Prisons in South Africa's constitutional democracy
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In this article it will be argued that to make prisons compatible with a constitutional democracy, as understood in South Africa, four requirements need to be met. First, the prison system must have an underlying philosophical framework derived from the Constitution. Such a philosophical framework needs to set out the justification and purposes of imprisonment. Secondly, prisons must not violate the rights of prisoners listed in the Table of Non-derogable Rights (section 37) and the rights enumerated in section 35 in the Constitution. These are the rights to equality (section 9), to human dignity (section 10), to life (section 11), freedom and the security of the person (sections 12[d], 12[e] and 12[c]), freedom from slavery, servitude and forced labour (section 13); the rights affording special protection to children (section 28[d] and [e], 28 [g][i–ii], and 28[i]); and the rights of arrested, detained and accused persons (section 35), with specific reference to section 35(2). The emphasis placed on the non-derogable rights and the rights in section 35 should not be regarded as an attempt to lower the standards in respect of prisoners’ rights, but is done for purposes of emphasis and in order to keep the analysis manageable in scope. It is accepted that all the rights in the Bill of Rights apply to prisoners unless a limitation is justified in respect of section 36. Third, the executive must be accountable in respect of prisons. Such accountability refers at a horizontal level to the institutions and practices created by the state to hold governments accountable. Vertically, accountability is directed to the electorate, the media, civil society and international treaty bodies. Four, prisons must function in a transparent manner. At minimum this means that those affected by decisions of officials in the prison system, as well as other stakeholders with an interest or mandate in respect of prisons, must have access to not only the basic facts and figures, but also insight into the mechanisms and processes of decision-making. A consequence of this is that officials in the prison system (and related sectors) have a duty to act visibly, predictably and understandably (Transparency International, Internet resource). For the purposes of this article, it is accepted that South Africa is a constitutional democracy, and that the Constitution reflects the set of political values and aspirations needed to protect liberty through the existence of internal and external checks and balances on the government in power (Heywood, 1997: 279). It is not within the scope of this analysis to assess the merits of the model of constitutional democracy chosen; it is accepted that these are the “rules of the game” reflected in a codified constitution, a bill of rights, the separation of powers, a bicameral and freely elected Parliament, and the decentralisation of power with designated oversight structures enshrined in the Constitution, or created by statute (Heywood, 1997: 279). In the following, each of the four requirements will be explored. The intention is not to provide an overview of the South African prison system as others have done this eloquently (Sloth-Nielsen, 2007: 379–401), but rather to focus on the requirements of compatibility with a constitutional democracy and the stumbling blocks en route to creating a prison system meeting these requirements. It should also be borne in mind that when enquiring about the prison system in a constitutional democracy, the discourse is historically bound but also transient in its focus. The question of prisons in a constitutional democracy should thus be a continuous enquiry to enrich our understanding and knowledge of the challenges facing the prison system. Prison systems change and so must our understanding of them. Lastly, there are theorists arguing for the abolition of the prison and credible arguments have been forwarded in pursuit of this objective (Wilson, 2005). This article will not address this question; it is accepted that prisons will, for the medium-term at least, be part of the South African landscape.