Johannesburg - South African prisoners are nowhere near being given the human-rights friendly treatment aimed at setting them on a path to rehabilitation.
Twenty-two years after Nelson Mandela said on June 25, 1998, that the way a society treats its prisoners is one of the sharpest reflections of its character, South African jails are overcrowded with incidents of abuse and gangsterism.
Operational challenges, such as reporting and overcrowding, and question marks over the independence of the body tasked with monitoring and oversight of South Africa's correctional system have thwarted Madiba’s dream.
Perhaps Mandela was an idealist, or sincerely believed that the apartheid prisons system would eventually morph into a rights-friendly haven with rehabilitation at the heart of democracy. But his vision is far from being realised. In apartheid prisons, the inhumanity of that system was clear, recalled Mandela, adding that this could perhaps only be fully appreciated by those who suffered the experience of incarceration as a black person under apartheid.
“But all of us do know that it was a prison system with no room for human rights, one designed to rob each prisoner of his human dignity and which thereby in the end also took away the human dignity of the prison authorities and personnel themselves,” Mandela said during an address to launch human rights training for correctional services employees.
“Sealed off from exposure to international influences and trends, hidden from the media, and steeped in a militaristic and security perspective and training, our country's prisons were in all these respects like the apartheid system itself, only more intensely so. We have inherited a system illequipped to serve the needs of a democratic society founded on a culture of human rights,” he said at the time.
However, more than two decades following that seminal address, the status of prisoners in the country can hardly be described in the same glowing human-rights-friendly vision espoused by Madiba.
At the heart of the problem remains chronic operational challenges, which have hampered the oversight and monitoring body, the Judicial Inspectorate for Correctional Services (Jics) since its formation in the late nineties.
Justice Edwin Cameron, the respected former Constitutional Court judge and current incumbent at the helm of Jics, told the Wits Justice Project that the most pressing operational challenges revolve around:
Mandatory reporting: which requires that the Department of Correctional Services (DCS) must report certain acts to Jics. Prompt accurate mandatory reports are crucial on the one hand for the well-being and safety of incarcerated people, and on the other hand serve as an important early warning system of trouble or discontent in the correctional system.
Overcrowding: South Africa has the highest incarcerated population in Africa and the 12th highest in the world. Since 1995, the number of incarcerated persons has increased by two-fifths. Overcrowding is a far-reaching challenge and thwarts good governance and administration. Rather than spaces for rehabilitation, prisons become unmanageable and punitive.
Facilities: The physical state of correctional facilities is a pressing concern. Additionally, it bears directly on the safety of both inmates and officials.
Independence: This year Covid19 has intensely accentuated the difficulties that arise when a prisons inspectorate is not independent of the body it oversees.
For the first two months of national lockdown, independent correctional centre visitors were barred access to all centres. Consequently, prisons were left without effective oversight and incarcerated persons had no independent way to cry for help or forward grievances.
The autonomy of the Jics, ultimately its credibility, may be constrained while they still do not enjoy functional independence from the DCS, says Louise Edwards, director of programmes and research at the African Policing Civilian Oversight Forum.
Commenting on a Proposed Draft Bill by Jics, she said the forum was encouraged by the reference aligning the bill with the requirements of the Optional Protocol to the UN Convention against Torture (Opcat).
“We are an interested civil society stakeholder in the establishment and success of an independent and effective National Preventive Mechanism and support the efforts of Jics to promote the fundamental tenets of Opcat in its enabling legislation.
Independence is premised on an institution’s legislative, operational and financial independence,” Edwards said.
Sasha Gear, co-director, Just Detention International – South Africa, told the Wits Justice Project that importantly, severe overcrowding is combined with a shortage in staffing in facilities, so not only is the system housing many more people than it should, but fewer staff are left with the task of managing them.
“The result is horrific conditions and a lack of basic services in many facilities, exacerbated by many of the buildings being in a state of disrepair. Incarceration is used way too quickly, and not as the last resort that it should; many of the people behind bars should not be there in the first place. Awaiting trial facilities are particularly under resourced, overcrowded, and dangerous,” said Gear.
She said while key changes have been made since apartheid – not least eradicating the race-based system, the foregrounding of human rights in governing legislation and establishment of oversight bodies – the reality on the ground is a far cry from that envisioned in the progressive policy framework, and the poor are hardest hit in the criminal justice system.
The issue of independence, however, is not new, according to Justice Cameron, who pointed out that four years ago the Sonke Gender Justice movement had asked the High Court to strike down provisions of the Correctional Services Act that failed to guarantee Jics’s operational and financial independence.
“We have been awaiting the confirmation judgment of the Constitutional Court since March 2,” he said.
While the Constitutional Court decides on the way forward, Justice Cameron said Jics has already been exploring additional ways to secure its autonomy, including developing a business argument and writing a draft bill to ensure the inspectorate’s independence as a separate “government component” – independent from the DCS within the civil service structure.
The second problem, according to Justice Cameron, is not directly operational but depends on the understanding of incarceration and its function in South Africa.
“This year, I’ve extensively challenged our investment as South Africans in incarceration as a catch-all solution to social problems. Health issues, like drug use and the pandemic, sex work and social precarity should not be diverted to criminal law. Rather than keeping us safe, decades of treating social issues as correctional issues have led to overcrowded and ineffective prisons and have trapped already vulnerable communities in cycles of incarceration,” he said.
“Over-incarceration is a deep problem that touches everything. While we can address issues piecemeal (Covid-19, health care, use of force, facilities), for fundamental improvement we need a bigger shift in the way we think about incarceration.”
Justice Cameron said Jics deals with all complaints of inmates regarding their treatment by DCS as well as their conditions of incarceration.
Asked whether 25 years into democracy, a culture of human rights has been instilled in terms of how inmates are treated compared to under apartheid, Justice Cameron said it was hard to say.
“Jics was established during 1998. That means we don’t ourselves dispose of empirical data on conditions and treatment pre-1998. But I am on record as saying that we have a long way to go in order to fulfil the high promises in the Constitution of South Africa (education, training, rehabilitation, conditions consequent with dignity),” he said.
“It is said 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, Mandela once said.”
Mandela’s famous challenge on the subject indicates that Justice Cameron by his own modest admission and the DCS (their arresting silence speaks volumes) both have an arduous road towards dignity for inmates.
“But it helps that in his lifetime Mandela hailed Justice Cameron as one of the country’s new heroes. Still, Justice Cameron has a tough task ensuring Madiba’s human rights vision for prisoners becomes reality.
* Edwin Naidu writes for the Wits Justice Project. Based in the journalism department of Wits University, the WJP investigates human rights abuses and miscarriages of justice related to SA’s criminal justice system.