SUBMISSION BY THE CIVIL SOCIETY PRISON
REFORM INITIATIVE TO THE PORTFOLIO COMMITTEE ON CORRECTIONAL SERVICES ON THE
CORRECTIONAL SERVICES AMENDMENT BILL [B 32 OF 2007]
Prepared
by Lukas Muntingh
27
August 2007
Introduction
The
Civil Society Prison Reform Initiative (CSPRI) was established in 2003 and is a
project of the Community Law Centre at the University of the
We
welcome this opportunity to comment on the Correctional Services Amendment Bill
[32 of 2007] (the Bill). In preparing this submission a number of questions
were asked:
On a
general level it is noted that changes in law and policy need to be based on
evidence and fact. Based on such evidence and fact the costing of legislation
needs to be done. Some of the proposed amendments may or may not have
far-reaching cost implications and it would therefore be important for Parliament
to be aware of the estimated cost implications of the proposed amendments. The
Bill does not provide in its motivation such evidence based on research
indicating that the substantive amendments proposed in the Bill are in fact the
best course of action. Furthermore, the memo accompanying the Bill merely states
that the cost of implementation will be incorporated into the normal medium
term expenditure framework, without describing in any detail what such cost
implication would be. We submit that the Department ought to submit a more
detailed account of cost implications of the Bill.
The
submission below comments on amendments where concerns are raised and do not note
every amendment we support as this will make the submission unnecessarily long.
Definitions
Care: The definition of ‘care’ is new and not amending
an existing one, and reads: ‘the provision of services aimed at fulfilling the
basic needs of inmates in order to develop, maintain and enhance the well-being
of persons under the authority of the Department’. The wording ‘basic needs’ is
cause for confusion as basic needs would presumably refer to the rights
of prisoners described in the Constitution and further expanded upon in Chapter
3 Part A of the Correctional Services Act (111 of 1998) (the Act). The need for
safe custody and protection from assaults and torture is an absolute basic
need. That ‘care’ would be aimed at
fulfilling the rights of prisoners appears to be a dilution of the
constitutional imperative placed on the state. The Correctional Services Act was
drafted in a particular manner to enunciate the basic rights of prisoners that
must be maintained under all conditions regardless of the circumstances. The central
purpose of Chapter 3 Part A is therefore to ensure that prisoners are at all
times detained under conditions meeting the minimum standards of humane
detention and maintaining their human dignity.
An alternative
interpretation of the definition of care would be that ‘inmates’ and ‘persons
under the authority of the Department’ may be referring to the same, or
partially exclusive or even mutually exclusive groups. Officials are also under
the authority of the Department as are prisoners, probationers and parolees. It
is then not clear how meeting the basic needs of inmates (a select group) will
contributed to ‘develop, maintain and enhance the well-being of persons under
the authority of the Department’
In view
of this, we submit that the Committee seeks clarification from the Department
on what is referred to as ‘basic needs’ and the distinction between inmates and
persons under
the authority of the Department.
Correctional
Centre: The
definition of ‘correctional centre’ is there to replace the definition of
‘prison’ and reads: ‘any place established under this Act as a place for the
reception, detention, confinement, training or treatment of persons liable to
detention in custody or to placement under protective custody, and all land,
outbuildings and premises adjacent to any such place and used in connection
therewith and all land, branches, outstations, camps, buildings, premises or
places to which any such persons have been sent for the purpose of
incarceration, detention, protection, labour, treatment or otherwise, and all
quarters of correctional officials used in connection with any such
correctional centre, and for the purpose of sections 115 and 117 includes every
place used as a police cell or lock-up’. Whereas this definition was
unproblematic in respect of ‘prison’, some concerns arise from its verbatim
application to ‘correctional centre’. A ‘correctional centre’ would presumably
provide specific services to ‘correct’ prisoners or provide services that can
be described as ‘corrections’; a definition of ‘correct’ or ‘corrections’ is,
however, not provided in the Bill. Chapters 3 and 4 of the White Paper on
Corrections in South Africa (the White Paper) deals with this issue and the
closest it comes to a definition is in paras 4.1.2 and 4.2.1: ‘The
responsibility of the Department of Correctional Services is first and foremost
to correct offending behaviour, in a secure, safe and humane environment, in
order to facilitate the achievement of rehabilitation, and avoidance of repeat
offending’ and ‘Rehabilitation is the result of a process that combines the
correction of offending behaviour, human development and the promotion of
social responsibility’. Based on this reading it is evident that corrections
involve some form of services aimed at correcting offending behaviour. The
definition of correctional centre in the Bill, however, includes all places of
detention for sentenced and unsentenced prisoners. From Chapter 4 (sentenced
prisoners) of the Correctional Services Act, and in particular Section 36[1],
as well as Chapter 5 (Unsentenced prisoners), it is evident that sentenced
prisoners are entitled to a different array of services than unsentenced
prisoners. In essence, it follows that unsentenced prisoners are not entitled to
services that could be broadly described as having corrections as their aim. A
further issue that requires clarification is the provision of Section 38(2) of
the Correctional Services Act requiring the development of a sentence plan for
prisoners serving a sentence of longer than 12 months.[2]
From this provision it is not clear whether or not prisoners serving a sentence
of shorter than 12 (or 24 months as proposed) will have access to services of a
corrective nature. It would therefore be
misleading and incorrect to call a facility where prisoners are detained and not
receiving services that have corrections as their aim, a ‘correctional centre’.
In view of this, two options are submitted as alternatives. The first is that
the term ‘prison’ be retained and that ‘correctional centre’ is not used. The
second option is that facilities where services of a correctional nature are
not rendered be distinguished in name from facilities where such are indeed
rendered.
Inmate, offender, and unsentenced
offender: The
comments below are made against the background that the Constitution still
refers to prisoners and that the UN Standard Minimum Rules for Prisoners also
refer to ‘prisoner’. While we acknowledge the importance of change in language
to facilitate transformation, care should be exercised to ensure that
euphemisms are not created for the harsh realities of imprisonment.
The three concepts inmate, offender,
and unsentenced offender are inextricably linked as they are all covered by the
current definition of ‘prisoner’ in the Act. The definition of ‘inmate’
therefore replaces the existing definition of ‘prisoner’ and this seems to be
fairly unproblematic. The definition of ‘offender’ on the other hand gives rise
to two issues. Firstly, it does not provide any indication as to the custodial
status of the person as it refers to both persons sentenced to imprisonment and
currently in prison, as well as to persons who are under correctional
supervision and not in prison. If the purpose of definition refinement is to
clearly distinguish between different categories of people placed in the care
of the DCS, then it should do this and not conflate different categories.
Secondly, the term ‘offender’ may
be factually correct but one derived from an approach emphasising the wrong
committed by the person as opposed to a more neutral term. The White Paper, in
para 7.4.1, motivates the changes in nomenclature as follows: Profiling and
offender management must begin with recognition of the offender as a human
being, as a product of society, and as a potential valued member of the
community. Reference to people sentenced to the care of the DCS, whether to
incarceration in a correctional centre or under community correctional
supervision or probation must be consistent with this approach. In view of this
eloquent motivation, it is then surprising that the term ‘offender’ is chosen
to describe the individuals who the Department sees as becoming valuable
members of society. We also wish to draw the Committee’s attention to Rule
60(1) of the UN Standard Minimum Rules for the Treatment of Prisoners (UNSMR): The
regime of the institution should seek to minimize any differences between
prison life and life at liberty which tend to lessen the responsibility of the
prisoners or the respect due to their dignity as human beings. By comparison,
the Mental Health Care Act[3]
does not refer to a person placed by a court in a psychiatric institution in a
manner denoting their personal affliction or any act that they may have
committed, but rather chose the neutral term ‘involuntary mental health care
user’. Neutral terms are selected specifically to protect the dignity of
individuals in vulnerable situations and to protect them from the negative
effects of labelling and stigmatization. We believe that the use of the term
‘offender’ would be contra the intentions of the White Paper itself and the UNSMR.
The
definition of ‘unsentenced offender’ also gives rise to a categorisation
problem. As proposed in the Bill, it would refer to people who have been
convicted of an offence but who have not been sentenced to imprisonment. The
definition in the Act of ‘unsentenced prisoner’ refers to prisoners who may or
may not have been convicted but are lawfully in prison, and the reason for their
imprisonment is not a sentence of imprisonment. The proposed definition of
‘unsentenced offender’ is clear but gives rise to a new category of prisoner,
namely those that are in prison but who have not been convicted and sentenced. The
Bill does not propose a definition for this category of prisoner. Reference is
made to this category as ‘awaiting trial detainees’ in Section 7 of the Bill
without it being defined. Reference is also made to this category as ‘awaiting
trial detainees’ in the White Paper at para 7.4.2.
The
White Paper (in para 7.4.1) distinguishes between ‘parolees’ and
‘probationers’, which in our view is a useful distinction, but unfortunately did
not find their way into the Bill. We propose that these be included into the
Bill.
Following
from the above we propose that the Definitions be amended to reflect the
following categories of prisoners:
Lastly, the proposed new terms in
the Bill have particular and discernible meanings in English. However, it is
not certain how these would translate into the other ten official languages. We
submit that the Committee requests the Department for clarification on this. The
importance of this should not be underestimated as their inaccurate translation
may result in giving the wrong message, or that officials would fall back on
old and demeaning terminology.
Based on
these definitions all other sections using the proposed terminology of the Bill
would concomitantly be affected and it is not necessary to deal with these in
each instance.
Section 7 (Clause 7 of the Bill)
Clause 7
deals with the accommodation of prisoners and more specifically the separation
of certain categories of prisoners. The separation of certain categories of
prisoners is an important management tool in the hands of any prison
administration to promote the safety of vulnerable categories of prisoners. We
therefore acknowledge and support the proposal in the Bill (Clause 7(b)) to
separate awaiting trial detainees from convicted but not yet sentenced
prisoners. The Regulations (Regulation 3 (h)) to the Act also requires the
separation of prisoners between the ages of 18 and 21 years from prisoners
older than 21 years. We submit that this requirement be included in the
principle Act under Section 7.
Clause 7
(c) requires that children be detained separate from adults, as is the international
norm. Clause 7(c) also states that children must be detained in accommodation
‘appropriate to their age’. It should be emphasised that this provision applies
to all children placed in the care of the DCS and not only to sentenced children.
It is common cause that especially children detained in awaiting trial
sections, are often not detained in conditions that could be described as ‘appropriate
to their age’. In view of this we submit that the Bill be amended to describe
what such conditions are, or, that the Minister be mandated to develop Regulations
that would set the minimum standards for the detention conditions of children.
We also wish to draw the Committee’s attention to the provisions of Section 19
of the Act dealing with services that must be provided to all children placed
in the care of the DCS, regardless of their status as sentenced or unsentenced
prisoners.[4]
Anecdotal evidence suggests that officials at prison-level are often of the
opinion that it is not the responsibility of the DCS to provide such services,
especially those described in Sections 19(1)(a), 19(2) and 19(3). The Act
states clearly that it is the duty of the Commissioner of Correctional Services
to provide such services to children.
Section 13 (Clause 13 of the Bill)
The
amendment of Section 13 to give formal recognition to the work done by non-governmental
organisations and faith-based organisation is welcomed and supported. The
numerous organisations involved in work supportive of the Department’s objectives
are indeed laudable and give expression to the notion espoused in the White Paper
that ‘corrections is a societal responsibility’.
In
recent research conducted by CSPRI reviewing the work of a number of
organisations providing offender reintegration services[5],
it was reported by the representatives of a number of these organisations that in
order to retain their access to prisons and prisoners, they exercise a measure
of self-censure by not reporting human rights violations and other corrupt and
dishonest practices. These organisations are fearful that if they confront the
prison management about rights violations or corrupt and dishonest practices that
have come to their attention, they may lose access to the prison and thus their
clients. This is a very unfortunate situation as civil society organisations
are there to promote transparency and accountability, but also to render
services from which the Department benefit. At the same time it is also
important to protect the Department and prisoners from unscrupulous service
providers who may misuse access to prisoners. In view of this we submit that Clause
13 of the Bill be amended to provide for the development of regulatory
framework that would protect civil society organisations from the unreasonable,
arbitrary or unfounded denial of access to prisons, whilst at the same time
providing for the development of a framework by the DCS regulating access to
prisons by civil society organisations. It follows that the development of such
a framework needs to be done in consultation with civil society stakeholders
and that it needs to be reviewed on a regular basis. We furthermore submit that
if a community organisations, non-governmental organisation or faith-based
organisation is denied access to a prison by the Commissioner, and the
organisation is unsatisfied with the reasons provided, that it has the right to
report the matter to the Office of the Inspecting Judge, whose decision shall
be final after reviewing the evidence from both sides.
Section 16 (Clause 16 of the Bill)
In the
amended Definitions, a definition of ‘care’ is included, as described above. The
Bill proposes to amend Clause 16 by replacing the wording ‘development and
support’ with the wording ‘correction, development and care programmes’. It is
not clear why ‘care’ is defined in the Bill but not ‘correction’ and
‘development’. We believe that it is important to be precise about terminology
as services relating to corrections, development and care may have significant
implications for prisoners. The issue not only relates to conceptual clarity
but also to the broader issue of quality assurance of services rendered to
prisoners by the DCS and external service providers and it could therefore
relate to the issues raised in respect of Clause 13 above. We therefore submit
that the Committee requests the Department to draft definitions for
‘corrections’ and ‘development’ programmes and services.
Section 20 (Clause 20 of the Bill)
The substantive
issue in the proposed amendment of Section 20 is the reduction of the period
which an imprisoned mother may keep her baby with her in prison from five years
to two years. The motivation for this amendment is not clear and CSPRI will not
express an opinion on the merits of a two-year limit compared to a five-year
limit that a baby stays with its mother. There are convincing motivations for
and against shorter or longer periods in this regard. We, however, wish to draw
the Committee’s attention to Section 28(2) of the Constitution stating that ‘A
child’s best interests are of paramount importance in every matter concerning a
child’. Setting a time limit, be that two years or five years, that a baby may
stay with its imprisoned mother may in fact make it impossible to give effect
to Section 28(2) of the Constitution. Conceivably there are instances where it
would be appropriate to keep the baby for longer than two years with its mother;
for example, if she will be released shortly after two years (or five years) has
expired. On the other hand, there may be instances where it will not be in the
best interests of the child that he or she be kept with its mother at all. It
is our submission that a categorical cut-off point, as is currently the case in
the Act as well as in the Bill, does not enable the state to serve the best
interests of the child but rather provides bureaucratic security. The best
interests of the child will be better served in such instances if these are dealt
with on a case-by-case basis and in accordance with the objectives of the
Children’s Act (38 of 2005). We are therefore submitting that in all cases when
a mother and baby are detained together, that the Head of Prison shall report
this to the appropriate authorities with the aim to open a Children’s Court
inquiry (see Chapter 4 of the Children’s Act). It will then be for the
Children’s Court to determine when such a child shall be removed from its
mother and the arrangements to be made in respect of alternative care. It is
furthermore proposed that such cases be reviewed on an annual basis while they
are in custody by social workers from the Department of Social Development with
reference to the Children’s Act.
It is
further noted that Section 20(1) provides for the development of regulations in
respect of female prisoners and their babies, but that such regulations have
not been developed yet despite the fact that this section of the Act came into
force on 31 July 2004. The development of regulations setting out service
standards and procedures to assess and make decisions in respect of individual
cases may in fact solve this rather sensitive issue more effectively than by just
lowering the time limit from five years to two years. It should also be added
that the manner in which mothers and babies are managed differs significantly
from prison to prison. For example, at Pollsmoor prison the babies, when old
enough, attend an external crèche which exposes them to a non-prison
environment and contact with other children and adults. This is a substantially
different situation from where babies are kept in the prison the whole day.
Section 24 (Clause 24 of the Bill)
The Bill
proposes the deletion of Section 24(3)(b) providing for the loss of gratuity earned
by prisoners as one of the sanctions that can be imposed by a Head of Prison
following disciplinary action. The reasons for this proposed deletion are not
clear and we submit that the Committee asks the DCS for clarification in this
regard.
Section 25 (Clause 25) and Section 30
(Clause 30)
Clause
25 proposes the deletion of ‘a penalty of solitary confinement’ and replacing
it with being ‘detained in a single cell’. Solitary confinement has a very
specific meaning in the Act, namely ‘being held in a single cell with the loss
of all amenities’.[6] It is also noted that while ‘solitary
confinement’ is proposed to be deleted in the body text of the Act, it is
retained under the Definitions. The wording in the Act clearly states that
‘solitary confinement’ is a penalty resulting from a disciplinary process
(Section 24(5)(d)). ‘Detained in a single cell’ has, on the other hand, several
meanings: as part of normal accommodation (Section (7)(2)(e)), upon request of
the prisoner (Section 30(1)(a)), to restrict amenities (Section 30(1)(b)), upon
prescription of a medical officer (Section 30(1)(c)), to restrain a prisoner
displaying or threatening violence (Section 30(1)(d)), to prevent re-escaping
(Section 30(1)(e)), and at the request of SAPS or Head of Prison in the
interests of justice (Section 30(1)(f)). The proposal then in Clause 25 that
every case of a prisoner being ‘detained in a single cell’, including the cases
referred to in Sections 7(e) and 30(1), be reported to the Office of the
Inspecting Judge to be approved by that office before it is implemented is
impractical, but also unnecessary. We submit that Clause 25 be omitted from the
Bill and that Section 25 in the Act be retained unchanged.
An
alternative approach to deal with solitary confinement and segregation is to
delete Section 25 as well as the definition of solitary confinement, but amend
Section 30 to provide for the ‘punishment of segregation in a single cell’. We
submit that the Committee requests the Department and the Office of the Inspecting
Judge for their views on this.
Section 31(2) (Clause 31 in the Bill)
We
support the amendment.
Section 37 (Clause 35 in the Bill)
The
wording of Clause 35(b) is laudable and it is clearly espousing the vision of
the White Paper. Our concern with it is, however, twofold. Firstly, the
particular provision that this management regime must be applied ‘as far as
possible’ renders it effectively without substance and meaning. What is
possible or not, is subjective, as what is possible for one person may not be
possible for the next. What is possible is furthermore subject to both
resources and willingness.
Secondly,
given this conceptually vague requirement, the subsequent provisions listed
under Clause 35(b) become even more uncertain. The particular wording of Clause
(1A)(h) illustrates this well: as far as possible the Department must apply a
management regime with ‘delegated authority and clear lines of accountability’.
As a management principle in the public service this is not an aspiration
subject to the limits of what is possible or not possible, but rather an
absolute requirement. A prison system cannot hold people accountable and
delegate authority ‘as far as is possible’ – it should do this with great
clarity and unwavering certainty.
The
provisions of Clause 35(b) raise similar clarity concerns about what is ‘good
communication’ that is ‘understood by everyone’. It is not clear who will be
responsible for determining what is good and whether it was understood by
everyone, or is this an issue determined after the fact when the communication
was not understood? If a particular communication is not understood, who is
responsible for this failure and what are the implications of liability? Can an
official claim that the Act does not communicate his/her duties in a manner
that he/she understands and therefore cannot be held liable for a transgression
committed?
The
notion of team work (Clause (1A )(b)) is equally vague as law. Teamwork is
generally a positive characteristic in any organisation but good managers also
acknowledge that certain individuals are not good team players, yet have a valuable
contribution to make. Would such an employee be disadvantaged by the
legislative requirement of ‘teamwork’ as a fundamental principle of the
Department’s management regime?
Clause
35(b) (1A )(d) states that assessments of inmates need to be done ‘as far as
possible’. Section 37(1)(a) in the Act states clearly that ‘every sentenced
prisoner must participate in the assessment process’. This is confusing as
‘every’ has a very clear meaning, whereas ‘as far as possible’ does not. Read
together with Section 38[7],
which elaborates on Section 37(1)(a), the wording of Clause 35(b)(1A)(d) is
even less clear and in fact contradictory.
In
overview it appears that despite the good intentions of Clause 35(b), it does
not make for good, clear, precise and enforceable law. It is furthermore a
characteristic of the current Act that it focuses in large parts on what must
be done and does not stipulate or even propose how this should be achieved;
this is left to the subordinate legislation. The effect of this approach is
that it is left to the executive how to meet the standards set out in the Act
and therefore leaves the Commissioner with considerable discretion to formulate
appropriate plans and put the necessary procedures and capacity in place to
meet the Department’s objectives. The multi-year strategic plan of the
Department is an important tool in this regard. The wording of Clause 35(b) (1A)
therefore departs in a substantive manner from the character and logic of the
Act. Section 3(2) of the Act[8]
already gives the mandate in respect of the management regime of the Department
and it was with good reason that the drafters left it fairly open to the
Commissioner to develop and establish his/her own management regime. While it
is the task of the legislature to hold the executive accountable, it is not the
task of the legislature to micro-manage the Department. The Strategic Plan of
the Department and the Code of Conduct are in fact there to give expression to
the intentions described in Clause 35(b)(1A).
In view
of the above comments, we submit that Clause 35(b) be excluded from the Bill.
Section 38(1) (Clause 36(b) in the Bill)
The amendment of Section 38
proposes a style of legislative drafting that spells out in minute detail how a
requirement in the Act ought to be met by the DCS. The Act, as it stands now,
steers purposefully clear of this approach and states, for example, in Section
12(1) that ‘The Department must provide, within its available resources,
adequate health care services, based on the principles of primary health care,
in order to allow every prisoner to lead a healthy life’. It does not specify
the exact procedures that must be followed nor does it describe the nature of
promotive, preventive, curative and rehabilitative health care services. How
this standard is met, is left to the Department; allowing it the flexibility to
develop the most suited and affordable methods. The detailed prescriptive approach proposed
for the work of Case Management Committees in Clause 36(b)(1A) may create
unforeseen problems and restrict the Department’s flexibility to design, test
and implement the systems and structures best suited to fulfil its mandate. For
example, the Department may in the near future decide, based on valid reasons,
that the procedures set out here are not the most suitable or effective, but
will then be bound by the procedures set out in Clause 36(b).
We support the functions and
procedures outlined in Clause 36(b)(1A) of the Bill but submit that these
belong in the subordinate legislation with specific reference to the
Regulations and the B-Orders. The development of minimum standards regarding
assessments and sentence plan development may in fact be a more suitable method
to deal with this issue, especially if such standards are incorporated into the
Regulations (see Regulation 24).
Section 38(2) (Clause 36(c) in the Bill)
The amendment proposed to Section 38(2) (see Clause 36(b)) to exclude prisoners serving a sentence of less than two years from having a sentence plan is of grave concern. The White Paper, in the Chapter entitled ‘A needs based rehabilitation process’ on p. 128 para 9.2 cites Rule 66(1) of the UN Standard Minimum Rules for the Treatment of Prisoners: To these ends, all appropriate means shall be used, including religious care in the countries where this is possible, education, vocational guidance and training, social casework, employment counselling, physical development and strengthening of moral character, in accordance with the individual needs of each prisoner, taking account of his social and criminal history, his physical and mental capacities and aptitudes, his personal temperament, the length of his sentence and his prospects after release. It should be emphasised that these are the minimum rules for the treatment of prisoners and the reference to this specific rule in the White Paper must be interpreted that the Department is not only alive to its requirements, but that it intends to comply with it. Rule 66(1) clearly states that services listed should as far as possible be available to ‘each prisoner’. It does not exclude certain categories of sentenced offenders, for example based on the length of their prison term or the type of offence. In fact para 9.6.4 of the White Paper reads:
The Department must provide or
give access to as full a range of processes and activities as is practicable to
meet the educational and training needs of sentenced offenders. Again there is
no selection or exclusion of particular categories of sentenced prisoners. From
the White Paper it therefore does not appear as if there is any justification
for excluding any category of prisoner from the benefit of a sentence plan based
on the length of the sentence.
Should the proposed amendment be
accepted, cognizance should be given to its implications. Table 1 shows the
sentence profile of sentenced prisoners as on 28 February 2007; these figures
are used to illustrate the impact of the proposed amendment. Table 1 indicates that
7.4% of the sentenced prison population is serving a sentence of less than 12
months and 11.1% is serving a sentence of less than 24 months. As the Act
stands now, it means that 7.4% or 8448 sentenced prisoners are excluded from
the benefit of a sentence plan. If the amendment to Section 38(2) is accepted,
a further 4149 prisoners will be excluded from the benefit of a sentence plan.
Table 1 Sentence
profile of sentenced prison population, 28 February 2007
|
Sentence Groups |
Female |
Male |
All Genders |
% |
Cumulative % |
|
0-6 Months |
269 |
4199 |
4468 |
3.9 |
|
|
>6-12 Months |
186 |
3794 |
3980 |
3.5 |
7.4 |
|
>12-<24 Months |
141 |
4008 |
4149 |
3.7 |
11.1 |
|
2-3 Years |
435 |
12482 |
12917 |
11.4 |
|
|
>3-5 Years |
340 |
9979 |
10319 |
9.1 |
|
|
>5-7 Years |
202 |
7649 |
7851 |
6.9 |
|
|
>7-10 Years |
281 |
15840 |
16121 |
14.2 |
|
|
>10-15 Years |
341 |
23331 |
23672 |
20.9 |
|
|
>15-20 Years |
104 |
11511 |
11615 |
10.3 |
|
|
>20 Years to Life |
165 |
16920 |
17085 |
15.1 |
|
|
Other Sentenced |
8 |
1028 |
1036 |
0.9 |
|
|
Total Sentenced |
2472 |
110741 |
113213 |
|
|
The real
impact of the proposed amendment is, however, the most visible in the number of
prisoners released per month and their sentence profile. Table 2 shows the
number of sentenced prisoners released in the first five months of 2005; the
period immediately preceding the remissions programme. The figures are again
used to illustrate trends as more up to date figures could not be obtained. On
average 5673 sentenced prisoners are released per month from
Table 2 Average
number of release per month, sentence profile, January to May 2005
|
Sentence category |
2005/01 |
2005/02 |
2005/03 |
2005/04 |
2005/05 |
Average |
% |
Cumulative % |
|
0 - 6
Months |
2850 |
3150 |
3175 |
3197 |
2885 |
3051 |
53.8 |
53.8 |
|
>6
- 12 Months |
573 |
611 |
670 |
705 |
653 |
642 |
11.3 |
61.5 |
|
>12
- <24 Months |
429 |
400 |
445 |
409 |
404 |
417 |
7.4 |
72.5 |
|
2 - 3
Years |
544 |
587 |
690 |
680 |
731 |
646 |
11.4 |
|
|
>3
- 5 Years |
307 |
328 |
410 |
399 |
410 |
371 |
6.5 |
|
|
>5
- 7 Years |
164 |
177 |
178 |
200 |
193 |
182 |
3.2 |
|
|
>7
- 10 Years |
193 |
172 |
226 |
241 |
250 |
216 |
3.8 |
|
|
>10
- 15 Years |
93 |
92 |
84 |
108 |
127 |
101 |
1.8 |
|
|
>15
- 20 Years |
27 |
19 |
40 |
23 |
24 |
27 |
0.5 |
|
|
>20
Years |
8 |
11 |
23 |
16 |
15 |
15 |
0.3 |
|
|
Life
Sentence |
2 |
6 |
7 |
2 |
3 |
4 |
0.1 |
|
|
Total releases |
5190 |
5553 |
5948 |
5980 |
5695 |
5673 |
|
|
If the intentions of the White Paper
are indeed to be met, the limiting provision of Section 38(2) needs to be
removed and not expanded. To deprive people of their liberty is extremely
serious, but to deprive them of their liberty for as long as two years without
the intention of having a plan and purpose is a waste of resources. In this
regard we draw the Committee’s attention to Section 36: ‘With due regard to the
fact that the deprivation of liberty serves the purposes of punishment, the
implementation of a sentence of imprisonment has the objective of enabling the
sentenced prisoner to lead a socially responsible and crime-free life in the future’.
The increase from 12 to 24 months as proposed in Clause 36(c) can only be
interpreted as a further erosion of the purpose of imprisonment, as described
in Section 36 of the Act.
Section 40 (Clause 38 in the Bill)
We agree with the spirit of the
amendment proposed in Clause 38 aimed at providing prisoners with market
related skills in order to be gainfully employed upon release (see 40(1)(b)).
Our concern is twofold. The first is whether such a level of detail description
is indeed required in the legislation. A close reading of Section 37(1)(b) of
the Act is understood to mean much the same as the proposed amendment: In addition
to the obligations which apply to all prisoners every sentenced prisoner must -
perform any labour which is related to any development programme or
which generally is designed to foster habits of industry, unless the medical
officer or psychologist certifies in writing that he or she is physically or
mentally unfit to perform such labour. The reference to ‘labour which is
related to any development programme’ would without any controversy cover the work
that inculcates the development of market related skills. The specificity of
the Clause 38 with reference to 40(1)(b) may indeed expose the Department to
liabilities if it is not able to provide work that develops market related
skills. The second concern is about implementation. The 2005/6 DCS Annual Report
reflects that a total of 9965 sentenced prisoners (8.8% of the total of
sentenced prisoners) were placed in work opportunities in the prison system,
and the majority of these were provided by external organisations.[9]
The question is then whether this amendment will in fact assist the Department
in improving this situation. In view of this, we submit that the Committee
requests clarification from the Department on this issue.
Section 41(1) (Clause 39 in the Bill)
The proposed wording inserts a
reference to the rendering of ‘needs-based programmes’. The wording appears to
be tautological when read together with the rest of Clause 39 (1): The Department must
provide or give access to as full a range of programmes and activities including
needs-based programmes, as is practicable to meet the educational and training
needs of [sentenced prisoners] offenders.
The reference to ‘needs-based programmes’ and further on ‘to meet the
educational and training needs of sentenced prisoners’ appears to be a
duplication. If programmes and activities are meeting the educational and
training needs of sentenced prisoners, they are logically needs-based. An
alternative interpretation would be that ‘needs-based programmes’ refer to
needs other than ‘training and educational needs’, in which case the remainder
of the clause would not make sense as this refer specifically to educational
and training needs.
We submit that the
reference to ‘needs-based programmes’ be omitted from the Bill, or that the
Committee requests the Department to clarify if ‘needs based programmes’ refer
to anything else than educational and training needs.
Section 41(2)(b) (Clause 39 in the Bill)
We support the
intentions of the amendment and all other efforts by the Department to improve
the literacy of prisoners.
Section 42 (Clause 40 in the Bill)
We refer to our comments made
above in respect of the proposed amendment of Section 38(1).
Section 42(2)(e) and Section 42(3) (Clause 40 in the Bill)
We raise this as an issue for
clarification. The Act states in Section 42(2)(e) that the Case Management
Committee must at the request of the Area Manager submit a report to the Area
Manager regarding prisoners sentenced to less than 12 months. The amendment
proposes that this report must now be submitted to the National Commissioner.
It is not clear why the Case Management should submit this report to the
National Commissioner and not the Area Manager. This may place a heavy
administrative duty on the office of the Commissioner. We submit that the Committee
requests clarification on this from the Department.
Section 50 (Clause 45 in the Bill)
Clause 45(1)(a)(i) states that
the first objective of community corrections is ‘to afford inmates an
opportunity to serve their sentences in a non-custodial manner’. The definition
of ‘inmate’ refers to all persons, convicted or not, sentenced or not who are
detained in a prison. It would therefore not be possible for unconvicted and unsentenced
persons to ‘serve their sentences in a non-custodial manner’.
Clause 45(1)(a)(iii) reads that
it is the objective of community corrections ‘to enable persons subject to community
corrections to be rehabilitated in a manner that best keeps them as an integral
part of society’. Read together with the existing Section 50(1) it is not clear
what Clause 45(1)(a)(iii) says that is not already substantively stated in
Section 50(1): ‘The objectives of community corrections are to enable persons
subject to community corrections to lead a socially responsible and crime-free
life during the period of their sentence and in future’. We submit that Clause
45(1)(a)(iii) be omitted from the Bill.
Clause 45(1)(a)(iv)
is, however, the most problematic of the proposed amendments in Clause 45 and
reads: ‘to enable persons subject to community corrections to be fully
integrated into society when they have completed their sentences or when they
no longer pose a threat to society or the law’. The particular wording that
causes confusion reads ‘when they have completed their sentences or when
they no longer pose a threat to society’. It is not clear what the objective is
and two interpretations are possible. The first is that it is an objective of
community corrections to fully integrate people into society when they have
completed their sentence. This interpretation would be in line with Section
2(a) of the Act, stating that it is the purpose of the correctional system to enforce
the sentence of the court. The second is that it is an objective of community
corrections to fully integrate people into society when they no longer pose a
threat to society or the law. A person may have completed their sentence and
still pose a threat to society, or alternatively, not pose a threat to society,
but have not completed his/her sentence. We submit that this clause causes
confusion and that the Committee seeks clarification from the Department on its
exact meaning.
Clause 45(1)(b)
deletes the plural form of ‘section’ and replaces it with singular form. This
does not clarify it either and we submit that this clause should read: These
objectives do not apply to restrictions imposed in terms of [sections] section 62(f) or section 71 of the
Criminal Procedure Act.
Section 52 (Clause 47 in the Bill)
The substance of the
proposed amendments to Section 52 is purportedly aimed at providing clarification
about restrictions placed on probationers and parolees. The first of these (Clause
47(b)) deals with house arrest (or house detention in the Act) and explains
that the purpose of house arrest is ‘to reduce the possibility of committing
another offence’. While this may be one purpose there may be others, such as
keeping a recovering alcoholic away from places where alcohol is sold or to
keep the person away from certain associates. It is perhaps because there are
several and divergent reasons why a person may be placed under house arrest
that the drafters of the Act refrained from stipulating particular purposes in
relation to the restrictions provided for. We submit that the amendment be
omitted from the Bill.
Clause 47(c)
explains that the purpose of community service is to ‘facilitate restoration of
the relationship between the person concerned and the community’. We appreciate
that this is a purpose of community service but that community service is also
used with other aims in mind. In the case of consensual crimes (such as the use
or possession of drugs) it is not a crime that has been committed against the
community and there is thus not a relationship to restore. It is furthermore
important to note that the notion of restorative justice, upon which this
clause is evidently based, is far more demanding than the performance of
community service. We submit that the amendment be omitted from the Bill. In
this regard we draw the Committee’s attention to the minimum standards for
restorative justice intervention recently developed by the Restorative Justice
Centre.
Clause 47(d) inserts
‘where possible’ into Section 52(1)(d) for it to read: ‘where possible
takes up and remains in employment’. It should be kept in mind that the Minister,
the Correctional Supervision and Parole Board, the National Commissioner or any
other body with the authority may stipulate any of the conditions listed
in Section 52. The Act therefore confers on these persons and bodies the
discretion to impose the condition that the person concerned takes up and
retains employment. In using this discretion these persons and bodies must
establish whether this is a reasonable condition to impose on the person
concerned. The insertion of the phrase ‘where possible’ further weakens the
enforceability of this condition. Given the high unemployment rate in the
country and the difficulties that ex-prisoners have in finding employment, the
desirability and enforceability of this condition is in any case problematic.
We submit that the amendment be omitted from the Bill.
Clause 47(e) adds
the words ‘correction’ and ‘care’ programmes as part of the programmes that may
be included as conditions of community corrections. It was already noted in the
above that ‘corrections’ is not defined and this poses a problem here as it is
not clear what these programme would be. Furthermore, ‘care’ is defined in the
Bill as ‘the provision of services aimed at fulfilling the basic needs of inmates
in order to develop, maintain and enhance the well-being of persons under the
authority of the Department’. Problems with the definition of care were already
noted in the above. The definition of inmate refers to people detained in a
correctional centre (unsentenced and sentenced). Reading these definitions
together, it would not be possible for a person under community corrections to
benefit from a care programme as such programmes exclude, per definition,
persons who are not in custody in a prison.
Section 55 (Clause 49)
The Committee’s
attention is drawn to the fact that not all persons placed under community
corrections are convicted persons and the amendment proposed to Section
55(4)(a) in Clause 49 would then exclude persons placed under community
corrections in respect of Section 62(f) and Section 71 of the Criminal
Procedure Act. These provisions enable courts to place accused persons under
the supervision of a correctional official in lieu of or as part of bail
conditions. Attention is also drawn to the fact that the proposed amendment of
Section 28 (to which is referred to in Clause 49) refers to ’inmate’ and not
‘offender’. We submit that the Department needs to clarify this confusion.
Section 57 & 67 (Clause 50 & 52)
Clause 50 proposes
the deletion of Section 57(5). The section reads ‘A person subject to community
corrections may not be under the influence of alcohol or other drug to an
extent that impairs the process of supervision’. Read together with Section
52(1)(k), which provides for the abstinence from alcohol and drugs when under
community corrections, the proposed deletion of Section 57(5) appears to be
without motivation. Clause 52 proposes to amend Section 67 to make the
distinction between the ‘abuse of alcohol and the use of illegal
drugs’. Section 67 mandates a correctional official to have the blood or urine
of a probationer or parolee tested for drugs and alcohol. The three sections in the Act (52(1)(k), 57(5)
and 67) follow a logical chain: the first stating that abstinence from alcohol
and drug may be a condition of community corrections, the second that irrespective
of whether it is a condition, a probationer or parolee may not be under the
influence of alcohol or drugs to such an extent that it impairs the process of
supervision, and third, that if there is a suspicion that the person is under
the influence of alcohol or drugs and in contravention of a condition set down
pertaining to his case, then he/she may be tested. We submit that the Committee
seeks clarification from the Department in this regard.
Section 68 (Clause 53)
The appointment of
unpaid volunteers to assist in the monitoring of community corrections appears
to be in principle a workable proposal to increase the capacity of the
Department. It does, however, raise a number of concerns in respect of
implementation. The first issue that requires clarification is the exact duties
of such a person in respect of monitoring. Will this person be required to
perform merely administrative duties or will this person be required to visit
another person’s home or place of work unannounced at odd hours of the day and
night to verify that he/she is where he/she is supposed to be? The prospect
that citizens may be policing each other does not sit comfortable in the
context of a constitutional democracy. Secondly, monitoring persons in the
community can be dangerous, an issue that has been raised by the Department on
several occasions. However, departmental officials are trained to work in high
risk environments and they are issued with protective clothing (and even fire
arms), but most importantly, they have the authority to use minimum force if
the situation warrants it. If unpaid volunteers are used for the purposes of
monitoring, it is unlikely that they will receive the same training or
protective clothing and they cannot be mandated to use minimum force as they
are not employees of the Department. In high risk situations, this may be life
threatening. Third, delegating a monitoring function in respect of legal
compliance with a sentence of the court or an order from the Minister or Commissioner
is a significant responsibility to be placed on an unpaid volunteer. When
officials are performing this function, there is a clear mandate from the Act
and if officials fail to perform this function properly, they can be held
accountable. When volunteers perform this function the accountability
relationship is weaker, but more importantly, the relationship between the
volunteer and the person(s) being monitored can be more easily corrupted and/or
volunteers can be coerced to ignore violations. Officials of the Department on
the other hand, are experienced in the work and if they are threatened or
attempts are made to corrupt them, the Department presumably has specific
procedures to deal with this. The use of volunteers to do monitoring then
appears to open another risk area for the Department in respect of corruption.
Four, it is unknown at this stage what criteria the Department will be using to
select volunteers and how it will screen such persons to prevent that associates
of offenders or other unscrupulous and criminally minded persons are appointed
as volunteers.
We submit that the
Committee requests a thorough briefing from the Department in respect of the use
of unpaid volunteers to assist in the monitoring of community corrections.
Section 73 (Clause 56)
The proposed
amendment to Section 73(1)(a), replacing the words ‘sentenced prisoner’ with ‘offender’
alludes to the difficulties with the definition of ‘offender’ raised above: [a sentenced prisoner] an offender
remains in [prison] a correctional
centre for the full period of sentence. As noted, the definition of
offender does not give an indication of the custodial status of the person as
it refers to persons sentenced to imprisonment and correctional supervision. As
a consequence of the definition of offender, this would mean that a person
sentenced to correctional supervision would remain in prison for the full
period of the sentence, which clearly would not be the intention of the
sentencing court imposing a sentence of correctional supervision.
Section 73 (Clause 57)
The amendments to
Section 73 and in particular the proposed incarceration framework could have
far reaching consequences for sentence administration. We will restrict our
comments to the incarceration framework, as this is the substantive issue in
the amendments proposed to Section 73(6).
The Act sets out in
Section 73(6) the minimum periods to be served for different types of sentences,
for example life, periodic imprisonment and corrective training. It also
creates a general rule of one half of the sentence to be served unless the
court specified a different non-parole period. While this framework can be
interpreted by some commentators to be complex, especially since it came into
force on 1 October 2004 and thus applies only to offenders sentenced after that
date, it nonetheless creates a transparent and accessible framework for
sentence calculation. A sentenced person will immediately be able to verify
what would be the minimum period that he/she will need to serve before being
considered for parole. As law it is not easy to change unless there is good
reason for it and then it is Parliament that makes the decision.
The incarceration
framework set out in Clause 57 places the authority to determine minimum
periods of detention firmly in the hands of the Minister, who need to consult
only the National Council on Correctional Services, a non-representative body
appointed by the Minister. Placing this amount of discretion in the hands of a
political head and outside the reach of Parliament raise a number of concerns.
With only one restriction,
namely that the incarceration framework may not be in conflict with any other
law or decision by a court of law (see 73A(3)), the Minister may change and amend
the incarceration framework as he/she sees fit. The incarceration framework
(see 73A(2)(a)) states that it must ‘prescribe sufficient periods in custody to
indicate the seriousness of the offence’. This wording is particularly
problematic as the meaning of ‘seriousness’ may in certain circumstances be
clear but in other less clear. The sentencing court may in fact regard a
particular crime as very serious, for example corruption involving R499 999 and
impose a sentence of 15 years and under the general rule of one half of the
sentence to be served before being considered for parole (Section 73(6)(a)), the
prisoner can be considered for parole after seven and half years. The proposed
amendment would enable the Minister to be of a different opinion and decide
that a minimum period of one sixth (two and half years) of the sentence need to
be served before being considered for parole to give sufficient indication of
its ‘seriousness’. This clearly undermines the intentions of the sentencing court,
but more importantly, it has a substantial impact on the separation of powers
between the judiciary and the executive. Courts and offenders need to have a
predictable certainty that a sentence of imprisonment of a particular length
and/or imposed under certain legislation, has a specific and steadfast meaning
and that it does not have different meanings from the one day to the next
depending on what the Minister may opine to give sufficient expression of the
seriousness of the offence.
In view of the
above, we disagree with the proposed amendments affecting the non-parole periods
in respect of periodical imprisonment, imprisonment for corrective training,
imprisonment for the prevention of crime, life imprisonment, imprisonment
contemplated in respect of Sections 51 and 52 of the Criminal Law amendment
Act, habitual criminal, imprisonment under Sections 276(1)(i) and 276A(3) of
the Criminal Procedure Act.
In concluding on
this issue, we submit that there is a wider need for sentencing reform in South
Africa, a need admitted by the Minister of Justice and Constitutional
Development. We also draw the Committee’s attention to the work done by the SA
Law Reform Commission on a new sentencing framework in
Section 79 (Clause 63 in the Bill)
The wording in the
Act is clear and states that a medical practitioner who is treating the
prisoner concerned must submit in writing a diagnosis confirming that the
person is in the final phase of any terminal disease or condition. Such a
person may then be considered for placement under correctional supervision or
parole. The purpose of medical parole is for the person to die a dignified and
consolatory death. The amendment proposes a further requirement, namely that
the Correctional Supervision and Parole Board or the Minister (in case of life
sentences) must be of the opinion that the person is ‘not being capable of
committing a crime in future’. It appears that this requirement would then
reflect on factors in addition to those covered by a medical practitioner, but
the Bill does not set out what these factors are. However, as this deal with
medical parole it is not clear what other factors can be considered if they are
not of a medical nature. With such wide discretion the possibility for unfair
discrimination is opened up.
We also draw the Committee’s attention to recent
case law regarding medical parole.[10] Although heard in 2003, a year
before the promulgation of the Correctional Services Act, the case of Stanfield
v Minister of Correctional Services and Others[11]
is instructive. The Cape High Court found that: [para 124] “To insist that he
[Stanfield] remain incarcerated until he has become visibly debilitated and
bedridden can by no stretch of the imagination be regarded as humane treatment
in accordance with his inherent dignity. On the contrary, the overriding impression
gained from the third respondent’s attitude in this regard is that the
applicant must lose his dignity before it is recognised and respected.” [para
130] “The inevitable conclusion to which I must come is that the third
respondent's decision to refuse the applicant parole on medical grounds was,
objectively, so irrational and unreasonable that the inference must necessarily
be drawn that he failed to apply his mind to the relevant facts and
circumstances.”
We propose two solutions to the
problem. The first is that the amendment to Section 79 be omitted from the Bill
and Section 79 remains unchanged. The second is more complex but may address
some of the Department’s fears:
Any person serving any sentence in a prison and who, based on the written evidence of the medical
practitioner treating that person, is diagnosed as being in the final phase of
any terminal disease or condition, may be considered for placement under
correctional supervision or on parole, by the Commissioner, Correctional Supervision
and Parole Board or the Minister, as the case may be, to die a consolatory and
dignified death.
The Correctional Supervision and Parole Board in whose jurisdiction the
person resides may on a regular basis review the case and amend the conditions
of medical parole. If the person has made a substantial recovery based on the
written evidence of the medical practitioner treating the person, the Correctional
Supervision and Parole Board may convert medical parole into another form of
correctional supervision or parole.
Sections 85 to 91
(Clauses 68 – 76)
We received information that the proposed amendments to these sections
have been withdrawn by the Department on 24 August 2007 with the exception of
the proposed amendment to Section 90 dealing with corrupt and dishonest
practices and the appointment of the Chief Executive Officer. As the Bill has
already been tabled in Parliament it is uncertain as to what the exact
procedure is for such a withdrawal. Nonetheless, we welcome the intentions of
the Department to withdraw the proposed amendments as the Office of the
Inspecting Judge has made a valuable contribution since its inception to the
South African prison system; its status is in line with the internationally
accepted good practice principal of judicial control over the prison system.
Clause
74 intends to remove the reporting on corrupt and dishonest practices from the
mandate of the Inspecting Judge as stated in Section 90 of the Act. The
reference to corrupt and dishonest practices was removed from the mandate of
the Judicial Inspectorate in the 2001 amendment of the Act. The Jali Commission
investigated the role of the Office of the Inspecting Judge and the Judicial Inspectorate
thoroughly. For the Jali Commission the treatment of prisoners is inextricably
linked to corruption, and it therefore could not accept the Judicial
Inspectorate’s motivation for the 2001 amendment to the Correctional Services
Act. The Commission regarded the amendment as ill-conceived and recommended
that the Correctional Services Act be amended to provide that the Judicial Inspectorate
deals with complaints of corruption and maladministration.[12]
In short, the Jali Commission recommended that the powers and independence of
the Office of the Inspecting Judge be strengthened in order to assist in the
fight against corruption, given its inextricable link to the treatment of
prisoners.[13] The
Jali Commission concluded that ‘the fight against corruption is a paramount
issue in the Department and the Office of the Inspecting Judge cannot ignore
it’.[14]
In view
of the Jali Commission’s recommendations, we submit that the 2001 amendment, which
removed corrupt and dishonest practices from the mandate of the Judicial
Inspectorate (Section 85(2)), be reversed. We further submit that the proposed
amendment to Section 90 with reference to ‘corrupt and dishonest practices’ be
omitted from the Bill. We recommend that the Office of the Inspecting Judge be
specifically mandated to monitor and report on complaints received in
respect of corruption and dishonest practices, as well as investigations
undertaken by the Department and other agencies in respect of corrupt and
dishonest practices. Since there are other agencies specifically set up to
investigate such cases (e.g. the Special Investigations Unit), we do not deem
it necessary for the Office of the Inspecting Judge to conduct such
investigations, but given the link between corruption and the treatment of
prisoners, it is important that such investigations be monitored on and
reported on publicly by the Inspecting Judge on at least an annual basis. Such
reporting should describe the facts of the case, name the officials involved,
disciplinary and criminal actions taken, and the results thereof.
It is
also submitted that the Act be amended to provide for a monitoring function in
respect of investigations into the unnatural deaths and injury of prisoners.
Between 2004 and 2006 seven prisoners died at Pollsmoor Prison due to unnatural
causes.[15]
It is to this date not clear what the investigations by SAPS found and if the
Director of Public Prosecution has or is planning to prosecute anybody. The
Office of the Inspecting Judge can without too much additional effort or extra cost
provide on an annual basis a report (included in its annual report) detailing progress
made by SAPS (or any other agency) in respect of criminal cases emanating from
the deaths and injuries suffered by
prisoners. Such reporting should at least describe the facts of the case, name
the officials involved, disciplinary and criminal actions taken, and the
results thereof.
Clause
73 (a) proposes that the Director in the Office of the Inspecting Judge be
replaced by a Chief Executive Officer seconded by the ‘Director General’. The
reference to Director General is not clear as this position is referred to as ‘Commissioner’
in the Act and ‘National Commissioner’ in the Bill. Despite these
uncertainties, there is a principled problem arising from such a secondment and
motivated by the perceived and functional independence of the Office of the Inspecting
Judge. Judge Jali called for greater independence of this office and stated ‘It
needs to be clear that the Office of the Inspecting Judge is not an extension
of the Department’.[16]
The secondment of staff and especially for the position of Chief Executive
Officer by the Commissioner would make a mockery of the independence of the
Office of the Inspecting Judge and be directly against the recommendations of
the Jali Commission. It is of great importance for the independence of the
Office of the Inspecting Judge, that the Inspecting Judge appoints his or her
staff, free from interference by the DCS. In view of this we submit that Clause
73(1)(a) and 73(1)(b) be omitted from the Bill.
Clause 74 (b) of the Bill reads ‘The [Inspecting Judge] Inspector-General
for Correctional
Services must submit an
annual report to the [President and
the] Minister’. We will not comment here on the name change in respect
of the Office of the inspecting judge as this proposed amendment was reportedly
withdrawn. However, in order to give full effect to the independence of the
Office of the Inspecting Judge, an issue that the Jali Commission expressed
concern about, it is important that its annual report be released to Parliament
and the public at the same time that it is submitted to the President and the
Minister. It should be borne in mind that the 2006/7 annual report of the
Office of the Inspecting was submitted on 12 June 2007 to the Minister and
President and at the time of writing (27 August 2007) the report has still not
been released. There has as yet been no indication when the report will be
released. The Office of the Inspecting Judge is an independent structure and
the delay in the release of the annual report amounts to censure given the
critical importance of up to date information, especially when Parliament has
to consider legislative amendment of this magnitude. In view of the above, we
submit that Section 90(4) be amended as follows:
90(4) (a) The Inspecting
Judge must submit an annual report to the President and the Minister after
which it will become with immediate effect a public document.
(b) The report must be tabled in Parliament by the
Minister within fourteen days of receipt thereof.
Clause 74 (c) proposes the deletion of Section 90(7) and Section 90(8)
which read:
(7) The Inspecting Judge may delegate any of his or her functions to
inspectors, except where a hearing is to be conducted by the Inspecting Judge.
(8) After consultation with the Director-General of the Department of
Public Service and Administration, the Inspecting Judge may appoint persons
with appropriate qualifications from outside the Public Service, to assist in
any specialized aspect of inspection or investigation, at a rate of
remuneration determined in accordance with the Public Service Act.
These two
sub-sections are critically important to the functioning of the Office of the
Inspecting Judge. The first enables the Office to have a much wider reach by
the Judge being able to delegate some of his/her functions to inspectors. It is
unreasonable to expect that the judge him- or herself perform all the functions
outlined in Section 90 and delegation is a normal practice in the public
service.
The contracting in
of specialized skills to assist the Office of the Inspecting Judge is of great
importance and it is unreasonable and impractical to expect that the Office
should employ on a permanent basis persons who possess all the necessary
specialized skills that may be required to exercise proper oversight over the
prison system. We submit that Clause 74(c) be omitted from the Bill.
Section 95 (Clause 79)
The Jali
Commission found substantial evidence of corruption in the DCS and this is
sufficient evidence to strengthen the legislative framework in this regard. In
support of the Department’s efforts to root out corruption we propose the
following additional amendments as Sections 95(6) to 95(9).
(6) All officials of the Department have a
duty to prevent fraud and corruption.
(7) All officials of the Department have a
duty to report corruption with reference to Section 34 of the Prevention and
Combating of Corrupt Activities Act (12 of 2004)
(8) All Heads of Prisons have a duty to
report any incidences, allegations or suspicions of fraud and corruption, as
defined in the Prevention and Combating of Corrupt Activities Act (12 of 2004),
to the National Commissioner and the
Office of the Inspecting Judge. The failure by a Head of Prison to report any
incidences, allegations or suspicions of fraud and corruption to the National
Commissioner and the Office of the Inspecting Judge, shall constitute an
offence punishable by a fine of R10 000.00 or six months imprisonment or both.
(9) The National Commissioner shall
investigate or cause to have investigated all reported incidences, allegations
or suspicions of fraud and corruption.
Section 123 (Clause 93)
The
proposed amendment to Section 123(4) intends to confer the power to deal with
prohibited publications from the Inspecting Judge to the Minister. We submit
that the current provision and practice is a satisfactory one as it gives the
necessary status to a prisoner’s complaint, but more importantly, that such a
publication may affect a person’s right to freedom of speech. In dealing with
an issue of such gravity, we submit that it should best be dealt with by a
judge and not a political head. We submit that the amendment be omitted.
Issue not raised in the Bill
Identity and age of prisoners
Section
26(b) of the Act stipulates that a correctional official “may take steps to
identify the prisoner” and Section 6((2)(a) states that there must a register
containing a record of ‘information concerning the identity of the prisoner’. Section
28 of the Act and Regulation 17 provide more detail. The identities as well as
the age of prisoners have been a source of major problems in the DCS as well as
the broader criminal justice system. This is of particular concern when
prisoners are admitted under aliases and/or the age determination of the
prisoner is incorrect. The correct identification of prisoners and consequently
their correct age determination will bring a number of benefits in respect of
law enforcement as well as assisting in the safe custody of prisoners,
especially children. In the case of children there is substantial anecdotal
evidence of young adults masquerading as children and consequently detained in
children’s sections where they reportedly victimise children. In view of this
we submit that Section 28 be amended as follows:
28 Identification
(1) To ensure safe custody the following steps [may] must
be taken to identify a prisoner:
(a) the taking of finger and palm prints;
(b) the taking of a facial photograph[s];
(c) the ascertaining of external physical
characteristics;
(d) the taking of measurements;
(e) referral of the prisoner to the medical officer
to ascertain the age of the prisoner if there are reasonable grounds to
believe that the prisoner may be a child or an adult claiming to be a child;
(f) establish if the person has an identity number and record this
number.
(2) To ensure safe custody the following steps may be
taken to identify a prisoner:
(a) the attachment of an electronic or other device
to the body of the prisoner in the manner prescribed by regulation.
(b)The prisoner may request that, at his or her own expense, his or her
private medical practitioner be present at an investigation referred to in
paragraph (e).
(3) Identification data obtained in this way must be included in the
prisoner's personal file.
(4) If as a result of ascertaining the age of a prisoner in terms of
subsection (1) (e) or for any
other reason it appears to the Head of Prison that the court's determination of
the age of the said prisoner is incorrect, the Head of Prison may remit the
case to the court concerned for a reappraisal of the prisoner's age.
Transfers (Section 43)
There is
substantial evidence indicating that when prisoners lay criminal charges
against warders for assault or any other reason, that the prisoner as well as
other witnesses are transferred to another and often far-off prison in order to
become unavailable to the investigating officer or/and the court. This
seriously undermines the rights of prisoners and the accountability of
officials.
We
submit that Section 43 of the Act be amended to include a provision that would
prevent transfers in such cases and/or enable the transfer of such a prisoner
for protective reasons but to a prison where the prisoner would still be
accessible to the investigating authorities and the court. We propose the
following amendment to Section 43:
Section 43(5) A prisoner who has laid a
criminal charge against an official may not be transferred to another prison
unless permission for such a transfer has been obtained from the Office of the Inspecting
Judge.
We also draw
the Committee’s attention to the content of Section 43(4) dealing with the
transfer of children to reform schools and the envisaged amendments to the Children’s
Act. The Bill needs to reflect on the harmonisation of legislation in this
regard.
Torture
The Committee’s attention is drawn to the fact that despite
The right to freedom and security of the person is described in five
subsections in the Constitution, two of which are non-derogable; the right not
be tortured and the right not be treated or punished in a cruel, inhuman or
degrading way.[19] The
international ban on the use of torture also has the enhanced status of a
peremptory norm of general international law, [20] meaning that as a peremptory norm, it “enjoys
a higher rank in the international hierarchy than treaty law and even
‘ordinary’ customary rules. The most conspicuous consequence of this higher
rank is that the principle at issue cannot be derogated from by States through
international treaties or local or special customs or even general customary
rules not endowed with the same normative force.”[21]
The prohibition of torture imposes on states obligations owed to all
other members of the international community, each of which has a correlative
right.[22]
It signals to all states and people under their authority that “the prohibition
of torture is an absolute value from which nobody must deviate.”[23]
At national, level it de-legitimates any law, or administrative or judicial act
authorising torture.[24]
[25]
No state may excuse itself from the application of the peremptory norm. The
absoluteness of the ban means that it applies regardless of the status of the
victim and the circumstances, be it a state of war, siege, emergency, or
whatever. The revulsion with which the torturer is regarded is demonstrated by
the very strong judicial rebuke, condemning the torturer as someone who has
become “like the pirate and slave trader before him – hostis humani generis, an
enemy of all mankind”,[26]
and torture itself as an act of barbarity which “no civilized society
condones,”[27] “one of
the most evil practices known to man”[28]
and “an unqualified evil”.[29]
[30]
Article
10 of CAT reads: Each State Party
shall ensure that education and information regarding the prohibition against
torture are fully included in the training of law enforcement personnel, civil
or military, medical personnel, public officials and other persons who may be
involved in the custody, interrogation or treatment of any individual subjected
to any form of arrest, detention or imprisonment. 2. Each State Party shall
include this prohibition in the rules or instructions issued in regard to the duties
and functions of any such
person. The prevention of torture remains after all the most important
objective of CAT and the Committee against Torture has on numerous occasions
reminded states parties that this starts with ensuring that persons working
with detained persons are made aware of the absolute prohibition of torture.[31]
From the wording of Article 10 one can assume that the Department of Correctional
Services should at minimum have a policy in respect of the prevention of
torture or other cruel, inhuman and degrading treatment or punishment. Such a
policy, the regulations and operating procedures should form the basis for the
training of staff, ensuring that every official is familiar with the required
standards and what is considered as prohibited and a violation of CAT.
We therefore submit that Section 4 of the Act be amended to incorporate
the definition of torture and a general prohibition of torture and other cruel,
inhuman and degrading treatment or punishment.
We also wish to draw the Committee’s attention to Article 13 of the CAT: Each State Party shall ensure that any
individual who alleges he has been subjected to torture in any territory under
its jurisdiction has the right to complain to, and to have his case promptly
and impartially examined by its competent authorities. Steps shall be taken to
ensure that the complainant and witnesses are protected against all
ill-treatment or intimidation as a consequence of his complaint or any evidence
given.
Article 13 of CAT gives everyone who claims to have been tortured the
right to complain and to have the case examined promptly and impartially by the
competent authorities. Supported by Article 12 (see below), these are the
essential requirements of a complaints and investigative regime envisaged by
CAT. Any complaints mechanism should thus be accessible to victims and
furthermore, protect victims from secondary victimisation. It should further be
pointed out that the investigation of a complaint of torture is not subject to
the lodging of a complaint, and an investigation should commence if there are
reasonable grounds to believe that torture had taken place.[32] A further duty imposed by Article 13 is that
such a complaints mechanism must be accessible in any territory and thus all
facilities under its jurisdiction. There are therefore no territories or
facilities that are excluded.
The findings of a study conducted by The Redress Trust[33]
across many countries highlight a number of problems in connection with the
lodging of complaints.[34]
From the research, it is evident that even when survivors of torture know about
the existence of complaints procedures, they seldom know how to go about
lodging their complaints. Those survivors who do know how to go about lodging a
complaint tend to refrain from doing so because of the number of hurdles, both
physical and otherwise, that they are likely to encounter.[35]
Once victims lodge their complaints, they are often forced to endure
deliberately manufactured situations, the combined purpose of which is to undermine,
if not to sabotage, a complaint. Perpetrators often pressurise the victim to
withdraw the complaint, even to the point of offering them bribes.[36]
Very often, victims do not pursue their complaints out of fear of suffering
physical harm, threats to their lives, including those of their families,
witnesses and human rights lawyers.[37]
Where complaints are lodged in good time, cases tend to drag on endlessly,
resulting in proceedings being discontinued.[38]
In many countries that lack such legislation dealing specifically with torture,
the laws of prescription apply. This means that after a period of time a
complaint prescribes or expires, which disregards the fact that, like rape, one
of the traumatic effects of torture is that victims do not rush to lodge the
complaint immediately after they have been tortured. In countries without
clear-cut rules governing the reporting and recording of complaints, the
authorities who are entitled to receive complaints tend to enjoy wide
discretionary power in dealing with complaints. In such countries, complaints
may be dismissed at the reporting stage simply because the complainant, for
want of evidence, is unable to name the alleged torturer.[39]
Such complaints are then considered incomplete. It also is not unusual in the
case of an unregulated procedure for the complaints officer to take down the
complaint, only to deny afterwards that it was ever lodged. And because the
complainant is not given a copy of the complaint, the matter simply peters out.[40]
But, even where complaints procedures exist, officials in some countries are
known not only to refuse to receive complaints, but also to suppress or destroy
whatever evidence there is that implicates alleged perpetrators.[41]
Given the complexities outlined above and the vulnerability of prisoners,
we submit that Section 21 and Section 93 be amended to make specific reference
to the development of norms and standards in the Regulations that will apply to all prisons in respect of
complaints mechanisms and procedures.
We also wish to draw the Committee’s Attention to Article 12 of the CAT:
Each State Party shall ensure that its
competent authorities proceed to a prompt and impartial investigation, wherever
there is reasonable ground to believe that an act of torture has been committed
in any territory under its jurisdiction. Article 12 obliges states
parties to investigate cases of alleged torture in a prompt and impartial
manner and this duty is not qualified by the discretion of the authorities. The
Article does not require a formal complaint to have been lodged but ‘wherever there is reasonable ground to
believe that an act of torture has been committed.’ [42]
There are no international guidelines as to what ‘prompt’ means.[43]
Perhaps the most concrete meaning was given by the European Court of Human
Rights in its decision in Assenov and
Others vs
In view of the requirement of Article 12 of CAT, we submit that Section
21 and Section 93 be amended to provide in the Regulations for for norms and standards
applicable to all prisons in respect of the investigation of allegations of
torture and other forms of cruel, inhuman and degrading treatment or
punishment.
We submit that Section 32 be amended to provide that all incidents of
the use of force be reported by the Head of Prison to the Office of the
Inspecting Judge within six hours of it occurring and that failure to report
such an incident is a disciplinary offence.
We submit that Section 33 be amended to provide that all incidents where
non-lethal incapacitating devices were used, be reported by the Head of Prison
to the Office of the Inspecting Judge within six hours of it occurring and that
failure to report such an incident is a disciplinary offence.
We submit that Section 34 be amended to provide that all incidents
involving the use of a firearms be reported by the Head of Prison to the Office
of the Inspecting Judge within six hours of it occurring and that failure to
report such an incident is a disciplinary offence.
We submit that Section 35 be amended to provide that all incidents where
any other weapons were used be reported by the Head of Prison to the Office of
the Inspecting Judge within six hours of it occurring and that failure to
report such an incident is a disciplinary offence.
Optional Protocol
to CAT
Article
4 of OPCAT sets out the places that may be visited by the international
Sub-Committee on the Prevention of Torture and the National Preventive
Mechanism: 1. Each State Party shall allow visits, in accordance with the
present Protocol, by the mechanisms referred to in articles 2 and 3 to any
place under its jurisdiction and control where persons are or may be deprived
of their liberty, either by virtue of an order given by a public authority or
at its instigation or with its consent or acquiescence (hereinafter referred to
as places of detention). These visits shall be undertaken with a view to
strengthening, if necessary, the protection of these persons against torture
and other cruel, inhuman or degrading treatment or punishment. 2. For the
purposes of the present Protocol, deprivation of liberty means any form of
detention or imprisonment or the placement of a person in a public or private
custodial setting which that person is not permitted to leave at will by order
of any judicial, administrative or other authority.
It
therefore follows that all places where prisoners are detained fall under the
Protocol. We therefore submit that the Act needs to be amended to provide for
the full cooperation of the Department of Correctional Services when the
international Sub-Committee on the Prevention of Torture and/or National
Preventive Mechanism visit such a facility. Full cooperation will in this
regard refer at least to unrestricted access to facilities, children, staff and
documentation.
Article
20 describes this in more detail and we draw the Committee’s attention to this: In order to enable
the national preventive mechanisms to fulfil their mandate, the States Parties
to the present Protocol undertake to grant them: (a) Access to all information concerning the number of persons
deprived of their liberty in places of detention as defined in article 4, as
well as the number of places and their location; (b) Access to all information referring to the treatment of those
persons as well as their conditions of detention; (c) Access to all places of detention and their installations and
facilities; (d) The opportunity
to have private interviews with the persons deprived of their liberty without
witnesses, either personally or with a translator if deemed necessary, as well
as with any other person who the national preventive mechanism believes may
supply relevant information; (e)
The liberty to choose the places they want to visit and the persons they want
to interview; (f) The right to
have contacts with the Subcommittee on Prevention, to send it information and
to meet with it.
We submit
that such an amendment will give effect to Article 19 of OPCAT: The national
preventive mechanisms shall be granted at a minimum the power: (a) To regularly examine the treatment
of the persons deprived of their liberty in places of detention as defined in
article 4, with a view to strengthening, if necessary, their protection against
torture and other cruel, inhuman or degrading treatment or punishment; (b) To make recommendations to the
relevant authorities with the aim of improving the treatment and the conditions
of the persons deprived of their liberty and to prevent torture and other
cruel, inhuman or degrading treatment or punishment, taking into consideration
the relevant norms of the United Nations; (c) To submit proposals and observations concerning existing or
draft legislation.
In order to meet these international obligations, we submit that the
Office of the Inspecting Judge be mandated to fulfill the obligations of a
National Preventive Mechanism in respect of prisons.
end
[1] Section 36 With due regard to
the fact that the deprivation of liberty serves the purposes of punishment, the
implementation of a sentence of imprisonment has the objective of enabling the
sentenced prisoner to lead a socially responsible and crime-free life in the
future.
[2] The Bill (in Clause 36 (c)) proposes that this
be increased to 24 months; an issue discussed is more detail below.
[3] Act 17 of
2002
[4] Section 19
(1) (a)
Every prisoner who is a child and is subject to compulsory education must
attend and have access to such educational programmes.
(b) Where
practicable, all children who are prisoners not subject to compulsory education
must be allowed access to educational programmes.
(2) The
Commissioner must provide every prisoner who is a child with social work
services, religious care, recreational programmes and psychological services.
(3) The
Commissioner must, if practicable, ensure that prisoners who are children
remain in contact with their families through additional visits and by other
means.
[5] Report
forthcoming
[6] Amenities
refer to exercise, contact with the community, reading material, recreation,
and incentive schemes. Prisoners in solitary confinement remain, however,
entitled to one hour of exercise per day.
[7] Section 38 Assessment
(1) As
soon as possible after admission as a sentenced prisoner, such prisoner
must be
assessed to determine his or her-
(a) security
classification for purposes of safe custody;
(b) health
needs;
(c) educational
needs;
(d) social
and psychological needs;
(e) religious
needs;
(f) specific development
programme needs;
(g) work allocation;
(h) allocation to a
specific prison; and
(i) needs regarding
reintegration into the community.
(2) In the case of a
sentence of imprisonment of 12 months or more, the manner in which the sentence
should be served must be planned in the light of this assessment and any
comments by the sentencing court.
[8] Section 3 (2) The Department
must-
(a) fulfill the purpose
of the correctional system in terms of this Act;
(b) as far as
practicable, be self-sufficient and operate according to business principles;
and
(c) perform all work
necessary for its effective management.
[9] P.30
[10] See also Mazibuko v Minister of Correctional Services 2006 JDR 0860 (T) and Du Plooy v Minister Of Correctional Services
And Another 2004 JDR 0521 (T)
[11] 2003 JDR
0871(C)
[12] Jali Commission
Chapter 11 p. 590
[13] Jali
Commission Chapter 11 p. 590-593
[14] Jali Commission Chapter 11 p. 593
[15] The following prisoners died
between 2004 and 2006 at Pollsmoor: Bayanda Nethi, Christopher Sibidla and
Trevor Petersen on or about 24 August
2004; Jonathan Davids, Vincent Carelse and Kevin Van Rooyen on or about 29
October 2004; Marilyn Syfers on 4 April 2006.
[16] Jali Commission
Ch 11 p. 583
[17] Article 4: 1. Each State Party shall ensure that all acts of torture are offences
under its criminal law. The same shall apply to an attempt to commit torture
and to an act by any person which constitutes complicity or participation in
torture.
2. Each State Party shall make
these offences punishable by appropriate penalties which take into account
their grave nature.
[18] Committee against Torture Consideration of
reports submitted by states parties under article 19 of the Convention -
Conclusions And Recommendations of the Committee Against Torture – South Africa
(Advanced Unedited Version) CAT/C/ZAF/CO/1, 37th Session, 6 – 24 November 2006,
23 November 2006, Geneva.
[19] Section 12(1)(d)-(e)
[20] See the House of Lords decision
in A (FC) and others (FC) v.Secretary of
State for the Home Department (2004); A
and others (FC) and others vs Secretary of State for the Home Department
[2005] UKHL 71 para 33. See also R v.
[21] Prosecutor v. Furundzija ICTY (Trial Chamber) Judgment of 10
December 1998 at para 153.
[22] Prosecutor v. Furundz Para 151.
[23] Prosecutor v. Furundz Para 154.
[24] Prosecutor v. Furundz Para 155.
[25] See Fernandez and Muntingh
(forthcoming) The Criminalisation of
Torture in South Africa, CSPRI Research Report.
[26] Filartiga v. Pena-Irala [1980] 630 F (2nd Series) 876 US
Court of Appeals 2nd Circuit 890.
[27] A (FC) and others v. Secretary of State for the Home Department
para 67.
[28]
[29] Ibid at
[30]
See Fernandez and Muntingh (forthcoming) The Criminalisation of Torture in South Africa, CSPRI Research
Report.
[31] C Ingelse The UN Committee against Torture – An
Assessment (2001) p. 271.
[32] Ingelse (note 7 above) 336.
[33] Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006.
[34] Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006.
[35] These impediments are known to
be the following:
[36] A UN Working Group on Pre-trial
Detention reported in 2005 that in
[37] Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006, p. 36.
[38] Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006, p. 34.
[39] Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006, p. 37.
[40] Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006, p. 37.
[41] Redress Trust (2004) Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006, p. 37-38.
[42] The European Committee for the
Prevention of Torture’s (ECPT) view is that even if there has been no formal
complaint but that ‘credible information’ has come to light regarding the-ill
treatment of people deprived of their liberty ‘such authorities should be
under legal obligation to undertake an investigation’ .(The ECPT Standards:
“Substantive sections of the ECPT’s General Reports”,(2004) Council of Europe.
75.)
[43] For an
overview of international statements, declarations, reports, and case law on
the elusive meaning of ‘prompt’, see Redress Trust (2004) Taking Complaints of Torture Seriously – Rights of Victims and
responsibilities of Authorities, The Redress Trust, London, http://www.redress.org/publications/PoliceComplaints.pdf
, Accessed 5 February 2006 pp. 15-17.
[44] Assenov and Others vs
[45] Halimi-Nedzibi v
Austria, complaint 8/1991, A/49/44, Annex V, p. 40, § 15, Reported in Ingelse
(note 7 above) 356.
[46] Redress Trust Taking
Complaints of Torture Seriously – Rights of Victims and responsibilities of
Authorities (2004) The Redress Trust,
[47] Finucane vs
[48] Assenov and Others v
[49] For a more detailed description see Long D and
Boeglin Naumovic N (2004) Optional Protocol to the Convention against Torture, Cruel, Inhuman and
Degrading Treatment or Punishment,
APT and Inter-American institute for Human Rights,