SA Human Rights Commission role in relation to incarceration conditions & treatment of offenders

Meeting report

Workshop on the strengthening of the Judicial Inspectorate for Correctional Services: update postponed
Although this item was on the agenda, the key presenters were not available, and Members decided to postpone this agenda item.

Mr S Abram (ANC) called for a strong reprimand to be given to the responsible parties, as this was the second time Committee agendas had to be changed, owing to the presenters not being present. He noted that Parliament, as the institution approving the budget, had every right to know how the funds were being spent and there should be accountability for aborted meetings. He asked whether there was any guarantee that this would not again recur.

The Chairperson asked that the Department of Correctional Services (DCS) and any other organisations should ensure that the mandated speakers would be present when called upon. He added that these matters should not be delegated to junior individuals but that senior officials must be present to answer important issues. A follow up meeting would now need to be scheduled, and this may impinge upon the plans for oversight visits during parliamentary recess. A proposed new date, of 14 August, was suggested.

Mr J Selfe (DA) asked that the first available session the Committee had should be used for the postponed presentations, to ensure enough time is granted. He also reiterated that all role players must be present. He was not in favour of this Committee using the time scheduled for oversight to conduct meetings, as previously suggested.

Mr Tom Moyane, National Commissioner, Department of Correctional Services, stated that in principle this department did not send junior officials to meetings, and he was always present and accountable, along with capable senior staff. There had been miscommunication leading to the halting of this meeting, but he assured the Committee that it was not meant to undermine the Committee. The Department representatives would be present at the follow-up meeting.

Oversight visits and Proposed Study Tour
Members noted that because of the cancellation of the first discussion, there was some time available and proceeded to confirm the dates for the oversight visits, as follows:
23 June: visit to Eastern Cape (East London- issues of overcrowding)
24 June: visit to Inspecting Judge, Durban
25 June: visit to KwaZulu Natal (KZN)
30 June: visit to Inspecting Judge, Bloemfontein
01 Aug: visit to Kroonstad, then to North West
06 Aug: visits to Oudtshoorn and George
07 Aug: visit to Brandvlei
08 Aug: visits to Ceres and Vanrhynsdorp

These visits would ensure that the Committee followed up on previously agreed areas in the KZN, Free State, North West and Western Cape.

Overseas study Tour
Ms W Ngwenya (ANC) raised the issue of the study tour in other countries in Africa and overseas, noting that a proposal had been made and requesting an update.

The Chairperson reported that the request by the Committee for approval of this study tour had been rejected, in writing, by the Chair of Chairs. This was the second request denied, and he felt that at a Committee level there was no further action to be taken. He would make the letter with the official refusal available to Members if they wished, in their individual capacity, to appeal to the Chair of Chairs.

Ms Ngwenya thought this refusal unfair, saying that it was necessary for the Committee to conduct study tours, especially since other Committees had been given permission to go on tour.

Mr M Cele (ANC) asked what the reason for was for the rejection of the proposal.

The Chairperson said that the proposal was made before the Parliamentary schedules and plans had been changed. The dates of the planned study tour fell within newly scheduled programme times.

Mr Abram agreed with Ms Ngwenya on the necessity for study tours, pointing out that these helped the Committee gain important knowledge, to enable Members, in turn, to impart more knowledge and build on their own experience and findings in a collaborative way. The Committee would be going there to work, not for a holiday. He also commented that the previous Chair of Chairs was willing to visit Committees but the current Chair was not open to negotiation, and he asked whether there was any oversight over those decisions, as he believed that the power to grant or refuse the request should not rest with a single person. He asked the Chairperson to raise the issue of accountability of the Chair of Chairs, at the next scheduled Chairpersons’ meeting.

The Chairperson reiterated that the rejection document would be disseminated and that Members could take the matter further themselves, but it had already been raised with the highest possible authorities.

South African Human Rights Commission (SAHRC) briefing on its role in relation to conditions of incarceration and the treatment of offenders
The Chairperson highlighted what he described as “a 360 degree abuse” situation within correctional centre institutions, with abuse prevalent at the level of official on inmate, inmate on official and inmate on inmate. He said that it was important for this Committee to understand how torture legislature played out on the role and work of the South African Human Rights Commission (SAHRC), and whether the Judicial Inspectorate for Correctional Services (JICS), which was responsible for oversight over inmates, was effective. It was also necessary to consider whether the installation of monitoring technology in correctional centres was a preventative and monitoring solution, or an infringement on human rights, particularly privacy, and to consider the comparative weight that must be given to the privacy of violators and the rights of the violated.

Adv Lawrence Mushwana, Commissioner, SAHRC, outlined the role of the SAHRC Commission in judicial and policing matters, and said he would speak to whether its input was valid in these areas. SAHRC was not concerned with the crimes, but with violations of human rights. Hundreds of complaints were sent in, mediated through entities such as JICS and others where necessary. He pointed out that one of the greatest challenges facing the SAHRC was its capacity issues, as it had less than 200 staff members, required additional resources, but that to date requests to the National Treasury for increases had been denied. He added that the SAHRC did not itself conduct any visits to correctional centres.

Ms Judith Cohen, International and Legal Specialist, SAHRC, outlined the mandate and functions of the SAHRC. Human rights were dealt with in section 184 of the Constitution. The Human Rights Commission Act outlined the need for promotion, protection and monitoring of human rights violations. SAHRC had a central Head Office and nine Regional Offices providing assistance and outreach through its Legal Services Programme, Research Programme and Human Rights Advocacy Programme. She reiterated that there were issues of capacity, particularly in the regional offices.

She explained that SAHRC had a broad mandate covering ‘all persons deprived of their liberty’, and that correctional centre inmates obviously fell into this. SAHRC strove to comply with international obligations, including reporting obligations through an annual review, ongoing engagement with issues surrounding torture and the push for ratification of the Optional Protocol to the Convention Against Torture (OPCAT) as a National Prevention Mechanism (NPM). The goal was to stop torture before it happened. Currently, torture was not listed as a statutory crime. Ms Cohen further highlighted various SAHRC work related to international obligations of reporting and monitoring. The South African government was committed to ratifying OPCAT.

Ms Cohen then outlined the relationship between the SAHRC and JICS outlined. SAHRC was mandated to redress violations of section 35 rights. Matters were referred, via SAHRC, to relevant bodies such as the JICS, where necessary, for it to conduct further investigations.

SAHRC received 4 241 complaints in the 2012/13 financial year. 518 complaints were captured as section 35 complaints, regarding “arrested, detained and accused persons”. The majority of these were referred to JICS. However, she pointed out that many of the complaints had to do with the legal processes, and so these were referred to the relevant legal bodies.

She tabled an analysis of inmate statistics, per province. The highest occurrence of section 35 incidents was in Gauteng (35%), followed by Free State (22%), Western Cape (11%) and Eastern Cape (10%). By March 2013, 85% of the section 35 complaints were finalised, 10% were still under investigation, and 5% were at assessment stage.

Investigations at Groenpunt Maximum Security Correctional Services Centre exposed section 35 rights violations. The draft findings and recommendations had been prepared and awaited final approval by the SAHRC. The Lindlela Repatriation Centre was also under investigation for alleged violations of human rights, and one matter was set down for trial in late August 2013.

Ms Cohen said that the SAHRC recommended, and requested cooperation from the Committee by using its oversight powers, that the OPCAT must be urgently ratified and that an NPM must be established, to continue addressing matters of torture and ensure that South Africa complied with its international reporting obligations and submission of outstanding reports. Further engagement between SAHRC and the Committee would be welcomed, to better protect and promote rights of inmates and all persons deprived of liberty.

Adv Mushwana concluded that the role of technology was important. SAHRC would weigh up the relative interests of the inmate community and the public. No conclusion could be drawn until the SAHRC could ascertain the limitations and possibilities of technological installations.

Discussion
Ms Ngwenya highlighted the need for ongoing interaction between the SAHRC and this Committee to address the rising number of challenges.

Ms Ngwenya asked what the relationship was between victims of violations and the SAHRC. She commented that whilst inmates were becoming increasingly aware of their own rights when incarcerated yet did not acknowledge the rights of others, either before they were arrested or once they were being held. She asked what privileges were afforded to inmates, and asked the question whether, in principle, these should be seen as basic rights, or a reward for good conduct. Violations occurred when the centre was in lock-down, and at this stage nobody was monitoring what was happening, via CCTV. She questioned how it was possible to solve the problems or determine who was responsible, when there was no monitoring process, and how it would also be possible to charge inmates who had committed violations. She wondered again if there should be any differentiation between the rights of the general public, and the rights of inmates and wrongdoers.

Adv Mushwana highlighted that the moment the question of privacy arose, the question of human rights became integral. People who were incarcerated were still people with human rights, regardless of the status as ‘inmate’. The Constitution contained specific clauses and particular provisions that needed to be applied to inmates, but these were not necessary tested. He noted that the desired end result was that inmates should be rehabilitated and fit for reintegration into society upon their release. This raised the question also of what steps could be taken to address and prevent recidivism. He said that the rights of victims were acknowledged, but no result could be achieved until the question of what could be done about “closed door” policies was fully debated.

Ms Cohen highlighted that, legally speaking, there was no definite yes or no answer on the use of monitoring tools like CCTV. She agreed that the issues needed to be fully explored and researched. Either way, regardless of the outcome, the findings would be contentious and it would not be easy to reach agreement.

Adv L Max (DA) noted the comment that torture was not on the statute books as a crime and asked what had to happen to get it to that stage. He wondered if there was any acceptable definition of what constituted torture. He also wanted to know what was in place to educate officials, and to prevent or at least alleviate torture in state institutions.

Ms Cohen highlighted that, at an international level, OPCAT was seen as the most effective preventative measure available. She asked that this be addressed in the Committee’s upcoming workshop with JICS.

Adv Max asked how many complaints were currently with the JICS, and asked if complaints were adjudicated at national or provincial level. He asked whether the complaints tended to come from officials, inmates or another source.

Ms Melanie Dugmore, Provincial Manager, SAHRC, highlighted that complaints usually came directly from inmates, by way of letters and e-mails, after other internal avenues had been exhausted. The interpretation of rights violations determined who had specific jurisdiction, and the complaints would, if necessary, then be referred on to the necessary bodies.

Ms M Phaliso (ANC) noted that civil society needed to “think outside the box”. Every country had own dynamics and developmental state scenarios. South Africa was still a developing state, so the question was really how broadly human rights in correctional centres would be considered. She agreed with Ms Ngwenya that inmates were persons who had ‘wronged’ society.

Ms Phaliso noted that the capacity challenges within the DCS needed to be addressed, and pointed out that JICS did not have the necessary tools to address these issues entirely, and furthermore, JICS had “no teeth”. She asked how this issue would be resolved. She wanted to know if the SAHRC ever visited the Public-Private Partnership Correctional Centres. Overall, she found it disturbing that there were known issues of torture, but they were actually not being addressed by the relevant parties.

Mr Selfe questioned the capacity of monitoring parties, such as JICS. He commented that the competing jurisdictions clouded the ability to reach a decision on who, at the end of the day, had the responsibility of monitoring violations throughout the incarceration process. He said that a decision was needed on what was the most effective institution for monitoring, and what was the most appropriate means of prevention.

Mr Abram reiterated that most problems were occurring after lockdown, and said that the question of what could be done to ensure safety in future would have to be decided. The State would have to make more resources available towards policy implementation.

Mr Abram noted the comment by the SAHRC that the majority of issues related to legal matters, and he wondered if the Legal Aid or other institutions were delivering services here. If not, then he questioned if they were in breach of their constitutional obligations.

Mr Abram commented that part of the problem was that the visits to correctional centres by the JICS were reactive in nature, whereas JICS needed to be proactive. The independence and effectiveness of JICS needed to be evaluated. He thought that no rehabilitation obligations could be properly achieved until inmates were engaged in doing something constructively and actively.

Ms Phaliso noted that since Public-Private Partnership institutions also operated with state funding there was a need to monitor them, through civil society, the Committee and the SAHRC. She suggested that it was necessary to have a number of pilot projects to bring all the parties under “one roof” or working to a common purpose. She believed that legislative amendments were necessary, but firstly there was a need to explore, pilot and test policies, to come up with practical resolutions. The capacity and skills issues clearly also needed to be addressed.

The Chairperson concluded that the Department of Correctional Services did not receive adequate prior investigation by SAHRC, and the visibility of the SAHRC needed to be addressed, to initiate better cooperation between the Department and the Commission. He agreed that the SAHRC needed to become more proactive, and he felt that it was quite obvious that the SAHRC had to start doing site visits, particularly since this was crucial to allow the SAHRC to get a better sense of what was happening in the centres. He suggested that it may be useful for the SAHRC to join the Committee on oversight visits, and said that, for its part, the SAHRC should also inform the Committee of its major findings, so that effective feedback and positive pressure could be initiated by the Committee.

Adoption of Committee Minutes
The Committee tabled and considered two sets of minutes, dated 22 May and 12 June 2013.

The minutes of 22 May 2013, and of 12 June 2013, were adopted, with minor grammatical changes, but no substantive changes.

The meeting was adjourned.