South Africa: Justice Sector and the Rule of Law

South Africa faces key challenges in meeting international standards of justice as well as those laid out in its own constitution, according to this report launched by the Open Society Foundation for South Africa and OSI's Africa Governance Monitoring and Advocacy Project (AfriMAP). The report provides a comprehensive audit of justice sector performance in post-apartheid South Africa and calls on the government to take steps to ensure that South Africa's justice system operates fairly and transparently and follows the rule of law.

South Africa: Justice Sector and the Rule of Law recognizes that the government, in place since 1994, has made major achievements in transforming the justice sector from an apartheid institution into one that measures up to international standards. Racist laws have been repealed, the legal aid system has been extended, and major efforts have been made to reform the criminal justice system.

However, serious challenges remain. In the criminal justice field, police abuse is still found and prison overcrowding is endemic, with negative consequences for any chance of rehabilitation. Access to justice is hampered by the high cost of lawyers, and provincial governments have failed to respect repeated court orders. In many areas, implementation of new laws and policies has not matched aspirations on paper. The report is broadly positive about South Africa's commitment to independence of the judiciary, while recognizing a need for continued vigilance to ensure it remains.

Among the priorities for action identified are:

• ratification and domestication of outstanding international standards, including the International Covenant on Economic and Social Rights, and prompt fulfillment of reporting obligations under treaties that have been ratified;
• in the context of the current debate around proposals to rationalize the court system, the establishment of a clear distinction between administration of the courts (which the executive may legitimately seek to control) and the adjudicative functions (which must be left to the judiciary);
• the need to improve the technical quality of new legislation and strengthen implementation of existing laws, including improving government respect for court orders (especially at provincial level where the administration has been in default of its obligations to make social grants and other payments);
• maintaining and strengthening civilian oversight of the police, a review of the impact of minimum sentencing rules, and action to reduce prison overcrowding.

The complete report, as well as a separate discussion paper highlighting key findings, is available for download.

This report is the first in a series to be published by AfriMAP assessing government performance in South Africa and four other African countries—Mozambique, Malawi, Ghana, and Senegal—in relation to three themes: justice sector and the rule of law; political participation and democracy; and effective delivery of public services. AfriMAP and the Open Society Foundation-South Africa will publish two further reports on South Africa, on democratic accountability and delivery of public services, during 2006.