live in unprecedented times which requires unprecedented thinking, including
radical and humane approach to the
plight of prisoners and other state detainees in light of Covid- 19
(Coronavirus) pandemic worldwide.
Recent statements by the President of the Republic and the Minister of Health, both on Coronavirus, as well as the first reported fatality of the virus in the Gambia, over the weekend, underscore the seriousness of the situation. They cumulatively indicate that the virus is present in the Gambia and is likely to take hold; nowhere more so than in our antiquated prisons and police cells where several prisoners are crammed into a small room/cell designed for one.
There are currently several hundred of prisoners and other state detainees in the Gambia.
They are held in Central Prison at Mile 2, Old Jeshwang and Janjabureh prisons. The prison population alone is estimated to be in the region of some 700 men and women, including juveniles, according to World Prison Brief data, 2019. But the Official capacity of our prison system is only 650. So it’s blindingly obvious that overcrowding is a problem.
But in addition to the official prison population, several police stations, up-and-down the country, also routinely hold suspected offenders – children and adults alike for several days or weeks. So the true figure may be over one thousand people under state detention.
Often they (adult and children) are detained together for several days without trial or being transferred to one of the prisons while awaiting trial. Arguably, they are a neglected group of citizens left out of sight and out of our hearts even during natural disasters. It is known fact that inmates’ rights, across the world, have often been neglected in emergency situations. Because of this, they have constantly suffered physical and mental injuries during and after natural disasters such as advent of contagious and/or communicable diseases like Coronavirus.
Clearly, it is evident that in times of emergency and natural disasters, prisoners are some of the most vulnerable members of society. They depend on the state for their welfare and survival. Prisoners can only evacuate, get medical attention, food and water if prison authorities allow them. So, inaction by the authorities, deliberate or inadvertent recklessness or any failings owing to lack of resources, during times of natural disasters like the current Coronavirus pandemic, can have calamitous consequences for those under state incarceration.
As they are deprived of their liberty by the state, they are entitled to standard humane treatment, including entitlement to adequate food and medical assistance, in particular, at the state’s expense as provided by Section 183 of the Constitution and the Prisons Ac.
If the state fails to deliver in this, it will be found legally culpable.
In the US, the Supreme Court noted, “When a state…restrains an individual’s liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs – e.g… medical care, and reasonable safety,” the state is in conflict with
“the limits on state action set by the [law]”.
This is an important constitutional issue, because Section 21 of the Constitution as well as other international obligations of the Gambia, prohibits subjecting of inmates to inhuman and degrading treatment.
However, experience from elsewhere in the world generally shows that prison officials have consistently underperformed when it comes to protecting inmates during natural disasters such as earthquake, hurricanes to name a few. This lack of preparedness had often led to successful litigation, against states, highlighting the pain and suffering that thousands of inmates endured. The Gambian state is no exception and can be found to be in breach of duty of care and other obligations relating to prisoners in its custody.
It is in this context that the plight and precarious state of prisoners and other state detainees should be brought to the fore with the view to seeking humane treatment, including bail concessions for remand prisoners and/or amnesty for convicted prisoners who no longer pose any risk to the society.
As the killer Coronavirus continues to spread, both police and prison service share a fundamental problem: how to safeguard a captive population that almost certainly includes large numbers of people with underlying medical conditions. Experts have said that:
“People who live in congregate settings, including detainees and prisoners, are at [additional] risk of acquiring this infection.”
In light of this, and in order to protect staff and inmates facing the spread of the killer and untreatable virus, it is imperative that the authorities consider humane treatment for older and infirm prisoners who pose no threat to the society. They should be considered for immediate release with or without license where appropriate. This measure has been adopted in many countries across the world.
In the USA, President Donald Trump has been quoted as saying that he would consider an executive order to release “totally nonviolent prisoners” from detention facilities. Meanwhile, local governments across the states are releasing thousands of inmates in an unprecedented effort to prevent a coronavirus outbreak in crowded prisons. According to Wall Street Journal, “Jails in California, New York, Ohio, Texas and at least a dozen other states are sending low-level offenders and elderly or sickly inmates home early due to coronavirus fears.”
In the UK, Prisoners’ Advice Service charity, has asked the Ministry of Justice to release groups of prisoners in order to lessen the impact of coronavirus in the penal estate. Their argument is based on the fact that it was done even in Iran and other countries.
In the meantime, the UK government has already announced that it intends to ease pressure on prisons by increasing the number of prisoners released on home detention curfew with a tag.
Thus given the unprecedented and the exceptional situation of those in state detention, it is considered appropriate for those inmates who are not charged with capital offences, who are old or infirm, or who simply do not pose a threat, to be released immediately either on bail or under amnesty.
Adopting this measure will undoubtedly save lives, not just of the prisoners or detainees but also of prison staff, police officers and other officials. It will be a proportionate response to unprecedented threat and calamity.
Ahmed Kemo Ceesay
(National Agency for Legal Aid)