In South Africa there are currently 243 correctional centres (or ‘prisons’), with a total inmate population of approximately 161 0541. Of these, there are 43 646 remand detainees. Remand detainees are people who are awaiting trial or sentencing. The vast majority of sentenced and unsentenced inmates are male (97.5%).
Prison conditions in South Africa are particularly dire. Inmates and remand detainees experience extreme overcrowding and inhumane living conditions, including: poor ventilation; inadequate ablution facilities; lack of sanitation and privacy; a shortage of beds and bedding; insufficient supervision and oversight; and poor healthcare provision. Consequent of these conditions, prisons can be hotbeds for sexual violence and disease transmission, including human immunodeficiency virus (HIV) and Tuberculosis (TB). In fact, recent research has found that globally the incidence of both TB and HIV are higher in prison populations than in the general society2. In South Africa, HIV prevalence in prison populations is estimated at 15.6% (which is more than three times higher than the general population) and TB prevalence is 5.6%3.
Why Should We Care?
Poor prison conditions elicit little concern in most societies, with some people even regarding prison rape and violence as “part of the punishment”. This is a vindictive and reactionary response to crime and negates legitimate and dignified forms of punishment. Many people do not realize that what happens in prison can affect them - both directly and indirectly.
Prison conditions do not only threaten the health of people incarcerated within them. Prison staff and the population at large are also at risk because inmates are not a static population – they move around the prison system and back and forth between the prison system and the outside world. Therefore, addressing gender-based violence (GBV), HIV and TB inside prisons is crucial not only for inmates’ health and well-being, but also to prevent the spread of these diseases and this violence outside the prison system.
The current conditions in South African prisons fail to meet the minimum standards established in national and international legislation and declarations. Further, South African prison conditions represent serious breaches of rights enshrined in the South African Constitution. The only right that inmates should be deprived of is liberty. Prisoners’ rights to dignity, bodily integrity, and the right to be protected from any cruel, inhuman and degrading treatment, must be upheld in a constitutional democracy.
Therefore, it is important to educate the public about why they should care about prisons and inmates and to advocate for inmates’ rights and alternatives to custodial sentencing (i.e. serving a sentence in prison).
Sexual Violence in Prisons
Research has shown that sexual violence is pervasive in South African prisons, yet also massively underreported4. It is not only a grave human rights violation and is considered by the United Nations (UN) Rapporteur on Torture, Cruel, Inhuman, and Degrading Treatment or Punishment as amounting to torture, but it is also a driver of HIV. Correctional centres have a high HIV prevalence, partly owing to the heightened vulnerability of the communities from which the majority of inmates come. With overcrowding, poor sanitation, poor nutrition, inadequate medical care, and a culture of toxic masculinity, South African prisons are environments conducive to both the transmission of HIV as well as its rapid progression to illness and even death.
Owing to severe overcrowding in South African prisons, it is difficult to separate predatory detainees from sexually vulnerable detainees, making it harder to prevent sexual violence in prisons. This is exacerbated by staff shortages and inadequate shift systems; which leave inmates unmonitored for hours at a time, locked up for longer periods of time, and limits their access to development and rehabilitative programmes, health-care, and psychosocial support services5. Sexual violence, in turn, increases the risk for transmission of HIV and other sexually transmitted infections (STIs).
Notwithstanding the physical and infrastructural contributors to sexual violence, another factor to consider is the perpetuation of gendered constructs and the culture of hegemonic masculinity within prisons. Rape in prison reflects and reinforces some men’s understanding of sex as an expression of male dominance6, and is used as a tool for hierarchical aspirations. These notions also contribute to the continued perpetration of sexual violence in the general population, upon release. Men who are admitted to prison for crimes other than sexual offences, may become both traumatised and desensitised to sexual violence in prison as a result of experiencing or witnessing sexual assault. In turn, these men may become perpetrators of rape or sexual violence7.
Prevention and Response
Prisons and inmates’ issues are largely outside the public eye and are generally ignored. Therefore, there is a need for a multi-pronged approach which focuses on the pressing issues of incarceration in order to highlight these violations and prevent the further erosion of inmates’ rights. Some strategies include:
1. Education and Advocacy
In order to promote and protect human rights in South Africa, it is necessary to educate all people in South Africa about their rights. Further, it is essential that additional education and training be conducted with those who are responsible for enforcing duties and responsibilities in relation to these rights. Consequently, an important intervention with regards to prison issues is awareness-raising and education programmes. These interventions involve multiple tiers of impact, including:
- Making politicians and legislators aware of the conditions and the ongoing violation of inmates’ rights in South African prisons, with the purpose of placing pressure on them to prioritise these issues and promulgate responsive and effective policies;
- Conducting peer-education and training programmes with inmates and previously incarcerated persons – with a focus on gender, sexuality and toxic masculinity. Such programmes may have the effect of shifting norms around gender and masculinity, which could consequently reduce the normalisation and perpetration of sexual violence; and
- Education and awareness-raising of civil society organizations and communities concerning the victim-offender overlap and the reasons behind offending and criminality, which may have the effect of eliciting empathy for inmates and previously incarcerated persons. Education and awareness-raising interventions will likely reduce stigma and discrimination, which will better enable previously incarcerated persons to reintegrate into society and be discouraged from reoffending.
Litigation can be a vital tool in protecting and guaranteeing the rights of vulnerable and marginalised persons.
The jurisprudence concerning the health rights of incarcerated person is relatively limited, however it contains several landmark judgments, including8:
- S v Makwanyane (1993): Abolished the death penalty, in the face of overwhelming oppositional public opinion, declaring that the courts’ role was to protect the rights of “outcasts and marginalised people”.
- Van Biljon v Minister of Correctional Services (1997): The court found that the Department of Correctional Services (DCS) bears a higher duty of care towards incarcerated people because it has incarcerated them. Consequently, the court ordered DCS to provide anti-retroviral treatment (ART) to those inmates who had been prescribed treatment.
- Stanfield v Minister of Correctional Services (2004) and Du Plooy v. Minister of Correctional Services (2004): Required DCS to reconsider its restrictive practices relating to the release of terminally ill, incarcerated individuals on medical parole.
- EN and Others v Government of RSA and Others (2006): All incarcerated people with HIV/AIDS at (Westville) prison who qualified for treatment according to national policy must be given ART - a group much larger than those who had already been prescribed treatment, as in the Van Biljon case.
- Lee v Minister of Correctional Services (2012): Consequent of a remand detainee contracting TB, the court found that DCS could be held liable for damages due to its negligent omissions, such as failure to provide adequate health care and conditions of detention that respected human dignity.
Most recently, in Sonke Gender Justice v The Government of the Republic of South Africa (2016), Sonke Gender Justice (Sonke) and Lawyers for Human Rights challenged the severe overcrowding and other inhumane conditions of incarceration for remand detainees at Pollsmoor Remand Detention Facility (RDF). The court found in favour of Sonke and declared that the conditions of detention in Pollsmoor RDF amounted to a violation of detainees’ constitutional rights to health and that the conditions were inconsistent with human dignity. Further, the court ordered the government to reduce overcrowding to no more than 150% of its approved capacity within six months. In addition, the court ordered DCS to develop a plan for rectifying prison conditions within Pollsmoor RDF. This case was a significant victory for the rights of incarcerated persons, particularly remand detainees.
3. Prison Oversight
Prisons operate largely outside the public eye and are referred to as “closed institutions” as they are largely inaccessible to the general population. Consequently, prison transformation activists have been calling for improved prison oversight, including supervision and inspection by independent bodies.
Research has shown that prison oversight is vital to the protection of inmates’ human rights:
- Regular monitoring acts as a preventative measure against human rights abuses in prisons;
- Regular reporting allows prison issues to infiltrate the public sphere and consciousness; and
- Consistent oversight ensures accountability and action on the part of the DCS.
The Judicial Inspectorate for Correctional Services (JICS) is the current prison oversight body in South Africa. JICS inspects prisons, processes inmate complaints, and reports on conditions and treatment. However, JICS’ effectiveness is crippled by several issues, including:
- It is not sufficiently independent: JICS lacks financial, operational, functional, and associational independence.
- It is not adequately capacitated: Inspectors are only able to inspect each prison once every three years, due to infrastructural and human resources constraints.
- It is limited in its functions and powers: In the Correctional Services Act, JICS’ powers and functions are vague and ill-defined. Of particular concern, JICS’ recommendations to DCS are not binding – which severely limits JICS’ efficacy.
Therefore, it is important for activists and policy-makers to strengthen JICS and encourage other mandated persons, such as parliamentarians and judges, to conduct regular prison visits and to follow-up on JCIS’ recommendations.
4. Effective Governmental Response
In 2013, after much lobbying and pressure by, and cooperation with civil society organisations such as Sonke and Just Detention International-South Africa, DCS promulgated a Policy to Address Sexual Abuse of Inmates.
The adoption of this Policy is a crucial step towards effectively preventing and responding to sexual violence in prisons. However, following its adoption, there has been widespread failure in implementing and communicating this Policy. For example, this Policy is notably absent from the DCS website, which provides all other relevant legislation. Further, a cursory search for the Policy on the internet does not pull up the policy anywhere besides Sonke’s website.
A policy alone is not a ‘success’, nor is it the ultimate goal. For the Policy to Address Sexual Abuse of Inmates to be materially effective in protecting inmates, it must be properly resourced and implemented nationally.
Inmates’ rights are not an isolated issue, they have the potential to directly and indirectly affect all of us.
To promote the transformation of prisons in South Africa and to protect the rights of inmates and remand detainees, Sonke Gender Justice and the Detention Justice Forum9 have leveraged multiple advocacy approaches, including the following:
- Advocacy for law and policy reform to prevent rights violations in DCS centres, with a focus on sexual abuse, HIV, TB, ill-treatment and torture of inmates;
- Monitoring and, where necessary, legally intervening in specific cases of rights violations;
- Training and technical support for the DCS on sexual violence and HIV prevention;
- Applied research to build the evidence base for strategic advocacy to improve policies and practices for the prevention of sexual violence, HIV and TB, and other rights violations in detention settings;
- Media advocacy to stimulate public discourse on health, sexual violence, and human rights in detention settings;
- Civil society coalition building to mobilise stakeholders and hold government accountable for rights violations in prisons; and
- Advocacy for law reform to strengthen independent oversight and accountability mechanisms for DCS.
Prison reform is a human rights issue. Help support the push towards independent oversight of prisons and respect, protection and promotion of inmates’ rights!
- Department of Correctional Services Annual Report 2016/2017.
- Dolan K., et al. (2016). Global burden of HIV, viral hepatitis, and tuberculosis in prisoners and detainees. The Lancet, 388(10049), pp. 1089–1102.
- Kamarulzaman A., et al. (2016). Prevention of transmission of HIV, hepatitis B virus, hepatitis C virus, and tuberculosis in prisoners. The Lancet, 388(10049), pp. 1115-1126.
- Commission of Inquiry into Alleged Incidents of Corruption, Maladministration, Violence or Intimidation, at The Department of Correctional Services, as Appointed by Order of The President of The Republic of South Africa in Terms of Proclamation No. 135 Of 2001, as Amended (“the Jali Commission”). Available at: http://pmg-assets.s3-website-eu-west-1.amazonaws.com/docs/061016jalireport_0.pdf
- Dissel, A. (2016). 'By the Grace of God': Staffing Correctional Facilities. Sonke Gender Justice: Cape Town, South Africa.
- Ghanotakis, E., et al. (2007) Stop prison rape in South Africa. Agenda, 74, pp. 68-80.
- Ghanotakis, E., et al. (2007) Stop prison rape in South Africa. Agenda, 74, pp. 68-80.
- Keehn, E. and Nevin, A. (2018) Health, Human Rights, and the Transformation of Punishment: South African Litigation to Address HIV and Tuberculosis in Prisons. Health and Human Rights Journal, 20(1), pp. 231-224.
- The Detention Justice Forum is a civil society coalition, comprising of non-governmental organisations and individuals seeking to ensure that the rights and well-being of those who are detained are respected as enshrined under the South African Constitution, laws, and international human rights norms and standards. See: http://detentionjusticeforum.org.za