Children & Youth in Prison: SA Human Rights Commission briefing

Meeting report

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
7 September 2004
CHILDREN AND YOUTH IN PRISON: SA HUMAN RIGHTS COMMISSION BRIEFING

Chairperson:

South African Human Rights Commission briefing

SUMMARY
Ms C McClain-Nhlapo presented a briefing on the protection of human rights in prisons, stating that progress had been hopelessly inadequate. The Committee questioned the Commissioner, particularly about juveniles in prisons. Members agreed that juveniles had the right to be kept in places of safety, but these were not available. Immediate measures such as officials using their discretion to keep juveniles out of prison, would have to be implemented.

MINUTES

South African Human Rights Commission briefing
Ms C McClain-Nhlapo, Commissioner presented a brief history of Human Rights in South Africa stating that as early as October 1993 Dullah Omar highlighted the problem of overcrowding in prisons and stated that no child should be held in prison. She admitted that South Africa had failed dismally in ensuring Human Rights are protected in prison, as overcrowding is over 200 percent in prisons. Problems of hygiene, inadequate medical care and rape occurred in prison. The problems were aggravated by the lack of resources, the lack of interdepartmental coordination approach and non-adherence to the Child Justice Bill. There had however been progress in some areas.

Discussion
Mr J Selfe (DA) asked what would be required to in order for officials to implement these Human Rights policies. He asked also what the most appropriate way would be to intervene in a coordinated way to get to the root of the problem and therefore the protection of Human Rights?

Ms C McClain-Nhlapo answered that transformation would be required to allow people to exercise clear policy as current conditions would not be conducive to implementing recommended policy. She stated also that changes would have to be made on a micro-level and therefore litigation was not the answer. She suggested that individual officials should be held accountable where Human Rights violations occurred and that a designated researcher be assigned to deal exclusively with this issue.

Mr E Xolo (ANC) asked what would have to be done to see justice implemented. He asked also if the Department of Health should be involved considering the poor hygienic conditions of prisons. He expressed concern with the lack of educational facilities for awaiting trial juveniles?

Ms McClain-Nhlapo answered that investigating officials were not doing their duty thus causing blockages in the justice system and suggested that the courts work over weekend to clear backlog's. The Department of Health should play a role, and perhaps a Committee dealing exclusively with children be set up. She also agreed that the lack of educational facilities was a matter of concern.

Mr N Fihla (ANC) stated that the problem of children in prison requires an integrated multi-pronged approach. He stated also that a problem existed with the general awareness of society and that children who are streetwise when released from prison are used by criminals.

Ms McClain-Nhlapo agreed that a multi pronged approach would indeed be required. She stated that success was possible with family conferencing and diversion and that the agenda was to avoid keeping children in prison.

A Member asked if white juvenile offenders had received preferential treatment by officials.

Ms McClain-Nhlapo answered that preferential treatment did indeed occur and would be dealt with through training.

Mr S Mahote (ANC) suggested that the Committee should be looking at the link between the charge and arrest thus identifying where the Human Rights transgression occurred. He asked if reports mentioned on prison visits were followed up and what should be done to ensured policy implementation.

Ms McClain-Nhlapo agreed that follow ups were required and suggested that officials be re-educated.

Mr Selfe asked if the problems experienced with the department of justice, for example the setting of bail conditions, would be solved if intervention occurred with individual cases.

Ms McClain-Nhlapo reiterated that individual officers would need to be held accountable. She agreed that the issue of bail was a huge issue as children are jailed simply because parents can not afford bail. She stated that these problems boiled down to the issue of accountability as a Magistrate should use their discretion to release the child to parental custody where possible.

Ms Chikunga (ANC) asked if the Legal Aid Board expressed an interest in juvenile cases and asked if children were aware of their Constitutional Rights. She asked also if there was a chance that the state could be sued for violating the rights of juveniles.

Ms McClain-Nhlapo answered that their research had show that many children did not have access to proper legal representation and stated that the current system was not working. She stated that many children were aware of their rights however this would not help child who had no legal means of practising these rights. She answered also that she was surprised that the state was not sued yet.

Bishop L Tolo (ANC) said discrimination was a problem. He asked if the Human Rights Commission would help ensuring that juveniles receive education in jails.

Ms McClain-Nhlapo agreed that discrimination was a problem and that the problem was compound with the fact that no grievance structures existed in jail. She agreed that the statistic of few white youth in jails proved that different raced youth were treated differently. This she agreed was an officer training issue as they were entitled to use their discretion. It would be difficult to provide education to awaiting trial juveniles as it was impossible to predict how long they would be imprisoned.

Mr N Fihla (ANC) stated that perhaps other methods of dealing with juveniles could be used for example bringing together the offender and victim to reconcile. He stated that as re-offenders abuse other youth in prison perhaps only the offenders in serious crimes should be jailed.

Ms McClain-Nhlapo stated that alternative method such as family conferencing and diversion worked very well.

Ms Chikunga asked if long sentenced youth should be separated from youth with shorter sentences.

Ms McClain-Nhlapo stated that policies were in place to integrate long sentence youth into the adult population. It was not economically viable to hold awaiting trial juveniles.

Ms T Tshivhase (ANC) stated that she felt it to be unfair to hold officials responsible in all cases for example were a vehicle was not available for an official to carry out his duty.

Ms McClain-Nhlapo answered that she felt strongly about individual accountability. She agreed that in some cases individual officers should not be held accountable however in the example given above someone should be responsible for the availability of vehicles and therefore someone was accountable.

The Chair agreed that preferential treatment was a serious issue.

Bishop Tolo suggested that a specialised Committee should be formed to deal with juvenile issues and added that some parents were simply not prepared to pay bail. He stated that facilities for disabled prisoners were nonexistent and suggested that professionals be involved.

Ms McClain-Nhlapo agreed and felt too many departments were involved which led to a disjointed approach. Conditions in prisons for disabled prisoners were horrific and added that research on this issue was currently being conducted.

Mr Mahote suggested that because police were trained to arrest criminals and not children perhaps social workers should be present at the point of arrest. Children should never be jailed.

Ms McClain-Nhlapo suggested that officials including the Police and Magistrates needed to be re-educated to use their discretion and that places of safety with adequate facilities should be made available.

Mr Molefe (ANC) asked who would be initiating the interaction referred previously to as action had not visibly been taken.

The Chair answered that the Committee would initiate this interaction as it was a priority to release more juveniles.

Ms Tshivhase stated that she now agrees with the concept of accountability and suggested that the Police and other officials be trained to shorten the jail period of awaiting trial juveniles. It was imperative to prevent first time offenders from becoming 'streetwise' in prisons.

Ms McClain-Nhlapo suggested that a plan of action be formulated towards this end.

The meeting was adjourned.