South African Human Rights Commission Presentation to the Portfolio Committee on Correctional Services ‘ Strengthening the Judicial Inspectorate of Correctional Services’ 18 September 2013

Request from the Committee The Committee seeks to strengthen the Judicial Inspectorate for Correctional Services (JICS) through engagements with various stakeholders. Specific request to the SAHRC: 1.That the SAHRC provides comment on how the legislative provisions establishing and governing the JICS may be amended and strengthened to ensure not only better governance and enhanced independence for JICS, but also a better system for ensuring effective oversight over the treatment of inmates and conditions of incarceration. 2.This engagement will give the SAHRC the opportunity to share with the Committee how the Commission manages and safeguards its own independent oversight responsibility.

Understanding Independence Independence can be determined though a number of factors, including: o Legislative provisions regarding the financial sustainability of the institution; o Appointment process and security of tenure provisions for leadership of the institution; o Degree to which the institution determines it own operational procedures, structures and employment; o Powers afforded to the institution to execute its mandate; o Mechanisms, if any, which link accountability of the institution to other institutions o Additional accountability, oversight and reporting structures The Constitutional Court in Van Rooyen and Others v S and others 2002 (5) SA 246 (CC) has established a general test to be used in order to determine if the court as in an institution is independent. In terms thereof, independence is determined by whether a reasonable and informed person from an objective viewpoint would have the perception that the institution is independent. This test can also be applied in determining the independence of JICS.

Comparative Analysis between the JICS and SAHRC: Enabling Legislation JICSSAHRC 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 Act 108 of 1996 (HRC Act) = Constitutional Body (State Institution Supporting Democracy) 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 54 of 1994 provides for the composition, powers, and functions of the SAHRC.

Independence provisions JICSSAHRC 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. Section 181(3) places an obligation on other organs of State to assist in ensuring the independence, impartiality, dignity and effectiveness of the SAHRC. Section 4 of the HRC Act has an entire section devoted to independence and impartiality.

Selection and Appointment of the Inspecting Judge JICSSAHRC Section 86 of the CSA provides that the President appoints the Inspecting Judge. Section 3 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)

Selection and Appointment of the CEO JICSSAHRC Section 88A of the CSA provides that the Inspecting Judge must identify suitably qualified and experienced candidates to serve as the CEO. The appointment of the CEO is effected by the National Commissioner of Correctional Services, to whom the CEO is also accountable. Any matters relating to the misconduct and incapacity of the CEO must be referred to the National Commissioner by the Inspecting Judge. In SAHRC, the appointment of the CEO is an internal process as stipulated in Section 16(1) of the HRC Act. It further provides that the CEO is accountable to the Commission.

Reporting JICSSAHRC Under Section 90(3) of the CSA, the Inspecting Judge must report on each inspection to the Minister and the Parliamentary Committees on Correctional Services. Section 15(2) of the HRC Act provides that the Commission shall submit quarterly reports to the President and Parliament. It may also, at any time, submit reports to the President or Parliament if deemed necessary. (The draft amendments to the HRC Act removes the requirement of reports to the President). Section 90(4)(a) and (b) stipulate that the Inspecting Judge must submit an annual report to the President and the Minister. It is then Minister who tables JICS’s report in Parliament In practice, the Commission submits and tables its annual report to Parliament. There is no ministerial involvement in the process.

Finance JICSSAHRC JICS receives its budget from the Department of Correctional Services. Section 91 of the CSA also states that, ‘the Department is responsible for all the expenses of the Judicial Inspectorate’. The Commission is financially independent from government although it receives its budget from National Treasury. However, under the PFMA, the Commission reports to National Treasury and Parliament on how the budget has been spent. (The annual financial statements produced by the Commission are audited by the Auditor-General for governance and accountability purposes).

Recommended Strengthening Measures 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. Remove DCS as a central feature of the JICS JICS budget should be separate from the DCS. Appointment of the CEO should not be in consultation with the National Commissioner. It should be an internal JICS process. 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. It should be stipulated that no organ of state or individual may hinder or obstruct the JICS in performance of its functions. Conflict of interest provisions should also be articulated. JICS should have greater recourse to Parliament to report on instances where the DCS fail to comply with Inspectorate requests. Parliament should then exercise its oversight on the Department.

Recommended Strengthening Measures (2) Protection from legal liability should be afforded to JICS staff when acting in good faith. Section 17(3) of the HRC Act may provide guidance in this instance and states that no member of the Commission or staff, ‘is liable for anything reflected in any report, finding, point of view or recommendation made or expressed in good faith and submitted to Parliament’. Collaboration with other organs of State or institutions Findings and reports of the JICS should be disseminated to SAHRC and other Chapter 9 bodies in order to enhance support to the Inspectorate. There should be an express obligation stating that other organs of State should afford the Inspectorate the necessary protection to ensure its independence and impartiality. 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. 11

Recommended Strengthening Measures (3) The public perception of the JICS should be improved The JICS should have greater awareness-raising about the role of the Inspectorate. The Inspectorate should be more robust in publicising their findings via media and press releases. This would create public awareness on the challenges faced in asserting the rights of inmates in correctional centres. The JICS address and website is also hosted by the DCS e.g. This gives the impression that JICS is not independent of the Department. JICS should have its own independent online presence. 12

Legislative Reform 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, it 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). Its mandate and powers should be clearly articulated in legislation, either through amendment to the CSA or through separate legislation.

The South African Human Rights Commission