How does one judge a society?
One such measure is suggested by Fydor Dostoyevsky, who notes that “A society should be judged not by how it treats its outstanding citizens, but how it treats its criminals.” I am inclined to agree with this measure. Using this criterion, how does South Africa measure up? As South Africans we as a society have developed an attitude towards those found guilty of crimes: i.e. criminals should be thrown in jail and we seldom care about their well-being whilst they are housed in these institutions because “they are criminals after all.”
However, our Bill of Rights does not cease to apply to individuals once they are sentenced and imprisoned. Whilst some of these freedoms (such as the freedom of movement) are curtailed, the vast majority should still be respected. One of the rights enshrined in our constitution which continues to apply to someone who has been convicted of a crime is Section 10, which protects the right to human dignity. Section 12 of our constitution also provides that everyone has the right to be free from all forms of violence and ‘not to be treated or punished in a cruel, inhuman or degrading way’.
However, if we were to evaluate our society using the above criteria, taking in particular consideration Section 12 of our constitution, we still have a long way to go as a nation. When one looks at case studies from specific prisons in our nation this point is evident. Sonke Gender Justice published a report of a survey of prisoners in Pollsmoor Prison in 2015. Prisoners who were interviewed are quoted as saying that they have to share their cells with 70 other inmates, and as a result of this a lot of them are forced to sleep on the floor.
The conditions are so bad that prisoners recount that they must sleep on their sides so that there is space for everyone to sleep on the floor. For these 70 prisoners in question the prisoner noted that there was only one toilet but that it had a broken cistern. Then Justice Edward Cameron published a scathing report when he visited Pollsmoor Prison in May 2015. In his report he noted that the prison n in total had some 8000 prisoners and that the remand centre had an awaiting trial population which stood at some 300%. At the time of the visit there were some 4198 awaiting trial prisoners. The conditions of the cells themselves were horrifying. Justice Cameron notes in his report that the cells were filthy and cramped and that inmates were forced to share mattresses.
One of the cells visited had some 60 inmates with only 24 beds. Another cell had no sheets on the beds. As a result of these overcrowded conditions, scabies became a major issue for prisoners. Another report conducted by the in National Institute for Communicable Diseases on the effects of overcrowding within the awaiting trial prisoners’ cells focused on the medical consequences of such overcrowding. Crucially these individuals have not been found guilty of any crime and are thus innocent members of our society under the law.
This report found that 2 prisoners had died of Leptospirosis (a disease spread by rats) and that the spread and prevalence of this disease had a direct correlation to the overcrowding within the prison. The report also noted that an awaiting trial prisoner who could not afford his bail of R500 had been recently rushed to hospital for heart failure.
The above incidents point to a direct infringement of these individuals’ rights guaranteed in sections 10 and 12 of our constitution. If South Africa truly wants to be the great democracy it proclaims to be it needs to hold itself to account to its constitutional principles. As a nation it needs to embrace the words in Section 7 of the constitution. This has the effect of ensuring that the Bill of Rights extends also to protect those who have been convicted of crimes.
Mikhail Petersen holds a Bachelor of Social Science degree in Politics and Economic History as well as an LLB from UCT. Mikhail is an intern within the Sustained Dialogue Programme at the Institute for Justice and Reconciliation, based in Cape Town.