There should be ways and means to correct mistakes so that lives are not ruined, writes Ruth Hopkins
THERE might be hundreds, if not thousands of innocent people languishing in overcrowded prisons in South Africa. People like Fusi Mofokeng and Tshokolo Mokoena, who spent 19 years in prison for a crime they didn't commit.
They were arrested on April 2 1992 after an ANC Self Defence Unit (SDU) killed a police officer in Bethlehem in the Free State.
Mofokeng was the brother-in-law of an SDU member and Mokoena, Mofokeng's close friend, didn't know what hit him when he was dragged from his bed and arrested in the early hours of the morning. Their crime? They were at the wrong place, at the wrong time.
The two were sentenced to life, under the doctrine of common purpose and wasted what could have been productive years of their lives behind bars.
When the Truth and Reconciliation Commission heard their case, Mofokeng and Mokoena stated they could not confess to a crime they never committed. Ironically, the SDU members were pardoned and freed while they were sent back to prison.
Mofokeng and Mokoena were released on parole last year, but they are still not really free as their criminal records and stringent parole conditions form the proverbial chain and ball, restricting their lives and possibilities. There is no effective legal recourse available to establish their innocence.
This is worrying, especially given recent events. The Farlam commission's findings on the evidence gathered by police at the Marikana mine, as well as the exposure of the vigilante Cato Manor police force in Durban, uncover a dirty and nefarious underbelly of a criminal justice system that is anything but perfect.
When journalists in the UK and the Netherlands revealed that innocent people were jailed for years because the police had fabricated or tampered with evidence, independent commissions with legal experts were set up. They are tasked with assessing new evidence in possible miscarriages of justice.
The Criminal Cases Review Commission (CCRC) was founded in the UK in the wake of high-profile cases such as the Birmingham Six, who were wrongfully convicted of an IRA bombing of several pubs in Birmingham. It turned out that the police had fabricated incriminating, and suppressed exonerating, evidence.
In the Netherlands, the Posthumus Commission was set up after a mentally disabled man was wrongfully convicted of murdering and raping two children. The police put forward, and the judges accepted, the highly implausible claim that the man had removed all his DNA from the scene of the crime. No-one offered an explanation for the foreign DNA that was found on the bodies of the children. Years later a man with matching DNA was arrested and convicted.
Both countries have acknowledged their justice system is inherently flawed and they set up corrective mechanisms, aiming to restore public confidence in the criminal justice system. The CCRC has received 15532 applications since 1997. About 30000 people were wrongfully incarcerated in the Netherlands in the past 10 years, a report of the Central Bureau for Statistics revealed.
In South Africa, with a population approximately three times the size of the Netherlands and with a younger and more corrupt legal system, as well as higher crime statistics, the number of wrongfully incarcerated individuals is undoubtedly higher.
The only available legal avenue for people who want their cases reviewed is a presidential pardon. The constitution empowers the president to assess petitions by claimants who say they were wrongfully convicted. The Criminal Procedure Act also offers a presidential pardon route. This involves an assessment by the minister of justice of the potential success of the application. He can refer the case to a court, which should decide on the new evidence, and the court can then advise the president on the pardon application.
Both remedies draw the executive into what should be a purely judicial decision, preferably carried out by independent legal experts.
The presidential pardon options are hardly independent and impartial, and it should come as no surprise that there are few registered miscarriages of justice in this country. This is not because the legal system runs smoothly and flawlessly, but more likely because there is no appropriate mechanism to reveal or deal with miscarriages of justice.
Any system designed by humans is by its nature faulty, because humans make mistakes. But there should be ways and means to correct mistakes so that lives are not ruined.
Fusi Mofokeng and Tshokolo Mokoena have lost the opportunity to build a homes and families. This tragedy is heightened by a criminal justice system that perpetuates the miscarriage and continues to treat them as criminals.
- Ruth Hopkins, winner of the 2012 Webber Wentzel Legal Journalist award (print), is a senior journalist at the Wits Justice Project, which investigates miscarriages of justice