“In our world prisoners are still laboratories of torture, warehouses in which human commodities are sadistically kept and where spectrums of inmates range from driftwood juveniles to heroic dissenters”.
– Justice V.R. Krishna Iyer, Retired Justice of the Supreme Court, India
Matters regarding prisoners have been in the news of late. There are complaints from both lawyers and families of prisoners regarding the treatment of prisoners. Many reasons may be given for the treatment prisoners received but it should be unequivocally accepted that prisoners have human rights.
“Human rights are those minimal rights, which every individual must have against the State, or other public authority, by virtue of his being a ‘member of human family’ irrespective of any consideration”, Vinita Singh, Legal India.
The issues constantly raised about prisons are that majority of the prisoners are still under-going trial. Some have never been arraigned and are on purported remand while others do not have access to legal counsel. It is said that in some prisons, even when the court grants the suspect bail, prions authorities do not release them. Prisons are not allowed access to their lawyers, to their kin, even to medical aid. When a prison receives a visit, their visitors receive callous and insensitive attitude from the jailors which attitude is later transmitted to the prisoner through physical and mental torture. There are even allegations of corruption and other malpractices in our prisons.
Human rights are rights inherent to all people regardless of their nationality, race, colour, sex, tribe, religion, language or any other differentiating quality of humans. It is also the duty of every State to promote and protect all human rights and fundamental freedoms, regardless of their political, economic and cultural systems.
Human beings are born equal in dignity and rights. These are moral claims which are inalienable and inherent in all individuals by virtue of their humanity alone, irrespective of caste, colour, creed, and place of birth, sex, cultural difference or any other consideration. These claims are articulated and formulated in what is today known as human rights.
Who is a prisoner?
A prisoner is a person who is detained in legal custody pursuant to an order of a court of law. A prisoner is anyone whose liberty is curtailed, against their will. Liberty may be curtailed by means of confinement, captivity or forcible restraint. A prisoner may be on remand, or a convict serving their sentence.
Being a prisoner (whether on remand or a convict) does not mean that one’s fundamental rights are stripped or discarded.
Uganda’s criminal justice is based on the Constitution, the Penal Code, the Criminal Procedure Code, and other laws which define the crime and prescribe its punishment. Case law is also relevant in the adjudication of criminal matters. It is not provided for anywhere in the Constitution or in the statutes that when one commits a crime, he or she loses his human dignity. No wonder, across East Africa, it is an absolute and an unlimited right not to be subjected to cruel and inhuman treatment. – Despite one’s circumstances (except when one is dead), they do not lose their status as human beings. For example in developed jurisdictions, it is inhuman to handcuff a prisoner. It is only permitted in situations when the prisoner is violent, and as a means of ensuring security.
It is therefore essential for the state to ensure that every individual, including prisoners live a dignified life.
Rights of prisoners
Some of the basic rights of prisoners include: the right to food and drink; the right not to be harassed, intimidated and bullied; the right to be in contact with their kin and the right to be in contact with their legal counsel
I have previously written about the rights of an accused person as provided for in law. The rights of an accused person in the given circumstanced may be the rights of a prisoner. My colleague has also previously written about the fact that prisoners have a right to vote.
A prisoner has the right not be convicted of the same crime, twice. In law it is called double jeopardy. A prisoner has the right to testify against themselves. As such a prisoner cannot be compelled to be a witness in their own case. The right against self-incrimination is given under this right.
Prisoners on remand have the right to a speedy trial and fair hearing. This right is meant to facilitate a just, fair and reasonable procedure. It is in the interest of the public that the guilt or innocence of the accused is determined as quickly as possible. The fair hearing right entitles the prisoner to legal representation. It also involves the right to cross examine his accusers.
The right to equality also extends to prisoners. They must receive equal treatment before the law.
It is the duty of the state to ensure that a prisoner enjoys these rights. The state ensures this through many of its organs including the police, the courts of law, the prison authorities and others.
The judiciary for example, ensures that when a person is on trial for a crime that may attract a life or death sentence, he or she is assigned counsel to represent them during the proceedings. This is the cab rank rule.
Imprisonment is punishment, but it is also rehabilitative. Imprisonment does not take away one’s citizens status; neither does it take away one’s human being status. Reports about violation of the basic human rights such as custodial deaths, physical violence/torture, police excess, degrading treatment, custodial rape, poor quality of food, lack of water supply, poor health system support, not producing the prisoners to the court, unjustified prolonged incarceration, and forced labour have no place in an emerging criminal justice system. All state organs involved in the administration of justice must condemn this.
Over time, there have been no tangible efforts to make the life of prisoners basically bearable. Last week, a colleague wrote an article on a report about prison life in Uganda and the details of the report were harrowing. Early this week, in the news, a city lawyer was pointing out how when a client gave him instructions, prison authorities did not allow him to get in touch with his client, the prisoner. All these are shameful happenings.
Prisoners are human beings. The enjoyment of their human rights should not even be negotiable. The state must take up their duty and ensure that human rights are enjoyed by all people. Prison audits should be carried out to ascertain the extent of human rights violations. This will help to cure any ills identified. Prisoners should be involved in the audit. Permanent legal aid offices should be established at prisons all over the country to avail legal counsel to prisoners. These legal aid offices can even be used to report any human rights abuses. An effort to decongest prisons must also be made. Too many inmates are not easy to manage for a facility which was constructed to handle a lesser number of inmates. Congestion may even be the reason why prison authorities curtail the enjoyment of the prisoners’ rights; in a bid to manage the large numbers. Prisoners must be let to enjoy their human rights.
BY SAMALI BITALA
This article appears in our digital law newsletter, The Deuteronomy Vol 4, Issue 1 of April 7th 2017
To receive The Deuteronomy in real time, click HERE