According to data from the World Prison Brief, there are approximately 398,206 individuals incarcerated in the SADC region. Of the 16 SADC States, only 4 have a prison occupancy rate of less than 100%, 7 have occupancy rates between 100 and 200%, and 5 are over 250%. The information indicates that only Lesotho, Namibia, Botswana, and Seychelles have managed to keep their prison populations within the official capacity limits. This capacity is defined by the number of inmates that a prison can accommodate based on its floor space while adhering to minimum requirements. However, when examining the average data, the degree of overcrowding in specific prisons is often overlooked. Additionally, the data does not provide insight into the overcrowding conditions at police stations, where individuals are frequently held for extended periods.
Typically, there are two primary responses to severe prison overcrowding: constructing additional prisons and releasing inmates. Both approaches only provide temporary relief and have inherent flaws that fail to address the underlying reasons for overcrowding.
Political and socio-economic factors often impact incarceration rates. For instance, during the COVID-19 pandemic, South Africa saw 340,000 convictions, while over 100,000 individuals were arrested in Zimbabwe for violating COVID-19 regulations. Additionally, it is not unusual to witness an increase in arrests prior to elections. However, the root causes of overcrowding in prisons run much deeper, and any efforts to address this issue must tackle these systemic factors.
Imprisonment should be considered a last resort, but in practice, the opposite is often true. The misuse of imprisonment and the lack of consideration for, or resources dedicated to, alternatives to detention continue to be significant problems.
Criminal justice reform must prioritize decriminalization and depenalization. Numerous outdated offenses disproportionately target individuals based on poverty or status, yet they continue to be arbitrarily enforced by police. Additionally, mechanisms for compassionate release and pardoning could be enhanced.
Sentencing decisions often overlook the existing prison infrastructure and capacity. There is a common belief that judges determine sentences solely based on the law and the details of the case, assuming that prisons will accommodate anyone sentenced to them. This belief, however, fails to recognize that sending individuals to severely overcrowded prisons constitutes cruel, inhumane, and degrading treatment.
Parliaments frequently implement mandatory minimum sentences to demonstrate their commitment to being tough on crime. However, there is a clear link between the introduction of these sentences and a rise in long-term prison populations. A well-established legal principle holds that judges should have the discretion to determine sentences, as they are best equipped to consider the unique circumstances of each case, its effects, and the offender’s situation. Mandatory minimum sentences disregard this fundamental principle.
Overcrowding in correctional facilities is significantly influenced by delays within the criminal justice system. These delays stem from issues such as poor communication between criminal justice and correctional institutions, lengthy pre-trial detention periods, limited access to legal aid, and the imposition of unreasonable bail conditions.
South Africa has an official prison capacity of 105,474, yet its prisons currently hold 156,600 individuals, which includes 59,574 pre-trial detainees. Many of these detainees are unable to afford the bail set in their cases. In response to this issue, the South African Judicial Inspectorate for Correctional Services and the Bertha Centre recently launched a Bail Fund aimed at assisting individuals incarcerated for petty offenses due to their inability to pay bail.
In Malawi, prison overcrowding has consistently exceeded 200%. A recent audit revealed that two-thirds of prisoners are eligible for release. Organisations such as the Paralegal Advisory Service Institute supports mobile courts, known as Camp Courts, which expedite these cases by bringing a judge and prosecutor into the prison to handle multiple cases simultaneously.
These efforts, while commendable, underscore the fundamental issues within criminal justice systems. Often, these systems are underfunded and overwhelmed by the high volume of cases, largely due to society's preference for policing rather than implementing social reforms. Strategies to address overcrowding should therefore prioritize creating a more efficient criminal justice system, increasing alternatives to detention, and actively working to reduce existing overcrowding.
Parliamentary oversight of prisons is essential for identifying specific factors contributing to overcrowding in each facility. This approach should evaluate the current conditions of prisons and the root causes of overcrowding and inadequate infrastructure. The data collected from this oversight can raise public awareness about the social costs of imprisonment and advocate for alternatives to detention.
Anneke Meerkotter, Director, Southern Africa Litigation Centre