The Constitution protects everyone’s rights, even prisoners. Illustration: Lisa Nelson
South Africa is a violent country with a violent history. But in 1994 we reached an accord that holds the country together, based on our common humanity. It is the Constitution, especially its Bill of Rights.
The Constitution is the foundation of this country’s law. It is one of the finest legal documents ever written and we are justly proud of it.
The Bill of Rights applies to every person in the country, saint and sinner. That includes Thabo Bester.
Bester is a murderer, rapist, fraud and con-artist. But his rights and the rights of other people like him in South African prisons are protected by the Constitution, as they must be.
Section 35 of the Constitution says that every prisoner has the right 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”.
Bester and several hundred other prisoners are being kept alone in small cells 23 hours a day, with only an hour to exercise.
The United Nations Office on Drugs and Crime published minimum rules for keeping prisoners. These are known as the Mandela Rules. They define solitary confinement as “the confinement of prisoners for 22 hours or more a day without meaningful human contact”. It may only be imposed in exceptional circumstances. Keeping someone in these conditions for 15 consecutive days is considered torture.
The Jali Commission in 2005 found that solitary confinement “is a product of our past and should not be resorted to as a norm by prison officials in the new democratic order”. The Commission found that “it is commonly accepted that solitary confinement is one of the worst forms of torture that can be imposed on another human being”. The Commission also found no scientific evidence to justify keeping people in these conditions.
Without meaningful human contact, and often without a way to keep the time, prisoners lose track of the days of the week. Their mental and physical health deteriorates. An inspection by the Judicial Inspectorate of Correctional Services of Ebongweni prison in 2021, found all the prisoners in isolation were on antidepressants. (See also The Impacts of Solitary Confinement.)
One does not have to have sympathy for Bester. Some of his many victims no doubt wish him the worst, understandably so. But the Constitution is unequivocal: everyone must be treated with dignity and not to be tortured. Upholding the Constitution, even for people we dislike, is the way to achieve a less violent, more humane society.
The prisoners being kept in these conditions are for the most part extremely dangerous. The state has to keep them in prison to protect everyone else’s rights. But prisoners’ rights should not be restricted more than necessary.
We degrade our society if we allow the state to torture people. Once we start accepting that human rights are for some but not for others, we start a descent into inhumanity.
The law in a constitutional democracy, the best type of state yet invented, is there to protect all of us from unrestrained state vengeance. It applies to you and me. And it even applies to awful people like Thabo Bester.
