n Acta Juridica - Civil disabilities of former prisoners in a constitutional democracy : building on the South African experience : sentencing

Volume 2003, Issue 1
  • ISSN : 0065-1346
  • E-ISSN: 1996-2088



One of the salient features of the apartheid legal order was the extent to which it used the criminal law to suppress opposition to the government. Opponents were not only prosecuted for political offences but also subjected to various forms of civil disability after they had served their sentences. In the most extreme case, this took the form of legislation allowing for their detention after they had served their sentence. More often the civil disability took the form of banning orders, which could include 'house arrests'. Even those who had served their full sentences were effectively removed from civil society. Former prisoners were denied the right to stand for parliament if they had been convicted of an offence involving imprisonment for more than 12 months within the previous five years. Not that this was necessarily such a hardship, as the right to be a candidate for parliament was denied to the majority of the population on the basis of race. More importantly, banning orders prevented their writings being quoted and even stopped them meeting more than one person at a time, effectively excluding them from taking part in the life of civil society at all.

All this now has changed at the formal level. South Africa today is a constitutional democracy with a justiciable Bill of Rights. This chapter investigates the implications of these changes for the civil status of former prisoners. In the process of political change there were developments, such as universal suffrage, which improved the general civil status of the majority of the population, including former prisoners, and which brought particular benefits to former political prisoners. These particular benefits could be pointers to how all former prisoners ought to be treated.
The chapter goes on to point out that in practice the position of most former prisoners has not improved significantly and that most, if not all, of the old legal disabilities remain intact. Nor has the new constitutional order engaged directly with the position of former prisoners. Nonetheless, the new South African constitution does supply the basis for asserting the rights of former prisoners in a way that could diminish their civil disabilities. South African constitutional law should follow the lead of English and German law in this regard though difficulties of converting such developments into practice must be acknowledged.

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