Eyewitness identification of multiple perpetrators

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

Eyewitness identification of multiple perpetrators

Authors Alicia Nortje, Colin G Tredoux, & Annelies Vredeveldt

ISSN: 1996-2118
Affiliations: PhD (Psychology) (UCT), Postdoctoral Research Fellow, Department of Psychology, University of Cape Town; PhD (Psychology) (UCT), Professor in the Department of Psychology, University of Cape Town; PhD (Psychology) (York), Department of Criminal Law and Criminology, Vrije Universiteit Amsterdam
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 348 – 381

Abstract

To date, research and South African case law has largely ignored the memory burden experienced by witnesses to multiple-perpetrator crimes and failed to address the challenges that arise when administering identification parades for such crimes. Empirical research suggests that eyewitnesses to multiple-perpetrator crimes achieve low identification accuracy, which worsens with the addition of each perpetrator to be identified. Witnesses to multiple-perpetrator crimes also experience a unique memory task of matching criminal actions to perpetrators. Preliminary empirical evidence suggests witnesses perform poorly at this task. Although some international research documents the difficulties that officers experience when conducting identification parades, there is little evidence of how South African officers administer parades in the field. This article presents empirical evidence from a sample of detectives in the Western Cape showing that in-field administration of parades for multiple-perpetrator crimes are not uniform, and officers risk conducting parades that would not be considered ‘fair’. The article concludes that the current South African guidelines may profitably be revised, so that difficulties associated with administering parades for multiple-perpetrator crimes are alleviated.

Language as a facilitator of the right to a fair trial in Kenya

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

Language as a facilitator of the right to a fair trial in Kenya

Author Catherine S. Namakula

ISSN: 1996-2118
Affiliations: LLB (Makerere) PGDLP (LDC) LLM (Nottingham) PhD (Wits), Professor of Human Rights and Criminal Justice, Global Humanistic University, Curaçao & Senior Lecturer, Faculty of Law, University of Fort Hare
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 382 – 401

Abstract

The language in which a criminal case is conducted may significantly influence the verdict, and impact on the right to a fair trial if the accused does not properly understand the language of the court. The courts of Kenya, therefore, tolerate no compromise of the constitutional imperative that the person on trial must understand the language used in the proceedings. This paper examines the language-based requirements of fair trial as revealed by the jurisprudence on core trial processes such as judicial interpreting, plea taking, and confessions. A competent court safeguards a fair trial by ensuring that trial participants express themselves in the language(s) of their ability. This may require the provision of effective interpretative assistance. There is need to professionalise judicial interpreting and to foster the scientific and legal development of local languages in Kenya.

Immunity before the International Criminal Court: Has the Appeals Chamber decision in the Jordan appeal brought finality?

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

Immunity before the International Criminal Court: Has the Appeals Chamber decision in the Jordan appeal brought finality?

Author Linda Mushoriwa

ISSN: 1996-2118
Affiliations: LLB (University of Zimbabwe) LLM (UNISA) PhD (UKZN). Post-doctoral research fellow (South African Research Chair in International Law, Faculty of Law, University of Johannesburg)
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 402 – 424

Abstract

On 6 May 2019, the Appeals Chamber of the International Criminal Court (ICC or ‘the Court’) rendered a decision in an appeal lodged by Jordan in March 2018; against a decision of non-cooperation rendered by the Court’s Pre-Trial Chamber (PTC) II in December 2017. PTC II had ruled that Jordan breached its obligation to cooperate with the court by failing to arrest and surrender the then Sudanese President Omar Al-Bashir pursuant to two warrants of arrests issued against him by the court in 2009 and 2010. Al-Bashir had visited Jordan in March 2017 to attend an Arab League meeting. The indictment of Al-Bashir by the court whilst he was still the head of state of Sudan ignited debate regarding his immunity from arrest and surrender by states in cooperation with the court, as Sudan is not a state party to the Rome Statute of the International Criminal Court (Rome Statute). This article examines the Appeals Chamber’s decision on the customary international law status of head-of-state immunity, the relationship between art 27(2) and art 98(1) of the Rome Statute and the effect of Security Council Resolution 1593 (2005); and assesses whether or not the decision has helped to clarify the contentious issue of head-of-state immunity before the court.

Exclusion from refugee status of asylum seekers who have allegedly committed war crimes in non-international armed conflicts outside South Africa

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

Exclusion from refugee status of asylum seekers who have allegedly committed war crimes in non-international armed conflicts outside South Africa

Author Jamil Ddamulira Mujuzi

ISSN: 1996-2118
Affiliations: LLB (Makerere) LLM (Pretoria) LLM (Free State) LLD (Western Cape), Professor of
Law, University of the Western Cape
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 425 – 445

Abstract

Section 4(1)(a) of the Refugees Act disqualifies from refugee status any person who is alleged to have ‘committed a crime against peace, a war crime or a crime against humanity, as defined in any international legal instrument dealing with any such crimes’. The Implementation of the Geneva Conventions Act and the Implementation of the Rome Statute of the International Criminal Court Act provide that South African courts have jurisdiction over war crimes committed abroad. The Implementation of the Rome Statute of the International Criminal Court Act is only applicable to crimes that were committed after July 2002. However, the Implementation of the Geneva Conventions Act is silent on whether South African courts have jurisdiction over war crimes committed by non-South Africans in noninternational armed conflicts outside South Africa. As a result, if a person whose application for refugee status has been declined under s 4(1)(a) on the ground that there is reason to believe that he committed a war crime in a non-international armed conflict cannot be extradited for prosecution, South African courts will not have jurisdiction over him. It is argued that there is a need to amend the Implementation of the Geneva Conventions Act to address this loophole. In order to support this argument, the article addresses the following issues: a discussion of s 4(1)(a) of the Refugees Act; the admissibility of foreign convictions in refugee determination cases; prosecuting a person who has committed war crimes outside South Africa; and excluding a person from being recognised as a refugee on the basis of an offence of a non-political nature and the principle of non-refoulement.

Revising spousal testimonial privilege and marital communications privilege in South African criminal procedure: Is abolition or extension the answer? (Part 1)

by | Dec 5, 2020 | SACJ, SACJ V33 I2 2020

Revising spousal testimonial privilege and marital communications privilege in South African criminal procedure: Is abolition or extension the answer? (Part 1)

Authors Samantha Goosen and Nicci Whitear-Nel

ISSN: 1996-2118
Affiliations: LLB LLM (UPE) PhD (UKZN), Lecturer, School of Law, University of KwaZulu-Natal, Pietermaritzburg; BA LLB (UN) LLM (UKZN), Senior Lecturer, School of Law, University of KwaZulu-Natal, Pietermaritzburg
Source: South African Journal of Criminal Justice, Volume 33 Issue 2, p. 446 – 468

Abstract

Spousal testimonial privilege and marital communications privilege are distinct concepts, but both are underpinned by the same policy rationale: The desire to protect the sanctity of the marriage relationship, encourage communication between spouses, and to prevent a spouse from being faced with the moral dilemma of either telling the truth and risking the relationship or committing perjury to avoid incriminating the other spouse. Collectively, spousal testimonial privilege and marital communications privilege are referred to as the marital privileges in this article. The law indicates a clear policy choice in favour of protecting the marriage relationship as opposed to the public interest in ensuring that the maximum relevant evidence is placed before the court, by virtue of the existence of the marital privileges. In part one of this two-part article, the authors discuss the marital privileges and the rationales underpinning them. Then the article considers the problems with the marital privileges and whether the law needs reform. The authors discuss whether the marital privileges should be extended to include cohabitant life partners. It is argued that the law on marital privileges is arbitrary and incoherent and does not adequately reflect or take into account the types of relationships that exist in multicultural South African society. In part two, the authors discuss the position as regards the marital privileges in a constitutionally comparable democracy – that of Canada. Also considered is the position adopted by the European Court of Human Rights in respect of the marital communications privilege in the Netherlands.

Legislative versus judicial harmonisation of law: a comparative study of Ohada commercial law and the US uniform commercial code

by | Dec 4, 2020 | JCLA, JCLA V7 I1 2020

Legislative versus judicial harmonisation of law: a comparative study of Ohada commercial law and the US uniform commercial code

Author Jonathan Bashi Rudahindwa

ISSN: 2521-2605
Affiliations: Lecturer in law, Université Protestante au Congo (DRC); Research Associate, Centre for Comparative Law in Africa (CCLA), University of Cape Town; Research Associate, School of Law, SOAS, University of London. Correspondence address: Université Protestante au Congo, Faculté de Droit, Croisement des Avenue Libération et Boulevard Triomphal, Commune de Lingwala, Ville de Kinshasa, République Démocratique du Congo, BP. 4745 Kinshasa 2

Source: Journal of Comparative Law in Africa, Volume 7 Issue 1, p. 1 – 29

Abstract

The Organisation for the Harmonisation of Business Law in Africa (OHADA)  was established 27 years ago, in October 1993. Using legislative harmonisation or  unification of its 17 Member States’ business laws, through the adoption of several  Uniform Acts that are meant to be simple and modern, the organisation aims to  produce a business law that is adapted to each Member State’s context, thereby  facilitating commercial transactions within the OHADA area. While noting the  relative success of the OHADA harmonisation or unification process, this article  aims to highlight the advantages and shortcomings of its legislative harmonisation  mechanism. This aspect of the OHADA process is analysed by considering the  judicial harmonisation process that resulted in the adoption of the United States  Uniform Commercial Code (UCC), which is codified legislation that aims to  harmonise the law of sales and other commercial transactions across US states,  hence promoting inter-state trade. This comparative analysis is conducted with a  view to perfecting the harmonisation of business laws across Africa, while ensuring  that harmonisation achieves the goal of promoting intra-African trade. The  ultimate goal of the article is to demonstrate the need to place a greater emphasis  on judicial harmonisation and highlight its ability as a law-making method to  produce a commercial law that truly meets the needs and aspirations of the business  community across the continent.