In prison, it's never been easy to see the sky. But now, with increasing changes to legislation relating to those inside the cells, and those outside campaigning for their release, things are becoming even darker. Emergency detainees, for example are in many respects held in harsher conditions and have fewer privileges than people who have been charged with an offence.
The table alongside compares the prison conditions of Emergency detainees with other categories of prisoners and with UN standard minimum rules guidelines. It is based on regulations in the Government Gazette. Although conditions may be worse in certain cases, Emergency censorship blacks out at most all details of detention conditions.
Emergency detainees
Visits: No visits without permission of the Minister of Law ad Order. Detainees' attorneys allowed legal consultations within sight but out of hearing of prison officials. In practice, family members allowed about one visit a fortnight, within sight and hearing of an official.
Letters: No letters to anyone outside the prison without permission from the Commissioner. Letters are subject to censorship.
Reading: No reading matter except Bible or other holy book or elected magazines supplied through prison. Commissioner of Police has said this excludes newspapers. Studying only with permission of prison head and police.
Parcels: No articles or foodstuffs to be received by detainees. No prohibition on buying from prison shop, though in practice not every prison has a shop.
Exercise: Open air exercise for at least one hour a day, weather permitting. No one forced to do exercise. Inside sport activities if facilities available.
Music: No radios, record players, tape recorders, musical instruments or television sets for detainees. "Where broadcasts from a centrally controlled radio or record player are available, detainees may be allowed to listen thereto."
Purchases: Detainees can buy "a reasonable quantity" of cigarettes, toiletries and food with money from relatives and friends.
Awaiting trial prisoners
Visits: Can consult lawyers about impending trial. Commissioner of Police may regulate visits. Generally may see family members at most twice a week.
Letters: Prisoners may write and receive letters, subject to censorship.
Reading: May receive or purchase stationery and reading material approved by the Commissioner.
Parcels: Can obtain food parcels and other articles subject to local prison rules.
Exercise: Prisoners working inside allowed daily exercise for one hour in open air. Physical exercise under supervision.
Music: No specific provision for musical instruments and radios. In certain recently upgraded prisoners, videos, cassettes, radios and musical instruments are allowed.
Purchases: No food or drink which, in the opinion of the Prisons Service "is not clean, wholesome, sound and free from disease, infection or contamination". The amount of food delivered in one day can be restricted.
Convicted prisoners
Visits: Visits at discretion of Commissioner of Prisons. Generally prisoners have access to lawyers. Category of prisoners determines number of family visits allowed.
Letters: Censored letters allowed, subject to a convict's grading.
Reading: "Compulsory studies may be prescribed for specific cases for
certain categories of prisoners". A prison library of "constructive and educational" literature may be put at the disposal of all prisoners. A prisoner may receive books and periodicals from outside sources.
Parcels: No specific rule; very dependent on grading, religion.
Exercise: Prisoners working inside allowed daily exercise for one hour in open air. Physical exercise under supervision.
Music: No specific provision for musical instruments and radios. In certain recently upgraded prisoners, videos, cassettes, radios and musical instruments are allowed.
Purchases: Dependent on their categories
Internal Security Act detainees
Visits: Section 28: No visits except with Ministerial permission or to consult a lawyer about making written representations to the Minister. Section 29: No access to lawyers at all. Presently being challenged in the Transvaal Provincial Division of the Supreme Court.
Letters: Section 28: No correspondence except with permission of Divisional Commissioner of police. Section 29: No specific provision regarding letter writing. In practice, writing material provided only to make representations to the Minister.
Reading: Section 28: Same as awaiting trial prisoners. Section 29: No provision for receiving or buying reading material. A Bible or other holy book supplied on request.
Parcels: Section 28: No provision in regulations. Section 29: No provision except that "reasonable requests" about food not consumed for religious reasons "shall, as far as possible, be taken into account."
Exercise: Section 28: No set rules. Section 29: Regulations state detainees, where practicable, are held in cells with an exercise area, washing, bath or shower facilities in the cell or exercise area, a flush toilet in the cell or exercise area.
Music: Section 28 and 29: No provision for musical instruments or radios.
Purchases: Section 28: Same regulations as awaiting trial prisoners. Section 29: No provision regarding outside purchases.
UN standard minimum rules
Visits: Prisoners should be allowed under necessary supervision, to communicate with their family and reputable friends at reputable intervals, both by correspondence and by receiving visits. Visits with lawyers within sight but not within hearing of a police or prison official.
Letters: Untried prisoners can inform their families to their detention and "shall be given all reasonable facilities for reasonable communicating with family and friends .. subject only to such restrictions and supervision necessary in the interests of the administration of justice and of the security of the institution."
Reading: Prisoners shall be kept informed by reading newspapers or listening to the radio. Every prison shall have a library for use of all categories of prisoners. Education of illiterates and young prisoners is compulsory. Untried prisoners can buy books, newspapers and writing materials.
Parcels: "Within the limits compatible with the good order of the institution, untried prisoners may, if they desire, have their food procured at their own expense from the outside, either through the administration or through family or friends. Otherwise, the administration shall provide their food."
Exercise: Every prisoner not employed in the outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.
Music: "Recreational and cultural activities shall be provided in all institutions for the benefit of the mental and physical health of prisoners."
Purchases: Untried prisoners may, if they so desire, have their food purchased at their own expenses from outside prison.
'Detainees are becoming long-term prisoners'
The honeymoon phase of the Emergency is over for human rights lawyers. Important court challenges which secured the release of detained clients earlier have dried co a trickle. Instead, the numbers of detainees have steadily increased and the regulations have been consistently tightened and broadened.
Today thousands of people have been in jail for 10 months: "Detainees are becoming long-term prisoners," commented Johannesburg attorneys David Dison and Steve Kahanovitz. Lawyers are increasingly looking at how to improve the circumstances of detention — conditions concealed from the public in terms of Emergency press restrictions.
To discuss the Emergency regulations and ways of attacking them, more than 30 civil rights lawyers from around the country recently held a closed strategy workship in Johannesburg. In their seminar paper Olson and Kahanovitz argued that the punitive aspects of detention could be challenged by lawyers. If this was not done, detainees held in overcrowded prisons geared towards punishing and, arguably, rehabilitating convicted persons were at risk. "We believe therefore that the official death toll of three detainees since June 1986 16 but the beginning."
Detainees, they said, had a status which hovers "somewhere between that of awaiting trial prisoner and convicted prisoner". Ultimately, their rights to visits, letters, extra food and reading material (see chart) were controlled by the Security Police — reducing rights to privileges. But, the attorneys stated emphatically, "In respect of Emergency regulation detention, the punitive aspect of prisons has no place at all". The rules regulating conditions of detention "constitute unnecessarily harsh punishment and excessive deprivation in addition to the loss of liberty inherent in their imprisonment," they added.
The Emergency regulations empowered the Minister of Justice merely to make rules to regulate detention — but the conditions went much further and inflicted great hardship on detainees, Dison and Kahanovitz said In addition the rules went much further than the definition of the Minister's powers under the Public Safety Act. He was empowered only to make rules to ensure the safety of the public, maintain public order, make adequate provision for the Emergency, or deal with any circumstances which, in the State President's opinion, have arisen as a result of the Emergency.
The rules could not be justified on the grounds that they were necessary for the management or good order of a prison they said, because awaiting trial prisoners were not subject to such harshly punitive measures. "Measured at least against the provisions for awaiting trial prisoners set out in the prison regulations, and, at most against international minimum standards," Dison and Kahanovitz said, "we believe that these Emergency prison regulations are vulnerable to attack'.
Gilbert Marcus of the University of the Witwatersrand' s Centre for Applied Legal Studies addressing the workshop on safeguarding detainees' health, outlined pressure which could be placed on district surgeons to ensure they fulfilled their legal and ethical obligations in treating detainees. He said a district surgeon who, through negligence, caused injury or death to a patient could be sued for damages. However, such opportunities were infrequent. "An arguably better remedy, and one generally unused, would be to lodge a complaint with the Medical and Dental Council on the grounds that the district surgeon was guilty of improper or disgraceful conduct," Marcus said.
District surgeons' treatment of detainees raised serious ethical questions, he added. A crucial question was whether district surgeons who treated detainees held in solitary confinement — generally defined as torture — were condoning or participating in the practice of torture. "The remedy for the effects of solitary confinement are release from detention and not the prescription of anti-depressant drugs." Marcus said it could be argued that a district surgeon who "failed to take preventive measures to avoid the inevitable consequences of the effects of solitary confinement" might be in breach of the obligations demanded by the Tokyo Declaration.
This declaration — which a Department of Health, Welfare and Pensions publication said had largely replaced the Hippocratic Oath — provides that; "The doctor shall not countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures, whatever the offence of which the victims of such procedures is convicted, accused or guilty, and whatever the victim's beliefs or motives, and in all situations, including armed conflict and civil strife."
If a district surgeon's recommendations were vetoed or not implemented, Marcus argued, a surgeon could not say he or she was "just following orders". "It is strongly arguable that a District Surgeon who failed to take adequate measures to ensure the implementation of his recommendation would be guilty of improper or disgraceful conduct." Marcus suggested attorneys acting for detainees give district surgeons complete medical histories of their clients on their arrest. Such reports would oblige district surgeons to ensure proper medical care. — Jo-Annn Bekker
'You can still call for an end to the system of detention'
The state's explanations of the way it will use its-tough new anti-detention protest restrictions have not impressed churches, lawyers, politicians and extra-parliamentary organisations. Police Commissioner General Johan Coetzee said the intention was to affect neither prayers offered at "bona fide" religious services nor speeches at election meetings. But Bishop Wilfred Napier, president of the SA Catholic Bishops' Conference, has dismissed the assurances as "a confidence trick". He said the church does not want special favours but rather wanted the curbs removed so that everyone would have the right to protest at detention without fear or threat of legal action.
- The PFP's Helen Suzman said the explanations and assurances were worthless, described the curbs as an infringement on the right of lawful protest and called for them to bescrapped.
- The Detainees' Parents Support Committee's Audrey Coleman denied the restrictions were aimed at massive "sit-ins" or other large-scale demonstrations, as hinted in some newspapers by "official sources". She said laws already existed to detention question before the first year cope with such protests, and that the new restrictions were aimed at "getting rid" of the anniversary of the Emergency.
- Legal academics at the University of Natal have sent an urgent telex to the Commissioner of Police, asking that he tell them whether or not an advertisement planned for insertion in this Sunday's newspapers is legal. Their advertisement calls on colleagues at university law schools throughout the country to join with them in a "campaign for the return of the rule of law".
A challenge to the new regulation is expected in the Durban Supreme Court early next week. A spokesman for Priscilla Jana and Associates in Johannesburg said various organisations planning court action had come together and were preparing a joint urgent application. The first applicant will be the Release Mandela Committee. Advocate Ismael Mahomed will argue the case. Before the "explanations" were issued by the commissioner on Monday night, legal experts said the wording of the restrictions gave a little more room for protest than was at first believed, but that they were "very wide".
Our lawyer commented the churches were right to protest that the curbs forbade prayer for the release of detainees: whatever the alleged intention of the restrictions as announced by the commissioner, the wording was plain, and this is what the courts would have to take into account. This view was shared by the PFP's Peter Gastrow, himself an advocate. He said Coetzee could not water down the effect of the regulations simply by issuing a statement. The restrictions would have to be scrapped or amended.
Legal observers pointed out that since the apparent delegation of powers to the commissioner to make regulations, a new system of making law had been introduced into South Africa — made jointly by the commissioner and the courts. The commissioner issues very wide regulations which are then challenged in court. "Between them the judges then decide what is acceptable and thus frame what are virtually new laws for the country, all without parliament having any say in the matter at all."
The two organisations most affected by the new curbs appear to be the Free The Children Campaign of the Black Sash and the DPSC. DPSC's Audrey Coleman said the campaigns run by the two organisations to highlight the position of detainees was proving immensely effective. She said the government was receiving an "incredible number" of cards protesting at the continued detention of children and adults. In Holland alone, 125 000 cards had already been distributed for mailing to South African government officials, and "there was a constant clamour for more".
Coleman said she believed the restrictions were aimed at preventing the massive outcry which would come in June with the end of the first year of the Emergency. It seemed likely there would then be detainees held at the start of the clampdown who were still in detention — a year later. The Detainees Parents Support Committee yesterday issued a statement saying the government had now clarified the intention of the regulations: to crush the DPSC and all effective campaigns against the detention of government opponents. "For the DPSC, the latest regulations are the culmination of a month of particularly intensive harassment against the organisation and our members."
The DPSC cited raids on their offices in four cities, attempts to stop a DPSC Detainees' Day advertisement, the issuing of a subpoena to one of their members and the detention of seven of their members, among other things. The DPSC said the harassment has not and will not stop them. They intend fighting the regulations in court, and "should we fail in court, we will campaign for the right of all South Africans to oppose detentions and campaign for the release of detainees".
Commenting on the "space" still available for anti-detention protest, a senior member of the legal profession, who cannot be named, said there was nothing stopping an anti-detention campaign not based on a call for the release of detainees. "For example, one could mount an effective campaign calling for detention to be stopped because of the harm it was doing to South Africa's image internationally."
The newly-appointed general secretary-elect of the SA Council of Churches, the Reverend Frank Chikane, said yesterday that if it was subversive to call for the release of detainees, "it means the mission and life of the church is a subversive act. "If you cannot declare your solidarity with
Detainees in this country, you can't do your mission as a church. — Carmel Rickard
Good legislation must endure the rule of law
A legal expert's view of the new detention regulations:
Hurried explanations by the Commissioner of Police and the Minister of Law and Order in the wake of the furore around the recent "Release Detainee" regulations illustrate a simple legal truism: Law is not made at the stroke of an official pen. For it to be good law it must be the product of judges who are bound by precedent, or a parliament that is representative. The abdication by parliament to individual members of government and the generals of its law-making powers can only result in rule by decree. It would seem that a new pattern is developing.
The Commissioner of Police is exercising his power to define acts that, if encouraged by others, constitute subversive statements. It is now a subversive statement to encourage or do anything which is likely to encourage persons to participate in any action to accomplish the release of any detainee in any of the following ways:
- The signing of a petition in which the government is called upon to release detainees
- The calling, either orally, in writing, by telegram or any way whatsoever, upon the government to release detainees.
- The filling in of a coupon or other similar document to be used for the purposes of calling up the government to release detainees.
- The wearing in public of a sticker or any article of clothing or the exhibition in public of a poster or a sticker depicting a slogan protesting against or disapproving of the detention of persons.
- The attending of a gathering held in protest against the detention of the persons, or in honour of the detainees, or in support of the release of the detainees.
- The performance of any act as a symbolic token of solidarity with or in honour of the detainees.
This law will no doubt be challenged in the Supreme Court by groups of people who are working for the release and assistance of the detainees. No doubt the Supreme Court will exercise its right to test that the legislation falls within the ambit of the Public Safety Act and the regulations. But ultimately we must accept that parliament has signalled its intention, very clearly, that in matters such as these, the generals should be given law-making power. And ultimately, therefore, even if the present regulations are nullified, we can expect parliament either to amend the Public Safety Act or to pass a new Act which will give the generals the mandate which they seek. The rights of detainees to be heard have slowly been whittled away as we have watched the regulations emanating from the Government Printer.
The first major blow was contained in 11 December 1986 regulations ("Media Regulations") prohibiting the publication of the conditions and treatment of detainees. Coupled with this prohibition was the prohibition on the publication of court proceedings involving detainees, unless final judgement had been given. This new prohibition on the organising of protest against detention is a second blow. A third major blow is now feared when the Appellate Division rules on the state's appeal regarding the right of lawyers to have access to the detainees.
If the state' s appeal is successful, detainees will no longer have an automatic right of access to their lawyers, but legal visits will be subject to the permission of the Commissioner of Police. It is suspected that the Commissioner will not give permission lightly and that lawyers will only be allowed to visit detainees in rare circumstances.