Carolyn Raphaely
S aziso Nkala, like most Zimbabweans, came to South Africa cherishing the hope of a better future for herself and young child. Instead, she was arrested on apparently spurious charges of robbery and forced to spend five years and two months in the Johannesburg Women’s Prison (aka Sun City) as an awaiting trial, or remand detainee.
When her case was finally struck off the roll for lack of evidence in May, she was released without being convicted of any crime to shattered dreams and a broken life.
Nkala, 32, had no job, no money, no compensation from the state, a son now aged 12 and the stigma of jail clinging to her indelibly.
During her time behind bars, she witnessed the joy and pain of births and the misery and anguish of deaths.
She contracted tuberculosis, probably from the woman with whom she was forced to share one of 36 beds in a cell accommodating between 65 to 70 others, including alleged murderers, drug traffickers, fraudsters and petty thieves.
“That side, if you are sick, they don’t care – especially if you’re a foreigner… one lady was dying in the cell. We called the warders, but they said they were busy having breakfast. Then she died.
“Inmates who die in the cell after lockdown are left with the other inmates in the cell until morning,” Nkala recalled.
“If you start getting labour pains and the door is locked, it’s locked. You bang (on) the door for help – and if they eventually come – they only come to the window. They will not open till the following day…”
The government’s alleged commitment to deepening democracy and respect for citizens’ hard-won constitutional rights appear meaningless for South Africa’s approximately 50 000 remand detainees – one third of all prisoners, for whom little seems to have changed since the bad old days.
As a result, South Africa, darling of the international human rights community, is violating its own Bill of Rights and Constitution as well as flouting its international human rights obligations in terms of conventions like the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UN CAT).
Chronic overcrowding and concomitant problems like gang rape, violence, the spread of infectious diseases like TB, HIV/Aids and hepatitis, lack of access to medical care, lack of reading matter and exercise, and lengthy periods of detention mean South Africa is also cocking a snook at the Universal Declaration of Human Rights and the UN Human Rights Council – a body on which South Africa served from 2007-2010 – as well as the International Convention on Civil and Political Rights and the African Charter.
Nkala’s story is not unusual.
In Gauteng, more than 1 000 innocent-until-proven-guilty remand detainees have been held in prison for more than two years – some for as long as six – in conditions described by Inspecting Judge of Prisons Deon Van Zyl in his 2009/10 report as “shockingly inhumane”.
Since two in five of South Africa’s remand detainees will eventually be acquitted, this means thousands of “innocent” people are imprisoned in appalling conditions.
Van Zyl’s report was produced 10 years after South Africa’s 1998 ratification of UN CAT and the specific prohibition of acts of cruel, inhuman or degrading treatment or punishment (“ill treatment”) in Article 16. As stated by the Committee against Torture, the obligation to prevent ill treatment under UN CAT is “indivisible, interdependent and interrelated to the obligation to prevent torture”.
Now the Civil Society Prison Reform Initiative and the Parliamentary Programme at the Community Law Centre of the University of the Western Cape have launched a campaign seeking the fulfilment of all UN CAT relevant obligations – including criminalising torture.
“There’s no doubt in my mind that prison conditions are far worse now than pre-1994,” opined one retired apartheid-era judge who did not want to be quoted. “In the old days, if anyone was awaiting trial for more than six months, this was a flashing light indicating a matter requiring urgent investigation.”
Though being sent to prison constitutes punishment enough, in South Africa prison conditions constitute additional punishment.
Despite Van Zyl’s protestations to the contrary in the much publicised Shrien Dewani extradition hearing, his own report stipulates the living conditions of remand detainees “do not remotely comply with the requirements set forth in Section 35 (2) (e) of the constitution – namely conditions of detention consistent with human dignity, including at least exercise and the provision at state expense of adequate accommodation, nutrition, reading material and medical treatment”.
Van Zyl also noted that 19 of South Africa’s correctional centres are critically overcrowded and that “conditions at these centres are totally unacceptable and require urgent attention”.
For example, the Medium A section of Sun City has a fluctuating population of between 5 500 and 6 000 remand detainees in a facility designed to house 2 630.
Though the right to an adequate standard of living and highest attainable standards of physical and mental health are guaranteed by both the Universal Declaration of Human Rights and the International Convention on Economic Social and Cultural Rights, compliance with these conventions is questionable.
According to Wits associate professor of law, Bonita Meyersfeld, “a lack of enforcement is the biggest weakness in the human rights system. Contravening international conventions based on non-coercive compliance carries no punishment, except naming and shaming”.
Conditions in South African jails are not unique. A US Supreme Court ruling at the end of May declaring overcrowding in Californian prisons unconstitutional, upheld an order that could force the transfer or release of more than 30 000 convicted offenders in the next two years. In a landmark decision, the court ruled that prison overcrowding violated the US constitution and constituted “cruel and unusual punishment” violating the Eighth Amendment.
The court ruling had affirmed an earlier January court order that instructed California officials to reduce the state’s severe prison overcrowding by 32 000 prisoners within the next two years.
The order was delivered after federal judges concluded California prisons weren’t providing constitutionally adequate medical care and mental health services, due in part to severe overcrowding.
“It’s not relevant that South African prison conditions are not unusual,” notes Meyersfeld. “The California judgment has demonstrated that overcrowding and keeping people in these conditions is clearly an unlawful act. What matters is that South Africa has international obligations, it ratified the UN CAT in 1998 and its own constitution confirms the government is subject to treaty requirements.”
Though the UN Standard Minimum Rules for the Treatment of Prisoners sets out the standards for pre-trial detention, even with the best will in the world it’s often impossible for Correctional Services officials to fulfil its requirements.
Take Willie Pretorius, director of Sun City’s overcrowded Medium A facility. According to Pretorius, conditions there dictate that he could be charged with contravening the Correctional Services Act, the Criminal Procedures Act and the Labour Act on a daily basis.
“It’s not possible to exaggerate the reality of these circumstances,” he said. “Sometimes I just want to throw in the towel and run away.”
Though the degree of prison overcrowding for remand detainees rose by 1 044 percent nationwide between 1995 and 2009, according to the SA Institute of Race Relations, and the number of those held in custody for 18-24 months rose by 4 000 percent, prison overcrowding may well be a consequence of a dysfunctional criminal justice system – lost transcripts, absent witnesses and prison mismanagement – rather than rising crime rates.
The difficulty lies in reducing the prison population without compromising public safety.
Last month Minister of Correctional Services Nosiviwe Mapisa-Nqakula announced the introduction of an electronic tagging system to increase Correctional Services’ monitoring capacity for parolees, certain categories of remand detainees and first-time offenders serving sentences for minor crimes.
In addition, the recently promulgated Correctional Matters Amendment Act stipulates a two-year maximum incarceration period from date of admission without the matter having been brought to the attention of the court. “Deprivation of liberty must be an exceptional measure,” the judge said.
“The International Covenant on Civil and Political Rights requires that prisoners are brought to trial and proceedings completed within ‘a reasonable time’, or that they’re released on bail.
“Tens of thousands of people are judicially entitled to await trial at liberty and continue with their lives until their trial date. Some go free because they have money, many don’t.
“The difference between those that go free and those detained behind bars for 23 hours a day is mainly financial means – the poor go to prison and the comfortable go free. This constitutes discrimination on financial grounds and any form of discrimination is outlawed by the constitution.”
Given South Africa’s high crime rates, it’s predictable that prisoners’ rights are not a popular cause and that remand detainees like Nkala are perceived to be guilty simply for having spent time behind bars.
“A minuscule percentage of those deprived of their liberty by the judicial system erred to such an extent that punishment justifies depriving them of their liberty,” the judge added.
“The criminal justice system is completely overloaded and inefficient. In an overwhelming number of cases, people are kept in custody when there’s no reason for them to be there.
“Exposing someone to prison gangs, depriving them of their right to privacy, their right to liberty, dignity and physical integrity can’t be necessary or reasonable if it can be avoided. You can’t use incompetence as an excuse. The whole system is defective and deficient.”
Nelson Mandela once famously stated that “no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones”.
In a country whose progressive constitution has made it the standard bearer for democratic processes and practices for almost two decades, the jury is out regarding the treatment and conditions in which remand detainees are currently incarcerated.
l Additional reporting by Taryn Arnott. Raphaely and Arnott are members of the Wits Justice Project, which investigates alleged miscarriages of justice. Next Wednesday the WJP will hold a conference titled “Remand Detention: Challenges and Solutions” at the university.