Court orders Govt to change prisons law

Namibia’s government has been given 18 months to amend the country’s law on the solitary confinement of people detained in prison.

In a judgement delivered in the Supreme Court yesterday, a section of the Correctional Service Act about the placing of problematic prison inmates in separate cells and also a regulation on the solitary confinement of inmates were declared to be inconsistent with the Constitution’s protection of liberty and prohibition of arbitrary detention.

The court suspended its declaration of the unconstitutionality of part of the act and one of the regulations issued under the act for 18 months, to give the parliament and government time to correct the defects identified in the law.

The Supreme Court also declared that the prison authorities’ blanket denial of contact visits to awaiting-trial inmates, without considering the merits of each individual detained person’s case, is inconsistent with the Constitution’s guarantee of respect for human dignity and protection of the right to a fair trial.

In a further finding, the court declared that the transportation of inmates in vehicles while their arms are handcuffed behind their backs and the vehicles do not have safety features to prevent harm to the inmates is inconsistent with the Constitution’s prohibition of cruel, inhuman or degrading treatment.

The court also declared that the Correctional Service Act’s inclusion of awaiting-trial inmates in the definition of “offender” before they have been convicted is against the Constitution.

That declaration of unconstitutionality is suspended to 18 months as well, to give the legislature and government time to correct the defect that the court identified in the law.

The court’s judgement was given on an appeal filed by an inmate being held at Windhoek Correctional Facility, American murder accused Kevan Townsend, after High Court acting judge Collins Parker in July 2020 handed down a judgement in which he partly dismissed constitutional challenges by Townsend and a fellow awaiting-trial detainee, former magistrate Jaco Kennedy, against the treatment they claimed to be receiving from the prison authorities.

In his judgement, Parker declared the use of handcuffs on awaiting-trial prisoners when they are transported in Namibia and part of the law allowing the prison authorities to place problematic inmates in handcuffs as unconstitutional.

However, he dismissed complaints by Townsend and Kennedy against the prohibition of contact visits for awaiting-trial inmates, about the inclusion of awaiting-trial inmates in the definition of “offender” in the Correctional Service Act, and about the alleged unconstitutionality of a part of the act and a correctional service regulation on the solitary confinement of inmates.

Deputy chief justice Petrus Damaseb, who wrote the Supreme Court’s judgement, stated that a scheme of solitary confinement that does not give an inmate an opportunity to request an end to being placed in a separate cell “unduly perpetuates the deprivation of an inmate’s meaningful human contact with others”.

Damaseb noted that in terms of the act, the prison authorities may place an inmate in solitary confinement for an initial period of 30 days, which can be extended for a further 60 days by the commissioner general of the Namibian Correctional Service, and can be extended further with the consent of the minister responsible for the country’s prison system.

The fact that the Correctional Service Act and the correctional service regulation on solitary confinement do not include a mechanism for an inmate to have their confinement independently reviewed is inconsistent with the Constitution and constitutes arbitrary detention, Damaseb stated.

On contact visits, the deputy chief justice noted that the Correctional Service Act allows an officer in charge of a prison to permit offenders to receive visitors.

The act does not in any way justify a blanket denial of contact visits to unconvicted trial-awaiting inmates, he stated.

He also found that the inclusion of awaiting-trial inmates in the definition of “offender” in the act “strikes at the heart of the constitutionally guaranteed presumption of innocence”, and may actually influence the perceptions and behaviour of those responsible for watching over such a person in a correctional facility.

The court allowed Townsend’s appeal, and set aside the High Court’s judgement.

Appeal judge Elton Hoff and acting judge of appeal Theo Frank agreed with Damaseb’s judgement.

Townsend was represented by lawyer Uno Katjipuka-Sibolile.

Deputy government attorney Mkhululi Khupe represented the prison authorities and the government.