The Bill of Rights requires humane conditions of detention – including "adequate medical treatment". Government is obliged to secure these entitlements, writes former Constitutional Court judge Edwin Cameron.
At last – at long, long last – Covid-19 vaccinations are happening. The pharmacist who gave me the flu jab described her joy and relief at being vaccinated.
Every vaccinated healthcare worker not only gets personal protection against Covid-19 – but protects patients from infection by them. In the coming months, this beneficent circle of protection will spread. But as we yearn for quicker rollout – as a sixty-plus, I registered instantly on the government site – some thorny public health, ethical, political and economic questions demand our attention.
One prime debate: should prisoners be vaccinated before others?
On 11 January 2021, President Ramaphosa proclaimed his ambitious plan to achieve "population immunity" through mass vaccinations. Phase one prioritised healthcare workers. Phase two prioritises those at high risk, including those 60 and older, essential workers and people in congregate settings. Phase three gets to everyone else. So far, more than 650 000 people in South Africa have received at least one vaccine dose.
Congregate settings are places where people live or gather in closeness to each other – a red flag during Covid-19. The most pressing examples are prisons and detention centres – harsh involuntary settings, where those incarcerated are obliged, without control or choice, to live, eat, sleep and exercise in close proximity to others.
The president has announced that phase two includes those in prisons – both the incarcerated and correctional officials. Just last week, Justice and Correctional Services Minister Ronald Lamola reasserted this in Parliament. This means that those sentenced for rape and murder will be vaccinated before phase three reaches the rest of the adult population.
Though there is some support for prioritising vaccines in prisons, there has also been indignant pushback. James Selfe, a conscientious DA MP, is alarmed that phase two embraces prisoners. He accepts that correctional services personnel should have priority – but not prisoners. A person convicted and sentenced loses certain rights – including priority access to vaccination. He laments that there are "literally millions of hard-working, tax-paying members of the public" who deserve vaccines before prisoners.
Others who concede that crowded prisons are prime sites for spreading Covid-19 ask how this differs from informal settlements and unsanitary environments all too familiar to many in South Africa.
The resistance merits careful engagement. It seems counter-intuitive that those judged to have injured society should precede law-abiding people in access to life-saving interventions. So, let's take a step back.
Myth One: Prisoners are jumping the queue
Prisoners are not "jumping the queue". They join it in the logical place – congregate settings. Why? For our own benefit – to protect us all. Sound public health reasons, which I explain shortly, command this.
Covid-19 is a respiratory disease (as I know too well – it sent me to hospital last month, desperately sick with bilateral pneumonia). Where people live, eat and do their ablutions communally without proper ventilation or sanitation, these diseases spread especially fast.
Judge Alison Y Tuitt of the New York Supreme Court explained this when she declared that excluding prisoners was "arbitrary and capricious" and a violation of equal protection. It is also "unfair and unjust" and "an abuse of discretion". She ordered the State of New York to immediately authorise incarcerated individuals to be eligible for vaccination.
Myth Two: Criminals versus the public
We often think of prisoners as "out there", safely walled off from the rest of us. This is wrong. Prisoners are part of the public – not different or separate from it, as "us and them" temptingly suggests. Nearly one-third of those in prison are remand detainees. They are awaiting trial, not convicted. Though suspected of a crime, they are, like you and me, members of the public.
The injustice of "us and them" is especially stark considering the remandees whom the courts have granted bail but who simply cannot afford to pay. This is common in our deeply unequal country. In 2019-'20, almost three-quarters of remandees granted bail could not afford to pay R1 000 or less. They are "prisoners of poverty".
Last year, early in lockdown, I urged Justice Minister Lamola to use his emergency powers under the regulations to order this entire category released. The courts had determined that they had fixed addresses, that they would stand trial and that they were no danger to the public. Only cash stood in the way of liberty – which they don't have.
Sadly, the minister did not feel able to act on this advice. Today, as you read this, thousands of yet to be convicted people remain inside (sometimes for months and years) only because they can't afford bail. This is a blot not only on our justice system, but on us all.
Let's agree on two things. First, bad deeds must have consequences. And, second, some people are so dangerous that they have to be removed from society. That is why, at least for now, I can't join the "abolish prisons" movement.
If we don't act effectively against criminals, people take vengeance. As corruption and dysfunction have hollowed out our justice system, trust in our institutions has deteriorated, and vigilantism has flourished.
Across the country, communities have resorted to their own terrible forms of justice. In 2019-'20, vigilantism contributed to 1 202 murders. That's well over three mob justice murders every day. (From January to March this year, the number was 298).
In the early hours of Wednesday morning last week, alleged mob justice resulted in many gruesome killings in Zandspruit, Johannesburg, with more badly injured.
We must not blame the enraged and fearful crowds who – living amidst terrible crime – kill sometimes innocent people. We must blame ourselves – me, you, the comfortable urban and rural elites, the politicians and lawyers and businesspeople, mainly – for can any of us say we have done enough to forestall the dysfunction now afflicting us?
So, while we have to take cold-blooded criminals out of society, South Africa imprisons far too many people. Grievously misdirected policies are the cause – the "war on drugs", mandatory minimum sentences, harsh bail and parole conditions.
A noxious concoction of mistaken policies means people convicted of sometimes petty crimes "rot in prison" – while those involved in monstrous acts of corruption and state capture seemingly enjoy impunity.
But why prioritise prisoners?
Three powerful reasons impel early vaccines for prisoners – public health, the law and ethical considerations.
First, public health. We must vaccinate everyone in prison settings because of their higher risk of contracting Covid-19. Even well-run prisons are inevitably reservoirs for spreading infectious and communicable diseases – including TB, HIV, influenza, hepatitis and Covid-19. Poor ventilation, insanitary conditions and crowded, communal amenities mean high risk.
This is one of the earliest facts about prisons. The first recorded outbreak of typhus ("gaol fever") spread through England's Newgate and Ludgate prisons in 1414. Later, at the Black Assizes at Exeter and Oxford, the deadly bacterium struck down judges, lawyers and prisoners in their hundreds.
Physical distancing – critical during Covid-19 – is impossible in most places of detention. In South Africa, twin epidemics of HIV and TB add to the perilous mix of overcrowding, inadequate sanitation and poor ventilation.
In some jurisdictions, Covid-19 has inflicted carnage in prisons. In the United States, one in five incarcerated persons (state and federal) has tested positive – more than four times the rate outside – and it is twice as deadly. In England and Wales, the rate is one in eight, with a death rate over three times than outside. Comparable catastrophes are reported in India, Brazil, Thailand and Canada.
So experts concur, rightly, that those incarcerated must be among the first vaccinated. The US Centres for Disease Control and Prevention (CDC) is unequivocal that those incarcerated must be vaccinated at the same time as correctional officials. Why? "Because of their shared increased risk."
While vaccinating correctional officials garners support, countries that bypassed the CDC's advice by prioritising only correctional officials have paid a price. In the US, too few correctional officials are willing to be vaccinated. Low rates of vaccine uptake by correctional staff mean that withholding vaccines from those locked up – or offering it only to a small fraction of the prison population – is senseless. There is no "firewall".
Till now, Covid-19 prevalence in South African correctional centres has remained seemingly low. By 20 May 2021, just more than four thousand incarcerated persons had tested positive, 74 had died, while 7 408 correctional officials had tested positive, with 176 deaths.
Behind these numbers lie often anguishing human stories. They have proved hard to track down. So we wonder: Did they contract Covid-19 in prison? Were they sentenced or awaiting trial? Was it for a serious or petty offence? Were they afforded adequate medical care? Could they say goodbye to their loved ones? Did they die alone? These lingering questions implore answers.
At the Judicial Inspectorate for Correctional Services (JICS), we frankly dreaded a Covid-19 tsunami in prisons. Where is it? One explanation may be lack of testing. Another may be that incarcerated persons don't report symptoms.
So we checked what epidemiologists call "excess deaths" among prisoners. Mapping out deaths from natural causes (which exclude those trauma-inflicted) showed a marked increase – 120 more for 2020-'21, up from 335 in the previous year, to 455.
This increase is starker because the general prison population decreased (from about 154 437 in March 2020 to 140 858 now). For this, we must thank the president's special Covid-19 parole dispensation – which has released more than 10 000 from prisons since May 2020.
What do we make of the fact that the Department of Correctional Services reports only 74 Covid-19-related prisoner deaths? If we deduct these cases from the "excess" of 120, 46 more deaths remain. Are they, too, Covid-19-related? If yes, we have less cause for comfort. Plus, a looming "third wave" of Covid-19 poses real perils.
There's also this. Very stringent lockdowns seem to have produced the low reported prevalence of Covid-19 in correctional centres. These were imposed at a high cost to human rights and basic privileges.
Upon entry or on reporting symptoms, inmates, dubbed "Covid suspects", were strictly segregated. Visits were suspended and rehabilitation and education programmes shut down. As prisons advocate Clare Ballard noted, Covid-19 lockdowns in prisons can be akin to solitary confinement.
Overwhelming public health reasons therefore demand prison vaccinations. And we must prioritise because prison health affects our health. As explained earlier, prison walls don't insulate. Those incarcerated don't remain in one place. They transfer to other centres. They are transported to court. They are released on bail and parole. And our high recidivism rate means people exit prison only to re-enter it.
In addition, more than 33 000 custodians and security personnel enter and exit prisons daily from neighbouring communities. This makes prisons "vectors for outbreaks that can be spread outside their walls by guards, visitors and those who are released". This highlights the cruel impact mass incarceration has on public health.
And it points to a further consideration – because prisons staff live outside, it is only fair to them and their families and communities to vaccinate the prisoners they have to guard.
For these reasons, containing Covid-19 on the inside "has an outside benefit on the outside". And immunising those incarcerated is "a practical necessity".
Second, the law points in the same direction. During apartheid, prisoners were systematically barred medical attention. Healthcare "was used as a tool of manipulation and coercion". The anguishing deaths of Bram Fischer and, just two years later, Steven Bantu Biko, are stark reminders.
Our Constitution was intentionally crafted to change all this. Being imprisoned is the punishment – not punitive treatment while in prison. Everyone has the right of access to healthcare – including prisoners. And the Bill of Rights requires humane conditions of detention – including "adequate medical treatment". Government is obliged to secure these entitlements.
In addition, prisoners have a right to at least the same standard and quality of healthcare as the general public. The Mandela Rules – internationally embraced prescripts named after the world's most famed prisoner – provide that prisoners must enjoy the same standards of healthcare available outside. They must have access to necessary healthcare free of charge – and without being discriminated against simply because they are prisoners. This embodies the "equivalence of care" principle – the notion that those in prison have a right to a standard of healthcare equivalent to that available to the general public.
But the "equivalence of care" principle falls short. In reality, prisons expose those inside to prison-caused or related diseases since healthcare problems are exacerbated. Because mortality rates among those incarcerated are so much higher than for people outside, healthcare merely equivalent to that outside is by definition not enough.
So the "equivalence of care" principle ought to be a minimum threshold. We should be focusing on equivalent healthcare objectives in prisons – equivalent outcomes, not means.
Again, seemingly counter-intuitively, this means that government may have to provide higher standards of healthcare in prisons.
Our common law asserted that prisoners never lose a "substantial residuum of basic rights". Their right to healthcare cannot simply be stripped away – especially where overcrowding imperils the health of the incarcerated.
With HIV/Aids and TB, our courts demanded that prisoners' unique vulnerabilities be recognised. In Lee, the Supreme Court of Appeal and Constitutional Court recognised prisoners as amongst the most vulnerable to government's failure to provide constitutionally required healthcare. The Constitutional Court ruled that government must provide healthcare adequate "for every inmate to lead a healthy life".
The practical impact of this principle was enforced in an earlier case where four prisoners with HIV sought antiretroviral (ARV) treatment at state expense – before ARVs became available to the general public. Judge Brand, ordering the minister of correctional services and others to provide ARVs, found that the Constitution's requirement of "adequate medical treatment" may demand a higher duty of care to prisoners. This greater standard is warranted precisely because prison causes or exacerbates opportunistic infections.
Finally, ethical considerations. Prisoners have no freedom of movement. Their agency is severely curtailed. They are subjected to constricting rules. Their resources are constrained. And contact with the outside world is strictly regulated. They cannot socially distance, or sanitise at will, or insist on a clean mask, or on double-masking, or demand time outdoors in the fresh air. Instead, they are slotted into shared spaces perilously close to others.
It is we – the lawyers, politicians, urban and rural elites, through wide public pressure – who must take responsibility for these conditions. We cannot ethically condemn those we incarcerate to the terrible risks our overcrowded prisons create – particularly as the "third wave" looms.
There is no moral warrant for excluding prisoners from phase two. It would mean treating them as lesser human beings.
Our fear and anger about rising crime are not good guides. And our Constitution, however battered and bruised after 27 years, still sets attainable ideals for us. These include basic human decency – even when this seems counter-intuitive.
There is no "prisoners' dilemma". For reasons of science, human rights and ethics, we must vaccinate prisoners and those who guard them quickly – which means now.
- Judge Edwin Cameron is a former Constitutional Court judge, and the Inspecting Judge of the Judicial Inspectorate for Correctional Services.
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