torture

Freedom from torture, degrading punishment, cruel and inhuman treatment

The country, Kenya was shocked when on Thursday March 2nd 2017; the Daily Nation published a story telling of the harrowing torture stories at Alliance High School, the top school in the country.

Form one students are usually subjected to torture in initiation ceremonies. The torture involves making students “swim” on grass, being beaten with electric cables, stick, being slapped and being forced to lie on the graves of the founders of the school. Well, the story sounds strange but it is undoubtedly true. This is because according to the daily nation, this torture is master minded by prefects (student leaders) and that the school administration is always in the know of the schedule of what is referred to as “action nights” or “induction sessions”

The story in the Daily nation bears a picture of a form one student displaying his clothes which are drenched in blood from when he was beaten by prefects at school. The student is also depicted standing with a walking aid, as if one of his legs is impaired. One can well assume that the impairment was borne from the torture sessions.

In the same school, a case of cruel and inhuman treatment is in the reports of form one students missing meals. This stems from the fact that the dining hall does not have enough cutlery which when it is time for meals, all the cutlery is taken by the older boys who also eat all the food. It was also reported that “the school had regular days for punishment parades and action nights in which the new students would be beaten up until midnight” –what cruelty!

The story is very disheartening. It is very heartbreaking. You cannot believe how young people can be cruel, how young people can torture their colleagues like that. It is also very worrying because this is one of the top schools in the country. One cannot help but wonder what goes on in other schools which have never got coverage in a national newspaper.

I presume that the school has a code of conduct that binds all students and that the code strictly bars all forms of bullying. What then has become of our society? The young clearly disregard a simple student code of conduct while the school management does nothing about it. More so, the disregard of the code of conduct is by student leaders. What kind of citizens is the nation raising? What kind of leaders shall we have in future? And why would the school administration condone such cruelty?

What is torture?

Torture is the infliction of serious suffering on a person. It may be mental, physical or even emotional. It is sometimes a combination of all the three. It does not matter if that suffering is meted on a person through the execution of a sentence. If a person suffers in the execution of a sentence, then it goes without saying that that sentence is unlawful. However, this is not to say that sentences or punishments should be sweet and smooth.

What is inhuman and degrading treatment?

Inhuman and degrading treatment has a broad definition. It varies subject to the person in issue. Factors of a person’s upbringing, profession, cultural background are all relevant in defining what inhuman degrading treatment is.  It is therefore important to note that what a person perceives as inhuman and degrading is what is inhuman and degrading. The perception made by a victim may be a different one from one another person holds in the same circumstances.

Inhuman and degrading treatment is not as severe as torture. But it may be similar in some ways. In a way, inhuman and degrading treatment is similar to an assault. –it causes the victim to be scared for their life; it puts them in a situation of fear.  It may be physical, it may be mental.

Interpretation of the right to freedom from torture

When interpreting the law on freedom from torture, human rights courts often apply the law strictly. Cases of torture and degrading treatment often revolve around:

  1. Treatment of prisoners in police cells
  2. Deportation of illegal immigrants
  3. Sentences by court or a quasi – judicial body
  4. Treatment received by patients in hospital
  5. Cases of bullying in schools
  6. Punishments administered to students in schools
  7. Failure of public bodies to prevent abuse of a child

A public authority, or someone higher up a chain of command, could be held to be liable for a breach of this right even if they did not carry it out themselves or were unaware of it. So fundamental is this human right, and the duty to uphold it, that it is possible that a failure to take positive action to prevent a breach could amount to liability.

We have previously written about freedom from torture.

Sometimes though there is need to restate these things. Freedom from torture is a non derogable right. It cannot be limited under any circumstances. That means that no person shall be tortured. No person shall be treated in a cruel way. No person shall be given a degrading punishment. No person shall be treated in an inhuman way. No one, never, ever.  This is confirmed by the Constitutional provision in the Constitution of Kenya 2010 (the Constitution) under Article 25, which states that “Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited—

(a) freedom from torture and cruel, inhuman or degrading treatment or punishment…”

More so, the Constitution under article 29 guarantees the right to freedom from torture. It states that

“Every person has the right to freedom and security of the person, which includes the right not to be—

 …

(c) subjected to any form of violence from either public or private sources;

(d) subjected to torture in any manner, whether physical or psychological;

(e) subjected to corporal punishment; or 

(f) treated or punished in a cruel, inhuman or degrading manner”

What the must be done to curb on the cases of torture?

Edmund Burke said, “all that is necessary for evil to thrive is for good men to do nothing”. We must therefore condemn torture and other forms of inhuman treatment. This condemnation must come from all law enforcers, all public officers and all officers of the court.

Corporal punishments should be abolished in schools. No child should be whipped or subjected to any form of torture by a teacher or school prefect.

Prisoners should have the right to be visited by the legal counsel and their family or next of kin regularly. That way, their state of being can easily be monitored by those who care about them. It is the people who care who are most likely to report the prisoners’ torture.

Safe houses and secret detention facilities should be abolished. Prisons and police stations should be gazette and sanctioned by the relevant authorities. When cases of missing persons under suspicious circumstances are reported, effective judicial remedies should be available, to help trace those who have disappeared.

When carrying out arrests, and when in custody, suspects and prisoners should be informed of their rights. For example, they should be informed of the right to have a lawyer present during interrogation, to lodge a complaint for mistreatment and to have a judicial officer adjudicate in the case against them.

Prison facilities should confirm to acceptable standards. Persons with special needs should be well catered for in their holding cells and in toilet facilities. Holding cells for women and men should be separate. Mothers (female prisoners with children who are born in prison or those who are breastfeeding their babies in prison) should be given special accommodation.

Investigations into allegations of torture should be takes with all seriousness, especially by law enforcement bodies. The “all seriousness” involves timely and impartial investigations of the perpetrators. Where a person in a public office is suspected of committing torture, he or she should step aside, only for investigation purposes. Means of protecting witnesses should also be well used to ensure that they are protected from intimidation.

Investigations should of course be made with a view to prosecute. Often, even after investigations have been made, the defence easily trumps the prosecution simply because of poor and insufficient evidence, wrongly drafted charge sheets, and shoddy investigations.

When it comes to time for prosecution, those suspected should be brought to justice. It should not matter who is indicted. If it is a public official, a relative to those in powers that be, their prosecution must happen. The trial process must be followed and undue delays should be discouraged.

In protection of prisoners and to discourage the use of torture, confessions procured after torture of a prisoner should not be admitted in court.

Law enforcers involved in the handling of arrests, custody and interrogation of suspects/prisoners should be trained on how to handle cases before them.

Conclusion

It is the duty of the government to ensure that no person is subjected to torture. In compliance with its duty, the government should investigate these claims and prosecute all the offenders.

The affected students should be availed specialized medical care, counseling and rehabilitation. The school systems should be over hauled to make sure that no cases of bullying are repeated in the school.

BY SAMALI BITALA

This article appears in our digital law magazine, The Deuteronomy Vol 3, Issue 1 of March 3rd 2017

To receive The Deuteronomy in real time, click HERE

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