Criminal Justice

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Beyond values – is Namibia moving away from the legal positivism of parliamentary sovereignty?
(RULCI-Colloquium, 2001-08) Schulz, Stefan
How to make sense of fundamental rights and freedoms in light of constitutional conceptions deriving from political philosophy, namely justice and human dignity? The author addresses the recent judgement of the Namibian Supreme Court Chairperson of the Immigration Selection Board v Frank and Another and asks whether the court's conception of values is compatible with Constitutional Supremacy. Borrowing from Alexy’s Theory of Fundamental Rights, the term value is given another meaning: Values are understood as optimization directives, as principles posited by the constituent assembly, purposively and functionally related to Kant's supreme moral principle; the categorical imperative. Justice is then understood as a feature of society, which is the natural environment of man, it shall signify a society where the individual is taken seriously. Special Fundamental Rights and Freedoms are viewed, as subjective rights emanating from a general freedom right. It is suggested, that the construction of their meanings has to consider that in the negotiation process towards (generic) constitutional provisions for authorizing law citizens live by, truth and justice could only be revealed approximately. The maxim 'in dubio pro libertate', therefore has to be observed when balancing colliding principles - to an extent which is tenable in Light of the social order challenge.
In dubio pro libertate - the General Freedom Right (GFR).
(2010) Schulz, Stefan
The constitutional protection of actual, intended or only desired behaviour of a person outside the ambit of a special Fundamental Right or Freedom, requires the recognition of a residual (negative) freedom, also called General Freedom Right (GFR). The non-recognition of the GFR, results in the possibility that the legislator, and in its wake the executive may arbitrarily infringe, restrict and violate the life-spheres of individuals without any legal remedy for the affected individual. Such treatment does not recognise the individual as a recipient of rights but as an object, subjected to statutory mechanisms without a say in the matter. If Ronald Dworkin’s claim that democracy is about governments ‘treating all members of the community as individuals, with equal concern and respect´ holds any appeal, legal scholars better look out for this residual freedom right in their Constitutions. The paper deals with the merits of the GFR and the question where to locate this right in the norm text of the Namibian Constitution.
Juvenile justice in Namibia: Law reform towards reconciliation and restorative justice?
(Restorative Justice Online., 2003) Schulz, Stefan; Hamutenya, Marthinus
Namibia is a newly independent nation, which in the wake of colonial oppression and foreign rule has yet to develop a comprehensive juvenile justice system. The current criminal justice system is informed by stereotyped common sense concepts of ‘criminality’ and ‘the criminal’. Simplistic views undergirded by utilitarian arguments have put Namibia at odds with international instruments, such as the United Nations Rules for the Administration of Juvenile Justice (Beijing Rules) and the Convention on the Rights of Children (CRC), which have embraced a holistic perspective on juvenile crime and deviance. In the spirit of ‘Ubuntu’, a frame of mind prevalent in sub-Saharan Africa, which relates to a specific communal approach to the notion of people, Namibia has set forth to establish a restorative juvenile justice system. This endeavor has led to the drafting of the Child Justice Bill, which is under scrutiny in this article. The authors highlight the arguments behind the most important parts of the draft Bill, and assess the merits of the proposed law against the backdrop of international legal instruments and law reform projects of other countries.
Namibia, child justice and the UNHCR: Warm love gone cold?
(2014) Schulz, Stefan
The United Nations provided an important point of reference for the Namibian liberation movement long before Independence. The Charter of the United Nations proclaimed already in 1945 "the respect for the principle of equal rights and self-determination of peoples". The UN Declaration on the Granting of Independence to Colonial Countries and Peoples, contained in the General Assembly resolution 1514 (XV) of 14 December 1960 referred to this principle as much as the Resolution on Namibia CM/Res.1055 (XLIV), passed by the Council of Ministers of the Organization of African Unity decades later.2 Shortly after Independence Namibia became an enthusiastic member of the United Nations, and embraced quickly a plethora of international treaties and conventions,3 amongst others the United Nations Convention on the Rights of the Child (UNCRC). Namibia signed and ratified the UNCRC on 26 and 30 September 1990 respectively. Following the World Summit for Children, New York 29-30 September 1990, the Namibian government established an Inter Ministerial Policy Committee, tasked to draft a National Programme of Action for Children of Namibia (NPA) and to “consider steps to implement the Convention on the Rights of the Child.”4 One should think that by now Namibia would have achieved a full implementation of most of the standards emanating from the convention. The current state of affairs is however mixed. Today, twenty three years later, notwithstanding some improvements of the situation of the child, two primordial milestones have not been reached, i.e. the establishment of (a) a child (juvenile) justice system, and (b) a child care and protection system.5
The Nelson Mandela rules: Yardstick for contemporary corrections?
(Namibia University of Science and Technology (NUST), 2020-11-19) Schulz, Stefan
The following text presents content, taken from a more extensive piece of work on the issue; the text hereafter has been prepared for the UNISA Webinar “Modern Trends in Corrections”, held at MS Teams on 19 November 2020. It must be understood as what it is, a sketch for a specific purpose. Reference made to “Slides” in the footnotes, refer to the accompanying Ppt.-slides prepared for the online presentation of the text. A more comprehensive paper is envisaged to be available by end of January 2021 only, where the slides will appear as figures, tables and so forth.
Out of the blue sky...?: Gender based violence and murder revisited.
(2014) Schulz, Stefan
Namibia is swept up in an unprecedented wave of gender based murder. We seem at a loss of how to react effectively to this phenomenon. Individual responses like “bury them alive”, “this carnage has to stop…immediately”, “reintroduce the death penalty” reflect a high degree of helplessness. It is important to note however, that the incidence of gender based murder is perceived as something which is a more recent phenomenon, something which was not there two, three generations back. This is a contention which is extremely difficult to prove for a number of reasons which cannot be explicated here. But it is a contention which provides leverage with those who profess it, because it allows us to bring society back into the equation. It implies (a) that the root cause of the problem is not situated at individual level, (b) that the problem has been in the making for a long time, a problem which did not fall out of the blue sky, and (c) that it is intertwined with the continuous evolution of our social structure. If this is so, punishment as a means of specific and general deterrence will not to help much. The instrumental effect of punitive action as a deterrence is small, and for the symbolic meaning of increased public censure to become functionally integrated in the mind/self of members of society, of actual or potential criminal actors, in other words to take effect at individual level, with a measurable effect at aggregate level (incidence), it needs to be systematically backed up in and throughout the social. Punishment as deterrence satisfies our need for action, but like in most other instances of raising punitivity levels (e.g. Stock Theft Act), the effects are barely measurable, and action becomes activism.
Rapid analysis: Children in Namibia in conflict with the law.
(2013) Schulz, Stefan
About thirteen years ago, in 1999, the Inter Ministerial Committee (IMC) on Juvenile Justice commissioned a Discussion Document Juvenile Justice in Namibia. This document, setting out the domestic Namibian and international legal framework for dealing with children in conflict with the law, provided albeit not comprehensive in terms of quantitative data, a fairly plausible picture of the way in which the Namibian justice system dealt with child offenders. The document clearly demonstrated that Namibia had strides to make if the country were to meet the requirements not only of its own law, but also its international obligations, notably under the United Nations Convention of the Rights of the Child (UNCRC/CRC). The Discussion Document Juvenile Justice in Namibia remained hitherto the only comprehensive document on the topic. In the meantime however, Namibia has directed impressive resources towards the wellbeing of her children,1 and over a period of two National Development Plans (NDP 2 and NDP 3) socio-economic conditions have changed. With the adoption of a number of Acts of Parliament addressing particular issues concerning children,2 also the normative framework, in which children grow up today, has changed. While all those changes have been fairly well mapped and documented,3 they remain external to the very phenomenon of child offending as well as to the ways in which the Namibian criminal justice system behaves when it comes to dealing with children in conflict with the law. It is in this context of uncertainty and change that the MGECW commissioned this study to obtain a rapid analysis of the state of compliance with the CRC.
Restorative justice - The case for a Child Justice Act.
(Konrad Adenauer Stiftung, 2009) Schulz, Stefan
In Namibia, though it is still a relatively young country, law reform efforts on juvenile/child justice have a long history. The early beginnings can be traced back to shortly after national Independence in 1990. However, whereas considerable efforts have been made to overhaul the system, the legal situation remained unchanged until today. This has distanced Namibia from the world community, which more and more embraces the principles of restorative justice when dealing with young people in conflict with the law. This paper looks into the history of Namibian law reform efforts on juvenile/child justice since Independence, offers a discourse on some essential philosophical and ideological reasoning which as could be argued has become a stumbling block on the way to Namibia's own juvenile/child justice system, and eventually discusses the merits of the Draft Child Justice Bill (2002), a layman's draft, which almost got as far as the Cabinet Committee on Legislation.
Rethinking Pre-trial Detention (PTD) in Namibia:
(Namibia University of Science and Technology, 2021-07-28) Schulz, Stefan; Bruyns, Hennie
The documentation following below refers to a project proposal the beginnings of which date back to the initiative by Dr Bruyns, who began to gather data pertaining to the broader issue of pre-trial detention in 2015. Then, together with 3rd year students of correctional management, a first data set was created, shedding some light on the conditions and experiences of detainees in police holding cells. Another initiative from about the same time by Dr Schulz brought about the idea of criminal justice section anchor projects, broader in nature, which would integrate criminal justice honours students’ honours projects. Students under the theme of the anchor project would prepare research proposals, which would cover one or more research objectives of the anchor project. Following the data collection for the anchor project, in which students would participate under supervision of their supervisors as student research assistants, sample of data from the entire data set would be provided to each participating students, who after analysis and interpretation of the data would prepare their criminal justice honours mini-thesis. This would create win-win situations, because ethical research procedures, application procedures for a research permit from National Commission of Science Research and Technology (NCRST) would only be necessary in respect of the anchor project; stakeholders would benefit from one broader and deeper investigation and have to only focus on one project instead of multiple smaller project with little benefit in terms of progress of actionable scientific knowledge; with the support of student research assistants, resources required for the execution of the project would be at hand. Finally, in 2021 Drs Schulz and Bruyns put pen to paper and crafted the anchor project Rethinking Pre-trial Detention (PTD) in Namibia in parallel with 23 honours students working on their proposals under the same theme. The product is hereto attached. It has been submitted with an application for research permit to NCRST.
Sociology of Crime and Criminology: Towards a Unified Theory (Model Visualisation)
(Namibia University of Science and Technology, 2021) Schulz, Stefan
In 2006 (p. 5) Schulz surmised that “[I]f the state of criminological theory could be assessed in quantitative terms, little would be left for improvement. Today there is a maze of academic contributions to the different strands of criminological thought.” Since then about 15 years have passed in which criminology has further developed. And the interest in the field has grown again. However, apart from minor exceptions (e.g. child justice), in general the impact of criminological theorising on public policy is insignificant. “No explanation consistent with a disciplinary perspective seems to have the ring of truth” (Gottfredson and Hirschi, 1990, p. 3). The positivist theory driven paradigm may have to do with this. The quest for the best theory in term of parsimoniousness has us looking for a specific type of explanations. Gottfredson and Hirschi’s self-control theory is a prime example in point. Their theory is parsimonious to the extreme, and its core mechanism, low self-control, is proven to be a strong predictor of a specific category of action (crime). However, to the extent that predictor variables of the many theories around each explain only a portion of the variance, the theories cannot be – exclusively – true. If theories make only different, but not contradictory predictions, they can be combined through integration. What is more, criminological theories can be classified according to their location in respect of the divide between macro- and micro-theories. Then, a central, unifying approach to integration should be able to combine micro- and macro-theory. Based on the assumptions discussed hereafter, I want to suggest such approach borrowing from Coleman’s ‘bathtub model’.1 The explication of this model will proceed step by step, beginning with a visualization of Durkheim’s mantra that social facts (phenomenal propositions of the social world) can only be explained by other social facts.

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