Lawyers for Human Rights is a national human rights organisation who envisages a South Africa where the rule of law and enjoyment of human rights are extended to all those who live in the country. In working towards this goal, the organisation focuses its activities on those areas of the law, as well as those geographical areas where the need is greatest and where our work strengthens the core values of South Africa’s Constitution.

It is in this context that LHR take the opportunity to comment on the Draft White Paper on Correctional Services, especially as it relates to the detention of foreigners in South Africa.

The Draft White Paper on Correctional Services has raised the detention of foreigners awaiting deportation as a problem. Currently, the Department of Home Affairs is responsible for the detention and deportation of those found to be illegal in the country. While recognising the right of the state to detain and deport undocumented migrants from its territory, this process is not carried out in a manner that is in line with the provisions of the Immigration Act, Constitution and international minimum standards. Although the Immigration Act and its regulations refer to the minimum standards outlined in the Correctional Services Act, it is often not adhered to.

Since 1994 the issue of the detention of undocumented migrants in South Africa has been quite controversial. A number of international and national human rights organisations, including Human Rights Watch (1998) and the SA Human Rights Commission (1999 and 2000) have reported on the poor conditions of arrest and detention of foreigners. The following concerns, among others, were brought to attention of the authorities:

• Arrests on arbitrary grounds;
• Unnecessary prolonged detention exceeding the statutory limits;
• Complaints of assault;
• Unlawful detention of asylum seekers and refugees;
• Corruption;
• Access to health care;
• Detention of minors with adults; and
• Detention of illegal foreigners with awaiting trial detainees

The Bill of Rights in the Constitution of South Africa, 1996 ensures that all persons are entitled to basic minimum human rights. Section 35, in particular, outlines additional protections for arrested and detained persons.

The Immigration Act No 13 of 2002 provides for the detention and deportation of illegal foreigners. The detention of illegal foreigners needs to be dealt with in a sensitive and appropriate manner, as these are people who do not pose a threat to South African society. Illegal foreigners are a vulnerable class of persons and should be treated in an appropriate manner. It is inappropriate to deal with them in the same way as we deal with criminally accused and convicted persons.

The Immigration Act provides for a maximum detention period of thirty days (30) yet prolonged detentions are still a regular occurrence. There are provisions outlined in the regulations whereby an immigration officer may apply to court to extend this period of detention but arbitrary detentions in excess of 30 days without court sanction are still occurring on a daily basis. For example, in December 2003 the average length of detention of detainees held at the Lindela Repatriation Centre was 39 days. At the same time there were detainees who have been there for more than a hundred days.

The Department of Home Affairs’ detention of illegal foreigners is on administrative grounds. Therefore, such detainees should not be detained in places intended for the detention of criminally accused persons or convicted persons.

However as the Department of Home Affairs does not have places of detention intended specifically for illegal immigrants, they are detained in police cells and prisons before they are sent to a privately run Repatriation Centre in Krugersdorp, Gauteng for deportation. There is a need to ensure that illegal immigrants do not spend unduly prolonged periods of detention in these holding facilities before they are deported. In most instances, police stations do not have separate holding facilities for illegal foreigners. LHR has received many complaints from such detainees who have been assaulted by awaiting trial detainees. It is therefore crucial to develop proper guidelines and infrastructure to handle people detained on immigration charges.

We submit that the Department of Correctional Services, in the absence of an Immigration Inspectorate, should extend its mandate to all places of detention to ensure adherence to statutory standards of detention. This should include places of administrative detention as envisaged by the Immigration Act. The extension of this mandate may be possible by extending the definition of the term "prisoner" so as to include persons under administrative detention.

We do not envisage by this recommendation for the Department of Correctional Services to take over the management and administration of places of immigration detention, but rather that the Judicial Inspectorate for Prisons be responsible for monitoring these places of detention, in particular the Lindela Repatriation Centre, in the same manner as it monitors correctional facilities. The Inspectorate has the necessary expertise and knowledge to monitor the treatment of detainees, and this expertise is lacking in the Department of Home Affairs.

The minimum standards outlined in the Correctional Services Act conform to International minimum standards. The Immigration Regulations have made no provision for checks on human rights abuses with regard to detention and should conform to standards outlined in the Constitution and the Correctional Services Act.

Lawyers for Human Rights recommends that the Judicial Inspectorate for Prisons explores ways to extend its mandate over detained illegal immigrants so as to pave the way for an Immigration Inspectorate to take over this monitoring role.

We support the suggestion for the Department of Correctional Services to steer a short to medium term migration management plan to ensure effective transformation and the need for urgent policy appraisal of the situation.

The current parole system does not make adequate provision for foreigners to be considered for parole or correctional supervision. Often, foreign persons are handed over to the Department of Home Affairs for deportation after having served their sentences without any consideration of their personal circumstances.

Where a foreign person has close family or other ties to the country the chances of their returning clandestinely are likely, if they are deported directly after they have served their sentence and without an opportunity to deal with their personal circumstances. This is an area that requires investigation.

The White Paper is underpinned by the values outlined in the Constitution of the Republic of South Africa namely, human dignity, equality, rights underlying humane treatment of every detainee, access to health care services and associated rights, freedom and security of the person, children’s rights, right to education, freedom of religion, values and principles governing public administration.

These rights and values are in practise not extended to persons under immigration detention. The introduction of a human rights culture into the correctional system needs also to be extended to foreign nationals in detention.