We the People: Baltimore is the new South Africa

Jennifer Rae Taylor spent three months earlier this year with the Wits Justice Project, researching race and the criminal justice in South Africa. In a recent article published in Salon, she offers some explanations for why the city of Baltimore erupted in protests that invoked racial inequality following the death of Freddy Gray while in police custody— despite the fact that the city is governed under a black leadership. Why the residents of Baltimore had no more faith in law enforcement and prosecutors than their counterparts in Ferguson, Missouri or Staten Island, where whites are over-represented in local government and the police force.

A woman faces down a line of Baltimore Police officers in riot gear during violent protests following the funeral of Freddie Gray April 27, 2015 in Baltimore, Maryland. (Photo by Chip Somodevilla/Getty Images) Accessed on http://www.pressroomvip.com/19-shocking-images-from-the-baltimore-riots/

Her questions brought her back to South Africa, where like Baltimore, blacks have achieved racial representation in key government positions, but young black men continue to be criminalized. As in the United States, the public perception in South Africa is that the courts treat blacks differently from whites.

In her article, Taylor observes the similarities between the two countries’ racial histories and reflects on their failures to realize their ideals of racial justice.

She writes:

Though the vast majority of lawmakers, judges and prison leaders are now black, apartheid’s end did not begin a national project to dismantle and rebuild a system for responding to crime. Power changed hands but continued on the same track. Mandatory minimum sentencing laws that flourished in the U.S. beginning in the 1980s were embraced by South Africa’s democratic government post-1994 as a response to growing poverty and crime, and the number of South African prisoners serving life sentences has increased by nearly 3,000 percent. Lengthy and widespread imprisonment, a tool whites first embraced as a means of exploiting and controlling the nation’s black masses, is now wielded by the nation’s black leaders.

Read Taylor’s full article here: “Baltimore is the new South Africa: Black political power in South Africa — or in Baltimore — hasn’t prevented horrendous racial injustice“.

We the People

In a series of blogposts, entitled “We the People”, the Wits Justice Project will be focusing on a comparison of policing, criminal justice, and incarceration in South Africa and the United States. This body of work grows out of contributions by journalists, lawyers, and commentators on both sides of the Atlantic, and seeks to understand these issues in light of the similar histories of racial oppression and the current high rates of incarceration in both countries.

Given that South African courts regularly turn to international jurisprudence, including American law, for guidance, we believe that this study will provide a useful basis to examine the development of criminal law and procedure here in South Africa with a critical lens. While American courts give less weight to jurisprudence from other countries, we hope that these posts will provide insight into the way that the role of human dignity, recognized by the South African Constitution, should be a consideration in any search for justice. 

Wits Justice Project video: community paralegals in Orange Farm

Community paralegals at work (Photo: Timap for Justice)

Watch Paul McNally’s video on community paralegals, made after the Wits Justice Project’s recent breakfast discussion on community paralegals in South Africa.

McNally interviews Bricks Mokolo of the Orange Farm Human Rights Advice Centre about the centre’s work, funding challenges and a recycling initiative to raise money for the centre.

WJP coordinator Nooshin Erfani-Ghadimi also features in the video, arguing that community paralegals can relieve some of the pressure on SA’s criminal justice system and make it more effective.

Watch the video.

Related resources:

Outcome report: Justice for Breakfast discussion on community paralegals in SA 

Bringing the law to the people: The role of community paralegals in our country by WJP legal intern Thandeka Khati 

Community paralegals may improve access to  Justice in SA by WJP journalism intern Hazel Meda (published in the Saturday Star) 

 

Bringing the law to the people: The role of community paralegals in our country

Community paralegals have assisted many people in Sierra Leone. (Photo: Timap for Justice)

By Thandeka Kathi, Legal Intern at the Wits Justice Project

The marginalized people in society rarely have access to justice because they face many impediments, such as lack of knowledge of the law. When they do know their rights, they cannot afford the services of a lawyer. When lawyers are available pro bono they are usually out of reach, because their offices are based in the cities.

This is a flaw in our legal system. On one hand we have a legal system which boasts one of the best constitutions in the world. But on the other hand we have people who do not have access to legal remedies.

This is where community-based paralegals can help, especially in rural settings.

I recently attended a Justice for Breakfast event on the role of community-based paralegals, held by the Wits Justice Project and the Wits Graduate School for Public and Development Management. Before this event, I did not know that this branch of paralegals existed. I thought that paralegals worked in law firms and banks to help attorneys with legal research and so forth.

I learned that there is no agreed-upon definition of what a community-based paralegal is. According to the World Bank “Definitions vary, but roughly a community-based paralegal is a person trained in law and the workings of government who employs tools like education, mediation, advocacy, and organizing to address instances of injustice”.  Therefore, a community-based paralegal is more than a legal assistant. At the roundtable there was much debate as to whether a common definition of the term “community paralegal” is needed or if we leave it as it is because a broad definition gives the community access to individuals who possess a variety of skills.

While I acknowledge the importance of community-based paralegals and the positive impact they have, especially in rural communities, I am also concerned about the negative impact they might have.

The law is a complicated machine that has to be operated with the utmost care. I am fearful that people who have not received training in the law can give legal advice. My concerns were echoed by Ruby Matthys, who represented the Association of Regional Magistrates of Southern Africa. She warned that the community is vulnerable to people who may not be qualified to give legal advice and who are not held accountable for the advice that they give.

The regulation of paralegals is essential to ensure that the community is protected. The second draft of the Legal Practice Bill does not include the regulation of paralegals. The Law Society of South Africa, in its submissions about the Legal Practice Bill lists the exclusion of community-based paralegals from the Bill as positive. I do not understand why this is viewed as positive because leaving community-based paralegals unregulated makes communities vulnerable to unqualified people posing as community-based paralegals.

In my opinion, community-based paralegals should be regulated because they play a vital role in bringing justice to the people. In the words of one roundtable participant, “Community-based paralegals can be traced to the 1980s. They are resilient and are not going anywhere”. Therefore they should be regulated like all other professions.

Community paralegals may improve access to justice in SA

Community paralegals have proved successful in other African countries, such as Sierra Leone. (Photo: Timap for Justice)

(Published in the Saturday Star, 16 February 2013)

HAZEL MEDA

RICHARD “BRICKS” MOKOLO has been a community activist since the 1980s. In those days he fought the apartheid government, demanding it recognise the human rights of all South Africans. But he says his fight is not over.

“After the new dispensation, there are other challenges,” says Mokolo, the Paralegal Coordinator at the Orange Farm Human Rights Advice Centre.

Mokolo believes one of those challenges is access to justice, which is a constitutional right but not a reality for the economically-disadvantaged residents of Orange Farm. Many do not have the money to travel 30 kilometres to the nearest court, which is in Vereeniging, or to pay for private lawyers.

A wide cross-section of stakeholders in the criminal justice system discussed the role of community paralegals like Mokolo at a “Justice for Breakfast” event at Wits University’s Graduate School for Public and Development Management (P&DM) on Wednesday 13 February. The gathering was organised by P&DM and the Wits Justice Project.

Representatives of the Department of Justice, Legal Aid SA, the Law Society of South Africa, the National Alliance for the Development of Community Advice Offices (NADCAO) and other civil society organisations debated the pros and cons of community paralegals.

Robyn Leslie, a researcher at the Wits Justice Project highlighted the successful use of paralegals in other African countries. In Malawi paralegals have assisted hundreds of thousands of people, Leslie said.

Some audience members said community paralegals have an important role to play in alternative dispute resolution, which might relieve the caseload in South Africa’s overburdened courts.

Mokolo said the Orange Farm paralegals provide mediation in domestic violence and unfair dismissal cases.

Ivan Evans of the National Institute for Crime Prevention and Rehabilitation of Offenders (Nicro) said paralegals could help reduce overcrowding in remand centres, by doing something as simple as helping awaiting-trial detainees to contact relatives, who could then provide bail money.

A number of participants in the breakfast dialogue raised concerns about the lack of clarity in the definition and role of paralegals in South Africa, the need for reliable training, and the fact that paralegal activities appear to be unregulated.

The problem of people masquerading as paralegals while charging the public for their services was also highlighted.

Mokolo says he and his colleagues refer people to organisations like the Wits Law Clinic and the Legal Resource Centre where they can consult lawyers for free.

“We are not saying to the people we are lawyers. We are opening doors for them to meet the lawyers.”

Another point of debate was whether community paralegals should be paid professionals or volunteers.

Winnie Kubayi of NADCAO said the work done by community paralegals is time-consuming and that they should be paid for it, adding that a salary and continuous training help to motivate the paralegals. She said her organisation’s salaried paralegals have been providing services to rural communities in KwaZulu-Natal since 1997, with no staff turnover.

Mokolo says the Orange Farm paralegals are volunteers who do the work because of their commitment to community activism.

Nooshin Erfani-Ghadimi, the coordinator of the Wits Justice Project responded to calls for further studies on the issue of paralegals in this country.

“We hope to produce research on the socio-economic and financial benefits of introducing community paralegals into South Africa’s criminal justice system at critical nodes like courts and police stations,” she said.

*Hazel Meda is a member of the Wits Justice Project, which investigates miscarriages of justice.