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Supreme Court takes to task commissioner general over 12 missing prisoners

THE Supreme Court says it is baffled with the explanation by the Zambia Correctional Service that it does not know the whereabouts of 12 inmates, wondering how inmates would go missing under the nose of the service.

This follows a report dated February 28, 2021 which was issued to the Supreme Court by Lusaka Central Correctional Facility (Chimbokaila) officer-in-charge Senior Superintendent Kenani Masase indicating that 12 inmates who had appealed their convictions and sentences were missing in the correctional facility and that they were not traceable.

The court said the missing of inmates in correctional facilities was rampant, which raises a serious concern and directed the Commissioner General of the Correctional Service Chileshe Chisela to ensure that superintendents are held accountable for the “missing” inmates.

However, in his explanation, Dr Chisela claimed that the inmates who were reported missing had served their sentences and were discharged.

He blamed his junior for misleading the court.

During the Supreme Court appeal session, Chief Justice Irene Mambilima, deputy Chief Justice Michael Musonda, justices Albert Wood, Nigel Mutuna and Charles Kajimanga asked Dr Chisela to explain the whereabouts of the 12 inmates.

Chief Justice Mambilima said in January this year most of the cases collapsed because prisoners were not brought to court as no one knew where they were hence the court’s decision to summon the Commissioner General of the Correctional Service to explain the whereabouts of the convicts.

” We received a letter which was written on Sunday February 28 from the case list which we had issued. This letter was signed by Mr Kenani Masase, Senior Superintendent officer-in-charge at Lusaka Central Correctional Facility. It listed eight convicts to be present during this session and that another eight had been released on amnesty or parole and it listed 12 prisoners whose whereabouts are unknown,” Chief Justice Mambilima said.

“This to us is a very grave issue because when persons are convicted by the courts, there is a warrant which goes to the prisons showing how long that prisoner will be in custody and when they serve their sentence according to the warrant, they are released. It is baffling that you can lose prisoners within the prisons service and tell us that you cannot locate them.”

Chief Justice Mambilima said freedom was a guaranteed right under the Zambian Constitution and could only be taken away under due process of law.

“When we give you a prisoner, we expect you to look after that prisoner according to the warrant which we have issued. Whether amnesty or parole, that’s a different issue,” Chief Justice Mambilima said.

“When a prisoner is released or dies, we have to be communicated to so Commissioner, how can you lose a prisoner in the prison service? This is why we have summoned you to explain to us why these people are not in your custody.”

Dr Chisela then apologised for causing inconvenience to the bench for providing inadequate and incorrect information regarding the missing appellants by the officer-in-charge for Lusaka Central Correctional Facility.

He said he received the summons on Monday March 1, 2021 that he was required to appear before court without prior knowledge to why he was summoned.

“This situation was directed in January when most of the appellants did not appear and we were told they could not be located and cases were adjourned to the next session. We still have 12 whose location is not known. We thought we should summon the head of the institution…” Chief Justice Mambilima said.

Dr Chisela said he would follow the issue as there was communication breakdown with his officers.

“I have already charged the officer-in-charge, we don’t have an excuse, that’s why I am apologising. For this session, we learnt that the appellants on this list served their sentences and were released,” Chisela explained.

“This is the information I was telling my officer-in-charge that we need this information at headquarters, then if we are not communicating, we will be embarrassing the institution, it shows that prisoners have gone missing.”

Dr Chisela, who gave a list of the prisoners, explained that among the 12, one had died and the rest were traceable.

Chief Justice Musonda noted that apart from state advocates indicating that they were unable to locate the appellates, there was no documentation indicating that they were discharged or they had died.

She wondered who was to blame if the system was not functioning well.

“In 2019, you were to appear before us in Ndola but you sent your representatives to come and explain on that occasion yet again we had a problem of the whereabouts of prisoners. This problem has become endemic. What is worrying is the culminating malaise in your institution; you are a security person, the cases of prisoners missing in your facility is a serious matter,” Chief Justice Musonda said.

“When prisoners are moved from facility A to facility B, there must be procedure because some of them are dangerous criminals and convicts. When they are being conveyed from North Western Province to Kansenshi or Kamfinsa, it’s a security operation and you should know. This explanation will not do because here we are we have been given another list where you are saying you don’t know the whereabouts of a number of prisoners, so what do we do as the court? Because these people are not dead, you can’t account for them.”

Justice Musonda cautioned Dr Chisela against taking the matter causally as it was a concern which has not just risen this year because it happened in the past.

“We are deeply disappointed this thing has been happening for far too long. If there are system failures, who is responsible? Who should explain for the system failures? Who should ensure the system is working properly? As the top most boss, you should know and you have to account for failure and lapses in the system,” said justice Musonda.

Dr Chisela then apologised for the miscommunication, insisting that the officer has been charged for the same.

Chief Justice Mambilima then said the court needed proof that a prisoner had passed away as she had noted laxity in the said area.

“A matter will be listed, there is a notice of appeal when we process it, the case comes here, we are told that this prisoner was paroled when there is an appeal. Suspects should follow the process of the law before amnesty is exercised,” she said.

Dr Chisela said officers-in-charge of regions have been written to that executees, appellants, those facing court appearance, and witnesses should not be included on lists for amnesty or parole as it would be an offence for an officer who exercises such.

“My office reminds responsible officers but some are corrupt but that does not mean we don’t have systems to uproot those who go against the law. If they are included, the officer-in-charge has to explain, we normally learn that this one was an appellate when the gazette is released,” Dr Chisela explained.

He said the prerogative of mercy committee had been deliberating on the same issue that those who appeal should not be included on the parole list as they might have the charges reduced and pardoned at the same time.

Dr Chisela said Masase had been transferred as the issue was serious, claiming that the Correctional Service had improved in relation to inmates who were appearing before court compared to those that had gone missing in the past.

He added that when a convict is about to be discharged, they were transferred to their nearest region of discharge.

Justice Musonda said the court was dispatching a team to Kabwe Maximum Correctional Facility (Mukobeko) for verification on whether the 12 inmates were discharged.

“You have not improved. If you had improved, we wouldn’t have had these cases. In the past such never used to happen, the situation has worsened that’s why we have dispatched those officers because it’s difficult to believe the information,” justice Musonda said.

“This problem is countrywide, don’t just focus on Lusaka, there is a big problem which requires your serious attention. If people are not working in your system, you know what to do. If there will be experience of these lapses, heads must roll. If these inefficiencies continue then it is you who is failing, we don’t want state advocates to be facing problems.”

Dr Chisela said, “I have given sufficient information. I was summoned last night. If I am able to give information within 30 minutes then my officers are working. The bench will agree that there is some efficiency. We appeal to the judges that we will do our best and ensure that these terminologies of missing are not there so that we provide accurate information, if they escaped we will indicate.”

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