In the light of startling revelations about episodes of abuse, “detailed dungeonlike conditions” and explicit cruelty metered out to al- Qaeda-operatives in CIA black sites, it is worth recalling that the practice of combatting violence with violence is not limited to the reaches of the American empire but remains very much alive in South Africa’s post-apartheid prison system.
Majid Khan, who had been a Pakistani resident of suburban Baltimore on the US East Coast before becoming a courier for al-Qaeda, testified in open court on the US military base of Guantánamo Bay in Cuba about ruthless incidents during his interrogation. This included accounts of “brutal forced feedings, crude waterboarding and other physical and sexual abuse” that form part of the US military’s “enhanced interrogation techniques”. These violent and cruel ways of extracting confessions and information from terrorist suspects are done extra-judicially — not on American soil — in so-called black sites or secret prisons in countries in Eastern Europe, Pakistan, Afghanistan and other outposts of the US empire.
By way of comparison, consider for example, the disputed facts in the case of Mbena and another v Minister of Justice and Correctional Services, a matter decided in August 2015 in the high court in Gqeberha. In that case 231 prisoners were allegedly tortured for days on end at St Albans Maximum Security Prison, situated outside Gqeberha, by the notorious EST (Emergency Support Team), colloquially known as the taakmag.
Judge Dyalan Chetty, now retired, summarised the facts of the plaintiffs as follows: “Their evidence that the floor and walls of the corridors in Maximum, B and D sections, constituted a melange of human excrement, bodily fluids, blood, human tissue and an agglomeration of prison issue and civilian clothing was tendered as antecedent corroboration for Siko’s anticipatory testimony that he and the inmates of B and D sections had had their clothes forcibly ripped and baton beaten off their bodies and been forced to lay [sic] naked in the corridors where they were brutally assaulted by members of the EST.”
Even though Chetty deemed it fit to reject the plaintiffs’ version “unreservedly”, it is worth noting the view of Roy King, a seasoned prison researcher, in a paper titled The Effects of Supermax Custody, that “[i]t is a [sic] commonplace in the literature that prisoners have a profound sense of justice and fair play.”
What led to the deplorable situation at St Albans?
In July 2005, after the murder by an inmate, Simphiwe Mbena, of a warden, Babini Nqakula, at St Albans Max, the department of correctional services sanctioned the intervention of the taakmag. Nqakula was killed because he told the Mbena’s mother that he had sodomised youth offenders, upon which Mbena’s mother declared her intention never to visit her son again. Family visits are a lifeline to the incarcerated. The severely beaten offenders claimed that this collective retributive punishment was a show of force by the department, while the latter suggested that the possibility of the recovery of weapons used by the various gangs circulating in the prison necessitated the taakmag’s intervention.
Even though we must concede Chetty’s point of departure was correct, that the issue which stood to be decided, turned on “a balance of probabilities” of the evidence presented, some aspects of the learned judge’s reasoning could be regarded as being fancy footwork.
How is it that Chetty could seriously entertain the idea that the 231 offenders had conspired to lie about their torture when they were under the constant surveillance and control of the department, which dispatched many of them to some of their other facilities nationwide? It is also common cause that the department used intimidation tactics against the first two plaintiffs (Mbena and Xolani Siko) by placing Mbena in solitary confinement for 43 days in the run-up to the trial. Siko’s hands were so badly broken by beatings administered by prison officers that he was permanently unable to do his own buttons or work.
Mbena was so deranged after prolonged solitary confinement that the trial had to be postponed as his testimony would have been incoherent. The plaintiffs’ attorney, Egon Oswald, was forced to approach the high court with a habeas corpus writ to visit his clients, six weeks after the beatings, with a view to photograph their injuries.
Curiously, torture and other cruel practices in post-apartheid South African prisons vis-à-vis CIA black ops, are distinguished by two important and almost sad differences. First, while the American government justify their treatment of these “unfortunate devils’ by the mantra of the war on terror (and, admittedly, Khan was involved in the bombing of a Marriott hotel in Jakarta, Indonesia, where 11 people were killed and many more injured), this is not the case in South Africa. It is not foreigners that are subjected to torture and cruel treatment, but South Africans.
Second, while the Americans claim their atrocious treatment of so-called foreign combatants are legitimate as they attempt to extract preventative information from these individuals, this is also not the case in South African sites for the delivery of pain. Here, cruelty and torture are merely par for the course and part of an institutional culture of managing conflict with violence, torture and cruelty. In the apt words of Carolyn Raphaely, a journalist affiliated with the Wits Justice Project, prison officials routinely “[resort] to violence as a default position”.
Part of the problem is our harsh, stigmatising and shaming culture, which has been described in the context of a similar culture in the US by Michelle Alexander in her brilliant The New Jim Crow as: “The disturbing phenomenon of people cycling in and out of prison, trapped by their second-class status, has been described by Loic Wacquant as a ‘closed circuit of perpetual marginality’. Hundreds of thousands of people are released from prison every year, only to find themselves locked out of the mainstream society and economy. Most ultimately return to prison, sometimes for the rest of their lives. Others are released again, only to find themselves in the same circumstances they occupied before, unable to cope with the stigma of the prison label and their permanent pariah status.
Judges are products of their society and its encompassing culture, and implicit bias against law suits brought by offenders against their jailers could entrench the culture of violence behind bars — still very much a legacy of apartheid thinking. Even in an age where the rehabilitation paradigm has died a quiet death, more effective grievance procedures and greater accountability would add significantly to the humane treatment of our fellow South Africans behind bars. None of the members involved in the brutal assault have been disciplined and many are still gainfully employed by the department.
This course of action is as much for the benefit of prisoners as it is for ours, since in the words of John Burton, one of the giants in the field of conflict management, “[D]eterrence does not deter sane behaviours [and] the only option, in politically realistic terms, [is] to resolve the social and behavioural problems that [lead] to specific conflicts, and not try merely to suppress them or to settle them by coercion.”
These wise words should be borne in mind by the correctional services department as they ponder the reasons South Africa has one of the highest rates of recidivism in the world. The ill-treatment of fellow South Africans in their care will only spill over into more violence in the wider society and further re-offending. As a post-colony in Africa, we don’t have to follow the poor, ill-advised and imperialistic example of the US.
This being said, Chetty did South Africa no favours with his executive-minded ruling in Mbena, as his judgment merely entrenched violence behind bars (with opacity in its train), which is likely to produce embittered and resentful offenders readied to unleash further violence on their release from prison. The culture of impunity in the department has only exacerbated the problem of violent crime for law-abiding people.