Oscar Pistorius sentence: Athlete's wealth and notoriety provoke an overdue debate on South African prisons

If he is sent to jail, his experience will not be that of other inmates who endure overcrowding, illness and abuse
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The Independent Online

Should Oscar Pistorius go to jail? This is a question that only Judge Thokozile Masipa should attempt to answer. She will, by all accounts, on Tuesday.

Whether Judge Masipa will be influenced by the state of South Africa's correctional facilities depends entirely on the balance of evidence presented in court. But it is safe to say that South Africa's prisons have never been such a popular conversation topic in the country. Oscar Pistorius's wealth and notoriety have provoked a debate that is long overdue.

In South Africa, prison is a word freighted with a terrible history.

In the 1980s, the racist apartheid regime added to its vast cache of restrictive legislation by adding extended, long-term "preventative detention" laws. Large numbers of liberation activists were detained without charge or trial, sometimes for more than 90 or 180 days. Many were subjected to torture or assault, or left in solitary confinement for disturbing amounts of time.


Some of these individuals survived to become a part of today's democratic government – President Jacob Zuma himself served time on Robben Island for political activism. So, when there is talk of life behind bars, it is to be expected that South Africa's government would be especially concerned to make the correctional system one that respects and upholds the human dignity and basic rights of all – in line with the country's constitution.

The Department of Correctional Services (DCS) is making a concerted effort to realise these goals, and should be applauded for the progress it has made. In particular, its focus on remand detainees – people who are by law presumed innocent – has resulted in a reduction of this prison population. However, South Africa's prisons remain, on average, 130 per cent overcrowded. The problems associated with overcrowding are manifold, but the most urgent concern is health. South Africa's statistician-general, Pali Lehohla, stated last month that tuberculosis continued to be South Africa's biggest killer, more deadly than HIV/Aids. And Robin Wood, director of the Desmond Tutu HIV Foundation, said that a history of incarceration was "second only to HIV infection as a risk factor for TB".

Meanwhile, a recent study of 1,000 prisoners at a correctional facility in Gauteng found high rates of undiagnosed TB.

Dudley Lee, who successfully sued DCS for contracting TB while awaiting trial from 1999 to 2004, and many others who have reported their cases to the Wits Justice Project, are clear on the problems. Victor Nkomo, who had to wait for his trial for more than eight years, explained that he had to stay in a communal cell designed for 20 with 60 other men. Outdated facilities, with consequently poor ventilation and sanitary provisions, compound the problems.

Equally concerning are the allegations of torture and abuse inside South African facilities. Torture was criminalised in 2013, making it even more important that grave human rights abuses do not continue with impunity.

Consider the case of Tebogo Meje, a man who spent seven years behind bars in the privately run Mangaung prison for a crime he did not commit. Before his final acquittal, he claims that he was subjected to severe abuse at the hands of the "Ninjas", nickname for the emergency support teams deployed to contain prison unrest. After a series of riots in the prison in 2013, they were called in to restore order.

He says: "They took off my shirt, and my trousers, I was only left with my underwear. Then they handcuffed me... I was kneeling down, [with] my head on the ground. They pour water on me and then they electrified me. Some of them were kicking me. They were 10 or 15 in the room. Then they took me to [what] they call a special treatment unit.

"When you go there you stay alone. The cell is dark. It's only having a bed, a toilet and a washing basin. You don't see anything, it's like a hole. I stayed there for three to four weeks."

Inmates at Mangaung prison have also reported being forcibly injected with anti-psychotic medication, to make them compliant. Willem Vis, who claims this happened to him, explained how it made him feel: "It feels like my jaw is falling off. I feel dizzy, my muscles are spastic and my memory has gone."

Doctors at Mangaung are said to have claimed that there was a medical case for such medication, and an investigation is ongoing.

Where does this leave the double-amputee Oscar Pistorius? The reality is that the kinds of violence and environmental risks described above will most probably not affect him. His wealth, status and notoriety almost certainly guarantees that any time he might spend behind bars would be as uneventful as possible.

The public's concern should be: what if you are Tebogo Meje, wrongfully arrested, convicted and incarcerated? Or Victor Nkomo, awaiting a trial for eight years? Or David Mkhwanazi, who was arrested for supposedly sprinting away from the scene of a murder when he had, in fact, been late for work and running for a train? After six years in prison –where he contracted TB – the evidence against Mkhwanazi was finally assessed: he was released immediately, judged to have had no involvement in the murder.

Pistorius's entire trial will have been concluded in less than a third of this time.

So the question of Pistorius's sentence – and whether it will include time in jail – should stop fascinating South Africans and the world alike. Rather, we should use this surge of interest in our criminal justice system to shine a light on the poor, dispossessed and uninformed who are trapped perilously within it.

Oscar Pistorius will be sentenced this week but the fate of many, less recognisable South Africans will hang in the balance far longer.

Robyn Leslie works at the Wits Justice Project, which investigates remand, detention and miscarriages of justice in South Africa