PROVIDING ACCOMMODATIONS FOR PRISONERS IN SOUTH AFRICA'S CORRECTIONAL CENTRES: A CONSTITUTIONAL CONTRADICTION?

Published date22 September 2017
AuthorBruyns, Megan Gabbard
Date22 September 2017

The plight of prisoners with physical disabilities in South Africa was brought to the attention of the world after the 2013 arrest of Oscar Leonard Carl Pistorius. The former Olympic athlete was charged with the February 14, 2013 murder of his girlfriend Reeva Steenkamp, a model and law graduate. (1) Pistorius never denied shooting Steenkamp, and the case turned on whether he intended to shoot her or whether he shot into the locked bathroom believing an intruder had broken into his home. (2) The trial of this fallen national icon was followed by tens of millions of people around the world (3) and, to the shock of many, (4) Pistorius was later convicted of the lesser crime of capable homicide. (5)

During Pistorius' original sentencing, his disability (6) was cited as a relevant sentencing consideration, (7) and defense advocate Barry Roux argued Pistorius' health and safety would be put at risk in an overcrowded South African prison. (8) Roux contended that without significant assistance, Pistorius would be left defenseless against other prisoners, (9) and would be exposed to contagious illnesses, such as tuberculosis. (10) A probation officer supported Roux's concern in her pre-sentencing report stating, "[correctional] centres were, in her view, inadequately equipped to cater to the needs of the accused." (11) Prosecutor Gerhard Nel presented the testimony of Acting National Commissioner of Correctional Services Zach Modise who stated that during his tenure, he had "seen a lot of improvement and a lot of progress in the Correctional Department." (12) Modise further stated he had visited "correctional facilities in other countries and felt that the Correctional Services Department in this country was comparatively among the best." (13)

On October 21, 2014, after much discussion of Pistorius' disability and the constitutional protections afforded to him, (14) the Honorable Thokozile Masipa of the Gauteng Division of the High Court of South Africa imposed on Pistorius a five-year sentence, with a minimum of ten months to be served in a correctional facility. (15) Pistorius served less than one year of his sentence (16) in a private cell in the medical wing of Pretoria's Kgosi Mampuru II prison (17) before being released under house arrest on October 19, 2015. (18)

Public outcry regarding special treatment afforded to Pistorius, which some believed was due to his status and disability, (19) was heard across the country. (20) In December 2015, Pistorius' conviction was replaced by the Supreme Court of Appeal with a conviction for murder. (21) His counsel filed an appeal to the South African Constitutional Court, (22) the highest court in South Africa. (23) On March 2, 2016, the Constitutional Court dismissed Pistorius' appeal (24) and he was later sentenced to serve six years for Steenkamp's murder. (25) This sentence is far less than the fifteen years sought by the National Prosecuting Authority, (26) which subsequently filed an appeal. (27) At the time of writing, Pistorius has been transferred to the newly renovated Atteridgeville Correctional Centre (28) and his future outside of the Centre's walls remains uncertain, as the appeal remains pending. (29)

Members of the public continue to be angered by what they see as preferential treatment afforded to Pistorius and call for maximum sentencing. This anger highlights an inherent contradiction inside modern South Africa, a country that considers itself a "rainbow nation" that embraces and supports the similarities and differences of all people. (30) This ideology of inclusion--symbolized by a rainbow--has been part of the South African vocabulary since the 1990s. (31) In spite of this language of inclusion, however, the government has yet to find a way to protect the rights of all citizens, particularly those with disabilities. (32) In this Note, the treatment of physically disabled prisoners in South African correctional centres will be explored and compared with the policies and practices in other countries. The Note begins with a brief overview of South African history and the creation of the Constitution of the Republic of South Africa. The Note then examines the official policies of the Department of Correctional Services before looking to how these policies have been implemented. The policies protecting prisoners with disabilities in the United States, England and Wales will be considered, before finally looking toward possible policy changes for improved protection of physically disabled prisoners in South Africa.

CONSTITUTIONAL PROMISES

The Preamble of the Constitution of the Republic of South Africa begins with "[w]e, the people of South Africa...[b]elieve that South Africa belongs to all who live in it, united in our diversity...[and] [l]ay the foundations for a democratic and open society in which...every citizen is equally protected by law." (33) A country with a population of 51,770,560, (34) located at the southernmost tip of the African continent, the modern Republic of South Africa was formed after its democratic election in 1994. (35) The South African Constitution, like the Constitution of the United States and other countries who fought for independence, was written with the intention of keeping the injustices suffered under the country's former oppressors from resurfacing in the new country. Specifically, the drafters of the South African Constitution sought to rectify the injustices suffered by citizens under the system of Grand Apartheid, a "wholly unique system of racially biased laws that limit[ed] the personal freedom of all South African blacks and prohibited] them from any significant political voice in their Government - a Government that control[ed] nearly every facet of their existence." (36) Under Grand Apartheid and the concurrent policy of Petty Apartheid, South African Blacks and Coloureds--including many who would later serve in the new government--were denied access to an impartial criminal justice system and sentenced to long periods of time in prison, (37) suffering inhumane treatment. (38)

The drafters of the South African Constitution sought to balance major ethnic divisions (39) and ultimately hoped to "[h]eal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights," as well as "[l]ay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law." (40) One way it did this was through a recognition of the injustices previously suffered by South African prisoners, and a specific guarantee of additional constitutional rights for prisoners in Section 25 of the 1993 Interim Constitution. (41) These guarantees were later carried over in to Section 35 of the 1996 South African Constitution. (42) Part of the South African Bill of Rights, Section 35 guarantees those who have been detained the right "to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment." (43) However, the precise meaning of "conditions consistent with human dignity" is something this young country--ripe with ideology and the desire to move beyond the horrors of the past--had yet to define.

THE OFFICIAL STANCE ON THE TREATMENT OF DISABLED PRISONERS

The guidelines for ensuring the humane treatment of both sentenced prisoners and individuals awaiting trial and sentencing were established two years after the promulgation of Section 35 of the Constitution, in the Correction Services Act of 1998. (44) Though these guidelines have attempted to meticulously define conditions for the general prison population, such as children, (45) women, (46) and those with mental disabilities, (47) there are few specific references regarding what accommodations are deemed necessary for one class of inmates: those with physical disabilities. (48) As there are no specific provisions related to the treatment of prisoners with physical disabilities, "[i]t therefore has to be assumed that the accommodation and other amenities for disabled prisoners has to meet the same standards as for prisoners who do not have these disabilities, as set out in the Act." (49)

In its 2005 White Paper on Corrections in South Africa, the Department of Correctional Services acknowledged it must find better ways to care for the inmates in its 243 correctional centres, (50) including better meeting the "needs of special categories of offenders," a category which includes the physically disabled. (51) This means correctional institutions are to be "designed to cater for the needs of disabled offenders and should be consistent with the national policy framework on persons with disabilities." (52) The White Paper continues by stating that any policies implemented by the Department of Correctional Services must "reflect both the equality of rights of disabled offenders and the particular needs that disabled offenders have. The provision of appropriate facilities must not be limited to the physical accommodation needs, but must include the provision of appropriate facilities for the enhancement of rehabilitation amongst these offenders." (53)

To handle the various needs of prisoners, the Department of Correctional Services is required to take "steps as are necessary to ensure the safe custody of every prisoner and to maintain security and good order in every prison." (54) For prisoners with physical disabilities, their needs are determined through an internal medical assessment upon a person's arrival to the correctional centre. Department policy dictates that within "the first six hours of admission" the needs and risks of a disabled prisoner are to be assessed. (55) After the assessment, a prisoner is not automatically granted an accommodation if found to have a disability. (56) Prisoners must first provide the...

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