Transformation and Trouble

Has South Africa succeeded in making its justice system more democratic? For Diana Gordon, if the criminal justice South Africa inherited from apartheid is to meet the requirements of substantive democracy, it needs to change in two ways. First the institutions and the laws they maintained have to ‘shift constituencies’, that is, they must move away from serving the state to protecting the population. Second, justice should empower the public, enabling citizen ‘participation through democratic deliberation’ (p. 12). Shifting constituencies in this context, Gordon maintains, requires reversing the flow of accountability, so that officials and institutions can begin to serve the public interest and become more responsive to the needs of individual citizens. In particular, demilitarization of the police would enable them to concentrate on their proper function of community protection. Under apartheid the deployment of police in counter-insurgency led to the neglect of routine crime control. More generally, in 1994 police management was weak and the force was severely understaffed. Meanwhile, the judiciary needed better insulation from executive influence, for its defences had been eroded badly after 1960. Laws of evidence required changes to restore the presumption of innocence.

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