Human rights and the invisible nature of incarcerated women in post-apartheid South Africa: prison system progress in adopting the Bangkok Rules

• DOI: https://doi.org/10.1108/IJPH-05-2021-0045
• Published date: 23 September 2021
• Date: 23 September 2021
• Pages: 300-315
• Subject Matter: Health & social care,Criminology & forensic psychology,Prisoner health,Sociology,Sociology of crime & law,Public policy & environmental management,Policing,Criminal justice
• Author: Marie Claire Van Hout,Jakkie Wessels

Human rights and the invisible nature of

incarcerated women in post-apartheid

South Africa: prison system progress in

adopting the Bangkok Rules

Marie Claire Van Hout and Jakkie Wessels

Abstract

Purpose –The global spotlight is increasingly shone on the situation of women in the male-dominated

prison environment. Africa has observed a 24% increase in its female prison population in the past

decade. This year is the 10-year anniversary of the United Nations Rules for the Treatment of Women

Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) adopted by the

GeneralAssembly on 21 December 2010.

Design/methodology/approach –Using a legal realist approach, this paper examines South Africa’s

progress in adopting the Bangkok Rules. This paper documents the historical evolution of the penal

system since colonial times, focused on the development of recognition, protection and promotion of

human rightsof prisoners and an assessment of incarceratedwomen’s situation over time.

Findings –The analysis of the humanrights treaties, the non-binding international andregional human

rights instruments, African court and domestic jurisprudence and extant academic and policy-based

literature is cognizant of theevolutionary nature of racial socio-political dimensions in South Africa, and

the indeterminate nature of application of historical/existing domestic laws, policies and standards of

care whenevaluated against the rule of law.

Originality/value –To date, there has been no legal realist assessment of the situation of women in

South Africa’s prisons. This paper incorporates race and gendered intersectionality and move beyond

hetero-normativeideologies of incarcerated womenand the prohibition of discrimination in SouthAfrican

rights assurance. The authors acknowledge State policy-making processes, and they argue for

substantiveequality of all women deprived of theirliberty in South Africa.

Keywords Criminal justice system, Women prisoners, Human rights, South Africa, Bangkok Rules,

Mandela rules

Paper type Literature review

It is said that no one truly knows a nation until one has been inside its jails. A nation should not be

judged by how it treats its highest citizens, but its lowest ones.Nelson Mandela

Introduction

On any given day, almost 11 million people globally are detained in prisons or other closed

settings (PRI, 2020). Women deprived of their liberty are a minority even though globally the

female prison population is growing more rapidly than the male prison population (Penal Reform

International [PRI], 2020). Compared with men, women have distinct gendered pathways into

crime and are generally imprisoned for crimes of survival heavily underpinned by poverty (Penal

Reform International [PRI],2017, 2020). Most have a lower socioeconomic status, many are from

Marie Claire Van Hout is

based at the Public Health

Institute, Liverpool John

Moores University,

Liverpool, UK.

Jakkie Wessels is based at

the Regional Court, Office

of the Regional Court

President, Polokwane,

South Africa.

Received 25 May 2021

Revised 1 September 2021

Accepted 2 September 2021

PAGE 300 jINTERNATIONAL JOURNAL OF PRISONER HEALTH jVOL. 18 NO. 3 2022, pp. 300-315, ©EmeraldPublishing Limited, ISSN 1744-9200 DOI 10.1108/IJPH-05-2021-0045

racial or ethnic minority backgrounds, and have suffered disproportionally from sexual,

domestic, physical and emotional violence (Atabay, 2008;Penal Reform International [PRI],

2017). The global spotlight is increasingly shone on gender mainstreaming in prisons resulting in

international non-binding instruments, United Nations (UN) guidance documents on standards

of gender appropriate care for women in the male dominated prison environment, and situation

assessments on conditions in female prisons.

Global prison data indicates that Africa has observed a 24% increase in its female prison

population in the past decade (Penal Reform International [PRI], 2020). This year is also the

10 year anniversary of the United Nations (UN) Rules for the Treatment of Women Prisoners

and Non-custodial Measures for Women Offenders (the “Bangkok Rules”) (UN, 2010)

adopted by the General Assembly on 21 December 2010. The Bangkok Rules are soft law

principles which lay the foundation for intensified efforts to support women deprived of their

liberty (Barberet and Jackson, 2017), and complement the Standard Minimum Rules for the

Treatment of Prisoners (UN, 1955), the Standard Minimum Rules for Non-custodial

Measures (the “Tokyo Rules”) (UN, 1991a), the Basic Principles for the Treatment of

Prisoners) (UN General Assembly,1991 b), and the revised Standard Minimum Rules for the

Treatment of Prisoners (the “MandelaRules”) (UN, 2016).

We document the historical evolutionof the South African penal system since colonialtimes,

in terms of the development of the recognition, protection and promotion of human rights of

prisoners in general and provide a focused assessment of women’s situation over time.

Using a legal realist approach (Leiter, 2015), the focus is on scrutinising South Africa’s

progress in adopting the “Bangkok Rules”. The analysis of the human rights treaties, the

non-binding international and regional human rights instruments, African court and

domestic jurisprudence, and extant academic and policy-based literature is cognizant of

the evolutionary nature of racial socio-political dimensions in South Africa, and the

indeterminate nature of application of historical/existing domestic laws, policies and

standards of care when evaluated against the rule of law.

A realist account is developed with an eye on determining whether the changing

South African prison system had/has a culture of respect for the rule of law regarding

human rights assurance for women in prison (overwhelmingly black African), cognisant of

their engendered and racialvulnerability, the dominant masculinisation of incarceration,and

prison system operations in upholding their unique rights. By recognising the inherent

tensions of protection versus protectionism of women in the “Bangkok Rules” (Dias-Vieira

and Ciuffoletti, 2014), the analysis incorporates race and gendered intersectionality and

moves beyond the hetero-normative ideologyof incarcerated women, their fragility and their

biological functions, and the prohibition of discrimination in contemporary South African

rights assurance. We acknowledge State policy making processes, and how such process

and outcomes operate within the prison system itself and by moving beyond this, we argue

for greater substantive equalityof all women deprived of their liberty in South Africa.

South Africa’s prisons: colonialism and the legacies of apartheid

South Africa’s prison system was established in the 19th century during the expansion of

colonial rule (Van Zyl Smit, 1992). Prisons are not an institution indigenous to South Africa

(Sarkin, 2008). Prisons were used to exert p olitical contr ol and colonial r ule (Bunting, 1960;

Steinberg, 2005). Punishment as an institution was used by white law makers to legitimise

racial superiority and embed a form of social jurisdiction (Gillespie, 2011). Following the

1910 Union of South Africa, the consolidated Prisons and Reformatories Act was enacted in

1911 (Human Rights Watch, 1994). The South African criminal justice system and its

subsequent development was underpinned by progressive institutionalization of racial and

gender discrimination (Human Rights Watch, 1994;Filippi, 2011;Gillespie, 2011). Apartheid

was enforced by legislation by the National Partyfrom 1948 to 1994 (Dissel and Ellise, 2002).

Examples include the Population Registration Act (1950); the Natives Abolition of Passes

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