By Edwin Naidu
Johannesburg - Sonke Gender Justice has welcomed the Constitutional Court’s confirmation of the decision of the Western Cape judiciary regarding the independence of the Judicial Inspectorate for Correctional Services (JICS) and the rights of prisoners.
“We are thrilled the Constitutional Court has confirmed the decision of the Western Cape High Court in declaring sections of the Correctional Services Act unconstitutional.
“Prisons are a ‘closed’ institution that largely operate outside public eye and the independence of JICS is crucial for an oversight role to prevent abuses inside prisons,” said Kayan Leung, the Policy Development and Advocacy Manager at Sonke Gender Justice.
Leung said the decision, which also focused on conditions of inmates, against international obligations, will make prisons more transparent, thus contributing to a better society.
Sonke Gender Justice, which is a non-profit organisation striving to get people to unite against patriarchy, 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, the civil society groups went to the Constitutional Court in March requesting that judgment be legally binding.
Sonke argued that of particular concern was that Department of Correctional Services was responsible for the 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 has to hold accountable. On December 4 2020, the Constitutional Court confirmed the substance of the Western Cape High Court’s ruling.
Leung said poor prison conditions also increase the likelihood of sexual violence perpetration as well as the transmission of diseases such as HIV and TB.
Inspecting Judge Edwin Cameron, told the Wits University Project that JICS welcomes the judgment.
Separately, Cameron said following extensive consultations, JICS has been working on a business case which has been shared with the Ministry and a draft bill for JICS which can 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 imposes a positive obligation on the State to provide appropriate protection to inmates through laws and structures designed to afford such protection.
Sasha Gear, Co-Director, Just Detention International-South Africa said the closed nature of prisons, which are so removed from public scrutiny, makes incarcerated people extremely vulnerable to abuse.
“The judgement 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.”
Former prisoner Thulani Ndlovu, now a counsellor at The Aurum Institute in Parktown, said he hoped the judgment would set the JICS apart and its independence has a desirable impact on what services they deliver as an oversight body to inmates.
“This judgement 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 official about the looming shortage of medication supply at hospital, the next day we were victimized 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 official knew they could stand their grounds because their salary came from DCS,” he claimed.
Spokesperson for the Department of Correctional Services Singabakho Nxumalo said the department never opposed the application.
“The next process will be to amend the sections of the act found not to be in compliance with the Constitution. We already have a team working on the Correctional Services Act as it is being reviewed,” he said.
Edwin Naidu writes for the Wits Justice Project (WJP). Based in the journalism department of the University of the Witwatersrand, the WJP investigates human rights abuses and miscarriages of justice related to SA’s criminal justice system.