We
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)
