An analytical study of South African prison reform after 1994

Doctor Legum - LLDThe history of prison reform after 1994 was shaped by the relationship between governance and human rights standards; the requirements for both are set out in the Constitution and elaborated on in the Correctional Services Act. Good governance and human rights converge in five dimensions of a constitutional democracy: legitimacy, transparency, accountability, the rule of law; and resource utilisation. The new constitutional order established a set of governance and rights requirements for the prison system demanding fundamental reform. It de-legitimised the existing prison system and thus placed it in a crisis. This required its reinvention to establish a system compatible with constitutional demands. The thesis investigates whether constitutionalism provided the necessary transformative basis for prison reform in South Africa after 1994. The Department of Correctional Services (DCS) senior management failed to anticipate this in the period 1990 to 1994. In the five years after 1994 senior management equally failed to initiate a fundamental reform process. This lack of vision, as well as a number of external factors relating to the state of the public service in the period 1994 to 2000, gave rise to a second crisis: the collapse of order and discipline in the DCS. By the late 1990s the state had lost control of the DCS and its internal workings can be described as a mess – a highly interactive set of problems in causal relationships. In many regards the problems beleaguering the prison system were created in the period 1994 – 1999. The leadership at the time did not recognize that the prison system was in crisis or that the crisis presented an opportunity for fundamental reform. The new democratic order demanded constitutional and political imagination, but this failed to materialise. Consequently, the role and function of imprisonment within the criminal justice system has remained fundamentally unchanged and there has not been a critical re-examination of its purpose, save that the criminal justice system has become more punitive. Several investigations (1998-2006) into the DCS found widespread corruption and rights violations. Organised labour understood transformation primarily as the racial transformation of the staff corps and embarked on an organised campaign to seize control of management and key positions. This introduced a culture of lawlessness, enabling widespread corruption. Under new leadership by 2001 and facing pressure from the national government, the DCS responded to the situation by focusing on corruption and on regaining control of the Department. A number of gains have been made since then, especially after 2004. Regaining control of the Department focused on addressing systemic weaknesses, enforcing the disciplinary code and defining a new employer-employee relationship. This has been a slow process with notable setbacks, but it continues to form part of the Department’s strategic direction. It is concluded that the DCS has engaged with and developed a deeper understanding of its constitutional obligations insofar as they pertain to governance requirements in the Constitution. However, compliance with human rights standards had not received the same attention and areas of substantial non-compliance remain in violation of the Constitution and subordinate legislation. Overcrowding, violations of personal safety, poor services and/or lack of access to services persist. Despite the detailed rights standards set out in the Correctional Services Act, there is little to indicate that legislative compliance is an overt focus for the DCS. While meeting the minimum standards of humane detention, as required by the Constitution, should have been the strategic focus of the DCS in relation to the prison population, the 2004 White Paper defines “offender rehabilitation” as the core business of the DCS. In many regards the DCS has assigned more prominence and weight to the White Paper than to its obligations under the Correctional Services Act. In an attempt to legitimise the prison system, the DCS defined for itself a goal that is required neither by the Constitution nor the Correctional Services Act. Compliance with the minimum standards of humane detention must be regarded as a prerequisite for successful interventions to reduce future criminality. After seven years, delivery results on the rehabilitation objective have been minimal and not objectively measurable. The noble and over-ambitious focus on rehabilitation at policy level distracted the DCS from its primary constitutional obligation, namely to ensure safe and humane custody under conditions of human dignity. Throughout the period (1994 to 2012) the DCS has been suspicious if not dismissive of advice, guidance and at times orders (including court orders) offered or given by external stakeholders. Its relationship with civil society organisations remain strained and there is no formal structure for interaction. Since 2004 Parliament has reasserted its authority over the DCS, not hesitating to criticise poor decisions and sub-standard performance. Civil society organisations have increasingly used Parliament as a platform for raising concerns about prison reform. Litigation by civil society and prisoners has also been used on a growing scale to ensure legislative compliance. It is concluded that prison reform efforts needs to refocus on the rights requirements set out in the Correctional Services Act and approach this task in an inclusive, transparent and accountable manner