Guidelines and principles on imprisonment and the prevention of torture under the African Charter on Human and Peoples’ Rights – how relevant are they for South Africa?
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It must be regarded as a peculiarity that the African Charter on Human and Peoples’ Rights (the Charter) makes no specific mention of prisoners’ rights and that these rights have to be inferred from an overall reading of the Charter, and in particular Articles 4-6. The reasons for this lie in the history of the drafting of the Charter and the political context at the time and will not be the focus of the discussion here. Other regional instruments are more specific, for example, the American Convention on Human Rights, state “[a]ll persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person”. With regard to the Charter it must therefore be concluded that prisoners’ rights are weakly defined and much room is left for interpretation. There also does not exist in respect of Africa an instrument, such as the UN Standard Minimum Rules for the Treatment of Prisoners (UNSMR) or the European Prison Rules that would operationalise normative law in a manner that is appropriate to the African context. An attempt in this regard was made in 2002 when the Conference of Eastern, Southern and Central African Heads of Correctional Services (CESCA) drafted an African Charter on Prisoners’ Rights. However, this draft appears not to have assumed any further status subsequently5 although it was planned that it would be adopted by the African Commission on Human and Peoples’ Rights (the Commission). This article will assess the relationship between the Commission and the South African prison reform debate with reference to: A general overview of South African prisoners’ rights litigation; The prevention and eradication of torture and other ill-treatment in South Africa and the Robben Island Guidelines; The right to liberty and the recently announced guidelines from the Commission on police and pre-trial detention; and State reporting to the Commission. The article concludes with a number of observations regarding the relationship between the Commission and prison reform in South Africa.