Prisoners call on watchdog to exercise stronger oversight of their treatment by warders

Johannesburg - Inmates at two of the country’s maximum-security prisons have called on the watchdog body looking after their interests to exercise stronger oversight against warders, who they claim are acting with impunity in their treatment of prisoners.

The Wits Justice Project has received several complaints from inmates via their families at Mangaung in Bloemfontein and Leeuwkop over the treatment of prisoners, saying that the Judicial Inspectorate for Correctional Services (Jics) must step in to ensure their loved ones are safe behind bars.

Several inmates’ family members at both facilities said they found officials unhelpful when seeking details on relatives, especially if they had been beaten up.

Jics confirmed that it had conducted 21 investigations on the use of force and violence between July 1 and September 30, 2020 and 17 investigations on the use of force and violence between October 1 and December 31, 2020.

Looking at these two quarters, there had been a decrease in incidents, said Jics spokesperson Emerantia Cupido.

“We are concerned about the health of the inmates, those who guard them and Jics staff, especially those who are working hands-on inside correctional centres across South Africa. Finally, we are concerned about other issues incidental to and aggravated by the Covid-19 pandemic, for instance overcrowding,” she said.

Historically, according to Cupido, inmates complain mostly about transfers to centres nearer to their families. “Recently, we saw an increase in complaints regarding parole consideration, especially from inmates serving life sentences whose parole processes have been subject to prolonged delays. This is something we have taken up with both the minister and deputy minister, who fully share our concerns,” she said.

But inmates are concerned that their complaints take a while to get to Jics, which before the December holidays received a vote of confidence in its bid for independence to enable it to better fulfil its tasks.

Civil society organisation Sonke Gender Justice asked the Constitutional Court to confirm a decision of the Western Cape judiciary regarding the independence of Jics and the rights of prisoners, arguing that that some sections of the act were unconstitutional to the extent that they failed to ensure the necessary structural and operational independence of the statutory body responsible for inspecting and monitoring prisons in the country.

Led by former Constitutional Court Judge Justice Edwin Cameron, Jics was established to ensure that Correctional Services adhere to the human rights provisions set up by the act.

The high court held that section 88A(b) was unconstitutional. The section states the CEO of Jics is accountable to the national commissioner of the Department of Correctional Services for all monies received by the inspectorate.

“Prisons are a ‘closed’ institution that largely operate outside the public eye, and the independence of Jics is crucial for an oversight role to prevent abuses inside prisons,” according to Kayan Leung, policy development and advocacy manager at Sonke Gender Justice.

Leung said the decision, which also focused on conditions of inmates, would make prisons more transparent, thus contributing to a better society.

Sonke Gender Justice joined forces with Lawyers for Human Rights in 2016 and sought an order, granted last year, declaring that several sections of the Correctional Services Act were inconsistent with the Constitution and invalid. After victory in the Western Cape High Court, both civil society groups went to the Constitutional Court in March requesting that judgment be legally binding. Thankfully, their request was granted. On December 4, 2020, the Constitutional Court confirmed the substance of the Western Cape High Court’s ruling.

Sonke argued that of particular concern was the fact that the Department of Correctional Services was responsible for Jics’s budget and for the employment of its staff (except for the Inspecting judge, whom the president appoints). It argued that an oversight body could not function effectively if its budget and employees were accountable to the organisation that it had to hold accountable. Effectively, suggesting that you cannot bite the hand that feeds you.

Leung said poor prison conditions also increased the likelihood of sexual violence and the transmission of diseases such as HIV and TB.

Inspecting Judge Cameron told the Wits Justice Project that Jics had been working on a business case which had been shared with the ministry and a draft bill for Jics which could now be developed following the Sonke judgment.

Cameron said the vulnerability of inmates in correctional centres and the real possibility of the infringement of their rights to life, dignity, bodily security and conditions consonant with human dignity imposed a positive obligation on the state to provide appropriate protection to inmates through laws and structures designed to afford such protection.

He added: “The determined over-use of incarceration in our administration of justice has led to overcrowded, inhumane and degrading conditions of detention. Its effects are far-reaching. In some instances, we force correctional centre staff to cram three times more inmates into cells than design allows. This may mean sleeping on the floor, and living in unhygienic conditions, with below-par ablution facilities. Sexual assaults and other violent acts become difficult to control. The risk of transmitting communicable and infectious diseases increases significantly. And mental health is a grave concern.”

Sasha Gear, co-director, Just Detention International-SA, said the closed nature of prisons, which were removed from public scrutiny, made incarcerated people extremely vulnerable to abuse.

“The judgment is fantastic news for meaningful prison oversight; we are grateful to our colleagues at Sonke Gender Justice and Lawyers for Human Rights for their many years of work on this.”

“This judgment is exciting news for those behind bars...”

According to a former prisoner, Thulani Ndlovu, now a counsellor at The Aurum Institute in Parktown, there is optimism that the judgment would set Jics apart, and its independence would have a desirable impact on what services they deliver to inmates as an oversight body .

“This judgment is exciting news for those behind bars. Because when I was still in prison Jics was like a dog barking at its owner. One time, we complained to Jics officials about the looming shortage of medication supply at hospital; the next day, we were victimised by the prison officials limiting our movement and turning away our family members who visited, saying we are not there.

“So, this is what will happen: you complain, they go and tell or share with the head of prison. They will consult the officials instead of investigating. They did not make their own decisions; they enquired from the prison officials, especially the top management.

“They hire people with no skills to investigate but those who will be puppets. Those Jics officials knew they could stand their ground because their salary came from DCS,” he claimed.

DCS spokesperson Singabakho Nxumalo said the department never opposed the Sonke application and was in the process of amending sections of the act that were found not compliant with the Constitution. “We already have a team working on the Correctional Services Act as it is being reviewed,” he said.

In respect of complaints by prisoners complaining that their cases were not heard, Nxumalo said Jics was looking at such issues and would confirm that no victimisation of inmates had occurred.

While inmates already had a strong champion in Justice Cameron, Nxumalo said the much-awaited amendments towards independence would give him more muscle to act strongly in their interests.

*This article was originally published in the Sunday Independent

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