Re: CAUSES OF THE CHRONIC OVERCROWDING IN SOUTH AFRICAN PRISONS.

SAPOHR wants to make use of this opportunity to approach your programme with the aim to open the discussion of the chronically overcrowded and over populated prisons in South Africa.

SAPOHR has also been of the opinion that the current overcrowding that has literally rendered our Prisons unmanageable has not been an coincidence, but man made.

BACKGROUND INFORMATION

On the 01 March 1994, the Department of Correctional Services (DCS) put into operation a New Procedure for the release of Prisoners. The procedure, hereinafter referred to as the New Release Policy (NRP) replaced a system which had been in use for many, many years and which was well-known not only to Prisoners but also to Judicial Officers, Legal Practitioners and those members of Civil Society who had an interest in Prison administration and the welfare of Prisoners. (The NRP does not deal with special Remissions, Amnesties, which are granted by the Executive from time to time, but with general policy)

The implementation of the NRP by the DCS was than and now, eight (8) years later, identified by Prisoners and us as an important factor that raised frustration, delay and prolonged the release dates of thousands of deserving Prisoners. Hence the current chronic over-crowding, that according to the Independent Inspecting Judge, Justice JJ. Fagan is the major contributor to the uncontrollable HIV/AIDS infections and spreading raid in our Correctional Centers.

During the hearings of the well-recorded, well documented and well-investigated Commission of Inquiry into Prison Unrest (CIPU), headed by the honorable Justice Johan Krieglar in 1994, the commission was constrained to acknowledged the existence of substantial dissatisfaction with the NRP in the Prison community. One of the acknowledged problems was that of communication, there beings and implies admission that the level of understanding of the policy, with regard to both Prisoners and Personnel, was insufficient.

The old system, Prisoners could be granted remission of sentence and could also be considered for Parole. In practice this meant that a first time offender could, everything being normal, look forward to a one third remission sentence.

A repeat offender would likewise be unconditionally released after serving three-quarters of the sentence. In each instance, the Prisoner would be eligible to be considered for Parole at some stage before the expiry of the unremitted portion of his/her sentence. The effect of this was that in general the release date of each Prisoner could be computed with reasonable certainty by anyone who cared to attempt the exercise.

The doubt would be with regard to the exact date when the Prisoner would be released on Parole. It would immediately be obvious how important the knowledge was, not only to the Prisoner, but also to family and friends. Whatever the demerits of the old system, it had the virtue of simplicity, which the NRP certainly lacks. Although senior personnel in all Prisons have been supplied with the details of it’s NRP, it remains clear that there is still no uniform understanding of it’s provision, certainly there was confusion and there is still confusion among the ranks of Prisoners, Legal Practitioners and the general public with regard to aspects of the policy.

The NRP does away with the remission, Prisoners automatically become eligible for Parole after serving half their sentence. Parole thereafter largely depends on factors such as involvement in Prison development programmes, which are virtually non-existent. Behavioral attitudes of Prisoners, which can’t easily flow because of the violent environment in which they’re found themselves.

SAPOHR still believes that the NRP was a deliberate strategy of the former National Party and the DCS to neutralize the 1994 expected General Amnesty of the New Government. The effect to the NRP has been to cancel sentence deductions that in the past were assumed. Inmates have thus in effect suffered a double jeopardy because no Amnesty was granted, instead two remissions of six months each. Hence the over-crowding is coming to haunt us.

Gives an example of a friend sentenced 3/94, received five (5) years, six months remission and two (2) years in Amnesties. Was also awarded six (6) months for "exemplary work" Meaning friend must serve four (4) years six (6) months. Already served ten (10) years and his behaviour "has been impeccable" and his work "high standard". Friend challenges authorities as to why he should not be Paroled. Met with authorities that agree friend was fit for release, told him to write to Parole Board to consider release. Friend did so, but was informed that "goal post had shifted" so he could only see Parole Board in July 1995. Friend in 1994, already wanted to take court action, but did not have money.

Former President Mandela dealt with the issue of Amnesty on the 27 April 1995, when he announced one-quarter special remission of sentence with a maximum of six (6) months to Prisoners. Although the Krieglar Report recommended three (3) years as a maximum remission of sentence a Prisoner should qualify for, the former President decided to limit the impact Amnesty will have on the community at large.

What was unfortunate here was that the former President Mandela chose to make a decision and announcement on the matter of Amnesty immediately prior to releasing the Report of the Commission of Inquiry. From this, one can reasonably infer:

    1. That the Government deliberately withheld the Report from the public domain until after the former President’s 27 April 1995, speech and
    2. That, in doing so, the Government demonstrated a preference to avoid rather that promote and public discussion of the relative merits of the case for Amnesty a discussion that would potential have considerably enriched by the lucid comments in the Krieglar Report – balance against any other consideration.

Minister Ben Skosana in his budget vote since 1999 admitted that overcrowding and lack of space is one of the most pressing challenges the DCS has to face. The density of Prisoners in most of our Correctional Centers inevitable impacts on the behavior of inmates. It has a negative effect on the DCS staff, hampers the application of rehabilitation and many other social ills.

In many speeches since then, the Minister promised that various other measures was going to be taken to alleviate the severe problem of over-crowding.

Categories of Prisoners which they had in mind and which they felt could be dealt with alternatively, i.e. Prisoners who cannot afford small fines and bail amounts.

He also referred to petty offenders and diversion programmes. This was almost two years ago.

On the 12 May 2000, the Minister again in his Vote Speech repeats his promises of March 1999, but this time a cluster approach to combat over-crowding in Prisons was the new promise.

That time around there was going to be a multi-sect oral team to identify blockages and devise solutions to the awaiting trial Prisoners problem,

These and other promises that the former and current Minister made over the years that we want him to implement as a matter of absolute urgency.

Approved accommodation available inside our ±235 Prisons countrywide is 99 294. The Prison population has increased within a year from 165 000 to 189 000.

Emphasis has also been put on the alarming number of un-sentenced Prisoners in custody which at the end of last month (April 2003) stood at ± 72 952, which constitutes 40.2% of the total number of Prisoners. From January 1995 to February of this year the number of un-sentenced Prisoners increased by 168% compared to an increased 16% for sentenced Prisoners over the same period.

SAPOHR recommends as a short-term problem shooter, which would be cared over to a medium and long term solution. The composition of an Amnesty Resolution Committee (ARC).

Problem Statement:

The DCS has not fulfilled the expectations created by them over the years in relation to the implementation of a programme that will alleviate the chronic overcrowding in our Prisons. Please read above bordered aspects for your easy information.

Secondly, the hitherto dispensation has not fulfill the expectations practices in most countries that go through historical transition and a new President and Government is elected into power.

A large part of the dissatisfaction in Prisons that even now has been with the New Credit System (NCS) introduced on the 01 March 2000. In theory the New System appeared/s fair, but in practice it leaves inmates with the Psychological torture of not knowing when they will be released, and not infrequently being detained beyond their release date. As said above, senior members of the DCS acknowledge/d this.

RECOMMENDATIONS.

The President must seriously consider the establishment of an Amnesty Resolution Committee (ARC) that will do research and investigation individual cases and circumstances of inmates, Political or Common Law, and recommend pardon, amnesty, reduction of sentences and community corrections. This will not only protect the President from undue criticism, but will also positively contribute towards alleviating overcrowding. We must also not forget to keep on reminding the President that he did not announce an Amnesty for Prisoners as a democratically elected President of RSA.

Background of the above-mentioned.

Since time immemorial heads of state have extended grace to Prisoners in celebration of momentous public occasions such as an armistice, a royal wedding or a coronation. Amnesty as a token of such executive grace was well established in the Union of South Africa. During the period from 1910 to 1961 there were fifteen general Amnesties, inter alia to celebrate the coronation of King George VI. VE Day and the fiftieth anniversary of the Union in 1960. The practice was maintained after the birth of the RSA. Amnesties in the form of some or other remission of sentence to specified categories of Prisoners were quite common. Trust the birth of the RSA and its fifty anniversary each occasioned a one-quarter remission, on the twentieth anniversary maximum of three years. For the twenty-fifth anniversary in 1986 there was remission of six months. In all three were fourteen Amnesties granted in the 30 years of the Republic existence.

Presidential Power

At common law the prerogative of mercy is vested in the Executive. Conformably subsections (1) and (2) of section 84 of the Constitution invest the President, in consultation with the Executive Deputy Presidents, with power and function inter alia to remit any fines, penalties or forfeitures. Consequently the decision whether or not to grant remission of sentence to any Prisoner or class (es) of Prisoners and the extent and the conditions of such indulgence are wholly and solely matters of the Executive.

Composition of an Amnesty Resolution Committee (ARC)

  1. Amnesty Resolution Committee (ARC) must over see this to ensure against past experience for the decision being taken behind closed doors and the worst being released as it was (Craig Williams, Capt. Jack Le Grange, releases be it conditionally must not be left solely to the DCS. An informed ad hoc Committee comprises of stakeholders from a multi-disciplined cross section of South Africans from church, union, civic, human rights, youth organizations, legal and political parties must draw up a criteria or categories of Prisoners who will/should be granted Amnesty and who should be given deductions of sentence (soe no. 4 below). Hence an Amnesty Resolution Committee (ARC) must be a civic structure formed for the purpose of working with the DCS to give meaning to the promised strategies to alleviate over-crowding.
  2. The ARC will not only determine categories of Prisoners who should qualify for Amnesty or sentence deductions, but will also initiate/motivate support structures to ensure those released do not simply resort back to crime because they have no means of providing for themselves. This Committee must also motivate or initiate support structures for these ex-inmates, including halfway houses and training/employment so as not to fulfill the DCS’s predictions that all those released will be back in few weeks.
  3. As a start such a Committee must seriously consider abandoning the NEW CREDIT SYSTEM and restoring all previous deductions (one third 1/3) for first time offenders and one fourth (1/4) for repeat offenders.
  4. Examples of the sorts of categories of Prisoners SAPOHR believes should qualify for Amnesties are non-violent first time offenders, inmates who have served more than ten years, inmates over the age of 60, terminally ill inmates, battered women, parents with dependant children.
  5. Those inmates convicted for violent crimes, sentence deduction must be considered on the merits of individual’s cases? In assessing the categories the ARC will keep in mind the primary concern of the community’s welfare whilst not failing prey to misinformation and populist misconception of all Prisoners being rapists, child molesters, car hijackers, robbery’s and merciless killers. All above is tentative and open to discussion

 

Thanking you in advance of your understanding.

Yours truly,

 

 

Golden Miles Bhudu