NO SPECIAL TREATMENT FOR PRISONERS/ OFFENDERS

HUMAN RIGHTS RESEARCH AND ADVOCACY PROJECT
FRIDAY, 20th JUNE 2003

Chairman, firstly on behalf of the African Christian Democratic Party, may I
thank National Association of Democratic Lawyers for the invitation to
participate in this debate.

Let me at the outset say that I have visited a number of prisons, and am
aware of the deplorable conditions facing particularly awaiting trial
prisoners. We supported amendments to the Criminal Procedure Act to allow
awaiting trial prisoners who did not pose a danger to society to apply to
have their bail conditions amended where prison conditions were, due to
overcrowding, presenting health risks to both inmates and warders. I am also
fully aware that prisoners are in a particularly vulnerable category,
particularly when it comes to infectious diseases such as HIV-AIDS, and that
the measure of a society is the manner in which it treats its weakest
citizens.

It is for that reason that the ACDP has adopted a restorative justice
approach to deal particularly with property crimes and in so doing trust
that the number of particularly awaiting trial prisoners are reduced.

I am also aware that the Constitution draws a distinction between prisoners
and people who are outside prison - section 35(2)(e) guaranteeing certain
things to prisoners but not to people outside prison.

Against this background, let us firstly consider the crime levels facing our
citizens. It is undeniable that the levels of crime remain at unacceptably
high levels. Whilst we will have to wait until August to obtain the exact
crime figures, most South Africans are clearly overwhelmed and preoccupied
with crime, its effects and how to combat it. The callousness of the crimes,
particularly the rapes and murders has resulted in society calling for
harsher measures

There is no doubt that the South African criminal justice system is not
coping and that without an equitable and adequate system of law enforcement
and criminal prosecution, there is the danger that the high levels of crime
and violence will become institutionalised in the social fabric of our
society.

Lala Camerer states that the SA government finds itself doing a balancing
act - on the one hand upholding a hard-won commitment to human rights -
including those of suspects - and on the other, addressing the angry (if not
legitimate) calls for vengeance and retribution by many South Africans who
have been victimised by crime and want to see justice done.

Today, we will consider both the offender and the victim during our
discussions, and I will be arguing that offenders should not receive special
care. What do we mean by special care. Whilst other issues will be discussed
today I will restrict my input to the issue of medical care in view of the
HIV-AIDS pandemic we face in South Africa. Our argument is that prisoners
should not receive special care beyond that which law-abiding citizens
receive.

The argument relates to the budgets and the allocation of government
resources. Should law-abiding citizens that are indigent receive the full
range of treatment that prisoners receive, then we would have no problem -
but clearly the government, notwithstanding its best intentions is not
succeeding in this regard, as has been compellingly argued by NGO's such as
the Treatment Action Campaign in the Constitutional Court .

The constitutional requirements are quite clear. Section 27(1)(a) guarantees
everyone the right to have access to health care services, whilst section 35
(2) provides that:

" Everyone who is detained, including every sentenced prisoner, has the
right..(e) to conditions of detention that are consistent with human
dignity, including at least exercise and the provision , at state expense,
of adequate accommodation, nutrition, reading material and medical
treatment."

In the Van Biljon judgement Justice Brand found that:

" In determining what is "adequate medical treatment", regard must be had
to, inter alia, what the state can afford. If the prison authorities should,
therefore, make out a case that as a result of budgetary constraints they
cannot afford a particular form of medical treatment or that the provision
of such medical treatment would place an unwarranted burden on the State,
the Court may well decide that the less effective medical treatment which is
affordable to the state must in the circumstances be accepted as
"sufficient" or "adequate medical treatment". After all. section 35(2)(e)
of the Constitution does not provide for "optimal medical treatment" or "the
best available medical treatment", but only for "adequate medical
treatment. "

What is the best deterrent to crime. According to the Makhanyane judgement ,
it is the sure knowledge that you will be apprehended, speedily convicted,
and sentenced to a lengthy period in jail. If however the conditions within
jails are better than that outside, what deterrent can there be. I have
heard of anecdotal evidence and read of media reports of persons who prefer
to be imprisoned because at least then they are able to receive food,
shelter, and medical treatment.

In the crisis facing the government in fulfilling especially socio-economic
rights, as set out in the Soobramoney , Grootboom , and the Treatment
Action Campaign cases , it is clear that the state is under severe budgetary
constraints to fulfill these rights. Under section 27, the state is
constitutionally required to take reasonable steps to progressively provide
access to antiretroviral drugs to those who need them within its available
resources, but is not succeeding in this regard.

Is the prospect of imprisonment then a sufficient deterrent? Is it morally
defensible that until recently it was not government policy to provide rape
survivors with anti-retrovirals, whilst prisoners receive the treatment
following the Van Biljon and subsequent court decisions.

The meaning of the right to adequate medical treatment was tested in Van
Biljon case. Here the applicants, a group of four convicted prisoners who
were living with HIV, applied for anti-retroviral medication at state
expense under section 35(2)(e) of the Constitution. The department of
Correctional Services refused this request, arguing that prisoners did not
have greater rights than patients at State Hospitals who were generally not
receiving this treatment, and the drugs were far too expensive.

The department argued that "adequate medical treatment" for prisoners had to
be determined by, or had to be of a similar standard to, the treatment
provided to patients outside prison at provincial hospitals. Evidence
tendered at the hearing indicated that patients at provincial hospitals in a
condition similar to that of the applicants were not provided with
anti-viral medication at state expense, mainly because of budgetary expense:
at that time anti-viral monotherapy would cost R14 000 per patient per year,
whilst combination therapy would cost R18 000 and R 24 000 per year.

The applicants argued that the State owed a higher duty of care to HIV
positive prisoners than to citizens who suffered from the same infection.
The Court decided inter alia that :
- The Constitution did not give prisoners a right to the best medical
treatment, but only a right to adequate medical treatment;
- The meaning of adequate medical treatment has to be linked to what the
state can afford;
- The state had not proved that, due to budgetary constraints, it could not
afford to provide the prisoners with the treatment they claimed;

Last year, forty percent of the deaths of adult South Africans resulted from
HIV/AIDS related illnesses. A much debated actor in this public health
tragedy is the inaccessibility of patented medicines and, in particular,
anti-retrovirals, which, when used correctly are the most meaningful
treatment for persons with HIV/AIDS. Yet it was estimated that in 2001 only
20 000 South Africans were using this therapy .

Soobramoney v Minister of Health, KwaZulu-Natal , is an important case for
individuals and community organizations looking to the courts for
socio-economic remedies with significant implications for the budget. Here
the Court reviewed the reasonableness of a refusal of an individual's claim
for access to dialysis treatment in the context of a provincial health care
budget, as if it were a claim for nationwide provision of that treatment
for all similarly affected persons, and in light of all the state's
socio-economic obligations.

The hospital and provincial authorities had shown that they did not have the
resources to provide all patients like Mr Soobramoney with dialysis
treatment. The Court held that it would be slow to interfere in rational
decisions taken in good faith by political bodies and medical authorities
whose responsibility it is to deal with these matters.

The question that I would like to pose is whether Mr Soobramoney would have
received the dialysis treatment had he been incarcerated. Clearly the answer
is yes. If this is so, then what deterrent does imprisonment provide for a
society where there are in the words of the judge:

"( We live in a society in which there are) .great disparities in wealth.
Millions of people are living in deplorable conditions and in great poverty.
There is a high level of unemployment, inadequate social security, and many
do not have access to clean water or to adequate health services. These
conditions already existed when the Constitution was adopted and a
commitment to address them, and to transform our society into one in which
there will be human dignity, freedom and equality, lies at the heart of our
new constitutional order. For as long as these conditions continue to exist
that aspiration will have a hollow ring" .

One might argue that the answer then does not lie in depriving prisoners of
special care, but rather rolling-out such care, whether it be medical or
otherwise to the broader spectrum of society in terms of the third
generation sosio-economic rights. I would agree. However, until this is
done, clearly the deterrent aspect of a jail sentence is severely affected.

Our argument is thus similar to the approach adopted by the department in
the Van Biljon matter that "adequate medical treatment" for prisoners had to
be determined by, or had to be of a similar standard to, the treatment
provided to patients outside prison at provincial hospitals ie no special
care. Evidence tendered at the hearing indicated that patients at provincial
hospitals in a condition similar to that of the applicants were not provided
with anti-viral medication at state expense, mainly because of budgetary
expense:

If one takes this argument to its logical conclusion, then prisoners should
not be provided with anti-retrovirals because law-abiding citizens are not
afforded the same treatment. Whilst this may appear callous, the reasoning
is logical, and should spur the government to roll-out anti-retroviral
treatment to the broader population as a matter of urgency to avoid a crisis
in its criminal justice sector. Our proposal is that both law-abiding
citizens and prisoners should receive anti-retrovirals, but, when rape
survivors, and the broader population are not given access to such
treatment, it makes a mockery of our criminal justice system.

During a presentation to the Health Portfolio Committee on 21 February 2003,
the Treatment Action campaign called on government to urgently roll-out the
provision of anti-retrovirals to the broader population. Whilst much
progress has been made in this regard, particularly relating to the
provision of anti-retrovirals to prevent mother to child transmissions, much
still has to be done .
Is it morally defensible that prisoners requiring medical treatment are
taken at great state expense to private hospitals, not because provincial
hospitals are unable to provide such treatment, but because warders, do not
want to wait with their prisoners for hours before they receive treatment;
the situation facing law-abiding citizens must endure.

In conclusion, the Deputy-President has, in the light of the high crime
statistics called for a reconsideration of the constitutional rights of
criminals, which appear to be skewed in favour of the accused, to bring a
balance, by considering victims rights. Our argument is thus similar to the
approach adopted by the department in the Van Biljon matter that "adequate
medical treatment" for prisoners had to be determined by, or had to be of a
similar standard to, the treatment provided to patients outside prison at
provincial hospitals ie no special care. We have further advanced the
argument that the deterrent effect of a prison sentence is being severely
prejudiced by the fact that prisoners receive anti-retrovirals, (considered
"adequate" and not "special" treatment by the courts), whilst the majority
of law-abiding citizens, as yet, do not, and that this situation needs to be
speedily resolved to prevent a crisis in an already over-burdened justice
system.