NEWS: ZAMBIA SUPREME COURT UPHOLDS PRISONERS’ RIGHTS TO FOOD AND IMPROVED PRISON CONDITIONS

Salc : Anneke Meerkotter

Lusaka, 16 December 2019 – The Supreme Court of Zambia on 9 December 2019 handed down an important judgment on prisoners’ rights. The case was brought by two prisoners with HIV on antiretroviral treatment, who sought access to a balanced diet and improved prison conditions. Mambilima CJ, Malila and Kajimanga JJS, in the case of Mwanza and Another v Attorney General, held that the State was in continuous violation of the prisoners’ right to life, right to protection from inhuman and degrading treatment and right to special dietary needs as persons living with HIV.

The Supreme Court ordered the State to take immediate measures to decongest the Lusaka Central Correctional facility and increase the allocation of resources to the prison to improve the nutrition of prisoners. The Supreme Court ordered the State to report on the measures taken at the opening of each new court session.

“The applicants commenced this action in 2012, and we are delighted that this journey has come to an end with such a positive outcome, not only for our clients, but for all prisoners,” said Androphina Bubala from the Legal Resources Foundation (LRF). “We will work in tandem with the courts to ensure enforcement of the judgment.”

“The Supreme Court judgment is a great victory for human rights within the region and beyond on the recognition and protection of prisoners’ rights,” said Katindo Mwale, the applicants’ legal representative.

“We are thrilled by this judgment,” said Felix Mwanza from the Treatment Advocacy and Literacy Campaign. “The Supreme Court’s judgment shows significant appreciation for the health and dietary needs of prisoners with HIV and the impact that poor prison conditions have on their health.

“The Supreme Court’s judgment emphasizes that prison food and conditions of detention should not be used as a punitive measure against persons already deprived of their liberty. The judgment goes a long way towards recognizing the dignity of prisoners,” said Derrick Malumo, from the Prisoner Reintegration and Empowerment Organisation (PREO).

“The Supreme Court’s judgment has created important precedent on the right to life and freedom from inhuman and degrading treatment. Prison conditions throughout Southern Africa consistently violate prisoners’ rights and the Supreme Court has shown that courts have an important supervisory role to play in protecting prisoners’ rights,” said Anneke Meerkotter from the Southern Africa Litigation Centre.

The appellants were represented by Katindo Mwale from K Mwale & Company, holding brief for the Legal Resources Chambers.

Background to the case
In 2016, the High Court found that the congestion in Lusaka Central Prison (designed to accommodate 160 prisoners but then holding over 1100), resulted in inadequate space for prisoners to sleep, forcing them to spend nights either standing or sitting, with limited access to toilet facilities. The High Court further found that the food availed to prisoners were of insufficient quantity and lacking in nutritional value, and did not address the needs of ailing inmates. The High Court found that these conditions constituted rights violations, but that they were not justiciable, resulting in an appeal to the Supreme Court. The Supreme Court confirmed the High Court’s factual findings, but held that the prisoners’ rights were indeed justiciable and required protection from the courts.

Article 12 of the Constitution of Zambia guarantees the right to life. Although the appellants’ claims were premised on the right to food, which is not entrenched in the Constitution, the Supreme Court held that the right to life must be interpreted liberally and in accordance with human dignity. The Court found that the State had failed in its duties as prescribed by the common law and Prisons Act and Rules, by not providing a balanced meal for prisoners, and accordingly transgressed their right to life. The overcrowding, poor ventilation, disease, poor hygiene, and limited access to adequate health care, further posed a threat to their right to life.

Article 15 of the Constitution protects against inhuman and degrading treatment or punishment. The Supreme Court noted that “the right to humane treatment imposes a positive obligation on States intended to ensure the observance of minimum standards with regard to persons deprived of their liberty.” The Court held that the conditions under which prisoners were held at Lusaka Central Correctional facility constituted inhuman and degrading treatment or punishment.

For more information:
Androphina Bubala, Legal Resources Foundation, androphina@gmail.com, +260 977 619 393

Katindo Mwale, K Mwale & Company, katindo.mwale@kmwaleandcompany.com, +260 977 392 422

Felix Mwanza, Treatment Advocacy and Literacy Campaign, felimwa@yahoo.com, +260 977 565 645

Derrick Malumo, Prisoner Reintegration and Empowerment Organisation, derrickmalumo@gmail.com

Anneke Meerkotter, Southern Africa Litigation Centre, annekem@salc.org.za.

The judgment is available at:
https://www.southernafricalitigationcentre.org/wp-content/uploads/2019/12/SC-Judgment.pdf

ISSUED BY THE SALC, LRF, TALC AND PREO