Professor Christina Landman
HUMAN RIGHTS AND RELIGIOUS POLICY IN PRISONS IN SOUTH AFRICA
Research Institute for Theology and Religion University of South Africa, Pretoria
Nicolien du Preez College of Law, University of South Africa, Pretoria
The theologian is the voice of the voiceless, including the voiceless in prison. In the first part of this article the history of prison inspection as an outcome of the human rights movement is traced both nationally and internationally, culminating locally in the establishment of the Judicial Inspectorate of Prisons as an independent office under the control of the Inspecting Judge (effective from 1 June 1998). Special attention is given to the position of Independent Prison Visitors (IPV) in this system and their role in becoming the “voice of the voiceless” in prison environments. Because one of the authors of this article has served as an IPV, the second part of the article is dedicated to observations on prison spiritualities and the views of prisoners on their (human) rights as people of faith. The article concludes with suggestions for a policy accommodating the religious needs of prisoners in South African prisons.
South Africa boasts both a high crime rate and an exceptionally high church membership rate.1 The pietistic morality
prevalent in South Africa as the product of pre-Enlightenment missionary activity presupposes that criminality and
religiosity exclude one another, and that criminals cannot or do not want to be religious. This has led to a “lack of
understanding about religion that is so frequently evident among policy makers” (Wuthnow 2004:xiii), also as far as
South African correctional centres are concerned. Here, as in many sectors of civil life, “sound approaches to the state’s
treatment of religion” (Greenawalt 2006:1) are needed; approaches that complement the new democracy’s adherence both to
human rights and the South African constitution.2
This article’s twofold aim is represented in its two main parts. In the first part Luyt and Du Preez (criminologists with a
strong legal background) describe the history of the inspection of prisons, leading up to the establishment of the Judicial
Inspectorate of Prisons that became functional on 1 June 1998. Legal documentation pertaining to the Judicial Inspectorate,
its history and present, is supplemented with secondary literature and is interpreted within the parameters of human rights
as it is embodied in the South African constitution. The role of the Independent Prison Visitor as observer, defender and
inspector of the (human) rights of the prisoner is emphasised.
In the second part of the article Landman, a theologian who has acted as an Independent Prison Visitor in the Pretoria
Female Correctional Centre for 13 months, gives her impressions on the religious needs of the prisoners as incarcerated
bodies. She describes the variety of spiritualities prevalent in prison and the prisoners’ views on their physical rights
as people of faith. In conclusion, it is suggested that these observations can serve not only as a basis for policy as far
as the Department of Correctional Services are concerned; but also for religious workers who are working within the
confines of prisons.
2  JUDICIAL INSPECTIONS AND HUMAN RIGHTS IN PRISONS IN SOUTH AFRICA (Luyt & Du Preez)
2.1  Introduction
Prison inspection is a practice that has been in existence for many years. In the early days prisoners were subjected to strict inspections. Prisons were run along autocratic lines and the inmates had to toe the line. According to Bartollas (2002:267), the days when a prison could be managed in an isolated autocratic way, is over. Coyle (1994:5) points out that, prison officials always have to remember that they work on behalf of society. These remarks by Bartollas and Coyle have particular reference to American and British prisons.
In South Africa the situation is not different. The Prisons and Reformatories Act 13 of 1911 was introduced shortly after South Africa became a Union under British rule in 1910. At that time, prisons resorted under the Department of Justice because “it would ensure better control over prisons” (Neser 1989:21). Inspectors were appointed from outside the ranks of the Prison Service. However, these inspectors also executed inspections in other government departments (Neser 1989:23). In 1947 the Lansdowne Commission on Penal and Prison Reform (1945) tabled a report in Parliament, which paved the way for new legislation pertaining to South African prisons. The view of the Lansdowne Commission (1947:105) was that imprisonment is not meant to humiliate or degenerate the self-respect of a person.
With the promulgation of the Prison Act 8 of 1959, the way was paved to emphasise a better standard of living in prisons. Conditions of detention in prisons also received renewed attention with the introduction of the United Nations Standard Minimum Rules for the Treatment of Prisoners (1955). A prison regime should, for example, strive to minimise the differences between prison life and life at liberty (Strydom, Pretorius & Klinck 1997:167; Luyt 2000:369). At the time these developments promised a major transformation in prisons, but most of these promises never materialised.
The 1959 legislation continued and even extended bad treatment and racial segregation in South African prisons. Sadly, the detention of political detainees and sentenced political prisoners became a significant feature of reality in South African prisons. This led to an increasing attack on the legitimacy of the prison system. Direct legal challenges of decisions by prison authorities in courts of law and increasing international condemnation and pressure became the order of the day. In order to avoid criticism, even more inspections were introduced (including those done by local magistrates).
Although various inspection instruments are utilised inside South African prisons, this discussion will revolve around the role of the latest introduction in prison inspections (namely, those done by the Judicial Inspectorate in the effort of maintaining human rights and dignity in South African prisons). Within the above structures, the Independent Prison Visitor plays a central role in ensuring that the Judicial Inspectorate delivers according to its legal mandate. With this in mind, along with the fact that one of the authors spent a substantial time operating as an Independent Prison Visitor, this article will place particular emphasis on the Independent Prison Visitor.
2.2  Imprisonment and human rights in international perspective
Human rights in prison settings cannot be dealt with in isolation. The importance of human rights in conditions of detention has been emphasised on the international scene for a very long time. The United Nations, to a large extend, played a leading role in this regard. Too often United Nations instruments are referred to as ?soft laws’. Notwithstanding this, one has to realise that the influence of these so-called soft laws on international criminal justice cannot be ignored. As far as prisons are concerned, the acute potential of oppression and abuse makes these instruments even more relevant than in free society.
At international level the emphasis on human rights partly received intense attention after World War II. On 10 December 1948, the National Assembly of the United Nations adopted resolution 217 (III) – commonly known as the Universal Declaration of Human Rights. Several of the 30 Articles in the Declaration have direct reference to criminal justice. They include inter alia the right to life, liberty and security of the person; freedom from slavery or servitude; no subjection to torture, inhuman or degrading treatment or punishment; equality before the law; no subjection to arbitrary arrest, detention or exile; the presumption of innocence; and the right to education (Melander & Alfredsson 1997:27-32).
Several other international instruments emphasise human rights while in detention or imprisoned. Examples are the Standard Minimum Rules for the Treatment of Prisoners, the Body of Principles for the Protection of all Persons under any Form of Detention, the Basic Principles for the Treatment of Prisoners, the Standard Minimum Rules for the Administration of Juvenile Justice and the Model Agreement on the Transfer of Foreign Prisoners (Strydom, Pretorius & Klinck 1997:xi-xii).
As far as South Africa is concerned, Van Zyl Smit (Van Zyl Smit & Dünkel 2001:592) is of the opinion that changes in philosophy and prison-related law have been more dramatic than changes in the prison regime itself. Keeping in mind that Van Zyl Smit (Van Zyl Smith & Dünkel 2001:592) maintains that changes in philosophy was initiated by the Constitution itself, one has to realise what the implications of the Constitution and the principles expressed in Section 35 (2) thereof were.
As a result of Constitutional dictates, human rights behind South African prison walls received renewed emphasis. A particular aspect that received attention was the process whereby inmate complaints and prison conditions could be brought into the open. By concentrating on prison conditions and the maintenance of human dignity, the Judicial Inspectorate came into operation as the “Godfather” of the latter.
2.37nbsp Departmental alignment with the South African Constitution
When liberty came to all people in South Africa in the early 1990s, the country witnessed the end of an era in which prisons
were politically oppressive instruments. Both the Interim Constitution 200 of 1993 and the post-election Constitution 108 of
1996 embodied the fundamental rights of all citizens, including prisoners. Section 35 of the Constitution 108 of 1996
specifically provides for detained, arrested and accused persons. They have the right to:
The White Paper of 21 October 1994 on the Policy of the Department of Correctional Services recognised the fact that the
legislative framework of the Department should provide the foundation for a correctional system that is appropriate to a
constitutional state, based on the principles of freedom and equality (Department of Correctional Services 2004:2). One way
to ensure this (apart from several other Constitutional challenges) was through the introduction of an inspecting body that
would function independently from the Department of Correctional Services itself.
In order to achieve the above, enabling legislation had to be created. The Correctional Services Act 8 of 1959 was amended to provide for the establishment of the Judicial Inspectorate, the appointment of an Inspecting Judge and Independent Prison Visitors on 20 February 1997 by proclamation of the Correctional Services Amendment Act 102 of 1997. This legislation was replaced on 19 February 1999 by proclamation of Sections 85 to 94 of the Correctional Services Act 111 of 1998.
2.4  The establishment and statutory mandate of the Judicial Inspectorate
The Judicial Inspectorate of Prisons, an independent office under the control of the Inspecting Judge,3
was established in terms of Section 25 of the Correctional Services Act 8 of 1959 (as amended by the Correctional Services
Act 102 of 1997) with effect from 1 June 1998. The constitution and structure of the Judicial Inspectorate (and the powers,
functions and duties of the Inspecting Judge) are governed by the provisions of Sections 85 to 94 of the Correctional
Services Act 111 of 1998. These sections came into operation in February 1999, as announced by the President through
Proclamation R20 in the Government Gazette dated 19 February 1999. The statutory objective of the Judicial Inspectorate is
regulated by Section 85 of the Correctional Services Act 111 of 1998 (as amended), which states that:
However, the establishment of the Judicial Inspectorate has to be viewed against the background of the Correctional Services Act 111 of 1998 as a whole, which aims to give effect to the Bill of Rights in the Constitution 108 of 1996, and particularly those provisions that are applicable to prisoners. The new Correctional Services Act 111 of 1998 provided for the introduction of radical changes to the South African correctional system, as was the original line of thinking when the 1959 Act was introduced. In chapter III of Act 111 of 1998, for example, provision is made for the custody of all prisoners under conditions of human dignity.
Although legislation makes provision for the Judicial Inspectorate to investigate any corrupt or dishonest practices in prisons, this part of the statutory objective has not been performed since the second half of 2001. The institution of the Jali Commission of Enquiry into prison corruption and other malpractices in 2001 obviously played a role in this. In political circles, however, the debate is still continuing that the Judicial Inspectorate is the ideal body to deal with matters of corruption and dishonesty. It is therefore possible that the Judicial Inspectorate may in future perform investigations into corruption.
The vision of the Judicial Inspectorate is to ensure that all prisoners are detained under humane conditions, that they are treated with human dignity and that inmates are prepared for reintegration into the community (Judicial Inspectorate of Prisons 2006:5). This vision is supported by organisational objectives that include the appointment of Independent Prison Visitors in all provinces, implementing measures to monitor the performance of Independent Prison Visitors effectively, further development and promotion of electronic reporting to deal effectively with large volumes of communication, the expansion of legal services to handle prisoner complaints expeditiously and continued combating of overcrowding in prisons.
2.57  Human resources issues
Section 89 (1) of the Correctional Services Act 111 of 1998 provides for the appointment of a number of permanent staff members to assist the Inspecting Judge, who determines the staff complement of the Judicial Inspectorate in consultation with the Commissioner of Correctional Services.
From a human resources point of view, however, the Judicial Inspectorate relies heavily on the appointment of part-time
Independent Prison Visitors to fulfill its mandate. The appointment of Independent Prison Visitors is done in accordance
with Section 92 of the Correctional Services Act 111 of 1998, which states that:
On 31 March 2003, a total of 186 Independent Prison Visitors had been appointed. This excluded the Eastern Cape where appointments for 33 positions were still being processed (Judicial Inspectorate of Prisons 2003:6, 10). In the previous year a total of 183 Independent Prison Visitors had been contracted. During 2004 the number of independent Prison Visitors increased to 221 (Judicial Inspectorate of Prisons 2005:7), while it decreased slightly to 205 in 2005 (Judicial Inspectorate of Prisons 2006:7).
Independent Prison Visitors perform their statutory functions as independent contractors for a fixed term of two years. All prisons with more than 100 inmates have an Independent Prison Visitor. The appointment of the above number of Independent Prison Visitors was preceded (as required by law) with 18 486 nominations from public and community organisations and 47 public meetings (Judicial Inspectorate of Prisons 2003:8). Incumbents may, with at least 30 days written notice, apply in writing to have their contracts renewed (Judicial Inspectorate 2004a:2).
2.6  The powers, functions and duties of Independent Prison Visitors
The existence of a prisoner complaints system, be it independent or internally driven, is prescribed in Section 21 (1) of the Correctional Services Act 111 of 1998, which states that “every prisoner must, on admission and on a daily basis, be given the opportunity of making complaints or requests to the Head of the Prison”. However, the underlying purpose of dealing with inmate complaints through the Judicial Inspectorate is to have an accessible, effective and reliable complaints procedure that operates independently and without the control of the correctional system itself. The system should serve as a mechanism to promote the humane treatment of prisoners, to resolve complaints optimally, to enhance a peaceful and safe prison environment, and to report urgent and unresolved complaints to an external body (namely, the Judicial Inspectorate).
Independent Prison Visitors act on behalf of the office of the Judicial Inspectorate of Prisons. They may not inspect any
prison through their own volition or conduct enquiries other than those dealing with complaints of prisoners. The powers,
functions and duties of Independent Prison Visitors are described in Section 93 (1) of the Correctional Services Act 111 of
1998, which states that An Independent Prison Visitor shall deal with the complaints of prisoners by means of:
Furthermore, in terms of Section 93 (2) of Act 111 of 1998, an Independent Prison Visitor (in the performance of his or her powers, functions and duties) should be given access to any part of the prison and to any document or record. In this regard, Independent Prison Visitors have to rely on the assistance of Heads of Prisons who have to cooperate with them in terms of Section 93 (3) of Act 111 of 1998. Cases have been reported where Independent Prison Visitors were not assisted optimally. In such case the Independent Prison Visitor may launch a dispute to the office of the Inspecting Judge, whose decision on the matter is – in terms of Section 94 (4) of Act 111 of 1998 – final.
Where appropriate, in terms of Section 94 (1) of the Correctional Services Act 111 of 1998, the Inspecting Judge may
establish a Visitors’ Committee for a particular area which consists of all the Independent Prison Visitors who have been
appointed to prisons in that area. This Committee has to convene at least quarterly. The functions of the Committee are to:
Unresolved complaints have to be reported to the Visitors’ Committee and may, in cases of urgency or in the absence of such a committee, be directly referred to the Inspecting Judge. In addition, each Independent Prison Visitor has to submit a quarterly report to the Inspecting Judge, which should include the duration of visits, the number and nature of complaints dealt with, and the number and nature of the complaints referred to the relevant Visitors’ Committee.
2.7  Approach to hearing complaints
Prisons have to be visited at least twice per month. During such visits the Independent Prison Visitor has to visit all the cells where prisoners are incarcerated. In order to ensure the safety of Independent Prison Visitors, a particular responsibility rests on the Head of the Prison to ensure that all the necessary security arrangements are in place (Judicial Inspectorate 2004c:1).
Prisoners who indicate that they have complaints should be interviewed, while others can be interviewed on a random basis to ascertain how they are treated and what the conditions in a particular prison are like. When a prisoner complains, his or her request should be recorded twice. The first record is entered in the Judicial Inspectorate Complaints Register while, at the same time, it should also be recorded in the G365 Complaints Register of the Department of Correctional Services.
The approach to hearing complaints and requests will differ from one prison to the next, but no complaint should ever be generalised without giving due consideration to the individual merits. Complaints should be taken in private. Neither staff members nor fellow inmates should interfere in individual complaints and complaints should not be taken on behalf of other inmates.
All complaints have to be resolved in the shortest possible time, preferably within 14 days. Complaints that cannot be resolved within 14 days should be referred to the Head of the Prison who has to provide details for delays. The Independent Prison Visitor may thereafter conduct a consultation in private with the prisoner involved to determine the nature of the complaint, ascertain the merits and urgency of the complaint, and obtain a proposed solution.
Confidential complaints that cannot be discussed with the Head of the Prison should be referred to the Inspecting Judge for intervention. Other unresolved complaints could be tabled at the Visitors’ Committee for further consideration. Apart from generating possible alternatives to resolve complaints, the Visitors’ Committee will make recommendations to the Inspecting Judge in this regard (Judicial Inspectorate 2004c:3).
The number and nature of complaints over the last couple of years have enabled the Judicial Inspectorate to identify areas that have to be addressed to improve prison conditions. The area most commonly complained about were transfers from one prison to another in order to be closer to families. In many cases complaints revolved around the inability to pay bail and poor accessibility to health care and prescribed medication.
3  RELIGIOUS DIGNITY AS A HUMAN RIGHT IN SOUTH AFRICAN PRISONS (Landman)
3.1  Religious policy in South African prisons
The Declaration of Human Rights issued by the United Nations in 1948 in reaction to the horrors of the Second World War
deals directly with freedom of religion in Article 18 where a person’s right to change, practice and teach his or her religious preferences in private and in public is safeguarded. Ironically, the emergence of an ethos of human rights internationally since 1948 coincided with the dawning of apartheid in South Africa. Here, the UN’s “ideology of human rights” (Vorster 2004:5) was treated with disdain by the ruling (that is, the Reformed) churches. These churches regarded the World Council of Churches (also established in 1948) as ideologically suspect and the Roman Catholic Church as dogmatically dangerous. Their disdain, therefore, was strengthened when (since the 1960s) the World Council of Churches increasingly supported the UN’s vision on human rights and the Roman Catholic Church issued a decree (Pacem in terris) regarding the equality of people and the access of all to fundamental rights as a legitimate part of “natural law” (Vorster 2004:15-19).
The local Reformed attitude of “religious rights are not human rights”, seems to have won the day and are still prevalent in
South African prisons today. Not so on paper. The Directorate Spiritual Care of the Department of Correctional Services
(2002:1)
However, the human rights policy of the Directorate Spiritual Care is compromised by two factors. The first is that the Directorate only has 26 full-time official prison chaplains in its service to minister to 240 prisons. Religious work in the prisons is, therefore, dependent on the work of voluntary spiritual workers who (according to the testimony of the prisoners that will be related in paragraph 2.2) focus on the souls of prisoners and not on the rights of their bodily presence in prison. The second is that the prisoners too (again on account of their own testimonies on the relationship between their sexuality and spirituality) did not see religion as falling within their rights as bodily beings, but as a conflict between souls and dogmatic truths. These statements are supported by the following observations of Landman who acted as an Independent Prison Visitor in the Pretoria Female Correctional Centre.
3.2  Observations re religion in a female prison
In the complaint list used by the Independent Prison Visitor (IPV) for monthly reporting, no provision is made for
complaints of a religious nature. Prisoners were unwilling to lay formal complaints regarding religious practice, because
they considered it to be a matter of private arrangement between inmates. However, they confided in the IPV that religion
was indeed a relational matter between inmates, or that religion influenced and even determined relationships between
inmates. The nature of religious conflict amongst inmates was of such a nature, that Landman was convinced that
As IPV, Landman observed and was informally informed about the following re the relationship between the prisoners’
“souls” and “bodies”:
In this pietistic atmosphere, human rights are not acceptable to the prisoners, because “human” is seen to refer to “body” and “religious” to “soul”. However, Landman sees this religious reaction against human rights as a gender issue (see Landman 1999) and therefore proceeded to invite male prisoners to express themselves on the human rights of prisoners as people of faith.
3.3  The human rights of a person of faith
While working as an IPV in the Pretoria Female Correctional Centre, Landman obtained permission from the Judicial
Inspectorate to – in addition to her work as IPV – study the relationship between spirituality and sexuality amongst
inmates and to publish the results of her observations. Apart from her observations on the different spiritualities in the
Pretoria Female Correctional Centre and the ambivalent views entertained by female inmates on the relationship between body
and soul, Landman encouraged male inmates from other prisons (who took the initiative to contact her first) to express their
views on human rights from a religious perspective. These are some of the results of her correspondence:
4  CONCLUSION
The Judicial Inspectorate started an ethos of human rights in prisons in South Africa – an ethos that is carried through especially by the Independent Prison Visitor. In this article the history of prison inspection was described as a short history, one that still needs an extensive future. It was specifically pointed out in this article that human rights have, as yet, not been actualised in matters of faith in South African prisons. Prisoners themselves do not have a consciousness of the human rights of people of faith, the women less so than the male prisoners.
However, from prisoners’ description of the spiritual needs of the incarcerated body – needs that include physical needs –
the following can be noted in terms of policy for providing spiritual care to the incarcerated body:
Dealing with the incarcerated body of faith within the realm of human rights poses the following challenges to the spiritual
worker in the prison:
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ENDNOTES
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