As the African National Congress reflects on the state of our nation in the coming months, and reviews policy and direction, it must be evident that the government’s substantially punitive response to crime and violence has not been successful. If anything, this stance has exacerbated an over-reliance on criminal justice processes in responding to the social ills of the nation. A more balanced approach — one that recognises the need to protect society but also the necessity to advance social cohesion and development — must be adopted.
Crime, violence and their devastating effects continue to engage South Africans in more ways than we could ever have envisaged 13 years ago when we boldly crafted a new constitutional dispensation.
The new democratic order ushered in a criminal justice system that conformed to the best international standards of fairness and justice, and promised to cast off the shackles of our country’s ignominious past. Indeed, in the first exciting years of our democratic transformation, much happened to align the system with the human rights imperatives of the Constitution. Decisive steps included the abolition of the death penalty and corporal punishment, the revision of rules relating to the admission of confessions, the tighter regulation of police powers to shoot to kill, and a new and progressive correctional dispensation.
But continuing crime (often accompanied by gratuitous violence) and the seeming inability to make decisive inroads into dealing with it has seen pressure being exerted on the criminal justice system from various quarters. On balance, numerous interventions have brought about a more retributive and punitive framework. Such measures have included tougher bail legislation, minimum mandatory sentencing, closed maximum prisons, greater sentencing powers and increased jurisdiction for the lower courts.
The net effect has been a rapidly increasing prison population (both awaiting trial and sentenced prisoners) without any significant impact on the levels of serious crime.
South Africa’s rate of incarceration is among the highest in the world, and is certainly the highest in Africa, at about 337 to 100 000 (compare to Nigeria at 30 to 100 000). Of additional concern is that some 40% of those in prison are under 25 years of age, while the average length of sentences has also increased considerably.
It should be a matter of considerable disquiet that, in a constitutional democracy that continues to inspire and motivate other societies, we seem unable to find an effective response to the challenge of crime and justice. This raises critical questions about the morality and the psyche of the nation, the rationale and genesis of crime, and the most appropriate policy and programmatic responses.
In many respects, what has effectively become a ”zero tolerance” stance of tough law enforcement pays insufficient attention — if any — to the social factors that lie behind crime. Such factors include our country’s legacy of violence, historic neglect, and persistent and deep levels of poverty and inequality.
Throughout South Africa’s pre-democratic history, there was always a blurred distinction between the law, including the criminal law, and what may be described as matters of morality and social good. The immorality and social injustice that constituted apartheid was sanctioned by a rigid and uncompromising legal system, and in general the law was seen as illegitimate and without credibility, leading to widespread non-observance.
While many believe that 1994 marked a clean break in the legitimacy of the law as a necessary and useful instrument of both transformation and social control, the nature of the transition and the many compromises made along the way may have meant that, for many South Africans, distrust in the law would continue.
The granting of amnesty and the absence of any real accountability for those who committed the most heinous crimes during apartheid, combined with the lack of any meaningful intervention to deal with the deep inequalities occasioned by an unfair legal, economic and social regime, meant that even as we embraced a new constitutional dispensation, all around us the evidence abounded of an unequal society. And the law, including the new constitution, made the consequences of such outcomes legitimate.
Under these circumstances the internalisation of the values required by a new order proved exceptionally difficult for sections of our society, and it is understandable that many continue to distrust the law and remain cynical of its ability to serve as an instrument in social transformation.
We grapple with the competing demands of fidelity to the Constitution, which requires us to ”establish a society based on democratic values and social justice”, and the incidence of criminal and antisocial conduct, which lend themselves to demands for punitive and retributive responses. The result is often contradictory and inconsistent approaches to both policy and practice. So while we recognise the principles of restorative justice and the value of ubuntu, its application is conspicuously absent in a system that incarcerates at the levels that we do.
We recognise the value, efficacy and justness of community corrections where appropriate, yet custodial sentences remain the favoured approach. We embrace the need to be responsive to the needs of those who are marginalised by poverty and social exclusion, yet we constantly use a criminal law- enforcement approach to deal with the consequences of such exclusion, evidenced by bylaws that seek to criminalise the conduct of beggars, informal traders and others whose object is simply to eke out a living.
We highlight the historic inequalities of the criminal justice system and its role in perpetuating those inequalities, yet in practice poor people are still imprisoned for relatively minor offences, while the wealthy are able to plea-bargain suspended sentences and fines for serious offences, including coup plotting and sexual abuse.
Under circumstances such as these there is the real risk that rights become commodities available in accordance with the individual’s resources. The contrast with our stated objective of an egalitarian society could hardly be more stark.
The desire to respond to public pressure in the face of the high incidence of crime will continue to challenge policy makers. Yet, as important as it may be, public opinion cannot be the sole determinant in how we respond to crime, given the multiple and complex factors that contribute to the cycle of offending.
Of course, we must retain the capacity to protect society against those who represent a threat to it, and use custodial sentences when appropriate and necessary. We should, however, guard against the tendency to overextend the reach of the justice system and expect it to remedy problems occasioned by poverty, inequality and the other fault lines in our society.
Ultimately, crime prevention is about understanding the legacy and causes of violence and dealing with them, investing in the growth of our communities, and recognising the special needs as well as the vulnerability of young people. This means dealing with unemployment and poverty, and ensuring that the violence and the indignity occasioned by poverty is addressed. It also requires a vigilant examination of whether we are indeed proceeding in the right direction in bridging the chasm that exists between rich and poor, and if our policies, legislation and programmes do always advance the ideals of the Constitution.
Crime and violence are formidable threats to our young democracy, and require a concerted and comprehensive response. It is tempting but misleading to hope that a law-enforcement approach will in itself be sufficient to break that cycle.
Advancing social justice, pushing back poverty and improving the material conditions of our people are all central features of government policy. Ensuring that such interventions are properly resourced and competently executed is the best investment we can make in a safer society.
Jody Kollapen is chairperson of the South African Human Rights Commission