Request from the Committee

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

2. 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.

3. Understanding Independence • Independence can be determined though a number of factors, including: • Legislative provisions regarding the financial sustainability of the institution; • Appointment process and security of tenure provisions for leadership of the institution; • Degree to which the institution determines it own operational procedures, structures and employment; • Powers afforded to the institution to execute its mandate; • Mechanisms, if any, which link accountability of the institution to other institutions • 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.

4. Comparative Analysis between the JICS and SAHRC: Enabling Legislation

5. Independence provisions

6. Selection and Appointment of the Inspecting Judge

7. Selection and Appointment of the CEO

8. Reporting

9. Finance

10. 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.

11. 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.

12. 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 email address and website is also hosted by the DCS e.g. xxxx@dcs.gov.za. This gives the impression that JICS is not independent of the Department. • JICS should have its own independent online presence.

13. 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.

14. The South African Human Rights Commission www.sahrc.org.za @sahrcommission