HIV+ prisoners' victory opens door to rights-based legal action

24 January 2020 · Carmel Rickard

Two HIV+ prisoners held in Lusaka's central prison, have won a case against the prison authorities that could have widespread repercussions for other prisoners and for rights-based litigation more broadly. They claimed their rights to life and dignity were infringed by conditions in the cells. In response, Zambia's highest court has ordered the government to ensure they are provided with a balanced diet and access to the medicine and treatment they need given their condition. They must also be housed in cells that are neither a health risk, nor in such a condition that they constitute inhuman and degrading treatment or additional punishment. The court has further ordered that the prison authorities must provide the courts with regular updates on what has been achieved by way of reducing overcrowding and improving conditions in the cells. A part from its important orders related to prison conditions, the judgment is also crucial from a legal perspective: the High Court had found that though the prisoners had proved the terrible conditions under which they were housed, there was nothing the courts could do about the situation as the rights infringed were not justiciable. The Supreme Court overturned that finding, leaving the way open for other challenges on issues previously thought out of bounds for the judiciary.

The two men at the centre of a Zambian landmark case on food and other conditions in jail were quite aware that life in prison 'is anything but checking into a luxurious resort, complete with restaurant quality meals'. But, said three supreme court judges, including the Chief Justice Irene Mambilima, the men had expected that the state would at least have given proper attention to their health and dietary needs because of the HIV status.

Rotten

Their food was inadequate and could not be regarded as the kind of balanced diet their doctors said was essential. Instead they were fed an 'abysmal allocation of limited quantities' of food that was virtually inedible, often rotten or contaminated. This infringed Zambia's own prison rules and the Prisons Act, they said.

The poorly prepared, sub-standard food 'of an inferior nutritional content' could be devastating to their health and, given their HIV status, posed a serious threat to their right to life. They were also concerned about the overcrowded and inadequately ventilated cells. Their already compromised immune systems meant they were far more likely to pick up diseases like TB, which would worsen their own health condition. In addition, the lavatories in the cells could not be flushed.

Lavatories

After hearing evidence, the trial judge made disturbing findings of facts including the serious congestion in the cell where the two men were held. Originally intended to house 15 prisoners, the cell now accommodated 75 or more. The whole prison was originally designed to have 160 inmates, but it now has more than 1 100. There was no room for prisoners to sleep properly and they had to spend nights standing or sitting. She also found the lavatories were blocked and unflushable, and that the resulting stench was worsened by the wholly inadequate ventilation. The high court also found that while legally the prison authorities were obliged to provide a balanced diet, they did not do so.

However, her conclusion was that the Zambian Constitution did not guarantee adequate medical treatment. This was contained as an article in a list of 'directive principles of state policy' that the government was not 'obliged' to provide in individual cases. As a result, the high court judge found while the two prisoners might have proved the facts, there was nothing the court could do about it.

On appeal the supreme court Bench said the main issue was whether the violated rights were justiciable so that the courts could take action. Explaining the conventional thinking about the different types of rights, they said that in Zambia, as elsewhere, economic, social and cultural rights had been regarded as not justiciable. They were not part of the Bill of Rights but were listed as principles of state policy. And it was this that had caused the high court judge to rule as she had.

'No legal duty'

Counsel for the two prisoners said while international covenants on economic, social and cultural rights might not be directly enforceable by a domestic court, they still obliged the state to ensure improvements. Prison conditions, however, had been neglected by the state for many years. Besides, the rights involved in this case were covered by the Bill of Rights and could thus be enforced independently from those rights that fell into the list of state policy principles. As for the state's legal team, their view was that the state was 'not under any legal duty to provide food supplements to any HIV+ inmates'.

The supreme court held that some of the rights claimed to have been violated, fell within the rights listed in the Constitution as enforceable by the courts. But they went much further. They found that though there was no legal tradition in Zambia for economic, social and cultural rights to be enforced in the local courts, the supreme court would take note of the fact that applying international human rights instruments and standards was a 'growing practice' in domestic courts across the world.

There was a growing trend of indirect judicial protection of the right to food, for example, by connecting that right with other rights, said the judges, quoting from a number of other jurisdictions to prove the point. Then they declared that the right to life ought to be given a wider interpretation 'as a right to a dignified life', and that this would include 'aspects of the right to food nutritious to sustain a dignified human life'.

While the government argued that it did not have the money to improve prison conditions, the UN Human Rights Committee had as far back as 1982, said that a state could not invoke financial difficulties to justify inhuman treatment and was obliged to provide services that satisfied the essential needs of those incarcerated.

'Puzzled'

It was incorrect for the high court to rule that nothing could be done by the courts in response to degrading and inhuman treatment. The judges were also 'puzzled' by a similar ruling from the lower court in relation to a balanced diet in prison and held that in failing to provide proper food the state broke its own laws and violated the prisoners' right to life.

The supreme court said legal action could not be the main way to fulfil prisoners' rights; this was the duty of the political branch of government. Even monitoring the result of government policies was better undertaken by political and independent bodies such as the Human Rights Commission.

'Serious threat'

In this particular case, however, the judges held that the appeal succeeded 'on all claims' and declared the state 'in continuing violation' of the rights to life of the two prisoners. They found the Lusaka Central Correctional facility as well as others, had become a serious threat to the right to life because, among other reasons, they were breeding grounds for infection. Prisoners with special dietary needs because of their medical status all required 'preferential consideration in furtherance of their right to life'.

The judges thus ordered the state to take immediate steps that would reduce overcrowding in Lusaka Central and to report back on these steps to the court. They also ordered an increase in state funds to Lusaka Central to improve the dietary needs of prisoners so that the food provided complied with the law. Again, a report on steps taken must be reported regularly to the court.

Carmel Rickard

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