Legal Challenge To An Unjust Policy

Philippa Garson

THE plight of prisoners with HIV will be brought to the fore when an application is lodged by the Aids Law Project on their behalf.

The application, to be heard in the Rand Supreme Court soon, will attempt to prevent these prisoners from being abused and stripped of their rights.

It will also challenge existing prisons policy on testing and treatment of prisoners with HIV. Much of the abuse occuring in prisons around the country stems from this policy, argues the ALP, an affiliate of the Aids Consortium.


According to the ALP, prisoners with HIV are stigmatised, often verbally and physically abused and denied adequate medical treatment, including counselling.

Correctional Services policy is to separate prisoners with HIV at night. (In the case of Johannesburg Prison, prisoners with HIV are housed permanently in single cells.)

This, believes the ALP, is a misinformed and unfortunate violation of a person’s right to confidentiality. Separating prisoners with HIV from the rest immediately informs other inmates of their medical condition, exposing them to abuse.

The Department of Correctional Services has a inconsistent policy when it comes to testing. Those considered to be “high risk” — including illegal aliens, known homosexuals, sex workers and drug addicts — are tested on admission.

Implicit, argues the ALP, is the assumption that there is such a thing as an “HIV profile”, when in fact anyone can have the virus.

Prisoners who work in the kitchen are also tested. This, says the ALP’s Zackie Achmat, is irrational and medically unjustified.

As of January last year, 249 prisoners were found to be HIV- positive — 0,2 percent of the prison population. Former minister of Correctional Services Adriaan Vlok said in parliament last March: “If the present trend continues, by the year 1995 one in 15 prisoners will be HIV-infected. In order to counter this trend, various campaigns have been launched to combat Aids in South African prisons.”

According to a guideline brought out by the department in September 1992, “informed consent” must be obtained from the prisoner before a blood test is taken and “pre-test counselling” must be given. However, inmates of Johannesburg Prison deny that these procedures have been followed.

The department also states that “this information is at all times considered strictly confidential”. The policy of separation contradicts this.

In British prisons, where condoms will soon be available, only the treating doctor is informed if a person tests positive, and HIV-positive prisoners are not separated. Similar policies are being adopted in many other European countries and some American states.

Organisations like ALP are lobbying Correctional Services to make condoms available in prisons here. Presently, the department refuses to do so on grounds that sodomy and homosexuality are illegal. However, all legislation outlawing these practices will be challenged, probably successfully, under the new constitution.

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