Prisoners up in arms

Prisoners who endure dehumanising confinement conditions following the doubling of prison population have resolved to drag government to court for contempt following its failure to abide by a 2009 order to improve the situation.

Should they prove their case, Minister of Home Affairs and chief commissioner of prisons are likely to be committed to prison for contempt.

The Constitutional Court in 2009 ordered government to reduce the number of inmates by half.

But about five years down the line, the number has doubled from around 7 000 to 14 000.

This has forced most inmates to spend their entire sentences sleeping in a sitting position due to heavy congestion in most prison cells.

Government has, however, said it is doing everything to comply with the order.

Human rights at stake

In this court matter, the prisoners complained that they were deprived of their basic human rights and they famously won the case against the Attorney General (AG).

The court also ordered improvement of their health care, reduction of the congestion by half and a provision of at least two meals per day.

But according to the Prison Inspectorate, health care is still appalling, prisoners continue to experience poor diet and clothing, which government is obliged to provide.

The prisoners, due to the congestion according to the Prison Inspectorate, are exposed to diseases such as tuberculosis (TB), measles, meningitis and other communicable diseases, especially during hot months.

The prisoners’ lawyer Ambokire Salimu said in an interview although the matter required political intervention, his clients will be left with no option, but to file for contempt of court against the responsible officers.

Salimu, who represented Gable Masangano, an inmate, and other prisoners, said the inmates were initially hesitant to file for contempt of court against responsible officers who, if found guilty, may end up being committed to prison for “say, seven or 14 days”. Instead, they tried to engage government on the matter.

Bad signals

The lawyer said he had to deal with five AGs and other relevant officers from 2009, but all he was getting were assurances.

Salimu said: “We are trying to push for enforcement, which will imply contempt of court. The court, among other specific orders, ordered Parliament to provide enough resources to address the problems.

“But the conditions in prisons have not improved. We are talking of the rule of law here, which is equality and government cannot choose to comply with certain judgements and defy others.”

Salimu disclosed that when Uladi Mussa was Home Affairs minister during People’s Party (PP) administration, he told him that government then required K43 billion to comply with the court order, an amount the lawyer said government can afford.

He said government was sending bad signals in observance of human rights, invoking a famous quote that “the degree of civilisation in a society can be judged by entering its prisons”.

He said the courts have not helped much in reducing congestion in prisons because they are not sentencing people to community service even for those with minor offences.

Malawi Law Society (MLS) secretary Khumbo Soko said the standards of the non-compliance complained of in the Masangano case were ‘minimum’ standards.

He said in a response to a questionnaire that this meant that authorities were not permitted to go below them in the treatment of prisoners.

Soko said: “The often-cited excuse of paucity of resources was fully canvassed before the court in the Masangano case and was rejected. It is perhaps the case that it can similarly not be successfully raised today, considering that these are minimum standards.

“Even if one accepts the argument that these are rights that must be progressively realised, it places an obligation on the duty holders to ensure that they are indeed taking incremental steps to meet their obligations.”

He said if an unsuccessful litigant forms the opinion that he or she cannot fully comply with a decision of the court, it is only appropriate to seek the court’s indulgence that the time for compliance be extended.

Soko said: “As the court observes in the Masangano case, the Legislature should see to it that the laws it passes are capable of enforcement and the only way this can be done in the present case is through adequate resourcing of the prison service.”

Govt’s take

AG Kalekeni Kaphale said in an interview his office gets reports from Home Affairs Ministry on the progress being made to comply with the court’s decision, arguing government was working hard to comply with the order.

Kaphale, however, argued that reducing the number of prisoners by half was not the responsibility of government because the Judiciary, which sends people to jail, is an independent arm.

Kaphale said: “What the Executive can do is to increase capacity of prisons. The report I have from Ministry of Home Affairs shows there is progress in that area and something is being done.”

Minister of Home Affairs Paul Chibingu said in a separate interview government was doing everything possible to comply with the court’s decision.

Chibingu said interventions taken include construction of new prison cells at Maula Prison in Lilongwe and in Mzuzu, and construction of a modern prison in Mzimba.

On food, Chibingu said government wants prisoners to have at least two meals a day as the court ordered, but argued the problem was that the inmates are too many and that Malawi faces economic hardship following donor aid withdrawal.

Chairperson of the Prison Inspectorate judge Ken Manda said the Inspectorate has since formed a strategic committee to find ways of how they can deal with congestion in prisons. n