BLANCHARD & ORS v MINISTER OF JUSTICE 1999 (2) ZLR 24 (S)

Flynote

Constitutional law ” Constitution of Zimbabwe 1980 ” Declaration of Rights ” s 15(1) ” protection against inhuman or degrading treatment ” unconvicted prisoners ” constitutional rights of unconvicted prisoners ” purpose of detaining unconvicted prisoners ” restraints which may be placed on such prisoners ” limits to such restraints ” prisoners kept in solitary confinement, isolated from co-accused, deprived of own clothing and cell light on at all times ” such treatment inhuman

Human rights ” treatment of unconvicted prisoners in inhuman way ” violation of s 15(1) of Constitution

Headnote

Three prisoners were awaiting trial on allegations that they had committed serious crimes of a security nature. Because of the nature of the crimes they had allegedly committed, the prison authorities treated them as high risk prisoners who might attempt to escape. It was considered that they required utmost security and vigilance. For several months, each prisoner had been held in a small individual cell in a heavily guarded and secure cell block. They were kept locked in their cells for most of the day, except for a period when they were allowed to exercise and shower. Each prisoner exercised alone in the absence of other prisoners. The lights in their cells were continually on day and night. Initially, when the prisoners went to bed they were stripped naked and shackled in leg-irons. They were not able to see one another and were not permitted to call out to each other. The only occasions when they were allowed to be in one another's company and were able to converse with one another were during consultations with their legal representative and when taken to court on remand underarmed escort. They were obliged to wear prison clothing and were not allowed to have their wristwatches. They were not allowed to receive food from sources outside the prison.

The prisoners applied to the Supreme Court on the grounds that they were being subjected to various forms of inhuman or degrading treatment in violation of s 15(1) of the Declaration of Rights of the Constitution and for an order against the prison authorities to stop them from violating their rights. They complained that they were not being treated like other prisoners awaiting trial. They also alleged that they had been intimidated and tortured while in police custody as a result of which they were suffering from physical and mental trauma and fearful of a recurrence of this ill treatment. These allegations which were not denied by the respondents.

Held, that the courts will afford the prison authorities wide-ranging deference in the adoption and execution of policies and practices which in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Nonetheless it remains the continuing responsibility of the courts to uphold the constitutional rights of prisoners. Even where there are relevant security considerations, a just balance must be struck between security requirements and the protection of the constitutional rights of prisoners. The aim of s 15(1) of the Constitution is to protect the dignity and the physical and mental integrity of the individual. The prohibition relates not only to acts that cause physical pain but also to those that cause mental suffering to the victim.

Held, further, that prisoners awaiting trial are unconvicted and such prisoners are presumed to be innocent of any wrongdoing. The purpose of the detention of unconvicted prisoners is to secure their attendance at the trial and not to punish them. The restraints imposed upon them must be only those that are absolutely necessary to ensure that they remain in custody and do not endanger themselves, other inmates or prison staff.

Held, further, that notwithstanding that the most serious charge against the applicants was not being proceeded with, the conditions under which the applicants were incarcerated had not been relaxed.

Held, further, that there may be special circumstances in which it is permissible to isolate a prisoner from other prisoners. But the onus lies on the prison authorities to justify such stringent action as enforced and prolonged isolation can cause psychological harm and mental suffering. The prison authorities had not discharged this onus in the present case. The prison authorities sought to justify the isolation of the prisoners on the grounds that they were facing serious charges and they might attempt to escape. However, the security conditions in place made escape very unlikely. Furthermore, the charges now being faced by the prisoners were not as serious as they were initially. The continuous lighting of the cells disturbed sleep and could cause other psychological effects. It was not necessary for security and to guard against escape as claimed. It seemed to be aimed at worsening the conditions of confinement by making it as uncomfortable and severe as possible.

Held, further, that the prolonged ill-treatment the applicants have been compelled to endure and its physical and mental effects upon them attained the minimum level of severity necessary to constitute a violation of s 15(1) of the Constitution. This suffering was not simply the inevitable consequence of the operation and administration of a high security prison and the usual element of humiliation associated with detention on remand.

Held, further, that the applicants, as unconvicted prisoners, had a right to wear their own clothing and should not have been forced to wear prison clothing. To make them wear prison clothing was to debase and humiliate them.

Held, further, that the stripping of the appellants at night and shackling them in leg irons was a manifestly inhuman measure. However, on the instructions of the Attorney-General the prison authorities had discontinued these measures, though their resumption had been threatened. Prison authorities should not use leg-irons and handcuffs except to prevent escape during transportation or restrain violent behaviour that would endanger safety of the prisoner or others or would significantly damage property and where there are not other effective measures to restrain the prisoners. The resort to these unwarranted punitive measures gravely aggravated the condition of solitary confinement to which the applicants were subjected. As awaiting trial prisoners, they were victims of arbitrary harshness with no regard to the trauma they had already suffered at the hands of the police, about which treatment the prison authorities were aware.

Held, further, that the applicants, as prisoners awaiting trial, were entitled to receive food from outside the prison but the prison authorities were entitled to inspect the food and to taste it before it was delivered to the prisoners.

Held, further, that the prison authorities were entitled to remove the applicants' wristwatches as there were sound penological reasons for doing so.

Held, further, that as a mark of disapproval of the treatment meted out to the applicants, the respondents should be penalised by the payment of costs on the higher scale.