SABC News - Understanding overcrowding in South African prisons:Monday 5 December 2016

Understanding overcrowding in South African prisons

Monday 5 December 2016 08:11

Emmanuel O. Maravanyika

South African prisons are deemed to be the most overcrowded correctional centres in Africa.(SABC)

South African prisons are deemed to be the most overcrowded correctional centres in Africa, taking into account the available capacity to accommodate offenders against the actual occupancy rates which are currently beyond capacity.

Simply put, South Africa has inadequate capacity to safely and securely house the number of offenders in the country.

At first glance the solution looks obviously simple: build more prisons. That would solve the overcrowding problem immediately, as this is essentially a housing problem.

If people are literally sleeping on top of each other due to inadequate space, avail more housing to accommodate them in humane, safe and secure conditions to enable their swift and effective rehabilitation and other aspects of their human development.

Nostalgics of the previous political era, from a criminal justice perspective, often remind us of the ‘good old days’ of low crime rates, control of crime by the police and significantly lower incarceration rates.

The argument continues in that along came democracy and the various freedoms not previously enjoyed by the masses and a boom in crime ensued due to less social and influx controls, especially with a now lenient criminal justice system, from policing, the criminal courts and the prisons themselves.  

That nostalgic view, however, lacks content.

These ‘good old days’ involved more social control than they did actual policing, with different racial groups receiving varying levels of police services based on the decentralised Homelands system and therefore with varying resources allocated to these Homelands for policing services.

There was no consistency in reporting procedures of crimes, recognition of certain conduct as a crime, and investigations and subsequent prosecutions thereof.

The concept of justice varied as well across the various homelands, often with vigilantism (mob justice) most prevalent in African communities due to the inaccessibility to (or rejection of) the criminal justice services. In some African communities various applications of restorative justice took place as well, thus avoiding the harsh and adversarial processes of the formal system.

For these and other reasons, many instances of what we would call crime today did not see the doors of the formal courts, and therefore incarceration rates were not as high and pronounced as today.

South Africa has a total capacity of up to 120 000 prisoners, and at present the prison population sits at just under 160 000

The advent of a new South Africa saw the end of the decentralised policing services, and a host of other criminal justice system reforms.

Key to these reforms in legislation was the introduction of what is commonly referred to as ‘mandatory’ minimum sentences for specific offences.

In the absence of any good reason to do so (compelling and substantial circumstances), a court could not impose a sentence less than a stipulated number of years for a specific crime.

Based on the nature of the crime and its corresponding sentence, an offender had to serve a fixed amount of time in prison before he/she could be considered for parole or release.

What this essentially did was to guarantee a fixed number of prisoners occupying the prisons, only to be released upon completion of a portion of that time for parole or released on medical parole.

What must be noted, however, is that the ‘mandatory’ aspect here is the sentence imposed, and not necessarily the time to be spent.
For example, a mandatory minimum sentence of 10 years does not mean that 10 years must be spent in prison, but a minimum period of X years (depending on the section of the Criminal Procedure Act imposed) must be served towards those 10 years before parole is considered.

Therefore, a longer minimum sentence would also entail a longer time served before parole is considered, even if the full sentence is not served in prison. Mandatory minimum sentencing is only for categories of certain serious crimes.

The more serious the crime, the longer the minimum time spent in prison.  

It is not, however, these long term offenders who have filled up the correctional beds.

Research in South Africa has shown that a number of inmates should not be in correctional facilities but in remand facilities. The difference between the two is as follows: a person on remand is yet to be convicted and is still innocent in the eyes of the law. In most cases they have been denied bail during the course of their trial, or have been convicted and are awaiting sentencing. Correctional facilities serve the purpose of housing offenders who have been tried, convicted and sentenced to the facility.

It is here that their journey towards rehabilitation and subsequent reintegration into the community begins.

Rehabilitation and reintegration do not form part of the aims of remand. Remand detainees therefore, theoretically, should not be the ‘guests’ of the Department of Correctional Services (DCS) as legally no determination of guilt or sentence has been established at this stage, thus no justification for ‘correctional’ custody.

Nonetheless, there is a Remand Operations Management office within the DCS to deal with remand detainees.

It is estimated that there are just over 41 700 remand detainees in South Africa’s prisons.

This figure makes up approximately 95% of all remand detainees in the country.

The other 5% are in the custody of the SAPS and the Department of Social Development.  

South Africa has a total capacity of up to 120 000 prisoners, and at present the prison population sits at just under 160 000.

The problem of overcrowding is therefore not due mainly to mandatory minimum sentencing but due to the overflow of remand detainees.

In other words, there is ample room for sentenced prisoners in South Africa to be accommodated in our correctional facilities. The problem lies with the remand detainees.

A further question must be asked: why are they clogging up correctional facilities? Firstly, this is an inherited problem from what was then the Department of Prisons under the administration of the former Ministry of Justice pre-1994.

Secondly, and more importantly, the court cases for the detainees take far too long to be processed from arrest to conviction/sentencing due to the clogged court rolls in many jurisdictions. Thirdly, a number of remand detainees have been literally lost in the correctional system and are doing time despite not having been convicted or sentenced. Despite amendments to the Correctional Services Act that do not allow a remand detainee to be so detained for a period exceeding 2 years, enforcement of this amendment is not strictly adhered to, with remand detainees known to have exceeded 5 years while awaiting trial or sentencing.

It is therefore safe to say that the problem of overcrowding does not stem from an ‘out of control’ crime rate in South Africa.

The numbers clearly show there is adequate space to accommodate sentenced prisoners with little concerns about overcrowding.

The problem lies in the misplaced accommodation of remand detainees within the DCS, a policy inherited the previous Department of Prisons.

While a number of White Papers on Corrections and amendments to the Act have been produced, none has addressed this issue to finality and the prisons continue to overflow.

This has various consequences on safety, security, rehabilitation and operational matters for the DCS who are powerless in deciding whether or not to accept detainees sent to them.

While easier said than done, two solutions seem evident:

- Sort out the backlogs on court cases within reasonable time frames – not an easy undertaking as it not only involves the courts but police investigations which have an impact as to the speed of a case

- Establish remand centres away from the custody of the DCS – it would be easier to monitor remand detainees in their designated facilities, as well as identifying delays in court cases.

The above will go a long way in helping the DCS concentrate on its core function within the criminal justice system and within the justice and security cluster – to look after and rehabilitate offenders in preparation for their reintegration back into society.

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