The 1990s Prison Developments in South Africa
As correctly put by Van Zyl Smit (1998:407), the long battle for the recognition of prisoners’ rights and responses of an increasingly sophisticated prison management have been played out in very different circumstances in the 1990s. Simply put, the 1990s saw a middle ground found between the attackers of government, human rights activists and the government. This was a landmark achievement that saw the recognition of prisoners’ rights.
The then President of South Africa in February 2, 1990 announced the unbanning of political parties and significant to this announcement was the release of political prisoners and the reconsideration of the death penalty (Cape Times as quoted by Van Zyl Smit, 1998:407). This according to Van Zyl Smit (1992:40) had a direct impact on prison law and practice in South Africa. This impact brought about the following in the South African penal system:
The amendment of the Criminal Procedure Act in 1990 to restrict the imposition of the death penalty;
The lifting of the State of Emergency in 1990 aimed at reducing the number of unsentenced political detainees in prisons;
The amendments made to the Prisons Act of 1959 in 1990 effectively abolishing apartheid in the prison system particularly racial discrimination;
The amendments to the prison Regulations effectively abolishing the remaining overtly racially discriminatory measures and;
The modification of the Internal Security Act in 1991 aimed at reducing the number of unsentenced political detainees in prisons.
Prior to the foregoing, the top management of prisons decided that prisons services belongs to the security field rather than to the social field of the government sector in 1988. In April 1990, the Minister of Justice and Prisons announced that the creation of alternative community-based sentence options should be researched and developed. In November 1990 the mission statement and strategies were approved by government following a strategic planning session which produced such mission statement. This mission statement reads: ‘To promote community order and security by the control over, detention and dealing with prisoners and persons under correctional supervision in the most cost-effective and least restrictive manner’ (Cilliers et al, 1993:73 – 74).
Once again Prison Services was separated from the Department of Justice and renamed the Department of Correctional Services in 1990 (Van Zyl Smit, 1992:41) giving effect to the new mission statement of the department.
An inclusion of correctional supervision in the new mission statement of the department which meant supervision of offenders within the community marked a historical and positive change in the department. According to Dissel & Ellis (2002) this change marked the beginning of prison transition period. It is during this period that the Department of Correctional Services officially committed to a policy that aims to make prisons more humane places than they were under apartheid, with a view to rehabilitating offenders and reintegrating them back into society. Witskrif (1991:9) as quoted by Cilliers et al (1993:74) see this as an economical and justifiable penological system.
The Correctional Services Act 111 of 1998
The Correctional Services Act 111 of 1998 was published on 27 November 1998 with the following objectives:
To change the law governing the correctional system and giving effect to the Bill of Rights in the Constitution of the Republic of South Africa of 1996, and in particular its provisions with regard to prisoners;
Recognising international principles on correctional matters;
Regulating the release of prisoners and the system of community corrections; in general, the activities of the Department of Correctional Services;
Providing for independent mechanisms to investigate and scrutinise the activities of the Department of Correctional Services, In addition to the above objectives o this Act, Singh (2005:33) also submits that the Department of Correctional Services outlined the followingimportant features of this Act in its 1999 annual report:
The entrenchment of fundamental rights of prisoners;
Special emphasis on the rights of women and children;
A new disciplinary system for prisoners;
Various safeguards regarding the use of segregation and force;
A framework for treatment, development and support services;
A refined community-involved release policy;
Extensive external monitoring mechanisms; and
Provision for public and private sector partnerships in terms of the building and operating of prisons.
As it can be witnessed from the foregoing, the introduction of this Act marked a complete repeal of the Correctional Services Act 8 of 1959 and new direction for the Department. What is symbolic about this new Act amongst others is firstly, the recognition of the rights of offenders. This is a prescription and the guidelines with regard to the treatment of prisoners. It is also influenced by the international instruments such as the United Nations Standard Minimum Rules, Basic Principles for the Treatment of Prisoners etc…
Chapter 3 [Custody of all offenders of all prisoners under conditions of human dignity] of this Act addresses all issues of basic human rights as enshrined in the Constitution of the Republic of South Africa of 1996 [see Chapter 3 of this study]. Chapter three of this Act comprises the General Requirements, Discipline and Security in respect of the treatment of prisoners. Secondly, the above provision sounds convincing and good in paper but given the history of the South African penal system, a question should be asked as to what guarantee does the penal society has that the treatment of prisoners will be guided by the above provisions of the law? Chapters nine and ten of this Act make provision for the establishment of the Judicial Inspectorate and appointment of the Independent Prison Visitors as the monitoring mechanisms in respect of the treatment of prisoners [see chapter 4 of this study].
International law is defined by Stratton (2009:1) as the universal system of rules and principles concerning the relations between sovereign states, and relations between states and international organisations such as the United Nations. These rules and principles of international law are increasingly important to the functioning of the interdependent world and include areas such as human rights amongst others. According to Schreuer (2000:2), this area of human rights is new and emerged in the 20th centuries and deals with the treatment of individuals and groups, international criminal law and international economic law. Stratton (2009:1) further states that the rules and principles of international laws regulate and shape behaviour of the states, prevent violations by the states, and provide remedies for violations when they occur.
It can be deduced from the foregoing that human rights, whether old or new, as one of the rules and principles of international law is an important tool that guides the treatment of individuals and groups including prisoners. This means that every member state operations, particularly with regard to the treatment of prisoners, should be centred on the respect and promotion of human rights. It is also important to note that international law draws a distinction between these rights. According to Ball (2011), this distinction is important and has a significant impact upon how these rights are interpreted and applied. This distinction is based on whether a right is absolute or non-absolute and whether a right is derogable or non-derogable.
CHAPTER 1 INTRODUCTION AND BACKGROUND TO THE STUDY
1.2 BACKGROUND TO THE STUDY
1.3 PROBLEM FORMULATION FOR THE LITERATURE REVIEW
1.4 DEFINITION OF KEY THEORETICAL CONCEPTS
1.5 VALUE OF THE RESEARCH .
1.6 RESEARCH DESIGN
1.7 RESEARCH METHODOLOGY
1.8 RELIABILITY AND VALIDITY ISSUES
1.9 ETHICAL CONSIDERATIONS
1.10 OUTLINE OF THE STUDY
SECTIONB: SYSTEMATIC LITERATURE REVIEW
CHAPTER 2: PENOLOGICAL HISTORICAL PERSPECTIVE OF THE TREATMENT OF OFFENDERS: LEGISLATIVE FRAMEWORK APPROACH
2.2 THE CONCEPT OF ‘PENOLOGY’ DEFINED
2.3 THE PHILOSOPHICAL PERSPECTIVE OF PUNISHMENT
2.4 THEORIES OF PUNISHMENT
2.5 THE POSITION OF CORRECTIONS IN THE CRIMINAL JUSTICE SYSTEM
2.6. HISTORICAL PERSPECTIVE OF THE TREATMENT OF OFFENDERS IN SOUTH AFRICA AS A SOCIAL RESPONSIBILITY .
CHAPTER 3: LEGISLATIVE AND POLICY FRAMEWORK FOR THE TREATMENT OF PRISONERS IN THE DEMOCRATIC SOUTH AFRICA.
3.2 INTERNATIONAL LAW
3.3 THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996
3.4 CONCLUSION .
CHAPTER 4: ANALYTICAL PERSPECTIVE OF THE IMPLEMENTATION OF THE DEPARTMENT OF CORRECTIONAL SERVICES’ LEGISLATIVE AND POLICY FRAMEWORK
4.2 THE RIGHT TO EQUALITY
4.3 THE RIGHT TO HUMAN DIGNITY
4.4 FREEDOM AND SECURITY OF THE PERSONS
4.5 THE RIGHT TO HEALTH CARE
4.6 CHILDREN’S RIGHTS
4.7 THE RIGHT TO EDUCATION
4.8 FREEDOM OF RELIGION, BELIEF AND OPINION
4.9 THE RIGHT OF THE ARRESTED, DETAINED AND ACCUSED PERSONS
CHAPTER 5: IMPEDIMENTS TO HUMANE TREATMENT OF OFFENDERS IN THE SOUTH AFRICAN CORRECTIONAL ENVIRONMENT
CHAPTER 6: LITERATURE REVIEW FINDINGS AND RECOMMENDATIONS
LIST OF REFERENCE
GET THE COMPLETE PROJECT
SYSTEMATIC REVIEW OF THEORETICAL AND EVIDENCE–BASED LITERATURE ON OFFENDERS’ TREATMENT IN SOUTH AFRICA: A PENOLOGICAL PERSPECTIVE