Comments on Correctional Services Amendment Bill, 2007,
introduced on 18 May 2007
Submitted by the Centre for the Study of Violence and
Reconciliation
Submitted 31 August 2007
The
Centre for the Study of Violence and Reconciliation would firstly like to
congratulate the Department of Correctional Services and the legislature for
taking steps to embody the new principles of the White Paper in the
legislation. We believe that it is very important that the legislation comply
with international principles and norms, as well as those of our own
Constitution, but more importantly perhaps, that they establish the basic
principles and values under which corrections must take place.
However,
we do have a concern that in widening its expectations of itself, the DCS is
setting itself a task that cannot be accomplished with its current resources.
It is common knowledge that the DCS is currently unable to fulfil its existing
obligations under the Act, yet it has in this legislation sought to expand
this. See for example S 37(1A) – General principles; S 41(4), which widens the
responsibility to not only providing care, correction and development, but also
“to include programmes aimed at addressing reconciliation of the inmates with
the community and healing relationships with victims.” While we support the
idea that the DCS should do this, we do not think that the DCS is currently in
a position where it can be legally bound to comply with this provision.
We
would like to make the following comments on the proposed amendments:
Terminology: One may dispute how important terminology is in an Act,
but it seemingly is an important issue as the legislature has chosen to change
the terminology used from ‘prisoner’ to ‘inmate’. However, it has also added in
the definition of “offender”. This is a particularly value and judgement-laden
term. The Concise Oxford English
Dictionary defines offend as “cause to feel hurt or resentful”, “be displeasing
to”, “commit and illegal act”, “break a commonly accepted rule”, and “offender”
then would be a person who has acted in such a manner. While these may all be
true of a convicted prisoner, these are particularly value-laden statements and
if the purpose of imprisonment is to break that pattern of offending, to regard
the prisoner as an individual with the possibility to make a change in their
life, and where the human dignity of the person is respected and valued, then
that label as offender is particularly stigmatising and works against that
general principle.
“Solitary
confinement” has been changed to “detention in a single cell”, but this has not
been changed in the definition section, leaving one uncertain as to what is
intended by the sanction of “detention in a single cell”. Solitary conferment
is defined in the current Act as being held in a single cell with loss of all
amenities.
Keeping children with their imprisoned mothers: (Section 20 (1) and (3))
We
are concerned about the reduction in time which mothers in prison may spend
with their young children. We acknowledge that international practice and
research shows that children should not be incarcerated with their mothers
beyond the age of two, as this is understood to be adverse to the children’s
best interests. We therefore support the DCS’s attempts to reduce the period of
life in correctional centres to which children may be exposed. In
However,
separation from an imprisoned mother may itself have adverse effects on a
child. We believe that it is highly desirable that children retain close
contact with their imprisoned parents. The lack of such contact has been found
to be damaging to children’s development and well-being. Behavioural effects
found in children who were separated from their mothers following their
mothers’ incarcerations included stealing and lying, aggression and regression
and poor school performance.[1]
It is essential that measures are implemented to improve the quality and amount
of contact that children are able to have with their incarcerated mothers.
Section 37
We
understand the sentiment of the DCS in including the items listed in Section
37(1A) of the amendment, however, we believe that these kinds of broad aims of
a management regime and conduct issues should not be contained in legislation.
The legislation is not only a guiding document to inmates and correctional
officials, but it is also a binding document to which the DCS can be legally
bound. Issues such as “good communication between correctional officials and
inmates is understood by everyone”; “team work”; and “delegated authority with
clear lines of responsibility” are management principles and practices rather
than legislative duties. In addition, should they become the subject of
litigation, it is extremely difficult to prove whether these have been adhered
to or not. Not only is their meaning unclear, but the interpretation of their
application is also likely to be contested.
Community corrections: Amendments to Section 52(1)
The
DCS should ensure that when making adjustments to the law in an attempt to enhance
the goal of reintegration and rehabilitation that it does not do so in a way
that actually disadvantages the released person. Section 52(1)(a) and (aA) talk
about house arrest. CSVR has found that these provisions when added as a parole
condition can work against a released prisoner’s attempt to seek employment or
reintegrate into the community. Parolees interviewed following their release
from prison expressed frustration about being put under house arrest and not
being able to find employment. The conditions are so onerous that some of these
people could not even leave their homes to come and participate in a
post-programme evaluation run by CSVR.
“The fear of violating their parole
conditions and being sent back to prison kept them at home and adhering to the
conditions. The parole conditions prevented them from looking for employment or
beginning to find a way of earning an income to support themselves and their
family. This had a negative impact on the participants as they spoke of high
levels of frustration, not being able to find a meaningful role in society,
finding it extremely difficult to cope with their reality (they felt caught
between two worlds: prison and reality), and being socially excluded from
friends and the community.”[2]
At
the same time, only 45% of the parolees we had interviewed had regular contact
with their parole officer, and one person had never seen his parole officer or
received any support from him.
Similarly,
the proposed S(52)(1)(b) may actually prevent people doing community service.
The proposed amendment requires that a person “does community service in order
to facilitate restoration of the relationship between the person concerned and
the community”. This may limit the opportunity to do community service to
instances ONLY where it serves to ‘restore relationships’. It is not clear what
the legislature has intended by this phrase, but there are other reasons for a
person doing community service, such as to learn new skills, to take on active
responsibilities in the community or elsewhere, or to restore relationships.
Again,
one of the parolees from the Integrated Youth Offender Programme felt that his
150 hours community service at the local police station helped to adapt himself
to working conditions and to build his confidence in relating to the community.[3]
It
is not clear why S 57 (5) is repealed. It requires “a person subject to community
corrections may not be under the influence of alcohol or other drug to the
extent that it impairs the process of supervision”. This seems like a sensible
clause to retain, particularly if some people who are subject to community corrections
will be undertaking work in the community, participating in treatment,
correction, development and care programmes.
Section 73: Release from prison
There
are a number of proposed amendments to the legislation which would affect the
release on parole of sentenced prisoners. As stated in S 73(1) a prisoner
remains in prison for the full duration of his/her sentence, and a prisoner
sentenced to life imprisonment remains in prison for the duration of his/her
life. This clearly means that prisoners have no RIGHT to be released
prematurely from prison. However, S 73(4) determines that a prisoner MAY be
released on parole or correctional supervision before the expiry of his/her
sentence. Whereas the Act currently
stipulates the period that a prisoner must serve before being considered for
parole, the proposed amendment leaves this decision to the “Minister in
consultation with the National Council and after taking into consideration the
sentence framework and the Department’s capacity to rehabilitate them”.
CSVR
has some concerns with this amendment. In the last few years, the parole
provisions and the period that a person must serve before being placed on
parole has changed several times leading, to a degree of uncertainly on the
part of Correctional Supervision and Parole Boards, and of prisoners
themselves. This uncertainly was brought about as a result of changes in the
legislation, as well as in the way that it has been implemented. This was the
case even though the period which a prisoner must serve before being considered
for parole/release was fixed in legislation or regulation.
Prior
to 1993 a prisoner could be released on parole or his sentence could be
remitted by a period prescribed by the Minster by regulation ((S 63) of Act 8
of 1959) after a report by the institutional committee. No minimum period was
stipulated in the Act, but in practice, almost all prisoners were given a
standard one third of remission of sentence.[4] A complicated release policy was adopted in
1993 (the Correctional Services Amendment Act, 1993) in terms of which
prisoners remained subject to supervision for the entire period of their
sentence, but they were considered for parole after serving at least half their
sentences (S65(4)0(a)). This consideration could be brought forward if they
were awarded
For
prisoners, the period they must serve before being considered for parole is an
issue of utmost concern. Even on the current legislation, there has been much
uncertainty and misapplication of the provisions leading to numerous
applications to court. The proposed amendment to the Act now purports to leave
the date of the parole determination at the discretion of the Minister. The
Bill also does not stipulate whether these periods should be published by
regulation. In fact, the current wording seems to imply that considerations
could be made on a case by case basis, which is clearly incorrect, as that
result would be inequitable.
It
is our contention that the time frame for parole consideration must be
published in legislation, and not be left to the discretion of the Minister, as
it is important that these periods remain constant over a period of time so as
to create a degree of certainty for prisoners, and they must be publicly open
to scrutiny.
We
do however believe that the periods before consideration for parole specified
by the current legislation are very long and should be reconsidered. In
particular, we would recommend that the current provision (S 73(6)(b)(iv)) be
reviewed that a person imprisoned in terms of section 51 or 52 of the Criminal
Law Amendment Act, 1997 may not be placed on parole unless he/she has served
four fifths of his/her imprisonment or 25 years, whichever is the shorter. This
legislation (amendments are currently being considered in relation to this
legislation) already imposed prescribed minimum sentences on individuals. The
imposition of further minimum periods of imprisonment, in our view amounts to
double jeopardy and this provision should be repealed. Recent research also
indicates that the minimum sentencing legislation and current parole periods
are contributing to the increasing length or prison sentences and will impact
on prison overcrowding in the future.[5]
Office of the Inspector General for Prisons
There are some drafting errors here.
The name of the institution is proposed to be changed, but the name of
Inspecting Judge is retained in some of the sections: for instance, the office
of the Inspector General is still to be under the “control of the Inspecting
Judge” (S85(1)) and S 85(2) where as the term “Inspecting Judge” has been
deleted in sections 86 and following. This is obviously to allow for the
appointment of someone other than a judge.
We are concerned that the provision
allowing for the appointment of assistants with specialist knowledge has been
repealed. While the previous incumbents have not made full use of this
facility, it is important to allow this feature to remain. This would allow for
independent input and advice on areas where the Inspector General or his
Secondly, we are also concerned
about the provision for
The controversial section 90(1)
regarding the powers and functions of the inspectorate is again up for
amendment, where it is proposed that the requirement to inspect and report on “dishonest
or corrupt practices” be repealed. The Jali Commission noted a concern that the
powers of the Inspectorate were limited to ‘reporting’ on such practices and it
could not undertake investigations on its own accord. Instead of responding to
this concern, the legislature has proposed scrapping this provision altogether.
The Commission also noted the shortcoming that the Inspectorate is limited to
reporting, but indicated that an oversight body would have much greater
legitimacy if it also had decision-making powers, or the power to follow up on
how investigations were followed through.[7]
While the DCS may argue that the
Internal Compliance monitoring, as set out in Chapter XI, is proposed to be
amended to respond to the need to investigate and suggest measures to deals
with theft, fraud, corruption and any other dishonest practices or irregularities
(S95), as well as S 101. However, this is (despite the deletion of the word
‘internal’) still clearly an internal process within the Department of Correctional
Services, and does not address the real concern and recommendations of the Jali
commission to established external oversight and investigation of corruption.
Reports to the Commissioner
We support the new additions under
section 95C that the National Commissioner report on compliance monitoring;
investigations contemplated in S 95A; and disciplinary proceedings contemplated
in Section 95B. This will enhance the external oversight and monitoring of
internal discipline.
Sexual Violence
The
Amendment Bill does not deal with the issue of sexual violence and coercion in
prison. Similarly there is no mention in the Act. This silence on the issue in
key defining legislation contributes to the invisibility of the issue amongst
prison communities and broader society, which in turn has numerous damaging
consequences. These include (but are not reducible to) the transmission of
HIV/AIDs, further violence in and outside prison and the entrenching of
dangerous gendered identities which are behind much of the sexual and other
violence we see in our society.
There
are different levels at which the reality of prison rape and sexual abuse is
denied (including in inmate culture, DCS policy and public discourse).[8]
We strongly believe that in order for meaningful steps to be taken in
addressing this situation, the problem needs to be identified specifically in
legislation. This would provide an appropriate framework and impetus for the
issues to be taken on board and given the urgent attention they require. (It is
noteworthy that while other offences that commonly dog prisons are listed as
offences in the Act, sexual violence and exploitation are absent. Moreover the
latter are regularly implicated and interwoven with other central challenges
facing DCS such as corruption, smuggling, recidivism etc.).
The
current and undesirable reality is that sexual violence and exploitation in
prison is an uncomfortable truth which is more often than not ignored. Staff do
not possess skills to deal with the
issues, and are not supported by systems or procedures to do so.[9] Compounding the situation, as well as being a
result of this, there is much confusion about what is and what is not allowed,[10]
and many
Correctional
legislation needs to provide the framework for inter alia, disciplinary
offences, effective complaint channels relating to sexual violence, access for
victims to the criminal justice system and health care, victims safety,
procedures to appropriately deal with perpetrators, skills development for
correctional
Different
components of the problem need to be thoroughly understood and worked through
for the development of realistic and appropriate strategies to prevent and
respond to sexual violence in prison as well as risky sex practices. Various
non-governmental organisations have done and continue to do substantial work in
the area as well as on the related issue of sexual health in prison. They have
built up experience and learnings which would go along way in assisting with
the development of appropriate strategy and policy.
Much
could also be gained from gleaning the lessons from the
Centre
for the Study of Violence and Reconciliation
[1] Kailash Bhana and Tessa Hochfeld (2001). “Now we have nothing”: Exploring the impact of maternal imprisonment on
children whose mothers killed an abusive husband. Centre for the Study of
Violence and Reconciliation. P. 23.
[2] Roper, M. (2007).
“External Evaluation of the three year Integrated Youth Offender Programme at
Boksburg Correctional Centre in
[3] Ibid.
[4] Dirk van zyl Smit
(2004) “Swimming against the tide: Controlling the size of the prison
population in the New South Africa”, in Bill Dixon and Elrena van der Spuy
(eds) Justice Gained? Crime and Crime
Control in South Africa’s Transition, pp 227 – 258.
[5] See for instance the
work of
[6] The Commission of Inquiry into Allegations of Corruption, Maladministration and Violence in the Department of Correctional Services”, otherwise known as the Jali Commission, 2006.
[7] Jali Commission Final report, p. 38.
[8] Gear,
S. (2005) Rules of engagement: Structuring sex and damage in men’s prisons and
beyond. Culture, Health & Sexuality; 7(3) 195-208.
Gear,
S. (2006) Behind the bars of masculinity: Male rape and homophobia in and about
South African men’s prisons. Sexualities 10(2) 209-227.
[9] Jali Commission Report. 2006 Report of the
“Commission of inquiry into alleged incidents of corruption, maladministration,
violence or intimidation in the Department of Correctional Services”
[10] See Fourie, N. (2005) ‘Opinion for CSVR
on the Regulation of Sexual Activity in Prisons.’ (unpublished)