South African Human Rights Commission ‘The Impact of the Judicial Inspectorate of Correctional Services’ Presentation to the Portfolio Committee on Justice and Correctional Services 21 September 2016

Request from the Portfolio Committee on Justice and Correctional Services The SAHRC has been requested to brief the Committee on: The impact of the Judicial Inspectorate of Correctional Services (JICS); and ii. To point out areas of overlap and/or possible cooperation between the SAHRC and the JICS. iii. Independence of the JICS

Introduction to the SAHRC The SAHRC is mandated by section 184 of the Constitution of the Republic of South Africa, of 1996 as well as the Human Rights Commission Act 40 of 2013. The functions of the SAHRC are: To promote respect for human rights and a culture of human rights; To promote the protection, development and attainment of human rights; and To monitor and assess the observance of human rights in the Republic. The SAHRC has the power to: Investigate and report on the observance of human rights; Take steps to secure appropriate redress where human rights have been violated; carry out research; and educate.

Comparative Analysis between the JICS and SAHRC: Enabling Legislation The Judicial Inspectorate is established by Chapter IX of the Correctional Services Act 111 of 1998 as amended, (CSA) = Statutory Body Established by Chapter 9 of the Constitution of the Republic of South Africa the SAHRC is a Constitutional Body (State Institution Supporting Democracy); and an accredited national human rights institution Sections 85 to 91 of the CSA provides for the appointment of the Inspecting Judge, staff, powers and functions, duties and expenses of the Inspectorate. The Human Rights Commission Act 40 of 2013 provides for the composition, powers, and functions of the SAHRC. The JI does not have wide ranging investigative powers or powers of enforcement [example it has no search and seizure powers, and may issue recommendations only to the DCS SAHRC has wide ranging powers of search, seizure, subpoena and choice of mode of dispute resolution. The SAHRC may issue recommendations to any person

Independence provisions JICS SAHRC Section 85(1) of the CSA stipulates that, ‘the Judicial Inspectorate for Correctional Services is an independent office under the control of the Inspecting Judge’. Section 181(2) of the Constitution references the SAHRC as an institution which is, ‘independent and subject only to the Constitution and the law’. The SAHRC must be impartial and exercise its powers and perform its functions without fear, favour or prejudice. No similar provision or obligation placed on other organs of State to ensure the independence of the Inspectorate. The JICS is dependent on cooperation by the DCS for its investigation and monitoring to be undertaken Section 181(3) places an obligation on other organs of State to assist in ensuring the independence, impartiality, dignity and effectiveness of the SAHRC. The JICS reports to the National Minister of the DCS and to Parliament Section 4 of the HRC Act has an entire section devoted to independence and impartiality. In particular, the SAHRC reports to Parliament

Selection and Appointment of the Inspecting Judge JICS SAHRC Section 86 of the CSA provides that the President appoints the Inspecting Judge. Section 5 of the HRC Act has provisions relating to the term of office of the Commissioners. In practice, the call for nominations is widely advertised. Parliament interviews prospective candidates, votes on the matter and provides its recommendations to the President. The President formally appoints the Commissioners. (It should also be mentioned that the HRC Act has regulations in relation to staff employed by the Commission. The President makes these regulations in consultation with the SAHRC)

SAHRC Complaints Handling Procedure In terms of Article 4 (2) (c) of the SAHRC’s Complaints Handling Procedures: “4 (2) The Commission may reject any complaint, which – ... (c) is the subject of a dispute before a court of law, tribunal, any statutory body, any body with internal dispute resolution mechanisms, or settled between the parties, or in which there is a judgment on the issues in the complaint or finding of such court of law, tribunal, statutory body or other body” Moreover in terms of Article 12 (8) (a) of the Commission’s Complaints Handling Procedures: “If the Provincial Manager makes a finding that the complaint does not fall within the jurisdiction of the Commission, or could be dealt with more effectively or expeditiously by another organisation, institution, statutory body or institution created by the Constitution or any applicable legislation, the complaint must ... be referred to such appropriate organisation, institution or body ... and the complainant must ... be notified thereof, in writing, and be provided with the contact details of such appropriate organisation, institution or body.”

SAHRC Complaints Handling Procedure (2) Section 90 of the Correctional Services Act refers to the function of the Inspecting Judge, which includes: “inspects or arranges for the inspection of correctional centres and remand detention facilities in order to report on the treatment of inmates in correctional centres and remand detention facilities and on conditions and any corrupt or dishonest practices in correctional centres and remand detention facilities.” (Complaints that are regarded as urgent should be attended to without any delay. This includes an assault, a hunger strike, an attempted suicide, etc.) In recognition of this mandate, the SAHRC in terms of its Complaints Handling Procedures generally refers matters relating to conditions in prisons and from prisoners to the JICS.

SAHRC Complaints Handling Procedure (2) The SAHRC has the overriding authority to initiate investigations of its own accord where human rights have been alleged to be violated. This mandate includes the protection of the rights of persons in detention However, the SAHRC does not have the resources to adequately deal with such matters and therefore refers complaints which fall within these parameters to the JICS. The SAHRC Complaints Handling Procedures also envisages the scenario where the SAHRC may collaborate with other appropriate bodies in the course of investigation such as the JICS. The SAHRC has a good relationship with the JICS. The current Inspecting Judge is a member of the SAHRC’s Section 11 Committee on Human Rights in Places of Detention.

Recommendations to strengthen the impact of JICS (1) A review of the enabling legislation for the JICS is recommended, to address the concerns tabled below The appointment of the Judge should not be a unilateral decision by the President The President should appoint the Judge similarly to other Judges (via recommendations from the Judicial Services Commission) or through recommendations from Parliament. The nomination, selection and appointment process should be more consultative. Independence of the JICS JICS budget should be separate from the DCS. JICS should have its own legal personality which sets out that the Inspectorate has standing in law and can sue and be sued. The JICS should have greater investigative and enforcement powers The JICS have previously reported on a lack of responsiveness from DCS in relation to complaints or request for information. JICS should be equipped with powers of subpoena, search and seizure, similar to that of the SAHRC.

Recommendations to strengthen the impact of JICS (2) A review of the existing framework, systems, processes, as well as public, DCS and inmate perceptions of the JICS Benchmarking and mapping of needs against existing resources including range of work, reach of work and impact of work [noting the annual report from the JICS 2014/15] A full consideration of authority, powers and infrastructure necessary to support independence JICS should have greater recourse to Parliament to report instances where the DCS fails to comply with Inspectorate requests. Parliament should exercise its oversight on the Department. The JICS recommendations should be made enforceable .

Recommendations to strengthen the impact of JICS (3) Provisions should allow for: public dissemination of certain findings; provisions should allow for own accord reporting in addition to mandatory reporting; compulsory education campaigns; reports to the SAHRC The SAHRC should be regularly requested to accompany the JICS when it investigates contentious complaints, particularly those referred by the SAHRC. JICS should have power to institute legal proceedings in its own name and a clear mandate to refer cases to SAPS or the NPA in cases of criminal conduct by DCS officials.

Recommendations to strengthen the impact of JICS (3) The SAHRC serves a national function over all persons, including children in conflict with the law, persons incarcerated on account of mental disabilities and foreign nationals who are incarcerated. The SAHRC works with individual and systemic complaints in respect of the alleged conditions of detention and protection of the rights of such persons. It also bears a responsibility to report on the status of these protections to international mechanisms under treaties (e.g. International Covenant on Civil and Political Rights, Convention Against Torture etc), with a view to securing strengthening protections for detained, arrested and incarcerated persons in terms of the Constitution At present no system of information sharing exists between both bodies. The Commission therefore recommends that systematic information sharing of reports and other such information is provided by the JICS to the Commission to enable its own monitoring, reporting and investigation or other recommendations

Ratification of the OPCAT The role of JICS as an Independent oversight body is crucial for the effective functioning of the criminal justice system as a whole, and the Department of Correctional Services in particular. As an independent institution, JICS should be placed in a position to be both reactive (responding to conditions of detention in correctional centres and the treatment) and proactive (allowing for a system of unannounced visits to correctional centres and own accord investigations). There is a need for the monitoring of all places of detention, including those where children who are conflict with the law are placed, and those serving as repatriation centres. South African government should therefore ratify the Optional Protocol to the Convention Against Torture (OPCAT) and establish a National Preventive Mechanism which encompasses the existing mandate of the JICS as well as other oversight bodies.

Thank you