“Ubuntu” I am because we are: COVID-19 and the legal framework for addressing communicable disease in the South African prison system

• DOI: https://doi.org/10.1108/IJPH-05-2021-0046
• Published date: 03 October 2021
• Date: 03 October 2021
• Pages: 350-370
• 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

“Ubuntu”I am because we are: COVID-19

and the legal framework for addressing

communicable disease in the South African

prison system

Marie Claire Van Hout and Jakkie Wessels

Abstract

Purpose –The purpose of the paper was to conduct a legal-realist assessment of the South African

prison system response to COVID-19. Severely congested and ill-resourced prison systems in Africa

face unprecedentedchallenges amplified by COVID-19. South Africa has recordedthe highest COVID-

19 positivity ratein Africa and, on March 15th 2020, declared a nationalstate of disaster. The first prison

systemcase was notified on April 6th 2020.

Design/methodology/approach –A legal-realist assessment of the South African prison system

response to COVID-19 in the 12months following initial case notificationfocused on the minimum State

obligations to comply withhuman rights norms, and the extent to which human, health and occupational

healthrights of prisoners and staff were upheld duringdisaster measures.

Findings –A legal-realist account was developed, which revealed the indeterminate nature of

application of South African COVID-19 government directives, ill-resourced COVID-19 mitigation

measures, alarmingoccupational health and prison conditionsand inadequate standards of health care

in prisonswhen evaluated against the rule of law during State declarationof disaster.

Originality/value –This legal-realist assessment is original by virtue of itsunique evaluation of the

South African prison system approach to tackling COVID- 19. It acknowledged State efforts,

policymaking processes and outcomes and how the se operated within the prison system itself. By

moving beyond the deleterious impactsof the COVID-19 pandemic on the already precarious South

African prison system, the authors argue for rights assurance for those who live and work in its

prisons, improved infrastructure and greater substantive equality of all deprived of their liberty in

South Africa.

Keywords Prisoners, Human rights, South Africa, Infectious disease, COVID-19, Mandela rules

Paper type Literature review

COVID-19 and tackling communicable disease in African prisons

On March 11th 2020, the World Health Organization (WHO) announced that the outb reak of

the Coronavirus disease 2019 (COVID-19), a respiratory illness caus ed by the Severe Acute

Respiratory Syndrome Coronavirus 2 (SARS-CoV-2), was a pande mic (WHO, 2020a). Global

criminal justice and prison systems faced unprecedented challenges amplified by COVID-1 9

(UNODC, 2020a; WHO, 2020b). Prisons are high-risk environments for communicable disease

outbreaks, including COVID-19; with prisoners vulnerable t o severe COVID disease because

of existing underlying chronic ill-health and with potent ial for rapid transmission because of

high population density and turnover (Beaudry et al.,2020).OnMarch25th2020,theUnited

Nations (UN) High Commissioner for Human Rights called on States to instigate prison

decongestion measures as a critical component of the COVID-19 r esponse (OHCHR, 2020;

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 26 May 2021

Revised 2 September 2021

8 September 2021

Accepted 8 September 2021

Marie Claire Van Hout thanks

Professor Yvonne Daly at

Dublin City University, Ireland,

for her supervision of the legal

dissertation submitted for the

award of LLM. .

PAGE 350 jINTERNATIONAL JOURNAL OF PRISONER HEALTH jVOL. 18 NO. 4 2022, pp. 350-370, ©Emerald Publishing Limited, ISSN 1744-9200 DOI 10.1108/IJPH-05-2021-0046

UNODC et al., 2020a, 2020b;Amon, 2020). Temporary release schemes were implemented in

many countries (Simpson and Butler, 2020;Lines et al.,2020).

The first COVID-19 case in Africa was reported in Egypt, followed by Algeria spre ading to 23

southern and east African countries (except Lesotho) in the period March 5th 20 20 to 15th

April 2020 (Muntingh, 2020). States varied as to whether they declared a state of disast er or

emergency, or anything at all (Muntingh, 2020). Prisons in Africa were especially vulnerable to

the spread of air-borne disease during this time, because of a general l ack of resourcing in the

State COVID-19 response, and with existing poor infrastructu re, congestion and inadequate

standards of sanitation, making it impossible to implement adequate COVI D-19 disease

mitigation measures (Nkengasong and Mankoula, 2020;Muntingh, 2020;Van Hout, 2020a;

Van Hout, 2020b;Nweze et al., 2020;World Prison Brief, 2020). Approxim ately one million

people are incarcerated in African prisons, with, on av erage, 42% held in pre-trial detention,

and with prison systems operating overcapacity (highest in Uganda at 318%; World Prison

Brief, 2020). Conditions are conducive to disease, with staff and prisoners exposed to similar

biohazards by sharing cramped conditions, air, water and ablution facil ities (Muntingh, 2020;

Telisinghe et al., 2016;Van Hout and Mhlanga-Gunda, 2018; Van Hout; 2020a, Van Hout

2020b;Van Hout et al.,2021;World Prison Brief, 2020).

The COVID-19 threat was not restricted to those deprived of their liberty but extended to prison

staff and their families, official staff (health, legal, services) and families visiting prisons (Van

Hout, 2020c;Van Hout, 2020d). By May 26th 2020, prisons in Algeria, Sierra Leone, Cameroon,

Ghana, Democratic Republic of Congo, Guinea, Egypt, Morocco, Kenya and South Africa

confirmed cases of COVID-19 (Prison Insider, 2020). Protests and riots by both prisoners and

prison staff occurred in many African states in response to inadequate COVID-19 screening

practices at intake, limited access to clean water, insufficient supplies of personal protective

equipment (PPE) and COVID-19 testing kits, inadequate facility disinfection practices and

continued committals aggravating existing high pre-trial detention rates and fuelling disease

transmission (Prison Insider, 2020). In March and April 2020, the African Commission on Human

and Peoples’ Rights (ACHPR) issued several declarations outlining effective human rights-

based responses to COVID-19 in prisons, which urged all African States to operationalise

decongestion and health and security measures to mitigate disease (ACHPR, 2020a;ACHPR,

2020b). To date, very few African States have provided detail on such release schemes or

transparent prison-monitoring data on COVID-19 infection rates (Muntingh, 2020;Nweze et al.,

2020). Prison health surveillance and prison health research in Africa is also underdeveloped

(Mhlanga-Gunda et al, 2020), compounding COVID-19 response efforts.

We focus here on the South African prison system response to COVID-19. To date, the

South African National Institute for Communicable Diseases has recorded that the country

has the highest COVID-19 positivity rate in Africa, with a cumulative rate of COVID-19

positivity of over 2.7 million (NICD, 2021). On March 15th 2020, it declared a national state

of disaster. The first Departmentof Correctional Services (DCS) prison system notification of

COVID-19 was on April 6th2020, with over 15,173 prison system cases recorded at thetime

of writing of this article (August 5th 2021)(DCS, 2021).

The legal realist approach

A legal-realist assessment (Leiter, 2015) was conducted of the South African prison system

response to COVID-19 in the 12months following initial case notification, focusing on the

minimum State obligations to comply with human rights norms and the extent to which

human, health and occupational health rights of prisoners and staff were upheld. Legal

realism as naturalistic theory was deemed most applicable because of its emphasis on the

law as derived from real-world observations regarding social interests, welfare and public

policies (Leiter, 2015). Provisions mandating good practice in prison management and

humane treatment of those detained, as indicated by a range of international and regional

non-binding instruments relevant to prisons, were considered, along with the 2020 non-

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