Submission on the Correctional Services Amendment Bill [B32 – 2007]
A week after Cabinet adopted the Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa (“the Operational Plan”) in November 2003, MM – an inmate at Westville Correctional Centre and the seventh applicant in the case of EN v Government of Republic of South Africa (No 1) – was diagnosed with oesophageal candidiasis, an AIDS-defining illness. According to the Operational Plan, people with HIV/AIDS are medically eligible for antiretroviral (“ARV”) treatment when their CD4 count – a measure of the strength of the immune system – is below 200 and/or when they present with AIDS. In other words, MM was medically eligible for ARV treatment in late 2003.
However, MM only began ARV treatment on 12 July 2006 – more than two-and-a-half years after he was medically eligible and just three-and-a-half weeks before his death on 6 August 2006. This is evident in a complaint submitted by the TreatmentAction Campaign (“TAC”) – entitled “Request for investigation into culpability for the death of “MM” – and other inmates at Westville Corrections Centre of AIDS-related illnesses” – to the Inspecting Judge of Prisons (“the Inspecting Judge”) on 29 August 2006. As the complaint details, ARV treatment came too late to save MM’s life and only after he had suffered numerous HIV-related illnesses – including a third bout of pulmonary tuberculosis – in the 32 months following the oesophageal candidiasis diagnosis.
In terms of section 90(2) of the Correctional Services Act, 1998 (“the Act”), “[t]he Inspecting Judge may only receive and deal with the complaints submitted by the National Council, the Minister, the Commissioner, a Visitors’ Committee and, in cases of urgency, an Independent Prison Visitor”. In addition, he or she “may of his or her own volition deal with any complaint”, such as the one submitted by the TAC in respect of MM. Of concern, however, is that the Act provides no guidance regarding the process once the Inspecting Judge decides “of his or her own volition” to deal with a matter – section 90(3) merely states that “[t]he Inspecting Judge must submit a report on each inspection to the Minister.” It says nothing more – it is simply silent on what happens once a report into an investigation dealt with by the Inspecting Judge “of his or her own volition” has been submitted to the Minister.
To date, the Inspecting Judge has acted in accordance with the view that only the Minister has the power publicly to release a report submitted to him or her in terms of section 90(3). Yet despite our numerous written requests for the Minister to release the report, we have yet to receive any indication of the outcome of the Inspecting Judge’s investigation. At a meeting held in Parliament on 21 February 2007 and chaired by the Deputy Minister of Correctional Services, the TAC and AIDS Law Project (“ALP”) were advised that the report of the Inspecting Judge had indeed been handed over to the
Minister. The minutes of that meeting indicate that the TAC had “requested a copy of the report without any success” and that it was “still awaiting [the] results of this investigation”. This is still the case some six months later.
Our experience in trying to get a copy of the Inspecting Judge’s report on the investigation into MM’s death supports our position that the Judicial Inspectorate of Prisons (“the Judicial Inspectorate”) should be further strengthened, with the powers of the Inspecting Judge being expanded to enable him or her to discharge his or her public interest mandate appropriately. For example, instead of simply submitting a report, the Inspecting Judge should expressly be empowered to publish the report once the Minister has been given a reasonable period to respond to any adverse findings potentially contained in such a report.
But instead of strengthening the Judicial Inspectorate, the Correctional Services Amendment Bill [B 32 – 2007] (“the Bill”) seeks to achieve the very opposite. In this submission, therefore, we focus our attention on those provisions of the Bill that – if promulgated into law – would have this undesirable and constitutionally suspect outcome. In addition, we address certain provisions dealing with three issues of concern: the rights of inmates; the rights of members; and the unjustifiable expansion of the Minister’s authority. In respect of each area of focus, we make specific recommendations.