The Mandela Rules: A diplomatic success but will they lead to better care of SA prisoners?

In December 2015 the UN General Assembly adopted without voting the revised UN Standard Minimum Rules for the Treatment of Prisoners now known as the Nelson Mandela Rules “to honour the legacy of the late president of South Africa, Nelson Rolihlahla Mandela, who spent 27 years in prison in the course of his struggle for global human rights, equality, democracy and the promotion of a culture of peace”.

Originally adopted in 1957, there developed growing support for the rules to be revised. For more than 50 years the Standard Minimum Rules for the Treatment of Prisoners (SMRs) were a key legal instrument pertaining to prisoners’ rights at international level. But in a number of important areas human-rights standards have evolved and the 1957 rules had become dated. A decision to revise the rules was made in 2010 by the UN General Assembly and over a period of four years four intergovernmental expert group meetings were held to revise them.

The fourth and final meeting was held in Cape Town in March 2015 where it was also agreed to name the revised SMRs the Nelson Mandela Rules. This was also done to recognise the leading role that South Africa (ie the department of correctional services) played in the revision process and particularly for hosting the fourth and final meeting in Cape Town. The Mandela Rules are indeed reflective of an international community engaging with the many challenges faced by those deprived of their liberty. To develop the revised rules and build consensus is no mean feat at international level, given the diversity of states and their respective legal and human-rights traditions. Diplomatically the Mandela Rules was an important achievement for which our government and others must be congratulated.

Similar to the 1957 SMRs, the Mandela Rules do, however, suffer two structural weaknesses. The first is that they are regarded as soft law or a non-binding instrument, even though some parts of the 1957 SMRs have become part of customary international law. The second challenge is that unlike human-rights treaties such as the UN Convention against Torture, which has a treaty monitoring body, the SMRs do not have such a structure. There is no requirement, as is the case with human-rights treaties, requiring states to report on a regular basis to the UN on progress made in complying with obligations. Compliance with the rules is highly reliant on states showing the political and practical will to comply domestically and without structured monitoring.

South Africa has a special relationship with the Mandela Rules, not only in name but also through its active engagement and leading role in the revision process. But the fact of the matter is that our prison system is not well at all 20 years into democracy. Beset by a range of persistent problems despite good legislation, several commissions of inquiry, and a sea of recommendations from various sources the same set of problems prevail.

Every year the Judicial Inspectorate for Correctional Services reports on the complaints received from prisoners, including several thousand complaints alleging assault (some amounting to torture) by officials on prisoners. It is, however, a rare event that department of correctional services officials are prosecuted for such violations and convictions are even rarer. A culture of de facto impunity prevails.

There are also several prisons that are severely overcrowded, especially the large awaiting-trial prisons such as Johannesburg, Pollsmoor and Durban-Westville. Presumed innocent, pre-trial detainees spend long periods locked up under the most dreadful and often life-threatening conditions, as was noted in the Dudley Lee case. Inter-prisoner violence, sexual violence, the so-called number gangs and staff corruption add to the misery of South Africa’s prisoners. The tragedy of all this is that these are not new problems: this is what we inherited in 1994 and 20 years later it looks very much the same.

The best we can hope for at this stage is that the Mandela Rules will awaken some sense of political and managerial urgency in transforming our prison system and rid it of the violence, secrecy and impunity that it inherited from the apartheid prison system. The symbolism of naming the SMRs the Mandela Rules will only have substantive meaning if it acts as a conscience. Failure by the department of correctional services to do so will lead to the inevitable conclusion that diplomatic profile was more important than upholding the dignity of people detained in our prisons.