If getting bail were easier, we could quickly and cheaply reduce overcrowding in prisons and improve public health at the same time.
COMMENT
On Sunday March 15, President Cyril Ramaphosa finally provided some guidance in relation to the spread of Covid-19 in South Africa. He mentioned several precautionary measures that would be implemented to curb the outbreak, including the imposition of a moratorium on prison visits. At face value this is a commendable intervention, however, one becomes increasingly concerned when contemplating the actual consequences of this decision on the health and wellbeing of those incarcerated and working within the prisons.
When the state deprives a person of their liberty, it is obliged to provide a duty of care. According to the Nelson Mandela Rules, “Prisoners should enjoy the same standards of healthcare that are available in the community, and should have access to necessary healthcare services free of charge without discrimination on the grounds of their legal status.”
So, let’s consider what standards of healthcare instructions are being given to the community with regards to Covid-19. Firstly, wash your hands regularly, with soap; secondly, practice social distancing; thirdly, self-quarantine if you are at risk of transmission; and lastly, stay informed. These are practically impossible to follow if you are in prison. Not only are almost all of our prisons overcrowded, many of them also lack sufficient running water and hygiene materials.
In lieu of implementing practical prevention measures to reduce the number of people sitting in prison — such as releasing nonviolent offenders, processing awaiting-trial detainees, and encouraging judges to use alternatives to incarceration — the government decided to stop prison visits. This has been done in other countries too, and we are starting to see the dire effects that this decision has on incarcerated people.
Firstly, the ban technically means that detained persons are unable to see their legal representatives, which is a serious violation of their rights. Secondly, a lack of oversight visits and reporting (by bodies such as the Judicial Inspectorate for Correctional Services and judges) may have serious implications for the safety of detained people and the accountability of prison officials. Thirdly, visits from family members and friends are vital for the mental health of detained people. These visits can prevent violence, and are also a source of food and other essential resources that are not sufficiently provided by the prison (such as bedding, sanitary items, and medication).
Therefore, if the government is going to continue with this prison visit moratorium for the duration of the Covid-19 outbreak, it needs to ensure that incarcerated people’s means of contacting the outside world are increased and more accessible (for example, phone calls, emails, post and video calls). However, it is recommended that the government take even more proactive steps to curb the spread of the disease, by decreasing the number of people in prisons. The department of correctional services should prioritise the release of older detainees, especially those with underlying health conditions, as well as people serving short sentences for nonviolent crimes.
Furthermore, the government should refrain from enacting punitive regulations, which impose prison sentences on those who do not comply with Covid-19-related procedures. This will simply exacerbate the problem of overcrowding in prisons, and will likely have a disproportionate effect on poorer communities.
We already face a high incidence of HIV and tuberculosis in our prisons: let’s try to get ahead of this new contagious disease and protect our vulnerable friends and family members who are incarcerated.
Zia Wasserman is the national prisons co-ordinator at Sonke Gender Justice