The use of prison as a direct punishment of the court is a relatively modern phenomenon. It began in the 17th and 18th century, principally in Western Europe and North America, and over the succeeding centuries its use has spread to virtually every country in the world. In Africa prior to colonial times there was no indigenous concept of imprisonment as a form of punishment. The idea of taking substantial numbers of predominantly young men, who would otherwise be economically and socially active, locking them behind high walls and making them and their dependants a burden on the rest of society made no economic or cultural sense. As elsewhere in the world the first prisons were built as a tool for the colonial powers to subdue the local populace. Today one can still visit some African towns and see prisons which reflect their French colonial past, while in a number of countries in West and East Africa many prisons are built on a common British model. One suspects that the original construction plan might still be found somewhere in the Public Records Office in Kew near London.
The rate of imprisonment in any country is usually quoted per 100,000 of the total population. On that basis, the average rate of imprisonment around the world is about 140. Rates vary dramatically from country to country. The United States, with about 23% of all the world's prisoners, has a rate of 751, while India has a rate of 32 (ICPS, 2008). This is not the place to enter into an analysis of what leads to such variations; suffice to say that there is little evidence that they can be explained by differing rates of crime but are more likely to be explained by a variety of economic, cultural and social factors.
Imprisonment rates within the African continent also vary widely. The Republic of the Congo has the lowest rate of imprisonment in the world, with 22 prisoners per 100,000 of its population, closely followed by Burkina Faso with 23. The median rate for West Africancountries is 37, while that in southern Africa is 267, with South Africa having the highest rate at 348.
Prisons which are properly constructed and humanely managed are very expensive on the public purse and conditions in many developed countries have been severely criticised by independent bodies such as the United Nations, the Council of Europe and Human Rights Watch. In a number of countries in Africa conditions for those held there can only be described as inhuman and degrading. On 5 March 2005 the East African Standard newspaper reported on conditions in one prison in Kenya:
[The prison], built in 1962 to hold about 350 prisoners, is congested with more than 1,450. The jail is a hallmark of neglect and abuse. Child offenders mingle with suspected murderers, violent robbers and rapists. Hardcore convicted criminals share halls with remandees accused of misdemeanours. In the women's section, infants accompanying their mothers sleep in the same cells with mentally unsound murder suspects.
At one corner in the sickbay, a patient, deeply asleep, snores loudly beside a plastic bucket full of human waste. Another prisoner sits beside the bucket, his eyes wide open as if in a trance. Patients say they use the bucket at night and empty it in the morning for use during the day. The room is crawling with vermin.
In Ward Four, John Ndichu and 235 others spend most of the day and night squatting. This is because if they sit, they would have to stretch their legs and there is no space for that.1
In 2006 the Vice-President of Kenya announced plans to free 15,000 prisoners by the end of July, noting that prisons built to hold a total of 16,000 people were then holding 48,000 inmates countrywide. ‘Most of the prison facilities date back to colonial times, when Kenya's population was less than 10 million (it is now over 30 million)’, he said adding that the congestion was now posing a health hazard to inmates.2 This story could be repeated many times in other African countries. Governments recognise the need to improve prison conditions but simply lack the resources to improve them.
Prison Privatisation
It is generally accepted that, even in an age of reducing government direct delivery of services and increasing private control of services which are essential for the common good, there are some responsibilities which the state cannot delegate and which it must carry out itself. An example would be defence of the nation from external enemies. All armed services remain under the direct control of the government in democratic countries and private or mercenary armies are not permitted, although as shown in several articles in this Special Issue, private military companies are increasingly integrated into and support national militaries in various ways. The judiciary is another example where private enterprise is eschewed. Protection of the public has become a slightly greyer area in recent years. Private security firms now abound and in some countries outnumber the police but the core responsibility for public order and for investigation of crime still lies with state officials.
Until thirty or so years ago the task of depriving citizens of their liberty was another function which was regarded as a state monopoly for similar reasons. Individual freedom was so sacred that only the state could take it away after due process and only the state could administer the punishment passed by its own courts. That is a position which is still maintained in the majority of democratic countries, but not in all.
The modern phenomenon of prison privatisation can be traced back to 1979 when the United States Immigration and Naturalization Service began contracting commercial companies to detain illegal immigrants who were awaiting deportation hearings (Wood, 2003). By the mid-1980s the number of people in prison in the US was increasing to such an extent that a number of states turned to these private detention companies to provide quick build prisons and detention centres. An added advantage for the state jurisdictions was that the resultant costs could be recorded against revenue or operating budgets rather than as capital costs.
In the course of the following decade governments entered into contracts for private prisons in a number of other countries, including the UK, Australia and New Zealand. This came to be seen increasingly as a lucrative business with the small number of companies involved each chasing its share of ‘the market’. In 2004 one of the companies described the UK as ‘the second largest private correctional market in the world’ (GEO Group, 2004).
In respect of prisons the term ‘privatisation’ covers a wide spectrum. This starts with marginal areas such as issuing commercial contracts for the prison shops or canteens, where prisoners are able to purchase items for personal use. The next stage in privatisation is that in which specific services, such as drug treatment or other programmes for prisoners, are delivered by commercial companies or not-for-profit organisations. Moving along the spectrum, in some cases contracts are issued for the central services within the prison; these can include catering, health care, education and work for prisoners. The most advanced example of this is in France where a number of prisons are run under a system of dual management, with prison service personnel carrying out what are described as the public service duties (supervision, rehabilitation, registration and management) and commercial companies being responsible for all other functions (maintenance, transportation, accommodation, food service, work and vocational training).
A further phase of privatisation is that in which the entire operation of a prison is contracted to a commercial company or a not-for-profit organisation. In this case the state builds and continues to own the prison buildings and enters into a contract with a company for the management of the prison. Thereafter the state takes no part in the daily management. A number of the earliest examples of prison privatisation in England and Australia followed this model. The ultimate stage of privatisation, so far, is that in which a commercial company takes a prison from drawing board to final operation. This includes its design, construction, financing and management. This is the model now generally followed in the UK and, as we shall see, in South Africa. The mechanism for implementing the private construction and management of new prisons, as with other public institutions, has been the Private Finance Initiative (PFI) or Public Private Partnership (PPP).
Technically, none of these models should be described as privatisation. The legal responsibility for the prisoners who are held in them remains with the state, which contracts out their daily management to the differing degrees described above. Full privatisation would exist only if the state handed over complete responsibility for the citizens sentenced to prison to a commercial company. However, as far as the prisoner in the prison which is managed by a commercial company is concerned, this is a semantic distinction. For all practical purposes, such a prisoner is in the hands of a commercial company. The best of these companies may well set out to treat the prisoners under their control in a decent and humane manner. A few of them succeed better than their counterparts in the public sector. Despite this there is no escaping the fact that the final responsibility of these companies is to their shareholders; they must deliver a profit or they will cease to trade. This is the ultimate difference between a private prison and a public one.
Prison Privatisation in Africa
In 1993 the prison population in South Africa stood at 111,000. By 2002, it had risen to 182,000. At the end of January 2008 it had fallen back to 166,000, while the system had beds for 114,500. The rise in numbers in the decade after 1993 placed intolerable strain on the system and there was international criticism not only of levels of overcrowding but also of corruption and violence inside the prisons. In an attempt to deal with these problems the government turned to prison privatisation.
The issue of prison privatisation in South Africa was discussed at a seminar in Cape Town in 2003 (Open Society Foundation: South Africa, 2003). The introduction to the report of the conference refers to findings by Professor Julia Sloth Nielsen that,
the privatisation of state assets was explicitly part of the government's overall economic programme in the period following 1996, and indeed remains part of government's chosen strategy. Correctional Services decided to explore the possibility of privatisation as part of a new prisons building programme, one key aim of which was to address overcrowding, inter-alia through the more rapid construction of new facilities.
One of the speakers at the conference, Stephen Nathan, placed this in a wider context when he said,
The backdrop to prison privatisation is the economic restructuring – including privatisation of state assets and services – being imposed on countries by the International Monetary Fund and the World Bank.
At the time of writing South Africa is the only country in Africa which has private prisons. The government initially planned to tender for four private prisons but in the end restricted itself to two tenders for financial reasons. Mangaung Prison, with 3,024 places and now operated by GSL, was opened at Bloemfontein in July 2001 and Kutama-Sinthumule Prison, with 2,928 places and operated by the South African Custodial Services, a subsidiary of the GEO Group, opened in Louis Trichardt in 2002. These are the two largest private prisons in the world. The GEO Group describes itself as a world leader in privatised correctional and detention management, with operations also in the US and the UK.
According to Prison Privatisation Report International (2003), these two prisons have proved to be extremely costly to the Department of Corrections. As early as 2002 the government set up a task force to investigate the prisons’ financing, costs, outputs and risk allocation; to establish a comparison with public sector prisons; and to identify features for renegotiation to address the department of correctional services’ affordability restraints. In November 2002 the task force reported that returns on the company's investments in Mangaung prison could be as high as 29.9% while returns on Kutama-Sinthumule were as high as 25%. Construction and operating fees at Bloemfontein had increased from R154.41 per prisoner per day at the outset to R215.70, while at Louis Trichardt costs had increased from R139.31 to R160.36. The task force recommended that the contracts for the two prisons should be renegotiated. This proved to be impossible.
The contracts provide for both capital repayments and daily per prisoner costs, adjusted annually for inflation, but based on what have been described as exceedingly unrealistic ‘input specifications’, including a limit of two prisoners per cell and extensive educational and vocational training requirements, to levels which are not available in any publicly managed prison. It has been reported
that the two prisons will over the next three years consume between 5.1 and 5.4% of the total Correctional Services Budget (R642,235 million in 2008/9), for facilities housing around 3% of the prison population (Sloth-Nielsen, 2006).
A senior adviser in the South African Treasury is reported to have commented, ‘We ordered a Rolls Royce but we should have ordered a Toyota’ (Open Society Foundation: South Africa, 2003).
In his Budget Vote speech in late 2007 the Corrections Minister announced his intention to invite tenders for the construction of five new prisons on a public-private partnership model ‘once national treasury agrees to cover the project management costs.’ It is by no means clear that the Treasury will give its agreement to this.
The problems faced by a country such as South Africa are compounded if one looks at the situation of its impoverished neighbour, Lesotho. In 2001 the prison population of Lesotho was less than 3,000. The government acknowledged that the conditions in its prisons were appalling and had to be improved yet it lacked the resources to realise its ambition. Enter Group 4 Corrections Services SA (Pty) Ltd. with a solution which was completely alien to the traditions of the country. It offered to build a prison with 3,500 places which would be of a high physical standard. The price to be paid was that all the prisoners in the country would be located in this single mega prison, very far from their homes and in an environment which would be completely at odds with the culture of the country. Group 4 apparently developed its proposal at the request of the Lesotho Department of Justice, Human Rights and Rehabilitation. Later the Minister who had invited Group 4 to develop its proposal was replaced and the government decided not to pursue the proposal. In May 2008 Group4Securicor, the successor company to Group 4 and the largest private security company in the world, announced that it had taken over GLS, the contractor for Mangaung Prison, thus making it a player in private prisons in South Africa. This amalgamation reinforced the increasing tendency to reduce the extent of competition among the companies involved in this field.
Conclusion
In the UK there is increasing concern about the long term financial costs of private prisons. In addition, the respected independent Chief Inspector of Prisons has issued extremely critical reports on the operation of several of these prisons. In 2001 the National Audit Office published a generally positive report on PFI prisons (National Audit Office, 2001). However, a further report in 2003 (National Audit Office, 2003) was much more cautious and concluded that the use of private prisons ‘is neither a guarantee of success nor the cause of inevitable failure’.
The situation in South Africa is much more problematic, not least because of questions about the competence of the entire system. For example, in 2001 President Thabo Mbeki appointed a Commission of Inquiry to investigate and report on corruption, maladministration, violence, and intimidation in the Department of Correctional Services. The Commission handed its final report to President Mbeki on 15 December 2005, but it took nearly a year and last minute pressure from the Correctional Services Portfolio Committee Chairperson and Judge Jali, the Chairperson of the Commission of Inquiry, before the Minister of Correctional Services released the full report to the public in November 2006.3 The report of the Jali Commission makes very uncomfortable reading for the Department of Corrections and the Government of South Africa. Of the Commission's seven focus areas, none were found to have been immune to corruption and in all nine management areas that were investigated, evidence of corruption, maladministration, and the violation of prisoners’ rights were found. In such an overarching climate one would have to be very cautious about the expansion of commercially managed privatisation.
South Africa is a case study in the way that prison privatisation may well proceed in the coming years. Faced with the reality that profit margins in the developed world are likely to be restricted in future and the fact that returns on investment have to be balanced against greater levels of public scrutiny and potential for embarrassment, the small number of companies involved in the business of prison privatisation are beginning to turn their attention to developing countries. Many of these countries are faced with rising prison populations and with terrible prison conditions. Governments are under increasing pressure to improve the conditions of their prisons, while knowing that they have no resources to do so. These are fertile grounds for private prison companies, who can come into a country, promising to relieve the government of unbearable commitments to capital funding in exchange for a revenue commitment which is attractive in the short term but which will have crippling implications in the longer term. This often suits the wishes of politicians who have short term agendas rather than long term ones. A further attraction for private prison companies is that in such countries it will often be possible to prepare a contract which meets the needs of the private contractor much better than those of the contracting state in both financial and operational terms. In many developing countries there is a real problem with corruption in the public and private services at an institutional and at an individual level. When prisons are operated on a for-profit basis the danger of this happening is likely to be considerably increased. In addition, the strict monitoring arrangements which exist in some developed countries will be absent, leaving the contracting company free to interpret the conditions of the contract to its own advantage.
There is a more fundamental issue which exists in developed as well as in developing countries. It is that the real issue is not about whether private prisons are cheaper than public ones, nor whether they are managed more effectively and efficiently. The fundamental change which has come about with the introduction of privatisation is the concept of prison as a ‘marketplace’ and a business which will inevitably expand. Private prisons have been introduced as a short term response by governments to rising prison populations, to shortage of prison places and to limited public funding to maintain existing prisons and to build new ones. As a result, the financial and social costs of an increasing use of imprisonment have not been subject to public scrutiny. Many of the costs of increased imprisonment are hidden in the short term. In fiscal terms, high capital expenditure can be converted into long term revenue expenditure, which reduces current financial costs term while increasing future costs to the public purse. In social terms, governments have not encouraged public debate about why so many additional prison places are needed, being content to argue that they will provide as many places as are necessary to protect the public. This is an even more dangerous phenomenon in developing countries than it is in developed ones.