28 November 2022
Currently the Judicial Inspectorate for prisons is too beholden to the Department of Correctional Services, argues Judge Edwin Cameron. Illustration: Lisa Nelson
After 27 years in apartheid’s prisons, Nelson Mandela emerged free, the world’s most famous prisoner. He never forgot others who, like him, suffer imprisonment. One practical innovation he bequeathed was a commitment to a radically new vision of prisons and how we treat prisoners.
Our new democracy’s leaders – many of them former inmates – understood that apartheid’s prisons enforced a brutal, discriminatory system. By contrast, our democratic aspirations embraced human rights and dignity for everyone – including arrested and detained persons.
The new dispensation explicitly guaranteed incarcerated people all rights – except where justifiably limited. Most particularly, the new Bill of Rights promised all detained people conditions of detention “consistent with human dignity”.
In accord with this, Mandela’s Parliament enacted the Correctional Services Act (CSA) in place of apartheid’s prisons statute. The CSA guaranteed rights and obligations, minimum standards of detention, parole processes and community corrections – plus accountability and oversight.
Its brightest innovation was the creation of the Judicial Inspectorate for Correctional Services (JICS). Unlike many prison inspectorates abroad, which are headed by medium-level functionaries, JICS would have a judge at its head, insulating its independence. It was supposed to make a difference.
JICS’s job is to inspect, investigate, report and make recommendations on conditions in correctional centres and the treatment of inmates.
The statute gives JICS a broad mandate plus specific powers. JICS can enter any correctional centre, interview all staff and any inmate, facilitate the resolution of complaints, and cast a searchlight on the darkest corners of the carceral system.
Despite our history, and great legislative promise, JICS has not transformed South Africa’s prisons.
As JICS’s reports repeatedly record, they are overcrowded, dilapidated, and dangerous. The great majority inside are not offered a chance of meaningful rehabilitation. Many are plunged into a culture of violence and gangsterism, which squeezes out the chance for reform and reintegration on release.
Most unsettling of all is this: there is a nearly-unbroken line connecting prisons of the apartheid era with those of our democracy.
Apartheid disproportionately locked up men of colour: in democratic South Africa, we still do. Despite efforts at reform, South Africa’s prison population is overwhelmingly black and coloured. We have – by far – the highest number of people in prison anywhere in Africa – and the twelfth highest in the world. It is a lamentable situation.
Worse, serious human rights violations are rampant in our prisons – and they are significantly underreported.
Why have conditions in our prisons failed so many promising intentions?
JICS was created in democracy’s birth-years – but this was the very time that Parliament embraced a misbegotten tough-on-crime-and-criminals approach. Why? Because so many people were increasingly spooked by violent crime.
And the new approach was no home-grown mistake – tough-on-crime was swallowed whole, including Clinton’s America and Blair’s United Kingdom.
Yet this approach has proved disastrous. Overlong prison terms, enforced by minimum sentencing laws, are useless while the Zuma Presidency left crime intelligence, policing, the National Prosecuting Authority (NPA) and the entire criminal justice system in tatters.
Over the longer term, there has been no meaningful abatement of crime.
Instead, this wrong turn diverted us from finding effective solutions – which should be to tackle the agonising but imperative task of rebuilding our criminal justice system from bottom up.
And it has squeezed our struggling prison system breathless. We do not have the resources or personnel to provide dignified conditions and an ear to more than 150,000 inmates and over 28,000 officials.
What can JICS’s oversight achieve here? Quite a lot – but not nearly enough.
JICS has consistently highlighted the errors of South Africa’s carceral policy. It urges that whenever possible we should veer back from the disastrous route we embarked on a quarter-century ago.
But JICS’s legislative framework hampers its power to intervene practically. The statute does not provide JICS with the clout or the autonomy it needs to secure change.
The CSA, enacted 24 years ago, stipulates that JICS is an independent office under the control of the Inspecting Judge. Despite this, JICS is part of the Department of Correctional Services (DCS). And its funding depends on the very department it oversees.
In the past, the department – no doubt for reasons it thought compelling – subjected JICS to unilateral budget cuts, squeezing it out of funds for essential staff and crucial assets; amongst these: investigators and independent correctional centre visitors.
On top of this, although the statute grants JICS powers – to report, inspect, investigate and recommend – what these leave out is more telling.
JICS has no binding powers – no operational control, no policy-making power or executive hold over the department. It has no power to recommend parole, or to fix creaking parole processes; no power to grant transfers, to discipline or transfer miscreant officials, to make binding recommendations or to enforce them – in short, no power to follow through on serious adverse findings.
Even in grave matters of death, assault and torture, JICS’s reach is stunted without the backing of the police and the NPA. And so far, this has been lacking.
More ominously, our investigations are stonewalled by officials who are implicated in or who have witnessed terrible violence and abuse. (This resistance is not unique to South Africa.)
To its credit, DCS is on record that it treats JICS’s recommendations as binding – but, in practice, there are sad deficiencies.
Does this make JICS a watchdog without teeth? Not entirely. But it doesn’t have enough teeth to make a real difference.
Understandably, many frustrated inmates and loved ones who seek our assistance question JICS’s commitment.
Yet hope lies ahead. A new statute, shortly to reach Parliament, remedies much of this.
In December 2020 the Constitutional Court in Sonke Gender Justice v President struck down CSA provisions that subordinated JICS to DCS. The court held that the Constitution, read with South Africa’s binding international law commitments, requires the government to ensure JICS has enough structural and operational independence to shield it from undue political interference.
Those autonomy guarantees must be strong enough that the public and inmates also perceive it as independent.
The court found the impugned provisions did not meet this standard. Instead, the very department over which JICS must exercise oversight controlled its budget – meaning DCS could “financially starve” JICS.
The court gave Parliament two years to fix the defect.
Since then, JICS, working along with DCS and others, has striven to finalise amendments to the CSA as well as crafting a new, standalone, JICS Bill.
Together, these will ensure that JICS is distinct from the department it oversees. Most critically, Parliament rather than the department will determine JICS’s budget.
In addition, the Bill will expand what DCS must report to JICS (deaths, use of force and manacles, segrations); in future, sexual assaults, torture and other cruel, inhuman and degrading treatment will also have to be reported. And, if DCS rejects a JICS recommendation, it must explain why.
Unfortunately, late this year statutory reform ran aground. In particular, National Treasury was loath to approve the funding JICS needed to sever its ties with the department.
This meant that the court’s deadline of 3 December 2022 could not be met. The court after strong submissions recently granted a 12-month extension to get the job done.
There is hope that the year’s breathing space will see Treasury stump up the funding necessary to make JICS autonomous, with the powers it needs to do its duty.
JICS’s commitment to Mandela’s vision for prisons and prisoners has never wavered. A year from now, we hope we might say that we are closer to making that vision real.
Views expressed are not necessarily GroundUp’s.