Developments in artificial intelligence and machine learning have caused governments to start outsourcing authority in performing public functions to machines. Indeed, algorithmic decision-making is becoming ubiquitous, from assigning credit scores to people, to identifying the best candidates for an employment position, to ranking applicants for admission to university. Apart from the broader social, ethical and legal considerations, controversies have arisen regarding the inaccuracy of AI systems and their bias against vulnerable populations. The growing use of automated risk-assessment software in criminal sentencing is a cause for both optimism and scepticism. While these tools could potentially increase sentencing accuracy and reduce the risk of human error and bias by providing evidence-based reasons in place of ‘ad-hoc’ decisions by human beings beset with cognitive and implicit biases, they also have the potential to reinforce and exacerbate existing biases, and to undermine certain of the basic constitutional guarantees embedded in the justice system. A 2016 decision in the United States, S v Loomis, exemplifies the threat that the unchecked and unrestrained outsourcing of public power to AI systems might undermine human rights and the rule of law.
人工智能和机器学习的发展导致政府开始将执行公共职能的权力外包给机器。事实上，算法决策正变得无处不在，从为人们分配信用评分，到确定就业职位的最佳候选人，再到大学录取申请人排名。除了更广泛的社会、伦理和法律考虑之外，关于人工智能系统的不准确性及其对弱势群体的偏见也引发了争议。在刑事判决中越来越多地使用自动风险评估软件，这既是乐观的原因，也是怀疑的原因。虽然这些工具可以通过提供基于证据的理由来取代被认知和隐性偏见困扰的人类“临时”决定，从而潜在地提高量刑的准确性，减少人为错误和偏见的风险，但它们也有可能加强和加剧现有的偏见，并破坏司法系统中某些基本的宪法保障。2016年美国“S诉卢米斯案”(S v Loomis)的一项裁决，体现了将公共权力不受约束地外包给人工智能系统可能会破坏人权和法治的威胁。
{"title":"Sentenced by an algorithm — Bias and lack of accuracy in risk-assessment software in the United States criminal justice system","authors":"W. Gravett","doi":"10.47348/SACJ/V34/I1A2","DOIUrl":"https://doi.org/10.47348/SACJ/V34/I1A2","url":null,"abstract":"Developments in artificial intelligence and machine learning have caused governments to start outsourcing authority in performing public functions to machines. Indeed, algorithmic decision-making is becoming ubiquitous, from assigning credit scores to people, to identifying the best candidates for an employment position, to ranking applicants for admission to university. Apart from the broader social, ethical and legal considerations, controversies have arisen regarding the inaccuracy of AI systems and their bias against vulnerable populations. The growing use of automated risk-assessment software in criminal sentencing is a cause for both optimism and scepticism. While these tools could potentially increase sentencing accuracy and reduce the risk of human error and bias by providing evidence-based reasons in place of ‘ad-hoc’ decisions by human beings beset with cognitive and implicit biases, they also have the potential to reinforce and exacerbate existing biases, and to undermine certain of the basic constitutional guarantees embedded in the justice system. A 2016 decision in the United States, S v Loomis, exemplifies the threat that the unchecked and unrestrained outsourcing of public power to AI systems might undermine human rights and the rule of law.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125566333","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In response to the multitude of corruption allegations levelled against him, former president Zuma and his supporters typically sing a song called ‘Wenzeni uZuma’ (‘What has Zuma done wrong?’). This paper takes up this question from a jurisprudential (theoretical) point of view; that is, by probing the various senses in which prima facie corrupt conduct can be said to be unlawful in Africa. This question is explored through the application of the conceptual machinery of argumentation theory and criminal law theory. This paper discusses the Feinbergian, positivistic, contractual, legal moralism and the argumentum ad ignorantiam senses in which prima facie corrupt conduct can be said to be unlawful. It is then argued that prima facie corrupt conduct should most appropriately be conceived of as being unlawful in the contractual sense that a designated official diverts a particular benefit away from a de jure beneficiary and towards a de faco beneficiary.
{"title":"Wenzeni uZuma: A jurisprudential study of the unlawfulness of corruption in Africa","authors":"T. Mosaka","doi":"10.47348/sacj/v35/i3a1","DOIUrl":"https://doi.org/10.47348/sacj/v35/i3a1","url":null,"abstract":"In response to the multitude of corruption allegations levelled against him, former president Zuma and his supporters typically sing a song called ‘Wenzeni uZuma’ (‘What has Zuma done wrong?’). This paper takes up this question from a jurisprudential (theoretical) point of view; that is, by probing the various senses in which prima facie corrupt conduct can be said to be unlawful in Africa. This question is explored through the application of the conceptual machinery of argumentation theory and criminal law theory. This paper discusses the Feinbergian, positivistic, contractual, legal moralism and the argumentum ad ignorantiam senses in which prima facie corrupt conduct can be said to be unlawful. It is then argued that prima facie corrupt conduct should most appropriately be conceived of as being unlawful in the contractual sense that a designated official diverts a particular benefit away from a de jure beneficiary and towards a de faco beneficiary.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"13 12","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120932197","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Section 27(6) of the Copyright Act provides for penalties to be imposed on those convicted of infringing copyright. In terms of s 27(6), a person who infringes copyright is liable to be sentenced to a fine or to imprisonment or to both a fine and imprisonment. The Copyright Amendment Bill (which was passed by parliament in early 2019), introduces, amongst other things, minimum sentences for juristic persons convicted of infringing copyright. The purposes of this article are: to highlight high court decisions dealing with the prosecution of people who have infringed copyright; recommend ways in which copyright owners may invoke their right to institute a private prosecution as one of the means to protect their rights; highlight the limitations of the right to institute a private prosecution; and to highlight the challenges that are likely to be faced in the implementation of the minimum sentences introduced by the Copyright Amendment Bill.
{"title":"Prosecuting and punishing copyright infringements in South Africa: A comment on the Copyright Amendment Bill, B13B-2017","authors":"J. D. Mujuzi","doi":"10.47348/SACJ/V33/I3A11","DOIUrl":"https://doi.org/10.47348/SACJ/V33/I3A11","url":null,"abstract":"Section 27(6) of the Copyright Act provides for penalties to be imposed on those convicted of infringing copyright. In terms of s 27(6), a person who infringes copyright is liable to be sentenced to a fine or to imprisonment or to both a fine and imprisonment. The Copyright Amendment Bill (which was passed by parliament in early 2019), introduces, amongst other things, minimum sentences for juristic persons convicted of infringing copyright. The purposes of this article are: to highlight high court decisions dealing with the prosecution of people who have infringed copyright; recommend ways in which copyright owners may invoke their right to institute a private prosecution as one of the means to protect their rights; highlight the limitations of the right to institute a private prosecution; and to highlight the challenges that are likely to be faced in the implementation of the minimum sentences introduced by the Copyright Amendment Bill.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"101 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133760980","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Before an accused can be convicted under Chapter 4 of the Prevention of Organised Crime Act 121 of 1998 (POCA), two preliminary elements must be proven. These preliminary elements can be found under Chapter 1, and require the accused to be a gang member or active participant in a criminal gang and that a pattern of criminal gang activity should exist. Even though POCA was promulgated over 20 years ago, much uncertainty still exists as to the interpretation of various elements of the preliminary requirements under Chapter 1. This article examines the requirements set out in Chapter 1 of POCA, with a specific focus on how courts have interpreted these requirements. To do so, reference is made, amongst others, to the California Street Terrorism Enforcement and Prevention Act of 1988 (STEP) (as POCA was modelled after this legislation) and Chapter 2 of POCA (which deals with racketeering and is similarly structured to Chapter 4). This article will ultimately illustrate that courts have largely ignored these definitions which gave rise to legal uncertainty. Various suggestions will be made regarding the amendment or desired interpretation of these definitions.
{"title":"Defining the contours of a ‘criminal gang’ and a ‘pattern of criminal gang activity’ under the Prevention of Organised Crime Act","authors":"Delano Cole Van der Linde","doi":"10.47348/sacj/v34/i2a4","DOIUrl":"https://doi.org/10.47348/sacj/v34/i2a4","url":null,"abstract":"Before an accused can be convicted under Chapter 4 of the Prevention of Organised Crime Act 121 of 1998 (POCA), two preliminary elements must be proven. These preliminary elements can be found under Chapter 1, and require the accused to be a gang member or active participant in a criminal gang and that a pattern of criminal gang activity should exist. Even though POCA was promulgated over 20 years ago, much uncertainty still exists as to the interpretation of various elements of the preliminary requirements under Chapter 1. This article examines the requirements set out in Chapter 1 of POCA, with a specific focus on how courts have interpreted these requirements. To do so, reference is made, amongst others, to the California Street Terrorism Enforcement and Prevention Act of 1988 (STEP) (as POCA was modelled after this legislation) and Chapter 2 of POCA (which deals with racketeering and is similarly structured to Chapter 4). This article will ultimately illustrate that courts have largely ignored these definitions which gave rise to legal uncertainty. Various suggestions will be made regarding the amendment or desired interpretation of these definitions.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114310410","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Uganda witnessed one of its worst conflicts between 1986 and 2007. The conflict in northern Uganda was between the government troops and the Lord’s Resistance Army (LRA). Serious crimes were committed against the civilian population. Women and girls were abducted by the rebels to serve as sex slaves and children were born as a result. After the conflict, these children’s integration has not been well received by their communities. It has not been properly addressed by the state operatives either. The children are dismissed as perpetrators of the conflict. Their return has been marred with stigmatisation and ostracism, forcing them to live on the margins of society. After the conflict, a National Transitional Justice Policy was passed. The overarching framework aims at addressing justice and reconciliation through inter alia social reintegration. However, it leaves an accountability gap. The framework largely departs from the needs of this particular community: acknowledging their existence and integration. The purpose of this article is to identify transitional justice opportunities and how these accommodate and advance accountability, integration and reconciliation in addressing victimisation concerns of the war children. Ultimately, it argues that addressing the abuses of the affected communities will ease social [re]integration.
{"title":"Victimisation and challenges to integration: Transitional justice response to children born of war in northern Uganda","authors":"B. Nanyunja","doi":"10.47348/SACJ/V33/I3A4","DOIUrl":"https://doi.org/10.47348/SACJ/V33/I3A4","url":null,"abstract":"Uganda witnessed one of its worst conflicts between 1986 and 2007. The conflict in northern Uganda was between the government troops and the Lord’s Resistance Army (LRA). Serious crimes were committed against the civilian population. Women and girls were abducted by the rebels to serve as sex slaves and children were born as a result. After the conflict, these children’s integration has not been well received by their communities. It has not been properly addressed by the state operatives either. The children are dismissed as perpetrators of the conflict. Their return has been marred with stigmatisation and ostracism, forcing them to live on the margins of society. After the conflict, a National Transitional Justice Policy was passed. The overarching framework aims at addressing justice and reconciliation through inter alia social reintegration. However, it leaves an accountability gap. The framework largely departs from the needs of this particular community: acknowledging their existence and integration. The purpose of this article is to identify transitional justice opportunities and how these accommodate and advance accountability, integration and reconciliation in addressing victimisation concerns of the war children. Ultimately, it argues that addressing the abuses of the affected communities will ease social [re]integration.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114336818","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Note: Towards filling the gaps in the public violence judgment of S v Mei","authors":"Khulekani Khumalo","doi":"10.47348/sacj/v34/i2a9","DOIUrl":"https://doi.org/10.47348/sacj/v34/i2a9","url":null,"abstract":"<jats:p>None</jats:p>","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127278140","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is a trite fact that in the recent past decades, Ethiopia has been under a one-party dictatorship. The ruling political party encountered protracted civil protest and at times, an armed struggle. This has led to the overthrow of former party leaders and the dictatorship. The protracted protest against the party has led to change from within the ruling party. Thus, with the coming to power of Prime Minister Abiy Ahmed, there has been a widespread change in the political and legal landscape. Ethiopia has adopted various mechanisms including establishing a reconciliation commission as a means to reckon with legacies of a repressive past. This article takes stock of the major problematic areas of the Ethiopian Reconciliation Commission establishment law, Proclamation 1102/2018, with the aim to propose measures to be taken to rectify its blind spots.
{"title":"Confronting past gross human rights violations in Ethiopia: Taking stock of the Reconciliation Commission","authors":"M. Tessema, Markos Debebe Belay","doi":"10.47348/SACJ/V33/I3A3","DOIUrl":"https://doi.org/10.47348/SACJ/V33/I3A3","url":null,"abstract":"It is a trite fact that in the recent past decades, Ethiopia has been under a one-party dictatorship. The ruling political party encountered protracted civil protest and at times, an armed struggle. This has led to the overthrow of former party leaders and the dictatorship. The protracted protest against the party has led to change from within the ruling party. Thus, with the coming to power of Prime Minister Abiy Ahmed, there has been a widespread change in the political and legal landscape. Ethiopia has adopted various mechanisms including establishing a reconciliation commission as a means to reckon with legacies of a repressive past. This article takes stock of the major problematic areas of the Ethiopian Reconciliation Commission establishment law, Proclamation 1102/2018, with the aim to propose measures to be taken to rectify its blind spots.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"33 2","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120833697","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The international criminal justice system has resorted to criminal sanctions as the sole response to international criminal offending, including international humanitarian law (IHL) violations. While responding to international criminal offending, the international criminal justice system has overly relied on utilitarianist and retributivist assumptions to criminal punishment that assumes the application of criminal law in enforcing compliance to societal norms in order to deter potential norm violators and to induce compliance. Furthermore, correcting criminal behaviour creates a sense of accountability and appeases victims of international humanitarian law violations and other international crimes. Arguments in support of this strategy also posit that it is important to take these steps because it brings a sense of respect to the rule of law or what is popularly known as fighting ‘impunity’. A reflection on the Nuremberg and the Tokyo trials following World War II seems to have influenced the criminalising of war crimes and other international crimes. On the other hand, criminologists over a century now have been studying causes of crime to influence public policy in crime prevention. It is, therefore, imperative to examine the aetiology of international humanitarian law violations through a criminological lens to inform international criminal justice policy on best approaches in responding to international crimes in general and war crimes in particular. The essay examines international humanitarian violations in the Democratic Republic of Congo to find out whether the international criminal justice system’s response to war crimes meet the purported stated goals of the international criminal justice system. The Lubanga case in the DRC situation is informative since it is the first conviction before the International Criminal Court.
{"title":"Addressing violations of international humanitarian law through the international criminal justice system: A criminologist’s contribution","authors":"S. Sungi","doi":"10.47348/SACJ/V33/I3A8","DOIUrl":"https://doi.org/10.47348/SACJ/V33/I3A8","url":null,"abstract":"The international criminal justice system has resorted to criminal sanctions as the sole response to international criminal offending, including international humanitarian law (IHL) violations. While responding to international criminal offending, the international criminal justice system has overly relied on utilitarianist and retributivist assumptions to criminal punishment that assumes the application of criminal law in enforcing compliance to societal norms in order to deter potential norm violators and to induce compliance. Furthermore, correcting criminal behaviour creates a sense of accountability and appeases victims of international humanitarian law violations and other international crimes. Arguments in support of this strategy also posit that it is important to take these steps because it brings a sense of respect to the rule of law or what is popularly known as fighting ‘impunity’. A reflection on the Nuremberg and the Tokyo trials following World War II seems to have influenced the criminalising of war crimes and other international crimes. On the other hand, criminologists over a century now have been studying causes of crime to influence public policy in crime prevention. It is, therefore, imperative to examine the aetiology of international humanitarian law violations through a criminological lens to inform international criminal justice policy on best approaches in responding to international crimes in general and war crimes in particular. The essay examines international humanitarian violations in the Democratic Republic of Congo to find out whether the international criminal justice system’s response to war crimes meet the purported stated goals of the international criminal justice system. The Lubanga case in the DRC situation is informative since it is the first conviction before the International Criminal Court.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"19 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120908852","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Homelessness is widely seen as a persistent social issue, one that has existed for many years. Although notably under-researched, there exist some reports of severe experiences of victimisation. Due to the very nature of their lifestyle and other external factors, homeless individuals can expect to, and often do experience violence and victimisation at disproportionate rates. Furthermore, homeless individuals are commonly viewed as a surplus population or a disposable mass that cannot possibly be regarded as what society considers an ‘ideal victim’. With the presence of negative socially constructed labels, they are frequently exposed to harsh treatment by other members of society and consequently stripped of their basic constitutional rights, where in many contexts, their very existence is criminalised. Protective legislation at a domestic level is a neglected area and is yet to align with some major international developments, where homeless victimisation has already been identified as a serious enough problem that arguments for its inclusion under hate crime legislation have already started to surface. This paper therefore aims to put forward an argument regarding the plausibility of including the status of homelessness as a new category under the developing Hate Crime and Hate Speech Bill of South Africa.
{"title":"Homeless victimisation in South Africa and its potential inclusion in the Hate Crime and Hate Speech Bill","authors":"Jean-Paul Pophaim","doi":"10.47348/sacj/v34/i2a5","DOIUrl":"https://doi.org/10.47348/sacj/v34/i2a5","url":null,"abstract":"Homelessness is widely seen as a persistent social issue, one that has existed for many years. Although notably under-researched, there exist some reports of severe experiences of victimisation. Due to the very nature of their lifestyle and other external factors, homeless individuals can expect to, and often do experience violence and victimisation at disproportionate rates. Furthermore, homeless individuals are commonly viewed as a surplus population or a disposable mass that cannot possibly be regarded as what society considers an ‘ideal victim’. With the presence of negative socially constructed labels, they are frequently exposed to harsh treatment by other members of society and consequently stripped of their basic constitutional rights, where in many contexts, their very existence is criminalised. Protective legislation at a domestic level is a neglected area and is yet to align with some major international developments, where homeless victimisation has already been identified as a serious enough problem that arguments for its inclusion under hate crime legislation have already started to surface. This paper therefore aims to put forward an argument regarding the plausibility of including the status of homelessness as a new category under the developing Hate Crime and Hate Speech Bill of South Africa.","PeriodicalId":256796,"journal":{"name":"South African journal of criminal justice","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126006270","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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