BILL WATCH 16/2023
[6th April 2023]
The Prisons and Correctional Service Bill
This Bill proposes to replace the existing Prisons Act with a new Act that conforms with the Constitution. It has just had its First Reading in Parliament. Having been considered by the parliamentary portfolio committee on Justice, Legal and Parliamentary Affairs; the Committee is about to present its report. The Bill can be accessed on the Veritas website [link] and so can amendments which the portfolio committee recommends should be made to the Bill at its Committee Stage in the National Assembly [link].
In this bulletin we shall analyse the Bill but before doing so we shall look at what the Constitution says about the Prisons and Correctional Service and its functions.
What the Constitution Says About
The Prisons and Correctional Service and Rights of Prisoners
Establishment of Service
Section 227 of the Constitution establishes the Prisons and Correctional Service with the mandate of:
“the protection of society from criminals through the incarceration and rehabilitation of convicted persons and others who are lawfully required to be detained, and their reintegration into society.”
The Service is also responsible for the administration of prisons and correctional facilities. Section 227 further provides that the Service must be non-partisan, national in character, patriotic, professional and subordinate to the civilian authority as established by the Constitution.
The Service is headed by a Commissioner-General of the Prisons and Correctional Service who, in terms of section 229 of the Constitution, is appointed by the President after consultation with the Minister responsible for the Service – currently the Minister of Justice, Legal and Parliamentary Affairs. The Commissioner-General is appointed for a five-year term, renewable once, but can be dismissed at any time by the President after consultation with the Minister [section 340(1)(f) of the Constitution]. The Commissioner-General must obey general written policy directives given by the Minister acting on the President’s authority [see section 229(4) of the Constitution].
Prisons and Correctional Service Commission
Section 230 of the Constitution establishes the Prisons and Correctional Service Commission, and section 231 makes it responsible for employing correctional officers and fixing their conditions of service; for that purpose it has the power to make regulations with the approval of the Minister.
Rights of prisoners
Section 50(5) of the Constitution gives prisoners some important rights:
They must be told promptly why they are being detained,
They must be allowed to consult their lawyers privately,
They must be allowed to communicate with and be visited by their spouses, relatives, lawyers, doctors and priests – and anyone else of their choice, subject to reasonable security precautions, and
Their conditions of detention must be consistent with human dignity. Facilities for exercise, ablution facilities, adequate nutrition, appropriate reading material and medical treatment must be provided.
Analysis of the New Bill
The purpose of the Bill, as we have said, is to replace the existing Prisons Act with a new Act that conforms with the Constitution. The Bill is a long one so we shall direct our analysis primarily at seeing how far it is compatible with the Constitution; we shall also look at some new concepts it will introduce.
The Bill will introduce some new terms which stress the reformative role of prisons:
Prison officers are to be called correctional officers – though we note that the term “prison officer” is still used inadvertently in a couple of places.
Prisoners are to be called inmates, though again the term prisoner is used inadvertently in the Bill.
A new term “correctional facility” is introduced but it is not clear what it means or if prisons are to be included in the term.
Prisons and Correctional Service
Clause 3 of the Bill purports to establish the Prisons and Correctional Service [which is unnecessary since the Service has already been established by section 227 of the Constitution] and gives the Minister of Justice power to prescribe the ranks of correctional officers [which is odd because the ranks are set out in the First Schedule to the Bill].
More usefully, clause 4 of the Bill sets out principles that should guide the Service, with an emphasis on openness and responsiveness to the needs of offenders, victims and the public.
The functions of the Service, set out in clause 5, require the Service to ensure that every inmate [i.e. prisoner] “is secured in safe and humane custody” until lawfully released. This statement will probably make the Service legally accountable if inmates are held in unsafe or inhumane conditions. Clause 5 will also permit the President to confer additional functions on the Service, though it does not say how he will do this.
Commissioner-General of the Prisons and Correctional Service
Clauses 6, 7 and 8 of the Bill deal with the appointment, functions, retirement and removal of the Commissioner-General and will bring them into line with the Constitution.
Clause 6(5) states that the Commissioner-General must act subject to the Minister’s directions, which could allow the Minister to micro-manage what the Commissioner-General does. This is too wide: section 229(4) of the Constitution gives the Minister power to give broad written policy directives to the Commissioner-General, so clause 6(5) should limit the Minister’s directives to general matters of policy.
Prisons and Correctional Service Commission
Clauses 16 to 18 of the Bill deal with the appointment and conditions of service of members of the Commission, for the most part repeating the equivalent provisions of the Constitution. Clause 19 gives the Commission the same functions it is given in the Constitution, though in addition the Commission will be empowered to conduct inquiries or investigations into the Service.
Part IV of the Bill will provide for various new facilities such as correctional community centres, temporary correctional centres and open correctional facilities, all intended to prepare inmates for reintegration into society. Security levels for these facilities will be determined by the Commissioner-General.
Correctional officers [i.e. prison officers]
Discipline: Part VI of the Bill deals with the discipline of correctional officers and contains detailed provisions setting out the procedures to be followed in trials for offences against discipline. These procedures are currently set out in regulations, and putting them into the Bill will bring it into line with the Defence Act and the Police Act, both of which contain similar provisions. One point should be noted: under clause 55 trial proceedings will have to be conducted in English, and if a trial board thinks an accused person needs an interpreter it will provide him or her with one. The provision of an interpreter should not be left to the discretion of a trial board, because accused persons have a right to a fair trial under the Constitution and if they cannot understand what is going on they have a right to an interpreter.
Use of weapons and liability: Clause 36 of the Bill repeats an existing provision in the Act that allows correctional officers to use force and even resort to firearms when they are reasonably necessary to prevent escapes and maintain order. The Bill adds an important and useful proviso that only a minimal degree of force may be used. It goes on, however, to say that if a correctional officer kills or wounds anyone when using force in terms of the clause, the officer will not commit a criminal offence. Even though the clause does not exempt officers from civil liability, this exemption is probably unconstitutional because:
it puts correctional officers above the law, contrary to section 56 of the Constitution, and
sections 48 and 86(3)(a) of the Constitution prohibit the killing of people in any circumstances.
Inmates [i.e. prisoners]
Information to be given to inmates: Clause 87 of the Bill states that when inmates are admitted to prison, correctional officers will have to explain to them the provisions of the Bill and all applicable prison and correctional services rules and standing orders. The Bill is a very long one, as we have said, and the rules and standing orders are also voluminous. So if this provision is ever put into practice inmates will spend an appreciable part of their sentences listening to correctional officers explaining the law – cruel and inhuman punishment for inmates and correctional officers alike!
Consultation with inmates: Clause 88 will require the Service to invite inmates to contribute to decisions affecting their welfare and rehabilitation. This is a welcome recognition that inmates are persons whose rights must be taken into account.
Facilities to prepare defence: Clause 83 will require officers in charge of prisons to allow inmates adequate facilities to prepare their defence and to give them access to their lawyers. This is an admirable provision, though to comply fully with the Constitution it should state that consultations between inmates and their lawyers must be held in private.
Visitors: Clause 89 will give the officer in charge of a correctional facility a discretionary power to allow inmates to receive visitors in the interests of maintaining their contact with the outside world. The clause does not quite comply with the Constitution, which in section 50(5) gives prisoners an absolute right to be visited by their spouses, relatives and professional advisers.
Health care: In clause 91 the Bill requires the Service to protect inmates’ health, including their mental health, and to provide them with essential health care services. This is another welcome provision.
Release of inmates: Part XIII of the Bill extends the circumstances in which inmates can be released before they have served their sentences. Under the current Act, prisoners are released by the Minister on recommendations from a Prisoners Release Advisory Board or [in the case of prisoners serving sentences of extended imprisonment] a Parole Board. The Act currently prohibits the release of prisoners serving life imprisonment but the Constitutional Court, in a case brought by Veritas, declared this prohibition to be unconstitutional. Under the Bill there will be a single State Parole Board to deal with the release of all inmates serving sentences of imprisonment, including life imprisonment. There will be various forms of parole or early release, including day parole and full parole. The State Parole Board will be responsible for releasing most inmates, but the Minister, on the recommendation of the Parole Board, will authorise the release of inmates serving sentences of 20 years or more and the President, on the recommendation of the Board and the Minister, will authorise the release of inmates serving life sentences.
Comments: The provisions for parole are commendable – much more progressive than those in the current Act – but there are some problems and anomalies:
It is not clear who appoints the chairperson and vice-chairpersons of the State Parole Board.
Under clauses 145 and 146, the only inmates who will be eligible for release on parole will be those serving sentences for “scheduled crimes or offences”, a term which is not defined but apparently refers to the offences set out in the Third Schedule to the Bill. Those offences, however, are prison offences committed by inmates – see clause 113 of the Bill. Parole provisions should be applicable to all inmates serving sentences of imprisonment, whatever offences they may have committed.
A single State Parole Board to consider the cases of all eligible prisoners throughout Zimbabwe may be overwhelmed with work. The Bill should provide for additional boards to be appointed, perhaps on a provincial basis.
Clause 140 suggests that the State Parole Board will merely make recommendations to the Minister, but later clauses indicate that the Board itself will authorise the release inmates on parole. This anomaly should be clarified.
Clause 169 of the Bill will create Correctional Boards of Visitors, one for each province, appointed by the Commissioner-General in consultation with the chairpersons of the provincial and metropolitan councils concerned. The Boards will oversee and advise on prisons and correctional facilities in their provinces. Although the Bill does not say so, members of these Boards will be entitled to visit prisons and interview inmates.
Ministerial policy directives
Clause 182 of the Bill will give the Minister power to issue policy directives to the Commissioner-General regarding conditions of service of correctional officers and the maintenance of the Service in a high state of efficiency. Both these matters fall within the constitutional jurisdiction of the Commission, not the Commissioner-General. Since the Minister has no power under the Constitution to give directives to the Commission, clause 182 should be deleted from the Bill.
Under clause 183 of the Bill the Minister will have extensive power to make regulations after consulting the Commission and the Commissioner-General. Two of the matters for which the Minister can make regulations under the clause – the appointment of correctional officers and their conditions of service – fall within the constitutional jurisdiction of the Commission. They should be deleted from the clause. A further point is that clause 183(4) requires the Minister to consult the trustees of the State Pension Fund before making regulations. That Fund was abolished some 50 years ago, so the provision should also be deleted.
Defects in the Bill
The Bill has its shortcomings. We have noted some of them already in this bulletin, but there are others:
There is no transitional provision saving in force things that were done under the current Act. When that Act is repealed, everything done under it will fall away. There is no provision in the Bill saying that, for example, prisons established under the current Act will continue to be prisons, or that rules and standing orders made under the Act will continue in force until replaced.
There is no mention of prisoners’ rights set out in section 50(5) of the Constitution. At the very least, the section should be referred to in the Bill’s preamble.
There are many errors that should be corrected. For instance:
In clause 2 the definition of “open correctional facility” omits a relevant section number, and the definition of “young inmate” makes no sense.
Clause 18(1) seems to stop halfway.
In clause 183(1) the reference to section 109 of the Constitution refers to the old Lancaster House Constitution, not the current one.
The defects we have noted do not detract from the fact that the Bill is a praiseworthy attempt to improve the deplorable conditions in our prisons and correctional facilities. If enacted and fully implemented it will ensure that prisoners are detained humanely and are given a chance to reform and be rehabilitated into society.