April 27, 2010

Zambia’s Obligations Under International, Regional, and Domestic Law

The Zambian government is obliged under national and international law to protect the rights of prisoners and those in its custody.

On the international level, Zambia is a party to core regional and international human rights treaties. These include the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT),[60] the International Covenant on Economic, Social and Cultural Rights (ICESCR),[61] the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),[62] the Convention on the Rights of the Child (CRC),[63] the Convention on the Elimination of All  Forms of Racial Discrimination (ICERD),[64] the African Charter on Human and Peoples’ Rights,[65] and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.[66] These treaties provide for the protection of basic civil and political rights and also ensure specific guarantees relating to the treatment and conditions in custody for those deprived of their liberty. These treaties are supplemented by instruments specific to the treatment of those in detention, discussed below.

On the national level, key protections are laid down in the Constitution and The Prisons Act and Rules of the Laws of Zambia.

Prisoners’ Rights

Under international human rights law, prisoners retain their human rights and fundamental freedoms, except for such restrictions on their rights required by the fact of incarceration; the conditions of detention should not aggravate the suffering inherent in imprisonment,[67] except as necessary for justifiable segregation or the maintenance of discipline.[68]This rule cannot be dependent on the material resources available to the national government in question.[69]

The most fundamental protection for prisoners is the absolute prohibition on torture. As well as being a well-established norm of international law by which Zambia is bound, the prohibition is also reflected in the Zambian Constitution, and in several of the human rights treaties to which Zambia is a party.[70] The ICCPR and the CAT prohibit torture and cruel, inhuman, or degrading treatment or punishment without exception or derogation. Article 10 of the ICCPR further requires that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”[71] The African Charter on Human and Peoples’ Rights also protects every individual’s human dignity and prohibits “all forms of exploitation and degradation,” including slavery, torture, and cruel, inhuman or degrading punishment and treatment.[72]

The CAT defines torture and cruel, inhuman or degrading treatment or punishment to include not only acts committed by public officials, but also acts committed with their acquiescence.[73] Thus, prison officials are responsible for all abuses in prison committed by inmates with their acquiescence.

Numerous international instruments provide further guidance on the protection and respect of human rights of persons deprived of their liberty. The most comprehensive such guidelines are the United Nations (UN) Standard Minimum Rules for the Treatment of Prisoners. Other relevant instruments include the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the Basic Principles for the Treatment of Prisoners.[74]

International law and standards guarantee imprisoned children special protections. The Convention on the Rights of the Child protects children from torture or other cruel, inhuman or degrading treatment or punishment, and provides that children deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the person.[75] Detention of a child “shall be used only as a measure of last resort and for the shortest appropriate period of time.”[76] For those children who are detained, they are to be separated from adults.[77] The United Nations Standard Minimum Rules for the Administration of Juvenile Justice lays out additional protections for children deprived of their liberty.[78]

Women detainees also benefit from special legal protections. Regional law provides that women in detention should be held in an environment “suitable to their condition” and ensures their right to be treated with dignity.[79] The Southern African Development Community Protocol on Gender and Development, which Zambia has signed, commits states by 2015 to “ensure the provision of hygiene and sanitary facilities and nutritional needs of women, including women in prison.”[80]

The Right to Health

All people have a right to the highest attainable standard of health.[81]The International Covenant on Economic, Social and Cultural Rights requires states parties to take steps individually and through international cooperation to progressively realize this right via the prevention, treatment, and control of epidemic diseases and the creation of conditions to assure medical service and attention to all.[82] African regional law also supports the right to health.[83] “Progressive realization” demands of states parties a “specific and continuing obligation to move as expeditiously and effectively as possible towards the full realization of [the right].”[84]The concept of available resources is intended to include available assistance from international sources.[85]

States have an obligation to ensure medical care for prisoners at least equivalent to that available to the general population.[86] According to the Economic, Social and Cultural Rights Committee, the monitoring body for the Covenant on Economic, Social and Cultural Rights, “States are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services.”[87]Furthermore, the ICCPR requires that governments should provide “adequate medical care during detention.”[88] The Committee Against Torture—the monitoring body of the Convention Against Torture—has found that failure to provide adequate medical care can violate the CAT’s prohibition of cruel, inhuman or degrading treatment.[89]

Thus, international human rights law explicitly protects prisoners against discrimination in receiving health care. The Zambia Prisons Service has acknowledged this commitment: “It has been decreed in various Charters, Conventions and International Instruments that all prisoners, irrespective of nationality, race or gender are entitled to the same quality of health care as that available outside jail.”[90]

[60]Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 2984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987), acceded to by Zambia on October 7, 1998.

[61]International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, acceded to by Zambia on April 10, 1984.

[62]Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, acceded to by Zambia on June 21, 1985.

[63] Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, acceded to by Zambia on December 6, 1991.

[64]International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January 5, 1969, ratified by Zambia on February 4, 1972.

[65] African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986, ratified on January 10, 1984.

[66]Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, adopted by the 2nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (Sept. 13, 2000); entered into force Nov. 25, 2005.

 

[67]United Nations (UN) Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of July 31, 1957, and 2076 (LXII) of May 13, 1977, paras. 57-58; United Nations (UN) Human Rights Committee, General Comment 21, Article 10, Humane Treatment of Persons Deprived of Liberty (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.7 (1994), paras. 3-4; Basic Principles for the Treatment of Prisoners, adopted December 14, 1990, G.A. Res. 45/111, annex, 45 U.N. GAOR Supp. (No. 49A) at 200, U.N. Doc. A/45/49 (1990), principle 5.

[68] UN Standard Minimum Rules for the Treatment of Prisoners, paras. 57-58.

[69]UN Human Rights Committee, General Comment 21, paras. 3-4.

[70] The Constitution of Zambia Act, The Laws of Zambia, 1996, http://www.parliament.gov.zm/downloads/VOLUME%201.pdf (accessed March 2, 2010), art. 15.

[71]ICCPR, art. 10.

[72]African [Banjul] Charter on Human and Peoples’ Rights, art. 5.

[73] Convention Against Torture, art. 1.

[74] UN Standard Minimum Rules for the Treatment of Prisoners; Body of Principles for the Protection of All Persons under Any Form of Detention of Imprisonment (Body of Princniples), adopted December 9, 1988, G.A. Res. 43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988); Basic Principles for the Treatment of Prisoners.

[75] Convention on the Rights of the Child (CRC), art. 37(a) and (c).

[76] Ibid., art. 37(b).

[77] Ibid., art. 37(c).

[78] UN Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), adopted November 29, 2985, G.A. Res. 40/33, annex, 40 U.N. GAOR Supp. (No. 53) at 207, U.N. Doc. A/40/53 (1985), art. 26.

[79] Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, art. 24. Zambia is a party to this Protocol.

[80]Southern African Development Community (SADC) Protocol on Gender and Development, http://www.sadc.int/index/browse/page/465 (accessed February 22, 2010), art. 26.

[81]Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art. 25(1); International Covenant on Economic, Social and Cultural Rights (ICESCR), art. 12. The right to health is also guaranteed by a number of other international human rights treaties and commitments that bind Zambia. The Convention on the Rights of the Child obligates states to “recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.” Convention on the Rights of the Child, art. 24. The right to the health is recognized by the International Convention on the Elimination of All Forms of Racial Discrimination and in 11.1(f), 12 and 14(2)(b) of the Convention on the Elimination of Discrimination Against Women. The right to health has been proclaimed by the Commission on Human Rights, the Vienna Declaration and Programme of Action of 1993 and other international instruments. UN Committee on Economic, Social and Cultural Rights, “Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights,” General Comment No. 14, the Right to the Highest Attainable Standard of Health, E/C.12/2000/4 (2000), http://www.unhchr.ch/tbs/doc.nsf/0/40d009901358b0e2c1256915005090be?Opendocument (accessed February 22, 2010), para. 2.

[82]ICESCR, art. 12.

[83]The African Charter on Human and Peoples’ Rights guarantees the right to health and requires states parties to “take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.” African [Banjul] Charter on Human and Peoples’ Rights, art. 16. See also, Southern African Development Community (SADC) Protocol on Gender and Development, art. 26.

[84] ICESCR, General Comment No. 14, paras. 30-31.

[85]Ryszard Cholewinski, “Economic and Social Rights of Refugees and Asylum Seekers in Europe,” Georgetown Immigration Law Journal, vol. 14, Spring 2000, pp. 709-55, pp. 714-19. 

[86] See, e.g., ICESCR, arts. 12(1) and 2.2; ICCPR, arts. 6, 7 and 10(1); Convention against Torture, art. 16. For a comprehensive discussion of the international legal instruments, international resolutions, and model standards related to detainee health, see Rick Lines, “The Right to Health of Prisoners in International Human Rights Law,” International Journal of Prisoner Mental Health, vol. 4(1), 2008, pp. 3-53; Rick Lines, “From Equivalence of Standards to Equivalence of Objectives: The Entitlement of Prisoners to Health Care Standards Higher than Those Outside Prisons,” International Journal of Prisoner Health, vol. 2(4), 2006, pp. 1-12.

[87]ICESCR, General Comment No. 14, para. 34.

[88]Pinto v. Trinidad and Tobago (Communication No. 232/1987), Report of the Human Rights Committee, vol. 2, UN Doc A/45/40, p. 69.

[89]United Nations (UN) Committee against Torture (CAT), “Concluding Observations: New Zealand,” (1998) UN Doc. A/53/44, para. 175.

[90]Zambia Prisons Service, “HIV and AIDS/STI/TB Strategic Plan (2007-2010),” p. 2. Indeed, “[a]ll inmates have the right to receive health care, including preventive measures and treatment equivalent to that available in the community.” Zambia Prisons Service, “HIV & AIDS/STI/TB Workplace Policy of the Zambia Prisons Service,” July 2006, p. 17.