The rights of prisoners under the South African constitution : compatibility with international norms and standards.
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Date
2001
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Abstract
Prisoners' rights are human rights first. Any investigation of such rights has to
have regard to that fact. In order to clearly understand the context within which
prisoners' rights are provided for and protected or abused, a holistic approach
is necessary. Accordingly, chapter one deals with introductory and histor ical
perspectives. The magnitude of the problem under investigation is highlighted,
the objectives of the study are outlined and the hypothesis is stated in these
terms:
The rights of prisoners under the South African Constitution
are protected, observed and compare well with international
norms and standards.
A brief indication of the methodology of research is given and a literature
survey undertaken. The chapter also deals with definitions and classifications
wherein prisons and prisoners are defined and classified. An overview of the
various justifications (purposes) of imprisonment is given and the chapter
concludes with a survey of the origins and history of prisons and prisoners '
rights.
As with all other human rights, the protection of prisoners' rights takes place at
two levels: the domestic and the international level. A study of prisoners'
constitutional rights necessitates a basic understanding of certain aspects of
international human rights law. Chapter two begins with an overview of
international protection of human rights and proceeds to explain how
international human rights norms can be enforced in domestic law. The larger
part of the chapter is dedicated to the law governing international human rights
protection for prisoners . The instruments providing for such protection are
outlined and discussed. The application and interpretation of such instruments
are also examined. It is then concluded that, in spite of the problems inherent
in the enforcement of human rights standards through international
mechanisms, international law plays an important role in the protection of
prisoners' rights.
Chapter three provides a detailed discussion of the rights of prisoners as
provided for under section 35 of the Constitution of the Republic of South
Africa (Act 108 of 1996). The discussion is enhanced and reinforced with case
law illustrating the approach taken by the courts in interpreting and applying
the said rights. Other constitutional rights relevant to prisoners are also
discussed together with the pertinent case law. It is then concluded that the
introduction of a Bill of Rights in the Constitution has brought a new dimension
and challenge to the protection and realisation of prisoners' rights in South
Africa. It is also concluded that the courts, especially the Constitutional Court,
have risen to the challenge in attempting to give some effect and meaning to
the rights of prisoners brought about by the new constitutional order.
In an effort to place South Africa in a regional context, chapter four adopts a
comparative approach. The rights of prisoners in various African countries are
discussed. The countries include Zimbabwe, Zambia, Namibia and Uganda.
Prisoners' rights under the constitutions of each country are first outlined. This
is followed by a discussion of the approaches taken by the courts in
interpreting those rights and then the views of observers regarding the
protection of prisoners' rights in those countries are outlined. The conclusion
is that at least on paper and in terms of judicial practice, the rights of prisoners
in South Africa enjoy more constitutional protection than in other African
countries.
The focus of chapter five is on the investigation regarding the extent to which
prisoners' rights in South Africa are implemented and protected in actual
practice. The chapter contains an analysis of the statistical data obtained
through field study based on prisoners' perceptions of the realization of their
constitutional rights. In analysing the data, statistical illustrations are used.
Statistical methods are also used in testing the hypothesis.
The main conclusion of the study is that the constitutional rights of prisoners in
South Africa are not sufficiently protected and implemented. This and other
conclusions and recommendations are set out in chapter six. The thrust of the
conclusions and recommendations is that something has to be done regarding
police brutality, prison conditions and overcrowding, juvenile offenders,
mentally ill prisoners , ratification and incorporation of relevant international
human rights instruments and access to courts. Suggestions on how to
address these issues are made. Other recommendations include abolishing
the privilege system in prisons, increasing the role of NGO's, provision of
education and public awareness, privatization of prisons and legislative
intervention .
Description
Thesis (LL.D.)-University of Durban-Westville, 2001.
Keywords
Prisoners--South Africa--Legal status, laws, etc., Theses--Law.