Report of the Portfolio Committee on Correctional Services on the Judicial Inspectorate for Correctional Services 2009/10 Annual Report, dated 26 January 2011
The Portfolio Committee on Correctional Services, having considered the 2009/10 Annual Report of the Judicial Inspectorate for Correctional Services, reports as follows:
1.1 In its consideration of the 2009/10 Annual Report of the Judicial Inspectorate for Correctional Services (JICS), the Portfolio Committee on Correctional Services received a briefing by the JICS on the report (17 November 2010). The Committee usually requests public comment on annual reports, but, owing to the late tabling of said report, it could not do so in this instance.
1.2 The JICS officials who appeared before the Committee included: Judge DH van Zyl (Inspecting Judge); Mr G Morris (JICS: Director); Mr M Prusent (JICS: Western Cape Regional Manager); Mr A Carelse (JICS: Gauteng Regional Manager); Mr U Raga (JICS: Acting National Manager Legal Services). Ms B Nene and Ms P Kekana (JICS: independent Correctional Centre Visitors)
1.3 This report comprises an overview of key aspects related to the JICS’ operation and conditions of incarceration and the treatment of inmates contained in the Annual Report, as well as the Committee’s observations and recommendations.
2. KEY OBSERVATIONS EMANATING FROM THE JUDICIAL INSPECTORATE FOR CORRECTIONAL SERVICES’ 2009/10 ANNUAL REPORT
2.1.1 The JICS is an independent office, established in terms of the Correctional Services Act (CSA) and headed by the Inspecting Judge. Section 85 (2) of the Act states that the JICS is to facilitate inspections of correctional centres in order for the Inspecting Judge to report on the treatment of inmates, and on conditions of incarceration. The JICS’ vision is “to ensure that all inmates are detained under humane conditions, treated with human dignity and prepared for a dignified reintegration into the community”.
2.1.2 At the end of March 2010 the JICS had a staff complement of 50, and 220 independent correctional centre visitors (ICCVs), who are independent contractors. The Correctional Services Amendment Act 25 (2008) provided for a number of amendments to the JICS’ staffing and structure, including the appointment of a chief executive officer (CEO) to be appointed by the National Commissioner for Correctional Services (National Commissioner). At the time of reporting that post had however still not been created and funded on the JICS’ fixed staff establishment and hence a CEO is yet to be appointed.
2.1.3 Section 91 of the CSA provides that the DCS is responsible for the JICS’ expenses. The JICS’ expenditure amounted to R19 111 730, 08, approximately R4 million more than in the previous financial year, and about 0,16% of the DCS’ total budget. As in the previous year most of the JICS’ budget went towards the compensation of employees. As the JICS is not a department, a constitutional institution, or a public entity as defined by the Public Finance Management Act (PFMA), its expenditure is audited as part of DCS’. The JICS suggested it be audited as a separate entity, as the combined auditing may distort the true state of financial management within it.
2.1.5 The JICS lamented its limited mandate, as well as its lack of power to monitor the implementation of recommendations emanating from its inspections. The DCS rarely acknowledges reports received, and even more seldom responds to or implements recommendations. This was starkly illustrated by the fact that, despite its request for such a meeting, the JICS had, weeks after the tabling of its Annual Report, not yet had opportunity to discuss their performance over the past financial year with the Minister or the National Commissioner. At present, the Inspecting Judge can investigate matters referred to it, and conditions of incarceration, but cannot issue the judicial orders that may result in matters being dealt with the necessary urgency. The DCS presented its measures for improving the relationship, but concerns about the apparently strained relationship between the JICS, and the DCS and its Executive remain.
2.2 Conditions of incarceration and the treatment of inmates
the level of incarceration has dropped to 139%, considerably lower than the
170% recorded at the end of the 2002/03 financial year,
2.2.2 The JICS reports that, although the ATD population has decreased from almost 64 000 in April
2000 to 49 030 by May 2010, unsentenced offenders still constituted more than 30% of the inmate population, and 52% of the population at those centres that are critically overcrowded. ATDs, although not yet convicted, are subjected to the same inhumane conditions sentenced offenders are subjected to, and this presents an ethical dilemma that requires serious attention.
2.2.3 The JICS reports that the sentenced offender population has also decreased dramatically: in November 2004 the population peaked at just over 137 600 offenders, and by the end of March 2010 that number stood at approximately 114 280 offenders. The burgeoning number of offenders serving long sentences is a matter of grave concern as it is likely to impact on conditions of incarceration and the DCS’ rehabilitation efforts. While the impact of the dramatic growth on conditions of incarceration, overcrowding and the treatment and safety of detainees is matter of speculation, the JICS believes that detailed research and monitoring of its impact on the rehabilitation and reintegration of offenders should be done.
2.2.4 The JICS’ comments regarding the positive impact efficient management of facilities has on mitigating the effects of overcrowding, are noted. Where inmates are allowed to spend a considerable part of their day participating in work, development, recreational or rehabilitation programmes, conditions could, regardless of the level of overcrowding, be described as good.
2.2.5 In relation to the roll-out of development, work and education programmes, the JICS found that, in general, infrastructure and very expensive equipment were underutilsed. In addition, major discrepancies in the distribution of personnel existed from one correctional centre to another. The JICS recommends that in relation to education programmes for example, resources should be pooled at those centres that had the necessary infrastructure. Given the DCS’ major challenges in delivering programmes to inmates, the JICS further recommends a more formalised approach to making use of the services of the various non-governmental, faith-based, etc organisations that are providing services at about 82% of correctional centres.
2.2.6 Section 40 (1)(a) of the Correctional Services Act compels the DCS to, as far as is practicable, provide sufficient work to keep offenders active for a normal working day, and that offenders may be compelled to do such work. Structured interviews conducted by the JICS between November 2009 and February 2010, however, revealed that only between 10% and 15% of sentenced offenders with or without sentence plans, across 74% of the country’s correctional centres, participated in regular rehabilitation and work programmes. Capacity constraints, such as inadequate infrastructure and human resources, and lack of teaching materials, made the implementation of sentence plans (in those instances where inmates had them) near impossible. Correctional centre workshops and farms were underutilised and therefore underproductive. Various austerity measures have resulted in budgets for such activities being cut, and staff shortages owing to the implementation of the 2x12 hour shift system have resulted in some workshops having been closed. The DCS has reported that there has since been some improvement.
2.2.7 The Annual Report for the first time included information on DCS investigations into the 55 reported unnatural deaths, broken down into 19 homicides, 30 suicides and six deaths of which the causes were classified as unknown, for 2009. Although there appeared to have been discrepancies between the DCS’ records and what HCCs had reported to the JICS, the DCS eventually confirmed the JICS record. In 47 of the cases investigations had, at the time of reporting, not yet been completed. DCS officials were implicated in 18 homicides; at least one death resulting from continuous assault by officials even after the victim had ceased to pose a threat. The information received from the DCS made clear that there was a dire need for the JICS’ inquisitorial role to be strengthened. It was pointed out that many of the suicides may have been prevented had the DCS acted on reports that inmates who later killed themselves, were suicidal. In such cases negligence could be proved, and therefore proper inquests ought to take place.
2.2.8 In addition to the above-mentioned” unnatural” deaths, the JICS received 992 reports of ”natural deaths”. Owing to it not yet having received the death certificates and other supporting documentation related to these deaths, the JICS was unable pronounce itself on the circumstances surrounding these deaths. Steps are being undertaken to ensure that, in the next financial year, a full analysis of all deaths will be made. The Annual Report draws attention to the fact that given that in a large number of cases unsentenced and sentenced offenders were not medically assessed upon admission, many of the deaths listed as ‘natural’ may well have been prevented.
3.1 The Money Bills Amendment Procedure and Related Matters Act (2009), provides for, amongst others, a parliamentary procedure to amend Money Bills, thus granting parliamentary committees greater opportunity to influence the allocation of funds to the departments they oversee. Section 5 compels the National Assembly, through its Committees, to annually submit BRR reports on the financial performance of departments accountable to them. Though the Act is silent on oversight over entities, the Committee believes that, given that the JICS receives its budget from the DCS, its performance too should be assessed during the BRR process in October each year. The Committee therefore urges the Minister of Correctional Services to ensure that the JICS’ Annual Report is tabled in sufficient time to allow its consideration during the above-mentioned process.
3.2 The Committee agrees that, given that the DCS operates entirely independently, its financial management ought to be separately audited. The feasibility of such auditing should be explored and, if possible, implemented as soon as possible. Ways in which the JICS may receive its own budget, independent of the DCS’, should also be explored, as this could only enhance its independence. As already recommended in the Committee’s Budgetary Review and Recommendation (BRR) report, the National Commissioner must, by 28 February 2011, provide a progress report on the DCS’ exploration of ways in which the JICS can be allocated its own budget and be sufficiently resourced to perform the functions it is mandated to perform.
3.3 As the JICS plays a major role in ensuring humane detention, all measures aimed at strengthening it, including a legislative review, should be explored. Furthermore the relationship between it and the DCS should be better managed: although the JICS receives only a fraction of the DCS’ national budget, that allocation is wasted if the JICS’ efforts remain recommendations that are not taken seriously and are not implemented to ensure safer, more humane and constructive incarceration.
3.4 The approximately 30% reduction in the inmate population since 2003 is applauded, but the levels remain unacceptably high. Cluster departments should synchronise efforts to reduce this population: ways of reducing sentence lengths, greater use of plea bargaining, fewer unnecessary arrests leading to long periods spent in remand and Heads of Correctional Centres (HCCs) using their powers to authorise parole for those serving less than two years should be promoted. Where capacity is lacking, judicial, police and correctional officials should receive the necessary training to ensure that these interventions are utilised.
3.5 The Committee agrees that the impact overcrowding has on service delivery to offenders must be closely monitored for speedy intervention. The DCS, though not solely responsible for the high levels of overcrowding in its centres, must spearhead interventions aimed at lowering the inmate population, as it is the Department that feels its impact most. In its BRR report the Committee recommended the submission of a report detailing the extent to which HCCs apply their powers for reducing overcrowding, and the numbers of offenders that have been released as a result thereof. This report, as well as the proposed policy/action plan for managing the remand system, is to be tabled before the Committee by 28 February 2011.
3.6 The JICS’ recommendation that resources be pooled at specific centres to which inmates could be transferred depending on their educational and development needs, is welcomed. This recommendation is consistent with the Committee’s opinion that the DCS should consider identifying “centres of expertise” where resources for different workshops, agricultural activity, and educational programmes could be concentrated, particularly given the shortage of educators and artisans, and the under-utilisation of infrastructure and agricultural land. Both the JICS and the DCS should explore the feasibility of such an intervention and provide feedback within three months of the adoption of this report.
3.7 The Committee had in its report on the DCS and JICS performance in the 2008/09 financial year expressed its outrage at the high number of deaths in correctional centres, particularly those classified as unnatural. The DCS’ reports on the 55 such deaths recorded in 2009 alone, included in the JICS’ 2009/10 Annual Report, reflect that the situation has not improved at all. The Committee agrees that all custodial deaths, natural or unnatural, should be subject to a medico-legal examination as defined by the National Health Act (2003). This is vital, particularly given DCS officials’ apparent history of assaults on inmates, as well as the suggestion that many ‘natural’ deaths may have been prevented had the necessary medical examinations taken place on admission, and medical care been given. Particularly appalling are the deaths that resulted after “continuous” assaults by officials, which in the Committee’s view should be categorised as incidents of torture, rather than assault. Both the DCS and the JICS should provide quarterly reports on the DCS’ interventions aimed at eradicating deaths, a breakdown of deaths recorded for that period, as well as of the DCS’ compliance as far as the mandatory reports required by the JICS.
3.8 The Committee shares the concerns regarding the possible duplication of functions when the OPCAT is ratified. It has sensitised the Portfolio Committee on Justice and Constitutional Development to the JICS’ concerns. It recommends that, rather than a new national preventative mechanism being put in place, the JICS functions be extended in order to include those functions required by the OPCAT.
The Committee thanks the JICS officials who appeared before it for their input and co-operation. It welcomes improvements the JICS has made to its reporting, particularly the inclusion of more information regarding deaths in correctional centres, public participation and its correctional programme audit, as well as the frankness with which challenges are highlighted and solutions are proposed.
Report to be considered.
Chairperson: Mr V G Smith, MP Date