11 January 2014

Tanzania: Overcrowding of Prisons - What Does Draft Constitution Say?

THE march towards our proposed new constitution is earnestly on course. If everything goes on well as expected, come 2015 we should be having a homegrown Constitution addressing most of the salient issues.

I am saying this with an experience of one of my Namibian friends, senior politician who is still nursing some misgivings on his country's constitution hailed to be one of the best constitutions in Africa.

Apparently he was among the drafters of that constitution with some entrenched articles that cannot be changed.

These articles deal with human rights and the right to property where the question of land is the bone of contention.

That is where the complication of willing seller and willing buyer of the land is frustrating the indigenous people despite the affirmative action programme.

Then I asked him, how on earth did you allow that to happen? He was quite frank that they were mesmerised by the advent of uhuru. Their focus was gripped on independence at the expense of everything and now they are facing the music.

That particular chapter in the constitution cannot be changed unless a miracle creeps in Namibia. I hope that will not be in our case as we are writing our constitution with sobriety looking forward for a better future after living with the current constitution for over fifty years.

An attempt has been made to make it all inclusive bringing everybody in. So it should be the work of the Constituent Assembly to tie the loose knots.

Apparently one of the vulnerable groups, prisoners -- whose some of their rights have been temporarily removed by the court of law, will find this constitution unfriendly to them.

There was no attempt of seeking their views as imprisonment does not wipe out their civil rights. They had the right to make a contribution to the new constitution not to be mistaken for demanding comfortable stay in prisons but for safeguards of their rights; we say prisoners are sent to prison as punishment, not for punishment; therefore prison environments must be safe and humane as close as possible to conditions in the community.

Having worked with prisoners for more than forty-five years I know what they would have asked to be considered in the constitution. However, since I am still working with them in a Non Governmental Organisation known as "Inmate Rehabilitation and Welfare Services- Tanzania" (IRaWS-T), I am qualified to be their mouth piece.

For the last thirty years our prisons have been experiencing serious overcrowding of prisoners forcing unintentionally to infringe on their human rights.

Human dignity is a fundamental concept in the realisation of human rights. Humane treatment of prisoners is a critical element of human dignity but in reality our prisoners are not able to realize their right to dignity.

Statistics show that our prisons are grossly over-congested. The all time highest level of overcrowding was in 2004 with capacity exceeded approximately 193 %.

By then overall official capacity of prisons in Tanzania was 22,699 prisoners, in that year more than 45,000 individuals were incarcerated.

However, thanks to Presidential Amnesties which have lowered the congestions as currently the total average of prisoners is about 32,000 with authorised capacity of about 29,000. For the last eight years, 58,369 prisoners have benefited from these Presidential amnesties!

The solution is yet to come on how to decongest prisons. President Kikwete has several times appealed to the Criminal Justice System to find ways of addressing this overcrowding in which he referred to as "mzungu wanne" syndrome.

Human Rights activists are considering overcrowding of prisons as a constitutional issue; is it a violation to the constitution? Our Draft Constitution has a number of articles related to human rights in Chapter 4.

Article 25(e) touches on privacy when a person is being investigated or undergoing a punishment presumably in prison, while 25(f) is on torture or servitude treatment of offenders.

Reading together with article 40 which confirms that a person under custody retains all his/her basic rights and deserves rightful treatment then overcrowding indeed is a violation of the constitution.

There are different institutions that can address overcrowding effectively if they are financially boosted. These include Community Service Scheme, Parole System, Prison's Rehabilitation and Social Reintegration Programmes. They could not only save the country from violation of the constitution but also contribute to public safety and combating crime.

For instance, in 1995, the Parliamentary Assembly of the Council of Europe, concerned by the levels of prison overcrowding in member states, noted that "a sharp rise in the prison population in recent years" was caused "not only by increased criminality" but by "the augmentation of penalty scales and longer sentences imposed by the courts... "

It invited member states to implement a series of recommendations on the consistency of sentencing, as well as a European Rule on the use of non-custodial punishment. Overcrowding constitutes a constitutional violation when considering "totality-of conditions" approach.

Here, you have to consider levels of overcrowding -- particularly cell floor space per prisoner -- but consider it together with a range of other conditions such as availability of basic necessities, sufficient staff supervision, the state of sanitation, the amount of allotted exercise time, how much time prisoners spend in the open air, and so forth. One of the clearest examples of the totality approach is to be found in the jurisprudence of the European Court of Human Rights.

The Court adjudicates on prison conditions under Article three of the European Convention on Human Rights which states that: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment".

Should we allow our prisons to continue being over-congested? We would be negating to that adage by former President of South Africa Nelson Mandela that, "No one truly knows a Nation until one has been inside its jail. A nation should not be judged by how it treats highest citizens, but its lowest." mgosiwasui87@gmail,com +255754342711 Senior Citizen.

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