Picture: Phando Jikelo/African News Agency (ANA) Archives - Inmates in one of South Africa’s prisions

By Selby Makgotho

The powers, duties and functions of the Inspecting Judge of Correctional Services came into the spotlight last week when the incumbent, Judge Edwin Cameron, told the parliamentary inquiry into the controversial escape of Thabo Bester that he had reached out to a newspaper editor with information about the “corrupt and dishonest practices” in the Mangaung Correctional facility.

Having been frustrated by the law enforcement agencies’ lack of expediency, the judge reached out to GroundUp with “legally permissible information that was already out in the public domain” for help.

The question that has been lingering ever since that disclosure is whether the judge was not supposed to be empowered by the provisions of Section 90 of the Correctional Services Act 111 of 1998, which identifies the powers, duties and functions of the office he occupies, especially in relation to the corrupt and dishonest practices as recently played out in the Bester issue.

While the Inspecting Judge has made significant contributions in improving the human rights of the inmates in South Africa, the recent admission by Judge Cameron is one of the immediate areas of concern to be improved and modified in order to maximise the impact and effectiveness of the Office of the Inspecting Judge.

However, the act needs further interrogation in relation to the final and binding powers of the Inspecting Judge arising out of the investigations conducted into prison irregularities.

The Africa Criminal Justice Reform (ACJR) at the University of the Western Cape sharply raises concerns in relation to the difficulty within which the powers are limited. It is the ACJR’s view that the Inspecting Judge be given greater investigative powers and its findings be final and binding.

The dramatic Thabo Bester escape and its modus operandi, but more importantly the frustration expressed by the judge who is supposed to be empowered by the law to act decisively should call the legislators to act towards putting in place mechanisms of ensuring that the independence of the office of the Inspecting Judge is strengthened, and that it is able to make final and binding decisions.

Legislation should further be strengthened to give the Inspecting Judge the ability to have some level of co-operation with the SAPS and the National Prosecuting Authority in order to promote transparency in reporting on reasons for decisions to prosecute or not to.

The words “corrupt and dishonest practices” – as first referred to by the Jali Commission of Inquiry into the endemic corrupt practices in South African prisons – have been retained in Section 90 of the act and remain part of the Inspecting Judge’s mandate.

The deficit of good governance in the prison systems, though not uniform in Africa’s 53 countries, has often been identified as a weakening factor in the administration of prisons, especially on matters of corruption. Several barriers such as the state secrecy, weak civil society, lack of transparency and public interest place a huge strain on the governments’ efforts to end the systematic corruption in prisons. The fact that there is widespread corruption in prisons is no secret. It is only the extent of it that we can never be sure as daily reports of gangsters and warders smuggling drugs, criminal syndicates operating in prisons, and prisoners being able to generate money while in prison can never be left unchallenged.

The 2021 World Justice Project on the Rule of Law notes that the conduct of prison officials in African countries is significant towards an effective criminal justice system and a key aspect of the rule of law. The report further emphasises the fact that the role of the Inspecting Judge is more important as it constitutes the conventional mechanisms to redress grievances and bring action against individuals for offences against society.

“An assessment of the delivery of the criminal justice system, to which Correctional Services is an integral part, should take into account the entire system, including the police, lawyers, prosecutors, judges and prison officials,” reads the report.

As Judge Cameron correctly points out, the powers of his office should be strengthened, and that its findings should be final and binding. If South Africa was to win the battle against corruption, the legislation should be equipped to give more effect on the powers of the Inspecting Judge.

As the custodian of the office, Judge Cameron could not have been left frustrated by the ignorance he suffered such that he sought assistance from members of the public to expose the shenanigans.

It is through Judge Cameron’s efforts that ultimately the truth behind Bester’s escape came to light. It is only through the necessary legislative amendments to give his office more powers that similar occurrences in future can be prevented. The amendment to give him more powers will further give some relief to the victims of crime.

*Selby Makgotho is a legal researcher and commentator and a PhD candidate in public constitutional and international law.

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Prison watchdog in South Africa needs more teeth to curb graft