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Mauritius: Forfeited rights and fundamental rights
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L'Express (Port Louis)
25 October 2007
Posted to the web 26 October 2007
Deepa Bhookhun
Port Louis
A prisoner's human rights should be protected. This is the new mantra of 21st century Mauritius. What rights do inmates enjoy then? We asked three lawyers who pride themselves on being human rights militants. They didn't know.
Besides the fundamental deprivation of a citizen's right to liberty, a detainee will keep most of his other rights. But most are subject to the discipline and appreciation of the Commissioner of Prisons.
"A very interesting question. But I am not sure", said one of the lawyers questioned about the rights of prison inmates. Another referred us to the Police standing orders since he was "not sure." The third one mentioned the Geneva Convention. We checked and found out that this convention is in fact about prisoners of war.
What about Mauritian prisoners then? There is no single piece of legislation that relates exclusively to them. But, then again, there is a reason to this seemingly abnormal situation. According to the law, there is no such thing as a "prisoner" in Mauritius. Surprised? It is understandable. But this is not the only anomaly regarding prisons.
The prisons in Mauritius are governed by the Reform Institutions Act 1988. It replaced the Prison Ordinance Act because the authorities had decided that penal institutions should not be a place where convicts are punished but should instead act as reform institutions and make rehabilitation of detainees their priority.
But the Reform institutions are under the responsibility of the minister for Social security. Yet, in practice, it is the Prime Minister's Office (PMO) that is now responsible for "prisons" because prisons are deemed to be a "security" matter. Notwithstanding this, the legislation makes the "minister responsible" for the ministry - i.e. ministry of reform institutions - responsible for "reform institutions" which are in truth prisons. In total contradiction with the law.
When a person has been found guilty, he forfeits first his right to liberty. This will in turn entail that he forfeits other rights. But not all. A very important right is not forfeited - any person is entitled to dignity.
"Prisoner" is also a word that is not legally recognised. According to the Reform Institutions Act 1988, every person sent to a "reform institution"- because found guilty by a court of law of a crime or misdemeanour - is known as a "detainee." This change in semantics was meant to further consolidate the fact that "reform institutions" - not prisons - were meant to rehabilitate offenders so that the inmates could go back to resuming life as civilians in a responsible manner.
Human beings, as a general rule, are entitled to the protection of their human rights. This entails that they are entitled to the right to life, liberty and security of the person and the protection of the law. They are also entitled to freedom of conscience, expression, assembly and association and freedom to establish schools as well as the right to the protection of the privacy of their home and other property and from deprivation of property without compensation. These are known as fundamental rights and are guaranteed by the Constitution of Mauritius.
This is why the principle that "a person is presumed innocent until he is found guilty" is important. An innocent person, a person that hasn't offended and violated the laws of the land, is entitled to all these fundamental rights.
But what happens when the person has been found guilty? He forfeits first his right to liberty. This will in turn entail that he forfeits other rights. But not all. A very important right, fundamental in every sense, is not forfeited - any person, detainee or not - is entitled to dignity.
"Dignity" is a word hard to describe legally, according to lawyers. But, over the years, it has been understood that the dignity of a person, regardless of whether he enjoys li-berty or not is that he should have the foremost right to health and be treated like a "human being".
This means that a detainee who has legally forfeited his right to liberty - and hence to freedom of movement - has to be treated well, fed well, not be the victim of violence and certainly not of torture. He retains his freedom of conscience, his freedom of expression to a certain extent even though it is somewhat curtailed, his right to the protection of the law even though he himself has broken it and the right to practise his chosen religion among others.
The Reform Institutions Act provides for those rights and explains among other things that the detainee, from the moment he is convicted, is in the custody of the Commissioner of Prisons. He is in this custody for a purpose and that purpose is to pu-nish him for his crime but also make him a better citizen so that he does not become a recidivist.
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While he is there, he is not to be punished unduly and not to be tortured but the law recognizes that penal institutions have to maintain discipline in pri-sons. Hence, if a detainee wilfully refuses to obey orders meant to uphold discipline, prison officers are entitled to use reasonable force to compel him to obey.
The freedom of association is another fundamental right that is not forfeited even when one is detained. This right is, however, subject to good behaviour. If one is unduly unruly, the authorities have a right to segregate the detainee and deprive him of this right of association.
Hence, besides the very fundamental deprivation of a citizen's right to liberty, a detainee should keep most of his other rights. But most of them are subject to discipline. This is the prison authorities' prime duty and this is what governs the rights of detainees. Of course, subject to the fundamental rights that they retain, that is.
I can well concur with Deepa's article on the human rights of prisoners in Mauritius. I did a number of training for prison officers in that country just over two years ago when Bill Duff from UK was appointed the commissioner for the prison services there. I was utterly appalled at the abysmal conditios of a lerge number of the prisoners as well as the widesprad corruption which I witnessed amongst the high ranking prison officers.
Mauritius likes to pride itself for being a country of example and good governance. However, first hand experience in witnessing human rights abuses in... [Read Full Text]
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