Human Rights and the Transfer of Sentenced Offenders Within South Africa and How it Could Impact on the Transfer of Offenders from Other Countries to South Africa

INTRODUCTION

Hundreds of South Africans are imprisoned in different foreign countries.¹ South African prisons host thousands of foreign nationals. In April 2013 the South African Minister of Correctional Services informed Parliament that South African prisons were hosting a total of 8,973 unsentenced and sentenced foreign national inmates from 90 countries or territories. Most of these inmates were from the following neighboring countries: Zimbabwe (3742); Mozambique (2268); Lesotho (909); Malawi (332); Tanzania (264); Swaziland (108) and Congo (138). There was also a sizeable number of inmates from countries such as Nigeria (426), Bolivia (51), Somalia (48), Peru (46), Brazil (41), Uganda (37), Burundi (37), Pakistan (35) and Cameroon (23).² It has been argued recently that although in the past South Africa was reluctant to enter into prisoner transfer agreements with other countries, the government has indicated that it is in the process of putting in place a mechanism for the transfer of offenders. This change of heart has been attributed to, amongst other things, the presence of a large number of South Africans imprisoned abroad and foreign nationals imprisoned in South Africa.³ In the light of the fact that South Africa is yet to sign a prisoner transfer agreement with any country or to enact legislation on the transfer of offenders, the author will proceed from the assumption that the transfer of offenders from other countries will be aimed at ensuring that their transfer will be motivated, inter alia, by achieving at least two objectives: rehabilitation and to be detained close to their family members. These are some of the major factors that influence the transfer of offenders from one country to another.⁴ In this article the author relies on the recent jurisprudence from the South African courts to show how the manner in which inmates are transferred from one prison to another within South Africa could be invoked by those opposing their transfer to South Africa to argue that their transfer would not achieve the objectives of rehabilitation and also to be detained near their next-of-kin or relatives. The author demonstrates that there are sufficient safeguards in place to ensure that the rights of the offenders are protected in the transfer system. On that basis, the author concludes that an argument the transfer of an offender from a given country to serve his sentence should not succeed on the basis that his rights will not be guaranteed during inward transfers or that he will not have access to rehabilitation programs during the transfer is unlikely to succeed. Although this article is not about the human rights of prisoners in South Africa generally, it is necessary that in order to situate the issue under discussion in a broader context, I start by highlighting some of the rights of offenders in South African law. The words offenders, prisoner, sentenced offender and inmate are used interchangeably in this article. So are the words correctional center and prison.

PRISONERS’ RIGHTS GENERALLY AND HOW THEY HAVE BEEN PROMOTED AND PROTECTED IN SOUTH AFRICA

The Constitution of South Africa is one of the few constitutions in Africa which expressly provide for the rights of prisoners or sentenced offenders (see also Constitution of Kenya,⁵ Article 51; Constitution of Zimbabwe,⁶ Article 50(5)). Section 35(2) of the Constitution of South Africa provides that:

Everyone who is detained, including every sentenced prisoner, has the right - (a) to be informed promptly of the reason for being detained; (b) to choose, and to consult with, a legal practitioner, and to be informed of this right promptly; (c) to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; (d) to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released; (e) to conditions of detention that are consistent with human dignity, including at least...