Aprovechemos el tiempo de la
LOS BENEFICIOS DE PASAR TIEMPO CON JEHOV ´
DEVELOPMENT COMMUNITY (SADC)
South Africa is not a party to the International Transfer of Offender Treaty/ Council of Europe’s Convention on the Transfer of Sentenced Person (1985) which allows the transfer of foreign offenders to serve their sentences in their native countries. This puts foreign offenders sentenced and incarcerated in South Africa, and South African offenders sentenced and incarcerated abroad, at a disadvantage (Mujuzi, 2013:154). Being sentenced and incarcerated in a foreign country that is not a treaty member means that offenders will not be transferred to their native countries until they have served their sentences (Mujuzi, 2013:154).
Family and friends play a vital role during the incarceration process and parole considerations. Mears, Cochran, Siennick and Bales (2012:892) emphasise that family and friends should frequently communicate with offenders either by visiting or
writing letters in order to provide moral support and ease and aid the incarceration path. Family members of foreign offenders must often, however, incur exorbitant prices for travelling to foreign countries to visit their incarcerated family members (Betar, 2012:1). Due to this, some foreign offenders serve their sentences without visits from their families because the latter cannot afford the cost of travelling to South Africa (Gouws, 2015).
In order to ensure sustainable relationships, exchange of information, knowledge regarding correctional matters, and successful reintegration of foreign offenders, the DCS proposes the interstate transfer of foreign offenders within the Southern African Development Community/SADC (Engelbrecht, 2016:2). The following countries are members of SADC: Angola, Botswana, the Democratic Republic of Congo, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Swaziland, United Republic of Tanzania, Zambia, and Zimbabwe (Southern African Development Community, 2013:1). In support of the interstate transfer treaty, Engelbrecht (2016:1) articulates that foreign offenders are more likely to respond positively to rehabilitative programmes in their native countries, because of familiarity with culture and language. Although the DCS is considering the interstate transfer of offenders, Mujuzi (2013:164) cautions the following:
o South Africans sentenced abroad and transferred back to South Africa to serve their sentences, might challenge the legality of their conviction and sentence on the basis that their trial was unfair, and that had they been trialled in South Africa, the court could have arrived at a different conclusion. This could happen especially if it is found that the trial was unfair and unjust as it violated some of the prescripts stated in the United Nations International Covenant on Civil and Political Rights (1966), and African Charter on Human and Peoples Rights (1981). However, the offenders cannot use the constitutionally enshrined Bill of Rights to argue unfair trial because the Constitution of the Republic of South Africa, 1996 only applies in South Africa.
o Incompatibility of laws and duration of sentences in the transferring and the administering countries, e.g. life imprisonment in South Africa means an offender will be considered for parole after serving 25 years, whilst in Zimbabwe, life imprisonment means an offender will be imprisoned for life.
o Converting sentences for compatibility with the laws of the receiving/administering country might be resisted by offenders, and they might refuse to give consent to transfer, particularly if the sentence will be converted to a harsher one. The transferring countries might also refuse to give consent if the receiving countries reduce sentences, as that amounts to an erosion of their rule of law.
o
Poor prison conditions and overcrowding in some of the countries might also impede the endorsement of the agreement.
3.11 CONCLUSION
Similar to other correctional departments worldwide, the South African DCS subjects all sentenced offenders - including foreigners - to assessment procedures. All categories of offenders are assessed using the same tools except for South African and foreign offenders sentenced to less than 24 months. South African and foreign offender sentenced to less than 24 months are only subjected to initial needs and risks assessment and are then classified accordingly. Foreign offenders sentenced to more than 24 months are accommodated at the Assessment Unit and subjected to intensive assessment and profiling offered by the DCS. The DCS employs many offender assessment tools, which, is avered, are repetitive, which makes assessment a lengthy process. The DCS requires one assessment tool that will assess an offender from the point of admission to the point of release. However, certain categories of offenders (sexual offenders) require specific additional assessment tools that focus solely on sexual crimes and illicit sexual behaviour.
Upon completion of the assessments, CSPs are developed for foreign offenders serving more than 24 months imprisonment. During incarceration, foreign offenders are exposed to several correctional, educational, social, and psychological programmes selected according to the needs and risks identified during assessment. However, these correctional programmes and services were developed and are communicated in a language that foreign offenders often do not understand. Illegal foreign offenders often face difficulties in serving their sentences without family support because neither they nor their family members have authentic identity documents.
After being granted parole, foreign offenders are sent to a Home Affairs deportation centre to await deportation to their native countries and are not allowed to return to South Africa before the expiration of the parole period. After deportation, deportees are released and unmonitored and do not receive any help with resettlement. Oftentimes the majority return to South Africa within several days after deportation. These ex-foreign offenders cannot be recaptured for contravening their parole terms, because they were initially deported, and only after committing another crime in South Africa, can they be arrested.
To address foreign offender needs (e.g. not understanding the language used during their rehabilitation period), interstate offender transfer agreements within SADC countries has been proposed. Although this will result in foreign offenders attaining criminal records in their native countries, they will be able to understand the language used in a correctional centre. However, unfairness relating to the trial, incompatibility of laws, and poor prison conditions in some countries could hamper the endorsement of the agreement by South Africa.
CHAPTER 4
METHODOLOGICAL OUTLAY: ASSESSMENT OF FOREIGN
OFFENDERS IN THE DEPARTMENT OF CORRECTIONAL
SERVICES
4.1 INTRODUCTION
As alluded to in chapter three, the assessment of sentenced South African and foreign offenders is not a new endeavour in the DCS. Although foreign offenders are classified as a special category in the DCS (DCS, 2005:168), there have been no scientific studies aimed at thoroughly assessing foreign offenders to determine their needs, risks and aetiology related to their criminal behaviour. There is also no specific policy regarding the treatment of foreign offenders as is the case with other offenders classified as special category e.g. elderly offenders and offenders with disabilities (DCS, 2005:168).
This chapter describes the methodological approach employed to complete the criminological assessment of sentenced, adult, African, male, foreign offenders from Mozambique and Zimbabwe incarcerated at the Losperfontein Correctional Centre in Brits, South Africa. Later in this chapter, the role of crime theories and different criminological theories will be discussed with the aim of using them to explain the criminal behaviour of the chosen sample.