tag:theconversation.com,2011:/us/topics/justice-in-africa-32843/articlesJustice in Africa – The Conversation2017-06-26T15:11:07Ztag:theconversation.com,2011:article/794422017-06-26T15:11:07Z2017-06-26T15:11:07ZHow South Africa can stop political interference in who gets prosecuted<figure><img src="https://images.theconversation.com/files/175574/original/file-20170626-304-14dqqh2.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Shaun Abrahams, Head of the South Africa's National Prosecuting Authority.</span> <span class="attribution"><span class="source">Reuters/Siphiwe Sibeko</span></span></figcaption></figure><p>South Africa’s National Prosecuting Authority has been embroiled in an almost decade-long battle over the prosecution of President Jacob Zuma on 783 charges that include <a href="http://www.sowetanlive.co.za/news/2017/04/21/zuma-and-npa-appeal-hearings-against-reinstatement-of-783-criminal-charges-to-be-consolidated">fraud, racketeering and corruption</a>. </p>
<p>The charges are related to controversial post-apartheid <a href="http://citizen.co.za/news/news-national/1500263/fresh-arms-deal-allegations-haunt-zuma/">arms deal</a>. </p>
<p>Why has the prosecuting authority failed to prosecute? The reason is that the law has struggled to create the independence necessary for prosecutors to pursue charges against prominent members of the executive. South Africa isn’t alone in this. The US has struggled too. </p>
<p>The real problem is that political pressure can get in the way of prosecution. Members of the executive, including the president, can interfere with the head of the prosecuting authority - the National Director of Public Prosecutions. Two examples stand out: the case brought against South Africa’s former police commissioner <a href="https://mg.co.za/article/2010-08-03-selebi-sentenced-to-15-years">Jackie Selebi</a> which eventually resulted in a trial and a prison sentence. The second is the <a href="https://www.dailymaverick.co.za/article/2017-05-03-zuma-corruption-and-the-arms-deal-the-gift-that-just-keeps-on-giving/#.WTP1leuGMdU">Zuma arms deal case</a>. </p>
<p>My suggestion is to establish a separate special prosecuting office that deals only with political cases – that is, those involving members of the executive and the legislature. The usefulness of a <a href="http://www.washingtonpost.com/wp-srv/national/longterm/watergate/articles/102173-2.htm">special prosecutor</a> was stress tested in 1973 during the <a href="http://www.history.com/this-day-in-history/nixon-resigns">US President Richard Nixon debacle</a>. The purpose is to create a greater measure of independence, although the Nixon case also showed that it can be subject to political interference. He had three removed. </p>
<p>Watergate nevertheless illustrated why a separate prosecuting capacity targeting the executive arm of government is important. </p>
<p>But how would a special prosecutor be appointed in South Africa? There are various options. It could, for example, be left to the Chief Justice or Parliament to decide when a matter demands the appointment of a special prosecutor.</p>
<p>A system like this wouldn’t completely remove the potential for interference, but it would ensure it was minimised. It would also free the director from being embroiled in political battles, enabling them to concentrate on their core job which should be to increase the overall effectiveness of the prosecuting authority as well as public confidence in its abilities. </p>
<h2>Room for political interference</h2>
<p>In South Africa the efficacy of the entire criminal justice system rests on the ability of the prosecuting authority to do its job properly. This is because it enjoys a monopoly over the prosecution of crime. The constitution mandates it to be the gatekeeper – it alone decides which <a href="http://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng.pdf">criminal cases go to trial</a>. </p>
<p>Every year the prosecuting authority receives <a href="http://www.icd.gov.za/sites/default/files/documents/IPID_Annual_Report%20_2014-15.pdf">hundreds of thousands of cases</a> prepared by the South African police service. The bulk of them are ordinary offences, like murder, robbery and assault committed by ordinary people against other ordinary people. Very few involve prominent state officials. </p>
<p>The prosecuting authority does receive cases against members of the executive. But the number of political cases are a drop in the ocean compared to ordinary cases. They nevertheless risk derailing the proper and effective functioning of the prosecuting authority.</p>
<p>In reality, the prosecuting authority is only quasi-independent. This is for two reasons.</p>
<p>The first is that the language describing the independence of the prosecuting authority in <a href="http://www.gov.za/DOCUMENTS/CONSTITUTION/constitution-republic-south-africa-1996-1">the Constitution</a> isn’t very clear.</p>
<p>In terms of the constitution, the Minister of Justice and Constitutional Development has final responsibility over the prosecuting authority. Case law has held that the minister can’t instruct the prosecuting authority to prosecute or not, but is entitled to be kept informed about cases that the public might be interested in or that involve <a href="http://www.saflii.org/za/cases/ZASCA/2009/1.pdf">important aspects of legal authority</a>. </p>
<p>Despite this innocuous clarification, ministerial oversight leaves open <a href="http://www.justice.gov.za/sca/judgments%5Csca_2009/sca09-001.pdf">a gap for interference</a>. </p>
<p>The other major flaw in South Africa’s system is that there’s room for political interference in <a href="http://www.justice.gov.za/legislation/acts/1998-032.pdf">the way in which the director is appointed</a>. The director is appointed by the president. The president can make the decision without any consultation. </p>
<p>The director is the embodiment of the institutional independence of the prosecuting authority and the incumbent is meant to play an executive role rather than a political one. The director is responsible for determining prosecution directives and prosecution policy. He or she may intervene in decisions to prosecute and may review decisions to prosecute – or not to prosecute – after consulting with provincial directors of public prosecutions. </p>
<p>But given that the president appoints the director, the prosecuting authority is in a difficult position. To perform its functions effectively, it must assert an independence it doesn’t enjoy. </p>
<h2>Interference with the director</h2>
<p>The office of the director has been the subject of controversy over the past 18 years, with the appointment and subsequent <a href="http://acjr.org.za/resource-centre/acjr-npa-2017-fin.pdf">removal of four</a> directors. Some of this controversy has centred on whether the prosecuting authority would, or wouldn’t, prosecute certain political cases. Vusi Pikoli was removed by then President Thabo Mbeki for <a href="http://ewn.co.za/2016/06/21/Vusi-Pikoli-Society-is-in-danger-when-politicians-meddle-in-the-affairs-of-the-NPA">prosecuting Jackie Selebi</a>. </p>
<p>The fact that these types of cases are within the purview of the director provides grounds for political interference over the office. This interferes with its overall performance. </p>
<p>So far the debate about increasing the independence of the director has centred on how the appointment is made, and how an incumbent can be removed. One suggestion has been that a properly constituted committee made up of different stakeholders does the interviews and shortlists candidates. On the removal of an incumbent, there’s been a suggestion that the president’s right to suspend a director without consultation is removed. </p>
<p>Bolstering the appointment and removal procedures are important and should be done. But it’s not enough to focus on the individual director. South Africa needs to remove the incentive for political interference over the director. That’s the only way the efficacy of the prosecuting authority can be enhanced.</p><img src="https://counter.theconversation.com/content/79442/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jameelah Omar does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>South Africa’s National Prosecuting Authority has failed to pursue members of the executive. But a separate prosecuting body assigned only political cases could be the answer.Jameelah Omar, Lecturer in Criminal Justice, Department of Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/755682017-05-13T10:21:50Z2017-05-13T10:21:50ZFailure to recognise religious marriages in South Africa may point to a lack of political will<figure><img src="https://images.theconversation.com/files/168089/original/file-20170505-21003-1kj40p3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Shutterstock</span> </figcaption></figure><p>South Africa’s <a href="http://www.saflii.org/za/cases/ZACC/2015/24.pdf">constitution</a> allows for laws to be passed that recognise religious and traditional marriages as well as personal and family law systems. These are systems that regulate marriage, divorce, matters affecting children - including guardianship, custody, access, maintenance and inheritance.</p>
<p>This is a radical departure from the colonial and apartheid era when South Africa’s common law definition of marriage was seen simply as a union between one man and one woman. In other words, a legal marriage in South Africa was characterised by <a href="https://en.oxforddictionaries.com/definition/heteronormative">heteronormativity</a> and monogamy. Same-sex marriages and potentially polygynous marriages were excluded from the legal definition of marriage. This affected African customary marriages, Muslim marriages, Jewish marriages and Hindu marriages, which are all potentially polygynous.</p>
<p>The situation changed in the post-1994 democratic era. A <a href="http://www.sahistory.org.za/article/customary-marriages-south-africa-understanding-recognition-customary-marriages-act-1998">law was passed in 1998</a> that afforded African customary marriages full legal recognition. And the <a href="https://www.acts.co.za/iframe/civil-union-act-2006/index.html">Civil Union Act</a> made marriages between same-sex couples legally possible.</p>
<p>Yet, potentially polygynous marriages such as Muslim marriages, Hindu marriages and Jewish marriages have not yet been afforded legal recognition. This failure is tantamount to saying that religious marriages are inferior and less deserving of legal protection. It infringes the rights to dignity, freedom of religion and equality of spouses in religious marriages and children born within those marriages. </p>
<p>Women are particularly badly affected. Take the case, for instance, of a Muslim wife who has a substantially smaller estate than her husband. She could be left financially destitute should the marriage end in divorce. Yet, she has no recourse under South African law because her marriage is not legally recognised. </p>
<p>Muslim women are also at a disadvantage because polygyny isn’t regulated. This means that men can enter into subsequent marriages without their knowledge. Women also have difficulty accessing a Muslim divorce even though their right to divorce is recognised under Islamic law. This results in them being held hostage in unwanted marriages.</p>
<p>The fact that the absence of laws pertains to minority religions in South Africa – Muslims make up <a href="http://www.statssa.gov.za/publications/P0318/P03182013.pdf">2%</a> of South Africa’s population, Hindus 1% and Jews 0.2% – is no excuse for the failure of government to protect them.</p>
<p>This article deals mainly with the challenges facing Muslim women, which is the subject of a court challenge.</p>
<h2>Working for equality</h2>
<p>There have been numerous efforts to afford recognition to Muslim marriages. None, however, have been successful. </p>
<p>The first was in 2003 when the South African Law Reform Commission submitted the <a href="https://muslimality.files.wordpress.com/2011/01/muslim-marriages-bill-2010-doc.pdf">Muslim Marriages Bill</a> to the Ministry of Justice and Constitutional Development. </p>
<p>The bill followed substantive consultations with the Muslim community and civil society. But it was viewed as unIslamic by some clergy which meant it was shelved.</p>
<p>This was followed by an attempt on the part of the <a href="http://www.cge.org.za/">Commission on Gender Equality</a> and the Department of Justice and Constitutional Development, which drafted the Recognition of Religious Marriages Bill. The bill recommended recognition of all religious marriages. There were no considerable consultations around the bill which meant that it didn’t elicit much support.</p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/168096/original/file-20170505-20989-1xppt9d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/168096/original/file-20170505-20989-1xppt9d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=415&fit=crop&dpr=1 600w, https://images.theconversation.com/files/168096/original/file-20170505-20989-1xppt9d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=415&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/168096/original/file-20170505-20989-1xppt9d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=415&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/168096/original/file-20170505-20989-1xppt9d.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=522&fit=crop&dpr=1 754w, https://images.theconversation.com/files/168096/original/file-20170505-20989-1xppt9d.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=522&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/168096/original/file-20170505-20989-1xppt9d.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=522&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Muslim wives are unfairly discriminated against in divorce.</span>
<span class="attribution"><span class="source">Reuters/Mike Hutchings</span></span>
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</figure>
<p>After years of inaction, a concerted campaign by a civil rights group, the <a href="http://wlce.co.za/">Womens’ Legal Centre Trust</a> led to the Department of Justice and Constitutional Development finally turning its attention to the Muslim Marriages Bill. In 2010, an amended version of the bill was approved by cabinet. This meant that it could enter the parliamentary process. </p>
<p>But this has still not happened. The Ministry of Home Affairs appears unwilling to table the bill because there’s less support for it – changes were made without consultation with the Muslim community – as well as the fact that it flouts the commitment to gender equality under the <a href="http://www.gov.za/documents/constitution/chapter-2-bill-rights">constitution</a>. For example, the bill does not afford equal rights to divorce between Muslim women and men, to the disadvantage of women.</p>
<p>Lack of support for the amended bill may appear to be a reasonable justification for not pursuing it in parliament. But it does not explain the delay in enacting the bill prior to 2010 when the 2003 version of the bill appeared to have support among many of the Muslim clergy.</p>
<p>The delay may point to a lack of political will on the part of government. </p>
<h2>Challenges</h2>
<p>The legislative options on the table would ensure women were better protected. But they also pose challenges.</p>
<p>The recommendation by the Recognition of Religious Marriages Bill for self-regulation of religious marriages means that existing discriminatory religious rules and practices could be allowed to continue within religious communities.</p>
<p>At the same time, the bill’s recommendation that dissolution of religious marriages must be regulated through the Divorce Act could ensure formal equality between spouses. Yet, it might not engender substantive equality since it wouldn’t regulate existing discriminatory religious divorce rules and practices.</p>
<p>While Muslim, Hindu and Jewish wives could obtain a civil divorce through the bill, they may be constrained from getting a religious divorce. They would therefore be deemed to still be married under religious law thus preventing them from concluding further religious marriages. Yet, their husbands would be able to enter subsequent marriages due to the polygynous nature of their religious marriages. </p>
<p>In contrast, the Muslim Marriages Bill recognises existing Muslim rules and practices, including discriminatory ones. But it purports to regulate them in a way that affords protection to women. For example, the bill proposes to regulate polygyny in accordance with the Qur’anic precept of equality and requires existing wives to be notified of their husbands’ intention to marry again. </p>
<p>The bill further purports to regulate a man’s right to arbitrarily divorce his wife by requiring him to follow due process. Moreover, the bill recognises various forms of Muslim divorce including those available to women under Islamic law. If enacted, it would allow women to enforce Islamic law rights that they are presently unable to access. </p>
<p>The bill, therefore, potentially offers more protection for women than they otherwise have as a result of non-recognition of their Muslim marriages. </p>
<h2>Challenging injustice</h2>
<p>The Women’s Legal Centre Trust has again launched an application asking the Western Cape High Court to compel government to recognise Muslim marriages. The matter has been set down for <a href="http://www.news24.com/SouthAfrica/News/legality-of-muslim-marriage-a-religious-human-rights-issue-divorcee-20170324">28 August 2017</a>. </p>
<p>This is an unprecedented case and its outcome will have far-reaching consequences. </p>
<p>Will the judiciary have the courage to act where government has thus far failed?</p><img src="https://counter.theconversation.com/content/75568/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Waheeda Amien received funding from the National Research Foundation.</span></em></p>Although South Africa has taken steps to rid itself of the apartheid-era view of marriage as only heterosexual and monogamous, discrimination against religious marriages persist.Waheeda Amien, Associate Professor in Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/752682017-04-03T14:29:05Z2017-04-03T14:29:05ZPoorer people in Africa face higher hurdles to access to justice<figure><img src="https://images.theconversation.com/files/162891/original/image-20170328-30810-iygror.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In Africa a study shows stark differences between perceptions of justice among the rich and poor.</span> <span class="attribution"><span class="source">shutterstock</span></span></figcaption></figure><p>Access to justice for all citizens is a cornerstone of democracy and an increasingly prominent goal on the global agenda. It’s highlighted in the United Nations’ Sustainable Development <a href="http://www.un.org/sustainabledevelopment/peace-justice/">Goal 16</a> to “promote just, peaceful and inclusive societies.”</p>
<p>One way to assess progress is through the perceptions and experiences of ordinary citizens of the legal systems in their countries.</p>
<p>A new analysis based on <a href="http://www.afrobarometer.org">Afrobarometer’s most recent round of surveys</a> in 36 African countries paints a sobering picture: while some countries can boast significant success in providing access to justice, most still face substantial blockages that are both patently unfair and a breeding ground for discontent. (For a detailed analysis by country, see <a href="http://www.afrobarometer.org/publications/pp39-access-to-justice-in-africa">Afrobarometer Policy Paper No. 39</a>.)</p>
<p>On the positive side, most Africans (72%) see courts as legitimate, charged with making decisions that all citizens must abide by. But only a slim majority (53%) trust the courts even “somewhat,” and one in three (33%) believe that “most” or “all” judges and magistrates are corrupt.</p>
<p>Citizens report a number of serious barriers to access to justice, including long delays in court cases, high costs, corruption, the complexity of legal processes, lack of legal counsel, and concerns about court fairness.</p>
<p>What’s worse, access is most severely restricted for some of Africa’s most vulnerable citizens – the uneducated, rural residents, and especially people living in poverty.</p>
<h2>Higher hurdles for the poor</h2>
<p>Whether based on experience or word of mouth, poor people (those who most frequently go without enough food, clean water, medical care, cooking fuel, and a cash income) have less faith in the integrity of the courts than their wealthier counterparts. </p>
<p>More than four in 10 (42%) of the poorest respondents say that “most” or “all” judges and magistrates are corrupt, compared to 26% of the wealthiest respondents. The gap is 11 percentage points with respect to trust in the courts (Figure 1).</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/162882/original/image-20170328-30788-13b1wvs.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/162882/original/image-20170328-30788-13b1wvs.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=484&fit=crop&dpr=1 600w, https://images.theconversation.com/files/162882/original/image-20170328-30788-13b1wvs.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=484&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/162882/original/image-20170328-30788-13b1wvs.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=484&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/162882/original/image-20170328-30788-13b1wvs.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=609&fit=crop&dpr=1 754w, https://images.theconversation.com/files/162882/original/image-20170328-30788-13b1wvs.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=609&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/162882/original/image-20170328-30788-13b1wvs.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=609&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">Afrobarometer</span></span>
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</figure>
<p>When they do engage with the legal system, poorer Africans are much more likely to experience problems (Figure 2). Compared to those with no lived poverty, the poorest are more than twice as likely to find courts too expensive (52% vs. 24%), 16 percentage points more likely to report that judges don’t listen to them, 15 points more likely to find the courts too complex and to suffer from lack of legal counsel, and 10 points more likely to face long delays. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/162879/original/image-20170328-21726-1qwb1vt.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/162879/original/image-20170328-21726-1qwb1vt.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/162879/original/image-20170328-21726-1qwb1vt.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=418&fit=crop&dpr=1 600w, https://images.theconversation.com/files/162879/original/image-20170328-21726-1qwb1vt.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=418&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/162879/original/image-20170328-21726-1qwb1vt.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=418&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/162879/original/image-20170328-21726-1qwb1vt.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=526&fit=crop&dpr=1 754w, https://images.theconversation.com/files/162879/original/image-20170328-21726-1qwb1vt.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=526&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/162879/original/image-20170328-21726-1qwb1vt.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=526&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">Afrobarometer</span></span>
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</figure>
<h2>Why poor people don’t go to court</h2>
<p>Only about one in eight Africans (13%) say they had contact with the courts during the past five years. Survey respondents cite a number of reasons that might prevent citizens from taking cases to court, even if they have legitimate complaints.</p>
<p>Here, too, the poor differ from the rich. Court costs are an important deterrent for both groups, but costs for lawyers are a much more significant impediment in the minds of wealthier respondents than among the poorest (cited by 22% vs. 14%). The wealthy identify long wait times as the next-most-important barrier, citing delays twice as frequently as the poor (16% vs 8%). </p>
<p>Poorer respondents are more likely to cite lack of trust in the courts, along with the expectation that they won’t be treated fairly, that the courts will favour the rich and powerful, and that court officials will demand bribes. In short, poor people are significantly less likely to mention time or money concerns and more likely to mention the expectation of inequitable or improper treatment by the courts. Poorer respondents are also much more likely (13% vs. 5%) to prefer informal justice mechanisms such as traditional leaders or local councils.</p>
<h2>Access to justice for all</h2>
<p>Other marginalised groups, too, face particular challenges in access to justice, including the less-educated (Figure 4) and rural residents. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/162880/original/image-20170328-21254-1647t41.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/162880/original/image-20170328-21254-1647t41.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=424&fit=crop&dpr=1 600w, https://images.theconversation.com/files/162880/original/image-20170328-21254-1647t41.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=424&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/162880/original/image-20170328-21254-1647t41.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=424&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/162880/original/image-20170328-21254-1647t41.PNG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=533&fit=crop&dpr=1 754w, https://images.theconversation.com/files/162880/original/image-20170328-21254-1647t41.PNG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=533&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/162880/original/image-20170328-21254-1647t41.PNG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=533&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">Afrobarometer</span></span>
</figcaption>
</figure>
<p>But barriers to justice are reported by all groups in all countries, even in relatively high-performing Botswana, Cape Verde, and Lesotho, not to mention dismally low-performing Liberia and Sierra Leone. </p>
<p>In general, less-democratic countries and those affected by conflict struggle the most to ensure access to justice. Across 36 countries, fewer than half (45%) of citizens who had contact with the courts say that obtaining the needed assistance was easy, and 30% report paying bribes to court officials.</p>
<p>Understanding the perspectives and experiences of ordinary citizens can help us identify and ultimately overcome barriers to justice. Evidence that the hurdles are highest for some of the most vulnerable groups – those who may have the greatest needs and least resources to obtain remedies – gives efforts to ensure their access to justice a special urgency.</p><img src="https://counter.theconversation.com/content/75268/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Afrobarometer's survey module on access to justice was supported by funding from the World Bank.</span></em></p>Most Africans see courts as legitimate but only a slim majority trust them while one in three people believe judges are corrupt.Carolyn Logan, Deputy Director of the Afrobarometer & Associate Professor in the Department of Political Science and MSU’s African Studies Center, Michigan State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/680782016-11-02T12:35:42Z2016-11-02T12:35:42ZSouth Africans learn that the law can be a double-edged sword<figure><img src="https://images.theconversation.com/files/144188/original/image-20161102-27231-y7cqgn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Head of South Africa's National Prosecuting Authority, Shaun Abrahams, dropped a fraud charge against the finance minister Pravin Gordhan.</span> <span class="attribution"><span class="source">Siphiwe Sibeko/Reuters</span></span></figcaption></figure><p><em>South Africa’s National Prosecuting Authority charged the country’s finance minister Pravin Gordhan and two of his former colleagues at the tax authority, Ivan Pillay and Oupa Magashule, with <a href="https://www.enca.com/south-africa/npa-charges-gordhan-pillay-and-magashula-with-fraud">fraud</a> last month. The charge was widely criticised as <a href="https://theconversation.com/charges-against-finance-minister-show-misuse-of-south-african-law-67177">baseless</a> and <a href="http://www.sowetanlive.co.za/news/2016/10/23/helen-suzman-foundation-and-freedom-under-law-launch-bid-to-set-aside-gordhan-s-charges">politically motivated</a>, amid allegations of <a href="http://www.biznews.com/leadership/2016/10/25/south-africans-mobilise-to-save-sa-from-state-capture-can-they-eject-zuma/">state capture</a>. It sent the currency into a <a href="http://www.timeslive.co.za/sundaytimes/businesstimes/2016/10/11/Rand-and-banking-shares-plummet-on-Gordhan-NPA-summons">nosedive and wiped billions</a> off the stock market. This week, the NPA <a href="http://www.iol.co.za/news/crime-courts/npa-drops-charges-against-gordhan-2085233">withdrew</a> the charges on the eve of the trio’s court appearance. Politics and society editor, Thabo Leshilo, asked law professor Penelope Andrews for her view.</em></p>
<p><strong>What’s the significance of the charges being withdrawn against Gordhan?</strong></p>
<p>The significance lies in three things: first, it was the extraordinary level of public attention that the case generated. The airwaves, the media and social media were alight with commentary on the case. </p>
<p>Second was the educational function that the charges provided. Ordinary citizens got another peek at the <a href="https://www.npa.gov.za/">National Prosecuting Authority</a> and its operations and there is now greater awareness of the meaning of fraud since this was the charge laid.</p>
<p>The third was that as events unfolded they showed that public campaigning and public pressure may actually yield results.</p>
<p><strong>What does all this say about the NPA and its independence?</strong></p>
<p>At the moment there is a lot of <a href="http://www.destinyconnect.com/2016/10/23/shaun-abrahams-met-zuma-behind-closed-doors-charging-gordhan-report/">speculation</a>, some of it quite persuasive. But something as serious as this – a minister being charged and the flagrant disregard for its consequences – requires a concerted probe into the reasons for the actions of the National Prosecuting Authority. We have to move from widespread speculation to confirmed facts.</p>
<p><strong>What’s to be read into the lateness of the decision not to prosecute, coming as it did on the even of their court appearance?</strong> </p>
<p>My sense is that the National Prosecuting Authority was taken by surprise at the level of <a href="http://www.timeslive.co.za/politics/2016/11/02/The-leading-figures-supporting-the-Save-South-Africa-protest">public disapproval</a> of its actions and the <a href="http://www.moneyweb.co.za/news/south-africa/da-eff-and-save-south-africa-march-against-state-capture/">overwhelming support</a> for Gordhan. In particular, they must have been alarmed by the level of <a href="http://constitutionallyspeaking.co.za/gordhan-is-there-any-case-to-answer/">legal opinion</a> about the spurious nature of the charges and opposition to the case itself.</p>
<p>The lateness of the decision to prosecute may have been hubris on the part of the head of the National Prosecuting Authority, <a href="https://www.npa.gov.za/content/adv-shaun-kevin-abrahams">Shaun Abrahams</a>. Or it may have been a decision of his to persevere and let the chips fall as they did. The decision not to prosecute may also have been a last ditch attempt on his part to save his reputation, such as it was, and to prevent a drubbing by the court.</p>
<p><strong>There has always been suspicion there was no case against the the trio and that the charges were politically motivated. This appears to be vindicated by the withdrawal. What does it say about the rule of law in South Africa?</strong></p>
<p>It actually says contradictory things about the rule of law. It can be used as a shield that protects those who might be falsely accused. This was clearly the case here. But the rule of law could also be a sword –- to attack those who obstruct the nefarious plans of powerful people.</p>
<p><strong>How does all this reflect on the head of the prosecuting authority? Are there grounds for him to resign?</strong> </p>
<p>I take no position on whether Abrahams should resign. Many prosecutors make decisions to withdraw charges for a host of reasons, some of them quite legitimate. The better route would be an inquiry into what went into the decision to charge the minister and the two others in the first place. Was it malice? Incompetence? A conspiracy? An inquiry would highlight whether Abrahams and his team are fit to run the nation’s prosecuting authority. </p>
<p><strong>What needs to happen to prevent a replay of similar situations in future, and rebuild confidence in the NPA?</strong> </p>
<p>An inquiry, not necessarily judicial, but led by credible individuals trained in the law, needs to be held into the <a href="http://www.dailymaverick.co.za/article/2016-10-27-game-over-for-abrahams-moyane-and-co-documents-prove-gordhan-prosecution-political/#.WBnHAfp97IU">fiasco</a>. It should be underpinned by a transparent process with unlimited access to a wide range of sources. Only such a concerted effort to clarify what has transpired will ensure that it is not repeated.</p><img src="https://counter.theconversation.com/content/68078/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Penelope Andrews does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>South Africa’s National Prosecuting Authority charged the country’s finance minister Pravin Gordhan and two of his former colleagues at the tax authority, Ivan Pillay and Oupa Magashule, with fraud last…Penelope Andrews, Dean of Law and Professor, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.