The Malawi Human Rights Commission, “the
Commission” learnt from a radio broadcast on Zodiak Broadcasting Station that
alleged that four prisoners had died at
Maula Prison in Lilongwe because of food shortage at the facility.
The Commission sent its investigators
immediately to verify the allegations with reference to its constitutional
mandate of protecting human rights and
investigating human rights violations.
2.0 Jurisdiction / Justification
Section 129 of the Constitution of the Republic
of Malawi “the Constitution” establishes the Commission with the primary
functions of protecting human rights and investigating violations of human
rights. Further to this, Section 130 of the Constitution, states that – the
Commission shall with respect to the applications of an individual or class of
persons, or on its own motion, have such powers of investigation and
recommendation as are reasonably necessary for the effective promotion of the
rights conferred by or under this Constitution, or any other written law.
However, the Constitution clearly states that, the Commission shall not
exercise a judicial or legislative function and shall not be given powers to do
so.
Further to the
constitutional mandate, Section 15 (a) of the Human Rights Commission Act,
(Chapter 3:08 of the Laws of Malawi), states that the Commission shall freely
and without any hindrance whatsoever consider any question falling within its
competence; Section 15 (b) states that the Commission shall hear any person and
obtain information or any other evidence necessary for assessing situations
falling within its competence and (c) gives power to the Commission to carry
out investigations, for the protection and promotion of human rights and to
prepare reports on such matters and submit the reports with such observations
and recommendations or observations as the Commission considers appropriate to
the authorities concerned or to any other appropriate authorities. Section 14
(d) states that the Commission shall have the following responsibilities - to
comment publicly or as it sees fit on any general or specific situation of
violation of human rights and to recommend initiatives or measures to put an
end to such situation. Section 15 (d)
gives the Commission powers to exercise unhindered authority to visit prisons
or any place of detention of persons including police cells, with or without
notice.
It is therefore
with reference to these legal provisions that the Commission has initiated
investigations into these matters or allegations.
3.0 Objectives
The Commission investigated the matter with the
aim of:
(a) establishing the truth
behind the allegations that prisoners were dying because of hunger at Maula
Prison;
(b) finding out the real
situation as regards the shortage or availability of food at the facility; and
(c) assessing the situation
in the prison with reference to the allegations made by the radio article.
4.0 Methodology
The Commission interviewed prison officials (these
included Mr. Lameck Banda the Officer-in-Charge, the Station Officer Mtela and
the Disciplinary Officer Mr Nsini)and there presentatives of prisoners from all
the divisions at the Maula Prison (these included sentenced prisoners and all
those on remand on the 24th December 2013). The investigators went
around the prison cells and visited the kitchen and the storage facility at
Maula Prison.
5.0 Findings
The investigations established the following:
(a) There were no deaths of
prisoners emanating from the alleged shortage of food at Maula Prison. The only
reported death was that of a prisoner who was said to have been refusing to
take medication, but was reportedly put on Anti-retroviral therapy (ART) at
least a week before the allegations of the death of prisoners due to hunger
were made; (The inmate who died is a sixty year old Buziel Kapalamula who died
after a long illness on 14th December 2013).
(b) There was indeed a
challenge of the shortage of food at the facility, due to low supplies of
Maize. However, the stores of the facility had bags of Beans.The prison
authorities informed the Commission’s investigators that this too was running low
and that if it was not re-stocked within the week, the facility would
completely run out of food;
(c) The Maula inmates and
prison authorities informed the investigators that the facility had no food supplies
(maize) for three days – these being Friday 21st, Saturday 22ndand
Sunday 23rd December 2013. However, the Disciplinary Officer at the
facility reportedly went around the whole facility advising all prisoners about
the situation on the ground, assuring them that the situation was to be solved
very soon. The facility’s 2, 223 inmates were confirmed to have indeed spent
three days without food. On these three days, they reported that they were actually
surviving on food / meals brought to facility by relatives or well-wishers such
as the Catholic Women’s Organisation of the Maula Deanery and the faithful from
the Anglican community;
(d) Food supplies’ shortages
had reportedly also been exacerbated by lack of fuel for the Malawi Prison
Service vehicles which are used to ferry firewood for cooking and food stuffs.
This was highlighted to have been the result of the erratic funding to the
Prison and particularly the fact that there was no funding for December 2013 to
the facility;
(e) The food shortage was
also attributed to delays in paying the suppliers of foodstuffs, particularly maize.As
such, the suppliers are reportedlyno longerwilling to be supplying the facility
without being paid.
(f) The prison authorities
were reported to be engaged in negotiationswith ADMARC to supply them with
Maize.
(g) It was learnt that the African
Bible College (ABC) Clinic hadbeen ferrying and treating prisoners (sick
inmates) for two days, because of lack of fuel at the facility.
6.0 Law and Regulations
Section 16 of the Constitution guarantees the
right to life and further states that no person shall be arbitrarily deprived
of his or her life. Further to this, Section 19 (1) provides that the dignity
of all persons shall be inviolable. Subsection (3) states that no person shall
be subject to torture of any kind or to cruel, inhuman or degrading treatment
or punishment.
Section 45 (2) of the Constitution states that
there shall be no derogation with regard to (a) the right to life; (b) the
prohibition of torture and cruel, inhuman or degrading treatment or punishment.
Section 42
(1)(b) of the Republic of Malawi Constitution provides that every person who is
detained, including every sentenced prisoner shall have the right to be
detained under conditions consistent with human dignity, which shall include at
least the provision of reading and writing materials, adequate nutrition and
medical treatment at the expense of the State.
The Regulations
under the Prisons Act Cap 9:02 of the Laws of Malawi are in tandem with the
Standard Minimum
Rules for the Treatment of Prisoners as adopted by the First United Nations
Congress on the Prevention of Crime and the Treatment of Offenders (1955) and
approved by the United Nations Economic and Social Council 1957. However, what
happens in reality is the opposite of what the law provides. Insufficient or
total lack of ordinary diet which only comprises maize meal (nsima) and peas or
beans is contrary to the 3rd Schedule of the Prison Regulations in
the Prisons Act Cap 9:02 of the Laws of Malawi.
The judgement of Masangano versus the Attorney
General and Others (Case No. 15 of 2007) Judgement No. 31[1]should
be referred to in order to appreciate the seriousness of the matters at hand.
7.0 Analysis of Findings and Law
The Government has the primary responsibility to
feed and take care of prisoners in its custody. If prisoners are not fed, or if
they are not given treatment when they are sick, one would simply conclude that
this is in a way someform of torture, cruel and inhuman treatment to inmates.
The Government by erratically funding the prison
facility is failing in its primary obligation to promote and protect the
prisoners’ rights to health and life. It should be appreciated that such
inconsistent and erratic funding contributes greatly to suppliers not being
paid and the facility running short of foodstuff.
The law as reflected in the Prison Regulations
is not a mere aspiration which has to be progressively attained, nor is it the
ideal that the law represents. It is in fact the minimum requirement. The
framers of the law setting the minimum standards surely must have known that
the minimum standards are achievable and must be achieved. No one should be
allowed to disobey the law merely on the ground that he or she does not have
sufficient resources to enable them obey the law and fulfill their obligations under
the law. The minimum standards place an obligation on the duty bearer to meet
those standards and not to bring excuses for not complying with those
standards.
8.0 Recommendation
1. The Government should
immediately come to the rescue of the situation by timely and adequately
funding the Prison Service Department. The situation on the ground should not
be allowed to deteriorate to the point of letting well-wishers and relatives
feeding the prisoners and private institutions like the ABC ferrying and medically
treating the prisoners instead of the Government taking this as its primary
responsibility.
2. The Commission should
engage Government, through the Ministry of Home Affairs, to put in place a long
term strategy that should safeguard the issue of basic service delivery to
prisons, particularly in the areas of food, water, and health care. The
provision of these aspects of prisoners’ life cannot be relegated to well
wishers or private entities by Government, because prisoners by reason of their
confinement are entirely dependent on the Government for the provision of these
basic necessities. They cannot walk out of the confinement to fend for
themselves.
3. The Constitution
safeguards the fundamental right of the right to human dignity, as a
non-derogable right. It cannot be taken away even where prisoners are
concerned. Section 42 guarantees that prisoners will be confined in conditions
that respect their human dignity. The food shortage situation where prisoners
go without food for over three days is a critical human rights issue.
4. The Commission should
take up the issue of non-compliance of the judgment in Gable Masangano vs.
Attorney General through both legal and non-legal interventions.
9.0 Conclusion
The
Commission therefore concludes that there is an urgent need to address these
matters with speed and that funding to the facility should be consistent and
adequate. The Commission believes that,
by virtue of these findings, the Government is acting unconstitutionally and
unlawfully in that the prisoners’ non-derogable Constitutional rights not to be
subjected to torture, cruel, inhuman and degrading treatment or punishment have
been grossly violated. The mere fact that there has not been any death
resulting from shortage of food in the prison is therefore not to be an excuse
for being defensive on the issue.
[1]Judgement
date: 11 / 09 / 2009 in the High Court of Malawi – Lilongwe District Registry –
Gable Masangano suing the State on his own and on behalf of all prisoners in
Malawi. This is a judicial review.
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