Keynote Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at a workshop on the Assessment of the Implementation of the Bangkok Rules in South Africa, held at Constitution Hill
Programme Directors, Dr Pakati and Ms Nzimande,
H.E Ambassador Riina Kionka, the European Union Ambassador to the Republic of South Africa,
Mr Abdallah Ounnir, the Chairperson and Rapporteur of the United Nations Subcommittee on the Prevention of Torture,
Prof Lillian Artz of the Gender Health and Research Unit of the University of Cape Town,
Ms Tshepiso Williams from UNISA and member of Inside-Out,
Mr Ben Buckland from the Association for the Prevention of Torture,
The Commissioners and CEO of the South African Human Rights Commission,
Distinguished guests and friends,
Good morning and for those visiting us from other countries, a warm welcome to South Africa.
As you know, 2020 marked the 10th anniversary of the Bangkok Rules – or, as they are formally known, the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders.
The Bangkok Rules complement the United Nations Standard Minimum Rules for the Treatment of Prisoners (or, as they are better-known, the Nelson Mandela Rules) as well as the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules).
The Bangkok Rules cover a wide range of human rights’ aspects and deal with, amongst others, admission procedures, including aspects such as family contact, legal advice and caretaking arrangements for children, hygiene and health care, safety and security, contact with the outside world, classification of inmates, prison visits, reintegration after release, and non-custodial measures for women in conflict with the law and those in detention.
The Bangkok Rules aim for the inclusion of a gender-perspective and the fulfillment of women’s rights in the criminal justice and prison system and guide the development and implementation of appropriate responses to women offenders.
It focuses on gender-specific options for diversionary measures and pre-trial and sentencing alternatives taking account of the history of victimization of many women offenders and their caretaking responsibilities.
In March 2020, the UNODC published a ‘Toolkit on Gender-Responsive Non-Custodial Measures’ which seeks to provide support and guidance on taking steps to ensure that women in conflict with the law are not detained or imprisoned unnecessarily and that detention is used as a measure of last resort, based on the acknowledgment that incarceration can be detrimental to women and their children.
Currently, in South Africa we have a total inmate population of 143 778 in our correctional centres. Of these 3785 are female, which amounts to 2.63% of the inmate population. Of the 3785 female inmates, 1412 are unsentenced and 2373 sentenced.
Studies have shown that the global female prison population is steadily increasing. In South Africa the number of incarcerated females had been declining for three years, until this year.
The total number of female inmates, comprising sentenced, unsentenced and state patients in correctional facilities – decreased from 4316 in 2018/19, to 3982 in 2019/20, 3453 in 2020/21. As mentioned it currently stands at 3785.
The State has a responsibility to care for inmates in a manner that does not violate or compromise their constitutional rights. The Revised Standard Minimum Rules for Treatment of Prisoners (the Nelson Mandela Rules) sets out essential elements that are suitable and adequate in penal institutions housing inmates.
Collectively these rules set out to fulfil the right to health for inmates ensuring their lawful right to access to medical care, timely, medical attention, professional standard of care, preventative health and environmental health.
The White Paper on Corrections states that the primary responsibility of the DCS is, first and foremost to correct the offending behavior, in a secure, safe and humane environment, in order to facilitate the achievement of rehabilitation, and avoidance of recidivism.
There are 243 active correctional centres across South Africa.
Eight are for women only, 13 are for youths and 129 are for men only. A total of 91 accommodate women in a section of the correctional centre.
As mentioned, the number of women in correctional centres is very small in proportion to the overall prison population. There is a very clear understanding and commitment to the fact that female offenders do have unique needs that must be recognized and addressed.
In terms of keeping children in our centres or babies born in our correctional centres, our system allows babies up to the age of two. Measures have been taken to redesign some sections to create crèches and provided recreational facilities. DCS also ensures that babies born in prison do not have that fact noted on their birth registration document. This is all part of Imbeleko project, where 16 Female Correctional Centres had been designed with the Mother and Baby units to accommodate children.
DCS is also working with a number of stakeholders, including other government departments and NGOs, to provide health care services for the prevention of communicable and non-communicable conditions, pregnancy and post-partum care, including referral to specialists, and general promotion of health for women and their babies, including prevention of mother-to-child-HIV transmission, special diets for nursing mothers and children, vaccinations and health education.
Social work services and psychological services are also available internally or through referrals after proper assessments. These stakeholders and NGOs also assist with the alternative placement of babies after leaving correctional facilities at the age of two years, and try to ensure and enable continued contact between the mothers and their children.
Many of you may know that in an attempt to curb the spread of COVID-19 in overcrowded correctional facilities, Government implemented the 2020 COVID-19 Special Parole Dispensation (SPD) for selected low risk offenders who had served their Minimum Detention Period and those who were approaching their minimum detention period in the next five years.
The SPD was announced by the Minister of Justice and Correctional Services in May 2020. The category of low risk sentenced offenders who qualified for the SPD were sentenced offenders who had or would have reached their minimum detention periods within a period of 60 months from 27 April 2020.
With regards to female inmates specifically, it is worth highlighting that the structured release schedule was implemented with the first category of offenders considered for release from correctional centres being mothers with babies, females, children, youth, persons with disabilities and the elderly.
Whilst that is the position in relation to our correctional facilities, what about the rest of the criminal justice system?
And how does it respond to women in detention and those in conflict with the law?
One needs to highlight that the majority of women sentenced to incarceration in South Africa are serving short-term sentences. There is thus a greater potential for successful rehabilitation through alternative sentences.
Last year our Minister of Justice and Correctional Services remarked that we are, I quote, “carefully examining the criminal justice system in areas such as sentencing, so that incarceration does not become the only option for specified categories of crimes. Alternatives or non-custodial sentencing realizes that imprisonment is not suitable for all crimes and can have a severely detrimental impact on certain types of offenders, in particular women.”
If one views the criminal justice system as a long chain of various stakeholders - like the SAPS, the Department of Justice and Constitutional Development, court officials, Legal Aid SA practitioners, prosecutors, probation officers and social workers, judges and magistrates, and Correctional Services officials – it becomes very evident that each and every one of us have a very specific role to play in making our criminal justice system more gender-responsive.
All over the world, women offenders tend to have unique pathways to crime, often making them unsuited for incarceration.
This is especially the case for victims of trafficking, women who are exploited by criminal networks, sex workers or women who have experienced gender-based violence. Prior victimization and gender-based violence (GBV) is a key issue for women in conflict with the law, which is often part of the pathways to, conditions and consequences of imprisonment of women.
Many incarcerated women have committed non-violent and/or so-called victimless crimes such as using drugs, suggesting that incarceration may neither be the most appropriate nor proportionate response.
Many women in conflict with the law have not committed violent offences and a large majority do not pose a risk to society. Many simply cannot pay the fines imposed on them because they are poor.
So what are the specific factors which lead to discrimination against women in the criminal justice system?
These factors have been identified as –
Firstly, legislation and/or its implementation, in other words provisions that appear to be gender-neutral may be discriminatory if, in practice, charges are brought only or predominantly against women.
Secondly, vulnerability to pre-trial detention, as many women, particularly those in situations of vulnerability and who are economically disadvantaged, cannot afford bail or the services of a legal representative and are therefore likely to be detained before trial.
And thirdly, gender stereotypes and biases, as women who are seen to be violating entrenched norms of gender behaviour may face challenges such as their statements being considered less credible or they may face a heavier burden of proof than men and therefore may be sentenced more harshly.
One of the recommendations made by the UNODC is that we need greater understanding and sensitized criminal justice responses to the pathways from victim of GBV or trafficking, to that of perpetrator of drug or related crimes.
Noncustodial measures can reduce the social and economic cost of imprisonment, the prison population and rates of recidivism. Non-custodial measures should be considered at every stage of the criminal justice process.
A range of non-custodial measures are applied in South Africa which include, amongst others, the imposition of fines, caution and discharge, compensation orders, suspended sentences, correctional supervision, community service orders, house arrest with monitoring, electronic monitoring, committal to an institution and with a range of programmes and conditions (for example, compulsory attendance of drug treatment programmes and testing.)
Possibly one of the best known cases, here in South Africa, is the case of Ellen Pakkies. Mrs Pakkies, a mother from Lavender Hill on the Cape Flats, killed her son, Abie, in 2007. He was addicted to tik and had abused her, verbally and physically, and stole from his own parents. Mrs Pakkies had tried for 7 years to find help - from the police, welfare services, the courts, rehabilitation centres - but to no avail. She pleaded guilty to murder in the Magistrates Court and received a suspended sentence and 280 hours of community service. In passing sentence, the magistrate said that the system had failed Ellen.
Programme Directors, to conclude,
Every stakeholder has a role to play.
We know that sentencing falls within the discretion of the courts, but there are arguments in favour of the legislature putting sentencing guidelines in legislation to specifically direct trial courts to consider more nuanced sentencing approaches in the context of the Tokyo Rules and the Bangkok Rules.
We have the National Preventative Mechanism in terms of the OPCAT – the NPM was established in 2019. The NPM monitors various places of deprivation of liberty, such as police stations, mental health institutions, correctional centres, refugee reception centres, secure care centres and child and youth care centres.
We have bodies such as our Chapter 9 institutions and the Judicial Inspectorate for Correctional Services (JICS) as a vital body that seeks to ensure inmates’ rights.
Civil society also plays an extremely important role. Many may be familiar with the Sonke Gender Justice case, where the Court was asked to consider the constitutionality of sections of the Correctional Services Act to the extent the provisions failed to provide an adequate level of independence to the JICS.
Academia is another fundamental roleplayer, as we rely heavily on research and other studies in order to guide us on the implementation of our laws and compliance with international instruments, and also to provide us with crucial information in order to shape public policy and decision-making.
We are therefore very pleased to be part of this event and we are extremely encouraged to be able to interact with the Guidance Tool which is under discussion today.
I thank you.
