The Correctional Services Amendment
Bill
[B32 – 2007]
SAHRC Submission to the
Correctional Services Portfolio Committee, National Assembly, 4 September 2007
Introduction
The
Department of Correctional Services (DCS) plays a critical role in the fight
against crime and violence in
The
Correctional Services Amendment Bill [B32 – 2007] (Amendment Bill) seeks to
introduce a number of changes to the current framework piece of legislation.
the Correctional Services Act 111/1998 (the Act). A number of these changes
have the potential to impact on constitutionally enshrined rights. The South
African Human Rights Commission (the Commission) thus welcomes the invitation
extended to it to comment on the Amendment Bill. The Commissions submission
will focus on: the changes to the office of the Judicial Inspectorate (JI); the
separation age of children from incarcerated mothers; and, the definition of
disability.
The
Commission notes that many civil society organizations have taken advantage of the
opportunity provided to participate in the submission writing and public
hearing process. It is encouraging that there is a vibrant civil society sector
that voices the human rights concerns of prisoners, a vulnerable and
marginalised group. The commission will also comment briefly on some of the
aspects that these organizations have raised.
The
mandate of the South African Human Rights Commission
The mandate of the Commission is
captured in section 184 of the Constitution and states as follows:
“The South African Human
Rights Commission
Functions of the South African Human
Rights Commission
184. (1) The
South African Human Rights Commission must-
(a) promote respect for human rights and a
culture of human rights;
(b)
promote the
protection, development and
attainment
of human rights; and
(c)
monitor and
assess the observance of human
rights in
the Republic. ‘
1. The
Amendment Bill adversely affects the independence of the Judicial Inspectorate
1.1. Clause
73 of the Amendment Bill amends section 89 of the Act by:
- The creation of the position of a Chief Executive
Office (CEO) within the JI. This persons shall perform all financial, administrative and clerical
functions pertaining to the Office. (section 89(1)(a)) Further more the
CEO will be seconded form the DCS
- Stipulating that all staff will be seconded from
the DCS (section 89(1)(b)
- Stipulating that conditions of services,
including salaries and allowances will be regulated by the Public Service
Act (section 89(2)).
1.2. In
terms of section 85(1) of the Act, the JI of prisons is an independent office
under the control of the Inspecting Judge.
1.3.
Comments
1.3.1. Ensuring
the independence of the JI
Whilst the Commission is
not in principle opposed to the creation of an office of the CEO, the
Inspecting Judge must have the legal power to appoint this person. It is not
acceptable that the CEO is seconded form the Department of Correctional
Services by the Director-General thereof.
The inability of the Inspecting
Judge to appoint his or her CEO would fly in the face of the Judicial
Inspectorate being an independent body. It would negatively affect the
reputation and credibility of the JI.
A parliamentary ad hoc
committee under the chairmanship of Prof. K Asmal has recently carefully
studied and reviewed the chapter 9 and related institutions. Whilst the JI is
not a constitutionally mandated body, many of the Reports’ comments are of
relevance to the proposed amendments.
Chapter
1 of the Report identifies guiding principles from which the Committee worked.
The principles include:
- Whether the institution is
part of government
- Whether organs of state must
assist and respect the institution
- The degree of financial
independence of the institution
- The degree of administrative
independence of the institution
- The independence of the
office bearers and the appointment and removal procedures[1]
In respect of determining whether an
institution is independent, the Report states:
“The Constitutional Court set out a general test that
could be used to judge the independence of an institution in its judgement in
Van Rooyen and Others v S and Others. According to the
The Report states further
on:
“Thus some
basic principle can be identified to establish the minimum requirement for
independence. As indicated earlier, there is a constitutional imperative for
these institutions to be seen not to be part of government. Thus any
involvement by the Executive in the daily operations or institutional
arrangements of an independent institution would be constitutionally
unacceptable.”[3]
1.3.2. South Africa
On 26
September 2006,
Prisoners
account for the vast majority of persons deprived of their liberty. Whilst it
is yet to be decided, the Judicial Inspectorate is well positioned to fulfill
The proposed amendments will move
the Judicial Inspectorate further away from possible compliance with the OPCAT.
There is a need for
1.4.
The Commission does not have any
objections to the amendment that allows for a legal practitioner of not less
that 10 years experience in legal practive t be appointed as the Inspector-General.[8]
2. The separation of children from their
mothers must be done in accordance with the constitutional ‘best interest of
the child principle’
2.1. Clause
20 of the Amendment Bill amends section 20 of the Act by reducing the age a
prisoner mother may have her child with her[9].
Whereas previously a child could remain with her or his mother until the age of
five years, the Amendment Bill now reduces this to two years of age.
2.2. In
August 2006, the South African Human Rights Commission made a presentation to
the Correctional Services Portfolio Committee on “the Impact of Imprisonment on
Women and Children; Are We Acting in Children’s Best Interests” (attached Annex
“A”). Some of the Commissions’ suggestions included:
- Conducting more research and collecting
information in order to understand the impact of incarceration on children
- Encouraged greater use of non-custodial
sentences. In this regard the Commission said that it is not in the best
interest of the child to serve a prison sentence with his/her mother and
such circumstance should be taken into consideration when the Court seeks
to hand down its sentence.
- Educating and sensitizing parole boards about the
impact of imprisonment on children.
2.3.
Determining whether a child should remain with his or
her mother in prison is a difficult matter. It is difficult in that the rights
of the child must be respected and protected. There is the potential and in
most cases it is inevitable that both options, in prison and out of prison,
will have some detrimental impact on the child. A determination needs to be
made as to what is in the child’s best interests. It is possible to make clear
and convincing arguments for and against children remaining with their mothers
in prison. Whether a child enters prison and the age when the child is removed
from her or his mother is a matter that must be determine on a case-by-case
basis. Each child is bestowed with rights in terms of the constitution and
these rights can only be best determined on an individual basis.
2.4.
The Amendment Bill should state that whenever a mother
is sentenced to imprisonment, the care of the children should be referred to
the Department of Social Development in terms of the Children’s’ Act.[10]
2.5.
There is an
urgent need for the regulations referred to in section 20(1) to be drafted as
soon as possible.
3. The
definition of disability is outdated and not in keeping with international
human rights developments[11]
3.1.
Disability is defined in section 1 of the Act as follows:
“disability” means a physical or mental
condition which prevents a prisoner from operating in an environment developed
for persons without such an impairment, and includes-
(a)
deafness;
(b)
dumbness;
(c)
paraplegia;
(d)
quadriplegia;
(e)
non-certifiable mental conditions;
(f)
blindness or extreme impairment of
vision.
Since this definition was
inserted into the Correctional Services Act[12]
there have been considerable developments at an international level pertaining
to our approach towards and defining persons with disability. In December 2006,
the United Nations adopted the Convention on the Rights of Persons with
Disability (Disability Convention).
Article
1 of the Disability Convention states that:
“Persons with
disabilities include those who have long-term physical, mental, intellectual or
sensory impairments which in interaction with various barriers may hinder their
full and effective participation in society on an equal basis with others.”
The
definitions section contained the following definition”
“Discrimination on the basis of
disability “means any distinction, exclusion
or restriction on the basis of disability which has the purpose or
effect of impairing or nullifying the recognition, enjoyment or exercise on an
equal basis with others, of all human rights and fundamental freedoms in the
political economic social cultural civil or any other field.”[13]
The Disability Convention
signifies a shift in approach towards disability from the medical model to the
social model.
3.2. Comments on the current definition
3.2.1.
The definition ought to focus on the person and not the
disability. The language of the
definition needs to reflect disability sensitive language. A more sensitive
manner to refer to such persons is to use the term ‘person/prisoner/inmate with mental disability’. Language is important in countering social
stigma. It is important from a human rights perspective that the person is
first recognised and then the disability.
3.2.2.
Dumbness is a term that is not used in disability sensitive
environments. The term is regarded as outdated, derogatory and demeaning. It
infringes the dignity of the person who is called by this name. More
appropriate terms would be hearing and speech impaired.
3.2.3.
The term ‘mental
condition’ does not reflect that persons with mental disability cover a vast
spectrum. The definition needs to give recognition to this. The definition
should include the broad spectrum of groups of person who are persons with
mental disabilities. These groups include:
- Intellectual and/or cognitive impairments (Down Syndrome,
foetal alcohol, older persons who suffer from diminished mental capacity,
Alzheimer’s disease, and AIDS related dementia)
- Psychiatric (anxiety (post traumatic
stress disorder)and depressive disorders (depression, bipolar mood
disorders and schizophrenia)
- Neurological (epilepsy, autism, strokes and
other brain conditions)
These categories
are recognized within internationally recognised diagnostic tools such as the
DSM IV and the ICD9. Mental health care practitioners use these diagnostic
tools and they would thus find the definition compatible with their
understandings of mental disability.
3.3. Suggested definition
“prisoner/inmate with disability” means
a prisoner/inmate with a physical or mental illness or condition which prevents
such person from operating in an environment developed for persons without such
an impairment, and includes-
(g)
Hearing and speech impediments;
(h)
paraplegia;
(i)
quadriplegia;
(j)
persons with a positive diagnosis
of a non-certifiable mental health related illness in terms of accepted diagnostic criteria made by a mental health care
practitioner authorised to make such diagnosis, and includes intellectual
and/or cognitive, neurological, and psychiatric disabilities, conditions and
illnesses.
(k)
blindness or extreme impairment of
vision.
4.
Additional comments
4.1.
The Amendment Bill
introduces a number of terminology changes, such as ‘correctional
center’ for ‘prison’; ‘inmate, offender and unsentenced offender’ for
‘prisoner’[14]. The
Commission notes that opposition to these changes have been voiced. In the
Commissions’ view, it is of greater concern the manner in which prisoners are
treated than the terminology which is used to refer to them. There is merit in
the argument that many international instruments and the Constitution refers to
prisoners and that it could cause confusion to move away from this term.
4.2.
The Commission welcomes the amendment that provides for:
“community organisations and religious denominations or organisations to
interact with inmates in order to facilitate the rehabilitation and integration
of the inmates in the community”[15].
4.3.
The change in terminology from ‘solitary confinement’ to
‘detention in single cell’ is of concern.[16]
Solitary confinement is a penalty whereas detention in a single cell may well
be considered a privilege by some prisoners. There is thus a need to guard
against blurring these two distinct types of incarceration.
4.4.
The Commission does not support the amendment that increases
the category of prisoners excluded from benefiting from a correctional
sentencing plan from 12 to 24 months.[17]
This amendment would be contrary to the vision and intentions of the Departments
White Paper.
4.5.
The amendment to section 31 whereby prisoners may no longer
be brought before a court in handcuffs or leg irons unless authorised by the
court is welcomed.[18]
Annex “A”
The impact of imprisonment on women
and children.
Are we acting in children’s’ best
interests?
SAHRC Briefing to Correctional Services Portfolio
Committee, 25 August 2006
1. Introduction
The SAHRC welcomes the invitation
extended to it by the Correctional Services Portfolio Committee to address it
concerning the impact of imprisonment on women and children in prison and to
discuss possible solutions and recommendations. Women prisoners currently
constitute 2,25% and children 1,4% of the total prison population in
2. Women
and children in prison
According to March 2006 statistics
there are 3 551 women prisoners and 2 207 children in prison. Based on the overall
number of prisoners in
When we refer to women and children
in prison we refer to the following three categories of persons:
- Children in prison
- Women and Children (Infants) in prison
- Women in prison
Regarding children in prison, this
presentation will address a matter of concern to the commission, namely
education of children in prison. We will also make recommendations at the end
of the presentation.
It is however necessary to mention that in
relation to children in prison more generally the Child Justice Bill needs to
be processed in order to more effectively ensure that we have fewer children in
prison and that there is an adequate legislative framework that will address
appropriate measures concerning children in conflict with the law and adequate
alternatives to incarceration.
4. International
Constitutional, legislative and policy framework
4.1. International
There is a broad and comprehensive
body of international instruments that address human rights and imprisonment.
Some of the more relevant international instruments include:
- International Convention on Civil and Political Rights
- International Convention on Economic, Social and
Cultural rights
- International Convention on the Elimination of All
Forms of Racial Discrimination
- Convention on the Elimination of All Forms of
Discrimination against Women
- Convention on the Rights of the Child
- The UN Standard Minimum Rules for the Treatment of
Prisoners, 1955
- Convention on the Rights of the Child
- The United Nations Standard Minimum Rules For
Non-Custodial Measures (The
- Basic Principles For The Treatment Of Offenders.
- The United Nations Guidelines For The Prevention Of
Juvenile Delinquency (The
- The United Nations Rules For The Protection Of
Juveniles Deprived Of Their
- African Charter on the Rights and Welfare of the Child (Article
30)
It should be pointed out that
international instruments such as the UN Standard Minimum Rules are now quite
dated and that there have been vast advances in understanding gender issues
related to the imprisonment of women. Also, because women constitute a small
minority of prisoners throughout the world generic instruments tend not to take
into considerations gendered issues concerning women in prison.
4.2. The
constitution
Any discussion concerning
prisoners must bear the following rights contained in our constitution[iii]
in mind:
- Equality (Section 9)
- Human dignity (Section 10)
- Children’s
rights (Section 28[iv]),
the right to family care or parental, or to appropriate alternative care
when removed from the family environment etc….
- Arrested, detained and accused persons (Section 35)
The constitution also
guarantees the right to basic education (Section 29)[v].
4.3. Legislation
- Correctional Services Act 111/98
In the Preamble to the
Act international principles on correctional matters are recognized. This would
include the United Nations Standard Minimum Rules for the Treatment of
Prisoners.
Chapter 3 (Custody of all
prisoners under conditions of human dignity) makes specific reference to
children (Section 19) and mothers of young children (section 20).
Chapter 4 (Sentenced
prisoners) refers specifically to women in section 41 concerning treatment,
development and support services. In particular section 41(7) states that:”
Programmes must be responsive to he special needs of women and they must ensure
that women are not disadvantaged.” Section 13 (Contact with community)(section
13(6)(c )) imposes a duty on the Commissioner to notify the appropriate state
authorities who have a statutory responsibility for the education and welfare
of children.
Chapter VI (Community
Corrections) has a section setting out Additional conditions for children
(section 69).
4.4. Policy
§
Correctional Services, White Paper, March 2005
- Strategic Plan and Budget of the Department
The Departments White Paper refers
to international human rights standards that seek to promote the rights of
prisoners:
“13.12.2
In the light of this, it is of immense importance that the Department should
include the following UN standards and norms, instruments and resolutions as
part of its foreign policy for implementation within the Department:
- The United Nations Standard Minimum Rules For The
Treatment Of Offenders.
- The United Nations Standard Minimum Rules For
Non-Custodial Measures (The
- Basic Principles For The Treatment Of Offenders.
- The United Nations Guidelines For The Prevention Of
Juvenile Delinquency (The
- The United Nations Rules For The Protection Of
Juveniles Deprived Of Their
5. Children
in prison with their mothers
Prisons are not ideal environments
in which to bring up young children. However, there is a double-edged sword in
that it is also far from ideal to ever separate a child from her mother. “There
are no simple solutions but the complexity of the situation cannot be an excuse
for failing to protect the rights of children who have a parent in prison”[vii]
5.1. Current
situation
Section 20 of the Correctional
Services Act provides that female prisoners may be permitted to have her child
with her until the child reaches the age of five years and that during the time
that the child is in prison that the Department is responsible for food,
clothing, health care and facilities for the sound development of the child. In
the White Paper the Department sets out that ideally “Mother and Child Units”
should be established n correctional centers with the focus on the
“normalization of the environment” and that the interest of the child “should
be put at the forefront in any policy development regarding babies of
offenders.”[viii]
In reality, children only stay with their mothers in prison until they reach
two years of age. In 1995, there were 192 infants and toddlers in prison with
their mothers.[ix]
5.2. International
developments
Increasingly at an international
level and in particular through the UN mechanisms, such as the committee which
monitors the Convention on the Rights of the Child, more and more questions are
being asked about the rights of children who are in prison with their mothers.
Issues that have been identified as
needing more attention include:
- “how the child’s rights are considered in sentencing a
mother;
- how decisions are taken about whether babies and young
children accompany their mother into prison (or pre trial detention);
- the impact of imprisonment on the child;
- the facilities to be provided;
- how any later separation of the child from the mother
should be handled; and
- alternatives to, and different forms of, imprisonment
that better support motherhood and child development.”[x]
6. Children
whose mothers are in prison
In all countries around the world
the majority of women prisoners are mothers. In
6.1. The
impact of the mothers’ imprisonment on
children
From a child rights perspective, a
major concern is the impact of imprisonment upon the child and how this impacts
on the rights of the child. Increasingly, more and more attention is starting
to be focused on these children and in particular how the imprisonment of their
mothers impacts upon them. What is clear however, is that research indicates
that “the loss of a mother is much more
significant and may be more immediately traumatic than the loss of a
father."[xiv]
The mother’s imprisonment affects
the child in many ways including:
- Change in caregiver.
Children possibly experience an unexpected
change in caregiver, neighborhood as well as possible separation from
siblings. Many of these children come from disrupted family backgrounds
where and there are absent fathers.[xv]
- Emotional and Behavioral
impact. The children are affected emotionally and
behaviorally.[xvi] Emotions and
behaviors experienced by these children included: sadness, withdrawal, low
self-esteem, excessive crying, depression, diminished school performance,
truancy, disciplinary problems, alcohol and other drug use, running away,
and aggressive behaviour.[xvii]
- The impact of imprisonment on
children differs according to the child’s age and maturity.
- Research indicates that two-
to six-year-old children are the most impacted by separation from their
mothers.
- The development of autonomy
and initiative in children aged two to six may be compromised by the
trauma of witnessing parental arrest and the loss of a parent due to
incarceration.
- Children aged six to
twelve…may justify her [their mother’s] behaviour and believe instead
that the “system” chose to pick on her. Left unaddressed, these attitudes
can eventually result in anti-social rationales for their own criminal
behaviour.
- Children aged six to twelve
may experience aggression, difficulty concentrating, multiple absences
and even school avoidance.[xviii]
- Additional
responsibilities. Children are forced to take
on adult responsibilities.[xix]
- Social stigma. There is great social stigma attached to having a parent in prison. Children often make
up cover stories to explain their mother’s absence and this hampers the
development of friendships.
- Become children in
conflict with the law. There are also long term
implications for children whose mothers are imprisoned. For example,
children of incarcerated mothers are more likely to engage in lawbreaking
and to be arrested than other children.[xx]
The
enormous impact on children whose mothers are in prison are further exacerbated
by challenges that are faced in maintaining a relationship with the mother.
- Visiting the mother in prison
is often difficult and unpleasant: There are not as many prisons for women
as there are men and this can lead to increased travel costs. For other
children, these costs may even be prohibitive.[xxi]
- Visiting time is short and
the environment is often child-unfriendly, hampering meaningful contact.
There are no activities or basic play areas for mothers to spend quality
fun-time with their children.[xxii]
- Parent-child visitation for
children living separate from their mothers is important to children's
emotional adjustment, well-being, and reduced behaviour problems[xxiii]
6.2. Children of women who kill their partner
Because of high levels of domestic
violence in
"By imprisoning [the
mothers], we punish not only the killer, but the innocent children who lose
both parents suddenly, traumatically, and simultaneously. The children's fate
is dire."[xxiv]
Children are impacted upon
emotionally (ambivalence, relief, fear,
confusion, and deep anger that occur when one parent has been killed by
another in the context of domestic violence). In addition, many are never able
to fully come to terms with the ambivalent feelings they have for both their
abusive fathers and their mothers who killed them.
The children are affected by the
conflict that the murder has caused in their immediate nuclear and extended
family. Conflict between kin is common
and affects the care children receive. The carer's own response to the violent
death of the father is going to influence the way they respond to the
children. Often, the children feel that
they do not belong with their new care giver and do not feel completely
accepted into their new home. Paternal relatives sometimes try to alienate the
children from their mothers and children are often directly or indirectly
blamed them for their father’s death.[xxv]
Finally, living with the stigma of
having their mother labelled as a murderer means these children's social and
community supports are often minimal.[xxvi]
The research indicates clearly that
these children need to be dealt with within a caring environment that caters
for their specific social, emotional and developmental needs. This needs to
take place within a rights based framework that gives effect to these
children’s rights.
6.3. Recent
international developments
At an international level the UN
Committee on the Rights of the Child has proposed that ‘Guidelines for Children
Deprived of Parental Care’ should be developed[xxvii].
The draft Guidelines are currently in the process of being finalized and are
entitled “UN Guidelines for the
protection and alternative care of children without parental care”.[xxviii]
The latest May 2006, draft states
Clause 46 of the draft states:
“When the child’s sole or
main carer may be the subject of deprivation of liberty as a result of remand
or sentencing decisions, the best interests of the child should be a primary
consideration. Non-custodial sentences and remand measures should be
used wherever possible. States should take into account the best interests
of the child when deciding whether to remove children born in prison and
children living in prison with a parent. The removal of such children should be
treated in the same way as other instances where such separation is considered.
For younger children, especially those under the age of three years, such
removal should in principle not take place against the will of the parent. Best
efforts should be made to ensure that a child remaining in custody with his/her
parent benefits from adequate care and protection.”
7. Education
for children in prison
7.1. The right to basic education
Section 29 of the constitution
guarantees the right to basic education. The South African constitution
specifically excludes this socio economic right from progressive realization.
It is therefore an immediate right that all citizens are entitled to. Within
this context it is difficult to understand or justify that children who are
awaiting trial and who are sentenced to less than 12 months are imprisonment do
not receive education.
In terms of section 3 of the South
African Schools Act it is compulsory for learners in Grade R through to Grade 9
or from age seven (7) through to fifteen (15), whichever happens first to
attend school and receive education. Whilst primary education is the most
important component of basic education it is not synonymous. The right to basic
education includes fundamental education which would include education for
children who are older than 15 years and whose fundamental education needs have
not been met.
Unless specifically provided for in
the sentence that is handed down, rights enshrined in the constitution should
generally not be limited by incarceration. This is a well established and
recognized principle when dealing with prisoners rights.
Where it is not possible for the parent or
caregiver to ensure their childs’ attendance at a school, then it is arguable
that the responsibility to ensure compulsory attendance is placed on the State
who is incarcerating the child. It is due to the States actions of placing the
child in prison that education no longer becomes accessible. Thus the right to
basic education is being violated.
7.2. Our
courts approach
The following comment from the August
constitutional court case (prisoners right to vote case, 1999) gives an
indication of the courts approach towards rights of prisoners being respected
and the ability of the Department to ensure that prisoners can exercise their
rights:
“There are a variety of
ways in which enfranchisement of prisoners could be achieved in practice.
Polling stations could be set up in prisons or special votes could be provided
to prisoners. Prisoners are literally a captive population, living in a
disciplined and closely monitored environment, regularly being counted and
recounted. The Commission should have little difficulty in ensuring that those
who are eligible to vote are registered and given the opportunity to vote, and
that the objective of achieving an easily managed poll on election day is
accomplished.” [xxix]
The court was of the view that
prisons are places where there is a population which is relatively easy to
control and to make arrangements for. They are not fraught with the
difficulties and complexities that are encountered with making practical
arrangements within the community.
Similarities in approach can also be
seen in the recent decision emanating from the Westville prison cases in which
the court has emphasized that there is a duty on prison authorities to make
access to health care available for prisoners.
8. Solutions
and Recommendations
8.1. More
information and research is needed
Another possible recommendation is
that a gender critique of current legislation and policies is undertaken. The
European Prison Rules for example have been subjected to a gender critique[xxx].
This would assist implementers in understanding and recognizing the gender
implications of imprisonment on women.
8.2. Greater
use of non custodial sentences
8.2.1. Women
who are mothers
The greater use of non-custodial
sentences needs to be emphasized. It is recognized by the Department in their
White Paper, that many women in prison are sentenced to short-term sentences
and that there is thus a “greater potential for successful rehabilitation
through alternative sentences.”[xxxi] Short-term sentences indicate that the crimes
that have been committed are not of a severe nature and it thus begs the
questions whether there are not more appropriate non-custodial sentences that
ought to be used.
Whilst it is recognized that the DCS
does not play a role in determining sentences, it is important that the
Department actively engages with the Justice Department (Justice College) and
in particular the prosecuting authorities and magistrates to encourage greater
awareness on the impact of imprisonment on mothers. The judiciary also needs to
be brought on board and greater awareness created.
The ‘best interests of the child’
principle enshrined in our constitution needs to play a larger role during
sentencing in ensuring that sentences handed down to women who are mothers do
not violate this principle. Where the ‘best interests of the child’ is not
considered adequately by the court, the child effectively becomes punished for
her or his mothers crime.
There is ample international support
for this approach and it would be in line with
“Where the defendant has
child caring responsibilities, the Committee recommends that the principle of
the best interests of the child (article 3) is carefully and independently
considered by competent professionals and taken in to account in all decisions
related to detention, including pre-trial detention and sentencing, and
decisions concerning the placement of the child.”[xxxii]
There is even recognized support by
our constitutional court that mothers can be considered differently to others
who are sentenced and that this can be fair discrimination. In Hugo v the
President of the Republic of South Africa and Another, the constitutional
court case in which unfair discrimination was alleged against the President by
a male prisoner after the President exercised his constitutional prerogative
and released women with children below 11 years as part of an amnesty
programme, the court stated:
“Not all discrimination
was unfair and the president was substantially influenced by the concern of
family life and nurturing and care which mothers normally provide for their
children.”[xxxiii]
8.2.2. Where
there are no alternatives to direct imprisonment of mothers
There ought to be a clear obligation
in law that government agencies take responsibility in ensuring that there is
adequate protection and care for children whose mothers are sentenced to
imprisonment.
A possible suggestion would be to
consider amending the Correctional Services Act by adding an additional section
similar to section 13(6)( c)(i) that would place a duty on correctional
officials to notify education and welfare state authorities that a child’s’
mother is in prison. This in turn ought to set in motion a process whereby the
State would ensure that the child is being adequately cared for and is
attending school. This could also lay a basis for more cooperation between
relevant government departments in setting up programmes that would support the
relationship between mothers in prison and tier children. Programmes are also
needed to educate mothers in prison on how to communicate with their children
and explain their imprisonment in a manner that seeks to reduce the negative
impacts on children.
8.3. Education
in prison
The SAHRC recommends that the
Department of Correctional Services in conjunction with the Department of
Education urgently ensures that adequate arrangements are made to ensure that
all children in prison regardless of the length of their term of imprisonment
and also awaiting trial children receive education.
8.4. Focal
point for women and children in DCS
The DCS does recognize and address
vulnerable groups within the prison system. However, there needs to be greater
emphasis on vulnerable groups.
The Department needs to address
issues related to
- creating child friendly visiting areas in prisons,
- ensuring that as many prisons as possible can
accommodate women in order that women prisoners will be closer to their
children who live outside the prison and
- ensure that child friendly environments are created
within the prison and that children remain with their parents until the
age of five years.
8.5. Current
review of women prisoners
Parole boards
should be educated specifically upon the impact on children who have mothers in
prison or who are with their mothers in prison. This would create greater
awareness and more informed decisions when it comes to considering parole for
this category of prisoners. The Parole Boards could be innovative in converting
sentences to correctional services.
The Department should consider fast
tracking the parole of mothers in prison.
9. Conclusions
The
impact of imprisonment on children is an area, which is receiving growing
international attention. The government in its legislation and policy documents
has made a firm commitment to following and implementing international norms
and standards that seek to protect the rights of prisoners. There is clearly an
acknowledged need to begin considering and implementing the ‘best interests’ of
the child’ principle within this area. This principle and the rights of the
children affected by their mothers who are in prison are enshrined in our
constitution and it is clearly an area that needs more focus and attention.