August 2006
Prisoners Have Rights Too
By Madube Pasi Siyauya
One might ask the question do prisoners have rights and if they do what are these rights? The answer is yes. They do have rights and their detention is governed by the law.
By virture of them being offenders, prisoners are often neglected and their rights are abused by both government and society.
To be sentenced to prison in Zambia, you endure firstly the detention and separation from society, secondly the hardships, disease and congestion in prisons.
Legal Resources Foundation Lawyer Suzyo Ndovi gives an insight on the provision of the law in relation to prisons.
There are several categories of prisoners: remandees and convicts and in this group you may find juveniles, asylum seekers as well as prohibited immigrants.
It is a well known fact that once someone is detained they are immediately stripped of certain rights, which may include in some cases the right to freedom of movement as outlined in Article 22 of the Constitution.
Furthermore, certain prisoners who are condemned to death, are stripped of their right to life as guaranteed by Article 12 of the Constitution. Once someone has been detained and has not yet been convicted but is awaiting trial the law guarantees the right to personal liberty as well as protection of the law.
These rights are enshrined in Articles 13 and 18 of the Constitution, which are meant to ensure that a detained person is accorded a speedy and fair trial.
Furthermore, Articles 15 of the Constitution guarantees protection from inhuman treatment. Therefore, prisoners like all other persons are not to be subjected to any form of in-human treatment and any form of torture is outlawed.
Currently in Zambia, the right to speedy trail is violated. According to Webster Shamuyobwe who was remanded at Lusaka Central Prison from November 2005 to July 2006, a number of prisoners stay for three to four years without appearing in court.
He said some remadees have never even been in a courtroom they are taken straight from a police station to prison. He said some of them have never been to court from as far back as 2002. Shamuyobwe said a cell that is supposed to accommodate 39 inmates, has 120.
Legal Resources Foundation paralegal in-charge-of prisons Mwaanga Malambo confirmed that it was common nowadays for a prisoner to be taken to court but does not appear in court.
Malambo said all the arresting officer and prosecutors do is take a warrant to a magistrate who will sign it and the suspect will be taken to prison.
He said in normal circumstances what should happen is that when an accused is arrested, from the police station; the suspect has to appear before a court. The charge must be read to them and the magistrate must sign the warrant of detention.
He said the current trend is the reason why people stay in prison for many years without appearing in court.
“When these people come to LRF for help and we follow up the matter, they will take the same warrant to the magistrate and it will be extended with out the person appearing in court,” Malambo said.
Ndovi says Section 55 of the Prisons Act outlines the instances when someone may be detained as a prisoner. It states that: No person shall be admitted into a prison unless under the authority of and accompanied by a remand warrant, order of detention, warrant of conviction or of committal under the hand of any person authorised to sign or countersign any such warrant or order under the provisions of any law.
An order of a court-martial, a warrant of an immigration officer issued under the provisions of the Immigration and Deportation Act; or Cap 123 and an order in writing signed by a police officer of or above the rank of Sergeant.
Therefore in the absence of such authority then the detention of such prisoners is deemed illegal and therefore the Prison authorities would be deemed to be holding the prisoners illegally. In such instances the detained persons can apply by way of Habeas Corpus to challenge their illegal detention.
Malambo said through his prison project it has come to the Foundation's attention that most of the detention warrants have expired and they are not renewed every 14 days as required by the law.
Section 207 and Section 227 of the Criminal Procedure Code stress the fact that adjournments should not exceed 14 days and neither should the remand. Hence it implies that a prisoner's warrant ought to be renewed every 14 days. He said the other problem, which seems to have persisted for so long, is the renewal of remand warrants without the prisoners appearing before court especially when officers from LRF made follow ups on such cases.
Ndovi said the Prisons Act stresses the fact of classification of prisoners. Female prisoners should be separated from Male Prisoners. The Act goes on to give categories of prisoners be it convicted or unconvicted prisoners who should be separated. Its states that convicted and unconvinced prisoners of each sex shall be divided into the following classes: young prisoners; adults; first offenders; prisoners with previous convictions; prisoners suspected or certified as being of unsound mind; such other classes as the Commissioner may determine;
and, as far as the prison accommodation renders it practicable, each such class shall be kept apart from the other classes.
Mwannga said currently female prisoners are separated from male prisoners, Juveniles and those suffering from tuberculosis are kept separately.. But convicts and remadees are sharing the same cells with first offenders and those who already served sentences.
Female remadees with babies are sharing congested cells with other female inmates even though the law does not provide for such children.
Ndovi said a lot seems to have gone wrong in Zambia because currently there is no observance of the Law and one of the major reasons is because of poor infrastructure, congestion in prisons making it impracticably impossible for the above provision to be enforced. However, Zambia being a country centred on democratic principles must be seen to be taking a lead in ensuring that the above provisions are adhered to. The International Instrument on Standard Minimum Rules for the Treatment of Prisoners under Article 8 actually stresses the need to separate prisoners. It states that the different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment.
Currently our prisons are congested leading to prisons being breeding grounds for contaminable diseases such as TB, dysentery and cholera. It can therefore be said that their right to life is threatened by the existence of such conditions and therefore Government should consider expanding the prisons in order to provide proper accommodation and improve hygienic standards.I
T is hoped that Zambia will try and adopt the Standard Minimum rules for the treatment of prisoners, which contain provisions relating to accommodation, personal hygiene, clothing and bedding, food, exercise and sport, medical services, religion and many other provisions affecting prisoners. Most Important of all there is need for Government to ensure that prisoners who are HIV positive have ready access to Anti retroviral Drugs so as to enable them live longer. Therefore there is need to promote VCT in Prisons so as to save the lives of such infected prisoners.
Prison should not be considered as a place where the condemned are left to rot but should be a place where people are allowed to reform and later when they are unleashed into society they will be able to contribute positively. However currently the situation is different we have a higher percentage of persons who have been released going back to their old ways meaning that there is something wrong with our system, which needs to be addressed. It has been said that human rights and development are interrelated and therefore If Zambia is to achieve its development goals which include reduction in crime levels there is need for us to invest in infrastructure that will ensure respect for prisoners human rights and in turn lead to rehabilitation and reformation of such prisoners who will engage in developmental projects once they get to society.

Cop Whack Nephew, Uncle Over Overalls
By Perpetual Sichikwenkwe in Mongu
TWO police officers from Mangango police station are alleged to have beaten up an uncle and his nephew for being in possession of overalls that the uncle got from his former employers.
The officers also allegedly beat a nurse at Mangango Mission Hospital who was found attending to the nephew after they allegedly assaulted him.
Bernard Petulo Helemende of Kapwepwe Village chief Mangano in Kaoma complained to Legal Resources Foundation (LRF) Mongu Paralegal Joe Mulafulafu that on December 25, 2005 he gave two overalls (blue and green), that he was given when he was working for Nakambala Sugar Estate in Mazabuka, to his nephew Ngalafwa Kapwepwe to go and sell so that he could raise income.
Ngalafwa took the overalls to a near by shop to look for customers. At the shop, he found two plain-clothed police officers drinking beer and they called him to find out what he was carrying. When he told them that he was carrying overalls, the officers demanded that they be taken to his uncle (Halemende) who confirmed that it's him who had given him the overalls to sell on his behalf and that he got the same from his former employers.
The officers then threw the overalls at Hamelende's face and allegedly started beating Ngalafwa, leaving him lying on the ground bleeding from the noise, mouth and ears.
After beating his nephew, the police left in the direction of Mangango police post and Hamelende picked up his nephew and took him to Mangango Mission Hospital for medical attention. While at the hospital, the police officers reappeared armed with an AK47 and a short button and found a nurse by the name of Agnes Mubita and started beating Ngalafwa again using a short button.
When Mubita tried to stop them from beating Ngalafwa, one of the officers allegedly slapped her and also turned to Hemelende when he pleaded with them to let the nurse treat his nephew.
The officers continued beating Ngalafwa and Hemelende until they pleaded that they be taken to a police post instead of beating them in a ward.
Before leaving the ward, one officer allegedly pointed a gun at Hemelende saying he was going to shoot him and in the process, the gun went off but did not hit anyone.
Hemelende sustained a fractured left tibia and pain all over the body and bleeding through the nose. The officer Mwikisa allegedly tore all his clothes and carried him on a stretcher to the police post with his under wear only.
Hemelende alleged that at the police post, they confisticated the overalls and detained Ngalafwa while they put him on the ambulance to Kaoma District Hospital where staff allegedly refused to attend to him because he had no referral letter from Mangango Mission Hospital.
Hemelende was taken back to Mangango where they collected a letter from the officer-in-charge indicating that he was beaten by an instant mob justice.
“I write and request for admission of Upite Tetela who has been assaulted by a mob of people while in Mangango. We suspect that he has a broken leg. While waiting for a referral letter from Mangango, may you kindly admit him,” read the letter that was signed by Kaoma police officer in charge, M.Mwimanenwa.
Hemelende was admitted to Kaoma Hospital from December 25 2005 to January 16 when he was discharged.
He complained that from the time he was discharged from the hospital, police have never charged him with any offence and every time he goes to check on his matter, he is advised to wait.
Ngalafwa was also released on December 28, 2005 after he was found with suspected dysentery.
Hemelende wants LRF to assist him on what step he could take against the officers.
And the investigations by LRF revealed that the two officers are facing other criminal charges and are being tried by the Kaoma subordinate court. The matter has been referred to Mongu LRF supervising lawyer Paul Mulenga.