THE BEST PRACTICES IN THE PROTECTION AND PROMOTION OF PRISONERS’ RIGHTS

This paper was authored by the blog owner, Vincent Nuwagaba for Mr JK Zirabamuzale
THE BEST PRACTICES IN THE PROTECTION AND PROMOTION OF PRISONERS’ RIGHTS



AT THE FORUM TO DISCUSS THE RIGHTS OF DETAINEES






PRESENTED BY UGANDA PRISONERS’ AID FOUNDATION AT THE FORUM ORGANISED BY UGANDA HUMAN RIGHTS COMMISSION
ON TUESDAY 21ST JUNE 2011 AT MOSA COURTS



PRESENTED BY
JK ZIRABAMUZALE
Chairman UPAF 
Best Practices in the Protection and Promotion of Prisoners’ Rights
The chairperson,
Distinguished guests,
Workshop Participants
Ladies and gentlemen,
All protocol observed.
1.0 Introduction
I feel honoured to have been invited to address this distinguished forum to present the “Best Practices in the protection and promotion of prisoners’ rights”. I appreciate the invitation and extend my sincere gratitude to UHRC.
The topic for which I have been invited to talk about is designed to elicit the experience which has been gained in the process of rehabilitating and defending prisoners and ex-prisoners. The expectation is that Uganda Prisoners’ Aid Foundation’s input would impact perfectly on the topic. True, the Foundation can do justice to the topic as given because of the lessons learnt, and challenges faced in the course of conducting her objectives; what it takes in terms of resources - material, technical, financial, and human to do the work.
In my presentation, I use the words prisoners, inmates and detainees interchangeably.
From the outset, let me state that the Foundation has a lot to say with permission from our sources especially the practice at home (Uganda).
• How do we arrest?
• How do we prosecute?
• How do we imprison?
• How do we rehabilitate prisoners?
• How do we reintegrate ex-prisoners?
In cases that are or look political, we all know we arrest, prosecute and sentence at the same time. Personally, I don’t remember which video footage I watched on TV – whether that of my uncle by then in the ministry of internal affairs or that of the private media. And I don’t know which one was edited. The point, however, is that I saw on TV; a person arrested, prosecuted and sentenced to Nairobi Hospital.
These remarks now bring me to the history of the efforts to promote and protect the rights of the prisoners. The UN took the lead in calling for cooperation when it stipulated in Article 1(3) of the charter that one of its major purposes was to achieve international cooperation ……..in promoting and encouraging respect for human rights and the fundamental freedoms for all without distinction as to race, sex, language or religion.
The African Charter on Human and People’s Rights (ACHPR) which came into effect in 1986 enjoins the African Commission on Human and People’s Rights to cooperate with other African and international institutions concerned with the promotion and protection of human and people’s rights.
In Uganda, we are used to a situation where people cite the constitution selectively and deliberately avoid the comprehensive provisions of the constitution. The article often selectively cited is article 43 and I found it prudent to reproduce it here in full:
Article 43 General limitation on fundamental and other human rights and freedoms.
(1) In the enjoyment of the rights and freedoms prescribed in this Chapter, no
person shall prejudice the fundamental or other human rights and freedoms of
others or the public interest.
(2) Public interest under this article shall not permit
(a) political persecution;
(b) detention without trial,
(c) any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.

1.1 Background
Krieglar (1993) defined imprisonment as the admission, locking up and detention of a person in a prescribed place mostly prison but also police cells until he/she is lawfully released.
A person may be imprisoned as a sentence imposed by court, as a suspect before trial or for a civil debt in countries where it is allowed by law (under the Civil Procedure Act and the rules of Uganda it is allowed).
The purpose and justification of the sentence of imprisonment is ultimately to protect society against crime and rehabilitation of the offender. This end can only be achieved if the period of imprisonment is used to ensure so far as possible that upon return to society, an offender is not only willing but also able to lead a law-abiding and self-supporting life. Thus, this requires, the prison authorities to utilise all remedial, educational, moral, spiritual and other forms of assistance which are appropriate and available and should seek to apply them accordingly to the treatment of individual needs of prisoners and ensure that they reform. It is thus, desirable that before completion of sentence, to the convicted prisoners, the necessary steps be taken to ensure gradual return of the prisoner to life in society.
1.2 The International Legal Regime on the Protection of Prisoners’ Rights
The Universal Declaration of Human Rights (1948) provides in its preamble that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.
The declaration in its article 1 and 2 provides that all human beings are born free and equal in dignity and rights and that everyone is entitled to all rights and freedoms set forth in the declaration without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, birth or other status.
The International Covenant on Civil and Political Rights also recognises the fact that human rights derive from the inherent dignity of the human person. In its article 9, the covenant provides that everyone has the right, liberty and security of person and that anyone arrested shall be promptly informed of any charges against him and shall be taken before the court of law as soon as possible. Article 10 provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
The UN Convention against Torture, Inhuman and Degrading Treatment or Punishment, the African Charter on Human and People’s Rights and other instruments also give provisions for the protection and promotion of the prisoners’ rights. The legal/human rights instruments are in no way exhaustive in my presentation.
It is worth noting that once a country has ratified and domesticated these instruments which Uganda has done, it is bound by the provisions thereof and therefore, its citizens are entitled to those rights.
1.3 The Domestic Legal Regime for the Promotion and Protection of Prisoners’ Rights
The foremost domestic instrument is the Constitution of the Republic of Uganda, 1995 (as amended). The Constitution is a supreme law of the land and provides for the bill of rights in chapter 4. The bill of rights contains the rights of every person and is against discrimination. Objective XXVIII of the Constitution provides that Uganda’s foreign policy shall be based on the principle of respect for international law and treaty obligations. Accordingly, Uganda should conform to the international human rights standards in the treatment of prisoners.
Article 23 of the Constitution provides for the protection of personal liberty. It requires a person arrested to be kept in a place authorized by law, to be informed immediately in the language he understands, the reasons for his arrest and to be brought before the court of law within 48 hours from the time of his/her arrest and to have the right to apply to be released on bail.
These constitutional guarantees together with other laws such as the Prisons Act and the Police Act provide for the rights of detainees but the only problem has been lack of implementation and enforcement of these rights.
1.4 Best Practices in the Protection and Promotion of Prisoners’ Rights
Like we have stated in the foregoing, we don’t suffer a dearth of human rights or legal instruments for the protection and promotion of prisoners’ rights. Rather, it is the enforcement and implementation that have eluded us. The best practices are the practices that conform to the international standards in the promotion and protection of the rights of prisoners and we point out some hereunder.
Prisoners’ right to health and provision of medical care: The right to health and medical care is provided for in article 25 of the UDHR and several other international human rights standards. The prisoners especially in rural prisons in Uganda are denied this fundamental right and this has always led to the death of many prisoners especially those on the prison sentence. There is need to ensure that prisoners have regular access to doctors to treat their illnesses and most importantly those with HIV/AIDS should be provided with free anti-retroviral therapy (ART). This is the practice in South Africa where the court recently stated that it is a violation of prisoners’ right to life to deny them the right to medical care and ART merely on economic grounds.
The practice in Uganda is that many prisoners like any other Ugandans die out of neglect. There is one prison referral hospital in Murchison Bay Prison (and if there is any other referral Hospital I stand to be corrected) and a number of patients who are referred there on medical grounds die. I have learnt that there happen to be prisoners with complicated diseases such as cardiovascular ailments who suffer from prisons and government doesn’t do a lot to help them.
Avoiding solitary confinement of prisoners as a punishment: The best practices require that the use of solitary confinement of prisoners as a form of punishment should be avoided as it violates the rights of the prisoners unless the conditions make it necessary. The practice here in Uganda is that we have “safe houses”, how safe they are, I don’t know. Some people call them torture chambers. I have also learnt that in prisons there are solitary cells wherein sometimes the prisons’ authorities lock some prisoners. This is an affront on human dignity which is the bedrock of human rights.
Freedom from Torture, inhuman and degrading treatment or punishment: Article 24 of the Constitution clearly spells out that nobody shall be subjected to torture, inhuman and degrading treatment or punishment. Article 44 makes freedom from torture, inhuman and degrading treatment or punishment a non-derogable (absolute) right. However, what is on ground is that right from the time of arrest; pretrial detainees are tortured by the low-ranking intelligence and police officers in an attempt to extract confession. Torture is also highly pronounced in the prison farms. Examples of ex-prisoners who have been tortured and ended up losing their limbs abound. The Police cells have also been turned into torture chambers. In fact with the police it is worse. We have reported in our Prisoner Magazine about cases where the police illegally arrest people; detain them incommunicado for a number of days, subject them to untold suffering which include physical, psychological and mental torture and later instead of taking them to court they send them to a mental hospital – Butabika to subject them to further pharmacological torture. In such a case, the right to a fair hearing is violated; the right to the writ of habeas corpus is violated; the right of the detainee to access a counsel and his family is violated; the right to freedom from torture, inhuman and degrading treatment or punishment is also violated. We need to note that the right to a fair hearing; freedom from torture, inhuman and degrading treatment or punishment and the right to the writ of habeas corpus are ABSOLUTE RIGHTS. Shockingly, they are flagrantly violated with impunity. Uganda should abide by the UN Convention against Torture which it signed and ratified.
Convicted prisoners should be confined in different facilities from the remands and remands should be allowed to wear their own clothes or dress differently from the convicts. This promotes the presumption of innocence enshrined in article 28 of our constitution. The practice is that when you enter any prison facility, it becomes difficult to distinguish between the remands and convicts.
Speedy and fair trial should be promoted in order to avoid the long pretrial detention. The judicial institutions should be strengthened in order to handle criminal cases faster and this will help to reduce congestion in prisons that have the effect of leading to the high rate of disease outbreak in prison facilities.
Congestion in prisons is also another issue. The prison facilities often have the numbers far beyond their carrying capacities. In a bid to reduce on congestion, community service as a sentence has been introduced but it needs to be strongly emphasized. Many offenders charged with misdemeanors could be sentenced to community service and not custodial sentences.
Right to a clean and healthy environment: This right should be promoted. This right is guaranteed by the constitution and the fact of imprisonment shouldn’t take away this right. Most of the prisons and police cells across the country especially upcountry prisons and police cells are in a deplorable state.
Efforts should be made to enable the prisoners to undertake meaningful remunerable employment which will facilitate their reintegration into the country’s labour market and permit them to contribute to their own financial support.
The right to bail should be promoted and respected. Once the mandatory period of pretrial detention elapses, the prisoners should be granted automatic bail pending the hearing of their cases. The practice on the ground is that many pretrial detainees languish in jail way beyond their maximum pretrial period. This is a clear violation of the prisoners’ rights and should be castigated. In fact, there are magistrates who have turned it into a business to offer bail in exchange for money. Where that one leaves the poor is food for thought.
The right of prisoners to regularly consult with their legal counsel should be promoted and protected. In some cases, detainees are denied this right especially in what police often calls sensitive cases and this undermines the principles of democracy that promotes the rule of law and observance of human rights.
Juvenile offenders are in many cases detained in the police cells for many days and sometimes they are even taken to prisons. One wonders how juveniles end up in prisons when the prisons receive their clients from the courts of law. There are reports about juveniles who in the recent past have been kept in Murchison Bay prison. This is a clear violation of the standard minimum rules for the protection of juvenile offenders.
Female inmates should be accorded special protection. They should only be supervised by female officers and their reproductive rights should be upheld. Special assistance should be accorded to pregnant and breastfeeding mothers and special care ought to be extended to the babies. We are yet to know whether there is any special care given in this regard.

1.5 Conclusion
The fact that we are doing poorly in terms of the respect for prisoners’ rights is evident. Many human rights groups including the Uganda Human Rights Commission may however, not be aware of the gravity of this situation. This is partly because human rights groups don’t make impromptu visits to the prisons, police cells and prison farms. As we talk about prisoners’ rights right now, you may be shocked to find that there are inmates who have spent a month or two months in police cells without any charges preferred against them. The worst human rights violations are perpetrated by the police. As soon as a suspect is arrested, he/she is deprived of his/her phone. Ultimately cases of incommunicado detention, detention without trial, denial of the right to a fair hearing, denial of the writ of habeas corpus, violation of the right to freedom from torture, inhuman and degrading treatment are all rife. This doesn’t happen because the police are not trained in human rights. In fact, there are various booklets that have been developed for the police but they choose to disregard them. What is clear is that the culture of impunity has developed in Uganda and it’s highly pronounced among the police officers.
While we have the laws in place that provide for the observance of the rights of the prisoners, there is a mismatch between the laws and the practice. I know the Police Force has a Professional Standards’ Unit in place. But I have learnt of various cases where people report their ordeals to the Professional Standards’ Unit only to be disappointed further. We have a multitude of laws and institutions but their efficacy is wanting.
1.6 Way forward
In order to have the rights of prisoners protected and promoted, there’s need for stronger ties between the judiciary, the prison authorities and civil society to promote awareness of these rights.
There’s need to repeal domestic laws that could be a stumbling block to prisoners’ rights and domesticate all international laws that promote prisoners’ rights.
Continuous sensitization of the prison authorities and police is needed to promote awareness of prisoners’ rights. It should be emphasized that prisoners are first and foremost human beings with inherent rights to human dignity.
Prisoners also need to be sensitised about their rights and equipped with tools to defend them. This is what the UHRC can do in concert with human rights Civil Society Organisations. We thank the Judicial Service Commission for the countrywide awareness programmes to the prisoners about their rights but more efforts are still needed.
Prisoners should be empowered to report to the judiciary cases of the violation of their rights and the principle of confidentiality should be observed by those people they report to. Culprits should also be expeditiously punished to avoid the culture of impunity.
The prison authorities should be adequately facilitated to ensure the prisoners reach courts of law in time. Sometimes suspects fail to reach courts in time because of logistical challenges. The prisons’ welfare department should be given priority in as far as financing is concerned to enrich the would be activities in prison meant for rehabilitation and reintegration of prisoners.
Finally, we are gravely concerned about the mismatch between what the heads of institutions say and what they do. The IGP goes on radio and television and pronounces that he has stopped the use of teargas; yet the following day we see tear gas being used. What exactly does that mean? As long as long as institutions we have don’t develop the political will to respect the laws we have, prisoners’ rights and human rights generally will remain a far cry on paper.
Allow me to end with the Foundation motto, “We are all potential prisoners”. For God and my country.