COVID-19: Concerns mount over plans to protect prisoners
Despite measures implemented by the Department of Justice and Correctional Services to protect inmates since the start of the COVID-19 (Coronavirus Disease 2019) outbreak, there are concerns among some civil society organisations and legal experts about the adequacy of these measures.
Spotlight spoke to an inmate and family member who painted a desperate picture of current conditions in at least one correctional facility. Civil society organisations working on prisons-related issues also say they have been receiving worrying reports, although these are anecdotal.
By 20 April there were 111 confirmed COVID-19 cases in different correctional facilities in provinces across the country. Facilities include East London Correctional Centre and St Albans Correctional Centre in the Eastern Cape and Worcester Correctional Facility in the Western Cape. Limpopo also just joined the list with two prison officials who tested positive, according to the latest Department of Correctional Service’s update. One official in the Head Office has also been tested positive. So far 54 of the total cases are prison officials and 57 are inmates.
According to figures provided by the Africa Criminal Justice Reform programme of the Dullah Omar Institute, there are over 162 800 prisoners (sentenced and not yet sentenced) in South Africa’s correctional facilities.
Department’s plan to protect prisoners
Spokesperson for the Department of Correctional Services Singabakho Nxumalo told Spotlight the department’s approach has been focused on prevention, containment, treatment and disaster recovery.
“The Department activated Infection Prevention Control (IPC) measures at all management areas with specific directives to ensure that Personal Protective Equipment (PPE) is availed and has pushed for the sanitation of reception areas, cells, offices, vehicles and ablution facilities,” Nxumalo said.
According to Nxumalo, there has been screening at correctional centres and supplies are being provided continuously, both for inmates and officials. “Improving personal and environmental hygiene, provision of personal equipment, sanitisation and decontamination interventions is what we have been doing and continue to do,” he said. “Where shortages are experienced, the department has a system in place to assist correctional centres in need of stock whilst awaiting delivery. Centres have a flexibility to share resources and we continue to engage with our officials and inmates.”
Visits were suspended at all prisons after the president declared a National State of Disaster in March. “Due to the suspension of visits, we issued a circular advising correctional centres to increase the buying power. This will allow inmates to buy more items from the tuck shops. We have also ramped up toiletries that the state provide to inmates so that offenders are not disadvantaged. Inmates are able to utilise telephones within their units for keeping in contact with their families,” said Nxumalo.
According to Nxumalo, the movement of inmates has been limited to the extent that some court appearances can be done through the Audio Video Remand system. Chief Justice Mogoeng Mogoeng earlier issued a directive to all courts to postpone criminal trials until after the nationwide lockdown.
Nxumalo also noted other measures the department has put in place. “We have hospitals inside centres so only complicated cases are then referred to outside hospitals. Searching and subjecting our officials to security scrutiny continues in order to prevent contraband. We have also procured mobile quarantine sites which will assist to isolate those who may have acquired the virus whilst awaiting to be moved to outside hospitals, especially in the centres with overcrowding,” he said.
But are these measures enough?
Prof Lukas Muntingh, project head of the Africa Criminal Justice Reform programme, said it is essential to have measures in place to prevent COVID-19 from reaching the prison population. “You’ve got to fight it at the gates, you can’t fight it at the courtyard. Once it’s in a prison population, then there is no way you can maintain social distance. So, the best thing is that you have to protect the prison population from infection,” he said.
Responding to whether these measures are sufficient, Muntingh said: “The short answer is that we don’t know. They tell us that certain things have been done, but we hear different stories. Coming from the outside,” he said, “it is very difficult to assess what is actually happening.”
Zia Wasserman, the National Prisoners Co-ordinator at Sonke Gender Justice, raised similar concerns. “From what we know from the regulations that have been implemented and from statements, there are several interventions that have been put into place. It’s great that at least some attention has been given to the prisons, and it was done quite early on, but they are definitely not sufficient,” Wasserman said.
“[We] receive complaints almost on a daily basis from families of incarcerated people who are saying this (the prevention measures) are not happening. Anecdotal evidence is telling us that there aren’t PPE (personal protective equipment), there isn’t masks, gloves or hand sanitiser. Those precautionary measures are not being put into place and that’s incredibly concerning,” Wasserman said.
Painting a different picture
*Mrs X, whose husband is in the Johannesburg Correctional Centre (also known as Sun City), told Spotlight she is very worried about her husband. The weekend of 14 March was the last time the family saw each other. According to Mrs X, it was the next day (Monday), that her husband told her all visits had been suspended. Since then, she told Spotlight, the prison authorities “had not been assisting prisoners in remaining in contact with their families”.
“The prison has done nothing to accommodate us or them (the inmates) to contact their families. If we (had been) told that we would not see our loved ones we could have made arrangements to get more toiletries to him,” she said.
Mrs X and her husband since found ways to communicate.
“My husband told me they are between 30 and 37 people sleeping in a cell and the beds are about half a meter apart. The inmates do not like to open windows for fresh air. They cough on each other. There is no social distancing being practised in the cells,” she said.
Spotlight also spoke to *Mr X.
According to him, prison authorities first told inmates about the virus on Friday 19 March. Mr X said inmates were briefed on the basics and told to wash their hands, wear face masks and gloves and to cough in their sleeve “just as the pamphlets and TV are showing everyone to do”. “We are all worried about our well-being in prison, as we can see what is going on out in the world and in other prisons. We are worried about our families and loved ones,” he said.
He appealed to the Minister of Justice and Correctional Services Ronald Lamola “to better protect the prisoners”. “I am very frustrated. First, my family and I are very close and with this that I can’t see them, it’s very difficult. I am very worried about my wife and kids and the rest of my family. Second, I am very disappointed in Ronald Lamola, our Minister. I feel he is really not doing all he can to keep us safe,” Mr X said.
“We are pleading with Mr. Lamola our Minister – take ownership of (your) wrongs, just as we as prisoners have to do, because soon there will also be deaths on your hands. Stand up and admit that you do not have this situation under control in prisons as you would like our families and South Africa to believe. Do the right thing, Mr Minister,” he said.
Some of Mr X’s claims on safety measures in the correctional facility include:
1. “They took our visits away, that is the extent of the safety measures that have been taken.”
2. “They have given us some cleaning material that has been watered down, so that it can last longer.”
3. “We can contact our lawyers if we need, but we don’t have visits to receive world call vouchers to use the call box, and there is only one call box in the whole section.”
4. “We are also not able to lay any complaints with the Judicial Inspectorate.”
When asked to respond to these allegations, Nxumalo denied that any of it is true. (Read his full response here)
“Inmates do utilise the register, and this is done every morning on a daily basis. In that register, inmates can then place a request to report a matter to any office. It could be [the] National Office, Judicial Inspectorate, and other structures,” Nxumalo said.
In response to claims of overcrowding, Nxumalo said there are mitigating measures if positive cases are identified in the cells. These measures include the use of park homes for quarantine and isolation purposes. Nxumalo also dismissed claims of ‘watered down’ cleaning or sanitising materials. “The Department procured appropriate decontamination and personal protection equipment and we have stated that there is no shortage as we are managing stock levels.”
‘Nelson Mandela rules’
But Mr X insists inmates at ‘Sun City’ want better protection.
“The inmates want the ‘Nelson Mandela rules’ applied. They want the minister to do as the UN suggested and what other countries have done for prisoners. That is to release low risk and non-violent crime prisoners,” Mr X said.
According to Wasserman and Muntingh the ‘Nelson Mandela rules’ Mr X is referring to, means the recommendations which were released by the UN Subcommittee on the Prevention of Torture. The recommendations outlined measures that should be taken to protect prisoners during the COVID-19 pandemic.
Muntingh said South Africa is signatory to the Optional Protocol to the Convention against Torture (OPCAT), and should note the recommendations. “I think they [recommendations] should be given serious consideration and if there are reasons not to follow them, then the department (of Correctional Services) must record those motivations. But, I think they are well intentioned, and the department must follow them as far as possible,” Muntingh said.
Wasserman said that the Detention Justice Forum (DJF), of which Sonke Gender Justice is a part, has sent a letter to various government departments including the Presidency, DCS and the Department of Health, outlining the recommendations. “In our (letter) we’ve tried to make it (recommendations) context specific. I think they are quite easy or doable things, just practical measures that can be put into place,” she explained. Wasserman said they had not yet received an official response from government except departments noting receipt of their correspondence.
The DJF is a coalition of civil society organisations, comprising non-government organisations and individuals, that is concerned with making sure that the rights and wellbeing of prisoners are upheld.
Some of these recommendations made by the DJF include providing inmates with alternative methods to contact their families and loved ones whilst visits are suspended. “If there are no (prison) visits then you increase alternative methods of contacting the outside world, especially legal representatives,” Wasserman said. She stressed that having contact with the outside world is essential to the psychological well-being of inmates.
Dealing with overcrowding
Another recommendation is to reduce overcrowding in prisons by releasing some of the prison population, which has been done in several other countries. Wasserman said those who should be released, include “the elderly who have underlying health conditions, pregnant women, children and people who are there for non-violent offences who would be out in the next year, anyway”.
When asked if this is feasible, Wasserman said that it would be possible, particularly as the government had released prisoners on special remission a few months before. The remission she referred to was announced on 16 December 2019. The remission, granted by President Cyril Ramaphosa, allowed for the reduction of certain prisoner’s sentences which would result in their early release.
Others like Safura Abdool Karim, a public health lawyer and researcher based at the Wits School of Public Health, said the remand prison population should also be reduced. “Just over 27% of all prisoners in the prison system are what we call remand prisoners. So, those are people who are in the prison system not because they have been convicted and sentenced but because they are awaiting a verdict in their case or they are unable to afford bail,” she said.
Abdool Karim said that DCS’ regulations have allowed for prisoners to appear in front of a judge using audio-visual equipment, but this process is only used to postpone trials. For remand prisoners this is particularly problematic, she said. “Remand prisoners in particular are having their rights infringed in this entire process on multiple levels – from their right to a fair trial to their right to bail to their right to health,” she said.
Oversight and transparency
“A situation like this will definitely place the rights of prisoners at risk and therefore you need maximum transparency,” Muntingh said. “It’s not only about protecting prisoners from infection. It’s about ensuring that their rights are upheld under the Constitution and that we meet our obligations under international law.” This oversight, says Muntingh, is the duty of the Judicial Inspectorate for Correctional Services (JICS).
Inspecting Judge for the Inspectorate, Justice Edwin Cameron told Spotlight during lockdown inmates may “continue to make telephone calls to JICS officials through the protocol channels”. “And complaints have indeed been received during the lockdown, and are being attended to,” Cameron said. “Currently, JICS through its regional structures is in daily communication with every Head of Centre (HOC). [The] JICS can, and regularly does, request DCS to furnish it with documentation (such as medical and other records as well as internal investigation reports). Any matter for mandatory reporting that may arise at a centre will be given appropriately urgent attention to ensure that JICS’ oversight duties are fulfilled, despite the limitations we are functioning under during the lockdown,” Cameron said. (Read Full Response)
Cameron also noted that the DCS has tried to address some of the psychological needs of inmates. “This includes the need, particularly acute right now, to communicate with their families. For this reason, the Department has extended inmates’ telephone hours during the lockdown to enable them to maintain contact with their families,” he said.
When asked if he as Inspecting Judge was satisfied with DCS’s operational plan on how to deal with COVID-19, Cameron said: “It’s like many government plans. It’s mostly good, and mostly very promising. The plan addresses the basic measures to be taken to prevent the spread of COVID-19 in correctional facilities – and it certainly seems adequate.”
Spotlight also put Mr and Mrs X’s claims to the JICS. JICS Spokesperson Emerantia Cupido said the Inspectorate is aware of “several complaints from inmates including those relating to COVID 19”. “In each case, the Regional Management communicates with the head of the particular [correctional] centre in an effort to resolve the complaint.”. However, Cupido said JICS has not received complaints from inmates at ‘Sun City’ correctional centre. When asked if JICS had any concerns about DCS’ operational plan, Cupido said they are “cognisant of the fact that overcrowding at correctional centres remains a potential risk for the spread of the virus and continues to engage with DCS during this crisis to ensure that JICS’ mandate is being fulfilled under these COVID-19 restrictions.” (Read the full response here)
Spotlight requested a copy of DCS’ operational plan, but Nxumalo denied the request. “That’s an internal document and we are a security department. We cannot share such information. It will leave us vulnerable to possible threats.”
*Mr and Mrs X asked to remain anonymous. Sonke Gender Justice’s Prison Transformation programme facilitated the contact through its networks in the prison community.
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