Challenges facing the criminal justice sector in the pursuit of promoting and protecting human rights

Published On: 19 September 2019

The following are the speaking notes provided to us in lieu of the lecture text.

(Introduction and Tribute to Professor Kader Asmal)

I am honoured to speak to you today at this lecture in honour of the late Professor Kader Asmal.
His personal journey coincided with the story of South Africa’s transition to democracy and freedom. His lifelong dedication to freedom, equality and justice are not only reflected in our Bill of Rights, but stand as a beacon, and constant reminder, of the values we all embraced in our transition to democracy, values that seem like a dream in the current context of our country.
Professor Asmal continues to be held in high regard internationally for his contribution to the processes that culminated in the adoption of the 1996 Constitution and serves as an inspiration to us all.
Importantly, he will be remembered for his unwavering integrity. At a time when the culture of integrity has been strained to the breaking point, and the rule of law tarnished almost beyond recognition, I take inspiration from this and thank CASAC, his Foundation and others for maintaining his legacy, through this lecture series and in the other ways you have kept his values and ideas alive.
As we consider today the weighty matters of human rights and criminal justice in our own country, let us place this in the global context of challenges we face in this regard. Increasingly the rhetoric and actions of world leaders retreat from their human rights obligations or show blatant disregard for them. The rise of nationalist sentiment, and the promotion of the self over the welfare of others, reflects a descent that we cannot allow to go unchecked, notwithstanding our own problems here at home.
While our Constitution stands as a model for other countries, its promises of a wide range of rights and freedoms, have yet to emerge as realities for the vast majority of our citizens.
The right to enjoy a better quality of life, which should be free from fear and victimisation, simply does not exist. The institutions responsible for ensuring that citizens are protected, and that justice is delivered, including the NPA, are clearly failing our citizens.
Public confidence in government and criminal justice institutions, is at a dangerously low ebb, and we have a very small window of opportunity to turn this situation around, before all credibility is lost.
The challenges we must address seem insurmountable – violent crime is destroying families and communities; and unprecedented levels of corruption have ravaged our economy and its current prospects. High levels of inequality contribute to vastly different levels of vulnerability to the problems of crime that we face.
Yet, we have no choice but to address these problems head on – and with the confidence that we can shift the balance. A failure to do so will embody a failure to meet our most basic Constitutional obligations, to uphold the rule of law and safeguard fundamental freedoms.
Let me dwell for a moment on the nature and extent of some of the challenges we face relating to Corruption and Violent Crime:
- Corruption has become so widespread that there is a real danger it will become entrenched and normalised in South Africa.[1]
- For too long, corrupt politicians, government employees and business leaders have acted with impunity to plunder the scarce resources of our country. And they have done so in plain sight, in the most brazen ways imaginable.
- In 2019, the Global Corruption Barometer, noted that 64% of respondents believed that corruption has increased in the previous 12 months.[2]
- You will remember that Professor Asmal spoke and acted courageously against corruption. For him, the needs of the people were betrayed too easily through self-aggrandisement and corruption.[3] What would he say today? In 2008, he resigned from parliament rather than be obliged to vote for the constitutionally questionable dissolution of the Directorate of Special Operations in the NPA (the so-called Scorpions) tasked to deal with corruption at the time.
It is clear that corruption disables the ability of our government to deliver basic services and, in doing so, violates the human rights of the most vulnerable of our citizens. Only a clean and honest private and public sector, where greed is not allowed to thrive, can guarantee us sustained economic growth that creates decent jobs for people.
Our Constitutional Court has recognised that: ‘corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order’.
In relation to violent crime:
As South African citizens we go about our daily lives with a heightened vigilance to violence and crime. These constant feelings of insecurity, which have been extensively reported in research and the media, are simply unacceptable as the new “normal”.
The Global Peace Index 2019 ranked South Africa as 127th out of 163 countries and districts measured4 on the list of most peaceful countries in the world – this a grim indictment.[4]
Our crime statistics alone which, I remind you, reflect only reported crime, show high rates of murder and interpersonal violence, including against women and children, reflect our failure to meet our Constitutional promises relating the right to life, and rights relating to be free from all forms of violence.
Overall, a weak economy, high levels of corruption in both the public and private sector, distrust in the government, and poor service delivery are closely associated with social unrest, as are the issues of hate speech and xenophobia.
We know that for those who are victims of crime and violence, advancements in the criminal justice system have not been effective enough, nor swift enough.

Towards Solutions

I know the brief picture I have just painted is both bleak and Let me turn now to what I believe is the light at the end of this tunnel. My deep sense of obligation to my country at a time of need was the only reason that I decided to come back to South Africa, from a job at the International Criminal Court in The Hague, that was rewarding and satisfying in so many respects.
There is no question that the solutions are complicated, and that it will not be quick – but then nothing worth it ever is.
As you know, I took office in February this year as National Director of Public Prosecutions (NDPP), and I am deeply honoured to be the very first head of the National Prosecuting Authority (NPA), that was selected through a transparent and consultative and public process.
As a firm believer in upholding both the spirit and letter of the Constitution, this in my view sets an important precedent for future appointments, not only for the appointment of the NDPP, but also for the heads of other independent institutions.
After almost ten years working abroad, I returned to a divided and weakened NPA and a Criminal Justice System in disarray. The depth of challenges that confront us are serious, and well known: instability in leadership, serious allegations of impropriety (and even capture) against some of its leadership, an exodus of skilled staff, a virtual end of professional development and training programmes. Notwithstanding many hardworking and dedicated prosecutors working under difficult conditions, years of instability and loss of confidence in leadership, undue political influence and corruption have led to inertia in the institutional frameworks of the organisation, and serious problems relating to staff morale.

Challenges in the broader criminal justice system:

Since my appointment, we in the NPA have embarked on a series of efforts together with government partners, those in civil society to revitalise the NPA, including its role in strengthening the criminal justice system as a whole. We continue these efforts in the knowledge that the task of restoring public confidence in the NPA, which sits at the centre of the criminal justice system, will not be easy.
I have often lamented to colleagues – and now, probably to their annoyance – how nothing seems to have changed in the ten years since I have been away from the country. Much has been done over the years in efforts to strengthen, better integrate and improve the functioning of the criminal justice system, has not achieved the desired results. I ask myself how will efforts now be different?
The next chapter of the NPA’s history requires a new vision, new energy, and new leadership. The appointment of a young Minister of Justice is most encouraging.
During my first briefing to NPA staff in February I said that I understand the gravity of the challenge, and the nature of the corruption threats we face. I reminded prosecutors that morning that we are lawyers for the people and that at this time the people don’t trust their lawyers. I committed to turning that around. I have been mindful in my efforts that I need to focus on learning from previous efforts through listening; utilising research; and understanding the needs of my staff and those that we serve.
Getting this right has many components, but four are key to our vision for the NPA: independence, professionalism, accountability and
Independence: We need a deep commitment to our constitutional obligations and an unwavering commitment to our independence. When I met President Ramaphosa, before I accepted this position – I asked for an unequivocal commitment from the President of the NDPP’s independence, given what has happened in the recent past in the NPA. It’s a commitment I will not waver from enforcing at any cost.
We are also assessing options of how to further strengthen the independence of the NPA:
- Professionalism: Effective independence means that we need to get our own house in order. We need to be a professional organisation with the capacity to deliver. I’ll work tirelessly with my government counterparts, external partners – including civil society and the private sector – to ensure the NPA is a cutting-edge organisation that can address the challenges facing prosecutors in the 21st century. This will require hard work, innovation, and perseverance.
- Accountability: Prosecutorial accountability is a recognition that prosecution services derive their powers from the state, which in turn derives its powers from the people. In a democracy, the principle of accountability holds that state officials are responsible to the citizenry for their decisions and actions. The concept of accountability is central to the idea of democratic governance based on the rule of law. The NPA has to account for its actions. Prosecutors have power, also the power to disrupt lives and impact on rights of citizens. We need to exercise that power responsibly and not abuse it.
- Credibility: The NPA will be able to restore its credibility only once it gets its own house in order, and delivers an effective service to its clients, especially the victims of crime.
The NPA is responsible for bringing justice to the victims of crime, fundamental to achieving the human rights objectives in our Constitution. We need to always prosecute without fear, favour or prejudice, while maintaining a victim-centric approach. Our current efforts will need to be vastly improved and increased to better serve the needs of South Africans.
In ensuring that we are able to understand the needs and concerns of our public, we are ramping up efforts towards the establishment of an “Office of Complaints and Ethics” in the NDPP’s Office to deal more effectively with corruption-related allegations against members of the This is already provided for within the NPA Act.
Many of you will be aware of a significant new element of the NPA. The new Investigating Directorate was announced by President Cyril Ramaphosa in March this year. This has the objective of investigating and prosecuting serious, high profile or complex corruption-related crimes. In practice, this office will only be able to deal with a small portion of corruption-related matters, and we plan to increase the capacity of other specialised units, including that focusing on commercial crimes, to undertake these cases, and support the NPA Regional offices to do so as well.
We have also allocated resources towards addressing cases emerging from the Truth and Reconciliation Commission. Sadly, these cases were not addressed, in some measure, due to political interference, as highlighted in the Rodrigues case, for which the NPA was seriously criticised. [The High Court, Gauteng Local Division, Johannesburg, the NPA was reminded of its obligations, the Court stated:

“Whilst it is manifestly clear that the political interference materially affected the ability of the NPA to properly deal with the TRC cases in that the resources that were necessary to conduct proper investigations were not forthcoming, the NPA cannot, as it seeks to do, portray itself purely as a victim of the political machinations of the time. Whatever form the political interference took, the NPA was enjoined in terms of both its constitutional and legal responsibilities to act on behalf of society and protect the public interest…. Unwavering fidelity to the Constitution and the law must, at all times, be displayed. It is therefore not open to the NPA to seek to absolve itself of its constitutional duty in failing to pursue the TRC cases.”]

It continues to be our responsibility, under very trying circumstances, to ensure that these cases see resolution.

We are currently also working on developing additional strategies to understand and improve the performance of the NPA, including introducing new performance measures, beyond just that of conviction rates. Critically, this will involve understanding how we are serving our key stakeholders – in particular victims and witnesses but also offenders, whose rights must at all times be respected, and communities at large.
As I said, the next chapter of the NPA’s history requires a new vision, new energy. We are setting up a new Strategic Support and Innovation capacity within the Office of the NDPP. We will design this to ensure that we keep abreast of international good practices; that we anticipate new challenges; and that we are able to implement innovations across the organisation and which will impact on the CJS as a whole.
Our current efforts include efforts to review our strategic plans to accommodate new institutional developments and aspirations and taking account of whether all planning is victim-centred, and rights-based.
We will also be working with all our business units, and supporting them with research, to review their internal processes, procedures and products to ensure innovative thinking and renewed practices around how to best serve the needs of our clients and partners.
A key part of our efforts must focus on the implementation of the Service Charter for Victims of Crime, which was developed under the Victim Empowerment Programme (these rights include: to be treated with fairness and with respect for your dignity and privacy; the right to receive and offer information; the rights to protection and assistance; and the rights to compensation and restitution) and upholding and protecting the rights of children in conflict with the law.
Beyond these initiatives:
- As we seek a rights-based regime across our society and within our governments – I am mindful that while the NPA has expansive responsibilities and much to achieve, but that we are in no position to address the problems and challenges on our own.
- We need much more from other government partners, and yourselves as civil society stakeholders. We also need partnerships, in particular contexts, with business and the media.
- If we want to have even a small chance of achieving the Presidents target of a reduction of crime by 50% in 10 years, we need to work with our partners in the Departments of Health, Education and Social Development, Sport, as well as others to work with civil society to step up violence prevention efforts which include addressing the rhetoric of hate and exclusion.
- Addressing integrity is not the sole responsibility of the criminal justice system. The CJS is reactive. This is everyone’s concern, and civil society has an important role to play. Each of us have to fulfil our specific role and obligation whether as a parent and teacher during early childhood development or as a prosecutor reaching out to a community.
- In South Africa, we are fortunate to have a strong culture of civic activism, a free media and an independent judiciary.
- We have also benefitted from efforts of civil society to expose misconduct in government and the private sector. Litigation by CSOs and others, have played an important role in our collective efforts to protect democracy and human rights, and in the process generated an impressive body of jurisprudence. We expect that CSOs such as CASAC and the many others that operate in this space of accountability continue with their critical work, including holding the NPA, and myself as the NDPP, to account for our actions.
- Equally, CSOs have a critical role to play in assisting the NPA to do its work effectively. Understanding the needs of the victims and offenders that we serve; documenting the functionality of our systems; and sharing learning with us continue to be central to the service and support CSOs may provide to us. And to protect us when we come under attack – as long as we fiercely respect the rule of law and do not violate the values enshrined in the constitution.
To conclude,
- The nature and extent of crime including corruption in SA is truly shocking. It’s impact is evident everywhere, affecting the rights of ordinary citizens every day.
- In everything we do, or aim to do to eradicate crime including corruption, and turn our country around, the importance of nurturing existing relationships with stakeholders and building additional partnerships cannot be over-emphasised – both intergovernmental as well as with the private sector, including civil society, without impeding our independence.
- Collectively we hold the future of our country in our hands. All South Africans are watching, and hoping, that we can return to a place where justice matters, where victim receive justice and in particular the rich and the powerful are held to account. The people of our country deserve nothing less.
- The NPA has a vital role to play in this struggle. Together with the Judiciary, it is tasked with the defence of the ideals and values that define us as a people and a nation; they are instruments by which the State achieves service to the ideals of Justice. The yardstick of our development as a nation is the devotion to these ideals by organs and arms of state and all who serve in them.
- I am confident that the NPA will return to being an institution that South Africans will once again be proud of; a trusted and credible institution that puts the rights and interests of victims first, upholds fair trial rights and one that is not influenced by political pressure or illicit financial gain.
- Indeed, we know that the challenges are immense. But let us not succumb to despair that the challenges we face are insurmountable.
- Challenges have always existed and will continue to do so; it is in the meeting of these challenges that we fashion ourselves as a nation. I know it won’t be easy but together we can do it.