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This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.

The Criminal Justice System and the Protection of Human Rights: The Role of the Prosecution Service

Source: Amnesty International


In February 1998 the Parliament of South Africa, through its Portfolio Committee on Justice, began debating a vital piece of legislation which is intended to increase the accountability of the country's troubled prosecution service. The National Prosecuting Authority Bill, drafted in terms of Section 179 of the Constitution of the Republic of South Africa, 1996, has as its broad purpose the balancing of independence and accountability in the prosecution of crimes by the State. The Bill, if passed into law, will most immediately affect the position of the currently-serving Attorneys-General. Achieving the necessary balance will be a difficult matter, but is crucial to setting the prosecution service on the right course at a time of widespread public concern at the capacity of the criminal justice system to deal with high levels of crime. This lack of confidence in the capacity of the police, the prosecution service and the courts to address the crisis is reflected in the alarming rise in support for the restoration of the death penalty and the incidents of violent ''self-help justice'' which have occurred in different parts of the country.

In October 1997 Amnesty International, in the belief that the draft National Prosecuting Authority Bill could potentially result in improvements to the functioning of the criminal justice system and thereby to the protection of human rights, forwarded comments and recommendations on the Bill to the South African Government and the Chairperson of the parliamentary Portfolio Committee on Justice. In the same month a representative of the organization presented the submission to the Truth and Reconciliation Commission (TRC), during its three-day hearings in Johannesburg on the role of the legal system in the human rights violations which took place under the former Government.The views put forward reflected the results of an inquiry conducted by Amnesty International earlier that year. On 3 February 1998 the organization sent its submission formally to the Portfolio Committee on Justice in the context of the Committee's public hearings on the Bill scheduled for mid-February.

The submission, which is printed on pages 5-36 below, looks at the importance of the draft legislation in the context of aspects of the previous history of the Office of Attorney-General and after reviewing the specific crisis which had developed in the province of KwaZulu Natal over prosecution decisions taken in political violence cases. The recommendations in Amnesty International's submission were made in light, also, of the United Nations (UN) Guidelines on the Role of Prosecutors, which were ''formulated to assist Member States in their tasks of securing and promoting the effectiveness, impartiality and fairness of prosecutors in criminal proceedings''.

As noted in Part II of the submission, the proposed legislation will apparently reverse the consequences of the 1992 Attorney-General Act which had made these law officers independent of the control of the Minister of Justice. Prior to 1992 the Attorney-General exercised authority and performed functions of the office subject to the control and direction of the Minister. This earlier period had been characterised by the possession and use by the Attorneys-General of extraordinary powers, for instance, with respect to the withholding of bail and the detention and compulsion of witnesses. In this and other respects the Attorneys-General appeared to be indistinguishable from the then Government in its use of the law to persecute its opponents, a situation which must inevitably have contributed to the profound alienation from and distrust of the criminal justice system on the part of the majority of South Africans. The 1992 Act, hastily passed by the then Government during its negotiations with formerly banned opposition parties, gave the Attorneys-General full authority to prosecute on behalf of the State and reduced the role of the Minister to that of coordinating their functions. The Act imposed few obligations on them for reporting to the Minister or the Parliament, and created cumbersome and inadequate procedures for the suspension or removal of an Attorney-General.

For full text see http://web.amnesty.org/library/Index/ENGAFR530011998?open&of=ENG-ZAF

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