Prison conditions in South Africa have been directly affected by the political changes in the country since the beginning of 1990. Significant reforms of the system have been implemented, and conditions have improved in some respects. Nevertheless, at approximately 393 per 100,000, South Africa continues to have one of the highest prisoner-to-population ratios in the world, and many aspects of prison life remain depressingly unchanged from the years of official apartheid. In particular, South African prisons are places of extreme violence, where assaults on prisoners by guards or other prisoners are common and not infrequently fatal.
Africa Watch and the Prison Project of Human Rights Watch conducted an investigation of prison conditions in South Africa during 1992-93. During the course of two separate missions to the country, the following prison complexes were visited: Pretoria Central, Durban Westville, Robben Island, Pollsmoor, Rooigrond (Bophuthatswana), Umtata Central and Wellington (Transkei), Brandvlei, Kroonstad, Barberton and Modderbee; a total of over twenty individual prisons. We also conducted visits to police lockups in Cape Town, Verwoerdburg, Kensington, Khayelitsha and Soshanguve. In addition, we reviewed reported court cases dealing with prisoners' rights, and interviewed prison officials, former prisoners, prison reform advocates, prisoners' rights activists, and lawyers working on prison conditions.
South Africa's prison system was established in the nineteenth century, during the expansion of colonial rule from the Cape Peninsula to the modern boundaries of South Africa and beyond.1 In 1910, the Union of South Africa was established, joining together the four provinces of Cape, Natal, Transvaal and the Orange Free State, and in 1911 a consolidated Prisons and Reformatories Act was passed. This legislation was replaced in 1959 with the Prisons Act, which C renamed the Correctional Services Act and amended many times C is still the basis of South African prison law today.
The development of the prison system was closely linked to the progressive institutionalization of racial discrimination in South Africa, from the time that widely enforced "pass laws" were introduced for Africans in the 1870s, to the elaboration of an official theory and systematized practice of apartheid following the victory of the National Party in the election of 1948. The pass laws, which were introduced especially to regulate the labor force in the diamond and gold mines of Kimberley and the Witwatersrand, criminalized a vast number of otherwise law-abiding citizens. Sentenced to imprisonment, they were then used as convict labor by the mining companies, whose compounds for theoretically voluntarily employed migrant laborers were already scarcely better than prisons. At the same time, the increasing militarization of the South African state in its contacts with the majority population was extended to the prison system, where uniforms and military ranks were given to prison staff.
The Prisons Act "tightened up" the administration of prisons in several ways, in particular by removing the flimsy mechanisms of outside supervision that had existed and by restricting media coverage of prison conditions. Racial segregation, already codified under the 1911 act, was further reinforced. However, the new act was also framed with reference to the newly adopted United Nations Standard Minimum Rules for the Treatment of Prisoners, and in some respects an improvement on its predecessor, at least as written.
From the 1960s, ever-larger numbers of political prisoners were added to the South African prison population. Their writings and legal challenges to the authorities contributed to an international outcry at prison conditions. In 1964, the Red Cross was invited to visit South African prisons for the first time; in 1966 its report was published (despite the usual rules of strict confidentiality). Despite this focus on prisoners' rights, the South African authorities maintained, controversially, but with the acquiescence of the courts, that all but the most basic necessities for survival were privileges whose grant was in the sole discretion of the system. As opposition to apartheid outside the prison system became steadily more effective during the 1970s and 1980s, the response of the authorities also affected the situation inside prison walls. In 1985, the introduction of a state of emergency brought the detention without trial of large numbers of anti-apartheid activists, and increased restrictions on reporting, including reporting on prisons. Nevertheless, it became clear to at least a section of the ruling National Party, including State President F.W. de Klerk, who replaced the hardline P.W. Botha in 1989, that the existing order could not be maintained against internal revolution and international isolation.
In February 1990, de Klerk announced the end of the state of emergency, the unbanning of the African National Congress (ANC) and other extraparliamentary opposition parties, and the release of Nelson Mandela and other famous political prisoners. A process of negotiation for the introduction of universal suffrage and democratic government in South Africa was begun. The prison system has been part of the general movement to reform government institutions that has accompanied the negotiations, and significant amendments to the Prisons Act have been introduced.
In 1990, apartheid in the prison system was formally abolished, with the repeal of the section requiring black and white prisoners to be housed separately. The Prisons Service was separated from the Department of Justice and renamed the Department of Correctional Services; the Prisons Act was renamed the Correctional Services Act in 1991. A new sentence of "correctional supervision" was also introduced, allowing the possibility of a reduction in the prison population and acknowledging the limited usefulness of custodial sentences. Further legislation drastically reduced the circumstances in which the death penalty might be imposed, all existing death sentences were reviewed and many commuted, and a moratorium on hangings was introduced. At the same time, restrictions on reporting of prison conditions were substantially removed, and outside supervision of the prison authorities increased, by the inclusion of non-prison staff on some of the committees regulating prison affairs. In 1993, further major amendments to the legislation curtailed the methods by which prisoners might be punished and introduced important new procedural safeguards.
One of the preconditions set by the ANC for the beginning of formal negotiations with the government was the release of all political prisoners; that is, of prisoners convicted under South Africa's draconian security legislation before it was reformed. In two "minutes" signed at Groote Schuur in May 1990 and at Pretoria in August 1990, the ANC and the government agreed on criteria for the definition of a political prisoner, and a review process was set out. The initial deadline under these procedures for the release of all political prisoners was April 30, 1991; although disagreements on classification C particularly as to whether individuals convicted of violent acts should be included in the definition C and bureaucratic delays meant that only a minority of those described as political by the ANC had been released at that date. Several hundred prisoners were nevertheless released by the end of the year, and in September 1992 further negotiations resulted in the release of 500 more prisoners; in total, approximately 1,600 security prisoners had been released by late 1993.2
During the same period, in response to overcrowding in the prison system, large numbers of common criminals were also granted early release; some 50,000 in 1991, and a further 7,500 announced in January 1993. Although welcomed in opposition circles, the release of security and other prisoners proved extremely controversial amongst white South Africans. Moreover, when combined with the publicity about release of political prisoners, it provoked an outburst of discontent in the prisons themselves amongst prisoners left out of the process. In 1991, hundreds of prisoners went on hunger strike demanding political status and early release; several prisons were hit by severe rioting. Hunger strikes by prisoners claiming political status continued over the following period, though they reduced in frequency and determination after the last large group of security prisoners was released by the government in late 1992. Even in 1993, however, there were widespread hunger strikes in prisons in January and February, organized by the South African Prisoners Organization for Human Rights (SAPOHR), a pressure group formed by ex-prisoners; and in May 1993, approximately twenty prisoners in Leeuwkop prison embarked on a strike in support of their claim to political status.
Reforms recently introduced also include the introduction of telephones for prisoner use (though on a limited basis); the curtailment of the use of straitjackets, and a much greater effort to segregate juvenile prisoners from adults.
Reform of the prison system is likely to continue. Furthermore, the interim constitution agreed at the negotiations for a transition to majority rule, which will come into effect in South Africa once multiracial elections take place, guarantees certain rights to prisoners and detainees. Although the exact effect of the bill of rights remains to be seen, explicit constitutionally-guaranteed rights will open up the possibility of substantive court supervision of the prison system (and of other aspects of government), hitherto restricted by the courts' endorsement of an extremely limited view of prisoners' rights.
Nevertheless, some aspects of the prison system are unlikely to change in the short term. South Africa has an extremely high rate of violent crime. Well over 20,000 people are murdered every year, roughly fifty for every 100,000 of the population (the figure for the United States is 17.2 per 100,000). Statistics for rape and other violent offenses are at similar levels. These numbers are unlikely to change until the economic and social crisis in the townships can be addressed C something that will take many years. In the meantime, there is little alternative to incarceration for violent offenders, the prisoner-to-population ratio will remain high, and overcrowding will remain the norm for most prisons. The high levels of violence observed in South African prisons are in part reflections of the violence of South African society in general, and will be difficult to eradicate without parallel progress outside prison walls. Equally, racism in the prison service, which remains a reality despite the legal reforms, reflects racism in the wider population.
Despite these problems, we believe that the prison system in South Africa could be substantially improved, even without major investments by the taxpayer. The recommendations made in this report suggest specific measures that would begin that process. Although some of these reforms could be instituted by the Department of Correctional Services on its own initiative, so far as possible reforms to the system should be carried out in consultation with prisoners' rights groups and other interested parties.
The investigation of prison conditions in South Africa carried out by Human Rights Watch has benefited from the recent reforms. Our representatives received unprecedented access to prisons and prisoners, with unlimited freedom to select the prisons visited. As a condition for this permission, Human Rights Watch agreed to give the Department of Correctional Services an opportunity to comment on a draft of the report before publication: the report as published takes into account many of the comments made by the Department. In the appendix, we also reproduce the Department's comments regarding some of our recommendations and provide our response to these comments.
This level of cooperation with an international monitoring organization would have been unthinkable a few years ago.3 Nevertheless, it was clear to us that the spirit of reform shown by the decision to allow our prison visits to occur was not shared by all members of the Department of Correctional Services. While some prison officers welcomed our attention as an opportunity to press for further improvements, others were clearly resistant to any idea of modifying the violent culture of prison life; many prisoners expressed to us their fear of reprisals for talking to our representatives. Although the recent reforms should, in time, improve the conditions in which prisoners are held, we have included in our report references to the practices of the recent past, on the grounds that they remain relevant to describe the experiences of prisoners today. Even with complete commitment from senior prison management, it would be some years before many of the abuses we observed are likely to be eradicated. We hope that this contribution to the debate on penal reform in South Africa will encourage the continuation and extension of the reforms that have already been made.
The Prison Project of Human Rights Watch bases its assessment of prisons on international standards for the treatment of prisoners, especially the U.N. Standard Minimum Rules for the Treatment of Prisoners, adopted in 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders.4 South Africa's Department of Correctional Services also accepts the U.N. Standard Minimum Rules as the basis of its practice. In addition, South Africa signed several human rights treaties during 1993, including the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, indicating a new acceptance of international standards.5
1 For a history of the South African prison system, see Dirk Van Zyl Smit, South African Prison Law and Practice, (Durban: Butterworths, 1992), pp. 7-43.
2 The Human Rights Commission (HRC), an independent monitoring organization, calculated that forty-six prisoners fitting the criteria of the Groote Schuur and Pretoria minutes remained in the prison system at the end of October 1993. Of these, thirteen were already assessed to be political by the joint scrutiny committee; sixteen were under review by the committee, and the remainder appeared only on the HRC list.
3 Access to all South African prisons was also given to the International Committee of the Red Cross (ICRC) in 1992. The ICRC had also been given permission to visit a limited number of security prisoners since the 1960s. However, ICRC reports (with the important exception of the report published in 1966) are confidential and available only to the authorities responsible for the prisons visited. Lawyers for Human Rights, a leading South African human rights organization, was also given access to several South African prisons during 1993.
4 The complete text of the UN Standard Minimum Rules is attached as Appendix II.
5 Although South Africa was among the countries present at the founding of the United Nations in 1945, it resisted for several decades all claims by the international community to have an interest in monitoring human rights within its borders, abstained from the resolution adopting the Universal Declaration of Human Rights (UDHR), and did not become a party to any of the major human rights treaties as they were drawn up. However, with the rolling- back of the apartheid legislation, this position was relaxed, and international scrutiny of human rights practices has increasingly been tolerated. As of the date of publication of this report, South Africa had not yet followed its signature with ratification of the Convention Against Torture. However, torture is illegal under international customary law, and the lack of ratification does not affect South Africa's general obligations to prevent its use. Moreover, the UDHR C which bans torture and other cruel inhuman or degrading treatment or punishment C is widely regarded as the authoritative interpretation of member states' human rights obligations under the U.N. Charter, to which South Africa has always remained a party.