Nelson Mandela and South Africa’s Constitutional Court:
Increasing Disproportionate Imprisonment of Men

face of a prisoner

Despite highly disproportionate imprisonment of men, South African President Nelson Mandela and the South African Constitutional Court enacted and validated sex-discriminatory release of only women prisoners. The Constitutional Court observed that in post-apartheid South Africa, equality gained fundamental legal importance:

The importance of equality in the constitutional scheme bears repetition. The South African Constitution is primarily and emphatically an egalitarian constitution. The supreme laws of comparable constitutional states may underscore other principles and rights. But in the light of our own particular history, and our vision for the future, a constitution was written with equality at its centre. Equality is our Constitution’s focus and organising principle.^

In 1994, thirty-eight men were in prison in South Africa for every woman in prison.^ For comparison, in Europe from the sixteenth to the nineteenth centuries, a typical ratio of men to women disposed in punishment was about four. Across most of the world in 2003, the ratio of men in prison to women in prison was sixteen. Nelson Mandela’s act and the Constitutional Court’s decision in President v. Hugo occurred in South African circumstances of highly disproportionate imprisonment of men, absolutely and in comparative perspectives.

Through a special, sex-discriminatory legal act, Nelson Mandela directly increased highly disproportionate imprisonment of men in South Africa. In 1994, acting in his capacity as President of South Africa, Nelson Mandela ordered freed from prison “all mothers in prison on 10 May 1994, with minor children under the age of twelve (12) years,” who had not been committed to prison for an enumerated list of offenses. Imprisoned fathers with such children received no such privilege.

South Africa’s Constitutional Court decided that such sex discrimination does not violate South Africa’s constitution. In an affidavit in support of the President’s action, the National Director of the South African Council for Children and Family Welfare directed attention away from equal human dignity and toward “the best interests of the children.” The National Director defined that emotive concept in terms of sex differences and gender stereotypes:

In my opinion, the identification of this special category {of women in prison} for remission of sentence is rationally and reasonably explicable as being in the best interests of the children concerned. It is generally accepted that children bond with their mothers at a very early age and that mothers are the primary nurturers and care givers of young children.^

The Court itself was less concerned about maternal bonds and more concerned with women’s burdens of child-rearing. Seven judges’ majority opinion affirmed that gender stereotypes about women’s burdens of child-rearing are not valid reasons for discriminating against women:

To use the generalisation that women bear a greater proportion of the burdens of child rearing for justifying treatment that deprives women of benefits or advantages or imposes disadvantages upon them would clearly, therefore, be unfair.^

A mother’s burdens of child-rearing isn’t a valid reason for refusing to admit a mother to a demanding job such as being an attorney. The question in this case, however, was about being in prison. The judges declared that such generalizations about child rearing, while not valid reasons for depriving women of opportunities, are valid reasons for preferentially releasing women from prison.

Even accepting that gender stereotypes about child-rearing burdens are just reasons for sex discrimination in releasing prisoners, the practical reasoning is backwards. Since children are no longer allowed to accompany their parents to prison, parents in prison do not bear the burdens of child-rearing. Released prisoner-parents do. Concern about women’s burdens of child-rearing logically imply preferentially releasing fathers from prison so that those fathers could help rear children, or at least earn money to make government-specified financial payments to children’s mothers. The Court, however, apparently didn’t consider women’s burdens of child-rearing as a practical problem. Instead, the Court seems to have viewed women’s burdens of child-rearing as a general harm for which women can receive special compensation through criminal justice policy.

Eight judges emphasized the practical importance of existing, large gender inequality in imprisonment. These judges reasoned:

Male prisoners outnumber female prisoners almost fiftyfold. A release of all fathers would have meant that a very large number of men prisoners would have gained their release. … In the circumstances it must be accepted that it would have been very difficult, if not impossible, for the President to have released fathers on the same basis as mothers. Were he obliged to release fathers on the same terms as mothers, the result may have been that no parents would have been released at all.^

The specific level of prisoner sex inequality wasn’t a matter of careful concern. That “male prisoners outnumber female prisoners almost fiftyfold” summarized figures, explicitly given in a footnote, implying a sex ratio of thirty-eight male prisoners per female prisoner. What apparently mattered was the existing, large gender inequality in the prison population. The Court’s validation of discriminatory prison release had the effect of raising even higher the highly disproportionate imprisonment of men. Large gender inequality in imprisonment provided legal justification for action directly making that gender inequality even larger.

The prevailing highly disproportionate imprisonment of men didn’t preclude feasible, non-discriminatory prison release policies. A special remission of sentence could have been issued for all parents, with minor children under the age of twelve, who had not been committed to prison for an enumerated list of offenses, and who had less than X days of imprisonment remaining on their prison sentences. The parameter X could been chosen to effect the release of any given total number of prisoners. Conditioning release by time remaining on sentences is a common practice in statutes governing probation and remission of prison sentences. Rather than conditioning release on days of remaining imprisonment without sex discrimination, the release order conditioned release on the prisoner being female. Conditioning release on the prisoner being female increased already highly disproportionate imprisonment of men. That’s blatant sex discrimination. It’s unjustified in reason apart from power in public deliberation.

Equality is a fundamental democratic ideal, yet public deliberation seems incapable of expressing common sense of this ideal with respect to men and imprisonment. For example, in discussing the criminal justice system, a high-ranking English judge recently declared:

I am, as you might expect, a passionate believer in equality. But equality is a complicated subject.^

The judge went on to offer suggestions that would raise the ratio of men in prison per woman in prison in England from the then-current ratio of sixteen. Confronting gross failures in legal deliberation in the U.S. in the late 1950s, a legal scholar proposed moving outside of public deliberation as it’s typically understood:

Equality, like all general concepts, has marginal areas where philosophical difficulties are encountered. But if a whole race of people finds itself confined within a system which is set up and continued for the very purpose of keeping it in an inferior station, and if the question is solemnly propounded whether such a race is being treated “equally,” I think we ought to exercise one of the sovereign prerogatives of philosophers – that of laughter.^

What about equality in criminal justice and imprisonment when ten men per woman, or twenty men, or fifty men per woman are in prison?^ Surely some ratio exists beyond which public deliberation about gender equality becomes absurd and meaningless. Then individuals active in self-government become only girlfriends, wives, brothers, sisters, mothers, fathers, family and friends of prisoners, weeping for their imprisoned men. Caring persons should weep for South Africa and humanity when considering South African President Nelson Mandela’s act and the South African Constitutional Court’s decision in President of the Republic of South Africa and Another v Hugo.

Leave a comment (will be included in public domain license)

Your email address will not be published. Required fields are marked *