Health, Human Rights, and the Transformation of Punishment: South African Litigation to Address HIV and Tuberculosis in Prisons

Abstract

South Africa experiences the world's highest HIV burden and one of the highest burdens for tuberculosis (TB). People in prison are particularly vulnerable to these diseases. Globally, and internally in South Africa, increased attention is being paid to HIV and TB treatment and prevention in prisons, with the public health community arguing for reforms that improve respect for the human rights of incarcerated people, for example, by calling for the reduction of overcrowding and unnecessary incarceration. Despite the retributive rhetoric that is popular among politicians and the public, the constitution mandates and recognizes the right of people in prison to humane and dignified conditions of detention. These values are diffused through law and policy, supported by an independent judiciary, and monitored by a small but vigilant prisons-focused human rights community. These factors enable the courts to make decisions that facilitate systemic improvements in prison conditions-counter to popular sentiment favoring punitive measures-and increase access to HIV and TB services in detention. This article examines a series of strategic litigation cases that illustrate this process of change to remedy disease-inducing and rights-violating conditions in South African prisons.