“Prisoners are probably the most rightless group within the population, with neither the law nor the courts providing protection.”

This was written in 1986, but was something of an overstatement; human rights treaties and even courts had by then shown signs of regarding prisoners as human beings. However, generally the situation has improved since then.

In some ways Kenya has a good legal framework for the rights of people in custody for some reason, and it is encouraging to see the Judiciary making rights-led decisions.

An important development due to Moody Awori being Interior Minister before the Constitution, and he was quite passionate about the need for prison reform.

The Constitution and law

The first constitution drafts in 2002 and 2004 were more detailed than the Constitution as adopted. The major surgery on these provisions was by the Committee of Experts. The adopted version remains good, though less detailed than those early drafts.

It says that anyone in prison “retains all the rights and fundamental freedoms in the Bill of Rights, except to the extent that any particular right or a fundamental freedom is clearly incompatible with the fact that the person is detained, held in custody or imprisoned.”

And Parliament must pass law to provide for humane treatment, and that must take into account international human rights instruments.

Parliament passed the Persons Deprived of Liberty Act (PDL Act) in 2014. You might say that it is full of good things. It provides for humane conditions, including no “crowded conditions”, nutritious diet, bedding in good repair and hygienic conditions, sanitary materials for women, access to educational opportunities and reading material that is “beneficial to their rehabilitation and personal development”, reasonable access to news media, rehabilitation-based programmes and recreational and cultural facilities.

Courts

Even before the Constitution was adopted, a Kenyan court decided that prisoners had the right to vote in the referendum about the Constitution. And in 2012, the general right of prisoners to vote was recognised by the High Court, though there are practical difficulties when we do not have a system of postal voting and probably most prisoners are not in the places where they are registered to vote. And if they all voted in the places where they are living, they might affect the local choice. So voting for President is the most practical possibility.

In 2010 – just after the new Constitution but before the Persons Deprived of Liberty Act – the Court of Appeal decided that under the old Constitution the right of an intersex person had been violated because of the way a prison search was conducted.

The courts have tried hard to make the rules affecting prisoners work fairly. They have held rules that give the President the power to decide how long a child or a person with mental illness (and thus not responsible for what they did, but not able to be released) should remain locked up. They have said it is wrong for the possibility of early release for good behaviour (remission) to be barred for certain offences.

A recent case was very interesting. The issue was whether a prisoner could go to the funeral of a close relative. The Ministry and the Prison Service argued that there is no rule allowing for prisoners to do so. The prisoner argued that it was a matter of his dignity, and that various international human rights documents supported his case.

I wondered initially if this was realistic – thinking particularly of the part of Article 51 that says rights of prisoners do not include those that are “clearly incompatible with the fact that the person is detained, held in custody or imprisoned”. An obvious example, you might think, is freedom of movement. On reflection, I think the Constitution’s language could be more focused. It is not so much that a whole right is always inconsistent with being a prisoner, but that its exercise in some circumstances would be. So the focus becomes not just on the right but on the particular circumstances, and the phrase “clearly incompatible” is very important. As the judge put it, “… even restrictions imposed on rights enjoyed by others when it comes to prisoners must only be those that are necessary and proportionate to the legitimate objective of incarceration.”

In this case the prisoner did not rely on freedom of movement, but dignity. And the need to respect a prisoner’s dignity would these days not be denied.

The judge’s decision was very measured. He did hold that prisoners “have a right to be permitted, whenever possible, to attend burials or funerals of their close relative”. The crucial phrase is “whenever possible”. The safety of the public is clearly relevant (unfortunately, some prisoners may never be able to be released for this reason). So is the safety of the prisoner. The cost and practicalities are also relevant (like the need for a prison officer to accompany the prisoner in many cases), as is the risk of the prisoner absconding. All these the judge acknowledged.

The possibility of such an event is included in some international instruments, which you will recall are supposed to be a guide under our Constitution. The United Nations Standard Minimum Rules include “Whenever circumstances allow, the prisoner should be authorized to go, either under escort or alone, to the bedside of a near relative or significant other who is critically ill, or to attend the funeral of a near relative or significant other.”

And despite the insistence of the Prison Service that such a thing was not possible, the usual power of the Cabinet Secretary to make regulations under the PDL Act says these may include “instances when a person deprived of liberty may be allowed to leave the institution in which the person is held.” Not an obligation but a possibility.

Realities

This last point takes us to the realities of the situation for prison and prisoners – and staff. It is generally agreed that Kenya’s prisons have improved considerably from the deplorable state they were in at the beginning of this century. Many inmates have been trained as paralegals. Prisoners may study – even at degree level.

But no regulations at all have been passed under the PDL Act. And the recent report of the Maraga Task Force on improving conditions of service for police, prisons and NYS says, “While laws such as the [PDL Act] were enacted to provide for the rights and better conditions for those in police and prison custody, regrettably, the Prisons Act, the Borstal Institutions Act and the Prisons Standing Orders, to this day, remain unchanged, despite the expectation that the entire statute book would be reviewed to conform to the letter and spirit of the Constitution.”

A civil society report to the United Nations Committee Against Torture in 2022 says, “While the Constitution and the Act establish excellent bases for ensuring the rights of persons deprived of liberty and monitoring compliance, these rights are in practice still not enjoyed to much appreciable extent and compliance is not realised in practice.”

One of the provisions of the Act was for a Consultative Committee on Persons Deprived of Liberty to deliberate on and resolve matters relating to persons deprived of liberty yet though it was gazetted it “has not been made operational to any appreciable extent.”

And life for prisoners depends very much on those who guard and oversee them. Yet the Maraga report says, “Members of the Taskforce were shocked by the horrendous housing situation of KPS officers. Some officers live in tents erected in prison compounds while others with families are accommodated in halls where they share the available limited space, with just bed sheet curtains separating one family from another. In some cases, officers have erected makeshift iron-­sheet houses, while others live in condemned structures. The conditions can only be described as inhumane and degrading, and an outrage to any claim to professional treatment.”

How can a public institution function in a rights-based way when its staff are treated with so little respect?

This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2024-03-09-ghai-rights-for-prisoners-and-prison-staff/

Image: MINA