Prisoner Transfer to South Africa: Some of the likely Challenges ahead
DOI:
https://doi.org/10.17159/1727-3781/2013/v16i3a2362Keywords:
Transfer, Offenders, Prisoners, South Africa, Continued enforcement, Conversion, Human rightsAbstract
Official and unofficial reports indicate that the South African government is in the process of entering into prisoner transfer agreements or making prisoner transfer arrangements. This comes after many years of reluctance on the part of the government to sign a prisoner transfer agreement or enter into any prisoner transfer arrangement. The reason for this change of position is not clear. In this article the author demonstrates what he considers to be the factors behind this change and discusses the issues that South Africa is likely to grapple with when the process of transferring offenders to South Africa commences.
Downloads
References
Bibliography
Abbell International Prisoner Transfer
Abbell M International Prisoner Transfer (Martinus Nijhoff The Hague 2010)
Bassiouni "United States Policies and Practices"
Bassiouni MC "United States Policies and Practices on Execution of Foreign Sentences" in Bassiouni MC (ed) International Criminal Law: Multilateral and Bilateral Enforcement Mechanisms Volume II 3rd ed (Martinus Nijhoff The Hague 2008) 551-590
Currie and De Waal Bill of Rights Handbook
Currie I and De Waal J The Bill of Rights Handbook 5th ed (Juta Cape Town 2005)
Department of Correctional Services Annual Report 2011/2012
Department of Correctional Services Annual Report 2011/2012 (The Department Pretoria 2012)
Department of Correctional Services Annual Report of the Judicial Inspectorate 2011/2012
Department of Correctional Services Annual Report of the Judicial Inspectorate for Correctional Services 2011/2012 (The Department Pretoria 2012)
Dugard International Law
Dugard J International Law: A South African Perspective 3rd ed (Juta Cape Town 2005)
Long and Murray 2012 AHRLJ
Long D and Murray R "Ten Years of the Robben Island Guidelines and Prevention of Torture in Africa: For What Purpose?" 2012 AHRLJ 311-347
Mujuzi 2006 AHRLJ
Mujuzi JD "An Analysis of the Approach to the Right to Freedom from Torture adopted by the African Commission on Human and Peoples' Rights" 2006 AHRLJ 423-441
Schwikkard "Arrested, Detained and Accused Persons"
Schwikkard PJ "Arrested, Detained and Accused Persons" in Currie I and De Waal J (ed) The Bill of Rights Handbook 5th ed (Juta Cape Town 2005) 737-797
Van Zyl Smit and Spencer "European Dimension to the Release of Sentenced Prisoners"
Van Zyl Smit D and Spencer JR "The European Dimension to the Release of Sentenced Prisoners" in Padfield N et al (eds) Release from Prison: European Policy and Practice (Willan Publishing Devon 2010) 9-46
Wan 2008 Brook J Int'l L
Wan CD "Prisoner Transfer between Hong Kong and Mainland China: A Preliminary Assessment" 2008 Brook J Int'l L 463-501
Register of cases
Bogaards v S 2013 1 SACR 1 (CC)
Bradley McCallum v South Africa Communication No 1818/2008 UN Doc CCPR/C/100/D/1818/2008 (2010)
Buijen v Germany Application No 27804/05 (1 April 2010)
Drozd and Janousek v France and Spain Application No 12747/87 (26 June 1992)
Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt Communication No 334/06 (decided at the 9th extra-ordinary session held from 23 February to 3 March 2011)
Ferreira v Levin; Vryenhoek v Powell 1996 1 SA 984 (CC)
Gareth Anver Prince v South Africa 1474/2006 (Human Rights Committee)
Garreth Anver Prince v South Africa Communication No 255/02 (African Commission on Human and Peoples' Rights)
Glenister v President of the Republic of South Africa 2011 3 SA 347 (CC)
Kaunda v President of the Republic of South Africa 2005 4 SA 235 (CC)
Lee v Minister of Correctional Services 2013 2 SA 144 (CC)
Mapule v S 2012 ZASCA 80 (30 May 2012)
Mthembi-Mahanyele v Mail & Guardian Ltd 2004 3 All SA 511 (SCA)
Oldwage v Louwrens 2004 1 All SA 532 (C)
Omar Othman Aka Abu Qatada v Secretary of State for the Home Department [2013] EWCA Civ 277
Patricia Gerber v Government of the Republic of South Africa 2010 ZAGPPHC 240 (9 December 2010)
Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa 2000 2 SA 674 (CC)
S v Brophy 2007 2 SACR 56 (W)
S v Bull 2001 ZASCA 105 (26 September 2001)
S v Dzukuda; S v Tshilo 2000 2 SACR 443 (CC)
S v Jacobs 2011 1 SACR 490 (ECP)
S v Mofokeng 2013 1 SACR 143 (FB)
S v Mthembu 2008 2 SACR 407 (SCA)
Samantha Orobator v Governor of HMP Holloway and Secretary of State for Justice [2010] EWHC 58 (Admin)
Smith v Germany Application No 27801/05 (1 April 2010)
South African Broadcasting Corporation Limited v Thatcher 2005 4 All SA 353 (C)
Stoichkov v Bulgaria Application No 9808/02 (24 March 2005)
The Queen on the Application of Henry Max Shaheen v The Secretary of State for Justice [2008] EWHC 1195 (Admin)
The Queen on the Application of: Steven Willcox v Secretary of State for Justice [2009] EWHC 1483 (Admin)
Van Vuren v Minister of Correctional Services 2012 1 SACR 103 (CC)
Register of legislation
Canadian International Transfer of Offenders Act of 2004
Constitution of the Republic of South Africa, 1996
Correctional Services Act 111 of 1998
Criminal Law Amendment Act 105 of 1997
Criminal Procedure Act 51 of 1977
Criminal Procedure and Evidence Act [Chapter 9:07] (Zimbabwe)
Malawian Prisons Bill of 2003
Transfer of Convicted Offenders Act 9 of 2005 (Namibia)
Transfer of Convicted Offenders Act of 2012 (Uganda)
Transfer of Convicted Offenders Bill of 2000
Transfer of Prisoners Act 10 of 2001 (Mauritius)
Register of international instruments
African Charter on Human and Peoples' Rights (1981)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1985)
Council of Europe's Convention on the Transfer of Sentenced Persons (1985)
Inter-American Convention on Serving Criminal Sentenced Abroad (1993)
International Covenant on Civil and Political Rights (1966)
Scheme on the Transfer of Sentenced Persons within the Commonwealth (1990)
United Nations Convention against Corruption (2003)
United Nations Convention against Transnational Organised Crime (2000)
United Nations Model Treaty on the Transfer of Convicted Persons (1985)
Register of agreements and treaties
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Republic of Uganda on the Transfer of Convicted Persons (2 June 2009)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Ghana concerning the Transfer of Prisoners (17 July 2008)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda on the Transfer of Sentenced Persons (11 February 2010)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Morocco on the Transfer of Convicted Offenders (21 February 2002)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Antigua and Barbuda on the Transfer of Prisoners (23 June 2003)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Federative Republic of Brazil on the Transfer of Prisoners (20 August 1998)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Barbados on the Transfer of Sentenced Persons (3 April 2002)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Government of the Republic of Cuba on the Transfer of Prisoners (13 June 2002)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Republic of Nicaragua on the Transfer of Prisoners (6 September 2005)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Government of the Dominican Republic on the Transfer of Prisoners (18 February 2003)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Bolivarian Republic of Venezuela on the Transfer of Sentenced Persons (12 June 2002)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of India on the Transfer of Convicted Persons (18 February 2005)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of St Lucia on the Transfer of Prisoners (27 April 2006)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Cooperative Republic of Guyana on the Transfer of Prisoners (5 April 2002)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Islamic Republic of Pakistan on the Transfer of Prisoners (24 August 2007)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Peru on the Transfer of Sentenced Persons (7 March 2003)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Democratic Socialist Republic of Sri Lanka on the Transfer of Prisoners (6 February 2003)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Saudi Arabia on the Transfer of Sentenced Persons (2 January 2012)
Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Suriname on the Transfer of Prisoners (29 June 2002)
Agreement between the Government of the United Republic of Tanzania and the Government of the Republic of Mauritius on the Transfer of Convicted Offenders (First Schedule to the Transfer of Prisoners (Republic of Tanzania)) (2008)
Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Great Socialist People's Libyan Arab Jamahiriya on the Transfer of Prisoners (17 November 2008)
Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Lao People's Democratic Republic on the Transfer of Sentenced Persons (7 May 2009)
Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Socialist Republic of Vietnam on the Transfer of Sentenced Persons (12 September 2008)
Agreement between the Government of the United Republic of Tanzania and the Government of the Republic of Mauritius on the Transfer of Convicted Offenders (2008)
Register of internet sources
African Commission on Human and Peoples' Rights 2005 http://bit.ly/14gRJep
African Commission on Human and Peoples' Rights 2005 Report of the Special Rapporteur on Prisons and Conditions of Detention in Africa Mission to the Republic of South Africa 14-30 June 2004 http://bit.ly/14gRJep [date of use 27 April 2013]
allAfrica 2012 http://www.bit.ly/16d7zVL
allAfrica 2012 Mozambique: Prisoner Transfer Agreement with Malawi http://www.bit.ly/16d7zVL [date of use 27 April 2013]
allAfrica 2012 http://www.bit.ly/RBrlEU
allAfrica 2012 Zambia: Nation, Malawi Exchange Prison http://www.bit.ly/RBrlEU [date of use 24 July 2013]
Baguma 2009 http://www.bit.ly/1bGpVEi
Baguma R 2009 UK Funds Luzira Prison Rehabilitation http://www.bit.ly/1bGpVEi [date of use 27 April 2013]
Committee against Torture 2006 http://bit.ly/1aoRW2P
Committee against Torture 2006 Concluding Observations of the Committee against Torture on South Africa's Initial Report CAT/C/ZAF/CO/1 (7 December 2006) http://bit.ly/1aoRW2P [date of use 27 April 2013]
Correctional Services of Canada 2012 http://www.bit.ly/11kVSMX
Correctional Services of Canada 2012 International Transfer of Offenders http://www.bit.ly/11kVSMX [date of use 27 April 2013]
Council of Europe 2013 http://www.bit.ly/15CifwK
Council of Europe 2013 Convention on the Transfer of Sentenced Persons http://www.bit.ly/15CifwK [date of use 27 April 2013]
Council of Europe 2013 http://www.bit.ly/18vzUZd
Council of Europe 2013 List of Declarations Made with Respect to Treaty No 112 http://www.bit.ly/18vzUZd [date of use 27 April 2013]
Council of Europe Date Unknown http://www.bit.ly/132UJpp
Council of Europe Date Unknown Explanatory Note http://www.bit.ly/132UJpp [date on use 18 Jan 2013]
Department of Correctional Services 2010 http://www.bit.ly/KVL7tz
Department of Correctional Services 2010 Foreign Incarceration Levels http://www.bit.ly/KVL7tz [date of use 12 Dec 2012]
Jones 2009 http://www.bit.ly/11kVgGY
Jones M 2009 SA Drug Mules Could Rot Behind Bars http://www.bit.ly/11kVgGY [date of use 27 April 2013]
Lusaka Times 2011 http://www.bit.ly/1aEjCy4
Lusaka Times 2011 Zambia and Mozambique Sign MoU on the Transfer of Convicted Persons http://www.bit.ly/1aEjCy4 [date of use 27 April 2013]
Mhlana 2012 http://www.bit.ly/128pSHi
Mhlana Z 2012 Prison Deal Might Help Locals in Foreign Jails http://www.bit.ly/128pSHi [date of use 12 Dec 2012]
Modern Ghana News 2010 http://www.bit.ly/17UXP6P
Modern Ghana News 2010 Ghana, Nigeria to Exchange Prisoners http://www.bit.ly/17UXP6P [date of use 27 April 2013]
Morris 2011 http://www.bit.ly/vkXxZm
Morris S 2011 Shrien Dewani Would be Properly Cared for in South Africa, Court Hears http://www.bit.ly/vkXxZm [date of use 27 April 2013]
OAS Date Unknown http://www.bit.ly/119Xt7T
OAS Date Unknown Signatories and Ratifications http://www.bit.ly/119Xt7T [date of use 27 April 2013]
Parliament UK 2012 http:www.//bit.ly/14oXBSY
Parliament UK 2012 Prisoners: Repatriation http:www.//bit.ly/14oXBSY [date of use 12 June 2013]
Pillay 2012 http://www.bit.ly/13PDc7N
Pillay G 2012 SA's Prisoner Transfer Agreement at Advanced State http://www.bit.ly/13PDc7N [date of use 14 Dec 2012]
PMG 2000 http://www.bit.ly/11kUVEf
PMG 2000 Transfer of Convicted Prisoners Draft Bill; Special Petitions: Discussion http://www.bit.ly/11kUVEf [date of use 12 June 2013]
PMG 2001 http://www.bit.ly/13X2e3f
PMG 2001 Transfer of Convicted Prisoners Bill, Corruption Amd Bill, Fund for Victims of Crime Bill: Depts' Response http://www.bit.ly/13X2e3f [date of use 12 June 2013]
PMG 2012 http://www.bit.ly/12G8fF3
PMG 2012 Department of Correctional Services 2012 Strategic Plan: Input by Parliamentary Research Unit & Stakeholders http://www.bit.ly/12G8fF3 [date of use 12 Dec 2012]
SAPA 2011 http://www.bit.ly/mHpaci
SAPA 2011 Most Foreign Prisoners from Zim, Moz http://www.bit.ly/mHpaci [date of use 27 April 2013]
Slack 2009 http://www.dailym.ai/u0QoT
Slack J 2009 Britain 'to Build £1m Jail in Nigeria' for 400 Prisoners Serving Sentences Here http://www.dailym.ai/u0QoT [date of use 27 April 2013]
The Commonwealth Date Unknown http://www.bit.ly/YsnMVT
The Commonwealth Date Unknown South Africa http://www.bit.ly/YsnMVT [date of use 27 April 2013]
Published
Issue
Section
License
Copyright (c) 2017 Jamil D Mujuzi
This work is licensed under a Creative Commons Attribution 4.0 International License.
.png){kind=spacer}