April 27, 2010

Summary

I have seen people die in the night in the cell—there is nothing we can do. We shout for someone, but the guards will say, “he is just playing sick, he wants to escape. Let us wait two or three days, and see how he will be.” And then he dies.
Nickson, 36, Mukobeko Maximum Security Prison, September 30, 2009
They say, “you’re going to Chimbokaila [Lusaka Central Prison]? It’s a death sentence.” Not because they are afraid you will be given beatings, but because of TB. They know the conditions are bad.
Dr. Chisela Chileshe, director, Zambia Prisons Service Medical Directorate, Lusaka, February 6, 2010

People who break the law should be held accountable. The appropriate punishment may be imprisonment. But for detainees in Zambian prisons—a third of whom have never been convicted of any crime—being held behind bars can have life-threatening consequences. Overcrowding, malnutrition, rampant infectious disease, grossly inadequate medical care, and routine violence at the hands of prison officers and fellow inmates make Zambian prisons death traps.

Zambia’s prison system is in crisis. Built to accommodate 5,500 prisoners before Zambian independence in 1964, the country’s prisons housed 15,300 in 2009. Between September and October 2009, the Prisons Care and Counselling Association (PRISCCA), AIDS and Rights Alliance for Southern Africa (ARASA), and Human Rights Watch visited six facilities, two of which were filled at 573 percent and 622 percent of capacity, respectively. Some inmates are forced to sleep seated, or in shifts.

Inmate health problems are compounded by practices prohibited under international law as inhuman and degrading treatment or as torture, such as corporal punishment and “penal block” isolation practices, where prisoners are stripped naked and left in a small, windowless cell while officers pour water onto the floor to reach ankle or mid-calf height. There is no toilet in the cell, so inmates must stand in water containing their own excrement. Certain inmates—appointed as “cell captains” by officers—are also invested with disciplinary authority and mete out the overwhelming majority of punishments, through night-time “courts” in their cells and beatings. Beatings are particularly harsh when aimed at inmates engaging in same-sex sexual activity, and at prisons with associated farm facilities, where inmates’ hard labor conditions closely resemble slave labor.

Water is unclean or unavailable; soap and razors are not provided by the government. The food provided by the Prisons Service is so insufficient and nutritionally inadequate that food has become a commodity traded for sex or labor in the prisons.

In October 2009, the Zambia Prisons Service employed only 14 health staff—including one physician—to serve its 15,300 prisoners. Of Zambia’s 86 prisons, only 15 had any health clinic or sick bay, many of these with little capacity beyond distributing paracetamol. For those prisons without a clinic—and for more serious medical conditions at those with a clinic—access to care is controlled by medically unqualified and untrained prison officers. Lack of adequate prison staff for the transfer of sick prisoners—as well as lack of transportation and fuel—and security fears also conspire to keep inmates from accessing medical care outside of the prisons, in some cases for days or weeks after they fall ill.

Even while largely unknown and unmeasured, tuberculosis (TB) transmission is a constant and serious threat in the prisons’ cramped, dark, unventilated cells. Suspected prevalence rates are very high, with the Zambia Prisons Service reporting an incidence rate for TB of 5,285 cases per 100,000 inmates per year. Rates in Zambia outside of prison in 2007 were less than one-tenth as high.

Only 23 percent of prisoners we interviewed had been tested for TB. The conditions at each of the prisons we visited—combining overcrowding, minimal ventilation, and a significantly malnourished and weakened population—are ripe for the quick spread of TB. The TB isolation cells designed to house the ill are in such poor condition that even the physician in charge of the prison medical directorate deems them “death traps”—yet, since they are slightly less crowded than standard cells, inmates who completed TB treatment told us that they sometimes chose to remain in the cells with inmates with active TB so as to avoid the worst of the desperate overcrowding elsewhere.

The prevalence of HIV in Zambian prisons was last measured at 27 percent—nearly double that of the general adult population (15 percent). To the credit of Prisons Service officials and non-governmental organization (NGO) partners, in recent years the prisons have expanded HIV testing, so that 57 percent of the prisoners we interviewed across all six facilities we visited had been tested. However, access was uneven: Larger prisons had significantly higher levels of testing than smaller prisons, and men were more likely to be tested than women and juveniles. Access to anti-retroviral therapy (ART) for HIV treatment has also improved among the prison population in recent years, particularly in the larger prisons. However, proper treatment is impossible in the absence of prison-based health services.

According to the prisoners we spoke with, sexual activity between male inmates is common, including both consensual sex between adults, and relationships where sex is traded by the most vulnerable in exchange for food, soap, and other basic necessities not provided by the prison. PRISCCA, ARASA, and Human Rights Watch also documented cases of rape between male prisoners. The total ban on condoms, however, in the context of common sexual activity and rape, creates a serious risk of HIV transmission and presents a major obstacle to HIV prevention.

This report is the first analysis of prison health conditions in Zambia by independent human rights organizations. In preparing this report, PRISCCA, ARASA, and Human Rights Watch interviewed 246 prisoners, eight former prisoners, 30 prison officers, and conducted facility tours at six prisons throughout the central corridor of Zambia. The purpose of this research was to understand health conditions and human rights violations in Zambian prisons, and to provide recommendations for a future which respects the basic rights and minimum standards due to prisoners.

Good prisoner health is good public health. Prisoners come from and mostly return to the community, carrying infectious diseases from one to the other. Prison officers are also daily exposed to the conditions and health risks in prison and can expose their families and contacts outside of prison. While certainly poverty and access to healthcare are issues in the Zambian general population, the government nevertheless has an obligation to ensure basic minimum standards for detainees and medical care at least equivalent to that available in the general population, in order to protect both prisoners’ rights and public health. Resource constraints notwithstanding, the Zambian government has a binding and non-negotiable obligation not to expose people to conditions of torture and cruel, inhuman, or degrading treatment, which it currently violates when sending people to prison.

Contrary to international standards, convicted, unconvicted, and immigration detainees—children and adults—are held together, equally subject to the prisons’ grossly inadequate conditions. Detainees in each of these categories, men as well as women, face particular challenges in their confinement.

Prisoners who have yet to face trial—routinely held at every facility with convicted prisoners in violation of international and Zambian law—are held on remand for extended periods, exacerbating prison overcrowding. Interviews with inmates, prison officials and NGOs found such problems as police investigation failures, lack of bail, and lack of representation for accused persons keep individuals unnecessarily, and often unlawfully, incarcerated for extended periods of pre-trial detention. The large number of remand prisoners is a result of failures in the criminal justice system as a whole, including the Zambian judiciary, Police, and Prisons services. At Mukobeko Maximum Security Prison, one prisoner told us that he spent three years and seven months awaiting even an initial appearance before a magistrate or judge; another prisoner, now convicted and living at Lusaka Central Prison, told us that he had spent 10 years as an unconvicted prisoner awaiting resolution of his case. The incarceration of unconvicted detainees is clearly a major contributing factor to the prisons’ extreme overcrowding: At Lusaka Central Prison, 601 of the 1145 inmates—more than half—are remandees. Overall, 35 percent of the Zambian prison population is composed of remandees. Even given Zambia’s grossly inadequate prison conditions, the current cost to the government of incarcerating remand detainees unnecessarily for extended periods is not insignificant, and savings could likely be generated by increasing the use of bail instead of pre-trial detention.

Immigration detainees—including administrative detainees held pending deportation—are frequently detained and await deportation without due process, mingled with convicted and remandee prisoners. Among the immigration detainees PRISCCA, ARASA, and Human Rights Watch interviewed, only 38 percent had ever seen a magistrate or judge, compared with 97 percent of non-immigration detainees. Many who were detained appeared to have reasonable claims to legal status. Immigration detainees are routinely told to pay for their own deportation and are held until they pay.

Children held in detention are entitled to particular protections under international law. Children should be detained only as a last resort, and for the shortest appropriate time; children who are detained should be separated from adults. However, in Zambia, children are routinely incarcerated for minor offenses, often after criminal processes in which they have not had any legal representation. Held together with adults (including adults incarcerated on charges of defilement of a minor) at some facilities, detained children are exposed to the risk of rape.

Women detainees are entitled to specific protections under regional human rights standards, but incarcerated women in Zambia do not have their unique healthcare needs met. Women’s health services including gynecological care and cervical cancer screening are non-existent. Pre-natal services are absent or inadequate, and there is no HIV Prevention of Mother-to-Child Transmission (PMTCT) program under the prison medical directorate. The already nutritionally inadequate prison food is unchanged for nursing or pregnant women.

Compounding these injustices and overcrowding is injustice within the criminal justice system. The Zambian police and Drug Enforcement Commission (DEC) enjoy broad powers under Zambian law, and police and DEC officers reportedly arrest and hold numerous alleged family members, friends, and innocent by-standards as “co-conspirators” when their primary targets cannot be found. Such arrests, which may or may not comply with Zambian law, are considered arbitrary arrests—and therefore unlawful—for the purpose of international standards on the deprivation of liberty. Lack of non-custodial sentencing, restrictions on the use of parole, and delays in appeals further contribute to overcrowding.

Under international human rights law, prisoners retain their human rights and fundamental freedoms, except for the restrictions on rights necessitated by the fact of incarceration itself. States are required to ensure prisoners a standard of health care equivalent to that available to the general population, a commitment acknowledged by the Zambia Prisons Service.

The Zambian government has repeatedly committed itself to uphold the human rights of prisoners through its assumption of international and regional obligations. As a state party to the International Covenant on Civil and Political Rights, the Convention Against Torture, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, and the African [Banjul] Charter on Human and Peoples’ Rights and its protocol on the rights of women, Zambia has an obligation to ensure that its criminal justice and penitentiary standards comply with international and regional human rights standards, to ensure that detainees are treated with appropriate dignity and full respect for their human rights, and to prevent all forms of cruel, inhuman, or degrading treatment.

Clearly, resource constraints are a major consideration, but greater priority on prison funding needs to be put at the national level and greater support from international donors needs to be forthcoming if change is to be effected. Some necessary reforms—particularly legal reforms—are resource-neutral; those that aren’t are crucial to the realization of the rights of prisoners and are the responsibility of both the national government and international donors.

To address existing human rights violations in its prisons, the Zambia Prisons Service should immediately reform prison disciplinary systems to discontinue current abusive disciplinary practices, and end the use of cell captains to carry out brutal punishments on behalf of prison officials. Prisoners should not be punished for sexual or other kinds of intimacy, except in cases of rape.The Prisons Service should immediately install a clinical officer at each prison to assess health and review prisoner medical complaints. In the intermediate and longer term, the Prisons Service—in collaboration with the Parliament and international donors—should secure enough funding for the prison budget to ensure conditions consistent with international standards and scale up prison-based medical care.

Furthermore, in order to alleviate the failings in the criminal justice system that exacerbate overcrowding and violate the rights of prisoners, the Zambian Parliament, judiciary, Police Service, and Prisons Service need to work together to decrease arbitrary arrests, increase the use of bail, and reduce judicial delays. Significant effort should be made to scale up the use of parole and non-custodial alternatives to incarceration. Every prisoner, including child detainees, should be able to exercise their right to have a lawyer of their choosing. Only with cooperation between these bodies, and with the assistance of international agencies, donors, and NGOs, will the rights of prisoners and the goal of prisoner rehabilitation be fully realized.

Zambia’s prison system is at a pivotal moment for change to bring the conditions in its prisons in line with its international and national commitments to prisoner health. The Zambia Prisons Service, in conjunction with PRISCCA and other stakeholders, has itself recently completed an audit of Zambia’s 53 standard prisons, research that included detailed information on prison facility conditions and a list of prisoners at each facility in need of special assistance. Having acknowledged the problems in the prison system, conducted an internal audit, appointed a new medical director, and granted access to human rights monitors, the Zambia Prisons Service has shown a desire and openness to improvement. By building on the observations in its own audit, those of outside human rights groups, and collaborating with Parliament, the judiciary, the immigration service, the police, and international agencies, donors, and NGOs, the Zambia Prisons Service has the opportunity to improve the welfare of its prisoners, and to become a regional model in doing so.