The historical neglect of South African prisons and prisoner rights requires urgent attention now more than ever. Activists are urging the state to minimise overcrowding after a correctional officer who works at a women’s prison in East London in the Eastern Cape tested positive for Covid-19 on 6 April.
South Africa is among the countries with the highest number of people incarcerated in detention centres. And “our prisons are in a dire state”, says the national prisoners coordinator at non-profit organisation Sonke Gender Justice, Zia Wasserman.
“They are severely overcrowded, which creates and exacerbates many other problems, including lack of sufficient access to sanitation and hygiene materials; poor ventilation in the cells, which increases the risk of TB [tuberculosis] infections; staff shortages and longer lock-up hours, which contributes to a rise in violence, especially sexual violence, and the risk of disease transmission such as HIV; and insufficient access to medical care,” says Wasserman.
Different reports from the Judicial Inspectorate for Correctional Services (JICS), which monitors and oversees South Africa’s prison system, have noted that most of the detainees, those sentenced and others awaiting trial, have chronic and infectious diseases such as HIV and TB. This makes them more vulnerable to Covid-19.
The Department of Justice and Correctional Services has confirmed that the National Institute for Communicable Disease (NICD) will begin mass screenings on Wednesday 8 April at the East London Female Correctional Centre.
History of disease
South Africa has a history of neglecting the rights of incarcerated people, particularly the right to access to healthcare. In the Constitutional Court landmark judgment of Dudley Lee vs The Minister of Correctional Services, it was held that the state had the responsibility to safeguard the rights of prisoners, particularly the right to healthcare. Dudley Lee was held in the remand section of Pollsmoor Prison in Cape Town.
He contracted TB while imprisoned between 1999 and 2004. After he was acquitted and released, he successfully sued the government in the Cape Town high court. However, the Supreme Court of Appeal reversed the high court’s decision on a legal technicality. The matter then went to the Constitutional Court, which found in favour of Lee and affirmed the right of prisoners to access to healthcare.
Justice Bess Nkabinde said: “There is a duty on correctional services authorities to provide adequate healthcare services as part of the constitutional right of all prisoners to conditions of detention that are consistent with human dignity.”
In another case, Sonke Gender Justice and non-governmental human rights organisation Lawyers for Human Rights challenged the constitutionality of conditions in Pollsmoor’s remand section. The challenge came about as a result of the death of two prisoners from a disease spread by rats called leptospirosis. A report from the JICS found conditions in Pollsmoor to be inhumane. In 2016, the Cape Town high court ruled that conditions in the remand section of Pollsmoor were unconstitutional and ordered the state to reduce overcrowding.
There has been some improvement following court intervention and relentless pressure from non-governmental institutions. In the department’s 2018-2019 annual report, it says there was a TB cure rate of 89% and that 99% of inmates diagnosed with HIV were on antiretroviral treatment.
Aware of the potential crisis and the weak points in South Africa’s correctional services, the department announced a number of preventative measures before the national lockdown to stem the spread of Covid-19 in prisons. With one case already confirmed, the department added that it will intensify preventative measures by rolling out mass screening in all facilities.
Spokesperson Singabakho Nxumalo said the department has “procured mobile quarantine sites, which will assist to isolate those who may have acquired the virus while waiting to be moved to outside hospitals. This will also assist greatly in terms of creating social distance where there is overcrowding.”
Among its measures, the government has banned prison visitors and placed a stop on transporting detained people from prisons to the courts, in an effort to minimise contact with the outside world.
Moratorium affects detainees
Nxumalo said that because of the impact the visitor ban will have on inmates, the department “issued a circular advising correctional centres to increase the buying power. This will allow inmates to buy more items from the shops. We have also ramped up toiletries that the state provide to inmates so that offenders are not disadvantaged.”
“While these are commendable, they are not sufficient,” says Wasserman in response to the government’s plan.
“Firstly, it is unclear whether legal representatives are barred from visiting their incarcerated clients, which is a fundamental right. Additionally, there is a lack of clarity on the operational capacity of the Judicial Inspectorate for Correctional Services during this time, which is very concerning. The UN has stated that prison monitoring bodies must be allowed to continue to function. It is highly recommended that the government make concessions for detained persons’ increased (and free) communication to the outside world during this time of physical distancing,” adds Wasserman. There are serious mental health issues that the moratorium on visitors might have on detainees.
Before the first case of Covid-19 at a correctional facility was confirmed, the inspecting judge of the JICS, Justice Edwin Cameron, clarified the uncertainty around the operation of his office, which is tasked with safeguarding prisoners’ rights and the proper functioning of detention centres.
He said the “fiduciary role toward both inmates of the correctional system and corrections personnel whose task it is to guard them continues throughout the lockdown and the Covid-19 disaster”.
“DCS [department of correctional services] officials remain obligated under the DCS statute to report to JICS (a) all deaths, including Covid-related deaths, (b) all uses of force, (c) all segregation of inmates, including segregation arising from quarantine, and (d) all use of mechanical restraints.”
Cameron confirmed on 2 April 2020 that the National Commissioner briefed them on the department’s “operational plans and instructions to correctional officials to deal with Covid-19”.
Though there will be continued engagement between JICS and the department, Cameron acknowledged that the movement of independent correctional centre visitors (ICCVs) from his office would be “severely curtailed” during the 21-day lock down. Not classified as correctional services personnel, ICCVs also do not have exemption as emergency services personnel, said Cameron. “Nevertheless, [we are] determined to find practical ways of sustaining contact with correctional centres through as many ICCVs as possible. ICCVs remain on call, and ways will be devised for as many as possible to continue reporting,” he added.
The department confirmed that the JICS will be functioning during lockdown.
Cut the number of prisoners
Wasserman says the department must release its operational plan to deal with Covid-19 to the public. Sonke Gender Justice has been receiving a number of calls from incarcerated people about the “lack of sanitation and hygiene materials, as well as running water in some cases”, and misinformation.
Given the threat of Covid-19 and the state of our prisons, Wasserman “recommends that the government take more decisive action in reducing the number of people in our prisons during this time”. She says the international governing institution, the UN, supports this view.
“The UN recommends that states should review the implementation of ‘schemes of early, provisional or temporary release for those detainees for whom it is safe to do so … [and] review all cases of pre-trial detention in order to determine whether it is strictly necessary in the light of the prevailing public health emergency and to extend the use of bail for all but the most serious of cases.’” The release of the elderly, women, children and non-violent detainees should be prioritised,” says Wasserman.
The government lowered the prison population to 154 000 inmates from 163 000 in December, when President Cyril Ramaphosa announced a special remission to reduce the length of certain prisoners’ sentences.
According to new regulations gazetted by Minister of Justice and Correctional Services Ronald Lamola, any person arrested for a petty offence during the nationwide lockdown must be released and warned to appear in court on a later date. The petty crimes were not defined in the regulations.
Lamola did not extend the same option to those in the remanded section of prisons awaiting trial.
The punitive nature of the state response might have unintended consequences for prisons.
“Considering the current overcrowded state of our prisons, it makes no sense for the state to be using punitive measures in response to non-compliance with the lockdown regulations. Arresting people will simply make our prisons even more overcrowded, and therefore increase the likelihood of Covid-19 spreading,” says Wasserman.
New Frame did not receive a response from the minister of police.
Justice delayed, justice denied
Before the lockdown was announced, South Africa’s criminal and civil courts were weighed down with cases postponed to later dates. After the lockdown, the court roll will be even more congested.
With cases being postponed to later dates and some not being enrolled for trial purposes, this “is worrying for remand detainees, who are sitting in prison awaiting trial”, says Wasserman.
The national operations executive of state-funded body Legal Aid, advocate Brian Nair, says that as per the minister of justice’s directions, not-so-urgent cases will be postponed. He says that during the lockdown, Legal Aid will “continue to provide essential services at courts, including attending to bail applications on behalf of our clients”.
Time to rethink the system
Given the overcrowding and appalling state of South Africa’s prisons, where inmates are at a grave risk of contracting diseases, some have suggested that this is the time for a rethink.
“This is definitely the time to rethink our prison system and punitive approach to justice in this country. Prisons need to be places of rehabilitation, to facilitate restoration and reintegration into society, rather than institutions of punishment. We need to ensure that the rights of incarcerated persons are highlighted and protected at all times, not just in times of crisis. Because in times of crisis, it may be too late. We should be advocating for judges to make use of alternatives to incarceration, especially in cases of non-violent offences,” says Wasserman.