Abstract
Prisons have been a major player in all countries with a history of tyrannical regimes, as people who attempted to resist repression frequently found themselves detained in prisons. Many countries have adopted democratic government, underscored by equality of all people before the law. Many states – South Africa among them – continue to make reforms to address these past injustices, and, as part of this shift, prisons across continents are attempting to decolonise. This article questions whether South Africa can decolonise its prisons, given that the country’s poor are at a higher risk of detention because they are not able to afford bail. The article focuses on the concept of cashless bail and argues that, given South Africa’s history of marginalisation and income inequality, this model can be one mechanism through which to address past injustices with a view to decolonising the country’s prisons. The article makes a strong case for the effective implementation of provisions on inquiry on affordability of cash bail as one of the means to achieve this end.
Highlights
Since bail is a constitutional right, it may be reasonable to expect, at least on the face of it, that accused individuals would be able to access bail relatively
Prisons have been a major player in all countries with a history of tyrannical regimes, as people who attempted to resist repression frequently found themselves detained in prisons
Have we properly considered the question of affordability of bail, and taken account of the ways in which cash bail is a criminalisation of poverty for the majority of South Africans? What are the implications of this for the rights guaranteed under our Constitution?
Summary
Prisons have been a major player in all countries with a history of tyrannical regimes, as people who attempted to resist repression frequently found themselves detained in prisons. This article considers these questions, and argues for a thorough inquiry into the affordability of bail as a mechanism through which to reform prisons in South Africa To this end, the article begins with an examination of decolonisation and bail from both a national and international perspective. From an international law perspective, there are standards that lend impetus to the cause of release of those accused of crime, pending their trial, despite not being an internationally accepted default practice.[16] South Africa ratified the International Covenant on Civil and Political Rights (ICCPR) in 1998 and this convention envisages the right to bail based on the fact that it guarantees the right to liberty and outlaws arbitrary arrest and detention.[17] Article 9(3) of the ICCPR provides that it is not a general rule that persons awaiting trial should be detained; release may be subject to guarantees to appear for trial. The inability to afford to pay bail is one such consideration
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