Prisoners' right to health in South Africa

Abstract

People are not incarcerated voluntarily; they are placed in correctional centers by the state either as un-sentenced suspects in a crime awaiting their cases to be finalized or as sentenced offenders, sentenced by a court to incarceration. Because the prisoners are placed in these centers involuntarily, the state has a total and inescapable responsibility and duty to care for them in a manner that does not violate or compromise their constitutional rights. The right to health care or right to access to health care is one such right. The International Bill of Rights, together with a number of charters and treaties have set minimum standards that, when read together, articulate the right to health for prisoners and lay down a platform on which comprehensive international legal framework can be developed guaranteeing the right to health of all persons who are incarcerated and deprived of their liberty. This framework has also laid a perfect foundation from which the Constitution, particularly the Bill of Rights, of the Republic of South Africa was based. The Bill of Rights, Chapter 2 in the Constitution of the Republic of South Africa, contains several guarantees aimed at safeguarding the rights of those individuals detained by the State, whether they are sentenced prisoners or awaiting trial. The Correctional Services Act was promulgated in 2004 in creating a rights based framework for South African?s prison system. The Department of Correctional Services must provide, within its available resources, adequate healthcare services, based on the principles of primary health care, in order to allow every prisoner to lead a healthy life. Although the Department of Correctional Services is governed by a discrete piece of legislation in the form of Correctional Services Act, it does not have its own separate laws that govern health care, but have to be in line with what the National Health Act and the Constitution dictates. In terms of the Right to Healthcare and Medical Treatment, the Department of Correctional Services complies with all Department of Health policies and practices. The Constitution, together with legislation (DCS, NHA and regulations) have provisions that clearly entrench the protection of health related rights of prisoners. From the legal perspective, the Constitution and legislation have sufficient safeguards that promote the right to health care for prisoners. The court has also been equal to the task in enforcing these rights. It has to be noted, however, that whilst litigation has brought victory to individual complainants, these victories have often not translated into fundamental changes in reality situations on the ground. The disjuncture between what is in the law and what actually happens on the ground stems from challenges that can be solved internally by the Department of Correctional Services and others that outside the purview of the department.