The Perspective with Edward Bwalya Phiri: Detainees, prisoners are humans; they too have rights

Zambian export to Canada, Charles Mwewa [2011] wrote that, “Prisons should not be considered as punishment chambers anymore. In contemporary times, prisons have been chambers of knowledge and ideas. Some great Zambian books have been conceived behind bars…. People in other countries have been known to acquire degrees and other forms of education while in cells – this means they access books and write and are kept alive. Prisons, therefore, can be centres for reformation and knowledge enhancement.”

On The Perspective today, attention is on penology, according to the Zambian situation. The Oxford University Press [2007] defines penology [penal science] as the scientific study of the punishment of criminals and the operation of prisons. Dejene Girma and Mekonnen Feleke [2013] wrote that, “Although punishment has been a crucial feature of every legal system, a widespread disagreement exists over the moral principles that can justify its imposition.”

However, it is important to learn that there exist penological theories [purposes] or justification for punishment [sentencing]; among them are, retribution, incapacitation, deterrence [specific and general], denunciation, rehabilitation and restitution. In order to achieve these objectives, judges and magistrates are guided by the principles of Parsimony, Proportionality, Parity and Totality.

To start with, it will be appropriate to note that any criminal justice system consists of both custodial and non-custodial penalties. Some convicts imposed with custodial sentences are sent to prison, while others get their sentences suspended. Further, those who are handed the non-custodial sentences may either be compelled to pay fines or handed a community service punishment.
Arising from the definition given above, it is clear that penology concerns itself with two aspects of a legal system; namely, the penalty for criminals and the management of a penitentiary for the incarcerated offenders. In the interest of space, this discourse will only concentrate on the latter.

According to Rule 91 of the Mandela Rules [2015], “The treatment of persons sentenced to imprisonment or a similar measure shall have as its purpose, so far as the length of the sentence permits, to establish in them the will to lead law-abiding and self-supporting lives after their release and to fit them to do so. The treatment shall be such as will encourage their self-respect and develop their sense of responsibility.”

And the International Covenant on Civil and Political Rights [ICCPR] 1966, under Article 10 provides that (1) All persons deprived of their liberty [detained or incarcerated] shall be treated with humanity and with respect for the inherent dignity of the human person…(3) The penitentiary system shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation….”

In the landmark ruling by the Supreme Court of Zambia; in the case of George Peter Mwanza and Melvin Beene v Attorney General Appeal No. 153/2016 SC Selected Judgment No. 33 of 2019, it was held on page J57 that, “Prison food or conditions of detention should not be used as an additional punitive measure. In other words, they should not be leveraged as further punishment of criminals by the State. Being incarcerated is enough punishment; being served bad or inadequate or unsafe food or being kept in inhumane conditions is unfairly punitive.”

The foregoing depiction of a prison is an ideal situation. However, the situations prevailing in the Zambian facilities are not fit even for animals, to say the least. In describing his ordeal in prison, Hon. Stephen Masumba disclosed that, “There is a situation where you sleep… you put your legs over someone’s head while another is putting theirs on yours. When it comes to turning, you all agree what time to turn. It is 01:00 hours, you turn to another direction until morning. Where I am, we are more than 60 in a small thing of about five to six square metres. It is hell. With October like this, you find that you are all sweating.”

And former vice-president Nevers Mumba said that, “…the correctional facility is more of a torture gas chamber than a prison…Justice means locking up a convict and withdrawing their freedom, but that their rights must never be withdrawn as the case is….”

The trial judge in the cited landmark case, on page J23 – 24 held among other things that, “It is also common cause that there is congestion in the prison in that a holding cell intended to accommodate 15 prisoners, currently accommodates 75 or more and the whole prison intended for 160 inmates accommodates over 1,100. Consequently, there is no space for the Petitioners to lie down and sleep. Hence, they are forced to spend the night either standing or sitting. As a result of the congestion, there are difficulties to navigate through the packed humanity to access the inadequate toilet facilities. The petitioners’ evidence, [that] there was only one toilet per cell which does not flush: ventilation is also inadequate and the stench from unsanitary condition of the ablution facilities is unbearable, was not challenged by the respondent.”

And according to a brochure dubbed ‘Unjust and Unhealthy; A call to action on Zambian Prison Health’ published in 2009 by a consortium of Human Rights NGOs [the Human Rights Watch, the Aids and Rights Alliance for Southern Africa (ARASA) and the Prison Care and Counselling Association (PRISCCA)], “Overcrowding in Zambia’s prisons is so severe that inmates sleep seated; food provision is so inadequate that food is traded for sex; corporal punishment is common. For punishment, prisoners are sometimes placed in a dark cell, naked, with water on the floor, for days at a time with minimal food. Medical care is almost non-existent: …While HIV testing and treatment have improved at some prisons in recent years, tuberculosis screening and care remain grossly inadequate. Compounding poor conditions and health are criminal justice system failures that keep prisoners incarcerated needlessly for years: over one third of Zambia’s prisoners have never been convicted of any crime, but are held on remand or as immigration detainees. On their release from prison, prisoners carry untreated—and in some cases, drug-resistant—diseases back to their communities.”

In the landmark ruling, the Supreme Court held on page J57 that, “Prisons such as the Lusaka Central Correctional facility which, as the lower court found, are overcrowded and unsanitary, can be breading grounds for infection. Overcrowding, lengthy confinement with poor ventilation and sanitation, are all conditions, which frequently contribute to the spread of diseases and ill-health. These factors, when combined with poor hygiene, inadequate health care are a serious threat to the right to life.”

The NGOs urged that, “The Zambian government should recognise prison conditions and health as a national crisis. It must eliminate abusive punishments, support initiatives to scale up prison medical services, and improve conditions to conform to international standards. The government should enact basic criminal justice reforms to increase the use of bail, decrease arbitrary arrest, and increase the use of non-custodial sentences and parole.”

It must be appreciated that not all prisoners are hardcore criminals; there are those who are circumstantial criminals and those who are just implicated. And it must be appreciated further that despite being physically restrained, inmates enjoy other rights such as life [which is purposely constructed], protection from torture and other inhumane treatment among others.
In a nutshell the conditions of the Zambian Prisons are pathetic. Surely, you don’t expect a person living under such conditions to reform, if anything, the situation creates monsters in them. Prisoners too are humans and they deserve better. And note that everyone is a potential prisoner, it’s just a matter of when. For today I will end here; it’s Au revoir, from EBP. For comments: elbardogma@yahoo.com.

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