DEATH IN DEMOCRACY

• Citation: (2013) 25 SAcLJ 736
• Date: 01 December 2013
• Published date: 01 December 2013
• Author: Pamela J SCHWIKKARD BA, LLB (Wits University), LLM (University of Natal), LLD (University of Stellenbosch); Professor and Dean, Faculty of Law, University of Cape Town.

In South Africa, despite extensive constitutional safeguards, the number of people who die at the hands of the police orwhilst in custody remains alarmingly high. Although the courts have demonstrated a commitment to upholding constitutional values, these values have had little traction in the criminal justice system. Possible explanations for the vulnerability of suspects, accused and convicted persons inSouth Africa include a social justice deficit and ambiguity in commitment to constitutional values by the Executive.

I. Introduction

1 In 1994, South Africa became a democracy founded on a progressive Constitution which embraced the principle of constitutional supremacy. The Constitution of the Republic of South Africa 1996 (“Constitution”) includes a Bill of Rights which protects both traditional liberal individual rights as well as socio-economic rights. It also provides for a number of institutions which are required to strengthen democracy; these include a Public Protector and a Human Rights Commission.1 The Bill of Rights includes provisions that impact on the criminal justice system, inter alia, the right to life,2 the right to dignity3 and the right to equality.4 The right to freedom and security of the person5 and the rights of arrested, detained and accused persons6 are set out in full below. Their detailed nature reflects a complete rejection of the brutality of the apartheid regime. These detailed provisions demand attention and should be juxtaposed with the reality faced by the majority of the population.

12 Freedom and security of the person.

1. Everyone has the right to freedom and security of the person, which includes the right–

a. not to be deprived of freedom arbitrarily or without just cause;

b. not to be detained without trial;

c. to be free from all forms of violence from either public or private sources;

d. not to be tortured in any way; and

e. not to be treated or punished in a cruel, inhuman or degrading way.

2. Everyone has the right to bodily and psychological integrity, which includes the right–

a. to make decisions concerning reproduction;

b. to security in and control over their body; and

c. not to be subjected to medical or scientific experiments without their informed consent.

35 Arrested, detained and accused persons

1. Everyone who is arrested for allegedly committing an offence has the right–

a. to remain silent;

b. to be informed promptly–

i. of the right to remain silent; and

ii. of the consequences of not remaining silent;

c. not to be compelled to make any confession or admission that could be used in evidence against that person;

d. to be brought before a court as soon as reasonably possible, but not later than–

i. 48 hours after the arrest; or

ii. the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;

e. at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and

f. to be released from detention if the interests of justice permit, subject to reasonable conditions.

2. Everyone who is detained, including every sentenced prisoner, has the right–

a. to be informed promptly of the reason for being detained;

b. to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;

c. to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

d. to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;

e. to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and

f. to communicate with, and be visited by, that person's—

1. i. spouse or partner;

2. ii. next of kin;

3. iii. chosen religious counsellor; and iv. chosen medical practitioner.

3. Every accused person has a right to a fair trial, which includes the right—

a. to be informed of the charge with sufficient detail to answer it;

b. to have adequate time and facilities to prepare a defence;

c. to a public trial before an ordinary court;

d. to have their trial begin and conclude without unreasonable delay;

e. to be present when being tried;

f. to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;

g. to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

h. to be presumed innocent, to remain silent, and not to testify during the proceedings;

i. to adduce and challenge evidence;

j. not to be compelled to give self-incriminating evidence;

k. to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;

l. not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;

m. not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted;

n. to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and

o. of appeal to, or review by, a higher court.

4. Whenever this section requires information to be given to a person, that information must be given in a language that the person understands.

5. Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.

2 The Constitution has required a change to the rules of both substantive and procedural criminal law. Generally, the High Courts have been vigilant in promoting constitutional values. The last 19 years has seen, inter alia: the abolition of the death penalty;7 the decriminalisation of consensual sex between men;8 the repeal of legislation permitting detention without trial; further regulation of the use of deadly force;9 rules requiring unconstitutionally obtained evidence to be excluded where admission would infringe the right to a fair trial or be detrimental to the administration of justice;10 a stringent

enforcement of the presumption of innocence;11 the right to legal representation at state expense where a substantial injustice would otherwise occur;12 access to information held by the State being given to defendants so that they can adequately defend themselves;13 the abolition of misogynist rules of evidence.14 The author has previously looked at the impact of these constitutional reforms and raised the question as to whether these progressive reforms have indeed improved the lot of those who come in contact with the criminal justice system.15 This essay focuses on one aspect: death and the criminal justice system, and further interrogates the gap between the content of the law and its impact on the citizenry.

3 Prior to 1994, South Africans lived under the draconian system of apartheid. Death as a result of state violence was commonplace and took many forms: lawful executions, death in prisons and in police custody and other unlawful extra-judicial killings. In 1995, the death sentence was abolished;16 consequently, the number of deaths at state hands is no longer supplemented by judicial hangings.17 Nevertheless, relying solely on official statistics, death at state hands occurs at an alarming rate despite the transition to democracy and a comprehensive Bill of Rights.

II. The numbers

4 During the apartheid era, whilst there was significant interest in the death of political activists in detention, there was relatively little interest in the death of “ordinary” people in custody.18 Records of the Human Rights Committee, Amnesty International and the Institute of Race Relations give the following limited picture: in the period 1963–1990, 73 political prisoners died whilst in detention without trial; during 1984–1990, 32 activists died while in police custody. From 1980 to 1982, 300 people (both political and non-political) died in police custody and in 1987 there were 105 deaths in this broader category19 The Annual Reports of the South African Institute of Race Relations indicate that the highest number of people killed by the police under apartheid occurred in 1985 when a state of emergency was declared by the apartheid regime, 763 were reported to be killed by the police that year.20 However, any comparison of police and prison deaths during apartheid and post-apartheid must be treated with the utmost caution as the apartheid statistics are highly unreliable; in particular, they do not take into account deaths at the hands of the military or deaths in the “homeland states”.21

5 In 1997, the Independent Complaints Directorate (“ICD”)22 was established; its primary function is to investigate complaints against the police. In 2012, its name was changed to the Independent Police Investigative Directorate (“IPID”).23 The IPID is required to investigate all deaths in police custody or as a result of police action24 and the police must report such deaths to the ICD.25 The death toll in 1997 was 737;26

in 2011, it was slightly lower at 720.27 The average death toll from

2000 to 2010 was 713.28 South Africa in 2011 had a population of approximately 50.5 million. England and Wales in 2011 had a population of approximately 63.3 million;29 during the same period the average death rate...