Judicial Inspectorate for Correctional Services strengthening: stakeholder inputs

Meeting report

Civil Society Prison Reform Initiative submission (CISPRI) on strengthening the JICS
Ms Clare Ballard, CISPRI Researcher, stated that monitoring was the best way to deal with inmate rights. Complaints received by the Judicial Inspectorate for Correctional Services (JICS) indicated that there were a range of fundamental problems within the prison system. The Department of Correctional Services (DCS) found it difficult to accept advice or assistance from external institutions. The Jali Commission had pointed out its isolation, and the lack of interaction with stakeholders. The DCS ignored JICS recommendations, and a culture of impunity remained. The JICS had to monitor the rights granted by the Correctional Services Act, and provide intellectual leadership.

Ms Ballard noted that dependence upon a budget allocation from the DCS compromised the independence of the JICS. Independence was needed to ensure public confidence and trust. The JICS budget had to come directly from Parliament. The JICS also lacked administrative independence. The Independent Police Investigative Directorate Act 2011 served as a reference point. The Independent Police Investigative Directorate (IPID) was financed by money directly appropriated by Parliament.

The Inspecting Judge was empowered by the Act to visit and inspect prisons, and was also empowered to 'deal' with complaints referred to him. Over the preceding three years, there had not been a single criminal prosecution of a DCS official implicated in the death of an inmate. Ms Ballard advised that Departmental investigations for disciplinary purposes not take precedence over criminal investigations. She recommended that the Portfolio Committee conduct its own investigation into how investigations of death and assault were being conducted. The DCS had to be prohibited from conducting internal investigations until the JICS and SAPS had completed their own investigations.

Ms Ballard provided a comparative analysis of correctional investigation in England and Wales.

National Institute for Crime Prevention and the Rehabilitation of Offenders (NICRO) submission
Ms Venessa Padayachee, NICRO National Manager: Lobbying and Advocacy, said that there had to be accountability and transparency. International best practice had to be looked at. There had to be follow up to see if the DCS was responding to JICS recommendations. Legislation might have to be adjusted to increase power to enforce JICS recommendations. She agreed with the CSPRI that the financial and administrative independence of the JICS was compromised. It was essential that the President had to appoint the Inspecting Judge. The state had to restrain itself through civil society. The DCS responses were not open; the Department was inclined to be defensive and to hide things. There were no sanctions for not implementing recommendations, and that fostered impunity.

Ms Padayachee noted that in other countries the functions of independent Correctional Centre Visitors (ICCVs) were separated into specialist categories. She agreed with the CSPRI that the DCS had to conduct internal investigations after those of the SAPS and JICS. JICS investigative powers had to be strengthened. The JICS had to be able to do unannounced visits. Results of JICS investigations had to be published. More ICCVs had to be appointed, or their allocated time had to be increased. System confidence had to be built.

Sonke Gender Justice Network, Just Detention International, & Wits Justice Project joint submission
Ms Emily Keehn, Sonke Gender Justice Network Policy Advocacy and Research Specialist, said that prison oversight had come far since the 1990s, but there were shortcomings. The JICS lacked independence and was not empowered for its mandate. She stressed that the Inspectorate needed financial independence for autonomy. There had to be no political appointments by the DCS. She suggested that the Judicial Service Commission and other stakeholders be involved with appointments. Inmate perceptions of ICCVs questioned their authority, and whether there really was confidentiality. The fact that the JICS did not investigate corrupt and dishonest practices created a negative public perception. The JICS made no press releases, which would have to be done to improve knowledge of DCS challenges. The Correctional Services Act 1998 had rightly to state that the Minister should not regulate the JICS. It had to be made an offence for the DCS to interfere with the activities of the JICS. The JICS had to report more on systemic issues, and sexual abuse. The JICS had to have stronger investigative powers, including the right to subpoena. ICCVs had to have strong training. She supported the practice of using parolees as ICCVs.
 
Ms Sasha Gear, Just Detention International Programme Director, said that many inmates did not know about the JICS. They had to be informed. ICCVs had to be trained about systemic issues such as HIV and sexual abuse. The ICCVs had access to a closed system, and the most had to be made of that. JICS research on prison conditions had to be taken into the public realm. The JICS could promote public awareness of prison challenges through media dissemination. She said that the JICS had done well with a small budget.

Discussion
The Chairperson remarked that if the Department of Correctional Services (DCS) did its own investigations, the question was what the JICS was there for. The JICS had a very broad mandate. It received complaints about food, medical and health matters, segregation, transfers, assault, murder, abuse and corruption. It could be asked if its mandate was too broad. He found the concept of an ombudsman worth looking at. Possibly there could be a focus on corruption, sexual assault and murder. He asked for comment about the need for a JICS Act.

Mr L Max (DA) remarked that the independence of the JICS was structurally compromised. Its powers of decision making and influence were limited. He referred to the remark by Ms Keehn that inmates saw the Independent Correctional Centre Visitors (ICCVs) as having no authority. There was a lack of communication. Inmates had to be educated about the JICS system. He referred to the remark by Ms Ballard that no DCS staff had been criminally charged for matters like assault on inmates. The problem was that a charge could not be laid without evidence. It had been noted that the DCS had to allow the police and the JICS to investigate. But the DCS had to have its own investigation because a suspension could not continue for longer than 60 days without the member being charged or the suspension withdrawn.

Ms Ballard responded that the CSPRI would agree that the DCS internal investigation was necessary for purposes of administration. But it had to wait till after a criminal investigation. The SAPS and the JICS first had to investigate from the outside.

Ms Padayachee added that with more structural independence and decision making powers, the JICS would be taken more seriously. Powers to legislate could contribute to that. There was a need to discuss more ICCVs, or the granting of longer hours to them.

Mr Max agreed that the JICS mandate  was huge. It had to deal with everything from lights to water. There was a shotgun approach where things were spread thinly over a large area. The bad condition of some facilities contributed to the problem.

Mr J Selfe (DA) remarked that administrative and financial independence for the JICS, and a separate Act for it, could create an administrative burden, especially in terms of compliance with the Public Finance Management Act 1999 (PFMA). A separate budget would have to be managed.

Ms Ballard replied that in terms of the current legislation, the JICS not only had to investigate and report, but also had to deal with what was reported. Legislative independence for the JICS did not necessarily imply a self-standing Act.

Mr Selfe remarked, with regard to JICS capacity, that JICS had a broad mandate which would be difficult to cover even if there were more people. The IPID Act had not produced impressive results. The IPID did not have a brilliant track record. There had to be a hierarchy of importance that guided JICS efforts.

Mr Selfe remarked that the relationship between the JICS and the DCS was Janus faced. There were smiles when the JICS were being nice to officials, and frowns when assaults on inmates occurred, for instance.

Ms Ballard responded that it was, above all, important that the DCS not interfere with or compromise JICS inspections and investigations.

Ms W Ngwenya (ANC) said that the Office of the Inspecting Judge was being ignored. There was a lack of response from the DCS. The previous week an ICCV from Pollsmoor had reported the bad condition of the kitchen there. She paid a visit to the facility and found that only one of four kitchens was working. ICCV work had to be restructured. ICCVs were expected to achieve things while being paid only a stipend. There was no clear plan for them. There had to be a workshop with them.

Ms Ngwenya noted that an independent JICS budget was a challenge. There was a lack of report back to inmates about what was being done about their complaints. She herself had been imprisoned under apartheid, and had not received permission to bury her child when it died. But at least the refusal had been prompt. Offenders were not being rehabilitated because they came out of prison angry. It was part of the rehabilitation process to respond to their complaints and requests.

Ms Ngwenya asked what was really meant by investigative powers for the JICS, and about allowing the DCS to conduct its own investigation.

Mr V Magagula (ANC) said that the question was whether the JICS had any teeth. Perhaps it had only false teeth or perhaps none at all. The JICS could not be strengthened while it worked with volunteers.

Mr Magagula asked who was reported to in the examples of England and Wales that the CSPRI had referred to.

Mr S Abram (ANC) remarked that the involvement of civil society was necessary for democracy. The present focus was on shortcomings, but there had to be a move forward to look at international best practice. There had been successes elsewhere. The Office of the Inspecting Judge had to be given the opportunity to respond in writing to challenges, and the same applied to the DCS. Ideas had to be presented to the Committee, so that it could come up with proposals. There had to be alignment with the Constitution. To clean up the current situation would require stepping on toes. Risks had to be taken, but such risks had to be informed and calculated.

Mr Abram continued that human beings had a capacity for excellence, and could strive towards perfection. There was the choice to succeed or to destroy, to build or to fight. Gandhi had said that a society would be judged by how the weak and the vulnerable were treated by those in power. It was not right that the ICCVs had to depend upon the goodwill of the DCS. When they accessed the centres, they needed support. Inmates expressed a lack of confidence in them, for they were perceived to have no authority or power. Confidence in them had to be restored. They were in a good position to explain how the fabric of society had been torn apart, and why intelligent people were sitting in jail.

Mr Abram remarked about politically motivated appointment of Inspecting Judges, that politics and race had to stay out of the process.

Mr Abram noted that inmates had told him that prison was the only place where they could get food and shelter. Society had to change. The DCS had to say if it needed money for rehabilitation. Prisons were mere warehouses. There had to be psychic change. There was a crime war in the country.

Mr M Cele (ANC) remarked on the importance of a curriculum for DCS officials. There had to be a change of attitude.

Mr P Mnguni (COPE) remarked that there had to be an Act to separate the JICS from the DCS. To deprive the JICS of resources was sabotage. People were getting away with murder. The JICS had to be given powers. The DCS had to be asked why recommendations from the JICS were not being implemented. The JICS had to be fully independent, not just partially.

The Chairperson remarked that Parliament was outsourcing the ability to think. A workshop had to be arranged where the DCS could argue their case, and then informed decisions had to be taken. MPs relied on being spoon-fed. NICRO had to empower them, rather than tell them what to do. He told the Judge that the JICS strategic plan had to be informed. There had to be a workshop to prioritise the form of a strategic plan. There could be a situation in the making where the Judge would be expected to do what was doomed to fail.

Ms Gear agreed that there had to be a workshop, and that the SAPS and the National Prosecuting Authority (NPA) also had to be invited.

Ms Padayachee also agreed that a workshop had to look at JICS independence. While it was true that independence might imply costs, money was wasted if the JICS was not working effectively. If government and civil society were serious about oversight, there had to be investment.

The Chairperson asked that media representatives report accurately that it had been a brainstorming session. There had been no decisions taken about matters like a standalone (separate) Act to secure independence for the JICS. Stakeholders had to think of options. No conclusions had been reached, and he asked that the media convey it as such.

The Chairperson asked the Inspecting Judge to report back on the matter of the ratio of ICCVs to inmates, and the JICS organogram. The question was whether the JICS was perhaps top heavy. An inspectorate was needed in the field. He also asked the Judge to report about the list of ICCVs who were on parole, and to share on pitfalls experienced by the JICS.

JICS and DCS Comments
Mr Adam Carelse, JICS CEO, noted that there were two parolees working as ICCVs. One had started in 2009, and the other in October. Currently there was the challenge of unfilled vacancies for ICCVs. 216 posts were filled, whereas provision was made for 304. If all posts were filled, the ratio of ICCVs to inmates would be 1 to 500. There was a challenge at female, juvenile and remand detention centres.

Judge Vuka Tshabalala, Inspecting Judge, said that he agreed about the need for a workshop with the DCS present. The SAPS and the Prosecuting Authority could also be present. More inputs were needed about the review of legislation. Broad statements were not enough. Questions had to be answered about the purpose of legislation. Civil society was saying that the appointment of the Inspecting Judge by the Minister of Correctional Services was not good. To that could be added that the appointment of the Inspecting Judge for only three years limited the extent of the involvement of that Judge. The previous Inspecting Judge had complained to him that he would have liked to serve for a longer term. He himself wanted to know that he had been appointed because he could be representative and add value. The workshop on JICS independence could also go into the matter of appointments.

The Judge referred to prosecutions. He said that Adv George Bizos had written a book with a title based on the death of Steve Biko. The book was called No One to Blame? In Pursuit of Legal Justice in South Africa. Cape Town: David Phillip, 1998. A magistrate had ordered an investigation into the death of Biko, and the statement was made after the inquest that no one was to blame. Difficulties like that had been there for a long time. It had to be discussed in a workshop with the DCS.

Mr Zachariah Modise, DCS Chief Deputy Commissioner, appreciated the frankness of the discussions. The DCS would respond to matters touched upon. He felt that a South African and African perspective had not come out. The DCS would emphasise that. There would be a look at what had happened since the Jali Commission, and at recommendations made by other Inspecting Judges. Levels of overcrowding were a challenge. Things looked very different at centres that were not overcrowded. Information was needed to assist with amendment of the Act.

The Chairperson reminded all that Section 35 of the Constitution stated that every detainee had the right to be held under conditions of human dignity.

The Chairperson adjourned the meeting.