Penal reform programme additional information
The Penal Reform Programme, based in Cape Town, was established in July 2014 amid concerns for the protection of the rights of prisoners and detainees and constitutional compliance in relation to the imposition of punishment, sentencing, independent oversight and conditions of detention. Particular areas of interest include prison overcrowding, independent oversight and sentencing reform.
South Africa's prisons and penal system have been plagued by a number of grave issues for years despite the existence of robust and progressive legislation protecting the rights of accused persons and sentenced offenders. The Programme is a response to the growing need for the protection and fulfilment of such rights and it seeks to achieve this goal through research, advocacy and strategic litigation.
During the 1980s, LHR conducted a high profile death penalty abolitionist campaign. The campaign morphed into LHR’s penal reform project that was active during the 1990s. Although this project ultimately closed in 2006, LHR has nevertheless continued to engage in prison reform issues on a sporadic basis.
Importantly, LHR has always been deeply committed to the plight of detained persons and the conditions of such detention.
LHR’s prisoners’ rights and advocacy unit (PRLAU)
This section sets out broadly the manner in which a prisoners’ rights litigation and advocacy unit would respond to the issues with the South African penal system.
Strategic and individual litigation
It is important to note that the recognition of the right of prisoners to constitutionally acceptable treatment means that prisoners may claim positive performance from the authorities. Prisoners are dependent on the authorities in ways that ordinary citizens are not. The prison authorities have to provide directly for them. As Jansen and Achiume note: ‘the physical conditions, endemic violence and the management culture are completely at odds with the progressive content of the law (both statutory and judicial) and the policy framework.’ And there are thus a number of cases within the South African penal system ripe for litigation.
Overcrowding and remand detention
To date, there has not been a direct court challenge regarding prison overcrowding. Rather the issue has arisen indirectly. In fact, there are a limited number of cases involving directly section 35(2)(e) of the Constitution. Prisoners’ rights litigation has generally involved the alleged infringement of certain discrete rights such as the right to education, privacy, health and the right to vote.
Based on the current occupation rate (set out above) prisoners at the most crowded facilities have between 1.3m2 and 1.7m2 of floor space. Although adjudicatory bodies around the world have expressed a range of acceptable floor space standards, as Steinberg notes, "when floor space drops to as little as 2.1m2 per prisoner the grey areas in international jurisprudence narrow considerably." Admittedly, however, measurements like these will never be an entirely accurate reflection of prison conditions, even at the most crowded facilities. Nevertheless, it is safe to assume, at the very least, that correctional facilities that accommodate inmates at more than 200% capacity are overcrowded to the point where it is almost certainly a violation of section 35(2)(e) of the Constitution and, in more extreme circumstances, section 12(1)(d), the ‘right not to be treated or punished in a cruel, inhuman or degrading way.’
For sentenced prisoners, there is, admittedly, not much by way of legislative assistance. Nevertheless, given the extent to which sentenced facilities are overcrowded, the state of affairs is undoubtedly an unconstitutional one. The solution is not necessarily building more prisons, nor is it transferring prisoners from overcrowded prisons to other prisons in far-flung areas far from their own communities and visitors. Rather, the Department should add the necessary capacity to those prisons that simply require more bed space. Failing the Department’s action in this respect, however, there is reason to believe that litigation may be successful. Given the courts' understandable reluctance to quantify constitutional minimum standards, the most likely and effective remedy would be a declaration, in broad terms, that the current state of prison overcrowding is a violation of constitutional standards, and thus amounts to a violation of the right to be detained in conditions consistent with human dignity. A court, ideally, could grant a supervisory order directing the relevant government departments to remedy the problem within a certain time-frame, failing which, a certain number of suitable prisoners would be released to bring the accommodation capacity within an acceptable range. An "acceptable range" could even be the DCS's own benchmark of 3.344m2 per prisoner, at least as a start. A targeted release program may indeed provide some immediate relief to the problem of overcrowding.
As explained above, the remand detention population is an important driving factor when it comes to prison overcrowding. In some correctional facilities where overcrowding has reached a “critical level,” remand detainees account for 52% of the inmate population. As is the case with many human rights concerns, the poor, who cannot afford bail or the services of a lawyer, will suffer the worst of the effects of remand detention, not only in respect of socio-economic concerns, but also exposure to torture, extortion, disease and the arbitrary actions of police and corrupt officials.
There are legislative and policy provisions that could be used to alleviate overcrowding in remand detention facilities. First, the Criminal Procedure Act provides for the release of an accused on bail if a magistrate is satisfied that “the prison population of a particular prison is reaching such proportions that it constitutes a material and imminent threat to the human dignity, physical health or safety…” The provision only applies, however, to remand detainees who have been granted bail but cannot afford it and are thus incarcerated pending trial. Such remand detainees account for about 24% of the remand detainee population. This provision could certainly prove to be effective. Secondly, the Criminal Procedure Act states that a magistrate or judge before whom criminal proceedings are pending, “shall investigate any delay in the completion of proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the … accused.” The fact that an accused has been incarcerated in overcrowded conditions for an unnecessarily long period of time would certainly have an effect on the “personal circumstances of the accused,” one of the factors the court must take into account in carrying out such as inquiry. Thirdly, as required by the NPA’s ATD Guidelines, prosecutors should reconsider bail if an accused has been in custody for longer than six months and ensure that the investigations and presentation of the state’s evidence are fast-tracked in such matters. In relation to remand detainees who have been kept in prison awaiting trial, the recently enacted section 49G of the Correctional Services Act may be of assistance. The section requires that detainees who have been awaiting trial in prison for more then two years must be brought before a court in order to have their continued detention reviewed.
A unit such as the PRLAU would be ideally placed to not only litigate strategically the problem of overcrowding in relation to sentenced facilities, but could act in terms of the legislative provisions intended to assist remand detainees. Of course, where the latter strategy might fail, the PRLAU could always reserve the right to challenge the relevant legislation for failing to protect the right to liberty.
Prison violence, health care and parole
When it comes to the issues of prison violence, there is certainly scope to act on behalf of affected inmates. Where violence involves actions on the part of correctional officials, a unit such as the PRAU could instigate claims for damages, constitutional or delictual on behalf of those affected. In relation to inmate-on-inmate violence, including sexual violence, there is most certainly scope to institute similar claims on the basis of the Department having failed in its statutorily-imposed obligation to ensure the safe custody of inmates, particularly given the fact that the Department has failed to enact a sexual violence prevention policy (despite their being a draft policy). Given recent advancements in the law, there is also reason to believe that a class action in this regard might be successful.
A unit such as the PRLAU would also be well-placed to act on behalf of inmates being denied access to health care, particularly in light of the recent Dudley Lee judgment, which made it clear, amongst other things, that there is an unavoidable duty on the Department to adhere to specific health-care standards.
In relation to accountability, there is also a role for a unit such as the PRLAU. The poor level of accountability regarding officials implicated in the deaths and injury of inmates is perhaps indicative of the state’s non-compliance with the provisions of recently enacted Prevention and Combating of Torture of Persons Act (13 of 2013) as well as international instruments to which the South African government is party, such as the United Nations Convention against Torture and its Optional Protocol. Given the emphasis on preventative measures and accountability, the courts may well be open to the judicial review of the NPA’s decisions not to prosecute officials implicated in acts of torture, assault and homicide.
The existence of a unit capable of litigating on behalf of inmates would also be readily available to take on other issues that arise in the penal system from time to time. These include the unlawful use of segregation (solitary confinement), repeated and seemingly unnecessary delays in the determination of parole, and mechanical restraints and the procurement of illegal instruments of physical restraint,
General advocacy and raising awareness
Given the state of prisons in South Africa and the plight of inmates, the continued monitoring of places of detention and information sharing remains of utmost importance. In this regard, the PRAU would place a heavy emphasis on reporting to parliament, not only relation to the government’s protection of the rights of inmates, but on the importance of the government’s compliance with international norms and the value of independent oversight. It is significant that despite having signed the Optional Protocol to the UNCAT, the government has not yet ratified it. Given the importance of oversight generally to the prevention of abuses in detention, the implementation of OPCAT is vital, as it would render South African places of detention open to inspection by the Sub-committee on the Prevention of Torture. This is enormously valuable to institutions that are currently not open to regular inspections, such as police cells, child and youth care centres, certain health care facilities and immigration facilities. It would also be important to raise continually the importance of a financially independent Judicial Inspectorate with Parliament and other fora (such as the African Commission for Human Rights), which would necessarily entail campaigning for legislative amendment. The PRAU would also be willing and well-equipped to offer information to parliament (or the Department) from a constitutional compliance perspective in relation to the Department’s performance in respect of its annual outputs, rehabilitation efforts and policy agendas.
Since the advent of the South African democracy, the law in respect of prisons and punishment has been reformed in a number of significant ways. Reform was prompted, of course, by the interim and then final Constitutions. The value-laden text of the Bill of Rights makes it quite clear that all detainees, be they awaiting trial or sentenced, are entitled to a certain standard of treatment – “conditions of detention consistent with human dignity” - and a set of specific rights. The relevant legislation giving effect to these rights, the Correctional Services Act 111 of 1998 (the Act), came into force during 2004. The Act and its regulations include precise requirements regarding all aspects of the treatment of prisoners: accommodation, nutrition, clothing, medical treatment, discipline and methods of restraint. At the core of the Act is an acknowledgment that the prison system should ensure the safety and the protection and fulfilment of the rights of inmates and promote the “social responsibility and human development” of all sentenced inmates. Given the history of corrections in South Africa, the Act represents a fundamental shift in focus from the its predecessor, the Correctional Services Act of 1959 (the 1959 Act), which spoke little on the rights of inmates and dealt, primarily, with the administration of the prison system.
There is, unfortunately, a marked disconnect between the current state of the penal system and the applicable legislative requirements and thus an ongoing breach by the Department of Correctional Services of its statutory obligation to ensure the safe custody of inmates and to protect, promote and fulfil the right of all inmates to be detained in ‘conditions that are consistent with human dignity’.
To date, non-litigious advocacy measures on the part of civil society, although successful in relation to legislative and policy reform, have unfortunately failed to bring about any sustained reform within the country’s penal system. A concerted public interest litigation strategy has, however, yet to be attempted. Although litigation on behalf of prisoners has been somewhat limited over the years, there are reasons to believe that it was, generally speaking, successful. The Apartheid government, for example, recognised the rights of prisoners to humane treatment only after legal challenges brought against the state. And, in addition, litigation involving the alleged infringement of certain discrete rights of prisoners, such as the right to education, privacy, health and the right to vote, has also been successful.
South African prisons and reasons for concern
Despite the legal and policy developments within the penal framework that have taken place since the advent of democracy, the conditions in South African prisons have remained poor, particularly in relation to overcrowding. The latter is an obvious result of the crime and policing policy that dominated the criminal justice terrain during the latter part of the 1990s. The government’s response to violent crime, both real and perceived, amounted to a surge in militarised police force. Unfortunately, efforts to equip the courts and remand detention facilities were absent in the face of the inevitable rise in the number of people arrested and detained. The consequence, of course, was the flooding of an already over-burdened court system and poorly equipped prisons. In 1995 the prison population was just under 120 000, in 2002, it was approximately 190 000. From 2005 onwards the prison population tapered off somewhat, and, as of March 2012, is just under 160 000. This means that South African, at 133% occupancy, is well below the somewhat startling figures representing the world’s ten most overcrowded prisons (four of which belong to African countries). Averages can be misleading, however. The occupancy rates of individual prisons paint a far clearer picture of the conditions of detention to which inmates are subjected. The country’s most overcrowded prisons range between 200% and 250% capacity.
Despite the existence of legislative measures intended to alleviate the burden on correctional facilities and the Judicial Inspectorate having consistently raised the problem of prison overcrowding since its first published annual report in 2000, the Department of Correctional Services itself admits that ‘overcrowding remains high’ (Department Annual Report: 2009/2010).
The effects of prison overcrowding, which go far beyond simple discomfort, are crucial to the case in favour of the reduction of the prison population. Simply put, overcrowding hinders the realisation of inmates’ other rights, such as nutrition, medical treatment and exercise. The case of Lee v Minister of Correctional Services 2011 (2) SACR 603 (WCC) illustrates this well. The plaintiff was detained for four and a half years whilst awaiting trial, during which time he contracted tuberculosis (TB). The judgment relates the evidence of expert witnesses describing the conditions of detention:
[t]he average overcrowding in 2003 was around 234% to 236%. Overcrowding meant that disease could be spread more easily, and, as far as TB was concerned, the more people were packed into a cell, the greater the prospects that bacteria which were coughed up would infect other inmates. [The medical expert] regularly saw overcrowded cells in the maximum security prison and testified that his first impression was one of dinginess and squalor, because blankets are often used to protect or cover up places within a cell. He described the situation as dehumanising.
There are several systemic issues plaguing the Department of Correctional Services when it comes to the accommodation and treatment of remand detainees. Firstly, the number of remand detainees in correctional centres contributes significantly to prison overcrowding. Second, certain remand detainees have been detained awaiting trial for an excessive period of time. Literally thousands of people in South Africa spend long stretches of their lives, in conditions frequently described as 'inhumane' and without access to educational or rehabilitative programs. The fact that almost half of those in remand detention will be released because their charges are withdrawn or struck off the roll suggests that the inefficiency of the criminal justice system is a primary driver of the poor treatment of remand detainees and almost certainly amounts to violations of the rights to liberty and to be tried within a reasonable time.
Prison violence takes on a number of forms: riots, official-on-inmate assault or torture and inmate-on-inmate assault. And South African prisons are extremely violent institutions.
The number of complaints received by the Judicial Inspectorate over the years relating to incidents of assault has remained a significant percentage of the number of complaints in general. Moreover, in the last two years there have been several violent prison riots. It is perhaps no coincidence that the most recent reported incidents of prison violence occurred in some of the country’s most overcrowded prisons. Importantly, with the coming into effect of the Prevention and Combating of Torture of Persons Act 13 of 2013 on 29 July 2013, incidents of official-on-inmate assault may well amount to acts of torture.
In addition to records of official-on-inmate assault, the annual and quarterly reports of the Judicial Inspectorate, although lacking in a certain amount of detail, highlight the possibility that officials are implicated in some of the ‘unnatural deaths’ of inmates. Despite the existence of such records, there seems to be little accountability for such actions on the part of the Department. During the 2011/2012 financial year, for example, despite the Judicial Inspectorate having recorded 1945 complaints of official-on-inmate assault, only 119 officials were dismissed. Moreover, the Judicial Inspectorate noted the following in respect of the same financial years:
‘In respect of criminal investigations and disciplinary proceedings … a number of homicide cases that year had not yet been finalised. The Inspectorate followed up on these cases. SAPS closed the files in the majority of those cases, and where matters were referred to the National Prosecuting Authority (NPA) for prosecution, the NPA returned a nolle prosequi i.e. they declined to prosecute.’
It appears, therefore, that during the last three years, there has not been a single prosecution of an official implicated in the death of a prisoner.
A vitally important aspect of any oversight mechanism is its independence from the institution or organisation it intends to assess and freedom from “undue political interference” The Constitutional Court in New National Party of South Africa v Government of the Republic of South Africa stated that independence (in respect of the Independent Electoral Commission) required both financial and administrative independence. Likewise, if the Judicial Inspectorate is to function effectively and with maximum impact, then it is important that steps be taken to safeguard its long-term independence. Meaningful independence is necessary not only to ensure that the Judicial Inspectorate is in a position to freely disseminate its findings and lobby with civil society for particular reforms, but to ensure public confidence and trust.
Regrettably, the Judicial Inspectorate does not enjoy its own budget vote. Rather, its funds appear as a line item on the Department of Correctional Services’ budget. Thus, although section 85(1) of the Correctional Services Act guarantees the independence of the JICS, section 91 states that it is the Department that is responsible for all the expenses of the Judicial Inspectorate. The esteem in which judges are held brings credibility and a measure of independence to the Office. This safeguard remains fragile, however, for it is reliant on an individual and not in the Office itself.
Some of the most frequently reported concerns of inmates relate to health care. In fact, complaints escalated by 255% between 2007-2010. This prompted the Judicial Inspectorate to conduct a survey during the 2011/2012 financial year on the health care provided to inmates. The preliminary findings were worrying. Perhaps of greatest concern was the fact in 17 out of 186 correctional centres no doctor had visited during the preceding three-month period.
It is a significant fact that the majority of unnatural deaths in correctional centres occur as a result of suicide. This is a strong indication that there is an obvious and urgent need for adequate mental health care. Despite such need, the woeful lack of social workers, psychologists and medical staff in general within the Department of Correctional Services has simply not been dealt with. The recent case of Lee v Minister of Correctional Services brought to light the chronic situation in the delivery of health care at Pollsmoor Correctional Centre. An expert witness in the case, a former doctor at Pollsmoor, described the crisis as being “typified by chronic understaffing and lacking in any form of disease control.”
About 50% of the complaints received by the Judicial Inspectorate relate to parole, indicating large-scale complications with the way in which parole applications are processed. This has not gone unnoticed by the courts. In the recent case of Gwebu v Minister of Correctional Services Judge Ebersohn criticised the Parole Board for “doddering” and described the ‘last-minute’ imposition of new requirements as ‘an illegal concoction undermining the rights of prisoners to be released on parole when they legally qualify for it.’ It is the unfortunate reality that more and more applications for release on parole are being brought before the courts on the grounds that the parole board has simply failed to make a determination.