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Is The Oscar Pistorius Trial Fair?


Online Features Editor Meg Lawrence discusses South Africa’s justice system, and whether it means that Oscar Pistorius can ever have a fair trial.

The media has been rife with coverage about the trial of Oscar Pistorius ever since it began this week. Almost every detail appears to have been disclosed, from the layout of Pistorius’ house to the blood stains in the bathroom. The simple reason for this is that in South Africa, there is no trial by jury. Instead, the decision as to whether Pistorius is guilty of murder will fall entirely to one woman, Judge Thokozile Masipa.

Trial by jury was abolished under the apartheid in South Africa in 1969, as a result of fears of racial prejudice by white jurors. Rather than have a Jury decide the final verdict, Judge Masipa will be assisted by two ‘assessors’,  experts from various legal backgrounds, before making her decision.

Olympic athlete Pistorius is standing trial for the alleged murder of his girlfriend Reeva Steenkamp. Steenkamp died over a year ago, on 14 February 2013, and since this date there has been much speculation surrounding whether Pistorius intended to kill her or not.

Because of the high profile nature of the case, and the subsequent attention it has drawn, many people have criticised it as being a ‘trial by media’ rather than a fair and democratic trial. According to legal expert Kelley Phelps, in South Africa:”It’s believed that judges are cloaked in the letter of the law and have an ethical and professional responsibility to apply the law in a fair and impartial manner, and that means this risk of reporting influencing a trial is less in this system than in a jury system.”

Image Credits: BBC
Image Credits: BBC

Indeed, it would appear that the investigation into the death of Reeva Steenkamp has highlighted many flaws in South Africa’s justice system. For one, it is questionable whether a fair and just outcome can ever be reached if only one person is in charge of making the decision. Vested interests, biases and personal feeling can all cloud a single person’s judgement. Furthermore, with the whole world having access to evidence and making judgement before a verdict is passed, the notion of ‘innocent until proven guilty’ simply doesn’t apply to Pistorius.

The South African government’s mid-term report, which was released in March of last year, stated that: “The effectiveness and ability of the criminal justice system to serve as a deterrent against crime is unfortunately still under threat of being undermined by the actions of a small number of those who serve in it. Since 2009, investigations have uncovered 1,529 persons in the criminal justice system who were possibly involved in corruption-related crime. For the year April to September 2011, 192 officials were criminally charged regarding corruption, resulting in 86 officials being convicted, while a further 296 officials were departmentally charged.” With corruption growing from within, it is impossible to say that South Africa’s justice system produces fair and truthful verdicts.

However, the report suggests that it is police officers rather than jurors who are corrupt and negligent in their jobs. Journalist Sam Sole told the BBC that: “The perception is that there is a lack of discipline, skills and motivation in the police force, and the capacity to investigate cases has been reduced. While exercising their duties, police are often accused of committing crimes- if they are not suspended, they continue working. And if you have the best lawyers on the other side, they will scratch deeply to find flaws in the management of the case.” There are clearly issues running all the way through South Africa’s legal system- stretching from the police to the trials.

However, constitutional lawyer Pierre de Vos has defended South Africa’s decision not to include a jury in their trials. He wrote in his blog:”While I would normally trust judges to keep an open mind and to focus on facts actually proven by the state, I would not trust a jury of South African men and women to make decisions based on the facts instead of their own emotions and prejudices. Unlike jurors, judges will not easily be swayed by gossip or even by serious and credible allegations about an accused in a criminal case published in the media.”

It appears that the real problems in South Africa’s justice system stem far deeper than these court cases. If pre-existing prejudices and tensions are the reason for juries not being trusted, then these need to be resolved before a fair trial can ever take place. Pistorius, whether guilty or not, has the basic human right to stand a fair trial. Unfortunately, that is not something that will be possible in South Africa until it can come up with a fair and just system. For now, we can only hope that Judge Thokozile Masipa acts impartially, and that justice is served, and the right verdict passed.

Meg Lawrence, Online Features Editor

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