so as to avoid repeated victimization.
Open Access
The corroboration requirement in sexual offences : a discriminatory and unconstitutional evidential rule in the Malawian law
(2012) Ndovi, Vikochi Jane; Smythe, Dee
The problem with the corroboration requirement in sexual offences is that it is based on an improper foundation. The proffered rationale, that most complainants lie about sexual offence allegations, cannot be verified from empirical data. Regardless of this fact, due to the rule’s existence, the standard of proof in sexual offence cases is unnecessarily raised above that which normally obtains in other criminal cases, causing convictions in sexual offences very hard to come by. The rule is found to be only premised on discrimination against women. Such being the case, the rule runs counter to the current Constitutional order which is founded on principles of equality before the law, non-discrimination and the dignity of all persons. It is also against the Constitutional commitment of offering women full and effective protection. This paper advocates that such an evidential rule is undesirable for it serves no useful purpose in the adjudication of sexual matters and that the rule is unfairly discriminatory against women and unconstitutional in the present Malawi constitutional regime. It further advocates that the rule should be abolished both by judicial pronouncement and legislatively. Since the corroboration requirement is a common law rule, lessons will be drawn from comparative common law jurisdictions which used to have the rule but have now abolished it, such as South Africa, Namibia, the State of California, Canada and England.
Open Access
A critical examination of the relationship between the International Criminal Court and the United Nations Security Council, in the light of referrals and deferrals
(2014) Lugulu, Jullie Ingrid; Woolaver, Hannah
The Rome Statute of the International Criminal Court (Rome Statute) provides for a close relationship between the International Criminal Court (Court) and the United Nations Security Council (Security Council). This relationship is demonstrated through Security Council exercise of referrals and deferrals. This dissertation discusses first, the Security Council referrals of the situations in Darfur, Sudan and Libya. Second, the Security Council passing of resolutions 1422(2002) and 1487(2003), which deferred the Court from commencing any investigations or prosecuting of any crimes that could have arisen as a result of the United Nations peacekeeping operations. This dissertation argues that the Security Council has exercised referrals and deferrals contrary to the Rome Statute, the Charter of the United Nations (the Charter), and the Negotiated Relationship Agreement between the Court and the Security Council (Relationship Agreement) as envisaged by the drafters of the Rome Statute. It concludes by stating that, the relationship between the Court and the Security Council is at a crossroad because the latter has failed to exercise referrals and deferrals in the manner provided for in the Rome Statute and as envisioned during the drafting of the Rome Statute, thereby equating the Court to the proverbial bark of a toothless dog.
Open Access
From rule of law towards human rights-based approached to criminal justice reform in Mozambique the case of pre-trial detention
(2012) Lorizzo, Concetta; Van der Spuy, Elrena
Includes abstract. Includes bibliographical references.
Open Access
Management of review cases by the judiciary : the impact and implications on overcrowding in Malawi prisions
(2013) Kamanga, Ophrah Dorothy; Phelps, Kelly
Open Access
The narrow road towards a possible decriminalisation of consensual sodomy in Malawi
(2012) Kumitengo, Josephine Lucia; Smythe, Dee
The study is comprised of five chapters, with this as the first and will proceed on the hypothesis that criminalisation of consensual sodomy is unconstitutional and should be invalidated even in the midst of challenges to such a declaration. Chapter two will give comprehensive outline of the offence of carnal knowledge against the order of nature under section 153 of the Code. The ambiguities created by section 153 are analysed in chapter three where a critical discussion on the case of Republic v Steven Monjeza Soko and Tionge Chimbalanga Kachepa will also be made. A constitutional analysis of section 153 (a) and (c) will be done and it will be argued that it impairs the rights to equality, privacy and dignity in a manner that is indefensible. Chapter four will highlight among others, how the requirement of locus standi in constitutional cases is a limitation to the constitutionality challenge of section 153 (a) and (c). It will also show how the current Malawi setup of the appointing judges of the High court by the Chief Justice to sit as a constitutional court is another hindrance to the decriminalisation of the provision. In addition, the possibilities of decriminalising the offence of sodomy will be explored. Chapter five is the concluding remarks and recommendations.
Open Access
The new security beat : an audit of interventions employed to protect young people at Westbank High School in Metro-South district of the Western Cape
(2011) Dube, Paul; Berg, Julie
All over the world, state police are but one actor within a hybrid policing field involved in the provision of security. Civil society can legitimately come together in either self-help schemes or by means of buying security to deal with feelings of insecurity. An area can therefore be subject to plural policing. This paper is an audit of security interventions implemented to protect learners enrolled at Westbank High School. Westbank High School is a high-risk school. Learners in schools suffer a double-blow because not only do they suffer from crime within the school walls but also outside the school walls. Two general questions emerge in this situation. The first being, what is being done by state and non-state actors about the problem of crime in and around schools? Secondly, how are school children being supported and protected against criminal activity in their respective schools?
Open Access
The operation of private governance: exploratory research into private investigations
(2012) Roux, Jean-Pierre
Security governance is a salient topic within South Africa, both in public media, discourse and academic literature. Currently, South African government holds a domineering mentality towards security and wishes to monopolize it. Nonetheless, there is a growing call for private security, both by citizens and the business sector in South Africa. Furthermore, private security is a polemic issue with debates around its effects on public good as well as its role within society. This dissertation underlines and addresses these issues. In order to accomplish this, an ethnographic field study was conducted to uncover the situation and the forms and issues that revolve around private security on a ground level, breaking away from the academic cacophony that has saturated the field.
Open Access
Parole in South Africa : is it a right or a privilege? : the theory and practice of parole in South African Correctional centres with specific focus on the nature of parole under the Correctional Service Act 8 of 1959 (repealed) and the current Correctional Service Act 111 of 1998
(2009) Moses, Jacobus Johannes; Schwikkard, Pamela Jane
The principal focus of this research centres around the question whether parole, as it is understood and practised in South Africa, is a right or a privilege. The essential question of this thesis is whether a prisoner acquires an enforceable right to be released on parole after serving the non-parole period or the statutorily-determined minimum period of imprisonment. The focus is on the status of the prisoner and the process relating to his/her continued incarceration in the period starting from when his or her non-parole period has ended to the actual date of his/her release from prison according to the sentence imposed on him by the sentencing judge/magistrate. In addressing this question in a South African context, reference is made, by way of comparison, to the practice of parole nationally, and internationally, including America, Canada, Australia, India, England and the European continent insofar as it falls under the jurisdiction of the European Court of Human Rights.
Open Access
Politics of the number: an account of predominent South African prison gang influences
(2014) Skywalker, Luke Lee; Berg, Julie
The study is a contextual account of various factors that facilitate and promote the continued dominance of the ‘Number gangs’ prevalent in many (if not most) South African prisons. Even though there is a substantial amount of factors that critically influence and sustain the South African prison gangs, this paper will focus upon a few of these influences. An emergent sentiment from exponents within these gangs, and supporting academic literature both argue that these dominant inmate factions are now adapting their mythical credo so as to remain an informal power-player within the scope of a failing South African prison administration. From a managerial perspective, the Department of Correctional Services (DCS) is often found attempting to give meaningful accounts of itself amidst its failed efforts to transform both itself and the South African prison administration. The policy legislation and administration of DCS thus also contribute to prison gang prominence. The study shows that DCS has embraced a policy of harsher penality, although its official position is that it is transforming into an administration that is focused upon human rights. This paper will thus give brief insight into the prison gangs’ organization and operations, and then focus upon various contexts within which the Number gangs continue to be pervasive, especially due to changing prison administrative policy (or lack thereof) and due to new adaptive strategy employed by gangs to make themselves powerbrokers within this contentious penal discourse.
Open Access
The efficiency of arrest warrants issued by the ICC vis-a-vis the principle of immunity: case study of the Sudanese authorities
(2009) Sibomana, Pierre Celestin; Nakhjavani, Salim
Justice is a gamut that begins from the pronouncements and substance of the law to the different stages and forms of its enforcement. There are effective problems that are associated with this phenomenon. The problem of whether heads of states may be brought before courts to be criminally prosecuted is still an unsettled area of Law. This dissertation examines the efficiency of arrest warrants issued by the International Criminal Court (ICC) vis-a-vis the principle of immunity with Sudanese authorities as a case study. This problem of criminally prosecuting heads of states raises problems in international law as they normally enjoy immunity from prosecution.
Open Access
The South African prosecution service: linchpin of the South African criminal justice system?
(2007) Keuthen, Jens Christian; Scharf, Wilfried; Steyn, Esther
The prosecution service is a key role player in the criminal justice system. Its effectiveness and efficiency directly reflect on the performance and service of the whole criminal justice system. The South African prosecution service in its current shape is relatively young. Constitutional and legislative provisions supplemented by various policy papers have established a framework that in principle allows for an effective and efficient function of the prosecution service in the South African criminal justice system. However, the actual performance of the prosecution service is insufficient, as this thesis suggests. Reasons for the current underperformance can be identified and are strongly linked to the transitional development of the South African prosecution service. In order to increase the performance of the prosecution service and the service of the criminal justice system this thesis explores the challenges facing the prosecution service and that have to be addressed immediately.
Open Access
Understanding the role of the state in the governance of security in South Africa: a Muizenberg improvement district case study
(2009) Mpala, Nokuthula; Berg, Julie
Changes in the governance of security have increasingly challenged the role of the state as the sole provider of security due to the increasing plurality of security providers. This change often brings about questions as to what role the state plays and how active it is in governing security. Two theories have been postulated to explain the state's role in these changing times, namely the nodal governance theory and the state anchored pluralism theory. Because certainty on the state's role depends on empirical inquiry, this paper is based on research conducted in an area with a plurality of security providers, namely, the space demarcated for the Muizenberg Improvement District. It examines the relationship between the state and the various auspices and providers within that area. Before concluding on how the Muizenberg scenario supports the nodal governance theory in that the state is a node among other nodes as opposed to an anchor, this paper examines concepts important to this paper namely 'governance' and 'security' and further examines in detail the two theories at hand.

Browsing by Subject "Criminal Justice"

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