Jeremy Gordin
As more and more delegates asked where the government’s white paper on remand detainees might be found, Nosiviwe Mapisa-Nqakula, the Minister of Correctional Cervices, turned to an aide, Loyiso Jafta, demanding to know where it was.
Jafta replied that the white paper was not yet ready because it was awaiting the release of funds so it could be properly edited.
The minister was not amused. “This paper should have been ready. This is government at its worst,” she proclaimed. “I am the minister, I am supposed to have the power to make things happen – now look at this.”
This small public spat took place at last week’s conference, “Remand Detention: Challenges and Solutions”, organised at Wits University by the Wits Justice Project, a teaching project operating as part of the university’s investigative journalism programme.
Mapisa-Nqakula was the keynote speaker at the conference. Other speakers included Deputy Minister of Justice Andries Nel, the inspecting judge of prisons Deon van Zyl, and Vincent Smith, chairman of Parliament’s portfolio committee on correctional services.
Probably no one except Mapisa-Nqakula will ever know to what extent her expostulation was planned – so as to present her, as much as anyone else, as a victim of the dead hand of governmental bureaucracy.
Whatever the case, it set the tone for the proceedings and information about South Africa’s remand detainees flooded into the open.
The plight of remand detainees or awaiting trial detainees (ATDs) – people held in detention while awaiting the conclusion of their trials – is not a state secret.
Yet little is known about prison conditions and about ATDs. This is first because most South Africans, understandably angry and fearful about violent crime of all kinds, are not sympathetic towards those who have been arrested, even if they have not yet been proven guilty.
Second, the Department of Correctional Services is defensive and secretive about what it’s doing and what is happening in jails.
This being the case, people tend to forget that everyone is innocent until proven guilty and that, of the about 150 000 people in the country’s jails, one third – or 49 000 – ATDs remain innocent.
What’s more, more than 2 000 of these detainees have been in prison for more than two years, with 73 people having spent between five and seven years in detention.
It gets worse when you realise that, on average, most criminal cases take only five days’ actual court time to finalise; many cases are eventually withdrawn; and the charges against about 40 percent of these ATDs are dropped.
Making everything worse is that ATDs are the responsibility of the police, not of correctional services. ATDs are thus the stepchildren of the system. What this means is that ATDs have no rights – no clothes but their own, no rehabilitative courses, inadequate medical facilities, and no reading material.
And these problems are the least of their worries. The biggest problem is that the remand facilities – the jails in which they are held – are dangerously overcrowded.
According to Judge van Zyl, the average level of occupation of the country’s prisons is 139 percent. Nineteen correctional centres are considered “critically” overcrowded, with occupation levels of 200 percent and over.
Sun City’s Medium A – the ATD holding facility – is 246 percent overcrowded. This means that a building designed to hold 2 630 has in it 6 480 human beings.
What this in turn means is there’s a lack of physical safety in detention (which is a polite way of saying rape is common – and potentially deadly due to HIV/Aids); that, because there are too few warders for such a large prison population, ATDs are generally locked up for 23 hours a day; and that gangs terrorise the inmates.
In short, thousands of citizens who are still considered innocent are being deprived of their rights, often in appalling circumstances, and for periods of time that are clearly unconstitutional.
As Smith reminded the conference, the Bill of Rights guarantees everyone “the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause” and that the constitution guarantees everyone detained the right to conditions consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment.
There are a number of reasons why there are so many ATDs, and why they are being held so long.
These range from the fact that many ATDs are too poor to afford bail (even if it is only R200), to shoddy police investigations, arrest on insufficient grounds and, above all, the country’s clogged courts, in which it can take months to have a case concluded due to a shortage of stenographers and interpreters, poor legal representation, lost documents, and long postponements.
Nel told the conference he often makes unannounced visits to courts. On a visit to a magistrate’s court, the deputy minister saw how an entire court could grind to a halt if all of the components but one were present. At this court, magistrates, lawyers, the accused, clerks, victims and investigating officers were all waiting.
The cause of the legal paralysis? The person who operated the recording device was absent. Then during tea time, the orderly responsible for unlocking cells disappeared…
Mapisa-Nqakula conceded that “remand detention had for a long time been the stepchild of the department”, but that she believed the new Correctional Matters Amendment Act 5 of 2011, signed by the president but yet to be promulgated, would help considerably.
Mapisa-Nqakula said the new act would help establish a “management regime” for vulnerable remand detainees, including women, those with health problems and the elderly. The act would also, she said, “address” the issue of abuse by other detainees, though she did not expand on this subject; enable the courts to review ongoing remand detention when a detainee was terminally ill or severely incapacitated; separate first-time offenders from repeat offenders; and make it mandatory for the courts to review the situation of a person still being held after 24 months. She said also that by mid-2012 remand detainees would be provided with uniforms.
So the talking began last week. What remains now is for what the Wits Justice Project’s Ingrid Cloete called “the wide and significant gap between the legal position and the factual one for ATDs” to be well and truly closed.
l Gordin is the director of the WJP.