Some of the irrational responses to crime could damage our new Bill of Rights, argues Etienne Mureinik
MANY South Africans now live in dread of violent crime, and it is not just the awful number of daily victims that haunts them. It is also the gratuitousness with which petty thieves casually kill and cripple their victims in passing.
More than anything, it is the pointless brutality of property criminals who have already got the goods they want that drains social confidence.
Nor are there any simple solutions. Adequate police protection requires a comprehensive reconception of policing. To attack the problem at source requires social upliftment programmes that will take years, maybe decades, to work.
It is scarcely surprising that a citizenry unnerved by random and intractable aggression will search for scapegoats.
An easy herd of scapegoats, because there are so few people to speak up in their defence, are the rights of fair trial in the
For much of last year the focus of controversy was the blanket police docket privilege. This was an old rule which entitled the prosecutor in a criminal trial to withhold from the accused all the information in the police file, without exception, even the accused person’s own statement to the police.
In the most respected criminal justice systems abroad, prosecutors seldom enjoy such an unqualified privilege. There it is usually recognised that a fair opportunity to make a defence requires access to some of the police information.
Invoking the interim Bill of Rights, last year some of our judges reached the same conclusion. But the leading judgments were careful to acknowledge the need to withhold police information if its disclosure would jeopardise the safety of witnesses or otherwise undermine the prosecution.
The judges were bringing fairness to a branch of our law which has been notoriously rigid and archaic, but they were assiduous to protect the integrity of the prosecution process.
Despite that, a scare campaign was mounted to further frighten an already anxious public into believing that this long overdue reform was frustrating the courts’ capacity to convict the
This year the focus has shifted to bail.
The interim Constitution enacts an expectation of bail. It entitles accused people to bail “unless the interests of justice require otherwise”.
This rule is a direct corollary of a principle foundational to our criminal justice system – that everyone is presumed innocent until proved guilty. From that principle it follows that people accused of crime are entitled to be treated as innocent, and therefore entitled to their freedom, unless there is good reason for incarcerating them – unless, say, they are a menace to their accusers or likely to abscond.
This year a second scare campaign sought to persuade the public that the liberty of the accused – people our law presumes innocent – is unimportant.
Some of the authors of this campaign manipulated opinion by labelling those who are merely accused of crime as “criminals”.
Riding on that manipulation, there came demands to deny bail to categories of accused people identified as dangerous on no stronger a basis than that they have certain kinds of criminal records, or have been arrested on serious criminal charges.
A far better response was that suggested by the Minister of Justice, in his proposal for bail reform, subsequently amended in Parliament.
The Minister’s unamended proposal was a skilfully crafted law, designed to ensure that the courts investigate bail decisions systematically and comprehensively, and take a decision that does full justice to the need to protect both the liberty of the accused individual and the safety of the vulnerable citizen. And it did that without violating the presumption of innocence.
In crude contrast is the proposal recently put forward by the drafters of the final Bill of Rights, now under negotiation in the Constitutional Assembly. They propose to reverse the expectation of bail. Under their draft, an accused person would be entitled to bail only “if the interests of justice so permit”.
The effect of that is probably to burden accused people who rely on this somewhat illusory “right” with the necessity of making a case for their release. The police would not need to make a case for their detention. The damage to freedom and the presumption of innocence could be immense.
But these issues, important as they are, are discrete, and their impact is limited. Much wider reaching is the argument repeatedly made in recent weeks by leading African National Congress constitutional negotiator and MP Willie Hofmeyr.
Hofmeyr argues that crime cannot be fought effectively unless the limitation clause in the final Bill of Rights is substantially
The limitation clause is the Bill of Rights’ escape valve. It is a single general clause which empowers government to override any or all of the fundamental rights in the Bill. Hofmeyr wants the limitation clause to be made considerably more elastic than it is in the interim Constitution. The rights in the Bill would be made much easier for government to trump.
This, he says, is essential if government is to be free to bring forward laws that quell crime.
There are two fallacies here. One is that it is the fair trial rights, rather than deficient policing or the legacy of deprivation, which make violent crime unmanageable. A close consideration of the police docket and bail controversies shows the opposite – that with thought and care one can foster fundamental rights and fairness without undermining law
The other fallacy is that in order to fight crime we have to make it easy to override not just the fair trial rights, but all the fundamental rights. Hofmeyr wants to elasticise the limitation clause as a whole, to make it easier to override any right in the Bill of Rights, even the guarantees of equality and free speech.
The national alarm about crime is valid and understandable. But unless we stop responding to it irrationally, it will cause untold damage to the final Bill of Rights.