Dissel, A. (1995). Unfinished Business: Problems in our prisons continue. In Crime and Conflict, No. 1, Autumn.
Amanda Dissel
In Crime and Conflict, No. 1, pp. 16-19, Autumn 1995.
Amanda Dissel is Manager of the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.
Prisons are a vital part of the criminal justice system often overlooked in the struggle for peace and stability. This article considers the many issues which remain unresolved despite the protests and severe destruction caused by the prison riots last year.
The sources of dissatisfaction in prisons which led to violence last year are multi-faceted. Certain inherent conditions in prisons have caused discontent for some time. Other factors such as politicisation, the change in government and the amnesty regulations have exacerbated tensions. The Kriegler Commission of Inquiry into this violence has not released its findings and the problems which caused this situation still threaten stability in prisons.
Conditions in prisons
Change in release policy
The Correctional Services Act was amended in March 1994, introducing a new release policy. Numerous complaints from the public and courts were made about standard remissions of sentence awarded to prisoners. Release is now discretionary and depends on the prisoner's conduct, adaptation, possibility of relapse into crime and any remarks made by the sentencing court.
The release policy, which is applied in two phases, has not been explained adequately to prisoners. Institutional committees based at each prison award credits to prisoners which advance the date on which the prisoner can be considered for parole. The parole board considers the case and makes a recommendation for the prisoner's release, which must be ratified by the Commissioner of Correctional Services.
This process is highly discretionary and the criteria for consideration are often not communicated to prisoners. Because the date of parole cannot be confirmed until just before the actual day, prisoners are uncertain about when they may be released. Some complain that release dates given to prisoners on admission under the old system are disregarded and inmates are detained beyond those dates.
Assaults on prisoners
Despite numerous representations to the Department of Correctional Services, assaults of prisoners by the authorities continue. Not all assaults are reported due to fear of reprisals and lack of faith in the internal disciplinary procedures. Furthermore, when inquiries are made, the results are not forthcoming or are inadequate. Prisoners are repeatedly assaulted by fellow inmates without adequate investigations and allegations are made of personal complicity in gang violence.
Unauthorised disciplinary measures
Despite recent amendments to disciplinary procedures, many prisoners complain of detention in isolation cells as punishment, sometimes without bedding and furnishings. This occurs frequently without any disciplinary procedures having been followed or reasons given for their isolation. Prisoners are also physically and verbally assaulted by personnel.
Discontent among prison officials
Black staff members in particular are dissatisfied with their treatment and that of prisoners, as well as the lack of clear policy on rehabilitating prisoners. Warders allege that they have been sidelined in the policy-making process and bypassed in promotions and training opportunities in favour of their white colleagues.
Overcrowding of cells
Reports of between 30 and 50 inmates in accommodation designed for 29 prisoners are frequent. Cell furniture is sparse and prisoners often have to sleep on floor mats. Bunk beds used to maximise available space are low, making sitting up in bed uncomfortable. In communal cells, usually only one toilet is available, situated in the cell. A lack of privacy, especially in personal hygiene matters, is prevalent.
An almost complete absence of organised activity for prisoners and extensive lockup times (sometimes 23 hours a day), contribute to intense frustration and pent up aggression. Prisoners' involvement in gang and other unlawful activities can partly be explained by this incarceration for long periods in close confinement with other prisoners.
Prisoners' rights
Prison regulations are not usually made available to prisoners, who are unaware of which transgressions lead to disciplinary action. Administrative procedures are poorly explained, if at all, and prisoners are uncertain as to how decisions affecting them are made. They are thus unable to intervene. No independent structure exists to assist prisoners in lodging and following through complaints.
Access by legal practitioners to prisoners is at the discretion of the Commissioner of Correctional Services. While in practice there is usually no difficulty, legal advisors have occasionally been denied access because the request for consultation was not made by a prisoner directly to the authorities.
Political factors
Since the prison population is largely transitional and prisoners have access to the media, the euphoria and expectations surrounding the political transition inevitably reached them. Prisoners who believed they were sentenced by an illegitimate apartheid government anticipated their release, or review of their convictions.
Although these expectations were well-publicised in the media, they were not dealt with satisfactorily by the outgoing Government or the Government of National Unity. It was only after organised protest action by prisoners themselves, which caused widespread damage to property, injuries and loss of life, that they won the right for most prisoners to vote in the elections.
After the elections, the issue of amnesty for prisoners was raised. President Mandela stated that the new Government would urgently address the amnesty issue for various categories of prisoners. This raised expectations that not only political prisoners, but also common law offenders would be considered for amnesty.
Efforts by the South African Prisoners' Organisation for Human Rights (SAPOHR) to meet with the Ministers of Justice and Correctional Services were unsuccessful. The Government meanwhile met with members of right wing organisations to discuss amnesty, and prisoners became frustrated that these groups received precedence.
On 2 June 1994, SAPOHR issued an ultimatum to the Minister of Justice demanding amnesty for various categories of prisoners. Seven days later rioting broke out in prisons across the country. The Minister of Correctional Services, Dr Mzimela, then announced a sentence reduction of six months for all categories of prisoners. SAPOHR criticised this as unfair since some prisoners were more deserving of amnesty than others.
Prisoners remain frustrated that they have not been considered for amnesty. Some feel they were tricked into voting for a government which no longer considers their interests. Some prisoners from the new Local Prison in Pretoria wrote a petition to the State President saying "you have to date, sir, sown seeds of discontent, frustration and anger amongst all the prisoners, who now believe that they were deceived …"
The development of a human rights culture also contributed to the conflict. SAPOHR professes to organise on a human rights basis and is established nationwide within and outside prisons. But organising prisoners around highly emotional issues has proved dangerous and unless carefully controlled, can result in huge destruction.
Recommendations
These recommendations relate to the task of the Kriegler Commission, but also apply to the situation generally in prisons, since little has been done to remedy the problems.
Human rights and disciplinary measures
The United Nations Standard Minimum Rules for the treatment of prisoners must be recognised and implemented. With regard to sanitation and hygiene, regular inspections should be made by the Department of Health and Welfare. Sufficient functioning toilet facilities should be made available to all prisoners as well as proper bedding and clean clothing.
A human rights culture must be built in prisons at the level of prisoners and prison personnel. The training curriculum of staff should create an awareness of prisoners' rights, and training in conflict resolution should be provided. Staff must be taught to identify and deal with tension in the prison before it erupts into large scale violence.
Prisoners have already begun to organise themselves around human rights issues and violations from both prisoners and personnel. These groups should be encouraged as this is a positive alternative to gang activity, and could foster a commitment to non-violent conduct.
Representative prisoner organisations are an important mechanism for expressing prisoners' interests to the prison administration. These organisations must be regulated by a code of conduct or a recognition agreement between themselves and the authorities.
Clear guidelines must also be available on the use of the prison Stability Unit (SU). In many instances during the prison violence, administration called on the Stability Unit before a real threat was apparent. The SU presence and its use of force against prisoners was sometimes preemptive.
Disciplinary procedures in prisons should be reviewed, as well as the use of segregration in prisons. The circumstances necessitating segregation must be clearly defined and the Head of the prison must be required to justify the use of this method.
Prisoners must be informed of the reasons for their segregation and should have the opportunity to make representations to a disciplinary committee.
Family ties and Community Prisons
Rules regarding visitation rights must be reviewed. According to the Correctional Services' new privilege system, primary privileges relating to the maintenance of family ties may be limited for a disciplinary infringement where the retraction of secondary privileges has not had the desired effect. This leaves contact with the outside world securely in the prison authority's hands.
Maintaining family ties should be an important feature of imprisonment. Greater provision must be made for adequate visiting time for prisoners in an atmosphere conducive to maintaining optimal relationships. Allowance must be made for physical contact between prisoner and family members and deprivation of this contact should not be used as a means of punishment.
The importance of a prisoner maintaining links with his community cannot be underestimated. Continuity of service facilities and family relationships available to the prisoner in the community should be maintained in prison, since the prisoner is released back into the community on completing his/her sentence. The prisoner is often dependent on the community's resources for some time after being released.
The Commission of Inquiry into disturbances in British prisons in 1990 acknowledged that imprisonment without remedial action would result in a deterioration of the prisoner's ability to function lawfully and effectively in society. The State was obliged to remedy the harmful effects of imprisonment which could partly be done by situating the prison within the community.
Prisoners are often held in prisons outside their home area and their network facilities often break down. The British Inquiry recommended that prisoners be held as physically close to their families as possible and that Community Prisons should be established for this purpose, accommodating no more than 400 prisoners at a time.
The system of community prisons is a necessity in South Africa where large geographical distances and lack of public transport make travel to centralised prisons difficult and expensive for visitors. Contact with existing service providers is often lost when the prisoner is required to move out of his home area.
More effective control
The British Inquiry suggested breaking prisons into units of 50 to 70 prisoners and accommodating them according to the severity of their offence, arguing that it would be easier to control small numbers.
Prisons in South Africa can accommodate large numbers of prisoners. Incarcerating many prisoners in one cell makes control difficult, especially where warden-prisoner ratios are low. Dividing prisons into manageable segments should be considered.
The unproductive time spent by prisoners in their cells should be minimised. Being out of the cell can alleviate the effects of poor conditions. Although participation in programmes should never be obligatory, recreation programmes, educational and vocational training should be made available to all prisoners.
Accountability
An independent prisons inspectorate should be established which would visit prisons regularly, monitor prisoners' complaints and conditions in prisons, observe investigations by the police, and make policy recommendations. The inspectorate should be independent of the Department of Correctional Services and the Minister, yet accountable to Parliament.
Prisons have been alarmingly free of public scrutiny and consequently there has been little pressure for prison accountability. A lay visitors scheme could open up prisons to the public and ensure public participation in prison matters. This scheme could also play a watchdog role over prison abuses.
The current mood
There is still considerable tension in prisons and the Ministry of Correctional Services has done little to solve the crisis. Neither the Ministry nor the Department of Correctional Services initiated any dialogue with civic or non-governmental organisations (NGOs). The Department only began some form of discussion after substantial pressure from NGOs and other state departments.
Calls for amnesty by political prisoners have increased and common law prisoners persist in their demands for amnesty or remission of sentence. At a meeting in November 1994 to deal with this issue, Justice Minister Dullah Omar said many common law prisoners were victims of the system. He added that a mechanism had to be found to deal with those prisoners who committed offences in terrible socio-economic circumstances.
Representations made to the National Advisory Board for the establishment of an Amnesty Resolution Committee were rejected. SAPOHR issued an ultimatum for the creation of this committee by April 10, 1995, failing which prisoners will embark on a nationwide mass action, go-slows and demonstrations. This is unwise given that previous calls for peaceful action resulted in widespread riots.
President Mandela indicated in his inaugural speech that prisoners would be considered for amnesty, but this has been delayed causing frustration among common law prisoners. The President has not clarified his statement and the Minister of Correctional Services has made no attempt to discuss the matter with prisoners or their representatives. Given better channels of communication, the impending crisis in prisons could be averted with careful management.
Prison warders
Since the prison violence last year, the growing dissatisfaction among prison wardens has heightened tensions and contributed towards the current instability in prisons. The Police and Prisons Civil Rights Union (POPCRU) are frustrated by the Ministry and Department of Correctional Service's approach towards transforming the institution.
POPCRU was officially recognised in October 1994, but claim the Department's attitude towards the union has not changed. The union alleges that decisions are made without the consultation of labour, and that affirmative action policies devised by the Department without consultation are inadequate, or poorly implemented.
The integration of prisons and personnel of the former self-governing territories and 'independent' bantustans has also created tensions. Promotions awarded prior to incorporation were challenged or allegedly unfairly denied. In December 1994, POPCRU staged a go-slow and strike in Ncome prison in Vryheid and in Durban Westville around this issue.
The dispute was resolved after the then acting Minister of Correctional Services Ben Ngubane intervened, and a task team was appointed to investigate promotions. The team's work was interrupted in February 1995 when POPCRU members again embarked on a go-slow in KwaZulu-Natal in protest against the implementation of performance bonuses. POPCRU were concerned about the inherent lack of transparency in the bonuses system.
POPCRU has been criticised by the Democratic Party for undermining the criminal justice system in South Africa, and strong action has been called for against the union. It may be more appropriate to engage the labour unions in transformation at all levels and discourage the Department from entering the process unilaterally.
Alternative White Paper on Correctional Services
In October 1994, a White Paper on policy was released by the Department of Correctional Services. The Paper was disappointing for a number of reasons. It recognised two main problems in prisons, namely a shortage of resources and gross overcrowding, both of which the Department has little control over.
The Paper failed to consider the many other problems such as violence in prisons, the lack of rehabilitation programmes, accountability of prisons to prisoners and the public, and prison conditions. Moreover, the White Paper did not take into account the implications of the Reconstruction and Development Programme and the Interim Constitution for penal reform.
The Penal Reform Lobby Group made up of Lawyers for Human Rights, The Centre for the Study of Violence and Reconciliation, NICRO and SAPOHR, drafted "An Alternative White Paper on Correctional Services". This paper seeks to address the problems facing prisons and the criminal justice system in the management of offenders, arguing that there is a need for fundamental reform of correctional services.
The first requirement is for more openness to outside involvement at all levels. Civil society must be given the opportunity to participate in policy-making and to comment on departmental activities. There should also be greater emphasis on diverting offenders from prison and on co-operation with the other arms of the criminal justice system to achieve this.
More attention must be given to the rehabilitation of offenders in prison so that prisoners can lead a crime-free life when they are released. Rehabilitation should focus on life skills programmes, training and education, and equipping prisoners with skills which make them productive members of society.
Mechanisms for protecting prisoners' rights must be introduced, possibly through an independent prisons inspectorate and a lay visitors scheme which would monitor and investigate prisoners' complaints. In addition, the due process rights of prisoners must be protected in disciplinary hearings, grievance procedures and decisions relating to a prisoner's release from custody.
The Alternative Paper also focuses on conditions in prisons, the status of women, HIV and AIDS prisoners, the mentally ill and juveniles. Recommendations are made for restructuring the Department, including the demilitarisation of correctional services. The appointment of a Change Management Team is recommended to guide the Department's transformation to reflect the culture and structure of our society.
The Alternative White Paper is a discussion document and part of a process to reform the legislation and policy governing correctional services. Copies are available from the Centre for the Study of Violence and Reconciliation.
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