Submission to the Commission of
Inquiry into Unrest in Prisons

by

Amanda Dissel

Submission to the Commission of Inquiry into Unrest in Prisons, September 1994.

Amanda Dissel is Manager of the Criminal Justice Programme Unit at the Centre for the Study of Violence and Reconciliation.

Introduction

The establishment of the Commission of Inquiry is welcomed as the first of it's kind in South Africa, and is an important step towards achieving accountability of the prison authorities to the public and prisoners. Prisons have in the past been notoriously closed to the public gaze and criticism, and laws have in the past existed to inhibit prisoners from making public details of their imprisonment.¹ The findings of this inquiry must be published so that the causes of unrest, and the manner in which such unrest was dealt with by the authorities can be open to public scrutiny. The conditions and treatment of prisoners in prison should also be exposed by the inquiry, and recommendations should be made for improvement of prison administration.

This submission attempts to examine some of the causes of the unrest over the period of 26 April to 13 June 1994, and to make recommendations for the improvement of basic conditions and the amelioration of tensions arising from political developments and prisoner expectations. This submission does not purport to provide a comprehensive analysis of the situation for reasons which are later outlined, but are intended to serve as an indication of prisoner grievances.

There are certain limitations in the course and scope of the inquiry.

Limitations

Time Frame

The time frame of the Inquiry is too limited. The events which occurred between 26 April to 13 June 1994 ("the period") were not only a result of one or two particular circumstances, but rather as a result of a combination of factors. Dissatisfaction and tension in prisons have been building up for some time, and has led to the volatile situation which was easily sparked off by the more recent political developments in the country. It is argued that dissatisfaction still exists in prisons, and tensions remain high.

The obvious explanation for the time frame of the inquiry is that the period commences on the date of the National Elections, and terminates after a six month remission of sentence for all prisoners was announced. Since the office bearers of the Government of National Unity (GNU) had not yet been appointed at the commencement of the period it would be inaccurate to analyse the unrest within the context only of the GNU. However, some comments on the handling of the situation by the GNU, and the outgoing National Party Government will be made further on in this submission.

It is therefore crucial that the Commission is not limited to an examination of the events over the period only, but must examine closely the causes and disturbances in a way which will meaningfully inform the process of reform of the prisons as institutions.

Members of the Commission

It is not desirable to have a high ranking member of the Department of Correctional Services as in the case of Maj-Gen Van Zyl as a member of the Commission. The secretary of the Commission is also a high ranking member of the Department. The inclusion of these officials could prejudice the independence and impartiality of the Commission, and could inhibit certain members of the Department and prisoners from giving evidence to the Commission.

Access to Information

Although Non-Governmental Organisations (NGOs) working in the field of prisoners rights and reform in prison were invited to make contributions to the Commission, they have not been granted permission to consult with prisoners in prison regarding the unrest. The information available to NGOs and to the writer of this submission thus remains sketchy and incomplete. Although this writer participated as an attorney in taking statements from prisoners at Modderbee Prison on behalf of the Commission, the statements were confidential and were submitted directly to the Commission. The statements have not been utilised in making this submission.

The conclusions and recommendations made in this submission are drawn from information obtained from various sources including: South African Prisoners Organisation for Human Rights (SAPOHR), letters written by prisoners to SAPOHR, Police and Prisons Civil Rights Union (POPCRU), Non-Governmental Organisations, legal advisors, and media sources. Whilst the problem of relying on unverified and often hearsay information is recognised, this an inevitable result of lack of direct access to prisoners themselves.

It is submitted that certain trends can be observed from the information available, and that these will be borne out by the submissions made by prisoners and members of the Department directly to the Commission. For this reason, this submission is restricted to comment on matters of policy.

Problems Contributing to Unrest in the Prisons over the Period

The causes of the unrest over this period are multifaceted. There are certain inherent conditions existing in prisons which have been the cause of dissatisfaction for some time. Other factors, such as recent politicisation, the change in the government, and the amnesty regulations have impacted on these factors bringing about an increased amount of tension and discontent.

It would appear that in some instances of unrest during this period, violence was sparked off by different events. For example, in Witbank, prisoner grievances over the administration of the voting process led to a work strike or go-slow by prisoners. It was only when the authorities moved in to search the cells ostensibly to prevent violence, that violence actually occurred on 5 May 1994.

In Modderbee, prisoners reported that the Minister of Correctional Services, Dr Sipho Mzimela, made a statement on radio on 8 June 1994, to the effect that prisoners cost the State a lot of money, and that they are not angels. This statement angered prisoners, and could be viewed as a trigger for the riots which erupted in Modderbee on 9 June 1994.

The following are some of the factors which have contributed to the unrest:

Conditions in Prison

The unsatisfactory conditions in prisons are well documented in several publications to which the Commission undoubtably has access, notably Prison Conditions in South Africa, Africa Watch Prison Project (1994), and Violence in South Africa, Report of the Commonwealth Observer Mission to South Africa (1993). In addition specific reference needs to be made to the following areas:

Change in release policy : - the Correctional Services Act² was amended in March 1994 to make allowance for a change in release policy so that prisoners would no longer receive a remission of sentence, or be placed on parole after serving a percentage of their sentence. The Parole Board, in terms of Section 63 of the Correctional Services Act, may recommend that a prisoner be placed on parole after taking into consideration the nature of the sentence and any comments made by the judicial officer in sentencing the prisoner, and submit to the Commissioner a report with regard inter alia to the conduct, adaptation, training, aptitude, industry and physical and mental state of the prisoner, and possibility of his relapse into crime. After being placed on parole, the prisoners remains under the supervision of the Department. Prior to the amendment, the Act provided for remissions of sentence for prisoners serving sentences of more than two years for good conduct. Remissions for prisoners serving sentences of less than two years was regulated by Regulation 119 (2). In practice, remissions used to be granted to prisoners on admission to prison or shortly thereafter, and recorded on the prisoners identification card.³ It appears that this change of policy has not been clearly communicated to prisoners. Many complaints have been registered that prisoners have been detained beyond their "release dates", and that no clear explanation has been given to them. Also, some prisoners have stated that their release dates are changed when they are transferred from one prison to another, without having been given a reason therefore. Prisoners raised concerns that the system was not being applied consistently and transparently in all cases, and that criteria used by the Parole Board in making the recommendations are unknown to the prisoners.

Assaults on Prisoners: - Despite numerous representations having been made to the Department of Correctional Services, assaults of prisoners by the authorities continue to be made. Prisoners are treated in an inhumane manner without respect for their human dignity. It appears that not all assaults are reported to the authorities, by reason of fear of reprisals and lack of faith in the internal disciplinary procedures. Furthermore, the results of inquiries into these reports are not forthcoming and are inadequate. Prisoners are also repeatedly assaulted by fellow prisoners without adequate investigative follow-up.

Unauthorised use of disciplinary measures against prisoners: - Despite recent amendments to the disciplinary procedures, many prisoners have complained of being detained in isolation cells as a punishment, sometimes with all the bedding and furnishings having been removed from the cell. Prisoners are frequently detained in isolation cells without any disciplinary procedures having been followed, and without having been informed of the reason for his isolation. Prisoners are also physically and verbally assaulted by personnel. Prisoners see this used as a mechanism to prevent their organising themselves for purposes of ensuring and protecting their rights and privileges in prisons.

Discontent among prison officials: - This is particularly noticeable amongst black staff members. Grievances concerning the policy and treatment of prisoners in prisons, the treatment of black staff members and the lack of a clear policy of rehabilitation for prisoners. Warders allege that they have been side-lined in the policy making process, and have been passed by in promotions and training opportunities in favour of their white colleagues.

Overcrowding of cells: - Reports of often 30 and sometimes up to 50 inmates being held in accommodation designed for 29 prisoners are frequently made. Cell furniture is sparse, and prisoners are often required to sleep on floor mats. Bunk beds are used to maximise the space available, but the low height of the beds make it uncomfortable to sit up in bed. In communal cells, usually only one toilet is available, and is situated within the cell. Lack of privacy, especially in matters related to personal hygiene, is prevalent. Together with an almost complete lack of activity organised for the prisoners by the prison, and overly long lockup times (sometimes for 23 hours a day), this contributes to an intense feeling of frustration and pent up aggression. The involvement in gang and other unlawful activities can in part be explained by this incarceration for such long periods and in such close confinement with other prisoners.

Lack of knowledge of prisoners rights: - Prison rules and regulations are not usually made available to prisoners, who are therefore unaware of which transgressions lead to disciplinary action. Administrative procedures are also not well explained, if at all, to prisoners. This leads to uncertainty as to how decisions affecting prisoners are made, and consequently, to an inability to make proper interventions in administrative actions which affect them. No independent structure exists to assist prisoners in lodging complaints against the authorities, or for following such complaints through.

Access by legal practitioners to prisoners is subject to the discretion of the Commissioner of Correctional Services. Whilst in practice there is usually no difficulty, legal advisors have on occasion been denied access on the grounds that a request for a consultation with a lawyer was not made by a prisoner directly to the authorities, or that the subject of the consultation does not satisfy the requirements of Regulation 123. Despite the Department having recognised that prisoners would be afforded greater access to legal assistance through the use of para-legals in prisons, and have made allowance for para-legals to consult with prisoners, in some areas para-legals have difficulty in gaining access to prisoners from the authorities.

Political Developments in the Country

• Although prisons are separated from the community, they are not so far removed that they remain unaffected by political developments in the country. The past few years have been fraught with political tensions. Expectations that there would be wide spread fundamental changes in Government and state institutions were heightened by election promises made by political parties during the electoral campaigns.

  Since the prison population is mainly a transitional one, and prisoners do have access to the media, the euphoria and expectations surrounding the political transition inevitably impacted on them.

  In the period leading up to the elections and thereafter, prisoners who believed that they had been sentenced by an illegitimate apartheid regime, anticipated that they would be released, or that their convictions would be reviewed by the new government. Although these expectations were well publicised through the media, they were not dealt with in a concrete or satisfactory manner, by the outgoing government, the election candidates, or by the Government of National Unity. Initially, the Electoral Act 1993 precluded prisoners serving a sentence of imprisonment without the option of a fine in a defined category of offenses involving violence and dishonesty from voting in the elections. This excluded a large percentage of the prison population from participating in the elections. In March 1994 prisoners embarked on a campaign to have the right to vote. Despite the Independent Electoral Commission and the Transitional Executive Council recommendation to extend the franchise to all prisoners, this decision was not implemented by the then Government. The campaign ignited violent protest action in several of the prisons, resulting in widespread damage to property, injuries, and loss of life. It was only as a result of this sustained and organised protest action by prisoners themselves, that they were able to win the right for most prisoners to participate in the elections. An amendment to the Electoral Act just prior to the election extended the categories of prisoners able to participate in the elections. This late change caused confusion among prisoners and authorities as to the administration of the Electoral Act. Many prisoners complained that although they had been entitled to vote, they were denied the opportunity by the authorities.

  After the elections the issue of amnesty for prisoners was raised. In his inaugural address, State President Mandela stated that the Government of National Unity would as a matter of urgency address the issue of amnesty for various categories of prisoners. This statement raised the expectations that not only political prisoners, but also those convicted of common law crimes, would be considered for amnesty. Whilst the GNU began meeting members of right wing organisations to discuss amnesty for "political prisoners", efforts by SAPOHR to meet with the Ministers of Justice and Correctional Services were unsuccessful. Prisoners were frustrated that precedence had been given to discussion on the release of right wing offenders convicted of serious offenses, whilst their demands for amnesty were not met with the same urgency. It was further argued that many prisoners had been victims of apartheid, and that they should also benefit from the GNU's commitment to reconciliation. On 2 June 1994, SAPOHR issued an ultimatum to the Minister of Justice to announce amnesty to various categories of prisoners, failing which they would have to call on their members to "rise and demand an equal chance in the New South Africa."⁴ On 9 and 10 June 1994 rioting broke out in Modderbee prison and in several other prisons in the country.

  On 10 June 1994 Dr Sipho Mzimela announced a blanket sentence reduction of six months for all categories of prisoners, after meetings between the Ministers of Justice and Correctional Services, the State President and SAPOHR. The amnesty has however been criticised by SAPOHR as being unfair in that it does not distinguish between prisoners more deserving of amnesty. Prisoners serving long terms of imprisonment of up to twenty years would receive the same six month remission as those serving sentences of one year. Prisoners remain frustrated that their demand to be considered for amnesty has not been met with due attention. Some feel that they had been deceived into voting for the GNU, which is now no longer considering their interests. In the words of some prisoners from the new Local Prison in Pretoria, in a petition to the State President, Mr Mandela,

  As you have to date, sir, sown seeds of discontent, frustration and anger amongst all the prisoners, who now believe that they were deceived, hence the denial of being socially integrated in the new South Africa.

  With leaders of many political organisations being elevated to the ranks of parliamentarians after the elections, some prisoners are disillusioned that while their leaders have attained this status, they who also fought for the liberation of the country are now languishing forgotten in prison. In addition, many common law prisoners were frustrated that people outside of prison where benefitting from the reconstruction and development programme, and that the principles of reconciliation, or the forgiving of past actions has not been applied to them.

• The development of an organised Human Rights culture in South Africa has been reflected in the prisons with the formation of organisations professing to organise on a human rights basis. SAPOHR is the most predominant of these, with an organised establishment nationwide within and outside of prisons. In the absence of formal structures, prisoners have chosen representatives to represent them in discussions with management on a variety of issues. This has provided a mechanism whereby prisoners can organise themselves and make themselves heard inside and outside of prisons. These organisations enable prisoners to negotiate with the prison authorities, present prisoners issues to them, lobby for reform of conditions, and liaise with the media on prisoners' behalf.

  Mass organisation during the pre-election period has proved to be successful. Protest action was widely reported at the time. Concessions and deliberations regarding the inclusion of prisoners in the Electoral Act were often made shortly after high profile protest action in prisons. The obvious successes of mass organisation established this form of protest as a mechanism for obtaining prisoners demands. Unfortunately, mass organisation of prisoners around highly emotionally charged issues, can be potentially dangerous. If the situation is not carefully monitored and controlled by the organisers, huge disruption and destruction could occur.

Recommendations

The following are some of the recommendations which can be made drawing from an analysis of the information available to us:

• The United Nations Standard Minimum Rules for the treatment of Prisoners must be immediately recognised, and steps taken to ensure that these standards are implemented. Facilities must be upgraded where they fall short of the standards. The Rules should however only be seen as a guiding document, and substance needs to be given to them to make them more meaningful. For example Rule 10 of the Minimum Standards states that "..all sleeping accommodation shall meet the requirements of health, due regard being paid to climatic conditions particularly to cubic content of air, minimum floor space, lighting, heating and ventilation." The Department regulations in conjunction with health authorities would have to determine the particular spacing requirements for each prisoner, and set mechanisms for ensuring their compliance.

  In regard to sanitation and hygiene, regular inspections should be made by the Department of Health and Welfare. Functioning toilet facilities and sufficient numbers should be made available to all prisoners. Basic bedding, beds, mattresses, sheets, pillows and pillow cases must be issued to all prisoners, as well as sufficient clean clothing.

• There must be a focus on the building of a human rights culture in the prisons, and this must be done at the level of prisoners and prison personnel. The training curriculum of staff must contain information creating an awareness of prisoners' human rights, in order to give effect to the Bill of Fundamental Rights enshrined in the Constitution. Provision should also be made for training in conflict resolution skills, and staff must be trained to identify and deal with tension in the prisons before it is allowed to erupt into large scale violence. Ongoing human rights training of staff must be carried out.

  Prisoners have already begun to organise themselves around human rights issues and violations from both prisoners and personnel. These groupings should be encouraged as not only does it form a positive alternative to gang activity, but it could also establish a commitment to a non-violent way of conduct. These organisations would have to be carefully regulated by a code of conduct or form of recognition agreement between themselves and the authorities.

• Disciplinary procedures applicable in prisons should be reviewed, as well as the use of segregation in the interests of the administration of prisons.⁵ Procedures should be followed whereby the Head of the prison is required to justify the use of segregation, the prisoner is properly informed of the reason for his segregation, and is given the opportunity of making representations in writing or before a disciplinary committee. The circumstances under which a prisoner may be segregated must be clearly defined by regulation.

• Clear guidelines must be available on the use of the prison Stability Unit (SU). In many instances during the unrest period, it appears that the prison administration called upon the services of the Stability Unit before a real problem or threat to the prison administration was apparent. Not only was the SU presence sometimes pre-emptive, but so was the use of force against the prisoners. The SU must be held bound by strict regulations determining warnings to be given to prisoners in official languages, the disciplined use of teargas, batons, and fire arms.

  Part of the Commissions task is to examine the use of firearms during the period and to consider whether when prisoners were fired upon, whether such action by the security forces was necessary to prevent the escape or the defence of himself or any other person.⁶ In addition to investigating whether the force was necessary, it should also be considered whether the force used was proportionate to the objective to be achieved, and whether the objective could have been achieved any other way.

• Prisoner grievances around the amnesty, and their status as political prisoners, or as prisoners incorrectly sentenced under the apartheid regime, needs to be addressed in some manner. Steps need to be taken to address the perceptions and misconceptions held by prisoners regarding their release on amnesty or otherwise. It would be important for the Minister of Correctional Services, and possibly also the State President, to address prisoners on this issue in a clear and concise manner. The address should also be reduced in writing and distributed among prisoners for record purposes.

• Rules regarding visitation rights must be reviewed. Imprisonment has historically been seen not only as a benevolent system of reform, but also as a system of punishment and discipline, and the infliction of psychological pain was seen as punishment for transgressing the law. "In the prison system, the consolation of physical objects and human beings which bring familiarity, comfort and contentment to offenders is seen as a privilege, not as a right, and subject to discretion of the prison authorities."⁷ The Correctional Services new privilege system refers to secondary and primary privileges. Primary privileges are those which relate to the maintenance of family ties, such as telephone calls, letter writing, receiving visits, and home leave. Primary privileges may be limited by the authorities in the case of a disciplinary infringement where the retraction of secondary privileges has not had the desired effect. This leaves contact with the outside world securely in the States armoury in maintaining discipline.

  In a system where the rules and regulations are subject to discretionary action by the authorities and are shrouded in secrecy, the prisoners are not always equipped to defend themselves adequately. They are vulnerable to feelings of isolation and disempowerment, and to real exploitation.

  The maintenance of family ties must be seen as an important feature of imprisonment. Greater provision must be made for adequate visiting time for prisoners in an atmosphere which is conducive to maintaining optimal relationships. Allowance must be made for physical contact between prisoner and family members and children. Deprivation of contact with family and friends should not be used as a means of punishment of prisoners.

• The importance of a prisoner maintaining links with his community resources can not be underestimated. Continuity of service facilities and family relationships available to the prisoner in the community should be maintained in prison, since the prisoner is released back into the community upon the completion of his sentence. The prisoner is often dependant on the resources in the community for some time after his release.

  The Commission of Inquiry into disturbances in British prisons lead by Lord Justice Woolf in 1990 acknowledged that the consequences of a sentence of imprisonment without remedial action, would result in a deterioration of the prisoner to operate lawfully and effectively within the society.⁸ He said that there was an obligation on the State to remedy the harmful effects of imprisonment. This could in part be done by situating the prison within the community. Because prisoners are often accommodated in prisons outside of their home area, and often in remote rural areas, their network facilities are often beyond them. The Woolf report recommended that prisoners should generally be held in institutions as physically close to their family ties as possible, and that Community prisons should be established for this purpose, accommodating no more than 400 prisoners at a time. In community prisons it would be easier for prisoners to maintain contact with the same statutory and voluntary service organisations to which they had access before their incarceration, and with whom they would have to deal on their release.⁹

  The system of community prisons is a necessity in South Africa where its large geographical distances and lack of public transport makes travel to centralised prisons difficult and expensive for visitors. Contact with existing service providers is often lost when the prisoner is required to move out of his home area.

  As an immediate step, transfers to prisons beyond the prisoner's home area should be prevented. In the long term, the viability of constructing smaller community located prisons should be researched.

• For purposes of control of the prisoners, Woolf suggested that the prisons be broken down into units of 50 to 70 prisoners, and that prisoners be accommodated in groups according to the severity of their offence. He argued that it would be easier to maintain control over small numbers of prisoners.

  Prisons in South Africa can each accommodate large numbers of prisoners, and the incarceration of tens of prisoners in one cells makes control of prisoners difficult, especially where warder prisoner ratios are low. The possibility of dividing the prison into manageable segments should be investigated.

• It is important to minimise the unproductive time spent by prisoners in their cells. Time out of the cell can alleviate the effects of poor conditions. Although participation in programmes should never be forced on prisoners, facilities such as recreation programmes, educational and vocational training should be made available to all prisoners. Efforts must be made to engage prisoners in these activities where they exist, perhaps by initiating activities in which prisoners already have an interest, and by extending participation to other areas. Good facilities exist in some prisons in South Africa and these should be extended to all prisons.

• An independent complaints mechanism or ombudsperson must be created. Prisoners have a large number of complaints ranging from access to their families to disciplinary measures used against them, both authorised and unauthorised. This body should be required to write and make public annual reports detailing inter alia the number and type of complaints levied to it, its process of investigation, and the outcome of such investigations.

• The initiation of a lay visitors scheme should be given priority. The prison system has been alarmingly free of public scrutiny, and consequently there has been little pressure for prison accountability. A lay visitors scheme could fulfil the important function of opening up the prisons to the public eye, and be a means of ensuring public participation in prisons matters. A scheme such as this could also play its role as watchdog over prison abuses.

Conclusion

Feelings of frustration still exist in prisons. As far as prisoners are concerned, the issue of indemnity has not been resolved, and many are still awaiting further indemnity or amnesty. Dissatisfaction is levelled at the prison administration and at the Government. Prisoners have high expectations of the Inquiry, and of recommendations which come out of it. They feel as if nothing has changed since the inception of the GNU, or since the riots, and their real position in relation to the length of their imprisonment has not altered. The principle of transparency needs to be extended to the authorities' involvement with prisoners in prisons, and in all discussions at government level concerning amnesty or the early release of prisoners.

This is the first Commission of Inquiry of its kind, particularly, the first of the new order. It is expected that this inquiry will approach its work within the framework of commitment to reconstruction and development, and that any findings, or recommendations must be made public. To fail to do so would be to fail in its role. It must also be noted that recommendations without implementation would make the work of the Commission futile, and render the commitment to the reconstruction process nugatory.

The situation in prisons is highly volatile. Many issues need to be resolved at all levels of prison management. Unless steps are taken to resolve these, a crisis situation could again develop.

Notes:

¹ For instance: S 44 (1) (f) of the Correctional Services Act 8 of 1959 which made it an offence to publish any false information concerning the behaviour or experience in prison of any prisoner, or the administration of any prison. In terms of this section, the onus of proving the information was not false lay on the publisher. Consequently, the publication of information on prisons was seriously curtailed. This section was repealed by S 2 of the Correctional Services Amendment Act 80 of 1992.

² Chapter VI of the Correctional Services Amendment Act No 68 of 1993.

³ Van Zyl Smit, D. (1992).

⁴ SAPOHR Press release dated 2 June 1994.

⁵ S 78 of the Correctional Services Act 8 of 1959.

⁶ S 11 (2) of Act 8 of 1959.

⁷ Scraton, P. et al. (1991), p. 93.

⁸ Roberts, J. (1994)

⁹ Morgan, R. (1993)

References

Commonwealth Secretariat. (1993), Violence in South Africa : Report of the Commonwealth Observer Mission to South Africa, London.

Human Rights Watch. (1994), Prison Conditions in South Africa: Africa Watch Prison Project, USA.

Morgan, R. (1993), Following Woolf : The prospects for prison policy. Journal of Law and Society, 19 (2), p 235.

Roberts, J. (1994), The relationship between the community and the prison, Prisons after Woolf: Reform through riot, ed. Player, E and Jenkins, M. London : Routledge, p 231.

Scraton, P. et al. (1991), Prison Under Protest, Philadelphia: Open University Press.

Van Zyl Smit, D. (1992), South African Prison Law and Practice, Durban: Butterworths.

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