South Africa’s justice minister, Ronald Lamola, confirmed last month that a process is under way to help expunge the criminal records of people who violated Covid-19 restrictions. More than 400,000 South Africans were arrested during the country’s lockdown for trying to make a living and not adhering to the curfew.
This is a welcome announcement from the justice department, and a step that should be prioritised. People with criminal records routinely face discrimination when seeking employment, even though legally they should not. In 2008, South Africa amended legislation to enable those who have been involved with the justice system to have their record expunged based on specific criteria. Having a criminal record can create barriers to movement across borders and restrict access to further education, severely limiting people’s economic opportunities. This makes it harder for them to contribute positively to society and the economy, and to improve their lives and those of their families.
While there is no good data about reoffending rates in South Africa, a study of challenges faced by those who have been in conflict with the law in one of the country’s provinces found limited economic prospects to be among the biggest impacts. This is supported by evidence from other countries that shutting people out from economic opportunities increases the risk of reoffending, perpetuating a cycle of conflict with the law. This has harmful consequences for everyone.
More should be done to address the barriers posed by having a criminal record, beyond those relating to the Covid-19 restrictions. Expunging records would not only offer people second chances but would give political life to the 2008 legislation to achieve what it set out to do. There are a few ways the state can do more to help people turn their lives around.
First, the application process should be designed in a way that minimises the cost for applicants. While the expungement process is free, applicants require a police clearance certificate, which costs 170 rand (£7.40) – unaffordable to those with limited resources, and a payment that should be abolished.
Second, more people should be authorised to approve the applications. At present, the completed application form and police clearance certificate have to be delivered to the director general of the Department of Justice and Constitutional Development. The director general is the only official authorised to approve an expungement, and the burden placed on a single official contributes to the backlog in processing applications.
Third, local Department of Justice offices should be authorised to receive applications and issue receipts, thus saving applicants financial costs and the trauma of not knowing if paperwork has been received by the department.
Fourth, and most importantly, the expungement of criminal records should be automated. Government-driven expungement is the only way to ensure that all eligible people can not only access but benefit from the process. Submitting an application requires knowledge of eligibility status, which far too many people simply do not have. All those whose records are expunged should be informed at no cost to them, including what it means for their lives, so they do not needlessly miss out.
Fifth, the time period before a criminal record can be expunged should be revisited by the Department of Justice. Currently, it is 10 years, which is effectively an administrative sentence. Where is the evidence showing this is the right length of time?
Of course, groups beyond the state can and do help with this effort, including the non-profit organisation Freedoms South Africa. This year it launched Clear me, an app that serves as South Africa’s first automated expungement guide, allowing people to find out if they have a criminal record and whether they qualify for expungement, and guiding them through the process. The app was developed to enable community organisations, librarians, advice offices and anyone with access to assist people in their own communities.
Given South Africa’s high levels of crime – violent crime in particular – second chances for those who have been in conflict with the law may not sit comfortably for many people. But as a society that knows the harm caused by systemic discrimination and exclusion, surely we cannot think that further discrimination and exclusion is an answer to South Africa’s violence problem?
As Wayne Jean-Pierre, the chair of Freedoms South Africa – who has successfully expunged his own record – told me: “We cannot build a peaceful, productive and loving society in an adversarial manner where punishment never ends. The exclusion of those who have been involved in the criminal justice system prevents people who could potentially make a positive contribution to society and the economy [from doing so, and] has harmful consequences for individuals, families, communities and society as a whole.”
Koketso Moeti has a background in civic activism, working at the intersection of governance, communication and citizen action. She is an inaugural Keseb democracy fellow, a Mulago Foundation Rainer Arnhold fellow, an inaugural Collective Action in Tech fellow, an Atlantic fellow for racial equity, an inaugural Obama Foundation fellow and an Aspen New Voices senior fellow. Follow her on Twitter at @Kmoeti
