Dated statistics, produced by the Department of Correctional Services in 2011, indicate that there were then about 5,000 foreign prisoners serving time in SA jails. The figure for our citizens serving time in foreign jails (mainly for drug related offences) is informally estimated at approximately 1,000, possibly more. Many may not be dealers but rather drug mules, often women. If SA were to conclude prisoner transfer agreements with countries in which its citizens are incarcerated this could lead to an immediate net loss of about 4,000 of the current prison population in SA. A 2014 NICRO report estimates the average cost of incarceration ranges between R 123.00 and R 329.00 per inmate per day. According to the 2013/14 Department of Correctional Services Annual Report, our total inmate population is 157 170, including 43 712 remand detainees. The over-crowding level is estimated at around 137%. Section 63A of the Criminal Procedure Act is a viable solution to alleviate prison overcrowding by remand prisoners. For the remainder, over-crowded conditions could be addressed, in part, through prisoner transfer agreements.
SA seems hesitant to take the plunge and enter into these agreements. Zambia recently concluded prisoner transfer agreements with a number of SADC members to reduce overcrowding in their prisons. This multi-lateral agreement did not include South Africa. Some suggest that the SA Government’s reasons for not concluding transfer agreements include respect for foreign sovereignty, a commitment to combating crime, individual accountability and the cost of transfers. South Africa is a signatory to the Vienna Convention on Consular Relations. Compliance is questionable. South Africa has concluded many international agreements and is party to a significant number of international treaties. We have extradition arrangements, the International Co-Operation in Criminal Matters Act and a multitude of taxation related agreements. Prisoner transfer agreements, none.
Over the years questions have been asked in Parliament concerning the policy position on the issue of concluding prisoner transfer agreements. Apparently no policy position has been formulated, although the matter is under consideration by the departments that are, or would be, involved. The departments involved range from justice and correctional services to home affairs, the police, the presidency and international relations. This is truly a matter requiring co-operative governance on a broad front. On a positive note: the position of correctional services in a 2004 draft white paper is that it cannot perform its functions of rehabilitation and reintegration of prisoners when it comes to foreigners incarcerated here. Quite so.
The Constitution, our supreme law, has a number of provisions, mainly in the Bill of Rights, which relate to the question of whether or not to conclude prisoner transfer agreements. Human dignity is not only foundational to our new order [ C 1] it is guaranteed to all, including prisoners, in the Bill of Rights [ C 10]. The state is obliged to respect, protect, promote and fulfil all of the rights in the Bill of Rights [ C 7(2)]. Everyone has the right to life [ C 11], including citizens who may be subjected to capital punishment in foreign jurisdictions which still enforce the death penalty. Furthermore, everyone has the right to freedom and security of the person which includes, inter alia, the right to bodily and psychological integrity and not to be treated and punished in a cruel, inhuman or degrading way [ C 12]. These rights are all subject to limitations that are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Hence there is the possibility of being incarcerated in correctional service facilities after a fair criminal trial. Incarceration is for the purposes of punishment, rehabilitation and generally “correction” leading to reintegration in society. It is no coincidence that the old prisons department was renamed correctional services to break with the ethos of the past and to demonstrate the official embrace of the new and more compassionate value system now in place in SA.
The fact that our citizens may commit crimes in foreign climes and find themselves in foreign jails does not in any way detract from the obligation of the state to respect and protect their rights. Most prisoners stand a better chance of rehabilitation and re-integration in society upon their release if they are able to keep contact with their families, friends and loved ones while in prison. It ought to be plain that the conclusion of prisoner transfer agreements is a good way to attempt to avoid the possibility of recidivism. Zambia concluded prisoner transfer agreements to reduce overcrowding in its correctional facilities.
The values and principles which govern the public administration in SA are set out in section 195 of the Constitution. All departments of state busy at present considering the formulation of a policy on prisoner transfer agreements are bound by this section. It provides, inter alia, that “efficient, economic and effective use of resources must be promoted” [ C 195(1)(b)] and that the public administration must be development oriented [ C 195(1)(c)]. The courts have interpreted the word “resources” as used in this section to include “human resources”. Hardly surprising as the section includes a provision for the cultivation of “good human resource management and career-development practices, to maximise human potential” [ C 195(1)(h)]. It is also required that the public administration must be accountable [ C 195(1)(f)].
Section 237 of the Constitution requires that: “All constitutional obligations must be performed diligently and without delay.”
A failure to act in a manner which is consistent with the Constitution is invalid, and the obligations imposed by it must be fulfilled [ C 2].
Given the constitutional framework, it is strongly arguable that the failure, after 21 years of the new order, to negotiate prisoner transfer agreements with willing foreign countries (of which there are many) actually infringes various human rights of SA prisoners incarcerated abroad in a manner that the Bill of Rights does not countenance. Additionally, the human dignity and psychological integrity of their families and friends are adversely affected by their imprisonment in faraway lands that are inaccessible to them other than at great, and often unaffordable, expense.
Swopping foreign prisoners in local jails in exchange for SA prisoners incarcerated abroad also makes economic sense. It is costly to keep prisoners in jail at tax-payers’ expense. Additional expenses are often incurred in respect of foreign prisoners who do not speak any SA languages, not only in respect of legal and parole proceedings affecting them but even in respect of everyday medical attention and treatment which they may require.
The prospects of rehabilitating foreign prisoners serving time in SA jails are slimmer than those in respect of local prisoners who have their networks and families to return to upon their release. Often foreign prisoners are repatriated on their release because their visas have expired and they have no further entitlement to remain in SA after the expiry of their terms of imprisonment. This too puts a strain on the already strained public purse.
The argument that convicted SA prisoners abroad should be left to rot in foreign jails as a deterrent to others and as fit punishment for joining international criminal syndicates (usually drug, ivory and rhino horn smugglers) does not reflect the compassionate approach of the new constitutional order.
It is high time that pro-active consideration be given to the formulation of policy and, if necessary, laws aimed at the entering into of prisoner transfer agreements with countries which have SA citizens languishing in their jails. Our Commonwealth membership, the Zambian precedent and the scale of the challenges of not having prisoner transfer agreements all militate against retaining the status quo.
Paul Hoffman SC is a director of Accountability Now (www.accountabilitynow.org.za)
30 March 2015.