Themba* had been arrested for stealing a single bar of deodorant when I met him as a public defender at the Johannesburg magistrate’s court. He said he hadn’t stolen it and that there had been a misunderstanding at the shop.
Themba — who continued to insist on his innocence — should have got bail while he awaited trial. Unfortunately, like many South Africans, he did not have proof of address on him when he was arrested and he couldn’t get anyone to bring it to court, partly because he lived in an informal settlement. He would spend a month waiting in vain for his address to be verified by the police then — when this failed — another six months waiting for a trial to determine his guilt.
Last week, President Cyril Ramaphosa announced the release of 19 000 prisoners to reduce overcrowding and the risk of coronavirus spreading in prisons. This is an important step but only puts a small dent in the excessive overcrowding in South African prisons.
Overcrowding in prisons is nothing new but Covid-19 has brought a new layer of concern to this population which tends to be malnourished, lacks proper sanitation and has a high prevalence of TB which leaves them particularly vulnerable to the disease. Unsurprisingly, many experts have identified prisons as ticking time bombs with coronavirus cases found in prisons across three provinces.
There are 43 000 people (27% of our prison population) like Themba, accused of crimes and awaiting trial in overcrowded cells but — until they are convicted — are guilty of nothing except not being able to meet bail conditions, possibly for something as minor as a proof of address, lack of identification or being a foreigner.
The legal term for them is “remand detainees” but really they are people who are, in our system of justice, presumed innocent and should be released unless there are good reasons for detaining them.
If getting bail were easier, we could quickly and cheaply reduce overcrowding in prisons and improve public health at the same time.
Bail applications are difficult. The number of items an accused might need to secure it can be long and trivial — items such as proof of address or employment — but each one is a potential hurdle. Stumble at one, you’ll be stuck in prison.
Prisoners cannot physically distance and the situation is that much worse for remand detainees. For those awaiting trial, there may be up to 80 people in a cell built to accommodate 30. In addition to the overcrowding, unsanitary conditions in many cells where running water may be a rarity and a single toilet and shower is shared among all occupants of a cell, make maintaining good hygiene almost impossible. If nothing is done, prisons will inevitably become infection hotspots for Covid-19.
But these hotspots are not just a problem for prisoners and their wardens. The fact is that wardens and remand prisoners move in and out of prisons, meaning that the coronavirus infections in prisons will spread to the general public. There is an urgent need to take action to reduce the risk of Covid-19 outbreaks in prisons.
The government has recognised this problem, though not enough has been done. After the declaration of a State of Disaster, Ronald Lamola, the minister of justice and correctional services, introduced a number of measures aimed at giving remand prisoners bail. For example, those charged with “petty offences” can be released on a warning, informally called “free bail”. Lamola also issued directions that would allow prosecutors and police officers to grant bail, without a hearing, for a wide array of offenders, “where necessary”.
Though the intention behind these bail regulations is laudable, as a practical matter they are unlikely to result in any real change.
Even before Covid-19, magistrates have always had the option to give those charged with petty offences “free bail” and police officers already have fairly liberal powers to grant bail. But these measures were not often used, and it seems unlikely they will be used now.
The regulations rely on the discretion of magistrates, prosecutors and police officers whose primary interest is ensuring an accused returns to court, not reducing overcrowding. This creates a strong incentive to keep people in jail, not protect the health of prisoners.
In addition, the regulations do not do away with the onerous requirements that prevent many from getting bail in the first place and many will still not be able to afford it.
The Constitution makes it clear that every accused person has a right to bail unless it is not in the interests of justice to release them. Yet the poor conditions in prisons which have long existed and become even more dangerous thanks to Covid-19 have meant that prisoners’ right to health and potentially their right to life are being severely compromised.
Some may argue that remand detainees shouldn’t be released because they are people who have been arrested for committing crimes. But it is critical to remember that remand prisoners have not been convicted of any crimes and should still be presumed innocent.
We need to rethink bail and how it functions for marginalised people. It is no longer just a matter of criminal justice but of public health, safety and constitutional rights. Ideally, the government could provide for automatic release on warning for people accused of specific, minor crimes as well as provide measures for bail amounts to be reduced, making it more affordable.
Even during ordinary times, not being able to afford or access bail should not result in long stays in prison while awaiting trial. In the time of the coronavirus, it shouldn’t also be a death sentence.
* Not his real name
Safura Abdool Karim is a senior researcher and health lawyer at the South African Medical Research Council’s Centre for Health Economics and Decision Science. She is a 2020 Aspen Institute New Voices Fellow