Decolonising the South African Criminal Procedure: Towards a Critical Approach to the Use of Ubuntu in Sentencing

Abstract

South African Criminal Procedure has colonial roots which are yet to be fully uprooted. While several sections of the Criminal Procedure Act 51 of 1977 have been declared unconstitutional, much of the Act remains steeped in colonial legacies. Moreover, the minimum sentencing legislation, passed after democracy, also resembles the laws enforced by colonisers. This article challenges the colonial nature of the South African Criminal Procedure Regime and calls for its decolonisation. It proposes and endorses the use of ubuntu in sentencing proceedings to promote a culture of decolonisation. uBuntu is an African value which confronts the retributive and colonial nature of Criminal Procedure. The article builds on the current literature on decolonisation in South African law by focussing specifically on the decolonisation of Criminal Procedure and on how ubuntu can be adopted to assist in the process. While the Constitutional Court in Makwanyane 1995 3 SA 391 (CC) was praised for its interpretation of ubuntu in the abolition of the death penalty, subsequent criminal courts have been loath to apply it. This needs to change. The article is presented in four parts. Firstly, it looks at the concepts of colonisation, decolonisation and ubuntu. It then examines the historical colonial roots of sentencing in South Africa from 1652 up until the enactment of the Criminal Procedure Act, the current regime. Thirdly it analyses how ubuntu can be utilised and applied by presiding officers during sentencing. The study concludes by making several recommendations.