Programme Director
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Ladies and gentlemen.
On behalf of the Department of Correctional Services, thank you for your keen interest in the discipline of corrections and for inviting us to participate in this lecture on Restorative Justice and the Victim-Offender Dialogue Programme.
The Department of Correctional Services operates within the realms of Chapter 2 of the Constitution of the Republic of South Africa. Section 35(2) provides for the rights of arrested, detained and accused people. To give effect to the Constitution, the Correctional Services Act, Act 111 of 1998, was passed by Parliament. The Act also recognises the core values of our Constitution, as expressed in the Bill of Rights, and the relevance of international aspects in correctional matters.
The objects of the Act include:
- To provide for a correctional system;
- The establishment, functions and control of the department, including the custody of all offenders under conditions of human dignity;
- The rights, and obligations, of offenders; and
- The broad practices of the Human Rights Culture that South Africa has adopted over many years.
On 26 June 1955, those opposed to the harsh inhumane policies, and legislation, of the apartheid system, met in Kliptown, near Soweto, and officially adopted the Freedom Charter. The people had adopted, among others, a clause that stipulated: “Imprisonment shall be only for serious crimes against the people, and shall aim at re-education, not vengeance.”
Much of the atmosphere within which South Africa’s current system of corrections is run, and regulated, is based on this statement from the Freedom Charter. Corrections is conducted within a regulatory framework, which calls for this department to contribute to maintaining, and protecting, a just, peaceful and safe society.
According to Statistics South Africa, as per the 2013 mid-year population estimates, the population is expected to have grown from just under 51.8 million in 2011 to an estimated 52,981,991 next month. Of this, on average, about 153,000 people are incarcerated. These are mostly Black males, most of whom are young people in the prime of their lives.
International research shows that, at least, 95% of incarcerated people will return to society after serving their sentence. The question is, do they return better or worse? There is general consensus that the world wants to see released offenders returning as better, changed and law-abiding citizens. This, however, cannot be fulfilled on its own.
When punishment is meted out to an offender, through a sentence handed down at the conclusion of a trial by the courts, it is, usually, to fulfill one, some or all of the following justifications:
- Retribution, which is vengeance;
- Deterrence, which aims at sending out a message to others contemplating offending;
- Incapacitation, which aims at taking away the potential of the offender to commit more crimes by locking him or her away; or
- Rehabilitation, which includes reforming, re-educating and restoring the offender to the state he, or she, was in before offending or, if not, even better.
South Africa, in implementing its correctional system, has chosen both incapacitation and rehabilitation as instruments to ensure a just, peaceful and safe society. In their analysis of the British Penal System, Michael Cavadino, and James Dignan (2007), states that, in 2006, the British correctional system faced a crisis because of irregular release of offenders and overcrowding. The authors went on to give what they called the orthodox account of penal system crisis as having the following elements:
- The high prison population and overcrowding;
- Bad conditions in prisons, for both officials and offenders;
- Understaffing, and unrest among staff;
- Poor security;
- The toxic mix of long-term, life-serving and mentally disturbed inmates; and
- Riots and other breakdowns of control over prisons.
The authors attribute the idea of the orthodox account of the crisis in the penal system to headlines in mass media.
They go on to corroborate various sources, and conclude that the orthodox account, as per mass media, is ignoring the following aspects of the crisis:
- The crisis of Penology resources which boils down to the costs of locking up, and catering for, large numbers of inmates in the context of overcrowding. Correctional services resources, from the fiscus, are always allocated within an atmosphere of competing needs of the state and society.
- The Crisis of Visibility which is based on a reality that correctional services are almost always obscure from outside, leaving the public wondering about what goes on inside.
- The ideological crisis of legitimacy which, as the authors’ state, sees the penal system as wielding power over its subjects which power is almost always contested. Author Tony Bottoms (1980) attributes the crisis of legitimacy to the failure of rehabilitation of offenders, and a growing sense of feeling that some of the internal practices within the system do not promote a just course. The authors conclude that the general public, however, tend to think that the penal system is lax, lenient and promotes insecurity.
Although this study was conducted in England and Wales, it is an international benchmark that is useful to us as we ponder over the current status, and future, of our own penal system. In South Africa, the penal system competes with other social needs such as education, health, social development, human settlements as well as a public opinion which burdens it with perceptions of illegitimacy based, to some extent, on invisibility from the public perspectives and inability to self- explain.
Currently, the Department of Correctional services employs 40,207 staff with 1,704 vacancies. This equates to a total workforce of 41,911 to a client base of 153,000. We need partnerships to address our obligations adequately. Our total budget for the current financial year is just under R19 billion.
We have chosen the route of corrections, through rehabilitative interventions, in order to address some of the issues raised by Michael Cavadino, James Dignan as well as Tony Bottom’s decrying of the failure of rehabilitation, as leading to the crisis of legitimacy of the system, because they have a universal appeal.
Rehabilitation seeks to reduce crime, by changing the behaviour of the offender. According to rehabilitation experts, Cavadino and Dignan (2007), rehabilitation seeks to improve character, and behaviour, of the offending individual so that he, or she, becomes less likely to re-offend in future. There is a view that rehabilitation is conceptually removed from punishment. Some theorists view rehabilitation as a form of avoiding punishment. Those seeking retribution often argue in this way. However, in the context of advancing a human rights culture such as we do in South Africa, rehabilitation becomes suitable, as a humanitarian response, to wrong doing. It should also be noted that not all offending behaviour is a consequence of deliberate action by the offender. According to Rotman (1990), rehabilitation is a general goal, informed by a chosen set of practices, loaded in process format.
The aim of rehabilitation is to facilitate offender re-entry, and re-integration, into society. It is a form of redemption. A rehabilitated offender is a restored person who re-enters society as a normal person, displaying behavioural changes towards generally accepted human behaviour and a law-abiding citizen.
There are two critical approaches to penology, which define how a state chooses to conduct its correctional system. These are the classical, and the positivist, approaches to criminology. The classical approach, which is rooted in 18th century Europe, sees offending behaviour as a consequence of choice by the offender. It makes the offender to bear full responsibility for his or her actions, and justifies retribution. On the other hand, the positivist approach attributes a collection of factors to offending behavior including poverty, mental state, peer pressure, social deprivation and other circumstantial factors. The positivist approach makes an obligation for society to be part of the offender rehabilitation interventions. According to this approach, the offender equally has a right to expect society to help him, or her, to move out of offending especially where social inaction, omission or commission can be linked to offending behaviour of its individuals. To meet this expectation and obligation, Rotman (1990) states that correctional facilities must provide educational opportunities, skills and vocational training as well as psychological, and social, treatment for offenders.
A rehabilitated offender is a product of utilitarian philosophy, which has its origins in the 18th century, and has a base line that says: "An action is ethically or morally right if it produces greatest happiness for many.” The transformation of offenders into law-abiding members of the community serves the interests of society. It is, therefore, both ethically and morally right. The correctional system can address the perceived crisis of legitimacy by maximizing on the rehabilitation of offenders.
A broad coalition of role-players, consisting of correctional officials, victims of crime, offenders and social institutions including universities, NGOs and CBOs, is an essential model that stands to give effect, and meaning, to maintaining, and protecting, a just, peaceful and safe society through offender rehabilitation. Our current offender rehabilitation interventions include, but are not limited to, workshops and agriculture where offenders manufacture, and produce, products to address the self-sufficiency needs of the department. As per legislation, arts, culture, sport and recreation, as well as professional programmes through education, psychological services, social work services, religion and restorative justice, are also in place.
To give meaning, and contemporary effect, to restorative justice, we have introduced Victim Offender Dialogues (VODs) and the Reading for Redemption programme. Victim-Offender Dialogues, and Reading for Redemption, are rehabilitation interventions aimed at changing the behaviour of the offender with a view to preventing re-offending. VODs was introduced to address the need for the trilogy of the victim of crime, the community stakeholders and the offender to face each other with a view to building safe, and secure, communities. This is a developmental project in a developmental state. We have urged correctional officials to maintain visibility in communities, by promoting Victim-Offender Dialogues. A VOD is part of the broad field of Restorative Justice.
According to Zehr (1990), Restorative Justice is motivated by the following factors:
- Crime is a violation of people and relationships;
- Crime creates obligations to make things right;
- Justice involves the victim, the offender, and the community; and
- Justice seeks solutions which promote repair, reconciliation, and reassurance.
A successful VOD must lead to the victim understanding how, why, when and by whom was the crime committed. It must result in the offender understanding the material, and emotional, harm caused by the crime, and seeks ways to repair that harm through, inter-alia, sincere apology. Both the victim, and offender, must be healed by the dialogue. The dialogue must be cathartic, frank, honest and sincere, and lead to closure. The dialogue, when taken to a public platform, must be of educational value to the public.
According to Lois Gold (1993), the healing paradigm of the Victim-Offender Dialogue must have Humanistic Value (Ubuntu). It must have some of the following characteristics:
- Caring, non-judgmental acceptance of the paradigm of the Victim-Offender Dialogue must have a humanistic value (Ubuntu);
- Building support and emotional connection;
- Generating hope;
- Talking from the heart;
- Being real; and
- Creating a sense of safety.
Reading for Redemption is motivated by the universal understanding that reading shapes character, while expanding the intellectual, emotional and material horizons of the reader. Reading also leads to adoption of new perspectives about things, and the pattern of things, and instills a sense of self-confidence, identity and knowledge through information. Anyone who reads, even daily newspapers, remains better informed and can make informed decisions than the one who does not read at all. Literacy immobility is believed to be one of the major causes of offending. In a study conducted in the United States, Lior Gideon notes that, on average, the generic offender profile, in the United States of America, shows that:
- Some 31% of offenders were unemployed before arrest;
- 40% are functionally illiterate;
- 19% are illiterate; and
- Some 13% have some type of mental health problems.
Being poorly educated, lacking vocational skills, struggling with drug and alcohol abuse and suffering from some form of mental disorder, seem to be common trends in literature on offender profiling. The introduction of reading, as a rehabilitating tool, is, therefore, not out of line with the general profile of the offender population in most parts of the world. In South Africa, the profiles are no different. Creating a love for reading is one of the sure ways of upgrading the offender skills base. In turn, offenders, who participate in Reading for Redemption and other similar programmes, are less likely to re-offend.
Rehabilitation is a process of restoration, which entails assisting the individual offender to get back to his, or her, normal self in preparation for re-entry into society.
Overcrowding is defined as one of the crisis factors of the penal system. South Africa is among the top 10 (ranked 9th) countries in the world, in terms of total prison population. On the African continent, our country has the highest number of prisoners. When the prison population of each country is analysed, against national population of 100,000 people, the country with the highest prison population is the United States of America, followed by China, the Russian Federation and Brazil.
The top five countries, with the highest number of prisoners, in Africa are (descending order) Seychelles, Rwanda, Swaziland, South Africa and Botswana. South Africa’s rate of incarceration is 38th in the world (as per latest update in 2011). One of the inherent characteristics of South Africa’s high rate of incarceration is overcrowding, which is not unique to us.
During apartheid, South Africa maintained some of the highest rates of incarceration in the world (14th in the world). This was complicated by the apartheid system’s own invention of unique racial crimes, and criminalisation of political dissent and opposition. As a result of this racial outlook to the criminal justice system, apartheid was incarcerating Black males at the rate of 851 per 100,000 population. The incarceration was characterised by harsh long-term sentencing, often predicated by equally long periods of pre-trial detention.
In terms of the latest world ranking in relation to occupancy rates, South Africa is in 64th place and, on the African continent, in 25th place. The ranking is based on figures as at 31 August 2011. On this date, the average number of inmates was 157,375 and the approved bed space was 118,154. This translates to occupancy of 133,2%.
According to the White Paper on Corrections, overcrowding can be traced back to the early 1900’s when the prison system was regulated mainly by various provincial ordinances. The inflated population was related to transgression of the Pass Laws, and other apartheid laws.
In 1984, the driver of overcrowding, according to the Judicial Inquiry into the structure and functioning of the courts, was the incarceration of prisoners as a result of influx control measures. In 1985, the key driver was the mass detention of political prisoners as a result of the State of Emergency.
There is a plethora of literature on the possible causes of a dramatic rise in prison populations, even in the most democratic nations. Technically, these increases can be described as being a consequence of justice sending more people to prisons, perhaps, in response to popular demands. The Correctional Services Act, and its regulations, requires the following in terms of accommodation:
- Cell accommodation must have sufficient floor, and cubic, space to enable the inmate to move freely and sleep comfortably;
- All accommodation must be ventilated according to regulations;
- Cells must be sufficiently lighted by natural, and artificial, light;
- There must be sufficient ablution facilities, including hot, and cold, water; and
- Each inmate must have his/her own separate bed.
The minimum permissible cell area per prisoner, excluding areas taken up by ablution facilities, walls and lockers (not built-in), must be 3,344 square metres in the communal cell and 5,5 square metres in the single cell. A multi-pronged approach is required in dealing with overcrowding. Offender rehabilitation, which reduces the chances to re-offend, is one of the most recommended interventions.
In the United States of America, the Second Chance Act was adopted in 2007. The Second Chance Act provides a number of grants, over a two year period, to state and local governments in order to:
- Promote the safe, and successful, reintegration of offenders into the community upon their release;
- Provide employment services, substance abuse treatment, housing, family programming, mentoring, victim services, and methods to improve release and revocation;
- Provide mentoring services to adult, and juvenile, offenders;
- Implement family-based treatment programmes for incarcerated parents who have minor children;
- Provide guidance to the Bureau of Prisons for enhanced re-entry planning procedures; and
- Provide information on health, employment, personal finance, release requirements and community resources.
The Act was motivated by research that found that two-thirds of released inmates are expected to be re-arrested for a felony, or serious misdemeanor, within three years of release. Such high recidivism rates translate into thousands of new crimes each year.
Internationally, the needs, and rights, of victims were recognised, and addressed, through, amongst others, the adoption, on 29 November 1985 by the General Assembly of, the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. South Africa is a signatory to this convention. The Declaration is based on the philosophy that victims should be adequately recognised, and treated with respect for their dignity. Victims are entitled to access to the mechanisms of justice, and prompt redress for the harm, and loss, suffered. They are also entitled to receive adequate specialised assistance in dealing with emotional trauma, and other problems, caused by the impact of victimisation.
Other international instruments include the United Nations Convention on the Elimination of all forms of Violence against Women (CEDAW), the Convention on the Rights of Children as well as the SADC Declaration on Gender and Development Addendum on Prevention and Eradication of Violence against Women and Children.
The role of the Department of Correctional Services is limited to marketing and lobbying, as sentencing remains the sole responsibility of the Judiciary. Correctional Services does not have control over the options on non-custodial sentencing. The role of the Department of Correctional Services is to supervise offenders sentenced to community service, including parolees and probationers. The department also provides pre-sentence reports when requested. Both the Victim-Offender Dialogues and Reading for Redemption require professional facilitation in order to succeed.
The University of KwaZulu-Natal is well positioned to train, and produce, the critical mass of human resources skilled in the facilitation of Victim-Offender Dialogue sessions that will be beneficial to victims, offenders and the community. It is in this context that a Memorandum of Understanding will be signed between this University and the Department of Correctional Services.
It is both ethically, and morally, correct for the offender population to be transformed into law-abiding members of the community through this partnership.
Thank you.
