Gacaca courts, reconciliation and the politics of apology in post-genocide Rwanda

by | Oct 12, 2019 | SACJ, SACJ V30 I1 2017

Gacaca courts, reconciliation and the politics of apology in post-genocide Rwanda

Authors Callixte Kavuro

ISSN: 1996-2118
Affiliations: Doctoral Candidate, Stellenbosch University
Source: South African Journal of Criminal Justice, Volume 30 Issue 1, p. 38 – 71

Abstract

In post-conflict societies, the politics of apology is increasingly and heavily relied on for justice, accountability and reconciliation to be realised. The reason for this approach is to demand a public apology from perpetrators for their mass atrocities as a sign of acceptance of responsibility. There are a number of features of this form of politics of apology applied by Gacaca courts that will be explored in light of retributive and restorative justice. Given that confession, guilty plea, repentance and apology were applied as a threshold requirement in genocide trials, this paper will critically analyse their legal consequences in light of the question whether fair trial principles should have been applied with respect to those accused who were unwilling to come forward, confess and apologise. After contextualisation and assessment of the purpose of the politics of apology in post-genocide Rwanda, the paper concludes that the politics of apology was particularly applied as a disguised attempt to allocate collective guilt to the Hutu as a group and that collective guilt has the potential to place the Hutu population in a vulnerable position within post-genocide politics. With retributive justice, the Gacaca courts served to ensure that Hutus did not escape revenge but did little to foster reconciliation.

Towards resuscitating the ailing public violence jurisprudence – lessons from history

by | Oct 12, 2019 | SACJ V30 I1 2017

Towards resuscitating the ailing public violence jurisprudence – lessons from history

Authors Khulekani Khumalo

ISSN: 1996-2118
Affiliations: Lecturer, University of KwaZulu-Natal
Source: South African Journal of Criminal Justice, Volume 30 Issue 1, p. 23 – 37

Abstract

The recent spate of protests organised under the #FeesMustFall campaign have not only exposed all that is wrong with the existing political and economic order, but also the shortcomings of the crime of public violence in achieving its objective of maintaining peace and order as well as to afford protection against the invasion of the rights of others during violent protests. Fortunately, the crime of public violence has a long developmental history from which lessons could be drawn as to how these shortcomings and other challenges facing the crime can best be resolved or remedied. Therefore, the purpose of this article is to venture into the history of the crime of public violence in order to draw lessons which could help identify and possibly remedy the challenges facing the crime of public violence. After all, these challenges threaten the effcacy of the crime and, in turn, cause the public violence jurisprudence to be ailing and to be in need of being resuscitated. Ultimately, it is introspection of this nature that will ensure the resuscitation of public violence jurisprudence and the consequent realisation of the interests sought to be protected by this crime.

The end of the search for a fifth jurisdictional fact on arrest on reasonable suspicion: A review of contemporary developments

by | Oct 12, 2019 | SACJ, SACJ V30 I1 2017

The end of the search for a fifth jurisdictional fact on arrest on reasonable suspicion: A review of contemporary developments

Authors Chucks Okpaluba

ISSN: 1996-2118
Affiliations: Adjunct Professor, Nelson Mandela School of Law, University of Fort Hare
Source: South African Journal of Criminal Justice, Volume 30 Issue 1, p. 1 – 22

Abstract

The Constitutional Court has had the last word on the argument that had raged before the high courts in the last decade, but which was rejected by the Supreme Court of Appeal half a decade ago in Minister of Safety and Security v Sekhoto 2011 (5) SA 367 (SCA), to the effect that the Bill of Rights is not a ffth jurisdictional fact to the requirements of s 40(1)(b) of the Criminal Procedure Act 51 of 1977. Rather than being an additional urisdictional fact, the Constitutional Court has held in MR v Minister of Safety and Security 2016 (2) SACR 540 (CC) (MR), that a police offcer faced with the exercise of the discretion to arrest a child must not only balance the conflicting interests, but must take into consideration the constitutional requirements of the best interests of the child and the limitation regarding the detention of a child in s 28(2) and 28(1)(g) of the 1996 Constitution. Failure on the part of the police to bring these constitutional protections afforded the child to bear on the decision to arrest or not to arrest, renders such a decision unlawful and unconstitutional. While the search for a fifth jurisdictional fact may have ended at this juncture, the Constitutional Court judgment in MR marks the beginning of the infusion of s 28(2) and 28(1)(g) of the Bill of Rights into the exercise of the discretion to arrest and detain a child in the circumstances of s 40(1) of the CPA.

Index

by | Oct 12, 2019 | SACJ, SACJ V31 I3 2018

Index

Authors Rosemary Kühn

ISSN: 1996-2118
Affiliations: University of KwaZulu-Natal, Pietermaritzburg
Source: South African Journal of Criminal Justice, Volume 31 Issue 3, p. iii – xxiv

Abstract

None

Quantification of damages for malicious prosecution: A comparative analysis of recent South African and Commonwealth case law (2)

by | Oct 12, 2019 | SACJ, SACJ V31 I3 2018

Quantification of damages for malicious prosecution: A comparative analysis of recent South African and Commonwealth case law (2)

Authors Chuks Okpaluba

ISSN: 1996-2118
Affiliations: Research Fellow, Centre for Human Rights, University of the Free State
Source: South African Journal of Criminal Justice, Volume 31 Issue 3, p. 410 – 436

Abstract

The first part in this three-part submission was devoted to a number of preliminary issues relating to the assessment of damages for malicious prosecution, such as the confusion caused by the word ‘damage’ as an element in the law of malicious prosecution and ‘damages’ in terms of the amount a successful plaintiff in an action for malicious prosecution could recover. In that part also, opportunity was taken to explore the circumstances where damages have been awarded in an action for malicious prosecution in South Africa and the ascertainment of the amount in such instances, with the tip of the iceberg being the recent case of the former Judge President of KZN High Court. The present article continues with the case study approach by investigating the experiences of Australia, Canada and Trinidad and Tobago having identified instances where damages has been awarded for the tort of malicious prosecutions in those common law jurisdictions. The cases discussed with regard thereto are no doubt informative but, the Privy Council judgment from Trinidad and Tobago is by far more instructive and dynamic on the factors to be taken into account in the quantification of damages for malicious prosecution from the point of view of the ordinary member of the society. Thus, the reputational damage which the law protects by an award of damages does not distinguish between a homeless person and an urban or rural dweller.

Voice identification and ear-witnessing in the dock

by | Oct 12, 2019 | SACJ, SACJ V31 I3 2018

Voice identification and ear-witnessing in the dock

Authors Lirieka Meintjes-van der Walt

ISSN: 1996-2118
Affiliations: Adjunct Professor, Law, Science and Justice Research Niche Area Leader, University of Fort Hare, Advocate of the High Court of South Africa
Source: South African Journal of Criminal Justice, Volume 31 Issue 3, p. 391 – 409

Abstract

This article defines ear-witness identification and discusses voice identification as a mechanism for legal fact-finding. It is contended that voice identification evidence proffered by a lay person is highly problematic. While the guidelines for the treatment of eyewitness testimony are clearly established in a number of jurisdictions, the treatment of ear-witness testimony is somewhat less regulated and specific issues pertaining to earwitness evidence are investigated in this article. A recent case, S v Mahlungu 2018 (2) SACR 64 (GP), which dealt with non-technical voice identification, is discussed and the article suggests that it might have been pertinent for the court to have taken cognisance of the guidelines for ear-witness evidence set out by Lord Justice Cage in R v Flynn and St John [2008] Crim LR 799. The article interrogates factors pertinent to ear-witness evidence such as voice identification parades; familiarity; time delay between the hearing of the voice during the commission of the crime and identification; interviewing ear-witnesses; suggestibility and fallibility. The article concludes that as voice identification in the legal sphere is still in its infancy, establishing best practice standards for conducting voice line-ups is needed. It is furthermore contended that ear-witness evidence is generally weak evidence and should be treated with great caution and that this complex matter should not be considered on the basis of intuition, common sense and accepted beliefs but that decisions should be informed by empirical research. Finally, the article briefly refers to the NAS Report and the PCAST Report both of which strongly warned against scientifically unsubstantiated forensic evidence being accepted in court.