Comparative analysis of criminal justice systems

¶ … Criminal Justice System

Ever since gaining independence status, both Mozambique and Zimbabwe have come under the scanner for violation of human rights incidences and extrajudicial excesses. The under trials, often arrested without formal sanctions have been continually processed through undemocratic norms and subjected to undue treatment when in confinement and under the control of policing authorities in spite of the fact that statutory provisions in the constitution provide assured guarantee for appeal and fundamental rights protecting the citizens in both the nations. The Dependant Variables hence comprise of use of force and even firearms against those in detention and secondly custodial executions and deaths.

Defining extrajudicial executions and deaths in detentions:

Extra judicial killing is the act of execution or subjecting an under trial to violent acts that may result in death of the person. Such uses of force or acts of violence precede, supersede or bypass any due judicial process and do not have legal or constitutional sanction. Such treatment is illegal in nature and is often committed by the very custodians of law who are supposed to uphold the principles of due judicial review and constitutional rights.

Defining excessive use of firearms and force: Policing authorities and custodians of law engage in excesses against under trials, those in detention or those convicted violating the normative human rights sanctions under the generally understood 'excessive use of firearms and force'.

Introducing the puzzle and the case studies

The puzzle that is then being attempted is: Systems that hold the police and judicial functionaries accountable for transgressions are not providing desired results. Proper pursuance of human rights violations against those in the judiciary and executive is conspicuous by its absence (Michel, 2014: Barkow, 2008). The main precincts under which the puzzle is hence sought to be solved are: a) victims' rights, b) legal system, c) autonomous status and hence independence of the judiciary d) location (locus standi?) of the public prosecutor's office in the legal structure and procedural format of criminal cases.

The key argument in the paper

The norms of codes of conduct and framework for judicial proceedings in both Zimbabwe and Mozambique fall short of the acceptable standards set forth for human rights by various International fora. According to Seleti (2000), the under trials and accused have limited access to judicial and executive appeal. On the other hand, even the victims are denied justice owing to glaring gaps in the judicial structure and the elaborate processing needed to seek justice that also reeks of corruption.

Roadmap of the paper

There are four sections into which this paper is divided. In the first section the reader is explained the importance of topic under scrutiny. The dependent variables are defined in this section. The aim is to state the puzzle and seek more clarity about it by visiting a few case studies. That enables the formation of arguments that follow. Section 2 reviews relevant literature to select the ones that may help the line of arguments. The final outcome of the work arrived at is based in the light of the theories visited in the literature review. The directions of the logical answers to those posed to by the quiz are found in the methods that the literature accessed contains.

In Section 3, the paper exhibits the evidence in support of the outcome. The reader will find the logical interpretation in favor of the outcome proposed. The theory that has helped in processing the evidence and the directions followed are explained in this section. This theory is the Independent Variable and is best suited to analyze the quiz. Section 4 sums up the paper by restating the quiz and summarizing the process attempted to arrive at the outcome.

Section B: Literature review

Human rights prosecution and extrajudicial executions:

The infrastructural amenities for the detainees in Mozambique are minimalistic and are almost uninhabitable. There is no separate provision for housing the sick inmates. The cells lack sanitation facilities, ventilation, lighting and temperature control. The lack of access to adequate potable water probably explains it more succinctly.

Emergency and even normal Health-care access, if at all found is in dire need of attention. Medicines and equipments are inadequate. There is an absence of provision for carrying the sick to hospitals if need arises. The inmates are forced to fend for themselves when a medical need arises. The inmates, who can, have to buy their own medicines (Langer, 2011). The buildings are in a dilapidated condition as they were built during colonial occupation. That needs immediate attention as both the inmates as well as prison staff are at grave risk under the precarious roofs and walls. According to Seleti (2000), in certain prisons, like the one at Cadeia da Machava, repair and refurbishment is underway, however, the under trials as well as proclaimed convicts are both housed under the same roofs, often sharing same cells, too.

According to the Human Rights Department of the U.S., the prison conditions in Zimbabwe are very difficult on the inmates. The overcrowding at the older urban jails only serves to compound the problems. The recently reorganized ZPCS (Zimbabwe Prison and Correctional Services) has undertaken steps recently (by 2013) to address the issues stated. The newly adopted constitution has accommodated measures of rehabilitation as well as making provisions for penal sentences. The ZPCS has been renamed as Zimbabwe Prison Service (ZPS). The conditions at the prison remain harsh and could even be causal to death of inmates. The detainees awaiting trials have to bear long waiting periods. The statistics paint a grim picture. 72 facilities (46 main prisons and 26 sub-prisons) in the country houses seventeen thousand inmates, which also include five hundred women and about two hundred juvenile inmates, under trials and convicts). The inhabitable living conditions owing to lack of sanitation and inadequate provisions for food caused in major part by overcrowding of the facilities have caused life threatening infections- HIV and Tuberculosis are not uncommon amongst many other afflictions amongst the inmates (Freedom House, 2014).

Overcrowding because of lack of infrastructure is a persisting problem, causing other difficulties in the prisons of Zimbabwe. The causes attributed are those of lengthy trials and waiting periods as well as inappropriate infrastructure according to certain NGO's. The prison staff uses violence against the inmates as a matter of routine (U.S. Department of State, 2014).

Legal system and extrajudicial executions:

In Mozambique, the provisions in the legal and constitutional statements provide freedom and prohibit arrest without proper sanctions; however, transgressions take place routinely. In fact, even the main opposition political party, the DMM (Democratic Movement Mozambique) is not spared of such arbitrary arrests and detentions. It has complained of arrests of its members for acts as simple as that of displaying its flag.

In a specific incident, local prosecution initiated the arrest of local MDM follower, Samuel Jaime Sabonete, for hanging the party's flag in the local headquarter office, in province of Manica ( District: Catandica). It took the intervention of national leadership to secure his release.

In another incident, the local populace seized control of Forca Guarda-Fronteira and forced the Government activate its machinery to initiate investigations against and bring to book the corrupt and abusers of power. There were also several incidences of the security, executive and judicial personnel overstepped their limits, authority, and orders and abused power assigned to them (Michel, 2014). In order to evade questions on impropriety, the police removed directions to the police stations and made it difficult to gain information of its personnel who were being investigated or against whom charges had been leveled (Barkow, 2008).

Zimbabwe law does not have a definition for torture inflicted on the citizenry, under trials or the prison inmates as of 2012, according to the report submitted by Foreign and Commonwealth Office. The police, subject the arrested to torture routinely during interrogation. The security personnel use physical excesses to torture political opponents and activists. Even the human right activists are treated with contempt and are at the receiving end during police excesses.

The UN Special Rapporteur on Torture was not invited even by 2013, in spite of the fact that the government had accepted to ratify and implement the UN Convention Against torture. The ban on the entry to Zimbabwe was in place since 2009. The Human Rights Defenders have continually alleged torture on them by the police in the interrogation proceedings (Foreign and Commonwealth Office, 2014). In a report 'Freedom in the World' as recent as in 2014, continuing allegations of excesses have been leveled against the security forces who subject the people to arbitrary arrests, make illegal searches and trample on basic rights of the countrymen with complete disregard to constitutional and legal strictures. The government chooses to take no visible stand least of all, action against such impunity (Freedom House, 2014).

Judicial independence and extrajudicial executions:

The selection of the judiciary in Zimbabwe is not an impartial and transparent process. The qualifications and requirements to be a part of the judicial system are vague and open to manipulations. Political bodies as well as councils of judges are involved in the process and hence open to partiality in selection process by vested interests. In addition, the promotions, career and the terms of service do not bear clarity. The wages, privileges are not satisfying enough to expect integrity, and execution of duties required of the most important constituent of protector of human rights of the citizenry. The demeaning salaries and privileges on offer do not attract the best brains or honest professionals. The government initiates no concrete actions to address the impropriety within the existing system, and this often leads to negligence or summarily conducted trials that would, at the best, please the power-that-be. The system makes it difficult to initiate proceedings of corruption or impropriety against sitting judges. That makes cleansing the system difficult and easier to manipulate by police officials and political influence. Even when judges with integrity form the courage to act in the best interests of the citizenry on the right side of law, they face the threat of intimidation and they have no protection against such incidents from the government (Murithi, T. And Mawadza, 2011; Ackerman, n.d.).

The constitution and legal system of Mozambique has provisions for autonomous status of the judiciary yet the lower-rung staff is vulnerable to influence, as they are uninitiated and not have inadequate training. The lack of transparency and compliance on the part of the legal system continues to prove inadequate in protecting the basic rights of the populace.

A New Police Law adopted in 2014 attends to the problems arising out of accountability and organizational ethos that encompass discipline and internal regulation within the police force. (Michel, 2014). It is thought that the replaced Constitutional Council accorded too much of free hand to the police department. Civil society organizations begun work on filing cases but were inadequately trained in legal matters and the Judges found them inadmissible on grounds of lack of substantial evidence (Seleti, 2000).

Victims' rights and extrajudicial executions:

All under trials and accused are 'innocent unless proved guilty' through a statute in the law in Mozambique. They have the right to contest the charges against them through regular legal channels. They are also empowered to know the details of the proceedings against them. They possess the right to choose their pleader (Michel, 2014). Though law stipulates that public attorneys can be availed of by the accused, they are rarely available for taking up fresh cases in far-flung areas. The legal professionals often have to be paid to be persuaded to defend cases. (Camp Keith, Tate & Poe, 2009). However, Mozambican Legal Aid Institute, a government aided body is now expanding its horizon's and rural folk have a better chance of getting free legal defense and better grasp of the legal machinations as well as their rights (Seleti, 2000).

Zimbabwe accepted the strictures of Victims of Crime as proclaimed in the Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power (UN, 1985), as: "Persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights through acts or omissions that are in violation of criminal laws operative within Member States including those laws prescribing criminal abuse of power (Jusa, n.d.)." It was in the light of the above that the government along with various women and child activists formed the Victims Friendly Court System in Zimbabwe in the 1990's. All vulnerable witnesses and victims were provided protection under law. The action taken was a joint action committee comprising of the legal and constitutional members of respective ministries.

Type of criminal procedure and extrajudicial executions:

In both the countries under discussion, intrusions into privacy like surveillance, law prohibits phone-tapping, interception of mails. However, the opposition has accused the government agencies of indulging in such acts against their members. The right to information about government activities and procedures does not exist in Zimbabwe. The government however infringes on the privacy of the citizenry and all appeals against such acts have evoked no response (Kim, 2012; U.S. Department of State, 2014).

The location of the public prosecutor's office and extrajudicial executions:

In Mozambique, the basic premise of law is that it should reach the last man standing. However, practical implementation is very difficult, either because of paucity of funds, archaic laws that are in contravention of basic human rights, vision, and means to implement the Judicial code of conduct and costs and inadequately trained staff that are both insensitive to vulnerable people and also ill-informed about human rights (Seleti, 2000).

In Zimbabwe, the attorney General is vested with powerful provisions in Judicial Service Commission section 76 that empower him to undertake and initiate any criminal proceeding, take over such proceedings. He can call upon the Commissioner to report proceedings in any criminal matter as he deem fit of intervention (BAR Human Rights Committee of England and Wales, 2010).

A theoretical foundation for the causes specified above

Bureaucratic behavior, its actions and interactions, within its own set-up or as an interaction with political world in its immediate surroundings has always been evaluated as either an interest in organizational matters or its evolution by its interactions (Gaus, 1947). The origins or causation of bureaucracy is not visited in these precincts, as was the case with Crozier, 1964 (O'Connor, 2013). Two theories in agreement with the general ambience of the discussion in this work are the iron triangle theory and the Principal -agent theory that we presently visit.

Section C: Findings A concise description of the outcome in both countries

Outcome (human rights prosecution)

In Mozambique the cell inmates are deprived of even basic amenities like drinking water. Sanitation and lighting is also rarely adequate. Health care facilities are almost non-existent. The prisons are very old and inhospitable, even dangerous to live in. separate cells for convicts and the accused are not available. The number of primary and satellite jails in Zimbabwe is very small. There are only 72 of them to house the 17,500 inmates. Incidences of HIV infection and contraction of tuberculosis is commonplace. The prison staff uses violence regularly against the inmates.

Legal system (family of law)

The executive and judiciary of Mozambique are blatant in its use of power towards the citizenry. It does not spare even the main opposition political party of the country. The police are aware of its excesses and possible investigations by human rights activists and tries to evade questioning by misleading information and such practices.

The Zimbabwean government has not defined torture in its legal constitution. As in Mozambique, the human right activists are attacked with impunity. The basic rights and privacy of citizenry are routinely impinged upon. The executive has no fear of the authorities over them and the government too, ignores such incidences of impunity.

Type of criminal procedure

In Mozambique as well as in Zimbabwe, government agencies and police invade the privacy of the citizenry regularly. Such intrusion is prohibited by law in both the countries. In Zimbabwe, there is no law through which citizenry can access information about its government.

Judicial independence

In Zimbabwe, judges' selection is arbitrary and open to impropriety. The salaries paid, the privileges offered, the career path and even tenure are not attractive. There is no provision of impeachment and the corrupt continue to occupy the benches as the government continues to ignore the problem. Judges also face threat charges and are offered no protection by the authorities. The judiciary in Mozambique is independent but the inadequate training and knowledge of human rights amongst the lower staff make them susceptible to being manipulated. The Judges find their petitions inadmissible in the court of law.

The location of the public prosecutor's office

The constitution of Mozambique aims to provide legal assistance to the poorest, but is unable to implement it. Many causes lead to unavailability of free legal aid. The problem continues to plague the system as inadequate training is being provided in the legal circles. In Zimbabwe, the Attorney General is a powerful figure and has sweeping powers in criminal cases. He is empowered to call upon the reports from the Commissioner of Police, too

Victims' rights

In Zimbabwe, right to defend is provided expressly by constitution. They have the right choose their legal counsel. However, they are rare to find. There are better times ahead in this regard as the Mozambican Legal Aid Institute has initiated the process of reaching the rural areas as well. In Zimbabwe, Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power of the UN has been adopted and the action got underway in 1990.

Theoretical Framework: Explanation of the outcome based on two bureaucratic theories

As specified above, bureaucratic behavior has always been evaluated as either an interest in organizational matters or its evolution by its interactions (Gaus, 1947). Two theories in agreement with the general ambience of the discussion in this work are the iron triangle theory and the Principal-agent theory that we presently visit and engage with the current situation.

In the Principal-agents theory, the inter-relationship between the principals and the agents is proposed. As referred to the context, it should be seen as the relation between the political class (the principals) and the judiciary and the police or executive combined (agent). The political class by way of salaries, appointments, privileges, and career of the judiciary and executive seek to extend their control over the citizenry. The resistance of the agents to such control is shown in the form of misinformation or withholding information to the principals (Jackson 1983; Miller 2005), in present context the political class. Such a situation gives rise to further manipulations sought by the political class to manifest the ground conditions they desire. In the process, the judiciary and executive as instruments of masters' desires, assume powers to inflict excesses on the people, often under orders of uninformed political class. The situation becomes ripe for going out of control. The corruption, inefficiency, and excesses start spinning out of control of the principals, the political class. Now, that is something that the political class should not understand as a personal assault (Barzelay 1992). The particular area where this theory finds relevance is the study of corruption and bribery, whereas in other areas it is not a fully developed assertion (O'Connor, 2013).

The second bureaucracy theory that we analyze is the iron triangle theory, which proposes that three interdependent constituents keep interacting with each other and form a bonding that holds them in good stead. They are in a constant give-and- take relationship with each other. The three groups recognized in this discussion would be the business houses or contributors to political parties, the political class itself and the judiciary and the executive arm of the government. The groups work in direction best suited in their own interest and leave the consumers (the citizenry) for whom they are ultimately working out of contention. These three constituents primarily choose to work in the vested interests of each other rather than the citizenry, who are poor, weak and find no place of relevance in the whole set-up (e.g., Rourke 1984; Knott & Miller 1987;O'Connor, 2013).

Bureaucracy is criticized for many things one of the most important being, its relevance to the society. The specific question is does it have any role in democracy. Many concur that it does not. Hayek (1994) in his book the Road to Serfdom elaborates that the threat that bureaucracy carries with its elaborate planning may lead to totalitarian society ultimately with powers vested in the upper echelons. The bureaucracy also confers upon itself all the powers and skills to run the government (Mills, 2000) and leaves little else for the society to achieve. In the present context of the discussion, the lower rungs of the judiciary and executive are often ill trained, underpaid and ill-informed about the human rights, and the relevance of the criticism can be seen immediately. Also of relevance is the criticism that being selected, instead of being elected are ultimately not accountable to anyone (e.g., Jreisat 2002).