Judging the Judging: Transitional Justice & Criminal Justice Reform

The second-last Justice for Breakfast roundtable discussion for the year 2015 focused on transitional justice and criminal justice reform.

The second-last Justice for Breakfast roundtable discussion for the year 2015 focused on transitional justice and criminal justice reform.

The Wits Justice Project, in partnership with the Wits School of Governance, hosted the third instalment of the 2015 Justice for Breakfast (JfB) series, which focused on transitional justice and criminal justice reform.

Transitional justice and the right to truth

According to the United Nations “transitional justice consists of both judicial and non-judicial processes and mechanisms, including prosecution initiatives, facilitating initiatives in respect of the right to truth, delivering reparations, institutional reform and national consultations”.

Robyn Leslie, researcher at the South African History Archive (SAHA), gave a presentation on the robust concept of “Right to Truth” and the unfinished business of the Truth and Reconciliation Commission (TRC). She talked about how the right to truth after atrocity includes a collective duty – or responsibility – to remember, with the hope of ending impunity and encouraging deterrence. In a post-apartheid context, this would mean that those responsible for inflicting grave human rights violations in South Africa could be brought to account and repetition of the same violent acts prevented – one of the goals of South Africa’s TRC. Leslie went on to highlight three major points of the “unfinished business” of the TRC:

Accessibility: the report and recommendations from the Truth commission were declared a “national asset” however most South Africans are unable to access and read the report because they have been made available online, and therefore out of the reach of most South Africans who would not be able to access them digitally. Secondly, the reports have not been translated and are only available in English.

Post-TRC prosecutions: there has been very little information about how South Africa is following up on the approximately 800 cases that the TRC handed over the national prosecuting authority, the NPA, for consideration. This denies victims of apartheid some form of accountability.

Structural inequality: the Truth commission heard individual testimonies. And although there were special hearings for business, medical fraternity, the judiciary, the army, etc. there was no room to interrogate the role these structures played in sustaining the Apartheid machinery.

Recently, SAHA won access to transcripts of the Section 29 hearings, which were the TRC’s confidential investigative inquiries. This on-going truth recovery project, “to uncover further evidence about unknown or unacknowledged aspects of South Africa’s past”, may not necessarily give the families of victims any closure, but may help us to understand the hierarchy of power and fills in gaps about South Africa’s history. Additionally, the recovery of truth could play a role in healing and give those affected the opportunity to either accept or reject that truth, according to Leslie.

Robyn Leslie, Researcher at the South African History Archive (SAHA)

Robyn Leslie, Researcher at the South African History Archive (SAHA)

An independent commission to right failures of the justice system

Following Leslie’s presentation, Ruth Hopkins of the Wits Justice Project argued for the establishment of an independent commission to assess cases of wrongful convictions after all legal remedies have been exhausted. She argues that any system designed by humans is guaranteed to be flawed. She gave the audience an insight into some of the cases of wrongful conviction that the WJP has previously covered and asked “how can the South African legal system address its inherent flaws?”

Drawing on examples of commissions in the United Kingdom and the Netherlands, Hopkins presented a case of how an independent body comprised of individuals with legal expertise would cross-check cases of wrongful conviction. This body would be independent from the executive, as well as the judiciary. Shoddy police investigations, unreliable witness statements, and convictions based on the doctrine of common purpose underlie most of the wrongful conviction cases covered by the WJP. According to Hopkins, the South African legal system needs an independent commission that will function as a “legal ombudsman”, with powers to refer an appeals court.

Ruth Hopkins, Senior Journalist at the WJP

Ruth Hopkins, Senior Journalist at the WJP

After the presentations, a lively discussion was held, in which many of the participants offered their insights and asked questions.

An official outcome document from the Justice for Breakfast Roundtable will soon be made available.

Former Constitutional Court Judge Johann Kriegler and member of the WJP board

Former Constitutional Court Judge Johann Kriegler and member of the WJP board

Related readings

Anthology of the Justice for Breakfast Roundtable Debates 2014

Presumed innocent, rotting in jail

Miscarriages of justice perpetuated

Justice For Breakfast - Judging the Judging Transitional Justice and Criminal Justice Reform (32)

Advertisements

About witsjusticeproject
The Wits Justice Project combines journalism, advocacy, law and education to make the criminal justice system work better for all.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: