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South Africa-Penal Code

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South Africa's courts are empowered to impose punishments of death (through early 1995), imprisonment, periodic imprisonment for a total of between 100 and 2,000 hours over a period of weeks or months, being declared a "habitual criminal," commitment to an institution other than prison, fines, and whipping. Those convicted of lesser crimes are often given a choice of punishment--for example, a fine or imprisonment. During the apartheid era, the courts imposed prison terms of several days to several weeks for pass law violations, and ten to twenty years for membership in the ANC or the SACP, which were banned organizations until 1990. Other typical prison sentences are terms of two to ten years for robbery; up to twenty years for assault or rape; ten to fifteen years for possessing an illegal firearm; ten to twenty years for attempted murder; and twenty years to life in prison for murder.

Murder and treason were capital crimes through the 1980s, although whites often received light sentences for crimes against black people, and they were almost never sentenced to death for murdering blacks. All executions were suspended in early 1990, and although more than 240 people were sentenced to death between 1990 and early 1995, no one was executed during that time. Parliament abolished the death penalty in early 1995.

Whipping is frequently used to punish juveniles for public misbehavior, but may only be imposed on male offenders under the age of thirty. The punishment may not exceed seven strokes of a cane. Whipping is done in private, although the parents of a juvenile can be present. This punishment was imposed on more than 30,000 juveniles and young men each year in the early 1990s.

Human Rights and National Reconciliation

South Africa's record on human rights came under frequent attack during the apartheid era, and improving it became a high priority for achieving national reconciliation and international legitimacy in the 1990s. South Africa had more than 2,500 political prisoners in 1990, according to the UN Human Rights Commission. Responding to criticism on this sensitive subject during the early 1990s negotiations, then President de Klerk agreed to review all cases of crimes against state security, and as a result, the government released 933 political prisoners by April 1991. It rejected 364 appeals for release because of the nature of the crimes involved. In September 1992, based on special requests by ANC leader Nelson Mandela, and through the intervention of UN special representative, former United States Secretary of State Cyrus Vance, the government released an additional 400 political prisoners as a further step toward successful negotiations. Officials went ahead with election preparations even though the issue of political prisoners was not fully resolved, and the new government in mid-1994 released from prison several hundred people who had been convicted of nonviolent crimes. Among them were an unreported number whose offenses were considered political.

The ANC faced its own internal accusations of human rights violations during the early 1990s. Former detainees from ANC prison camps alleged that they had been held in harsh conditions in Angola, Kenya, Tanzania, Uganda, or Zambia. Human rights monitors confirmed that prisoners in these camps had sometimes been tortured and, in a few cases, had been executed. Moreover, they alleged that some of the camps continued to be in operation, even after the ANC had announced the suspension of its armed struggle against apartheid. Mandela promised to investigate and to end these practices, but would not agree to air the allegations in public.

The interim constitution's chapter on fundamental rights guarantees freedom of speech, the press, assembly, association, and religion, as well as the freedom to travel and to live where one chooses, and the protection of minority rights. The interim constitution repealed Section 29 of the Internal Security Act, which had allowed the government to detain individuals for indefinite periods without charging them with a crime. Subsequent legislation established an independent Human Rights Commission and Office of the Public Protector, both to be appointed by the parliament. The public protector is charged with investigating allegations of abuse or incompetence against members of the government, including the police.

Despite obvious improvements in human rights policies and practices in the mid-1990s, several forms of human rights abuse continued at unacceptable levels and appeared to involve high-level police officials. Thirty-one unexplained deaths occurred in police custody in 1994, according to the private South African Human Rights Committee. This number was eight fewer than in 1993, and fifty-six fewer than in 1990. Pathologists' reports confirmed instances of police abuse in some of the 1994 deaths, and a team of international human rights monitors and independent experts uncovered a pattern of torture of detainees by some police personnel in the Johannesburg area.

The Goldstone Commission's investigations had unearthed prima facie evidence implicating senior police officials in supplying weapons to the Zulu-based IFP in 1993 and 1994, and had noted that some of these weapons had surfaced at the scene of IFP attacks on political opponents. These conclusions had resulted in the retirement of several senior police officers; one police training unit commander was charged with murder and later sentenced to life in prison.

Soon after the new government was in office in 1994, it began investigating allegations of "hit squads" within the KwaZulu police (predominantly IFP supporters) and launched an investigation into ANC-instigated violence in KwaZulu-Natal. Despite some initial reluctance, the provincial government cooperated with the international human rights monitors and allowed them access to prisons and detainees.

Violence against women continued to occur with regularity through the mid-1990s. The Department of Justice issued chilling statistics in 1994: more than one-half of all women who were murdered had died at the hands of their male partners. About 43 percent of women questioned in one study said they had been the victim of marital rape or assault. The police received reports of more than 25,200 rapes between January 1 and October 31, 1994--a 17 percent increase over the same period in 1993--but estimated that most such incidents were not reported and only about 25 percent of reported rapes resulted in convictions. Numerous laws were passed, both before and after the April 1994 elections, aimed at protecting women against abuse, but these laws were often ignored or bypassed. The new government pledged stricter legislation and stronger efforts to establish fair treatment for women.

The new government's promises of an improved human rights record and of security forces that are accountable to the population helped to set the tone for democratic reforms in 1994 and 1995. But the security forces faced even greater challenges than the political leaders in trying to implement these reforms. Members of the police, in particular, had to abandon their apartheid-related agendas--enforcing or opposing the old order--while, at the same time, upholding the changing laws that apply to the entire population. They had to establish "instant legitimacy," as several South African scholars observed, in the midst of change.

Legislation in 1995 established a Truth and Reconciliation Commission to deal with grievances arising out of human rights violations of the apartheid era. The commission's goals are to establish the truth about such crimes, to identify victims and determine their fate, to recommend reparation for victims and survivors, and to recommend to the president amnesty or indemnity under limited circumstances. Any grant of amnesty initially applied only to politically motivated acts committed before October 8, 1990, and subsequent legislation extended the cut-off date to May 10, 1994.

President Mandela appointed Anglican Archbishop Desmond Tutu to chair the Truth and Reconciliation Commission and a respected jurist, Alex Boraine, as his deputy. The commission began hearing testimony in March 1996, and it scheduled hearings in each province to enable South Africans from all regions to testify or to apply for amnesty. By mid-1996 several hundred testimonies had been heard, most of them concerning brutality or other mistreatment by the former security forces.

With less than one-half of its hearings completed in mid-1996, the commission was generally viewed as a positive step toward national reconciliation. A few outspoken critics disagreed, however, and charged the commission with impeding justice. Among these were relatives of ANC activists who had been killed by the security forces; some survivors criticized the commission for even considering amnesty applications from those who might otherwise have been brought to justice in the courts. Some former members of the security forces, for their part, criticized the commission for its apparent willingness to accept allegations against them. A few others who had testified before the commission complained that they had received little or no compensation for their losses, although most requests for compensation had not yet been acted upon by mid-1996. Despite these complaints, it appeared likely that the hearings would contribute to a broader public understanding of the violence that had bolstered the implementation of apartheid.

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South Africa has an extensive military history literature. Official accounts are available in numerous publications by Neil D. Orpen, such as The History of the Transvaal Horse Artillery, 1904-1974 ; The Cape Town Rifles: The `Duke,' 1856-1984 ; War in the Desert ; East African and Abyssinian Campaigns ; and Prince Alfred's Guard, 1856-1966 . Helmoed-Römer Heitman's The South African War Machine , South African Arms and Armour , and War in Angola: The Final South African Phase also cover important areas of military history. Different historical viewpoints are found in A. N. Porter's The Origins of the South African War: Joseph Chamberlain and the Diplomacy of Imperialism, 1895-1899 and Carman Miller's Painting the Map Red: Canada and the South African War, 1899-1902 . An interesting comparative perspective is found in James O. Gump's The Dust Rose like Smoke: The Subjugation of the Zulu and the Sioux . Jacklyn Cock's Women and War in South Africa presents a gender-related view of the subject.

The climate of domestic violence of the 1980s is analyzed in publications of the South African Institute of Race Relations, such as the annual Race Relations Survey , and in John Kane-Berman's Political Violence in South Africa . Political Violence and the Struggle in South Africa , edited by N. Chabani Manganyi and André du Toit; Policing the Conflict in South Africa, edited by Mary L. Mathews, Philip B. Heymann, and Anthony S. Mathews; and Policing South Africa: The South African Police and the Transition from Apartheid , by Gavin Cawthra, are also valuable.

South Africa's regional security policies since the early 1980s are discussed in numerous periodicals and monographs. High Noon in Southern Africa: Making Peace in a Rough Neighborhood by Chester A. Crocker, and Toward Peace and Security in Southern Africa , edited by Harvey Glickman, discuss Western points of view on that era. The New Is Not Yet Born: Conflict Resolution in Southern Africa by Thomas Ohlson and Stephen John Stedman with Robert Davies reviews regional clashes and peacemaking efforts in recent decades.

The changing security situation in the mid-1990s is outlined in the Stockholm International Peace Research Institute (SIPRI) Yearbook, 1995 ; "Prospects for Security and Stability in the New South Africa" by Carole Birch in Brassey's Defence Yearbook ; and "Current Trends in South Africa's Security Establishment" by Annette Seegers in Armed Forces and Society . Jane's Information Group's special report of July 1994, Whither South Africa's Warriors? , is a valuable contribution. The South African National Defence Force periodical, Salut, conveys brief insights into military concerns in the mid-1990s. (For further information and complete citations, see Bibliography.)

Data as of May 1996

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