The meeting began with a submission by the Civil Society Prison Reform Initiative, which highlighted certain areas of concern where South Africa was not fully compliant with international standards and/or domestic law. The areas focussed on included: remand detention, the absolute prohibition of torture, adequate provision of healthcare, rehabilitation focussing on the provision of education, and independent monitoring. Regarding the absolute prohibition of torture, CSPRI indicated that South Africa has ratified the United Nations Convention Against Torture and passed the Combating and Prevention of Torture Act. However, the Act was not listed under the mandate of the Department of Correctional Services and there were serious concerns about officials being implicated in gross violations of human rights. CSPRI submitted that certain functional areas currently under the auspices of the Department of Correctional Services, particularly education and healthcare, ought to be conducted by the line function departments responsible for these areas in broader society. On independent monitoring, it was submitted that South Africa has been lax with its reporting responsibilities. Further, the need for institutional, financial and administrative independence for the Judicial Inspectorate for Correctional Services was emphasised, because this is a laudable means through which the performance of the Department could be gauged and the rights of inmates protected.
The National Institute for Crime Prevention and Rehabilitation of Offender (NICRO) submission focussed largely on the same functional areas and standards. Part of the submission took the form of a table which contrasted the relevant source of international obligations, including the UN Standard Minimum Rules for the Treatment of Prisoners, and where reference is made to that right under South African law and policy. Further it showed where such references are progressive and where there are gaps in legislation, policy or practice. Areas of concern which were not fully dealt with by CSPRI included, the right to physical and moral integrity which is catered for through the constitutional right to human dignity and the Combating and Prevention of Torture Act. However, procedures implemented by the Department during search and seizure have seen allegations of violence and degrading treatment. On the right to an adequate standard of living, NICRO stated that problems are caused for the enjoyment of this right by overcrowding in correctional centres and the allegations that at times the clothing and bedding provided to prisoners were inadequate and unhygienic. On making the best use of prisons, it stated that there is a concern with the fact that sentence plans are only produced for offenders serving a sentence longer than 24 months and excludes remand detainees. Further, the lack of adequate opportunities for work during incarceration goes against the international obligation to provide sufficient work for prisoners, in so far as this is consistent with security.
In the discussion that followed, the Chairperson questioned the need of the Judicial Inspectorate for increased autonomy and independence from the Department. NICRO quoted the Jali Commission of Enquiry’s report which stated that “judicial inquiry into prison corruption concluded by the Office of the Inspecting Judge has been rendered ineffective by the removal of its independence and making it appear as though it is an extension of the Department. According to international standards prison inspectorates are defined as organisations which are external to the prison systems they monitor and possess the statutory authority to visit and inspect such facilities”. CSPRI noted that regularly updated statistics were required as the most recent statistics on the DCS website were dated March 2011 and this does not give a fair reflection of what is happening in the Department.
The Department of Correctional Services then gave its presentation on its compliance with international standards, particularly the UN Standard Minimum Rules on the Treatment of Prisoners. The presentation took the form of a comparison between the relevant instance in the Standard Minimum Rules and the relevant provision in the Correctional Services Act. It was emphasised that South Africa is fully compliant with the international standards, although there may be challenges with implementation. Examples of compliance include the provision of medical services under rule 22, which is reflected in section 12 of the Correctional Services Act which requires the provision of more comprehensive services termed healthcare, which includes psychological aid and nutrition.
The ensuing discussion saw Members asking the Department for a report which dealt with the points made by CSPRI and NICRO that there were areas of practical non-compliance with international standards in practice. The problems cited by the civil society submissions included: the proper categorisation of inmates, the regular provision of meals, the gratuity amount paid to inmates, the privilege system which goes hand in hand with categorisation and the prevalence of degrading treatment and how prisoners are disciplined. The Department committed to producing and submitting such a report to the Committee urgently.
Briefing by the Civil Society Prison Reform Initiative (CSPRI)
Mr Lukas Muntingh, CSPRI Researcher, said the written submission had been tabled with the Committee and he would only speak to the key points. At the request of the Committee the submission deals with the Department of Correctional Services’ (DCS) compliance with international instruments and standards regarding offender management, offender rehabilitation and independent monitoring. The following notes on this compliance have been compiled from the CSPRI’s experience, in collaboration with DCS. Firstly, that the standards one measures compliance against must be clear. Secondly, the evidence which would be acceptable must be predetermined for compliance purposes. Thirdly, the monitoring conducted must be transparent and the officials responsible for performance must know what the standards are and what experience will be accepted. This has shown to facilitate far better performance within the Department. It is submitted that the Constitution, Correctional Services Act, its Regulations and Standing Orders provide ample guidance to the DCS on what the desired level of performance is and that the international instruments must be seen as supportive of these requirements.
Mr Muntingh said what has been picked up in the past, which he would like to reemphasise that in April 2013 DCS announced that it would be reviewing the White Paper on Corrections. It was subsequently reported to the Committee that there had been some problems and nearly two years later what the situation is, is still unclear. The review is regarded as an important step and it would be useful if DCS could update the Committee.
Mr Muntingh said under offender management the submission deals firstly with pre-trial or remand detainees. This has been a longstanding problem and some centres are severely overcrowded. However, this is admittedly not the fault of DCS because it is not within their control how long people are detained while they await trial. On the other hand the Department of Justice and Constitutional Development is now overseen by the same Portfolio Committee as DCS and this presents an excellent opportunity to address the systemic problems which have a severe negative impact on DCS and the right to dignity of all persons detained in the correctional system. It is recommended that the DCS make statistics available more regularly on awaiting trial and general offender populations so that the research community can analyse this and make recommendations based on evidence. It is know that DCS has been making use of section 49G of the Correctional Services Act, but it is recommended that section 342A (1) to (6) be used more effectively and frequently by the courts to investigate undue delays in trials.
Mr Muntingh said the second major issue is the absolute prohibition of torture and South Africa is fortunate to have the Combating and Prevention of Torture Act (CPTA) in place. This was an obligation under the United Nations Convention Against Torture (UNCAT). It is known from the Judicial Inspectorate for Correctional Services (JICS) reports that there are large numbers of prisoners who allege that they have been assaulted by DCS officials and this may constitute torture. JICS has expressed concerns on more than one occasion about the lack of prosecutions in cases where DCS officials are implicated in the deaths of prisoners. The CSPRI’s research has discovered that there is a de facto culture of impunity within the Department and that it is rare that DCS officials are prosecuted for assault or torture. Further, section 9 of the CBTA places an obligation on the state to prevent torture and other ill treatment by conducting information and education campaigns on the prohibition of torture so all DCS officials involved in custody, interrogation or treatment are informed of the absolute prohibition. Therefore, the absence of the CBTA being listed under the legislative mandate of DCS in the 2014/15 Annual Report was noted with concern as this means there is a gap in DCS policy and procedure. It is not clear why DCS would not view this as part of its legislative mandate.
On access to medical care, Mr Muntingh said principle 2 of the UN Principles on Medical Ethics state that it is a gross contravention of medical ethics for health personnel to engage actively or passively in acts of torture or ill treatment. The Committee is aware of the McCallum case from St Albans in 2005 and there has been a decision from the UN Human Rights Commission finding South Africa in breach of articles 7 and 10 of International Covenant on Civil and Political Rights (ICCPR). There were also reports in 2013 that prisoners in isolation cells were denied HIV and TB treatment. JICS reported that it had recorded more than 50 000 complaints regarding healthcare by prisoners in the previous financial year. This leads to the conclusion that there are serious problems with healthcare within correctional centres. CSPRI submitted that healthcare services should be rendered by the Department of Health and not by healthcare practitioners employed by DCS. The current situation compromises the independence of healthcare practitioners and there is also reason to believe the quality of healthcare services is adversely affected.
Mr Muntingh, on the super maximum prisons of Ebongweni and C-Max and the use of effective solitary confinement, said it was known that Ebongweni follows a regime of harsh and extended solitary confinement. There have been some developments which have brought greater clarity and the revised UN Standard Minimum Rules for the Treatment of Prisoners or “the Mandela Rules” now prohibit solitary confinement for a period in excess of 15 consecutive days under rule 44. Regional instruments have also prescribed that solitary confinement shall be imposed as a punishment only in exceptional cases and for a specified period of time, which shall be as short as possible. While it is submitted that there is a need for solitary confinement to deal with disruptive prisoners, the current generalised regime at Ebongweni, of prolonged periods of solitary confinement do not meet the requirements of the Mandela Rules. Further, they may be in violation of UNCAT and the ICCPR, thereby not in conformity with international standards.
On offender rehabilitation, the first issue is parole and correctional supervision, where the international standard is the Tokyo Rules. These Rules emphasise the need to reduce the risk of reoffending in parolees and probationers. As well as providing the necessary material, psychological and social support. An examination of DCS strategic objectives for the social reintegration programme show that the indicators have little to do with facilitating rehabilitation or have such a restrictive scope that they are meaningless in the face of the demand for support services. For example, despite the fact that halfway houses have not been shown to be effective in offender reintegration, the Department persists in this initiative. Further, the initiative is of such a small scale that only a handful of offenders will benefit from the scheme. CSPRI wanted to indicate to the Committee that the same calculations for sentence length versus eligibility for parole, are applied for adults and children. While the Constitution and the UN Convention on the Rights of the Child state that the arrest and detention of a child shall be in conformity of the law and shall be only as a last resort, for the shortest appropriate period of time. CSPRI submits that a rethink is needed of the services required by released prisoners and the services rendered by DCS and other government Departments to support released prisoners and their families.
On reading material, the Constitution is very specific in this regard and section 35(2)(e) requires, amongst other things, that everyone who is detained including sentences prisoners must have access to adequate reading materials. However, it appears to be the exception that there are libraries to which all prisoners have access. Earlier research by CSPRI has found that even if there is a library in a particular prison, then access is restricted on arbitrary and in its view unlawful grounds.
On access to education, the Mandela Rules in rule 104 state that provision shall be made for the further education of all prisoners capable of profiting there from. Further, that the education of prisoners will be integrated with the educational system of the country. It is regrettably the situation that the Correctional Services Act is at odds with this requirement, because section 38(1) requires that all admitted sentenced prisoners be assessed against a range of issues including educational needs. However, in the same section it states that the sentence plan will only be developed for people serving a sentence longer than two years. This requirement applies to all prisoners regardless of their age, level of literacy or previous access to education. Section 19(1)(a) states that all children of compulsory school going age must have access to such education, whether they are sentenced or not. Compulsory school going age is under the age of 15 or upon attaining grade 7 of basic education. CSPRI has done research on children’s access to education, some in partnership with JICS, and unfortunately the situation does not show much improvement. It was found that unsentenced children do not have access to education. At Brandvlei it was found that sentenced inmates with further charges are excluded from education. At Mtonjeni it was found that children in the special needs section are excluded from education. It must be emphasised that the Act does not make education for children of compulsory school going age conditional to having been sentenced, facing further charges or the sentence length. Not allowing children of compulsory school going age to attend school is a flagrant violation of the Correctional Services Act and the Schools Act. Regarding adults serving sentences of less than two years, it is unclear what services are rendered to them, because they are excluded from having sentence plans. Young people, serving a relatively short period of first offence incarceration should be a particular target of DCS, to reduce the risk of recidivism as there is still great potential before these inmates become institutionalised. On the DCS targets for education, it is noted that the achievements are modest as against the targets. For example 85000 prisoners were targeted for education, but only 17654 (21%) was actually achieved. If 85% of the prison population is not accessing education it is clearly demonstrative of a major problem with how DCS is running educational services. CSPRI submitted that it believes that education services in prisons should run by the Department of Basic Education and not by DCS.
On independent monitoring, the international standards focussed on in the submission are the UNCAT and ICCPR. Under the UNCAT South Africa submitted one report in 2005, which was six years late, and as far as could be established has not submitted a report since. This would mean that there are at least two overdue reports. Similarly, regarding the ICCPR since ratification in 1998 no report was submitted until late 2014 which was prompted by the treaty monitoring body scheduling a review of South Africa in the absence of a report, which can only regarded as a strong diplomatic rebuke. South Africa has signed OPCAT in 2006 and despite the Deputy Minister of Justice at the time stating South Africa would still do so in 2012 this has not happened. The submission provides a detailed description of JICS and the investigation of deaths in custody. However, the previous Portfolio Committee on Correctional Services did some work in this regard and included recommendations in its legacy documents. The submission also speaks to the value of independence, the financial and administrative independence of JICS, the human rights and complaints system. Accordingly, it is recommend that the Committee conduct its own investigations into deaths in custody. Further, to call on DCS, the South African Police Service (SAPS), the National Prosecuting Authority (NPA) and JICS to provide clarity on how investigations are being conducted, the problems with investigation, how decisions to prosecute or not are made and the current lack of criminal prosecutions implicating DCS officials in the deaths of prisoners.
Mr Muntingh said in conclusion the following legislative amendments were proposed for consideration. First, that the law needs to be amended to provide the necessary independence to JICS, so that it be made truly independent from the Department financially, administratively and functionally. Secondly, that the Correctional Services Act and the Inquest Act be amended to provide that all deaths in custody, whether natural or unnatural, be subject to an independent forensic examination. That upon reports of deaths, serious assaults or torture that JICS conduct its own investigation into the matter and report its findings to SAPS directly, along with a recommendation as to whether the matter should be criminally investigated by SAPS. Further, DCS should be prohibited from tampering with the crime scene of any unnatural death until independent forensic pathologists have assessed the scene. As well as prohibiting the Department from conducting any internal investigations, until JICS and SAPS have completed their own investigations. Also, that JICS be given the power to suspend DCS officials or instruct the National Commissioner to suspend DCS officials implicated. JICS should publish all its findings and recommendations of all its investigations into deaths, serious assaults and torture. Further, the results of investigations and prosecutions should be published annually by JICS, including the reasons why Directors of Public Prosecutions have declined to prosecute, where such a decision was made. Lastly, the National Commissioner should explain on an annual basis what steps have been taken to implement the recommendations made by JICS or alternatively the reasons why it was decided not to implement one or more of the recommendations.
National Institute for Crime Prevention and Rehabilitation of Offenders (NICRO) submission
Ms Vanessa Padayachee, NICRO Advocacy and Lobbying Manager, presented two documents: a narrative which encapsulates all the details of the submission and a table which deals with the performance of South Africa regarding offender management, rehabilitation and offender management against international standards.
Ms Padayachee by way of introduction said human rights may be a modern term, but the principle that certain rights and freedoms are fundamental to human existence is as old as humanity. Human rights are an inherent entitlement afforded to people simply due to their being human and are founded on respect for the inherent dignity and worth of every person. This is key in looking at international standards and the Constitution, which have provided the platform from which to monitor that basic level. It is also important to remember why we imprison people; because it is clear from the Constitution, White Paper on Corrections and Correctional Services Act that it is not for punishment, but to rehabilitate and correct. Independent monitoring is important to make sure that there is an independent system to assist DCS with monitoring human rights.
Ms Padayachee turned to SA’s performance and said the narrative document lists all the international accepted standards which indicate South Africa’s obligations under international and regional instruments. Further, there has been a review of the UN Standard Minimum Rules and there are progressive elements to which she would like to draw the Committee’s attention. The table included in the document indicates the relevant source of the international obligations and where reference is made to that right under South African law and policy. It also states where such references are progressive and where there are gaps in legislation, policy or practice. She then spoke to the key issues:
Right to Physical and Moral Integrity
Ms Padayachee said the right to human dignity the Constitution provides the background and South Africa has passed the CBTA which speaks to the prohibition of cruel, inhumane and degrading treatment. Overcrowding is the area where it is felt that the Constitutional provisions regarding the right to dignity are really being contravened. In the Strategic Report of DCS there is an annual target of around 2% for the reduction of overcrowding. It was suggested that efforts needed to be accelerated in this regard and NICRO advocates alternatives such as diversion and non-custodial options. There is a popular argument that incarceration is expensive and ought to be used only as a last resort, therefore the courts should consider diversion and all other alternatives before ordering incarceration. The situation in South African prisons leads to the need to emphasise this much more, because people are still being sent to prison for economic crimes who could benefit from a non-custodial option.
Ms Padayachee said the prohibition of torture is an area where South Africa has done well by passing CBTA. However, article 14 of UNCAT speaks to victim redress and this has not been included in the CBTA. Article 13 of UNCAT deals with a complaints process and places obligations on personnel to report and not participate in torture. Further, article 16 looks at other forms of cruel, inhumane and degrading punishment which is not clear in CBTA. The OPCAT has also been signed and this would set up a national mechanism to monitor places of detention, but this has not been ratified. The role of the DCS emergency support team needs to be reviewed, regarding search and seizure and the use of force, because there have been some allegations of torture, inhumane and degrading treatment. Therefore, training and more effective monitoring is required from DCS and JICS.
Right to an Adequate Standard of Living
The law regarding the floor and cubic space capacity requirements is not being followed. The Mandela Rules speak to regular night supervision of inmates and NICRO has noted the problem with the lockup time from approximately 3 am until the following morning. During this time inmates are left with limited supervision and much of the violence and disorder happens during this period. The suggestion of installing a system of CCTV cameras to monitor inmates for security purposes. The decision still has to be made, but it has been debated by the previous Committee. The ablution facilities in cells can be cast as degrading treatment, because such facilities have no door and at some centres they are shared among as many as 90 inmates. Another, problem with overcrowded conditions is that the staff to inmate ratio is skewed.
Ms Padayacheee said the right to adequate clothing and bedding requires DCS to provide every inmate with clothing and bedding sufficient for hygiene and climactic conditions. However, inmates have stated that clothing and bedding is not always adequate and even inmates having to take turns to sleep. Further, mattress are often thin and lice ridden according previous JICS reports.
Health Rights of Prisoners
Ms Padayachee said the issues here are health screenings for every new prisoner and the right of every prisoner to adequate healthcare, health conditions in custody, specialist healthcare and responsibilities and duties of healthcare professionals. In the Mandela Rules it is stated that the provision of healthcare is a state responsibility, which should be on par with that available in communities and should be capable of diagnosing physical and mental illness. Further, they speak to a continuum of care. The challenges on the ground picked up by JICS, include the need to review of the provision of healthcare in prisons which ought to rightfully fall under the Department of Health. There have been problems such as delays, negligence and not having adequate medication or staff. There are also lengthy bureaucratic processes regarding medical parole, which is a matter raised by international standards. It is good that there is provision for such a procedure in the law, but unfortunately because of the heavily bureaucratised process not all inmates are benefitting, with some inmates dying before the process is complete. The public perceives the system as unfair and open to the privileged, which needs to be addressed.
On healthy conditions in custody, international standards speak to a medical officer who monitors health standards in prisons. This could be someone employed by the Department of Health or an independent monitor, who is tasked with reporting on the health services and hygiene. No such report has been submitted to this Committee and this ought to be considered for inclusion within JICS.
Making Prisons Safe Places
Ms Padayachee said there were generally no problems with South Africa’s legislation, but NICRO is concerned about safety and security in prisons, particularly, prison gangs, assaults by DCS officials, misuse of force and abuse of power.
On good order and control, a study was conducted which recommended the abolition of the privilege grading system. Rather, all inmates should have equal right of access to things such as contact visits, television and the press and unlimited use of the library. Restrictions on these rights should only be used as disciplinary measures for a specific infraction and a limited period of time. Further, opportunities for DCS officials to discretionarily decide on access to facilities should be reduced to a minimum, because these are opportunities for abuse.
On discipline and punishment, the issues with the Emergency Service Team have been spoken of above. There is an interesting provision in the Mandela Rules which states that the disciplinary measures shall not include the prohibition of family contact, especially children, unless required for the maintenance of security. This sometimes occurs when privileges are taken away. On search and seizure, there are provisions in the Mandela Rules which indicate that regulations for alternatives to intrusive cavity searches should be drafted. The disciplinary regime needs to be reviewed, as there are some unfair procedures, leading to privileges being taken away. On disciplinary hearings, the Correctional Services Act states that such inmates should be allowed to consult with the legal practitioner of their choice. Of course many people in prisons cannot afford to have such representation, but the Correctional Services Act does indicate that the state can provide this through Legal Aid South Africa. However, it is found that this is not always done with disciplinary hearings.
Making the Best Use of Prisons
Ms Padayachee said international standards require all inmates to participate in useful work, unless they are medically prohibited from doing so. Further, more could be done regarding work to deal with the numbers of prisoners who remain idol in correctional centres. There are a lot of agriculture projects and prison industries, but more could be invested into this to make prisons more self-sustainable. The work should be according to the labour standards applicable outside correctional centres and that there should be remuneration. At present there is a gratuity system which is very minimal, prisoners should be paid equitably and should have an option of a saving fund. The Ogadugou Declaration on Making Prisons More Self Sustainable has many progressive provisions on this issue, coming form an African standpoint, however a lot of the implementation still needs to happen.
On rehabilitation and development, the White Paper on Corrections obliges DCS officials to ensure contact between inmates and their families. NICRO having worked with offenders and their families for more than 100 years, believes families are key to rehabilitation and evidence based practice and international instruments show this. Therefore, it should be reemphasised that disciplinary measures should not impede on this constitutional right of access to family. However, this is not only about contact and is also about how to build relationships between inmates and their families.
On preparation for release, according to international standards reintegration needs to be prepared for from the beginning of the sentence. NICRO has a problem with inmates doing victim offender mediation close to parole or when they are to be released. This should be done far earlier, at the beginning of the sentence. Therefore, a system of through care should be designed in collaboration with other agencies and organisations to prepare for reintegration from the beginning. Such interventions must be conducted earlier, because NICRO is dealing with cases which are towards the end of the system and parole boards requiring victim offender mediation before release.
Complaints and Inspections Procedures
Ms Padayachee said anyone who’s rights have been violated has the right to an effective remedy. Therefore, the law makes provision for the right of inmates to complain and for independent inspection. There is a major problem with JICS’ independence and autonomy. This has been debated in the present and previous Committees and new legislation needs to be developed. She had recently come across research which spoke of the danger of JICS being “captured” by the Department, because sometimes lay visitors to correctional centres sometimes become so institutionalised that they drop serving the interests of inmates and prefer those of the institution. The article indicates that JICS may have been captured by the department and the need to re-look at how JICS can become more autonomous. It is very progressive that this institution has been set up, being one of nine in the world, and it ought to be an independent system which works properly. It was not set up to become part of DCS, therefore financial and institutional independence is important. As well as legal powers, enabling it to enforce recommendations made, even through the courts. If JICS is compromised, then the effective monitoring system which is aspired to will also be compromised.
Special Categories of Offenders
Ms Padayachee said the DCS does look at categories of offenders with special needs and there is one for mental illness. As much as the separation occurs, South Africa’s prisons are not adequately resourced to provide for such needs. International standards indicate that mentally ill offenders should not be in a prison and should rather be in a special needs institution. Therefore, the gaps in psychiatric facilities provided by the Department of Health need to be looked into to determine why this cannot be catered for; particularly as this is a vulnerable group who are a danger to themselves and others. A study was done in 2012 in the Westville Correctional Centre, which dealt with the prevalence of mental disorders. This was one study at a particular institution and there is no concrete idea of the types of mental illness found in prisons and there is a need to know what the prevalence of various categories of mental disorders to allow proper categorisation and treatment of offenders.
Ms Padayachee on juveniles, said the legislation is progressive, but in practice there is a challenge with children and juveniles still being detained in correctional centres. Further, the available juvenile facilities should not look like adult institutions and should resemble non-incarceration facilities as much as possible. Therefore, security issues should not be the principle concern. NICRO was aware that there are children in facilities who have committed serious crimes, however the law treats juvenile offenders differently and they should be housed in specialist facilities with specialist staff who are able to deal with this category of offenders. Children should not be in correctional centres and yet the JICS report indicates that there are children as young as 14 in correctional centres, but she had experienced children as young as nine in correctional centres on remand detention. Children have great rehabilitative potential, if they are not exposed to the adult system of incarceration.
Ms Padayachee said it is progressive that parole is used as a non-custodial measure in South Africa, but the correctional supervision and correction system does need to be reviewed. It still uses over-monitoring and offenders complain of intimidation and ill treatment. There are some DCS officials who are truly for rehabilitation, but over-monitoring sometimes provides obstacles to successful reintegration. It is accepted that the community needs to be kept safe, but there are some correctional officials who abuse their power and many ex-offenders suffer under this problem.
In conclusion, Ms Padayachee said overall the Constitution and legislation are progressive compared to international instruments, but there are some gaps. Implementation is key and the revised UN Minimum Standards for the Treatment of Prisoners or “the Mandela Rules” are an excellent place to start analysing how to improve the system. The role of correctional officials is key in keeping a system which has a culture of human rights and training from a human rights perspective on how to be a rehabilitator and what the human rights standards are is needed. One of the challenges for South Africa is that it boasts a human rights based system, but South Africans generally do not believe in the inherent dignity and worth of every human being, especially prisoners. Further, the importance of independent monitoring and the need to review JICS legislation could not be over-emphasised.
Mr J Selfe (DA) on the allegation about understaffing, said it is true that if you go to an average correctional centre particularly in the middle of the night, there is likely to be a very skeletal staff and a large number of inmates. However, if one looks at the number of people employed by the Department against the number of inmates this is an internationally comparative figure. The question is not whether there is enough staff but whether they are deployed. The Committee is constantly told about the migration-to-centres policy, but the facilities which he had visited recently did not show any marked increase in the staff who were actually on duty in the centres. Secondly, while he knew the brief was indicate to what extent South Africa adheres to international standards. The answer has been that there seem to be good intentions, but a gap between the implementation on the ground and what is contained in the relevant law or policy. As a country can we afford what the international instruments ask us to do? For example, if compulsory education was rolled out are there enough resources to sustain this effort. If the Department of Basic Education was made the custodian of delivery of education in correctional centres or the Department of Health for healthcare, is it not going to burden those departments which are struggling to meet their initial mandates? He had often questioned at what level services to inmates ought to be pitched to ensure that they are not better than what is available to the community.
The Chairperson said the two submissions are different in that the one by CSPRI includes recommendations and articulates the problem and how it could be resolved. While NICRO’s simply lists many areas of underperformance. Both have indicated the need for the independence of JICS, but there was a presentation from the Minister and his concern was that JICS is to be independent "from what". It is understood that JICS is intended to act as a watchdog, but the submissions did not indicate why JICS ought to be independent or what it may have experienced which makes its work difficult and warrants independence. Independence can also have the implication of work being conducted in too fragmented a manner. She indicated that the meeting would shortly be moving into the presentation by DCS and she asked for DCS to be alert to the recommendations and respond to the proposals and charges of gross violations of human rights. NICRO did not indicate what services it offers regarding rehabilitation and how its services converge with those of DCS. She asked for information which indicates the position in the past and how far DCS has come to making the problem areas better. Having visited correctional centres, she has realised a lot of work has been done and although it is not yet perfect a sense of the progress should be given.
Mr Muntingh replied on understaffing, saying that DCS has never had a better staff to prisoner ratio than at present. An earlier report from the Auditor-General noted that the DCS utilised various forms of leave on a very extensive scale and only the Department of Home Affairs had a higher instance of leave. On a broader level, one can visit one centre and not see the understaffing, while there is a completely different scenario at another centre. The concern is that there is one national competency, one set of legislation and policy; and there ought to be a uniform standard in all centres. This is not happening and it is unclear whether this is due to individual personalities driving implementation or if it is at the policy level. The question is whether the national head office or regional offices, in charge of the management areas where the policy and norms are applied, do so on a consistent basis.
On whether SA can afford to implement the international standards, if the Correctional Services Act is diligently implemented, then he was convinced that South Africa would at least come very close to satisfying the requirements of the international instruments. One avenue to achieving this is to reduce the number of people in prison and it is known that the awaiting trial population is substantial, consumes vast amounts of resources and creates an unsafe environment for both prisoners and officials. Therefore, one needs to think of criminal justice reform which leads to a reduced strain on the correctional services system in order to attain a greater compliance with the Correctional Services Act and the Constitution. Lastly, he wanted to emphasise the need for accurate quantitative information on the prison population so that the research community can make accurate analyses and engage the Department on identified trends. At present the statistics on the DCS website are dated March 2011 and this does not give a fair reflection of what is happening in the Department.
The Chairperson said on the discrepancies between staffing and standards at correctional centres, was this within the same province.
Mr Muntingh said the instance which he is speaking to was within the same management area, which is the same province.
Ms Padayachee spoke to the independence of JICS, saying it was in the Jali Commission of Enquiries Report in 2006 that it was reported that “judicial inquiry into prison corruption concluded by the Office of the Inspecting Judge has been rendered ineffective by the removal of its independence and making it appear as though it is an extension of the Department. According to international standards prison inspectorates are defined as organisations which are external to the prison systems they monitor and possess the statutory authority to visit and inspect such facilities”. Where prison inspectorates are co-opted or captured by those they are monitoring, their ability to bring transparency, accountability and a human rights culture to prisons becomes more difficult. The topic is performance against international standards and it is very clear what these entities are meant to be, they are meant to be independent autonomous bodies. DCS monitors its own performance, but it needs an outside institution on top of this, because of the human rights abuses which were and are still found in correctional centres. Therefore, there is a real need for an autonomous body to monitor the performance. There is also enough information to draft new legislation which would provide the legal power for JICS to enforce its recommendations. For example with the torture at St Albans, it was mentioned that a JICS report was given, but how much of that was enforced or viewed as an independent which ought be taken seriously. There was a lot of room for improvement, but it was understood the point that there is still a need for points of coordination. There is a good example of best practice in the United Kingdom, with a ministerial review committee to look at the recommendations coming out of prison inspections and at a high level this committee analyses the trends and makes specific policy recommendations and instructs certain departments. There is research being done, but there is a lack of implementation and progress due to the fragmentation of the approach. On NICRO’s role, it has been engaging with the DCS on areas of potential collaboration, although it still does not have a memorandum of agreement.
Briefing by the Department of Correctional Services
Mr James Smalberger, DCS Chief Deputy Commissioner: Incarceration and Corrections, said it should be noted that the CSPRI and NICRO submissions were only received by the Department in the present meeting and therefore it may not be able to deal with all the points raised. Further, the DCS presentation may appear a bit “busy”, but it was not sure whether it needed to deal with the Standard Minimum Rules and other instruments, although DCS is in the position to respond if there are questions on the supplementary instruments. Further, the presentation does not really address where the Department was and where it currently is, but there are observations made which will give the Committee that sense of progress. He hoped that in the discussion following the presentation it would be possible to present the stance of DCS on some of the matters. It is agreed that the system is not perfect, but DCS strives to improve and it will use what has already been presented to move towards addressing the observations made by the external bodies.
Mr Lucky Mthethwa, DCS Director: Corrections Administration, began with an introduction into the UN Standard Minimum Rules for the Treatment of Prisoners (SMRs) and other international instruments. The SMRs are a set of detailed best practice principles which are non-binding and intend to encourage signatory states to grow towards a system of corrections which embodies these principles. In South Africa the biggest move towards the embodiment of such principles, aside from the rights embedded in the Constitution, has been the enactment of the Correctional Services Act. This Act emphasises the fundamental rights of inmates, makes special provision for vulnerable groups in incarceration, provides a framework for treatment development and support services and creates extensive monitoring mechanisms. In May 2015 the Revised UN Standard Minimum Rules for the Treatment of Prisoners or the “Mandela Rules” were adopted by the UN Commission on Crime Prevention and Criminal Justice and DCS actively participated in this process since 2010. DCS is in line with the approved SMRs and not the Mandela Rules, because DCS is of the opinion that the revised rules still have to be formally adopted by the UN General Assembly in October.
Mr Mthethwa then moved on to DCS compliance with the SMRs, stating from the outset that South Africa is compliant with that document by virtue of the Constitution and the Correctional Services Act. Although there are challenges which exist with the application of the principles. The presentation indicated the relevant rule under the SMRs and the section of the Correctional Services Act which base the compliance and covered functional areas including:
Rule 8: Separation of Categories & section 7: Accommodation
While there is overcrowding, provision is made for different categories of offenders to be separated, including along gender, security classification and age lines.
Overcrowding is a global phenomenon which undermines any correctional service’s ability to rehabilitate offenders, but South Africa has developed a strategy to deal with this problem. The multi-pronged strategy has been adopted and implemented along by the JCPS cluster departments.
Evidence of progress is found in there having been approximately 185 000 inmates in 2004 or 62% overcrowding and in 2014 the population has been reduced to 156 000 or 32% overcrowding.
Rule 20(1): Food and water provision & Section 8: Nutrition
DCS is providing adequate nutrition to promote inmate’s good health, as prescribed in the regulations.
Section 8(5) indicates specific time intervals for the provision of food and these are not adhered to in all centres. DCS is addressing this through its efforts towards monitoring and evaluation.
Rule 22: Medical Services & Section 12: Health Care
This is an area where the global picture is augmented, with the focus not being solely on the narrow provision of medical services and is expanded to healthcare services. Hence there are healthcare services in line with the legislation on primary healthcare in communities. Therefore, DCS is in compliance with the SMRs.
Rule 27: Discipline and punishment & sections 22-24: Discipline
The section of the Act require discipline and order to be maintained with firmness, but in no greater measure than is required for security purposes.
Rule 35: Information to and complaints by prisoners & section 6: admission
DCS caters for complaints of inmates form the point of admission, because there are orientation manuals available. Although there are challenges, there are means for inmates to be briefed on what to expect during incarceration and how complaints and requests are attended to. This is also included in the rehabilitation programmes.
Rule 35: Information to and complaints by prisoners & section 21: complaints and requests
Through this section each offender has the ability to complain and these complaints are recorded in the G365 register. Feedback is provided and the inmate may accept the response or not, but the fact of the matter is that the system is in place.
JICS also performs functions regarding complaints under section 85, which assists in this regard.
Further, section 93 establishes the Independent Correctional Centre Visitor, which may take up a complaint of an inmate and elevate it to the relevant structure and provide further feedback to the inmate.
Beyond the Act, the South African Human Rights Commission has access to inmates to attend to their complaints. Also, inmates have access to this Committee.
Rule 37: Contact with the outside world & section 13: contact with community
DCS performs beyond the scope required by the SMRs as it conducts family days. These are aimed at having offenders' families engage with them and support them while they are incarcerated.
Rule 40: books & section 18: Reading Material
This SMR is covered by section 18 of the Act which requires inmates to have access to reading material and this is conducted through DCS’ libraries.
Rule 43 (1): Retention of property & regulation 1 (a): admission to prison
Under this regulation DCS will record all monies and property brought with an inmate. If the inmate is to serve a long sentence, then the excess articles may be sent to their home in line with the prescripts.
Rule 44 (1): Deaths and serious illness & section 15: death in prison
Where there is an unnatural death, then it is investigated and SAPS is involved.
Rule 55: Complaints and independent inspections & section 95: compliance monitoring
DCS has a system of compliance monitoring through the Inspectorate Directorate and internal auditing is conducted.
Rules 62-63(1) & section 38: Assessment
DCS assesses offenders and compiles sentence plans for inmates who are serving more than 24 months. There were concerns raised around inmates who are serving lesser sentences and this would be covered during the discussion.
Rule 65-66: Treatment & section 42: case management committees
Such committees have been established and they are charged with regulating offender behaviour from initial incarceration and throughout duration of the sentence plan.
Rule 71: Work & section 40: labour of sentenced offenders
The Act requires sufficient work to be provided for sentenced offenders and DCS pays gratuity to those inmates who are working. The amount of this gratuity is reviewed after each financial year, to align it with market forces. It is not remuneration, rather it is payment aimed at encouraging offenders to embrace a crime free life after detention.
Mr Mthethwa said there are other international instruments which DCS is complying with including Standard Minimum Rules for Prisoners Under Arrest, Awaiting Trial and UN Standard Minimum Rules for Non-Custodial Measures. Regarding the UN Convention Against Corruption, the DCS is not fully compliant as there are provisions which speak to the transferral of offenders incarcerated in a foreign country. However, Cabinet has been approached for a policy decision on Prisoner Transfer Agreements and therefore compliance is being pursued. The DCS is committed to adhering to all international prescripts, despite the practical challenges. Further, the formal adoption of the Mandela Rules is awaited and will be incorporated into DCS policies.
The Chairperson said the presentation did not speak to the concerns put forward, but there has to be a way of taking some of these matters into consideration. There have also been questions about mentally ill inmates in correctional centres and if the answers are not available at present they can be answered in the future, perhaps through a report to the Committee. CSPRI has also recommended that some of the information ought to be included in the DCS annual reports, so that it is information which is easily accessible to the public. DCS has also not responded to the installation of CCTV systems and this is something which the Committee has also raised before. On categorisation of prisoners, NICRO has indicated that this is not satisfactory, while DCS indicated that it did categorise without responding to the concerns raised regarding first offenders and institutionalised inmates. She also asked when the next report to the United Nations is due.
Mr Smalberger said the two treaties, as mentioned by CSPRI and NICRO, are not under the custodianship of DCS, rather this is managed by the Department of Justice and Constitutional Development. DCS is therefore not in a position to respond on why reports were submitted late or not submitted. On the SMRs all that DCS does is to engage in the process of reviewing these SMRs and provided progress reports on their implementation. This has led to the SMRs being augmented from 90 rules to 120 rules, pending adoption by the UN General Assembly. Therefore, DCS has no outstanding reports on any nationally accepted treaty.
The Chairperson said there is a gap then, because if a treaty has to do with the function of a department, even if the report is controlled by another department, the line function department ought to have information on the due dates for submission, because it will be providing the information. Moving forward, DCS ought to acquaint itself with these requirements.
Mr Mthethwa added that for the Optional Protocol to the Convention on Torture, DCS is part of the four core departments with the lead department being the Department of Justice and Constitutional Development. All the work done for by the core task team was completed and submitted. However, DCS is not 100% sure where the process is, but it would acquaint itself as suggested. What was necessary was the multi-department task team has to come up with the National Preventative Mechanism which was a prerequisite for the ratification of the OPCAT. DCS has also been party to all the meetings on the OPCAT, with the last being in Geneva in 2011 which demonstrates the commitment to the instrument. Therefore, everything which was required has been completed and the process would be finalised in due course.
Ms M Mothapo (ANC) requested DCS provide statistics on mentally ill patients in correctional centres, to give the Committee a proper overview. On juvenile centres, how many such centres exist in South Africa and are these centres taking into consideration the developmental needs of such offenders. If so, how and if not what is being done by DCS to address this concern. There was an allegation by NICRO that a juvenile as young as nine was found in correctional centres, so could DCS respond to this. As Women’s Month is being celebrated, are there programmes which address women’s issues in correctional centres. Considering shortages of professional staff, is DCS able to comply with the international standards relating to healthcare? Particularly medical care requiring psychiatrists, social workers, nurses and doctors.
Mr M Maila (ANC) said listening to the presentation by DCS there is a sense that the Correctional Services Act speaks to the SMRs and it appears that the DCS is compliant. However, when the submissions by civil society are heard, a totally different picture is received. He would have thought that the two submissions would serve as a mirror to the input by DCS to enable critical evaluation by Members. He asked whether it would be possible to give DCS the chance to go through the two submissions and respond directly to the concerns raised. For example there were allegations of unnatural deaths of inmates at the hands of DCS officials, which the Department may not be able to respond to presently.
Mr B Bongo (ANC) agreed with Mr Maila that the Committee should require a direct response on what was raised by the first two submissions. The picture which is painted by DCS makes all appear well, because comparing the documents indeed there appears to be compliance. However, practically at the correctional centres there appears to be a disjuncture. Overcrowding was raised as affecting both the constitutional rights and the international instruments and how would DCS respond to the concerns for the right to dignity vis a vis overcrowding. Personally, he had experience of overcrowding in correctional centres and it does have serious implications and even with for who are detained in police stations. Therefore a direct response will have to be received from the Department. Even the matter of categorisation needs more of a direct response than comparison of policy and the standards. He suggested that a report which speaks more to the situation on the ground, than a comparison of the Correctional Services Act and the SMRs. This would bring the Committee closer to where real matters lie.
Prof C Msimang (IFP) said his concern was of a more general nature. The first set of submissions went beyond DCS, touching on torture which is the responsibility of SAPS and the Department of Justice and Constitutional Development. He felt that South Africa had come a long way from the situation during apartheid. The government has been serious about reform, beyond simply changing the term prison for correctional centre or prisoner for inmate, but was really a thorough reform. Listening to the compliance with international standards, one can almost say everything is there and South Africa is complying. His concern was why the war is not being won. In the 1980s the relations between communities and police had deteriorated to the worst levels. Since 1994, improvements were seen and the police were seen as the friends of the community. All of this is being lost and where did government go wrong. There seems to be a lot of torture and violence; with arson, assault and murders in correctional centres. At times he felt the problem was training, with officials not being adequately trained. Something has gone wrong, because despite all the improvements regarding diet and healthcare, inmates are still assaulting and killing each other. How will rehabilitation succeed, because at present it seems that the war will be lost?
The Chairperson said from the look of things it seems that DCS needs time to respond to the concerns. For now the urgent matters could be spoken to, for example a report is urgently required on fatalities in prisons. Further, more information needs to be acquired from CSPRI, so that the response can be tailored to the concern. It also needs to be known how many people who are mentally ill people are in prison and what the plan is to correct the situation. There was also a submission which stated that it looks like DCS personnel are not trained on preventing and combating torture. This should be looked at to see whether the SMR require such training. DCS should asses the readiness and come up with a plan for the Department to be in a position to comply. Further matters which require urgent responses include categorisation, the regular provision of meals, the gratuity amount paid to inmates and the privilege system which goes hand in hand with categorisation. Further, whether there are prisoners which receive special treatment or attention and what this is. Lastly, the prevalence of degrading treatment and how prisoners are disciplined. Her take was that the process of writing UN reports needs to be followed, so that if the responsible department is not doing it DCS can advise accordingly and provide information to enable the country to comply with reporting requirements. This report would also be comprehensive and not simply focus on the issues raised.
Mr Smalberger said the direction being given will assist to provide a comprehensive report to the Committee. However, there are certain things such as the allegation of nine year old in a correctional facility which require detailed information such as who the child is and at what correctional facility they were found. In terms of the law, this is not allowed to happen. If some comments are generalised then a perception is created which may be completely off the mark. It would be better to respond properly rather than from the hip. Although some matters could be responded, perhaps this would go against the Chairperson’s directive. Further, DCS could add general comments on the two submissions to provide for future engagement. On the UN reports which are due, DCS does provide reports to the responsible departments and this can also be reported on in the response. Further, DCS could elaborate more on its role regarding the SMRs.
The Chairperson said if matters can be spoken to now, which will reduce what is in the written response. She felt that when it comes to statistics, this information cannot be given off hand. However, the Department was welcome to respond presently and later on the rest of the information.
Ms Vuyelwa Mlomo-Ndlovu, DCS Deputy Commissioner: Remand Operations Management, said she would prefer to follow the approach suggested. She wanted to say that a woman from South America, at the session on the revision of the SMRs, had indicated that her country was only eight months into the implementation of the SMRs which were more than 50 years old. This made her realise that South Africa is overcritical of itself, if there are countries which are only eight months into implementation. The driver for the SMRs is resources and finances; this led to the Mandela Rules being non-binding. This was required, because some countries did not want to be measured against first world standards as their resources could not compare to that of the first world.
The Chairperson said concrete evidence must be put forward to DCS on allegations made about the nine year old in prison. If civil society is to work together with DCS then all allegations of what is wrong in prisons must be based on facts, because this will aid the Department in making the necessary interventions.
Mr Mthethwa replied on torture, saying the background has been given and the details would be provided in writing. He confirmed that after the promulgation of the CBTA, DCS began training its members on this Act. Every year more officials are trained and the team is currently training in Kwa-Zulu Natal.
The Chairperson said the report ought to include information on the total number of officials trained and at how many centres, so that a sense of the capacity being built can be gauged.
Mr Muntingh said if there are any matters which DCS requires clarification from CSPRI’s submission, it is welcome to contact him. Further, that CSPRI is fundamentally there to assist the Department with the implementation of its mandate.
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