Programme director
Regional Commissioner
Inspecting Judge, Honourable Judge Van Zyl
Mayor Mlangeni
Area Commissioner
Senior Managers from the KwaZulu-Natal region
Representatives from government officials
Partners and Civil Society
Ladies and gentlemen
Introduction
It is an honour for me to be a part of this important dialogue and exchange whereby we can examine the role of the Judicial Inspectorate and its functions as an oversight mechanism for Correctional Services. Another important aim of this event is to look at the how we inculcate a culture of Human Rights within our centres in particular those that house our Youth Offenders, such as Ekuseni.
The judicial inspectorate
During the budget vote debate, I stated that experience has shown there is always potential for abuse within the Correctional Service and that the work of the office of the judicial inspectorate is critical. I will not belabour the point on the functions and the policy imperative of the establishment of the Inspectorate as the honourable Judge van Zyl has already addressed this issue.
What does need to be re-iterated and is evidenced through this gathering is the fact that the Department of Correctional Services is continuing in its path which is aimed at promoting and giving effect to the constitutional values of transparency, equality and fairness.
On 1 October 2009 Sections 60 to 67 of the Correctional Services Amendment Act 25 of 2008 were put into operation by proclamation in the Government Gazette. These particular sections are aimed at strengthening independence of the judicial inspectorate and at expanding the powers of the inspecting judge. Heads of Correctional Centres are therefore compelled by law to report instances of the “use of force” to the Inspecting Judge against any decision concerning their segregation.
The concept of solitary confinement associated with the inhumane practice of detaining inmates in isolation for extended periods of time has been removed. Additionally, the inspecting judge also has the power to refer matters of parole, including medical parole to the Parole Review Board.
As Deputy Minister of Correctional Services, I remain in regular contact with the office of the Inspecting Judge and as such the Judge has informed me of his priorities for the current financial year, namely:
- Giving effect to the recent amendments of the Correctional Services Act 111 of 1998
- Focusing on the natural and unnatural deaths of detained inmates
- Strengthening visitor’s committees
- Continuing with the Inspectorates efforts to address overcrowding in our correctional centres
As a collective we need to support to the judge by responding timeously to the reports that his office submits on assault on unnatural deaths, rape, and gangsterism.
In practical terms, we can add support by ensuring the following:
- Independent visitors are monitored and provided access
- Access is granted and visits from the judicial inspectorate are facilitated by the officials
- Immediate action is taken to address concerns raised from the reports of the judicial inspectorate
- Offenders are made aware of their rights to speak with the office of the judicial inspectorate without intimidation or fear of retaliation
Human rights in context
“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood and sisterhood”. “Everyone has the right to life, liberty and security of person” (Universal Declaration on Human Rights)
How then do we view Human Rights in the context of Correctional Services, which by its very structure acts as a conduit for attaining redress from those who have fallen foul of the law?
We have to have a common understanding of what we mean by Human Rights and for that we look towards the Universal Declaration of Human Rights and how it defines Human Rights.
Human rights defined
Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination.
These rights are all interrelated, interdependent and indivisible. The principle of universality of human rights is the cornerstone of international human rights law. This principle, as first emphasised in the Universal Declaration on Human Rights in 1948, has been reiterated in numerous international human rights conventions, declarations, and resolutions to which South Africa is a signatory. The 1993 Vienna World Conference on Human Rights, for example, noted that it is the duty of States to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems.
The improvement of one right facilitates advancement of the others.
Likewise, the deprivation of one right adversely affects the others.
Human rights and obligations
Human rights entail both rights and obligations. Government assumes obligations and duties under international law to respect, to protect and to fulfill human rights. The obligation to respect means that government must refrain from interfering with or curtailing the enjoyment of human rights.
The obligation to protect requires government to protect individuals and groups against human rights abuses. The obligation to fulfill means that government must take positive action to facilitate the enjoyment of basic human rights.
Human rights are given clear prominence in the South African Constitution. They feature in the preamble with its stated intention of establishing "a society based on democratic values, social justice and fundamental human rights".
At the individual level, while we are entitled to our human rights, we should also respect the human rights of others.
Finding a balance between victim and offender rights
Tata Madiba in a speech delivered at the Launch of the Retraining Human Rights Project for DCS officials in Kroonstad in 1998, remarked: “The way that a society treats its prisoners is one of the sharpest reflections of its character.”
As Correctional Services, we face the challenge of finding a balance between victims’ and offenders’ rights. Although our priority is in correcting offending behaviour, in order to ensure that rehabilitation takes place and thereby decreasing instances of recidivism; it is our hope that when offenders are released back into society they will be productive and responsible citizens.
South Africa has adopted a Victims’ Charter which has helped us consolidate the legal framework relating to the rights of and services provided to the victims of crime. This shift in favour of victims was brought about by the realisation that crime is more than just an offence against the state, but it is also an injury against persons.
Studies reflect and indeed are correct when they make the assertion that the process of democratic transformation in South Africa has posed major challenges to us as a department. The emergence of a Bill of Fundamental Rights has raised serious questions about traditional notions of punishment under severe conditions.
There is disconnection between public perception and the reality of prison life. For the general public, prison life remains a mystery with some viewing prison life as too comfortable for inmates and calling for tougher measures in prisons to deter crime.
Continuing to quote from a study by Chris Gifford and Amanda Dissel on Transforming Correctional Services, it would be far more sensible in the long term to be "smart about crime". Being "tough" may make the public feel better about the government's efforts, but this ideology negates the paradigm shift as evidenced in the Correctional Services Amendment Act (25 of 2008) and the corresponding White Paper that compels us to move from punitive to corrective institutions in-line with our democratic dispensation and value for the rights of mankind.
The department is not immune to the frustrations felt by our citizens and their need for us as the Justice and Crime Prevention Cluster (JCPS) to take stronger measures to address the scourge of violent crime in our communities; however we are also cognizant of the violent violations currently taking place within our centres against both offenders and correctional service staff.
We have to remember that, most of our members were trained under the old apartheid system in which the emphasis was on military type training and security. Very little attention was given to offenders at all, and correctional officials were not taught to interact with prisoners, let alone assist in their rehabilitation or development.
This is not attempt of excusing ill-discipline and human rights violations, which are unacceptable. It is imperative that our policies resonate within each member of Correctional Service fraternity and a commitment made to approach our work with integrity and accountability.
The mentally ill
What is of particular concern, and is a subject close to my heart is the way in which our centres address the issue of offenders who are mentally ill.
Our department has taken the initiative by undertaking research into the nature and cause of violent crime in our society and whilst we cannot make definitive statements on the connection between an offenders psychological well being and their propensity to commit crime; we can note that of those in our care who commit crime, some do suffer from un- or mis-diagnosed mental illnesses.
How then we do we manage to inculcate human rights and ensure protection for not only our offenders but our mental health staff with the daunting task of overseeing the care of these offenders?
There are several human rights concepts which are particularly important for mental health professionals who work in prisons: human dignity, the right to rehabilitation, the right to the highest attainable standard of health, and the right to freedom from torture or abuse.
Article 10 of the International Covenant on Civil and Political Rights (ICCPR), states that persons deprived of their liberty "shall be treated with humanity and with respect for the inherent dignity of the human person."
The first of the eleven principles in the United Nation's (UN) Basic Principles for the Treatment of Prisoners states: All prisoners shall be treated with the respect due to their inherent dignity and value as human beings." Respect for the dignity of patients is, of course, also central to medical ethics. For example, the code of ethics of the World Medical Association states that physicians shall be "dedicated to providing competent medical service with compassion and respect for human dignity."
Human rights principles thus mandate a positive goal for corrections, something beyond punishment through the deprivation of liberty. A rights-compliant prison cannot be focused solely on security and safety even though these are necessary components of a well-run prison, the period of incarceration should prepare prisoners for successful re-entry into society.
As stated in the UN approved Standard Minimum Rules for the Treatment of Prisoners (the "SMR"), "the purpose and justification of a sentence of imprisonment is ultimately to protect society against crime. This result can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his or her return to society the offender is not only willing but able to lead a law-abiding and self supporting life [the treatment of prisoners] shall be such as will encourage their self-respect and develop their sense of responsibility."
The right of prisoners to receive mental health services and the concomitant obligation of prisons to provide such services is also inherent in the right to health, one of the many rights which prisoners do not leave behind at the prison gates.
We have to take specific steps to protect and promote health by instituting measures and providing facilities, to meet health needs and by protecting people from unhealthy or dangerous conditions. Health care services should be available, accessible, acceptable, and of appropriate and good quality, provided by trained medical and professional personnel.
The failure to provide appropriate mental health services not only violates human dignity, the right to health and the rights of the disabled, it may also amount to prohibited cruelty.
Our youth
Children and Youth who are incarcerated are also vulnerable and face many challenges. According to the Special Rapporteur of the Human Rights Council on torture, Manfred Nowak, submitted in accordance with General Assembly resolution 63/166 an interim report (A/64/215 and Corr. 1): “Twenty years after the adoption of the Convention on the Rights of the Child, and in spite of the many voices defending the rights of children, children remain particularly vulnerable in detention; according to cautious estimates, currently more than one million children are deprived of their liberty and held in police stations, pretrial facilities, prisons, closed children’s homes and similar places of detention.”
The vast majority of these children are accused of or sentenced for minor offences; contrary to popular belief, only a small fraction is held in relation to a violent crime. Most of them are first-time offenders.
A significant part of the abuse of child detainees is inflicted by other detainees, mainly by adults but also by other children. The forms of abuse can be verbal and psychological but also physical, including rape.
According to research, the reasons for inter-prisoner violence can be competition for scarce resources or factual delegation of powers to privileged detainees by the authorities. The lack of separation was particularly disturbing with regard to police custody and pretrial detention, stages in which children found themselves in an environment characterised by tension, fear, abuse and violence.”
Where to from here
Our department has a responsibility to create an environment where rehabilitation and development can take place. It is also our shared responsibility to ensure our most vulnerable, the mentally ill, children and women are treated with respect and dignity.
Women’s rights should be defended by all proponents of peace and security. Some of you are incarcerated for sexual crimes and other forms of domestic violence. I urge you to make use of the programmes and time you have available in our care to reflect, learn and grow from your past mistakes and teach your fellow inmates the values of respect for human dignity for all.
In realising the inherent human dignity of all, we also expect our officials to ensure that they use the FIFA World Cup 2010 spirit to accelerate interest in sport. Through sport, they must teach inmates certain values and principles, including teamwork, cooperation, discipline and tolerance.
The full contribution which our prisons can make towards a permanent reduction in the country's crime-rate lies also in the way in which they treat prisoners. We cannot emphasise enough the importance of both professionalism within the correctional services staff and respect for human rights.
In closing, I will quote from Tata Mandela’s visionary and apt statement from 1998 which still holds true in this moment, in this time that, “ if our prisons are to become places of rehabilitation we need to equip the men and women who work in them to do the job professionally and effectively. We need to ensure that prisoners as well as correctional officials have an understanding of human rights and of their respective responsibilities.”
It is my sincerest hope that the words that we have shared here today will inspire us to be more innovative in the way in which we operationalise these concepts.
I thank you.Source: Department of Correctional Services
