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Thursday, August 25, 2011

The Masangano Case and Prison Conditions

A photographer named João Silva took photos of Malawian prisons in 2005 one of which is the infamous photo of prisoners sleeping Maula Prison which appeared in the even more infamous New York Times article in 2005  "The Forgotten of Africa, Wasting Away in Jails Without Trial"


One of the photos is also being used in the header of our website without my having realised it before today.

I would encourage people to have a look at the photos to get a feel for the conditions which are still currenly in place in the prisons in Malawi.

There had been a brief hope for prisoners that conditions would improve after the Gable Manangano case [Masangano v Attorney General & Others (15 of 2007) [2009] MWHC 31 (9 November 2009] which was a case taken by the applicant in which he avered that ever since his imprisonment, he and his fellow prisoners had been subjected to torture and cruel, inhuman and degrading treatment or punishment which is an infringement of his rights which he submitted was non-derogable as per Section 44 of the Malawian Constitution. Among other things he avered that prisoners were subjected to:

(a)    Insufficient or total lack of ordinary diet which only comprises maize meal (nsima) and peas or beans contrary to the 3rd Schedule of the Prison Regulations in the Prisons Act Cap 9:02 of the Laws of Malawi.

(b)    Insufficient or total lack of food stuffs in that only one meal is normally served per day with no breakfast contrary to the 3rd Schedule of the Prison Regulations.

(c)    Insufficient or total lack of clothing and accessories such as 2 pairs of shorts, singlets, soap, a pair of sandals contrary to the 4th Schedule of the Prison Regulations.

(d)    Insufficient or total lack of cell equipment such as blankets, sleeping mats and mugs contrary to the 5th Schedule of the Prison Regulations.

(e)    Insufficient or total lack of space in the cells as they are always congested in a total number of 120 persons that are made to occupy a cell meant for 80 persons.

(f)    That the prisoners are denied the right to chat with their relatives as the prison warders close the visitors’ room so that prisoners should not have a chance of chatting.

(g)    That the prisoners are harassed and physically tortured by the warders in front of their relatives.

(h)    That only prisoners with money have access to communication.

(i)    That prisoners are denied access to medical attention and the right dose for a person to fully recover and are even asked the offence they committed before receiving any medical attention and are even sometimes given wrong dosage.
The court in it's judgement noted that overcrowding was aggravated by poor ventilation and which contributed to the death of 259 inmates in a space of about 18 months [which had been set out by the Prison Inspectorate] and in its final paragraphs gave the Respondents 18 months to improve conditions. The court stated:
In this case we hold the view that packing inmates in an overcrowded cell with poor ventilation with little or no room to sit or lie down with dignity but to be arranged like sardines violates basic human dignity and amounts to inhuman and degrading treatment and therefore unconstitutional. Accordingly we direct the Respondents to comply with this judgment within a period of eighteen months by taking concrete steps in reducing prison overcrowding by half, thereafter periodically reducing the remainder to eliminate overcrowding and by improving the ventilation in our prisons and, further, by improving prison conditions generally. Parliament through the Prisons Act and Prison Regulations set minimum standards on the treatment of prisoners in Malawi, which standards are in tandem with international minimum standards in the area.

Parliament should therefore make available to the Respondents adequate financial resources to enable them meet their obligations under the law to comply with this judgment and the minimum standards set in the Prisons Act and Prison Regulations.
Unfortunately at the time of writing the judgement has not been complied with as it was supposed to have been by May 2011 and there appears to be no appeal on the horizon. In my very brief experience it appears to be the case that the High Court is handing down very progressive, human rights based judgements which are simply ignored by the relevant authorities or are unknown by the lower court magistrates who are dealing with the vast majority of cases.

The government of Malawi has recently been encouraged by Open Society initiative for South Africa (OSISA) in a report on pre-trial detention in Malawi to improve the systems for monitoring conditions in prisons and that the prison service needs to seek and advocate for alternatives to excessive and prolonged pre-trial detention. The report noted that the service should similarly aspire to increase self-sufficiency and seek more environmentally-friendly, low-cost and low-tech solutions to some of the practical challenges relating to conditions of detention and importantly a comprehensive cost analysis of improvements in the prison system should be undertaken in order to accurately inform the budget of the prison service which should be informed by the 2003 Prisons Bill and the Masangano decision. 

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