If anything good emerges from the release of President Jacob Zuma's friend and one time financial advisor Shabir Shaik on medical parole, it is that it may improve the shortcomings in the legislation governing the release of terminally ill patients from prison. Shaik's release last year generated enough public controversy to spur the National Council of Correctional Services (NCCS) to lead a discussion on reviewing the legislation on 26 January this year. Chaired by Judge Seraj Desai, participants to the discussion included the Minister of Correctional Services, Nosiviwe Mapisa-Nqakula and her Deputy, Hlengiwe Mhkhize; representatives of non-governmental organizations; Members of Parliament; the Judicial Inspectorate of Correctional Service; heads of Parole Boards; health workers and Department of Correctional Services officials.
Tellingly the Deputy Minister stated, "When we were deployed as ministers in the department, we were baptised with fire. The media kept on bombarding us with all sorts of questions regarding the famous case of Shabir Shaik. The minister assured us all that we will look into the conditions that led to the media to have so much interest in the case."
In terms of section 79 of the Correctional Services Act (CSA) No. 111 of 1998, "Any person serving any sentence in a prison and who, based on the written evidence of the medical practitioner treating that person, is diagnosed as being in the final phase of any terminal disease or condition may be considered for placement under correctional supervision or on parole, by the Commissioner, Correctional Supervision and Parole Board or the court, as the case may be, to die a consolatory and dignified death."
Initially, controversy centred on whether Shaik, who was sentenced to 15 years imprisonment for corruption, fulfilled the legal requirements for medical parole. Indications are that he may not have, as months after his release he was photographed driving around town while on a shopping trip. This sparked speculation that he received preferential treatment due to his close connection to the President. The ongoing attention on this issue started to reveal a range of shortcomings in the current legislation and system governing it.
The Department highlighted these shortcomings in the current legislation. For example, there is a level of uncertainty in relation to the stipulation that medical parole only be granted for prisoners ‘in the final phase of the terminal disease or condition.' This is apparently because some offenders die in the correctional facility even if they are declared by a medical doctor to be in the final phase of a terminal illness. On the other hand some of those who are released later recover to full health. The department media statement alleged that one of their research reports found that over 60 percent of offenders released on medical parole had ultimately recovered.
Furthermore, when offenders do recover, the Act is silent on the measures the department should take to review their parole conditions and if necessary re-incarcerate them. This is seen to undermine the rights of victims and their families and also presents challenges to public safety. In addition, the legislation does not allow for the temporary release of grievously ill prisoners who may not yet be in a final phase of illness and who would recover with better health care so that a prison sentence does not become a death sentence. Returning medically released offenders to correctional facilities if they recover has resource implications for the Department. At the very least a system will have to be put in place to regularly monitor the health of each offender who has been released.
In its 2008/09 Annual report the JICS reported that from a sample of 269 ‘natural' death reports (primarily from illness), only 36 offenders had been considered for medical parole. During 2008, only 54 offenders were released on medical parole. While making representation to the Portfolio Committee on Correctional Services in 2008, the department outlined their reasons for the low number of medical releases as compared with the high number of ‘natural' deaths in prison. They stated that
• In some cases families were unable or unwilling to take care of a terminally ill offender;
• A lack of knowledge within the 52 parole boards to make decisions relating to medical parole;
• There were allegations that in some instances Parole Boards were improperly influenced;
• Concerns especially in cases where the offender had a history of repeat offending;
• Challenges with tracking victims so that they could be invited to make a submission to assist the parole board in reaching a decision;
• Inadequate health care in some correctional centres that may contribute to the death of some offenders.
It is questionable whether a review of the legislation on its own will assist in addressing all of the shortcomings related to medical parole in South Africa. What may be required is a fuller policy review if all the relevant issues are to be addressed in a way that adequately balances the rights of victims with the rights of the offender in relation to medical parole. Nevertheless, it took the release of Shaik from prison to at least ensure that attention was given to this issue which until now has largely been neglected
Written by: Tizina Ramagaga, Junior Researcher, Crime and Justice Programme, Pretoria Office