Overview
The preceding chapter presented the findings of the study using a thematic approach. This chapter discusses the findings presented in chapter four. This chapter is arranged based on subtitles arising from the major findings of each objective in chapter four. The subtitles in this chapter are arranged as follows; the international and national legal framework in relation to prisoner’s rights to remunerable employment, the extent to which the Zambia Correctional Service complies with international instruments in relation to prisoner’s rights to remunerable employment, extent to which national policy impede the Zambia Correctional Service from implementing its mandate.
Before looking at the various human rights instruments and standards existing at the international level, a word about the legal force of these standards would be in order. The collective body of standards examined and discussed in this study spans the full range of international legal authority, from binding obligations set out in various covenants and conventions to morally persuasive universal guidance offered through various declarations, minimum rules, and bodies of principles. Together, these instruments offer a comprehensive and detailed international legal framework for ensuring respect for human rights, freedom and dignity in the context of criminal justice.
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In strict legal terms, formal treaties which have been ratified or acceded to by States, as well as customary international law, have the character of binding law. Such treaties, salient to the study, include the following:
- International Covenant on Economic, Social and Cultural Rights;
- International Covenant on Civil and Political Rights;
Mention should also be made of the Charter of the United Nations, itself a legally binding treaty to which all Member States are parties.
Human rights standards are also enshrined in other types of instruments: declarations, recommendations, bodies of principles, codes of conduct and guidelines (such as the Universal Declaration of Human Rights 1948, Basic Principles for the Treatment of Prisoners, among others). These instruments are not legally binding on States in and of themselves. Nevertheless, the various declarations, guidelines and minimum rules, which are analyzed and discussed in this study hand in hand with the relevant conventions, have moral force and provide practical guidance to States in their conduct with regard to prisoner’s rights. The value of these instruments rests on their recognition and acceptance by a large number of States and, even without binding legal effect, they may be seen as declaratory of principles that are broadly accepted within the international community. What is more, some of their provisions, particularly relevant to the purpose of this study, are declaratory of elements of customary international law and are thus binding.
The study found that although some of the foregoing provisions make general reference to the right of everyone to remunerable employment, they do not specifically single out prisoners and neither do they make any categories of people entitled to these rights. Hence by implication, everyone is entitled to this right regardless of their status.
The international and national legal framework in relation to prisoner’s rights to remunerable employment
The promulgation of human rights standards made in the charter of the United Nations, the Universal Declaration of Human Rights, the ICCPR and ICESCR make general reference to human rights entitlements for everyone without discrimination. However, these instruments are supplemented by more specific standards such as Standard Minimum Rules for the Treatment of Prisoners, Basic Principles for the Treatment of Prisoners, among others.
These should not be seen merely as empty statements of principle. The combined effect of these provisions have the legal effect of, once and for all, putting to rest all arguments as to whether human rights and their enjoyment by individuals were subjects for international law, or merely matters of State sovereignty. Consequently, the fact that prison officials are bound by such rules is now beyond dispute.
What is more is that these international instruments have found their way into our national legislation. Part III of the Constitution of Zambia spells out the fundamental rights and freedoms of the individual. This part is also known as the Bill of Rights. Article 23 of the Constitution provides protection against all forms of discrimination. By implication, this articles includes employment discrimination based on past criminal record.
With regard to remunerable employment, the study found that Section 75 of the Prisons Act , provides that:
- Every criminal prisoner shall be engaged in such work within or without the precincts of any prison, as may be directed by the officer in charge, and as far as is practicable such work shall take place in association or outside cells with other criminal prisoners…
- A civil prisoner and an unconvicted prisoner may elect to work and if he so elects, shall receive payment at such rates as may be prescribed.
The study found that the ZCS was operating under the old Prisons Act of 1966 whose provisions were outdated and could not be consistent with recent global and national developments. Since the enactment of the 2016 Constitution (Amendment) Act, there was a paradigm shift with regard to the ZCS’ mandate. The Constitution did not only bring about the transformation of the Zambia Prison Service to Zambia Correctional Service, but with it come a mandate shift from placing emphasis on custodial services to placing emphasis on correctional services. As noted by the then Commissioner of Prisons, Mr. Percy Chato when President Edger C. Lungu signed the constitutional amendment Bill on January 5, 2016, “it signaled the transformation of the prisons from punitive institutions to correctional establishments.” He explained that Zambia is a member of the African Correctional Service Association (ACSA), Zambia is required to introduce prison management systems that respect human rights.” Hence, these correctional services entail a robust programme of rehabilitation activities inclusive of which is job placements for prisoners.
The study found that there are serious gaps or grey areas in our current legal framework with regard to the prisoners’ right to remunerable employment. Although the Act makes provision for remunerable employment for civil and unconvicted prisoners, it does not specifically spell out the ZCS mandate to carry out job placements for prisoners apart from the Prisons Standing Order 168(f) which in fact stands in contradiction to the national policy of not employing ex-prisoners in the civil service. The Act is silent on job placements for ex-prisioners, employment of ex-prisoners in the civil service as well as provision of remunerable jobs for criminal convicts as well as those with long years of hard labour sentences. The Act does not also provide for the minimum number of years an ex-prisoner must stay after release before the can be reconsidered for employment in the civil service. The existing law does not also provide sufficient guidance on how the funds earned by prisoners would be used by the prisoner, method of sending some to the family and how the balance would be kept until the prisoner is released. Shockingly, the existing legal framework does not expressly illegalize employment discrimination based on past criminal record. These are salient provisions that would make a big difference in the ZCS current execution or implementation of the new mandate.
Furthermore, the current Act only refers to the establishment of the ZPS and control of prisons and prison officers. It does not clearly state the purpose and all the functions of the ZPS (now ZCS) as intended by the constitutional transformation. It only focuses on custodial services and it does not include the correctional and extension services mandate of the Service.
The extent to which the Zambia Correctional Service complies with international instrument in relation to prisoner’s rights to remunerable employment
The former Commissioner General of Prisons Mr. Percy Chato explained that “as a signatory to a number of international protocols that provide guidelines for modern prison management, Zambia was mandated to change to the correctional system.” Although Zambia is party to numerous international instruments that expressly provide guidance on the prison authority mandate to provide remunerable employment for prisoners, the country has not adequately and fully domesticated these international instruments such as the Standard Minimum Rules for the Treatment of Prisoners and the Basic Principles for the Treatment of Prisoners which in effect makes compliance to most of their salience provisions simply persuasive.
In addition, the MHA and ZCS have not developed the requisite tools to facilitate for the implementation of rehabilitation and reintegration programmes by prisons. For instance, there was no comprehensive national policy on Internal Security to give Government policy directives on how to manage the prisoners and address their rehabilitation and reintegration needs. In addition, the Prisons Act Cap 97 of the laws of Zambia, its amendment Act No 16 of 2004 and the Prison Act Prison Rules statutory instrument No 101 of 2008 were all outdated and had not been reviewed by ZCS, the MHA and Ministry of Justice as of May 2019. The outdated Act hindered the ZCS and the prisons to carry out rehabilitation and reintegration programmes effectively in line with international instruments in relation to prisoner’s rights to remunerable employment.
The study’s finding of only one prisoner out of the two prisons under investigation being placed in remunerable employment gave a clear indication of ZCS non-compliance levels with international instruments in relation to prisoner’s rights to remunerable employment.
Job placements are part of community re-entry programmes. Finding work upon release is vital for the rehabilitation of a prisoner, as employment provides stability, much needed income and makes the prisoner less likely to return to a life of crime.
The extent to which national policy impede the Zambia Correctional Service from implementing its mandate
The study found that there was no comprehensive national policy to provide guidance on the implementation of the ZCS mandate with regard to rehabilitation and reintegration and specifically remunerable job placements for prisoners. The lack of this national policy compounded with government position of not employing ex-prisoners has made it difficult for the ZCS to implement its mandate as stipulated in under section 76(3) of the Prisons Act as well as Prisons Standing Order 168(f).
It was evident from the participants’ accounts that getting employment after serving time in prison is a major challenge. It would seem that prospective employers view employing ex-offenders as a risk not worth taking. In other words, society is unforgiving when it comes to giving second chances and offering employment opportunities to ex-offenders. While this may be understandable, denying ex-offenders an opportunity to gainfully be employed is simply counter- productive. How can they fend for themselves if they cannot find employment? Does that not predispose the to a life of continued crime? An extensive body of research supports the view that a criminal record or time in prison makes individuals significantly less employable given that most employers do background checks on prospective employees. Ex-offenders often face employment discrimination once they have completed their sentences. This discrimination is often enacted upon completion of employment applications that require responses about past criminal records, figure prints, ect. Ex-prisoners are ruled out before being given an opportunity for interview thus inhibiting employment and increasing the likelihood of repeat offense. Many developed countries such as America, Australia, Britain and Canada have passed legislation as well as national policies prohibiting discrimination based on criminal record. This study therefore found that lack of a comprehensive national policy coupled with government position on not employing ex-prisoners in the civil service impedes ZCS from implementing its mandate with regard to rehabilitation and reintegration and specifically remunerable job placements for prisoners.
Conclusion
The efficacy and importance of this study cannot be over-emphasized. Paying a blind eye to issues of recidivism caused by failure to properly execute rehabilitation, transition and reintegration of ex-prisoners into society using a human rights approach only compromises and threatens our nation’s internal security. To avert this, the MHA and ZCS need to urgently revise the law and come up with a comprehensive national policy to effectively guide the ZCS in the implementation of its mandate.
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