On Sunday night, 15 March, the President finally provided some guidance in relation to the spread of Covid-19 in South Africa.
He mentioned several precautionary measures that would be implemented in order to curb the outbreak, including the imposition of a moratorium on prison visits. At face value this is a commendable intervention, however one becomes increasingly concerned upon contemplating the actual consequences of this decision on the health and wellbeing of those incarcerated and working within the prisons.
Once the State deprives a person of their liberty, it is obliged to provide a duty of care. According to the Nelson Mandela Rules, “Prisoners should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status.” So let’s consider what standards of health care instructions are being given to the community with regards to Covid-19: 1) wash your hands regularly, with soap; 2) practice social distancing; 3) self-quarantine if you are at risk of transmission; and 4) stay informed. These are practically impossible to follow if you are in prison. Not only are almost all of our prisons overcrowded, many of them also lack sufficient running water and hygiene materials.
In lieu of implementing practical prevention measures to reduce the number of people sitting in prison – such as releasing non-violent offenders, processing awaiting-trial detainees, and encouraging judges to use alternatives to incarceration – the government decided to simply stop prison visits. This has been done in other countries too, and we are starting to see the dire impact that this decision has on incarcerated persons.1
Firstly, the ban technically means that detained persons are unable to see their legal representatives, which is a serious violation of their rights. Secondly, a lack of oversight visits and reporting (by bodies such as the Judicial Inspectorate for Correctional Services and judges) may have serious implications for the safety of detained persons and the accountability of prison officials. Thirdly, visits by family members and friends are vital for the mental health of detained persons and can prevent violence, and are also a source of food and other essential resources that are not sufficiently provided by the prison (such as bedding, sanitary items, and medication).
Therefore if government is going to continue with this prison visit moratorium for the duration of the Covid-19 outbreak, it needs to ensure that incarcerated persons’ means of contacting the outside world are increased and more accessible (e.g. phone, email, post, video calls). However, it is recommended that government take more even more proactive steps to curb the spread of the disease, by decreasing the number of people in prisons. The Department of Correctional Services should prioritise the release of elderly detainees, especially those with underlying health conditions, as well as people serving short sentences for non-violent crimes.
Furthermore, government should refrain from enacting punitive regulations, which impose prison sentences for those who do not comply with Covid-19 related procedures. This will simply exacerbate the problem of overcrowding in prisons, and will likely have a disproportionate impact on poorer communities.
We already face a scourge of HIV and TB in our prisons, let’s try get ahead of this new contagious disease and protect our vulnerable friends and family incarcerated.