By Dr Akinola Akintayo
- INTRODUCTION
The pledge to leave no one behind in the 2030 Agenda for
Sustainable Development will seem to exclude the most vulnerable in
this time of COVID-19 pandemic in Nigeria. While it is acknowledged
that prisoners are one of the groups most susceptible to COVID-19
infection and transmission as a result of the closed and often
over-crowded nature of prisons vis-a-vis the known characteristics
of the virus, enough is yet to be done in terms of the steps
required to obviate the risks of the pandemic to prison inmates and
others in custodial centres across the country. Outside of the
calls by the President of Nigeria to urgently decongest the prisons
by expediting trials of awaiting trial inmates who accounted for 70
per cent of prison inmates and the directive of the Inspector
General of Police (IGP) to zonal Assistant-Inspector-Generals and
Commissioners of Police in various commands not to detain anybody
arrested for bailable offences in a bid to decongest police cells
and custodial centres, no other plans to protect inmates of
custodial centres appear to be in the pipeline. While directives to
decongest custodial centres in the country are noteworthy and
commendable, much more needs to be done if inmates of custodial
centres are to be protected from the onslaught of COVID-19. This
brief review highlights and discusses the rights of Nigerian prison
inmates under the laws and Constitution of Nigeria as well as going
forward. While many rights of prisoners are likely to be implicated
by the pandemic and government responses thereto, this review
focuses on health related rights and protection of prison inmates
from contracting COVID-19 and not the wide spectrum of rights
likely to be implicated by the outbreak of the pandemic and the
government responses thereto.
The review is divided into four sections. The first section is
this introduction. The second section briefly discusses the nature
of COVID-19 vis-à-vis the state and condition of Nigerian prisons
to underline the vulnerability of Nigerian prison inmates to the
disease. The third part discusses some health related rights of
prisoners under the constitution and the laws of Nigeria to give an
indication of the obligations and duties of the government to the
inmates of custodial centres. The fourth section concludes the
review and offers some recommendations on the way forward.
- THE NATURE OF COVID-19 AND THE CONDITION OF NIGERIAN
PRISONS
2.1 Nature of COVID-19 coronavirus
COVID-19 belongs to a class of zoonotic coronaviruses which can
be transmitted from animals to humans. The disease, first
discovered in a Wuhan wet market in China where wild games and
other animals were slaughtered and sold, was alleged to have been
transmitted to humans through wild games in the wet market.[1] Person to person transmission of the virus is
currently believed to occur through five main ways: (i) through
coughing and sneezing of infected person(s) by which virus droplets
are deposited in the air or surfaces; (ii) through close contact
with infected person(s) effected by touching or shaking of hands;
(iii) through the touching of contaminated surfaces and using the
contaminated hand(s) to touch one’s eyes, nose or mouth; or through
faecal contamination.[2] Lastly, it was
initially thought that the virus is not airborne, recent studies
however suggest that the virus survives longer and travel farther
in the air of closed and poorly ventilated spaces like patients’
bathrooms and doctors changing rooms etc. while the aerosol level
and concentration of the virus well ventilated and rigorously
sanitised spaces is often low.[3]
In summary, five main modes for COVID-19 transmission have been
identified: (i) direct contact with infected person(s); (ii)
contact with infected surfaces; (iii) respiratory droplets when an
infected person coughs, sneezes or talks; (iv) airborne
transmission in poorly ventilated and sanitised spaces; and, (v)
through faecal contamination.[4]
2.2 Condition of Nigeria prisons
Nigeria has 244 prisons (most of which were built during the
colonial period) with 74, 000 inmates.[5]
52,000 of the inmates i.e about 70 per cent of the prisons’
population are awaiting trial inmates.[6]
Nigerian prisons (now renamed correctional centres) are notoriously
dilapidated and overcrowded. According to reports:
Kaduna Prison which has capacity for only 473 inmates, now has
1,480 prisoners; while Enugu Maximum Security Prison with capacity
for 638, now has 2,077 prisoners. The Port Harcourt Maximum
Security Prison has capacity for only 804 but currently has 4,576
locked up. Kirikiri Prison in Lagos has capacity for only 500
prisoners but now accommodates 1,601 prisoners.[7]
The overcrowding and congestion in the correctional centres
highlighted above is a notorious feature of the rest of the
correctional centres in the country. Consequently, social
distancing, a core mechanism for preventing the transmission of the
virus is impracticable in Nigerian prisons environment. In addition
to the congestion, prisoners excrete and urinate in their
overcrowded cells. These exposes them to the risk of transmission
of the the virus through contact with the faecal waste of infected
prisoners. Nigerian prison inmates also lack adequate food and
healthcare which may result in compromised immune systems and
predisposed them to COVID-19 fatalities. The prisons also lack
basic hygiene facilities like plastic buckets, water and
soap.[8] Prisoners who desire to have basic
wash facilities must purchase the items for themselves or go
without these basic facilities. Thus, the ability of inmates to
frequently wash their hands with soap and running water is
seriously compromised. As a result of the foregoing, Nigerian
prison inmates are vulnerable and endangered at this time of
COVID-19.
- RIGHTS OF PRISON INMATES UNDER THE CONSTITUTION AND
LAWS OF NIGERA
This section identifies and discusses some of the rights
accruing to prisons and custodial centres inmates under the laws
and Constitution of Nigeria vis-à-vis the current COVID-19
pandemic. This is an emerging area of discourse in Nigeria;
recourse is therefore had to the laws and jurisprudence of the
United States of America (USA) which shares similar constitutional
rights regime with Nigeria. The courts there have also recently
been active in applying existing rights regime in the protection of
prisoners during this COVID-19 pandemic. Thus, insights from the
laws and jurisprudence of the US will be useful in developing
relevant norms in this area of Nigerian law. The rights identified
and discussed here are as follows:
3.1 Right to a suitable condition of confinement
Suitable condition of confinement for persons deprived of
liberty by the state is an essential component of the treatment of
offenders under international law. Rules 12 to 18 of the United
Nations Standard Minimum Rules for the Treatment of Prisoners (the
Nelson Mandela Rules) adopted on 17 December 2015 set out the
different requirements and standards relating to the condition of
accommodation, sanitation, hygiene, clothing and bedding, food,
exercise and sports that will ensure suitable condition of
confinement for persons deprived of liberty by the state. In
Hutto v Finney[9] the US Supreme
Court affirmed the decision of the District Court that unsuitable
condition of Arkansas prison is a violation of the right against
cruel and unusual punishment and the equal protection right of the
Eighth and Fourteenth Amendments to the United States Constitution
respectively. In Helling v. McKinney,[10] the US Supreme Court also held that prison
officials may not ignore conditions that will or is likely to
predispose or expose inmates to an unsafe or life-threatening
condition as this will constitute a violation of the cruel and
unusual punishment provision of the Eighth Amendment to the US
Constitution. Thus, mere exposure of prisoners to unsafe or
life-threatening condition or communicable diseases is enough to
violate this right.
Following from the above, the right to suitable condition of
confinement for inmates of custodial centres in Nigeria can be
located in section 34 (1) (a) and article 5 of the Constitution of
the Federal Republic of Nigeria, 1999, as amended (CFRN) and the
African Charter (Ratification and Enforcement) Act[11] (the African Charter Act) respectively. Both
of these norms guarantee the right to dignity of the human person
and outlaw torture and inhuman or degrading treatment in Nigeria.
Right to suitable condition of confinement is also bottomed upon
the proviso to section 9 (1) and section 30 (3) of the new Nigerian
Correctional Service Act, 2019 (NCSA). Section 30 (3) of NCSA
expressly referenced the Nelson Mandela Rules and provides that:
‘There shall be the provision of basic needs to meet the minimum
standards for the treatment of inmates which includes
accommodation, feeding, potable water, hygiene, sewage disposal,
clothing and toiletries.’
3.2 Right to be protected from future risk of harm and
damage to health
Right of persons in custody to be protected from harm is not
restricted to prevention of present danger but extends to
protection of inmates from the likelihood of future harm arising
from present circumstances and conditions. In Farmer v.
Brennan,[12] the US
Supreme Court held that prison officials may not with deliberate
indifference ignore obvious risks of danger to prisoner’s future
health or safety. This, the Court held will be a violation of the
Eighth Amendment’s prohibition of cruel and unusual punishment. The
right of prisoners to be protected from future risk of harm in
Nigeria can also therefore be located in section 34 (1) (a) and
article 5 of the CFRN and the Africa Charter Act prohibition of
cruel and unusual punishment or treatment.
3.3 The obligation of prison authorities to follow
authorised health protocols and prepare for COVID-19
Recent authorities from US courts suggest that prison
authorities are obliged to prepare for the outbreak of the
coronavirus pandemic in their prisons and safeguard the health and
wellbeing of inmates therein. Failure to fulfil this obligation may
lead to court ordered release of vulnerable inmates. In Basank
v. Decker,[13] defence
attorneys brought a petition for court ordered release of detainees
of a county jail on grounds of the condition of the jail considered
a breeding ground for COVID-19 and the increased risk of detainees
contracting the virus as a result of their underlying health
conditions. The court ordered the release of the detainees because
of the prison authorities’ unpreparedness for COVID-19 outbreak and
the absence of appropriate safeguards to secure the health and
well-being of vulnerable detainees. This right flows directly from
the right to adequate medical and health facilities in section 17
(3) (d) of the CFRN and the obligation of the Nigerian state to
take necessary measures to protect public health under article 16
(2) of the African Charter Act.
3.4 The right to medical attention and health care
services
The right to health care services and medical attention is a
broad right of prison inmates. According Rule 24 (1) of the Nelson
Mandela Rules ‘[t]he provision of health care for prisoners is a
State responsibility’. The wide spectrum of rights guaranteed by
health care services right and medical attention are listed in
Rules 24 to 35 of the Mandela Rules and includes the enjoyment of
the same standard of health care with the rest of the community
without discrimination;[14] the right to
receive prompt medical attention in emergency cases;[15] the right to receive pre-natal and post-natal
care in women prisons, among others. The health care services and
medical attention rights are also bottomed upon section 17 (3) (d)
of the CFRN and article 16 (2) of the African Charter. The right to
health care services and medical attention is also recognised and
preserved in the NCSA. The NCSA obliges prisons to put healthcare
services in place, see to the mental health of inmates and provide
prompt medical attention to sick inmates within or without
custodial centres as appropriate.[16] In
Odafe and Others v Attorney-General and Others,[17] the court held that failure of prison
officials to provide medical attention and treatment for HIV/AIDS
positive inmates is a violation of the constitutional prohibition
of torture, a breach of article 16 of the African Charter and
section 8 of the now repealed Prisons Act.
Although the rights to food, potable water, suitable
accommodation, hygiene facilities, clothing and bedding, exercise
and sports are part and parcel of the panoply of rights making up
the right to suitable condition of confinement, these rights are
also stand-alone and independent rights with specific contents
accruing to prison inmates in the laws and Constitution of Nigeria.
Limited space will however not permit exhaustive discussion of the
latter rights here.
The above shows that the health, well-being and safety of prison
inmates whether before, during or after pandemics are
constitutionally imposed obligations and duties of the Nigerian
state. These are entitlements accruing to inmates as a matter of
right and not as a matter of charity, goodwill or discretion. The
government is therefore constitutionally obliged to do all within
its power and resources to discharge these obligations to
inmates.
- CONCLUSION
This review discusses the rights of inmates of prisons and
custodial centres under the laws and Constitution of Nigeria. It
discusses the nature of COVID-19 pandemic vis-à-vis the condition
and character of Nigerian prisons and finds that the condition and
nature of Nigerian prisons predisposes inmates to the ravaging
onslaughts of the COVID-19 pandemic. Thereafter, the provisions of
laws and the Constitution guaranteeing the safety, health and
well-being of prison inmates in Nigeria were discussed. It was
discovered that what obtains in practice is a far cry from what the
Constitution and the laws prescribe.
Going forward, the following recommendations for the effective
management of Nigerian custodial centres and its bourgeoning
population for a more robust response and management of outbreak
and spread of infectious diseases are proposed as follows: First,
governments at both the Federal and state levels needs to
operationalise the plea bargain mechanism in section 270 of the
Administration of Criminal Justice Act, 2015 (ACJA). Some states of
the Federation like Lagos, Edo, Adamawa and Kano States have
similar plea bargain provisions in their Administration of Criminal
Justice Laws (ACJLs). Plea bargain, apart from helping to decongest
case dockets, can also help in decongesting the prisons by ensuring
early resolution of criminal cases. Second, non-custodial sentences
should also be operationalised at both the Federal and States
levels. This will help ensure that only those that deserved to be
in prison are sent to prison. Provisions on non-custodial sentences
are expressly recognised in the NCSA. Alternative sentencing
measures provided in the NCSA include parole, probation, community
service, restorative justice measures, and any other non-custodial
measures assigned to the Correctional Service by the courts.[18] The NCSA also mandates the establishment of
the National Committee on Non-Custodial Measures to oversee the
effective implementation of the non-custodial measures of the
NCSA.[19] States of the Federation are also
encouraged to domesticate and operationalise non-custodial and
alternative sentencing mechanisms in their administration of
criminal justice regimes. This will go a long way in decongesting
the overcrowded prison population in Nigeria. Third, there is need
to upgrade Nigeria’s custodial centres most of which were relics of
colonialism from their dilapidated states to modern ones that can
cope with the increased number of inmates. Finally, there is need
for improved funding for the Nigeria Correctional Service so that
it will be able to perform its statutorily assigned roles and
functions as well as effectuate the laudable objectives of the
newly enacted NCSA and the rebranded prison institutions in the
country.
Dr Akinola Akintayo is a Senior
Lecturer and constitutional law and human rights expert at the
Faculty of Law, University of Lagos, Akoka-Yaba, Lagos. Email:
aakintayo@unilag.edu.ng[1]
[1] J Fuk-Woo Cha et al ‘A familial cluster
of pneumonia associated with the 2019 novel coronavirus indicating
person-to-person transmission: a study of a family cluster’ (2020)
395 Lancet 514.
[2] Market Watch ‘Coronavirus survives longer
airborne and travels further in these public spaces’ (27 April
2020) available at
https://www.marketwatch.com/story/coronavirus-survives-longer-airborne-and-travels-further-in-these-public-spaces-heres-where-to-be-extra-careful-2020-04-27?siteid=yhoof2&yptr=yahoo
(accessed 28 April 2020).
[3] Y Liu et al ‘Aerodynamic analysis of
SARS-CoV-2 in two Wuhan hospitals’ (2020) Nature available
at https://www.nature.com/articles/s41586-020-2271-3_reference.pdf
(accessed 28 April 2020).
[4] See for instance, Worldometer ‘SARS-CoV-2
Transmission’ (16 April 2020) available at
https://www.worldometers.info/coronavirus/transmission/ (accessed
28 April 2020).
[5] Punch ‘Saving prisoners, IDPs from COVID-19’ (10
April 2020) available at
https://punchng.com/saving-prisoners-idps-from-covid-19/ (29 April
2020)
[6] As above.
[7] Amnesty International ‘Nigeria: Authorities must
uphold human rights in fight to curb COVID-19’ (1 April 2020)
available at
Nigeria: Authorities must uphold human rights in fight to curb COVID-19
(accessed 28 April 2020).
[8] As above.
[9] 427 US 678 (1978)
[10] 509 U.S. 25 (1993)
[11] Cap A9 LFN 2004
[12] 511 U.S. 825 (1994)
[13] Case number (1:20-cv-02518-AT).
Decided by the New York Southern District
Court[2]
[14] Rule 24 (1) of the Mandela Rules.
[15] Rule 27 of the Mandela Rules.
[16] Section 23 to 25 of the NCSA.
[17] (2004) AHRLR 205
[18] Sections 37 to 43 of the NCSA.
[19] Section 37 (2) and (3) of the
NCSA.
By Dr Akinola Akintayo
- INTRODUCTION
The pledge to leave no one behind in the 2030 Agenda for
Sustainable Development will seem to exclude the most vulnerable in
this time of COVID-19 pandemic in Nigeria. While it is acknowledged
that prisoners are one of the groups most susceptible to COVID-19
infection and transmission as a result of the closed and often
over-crowded nature of prisons vis-a-vis the known characteristics
of the virus, enough is yet to be done in terms of the steps
required to obviate the risks of the pandemic to prison inmates and
others in custodial centres across the country. Outside of the
calls by the President of Nigeria to urgently decongest the prisons
by expediting trials of awaiting trial inmates who accounted for 70
per cent of prison inmates and the directive of the Inspector
General of Police (IGP) to zonal Assistant-Inspector-Generals and
Commissioners of Police in various commands not to detain anybody
arrested for bailable offences in a bid to decongest police cells
and custodial centres, no other plans to protect inmates of
custodial centres appear to be in the pipeline. While directives to
decongest custodial centres in the country are noteworthy and
commendable, much more needs to be done if inmates of custodial
centres are to be protected from the onslaught of COVID-19. This
brief review highlights and discusses the rights of Nigerian prison
inmates under the laws and Constitution of Nigeria as well as going
forward. While many rights of prisoners are likely to be implicated
by the pandemic and government responses thereto, this review
focuses on health related rights and protection of prison inmates
from contracting COVID-19 and not the wide spectrum of rights
likely to be implicated by the outbreak of the pandemic and the
government responses thereto.
The review is divided into four sections. The first section is
this introduction. The second section briefly discusses the nature
of COVID-19 vis-à-vis the state and condition of Nigerian prisons
to underline the vulnerability of Nigerian prison inmates to the
disease. The third part discusses some health related rights of
prisoners under the constitution and the laws of Nigeria to give an
indication of the obligations and duties of the government to the
inmates of custodial centres. The fourth section concludes the
review and offers some recommendations on the way forward.
- THE NATURE OF COVID-19 AND THE CONDITION OF NIGERIAN
PRISONS
2.1 Nature of COVID-19 coronavirus
COVID-19 belongs to a class of zoonotic coronaviruses which can
be transmitted from animals to humans. The disease, first
discovered in a Wuhan wet market in China where wild games and
other animals were slaughtered and sold, was alleged to have been
transmitted to humans through wild games in the wet market.[1] Person to person transmission of the virus is
currently believed to occur through five main ways: (i) through
coughing and sneezing of infected person(s) by which virus droplets
are deposited in the air or surfaces; (ii) through close contact
with infected person(s) effected by touching or shaking of hands;
(iii) through the touching of contaminated surfaces and using the
contaminated hand(s) to touch one’s eyes, nose or mouth; or through
faecal contamination.[2] Lastly, it was
initially thought that the virus is not airborne, recent studies
however suggest that the virus survives longer and travel farther
in the air of closed and poorly ventilated spaces like patients’
bathrooms and doctors changing rooms etc. while the aerosol level
and concentration of the virus well ventilated and rigorously
sanitised spaces is often low.[3]
In summary, five main modes for COVID-19 transmission have been
identified: (i) direct contact with infected person(s); (ii)
contact with infected surfaces; (iii) respiratory droplets when an
infected person coughs, sneezes or talks; (iv) airborne
transmission in poorly ventilated and sanitised spaces; and, (v)
through faecal contamination.[4]
2.2 Condition of Nigeria prisons
Nigeria has 244 prisons (most of which were built during the
colonial period) with 74, 000 inmates.[5]
52,000 of the inmates i.e about 70 per cent of the prisons’
population are awaiting trial inmates.[6]
Nigerian prisons (now renamed correctional centres) are notoriously
dilapidated and overcrowded. According to reports:
Kaduna Prison which has capacity for only 473 inmates, now has
1,480 prisoners; while Enugu Maximum Security Prison with capacity
for 638, now has 2,077 prisoners. The Port Harcourt Maximum
Security Prison has capacity for only 804 but currently has 4,576
locked up. Kirikiri Prison in Lagos has capacity for only 500
prisoners but now accommodates 1,601 prisoners.[7]
The overcrowding and congestion in the correctional centres
highlighted above is a notorious feature of the rest of the
correctional centres in the country. Consequently, social
distancing, a core mechanism for preventing the transmission of the
virus is impracticable in Nigerian prisons environment. In addition
to the congestion, prisoners excrete and urinate in their
overcrowded cells. These exposes them to the risk of transmission
of the the virus through contact with the faecal waste of infected
prisoners. Nigerian prison inmates also lack adequate food and
healthcare which may result in compromised immune systems and
predisposed them to COVID-19 fatalities. The prisons also lack
basic hygiene facilities like plastic buckets, water and
soap.[8] Prisoners who desire to have basic wash
facilities must purchase the items for themselves or go without
these basic facilities. Thus, the ability of inmates to frequently
wash their hands with soap and running water is seriously
compromised. As a result of the foregoing, Nigerian prison inmates
are vulnerable and endangered at this time of COVID-19.
- RIGHTS OF PRISON INMATES UNDER THE CONSTITUTION AND
LAWS OF NIGERA
This section identifies and discusses some of the rights
accruing to prisons and custodial centres inmates under the laws
and Constitution of Nigeria vis-à-vis the current COVID-19
pandemic. This is an emerging area of discourse in Nigeria;
recourse is therefore had to the laws and jurisprudence of the
United States of America (USA) which shares similar constitutional
rights regime with Nigeria. The courts there have also recently
been active in applying existing rights regime in the protection of
prisoners during this COVID-19 pandemic. Thus, insights from the
laws and jurisprudence of the US will be useful in developing
relevant norms in this area of Nigerian law. The rights identified
and discussed here are as follows:
3.1 Right to a suitable condition of confinement
Suitable condition of confinement for persons deprived of
liberty by the state is an essential component of the treatment of
offenders under international law. Rules 12 to 18 of the United
Nations Standard Minimum Rules for the Treatment of Prisoners (the
Nelson Mandela Rules) adopted on 17 December 2015 set out the
different requirements and standards relating to the condition of
accommodation, sanitation, hygiene, clothing and bedding, food,
exercise and sports that will ensure suitable condition of
confinement for persons deprived of liberty by the state. In
Hutto v Finney[9] the US Supreme
Court affirmed the decision of the District Court that unsuitable
condition of Arkansas prison is a violation of the right against
cruel and unusual punishment and the equal protection right of the
Eighth and Fourteenth Amendments to the United States Constitution
respectively. In Helling v. McKinney,[10] the US Supreme Court also held that prison
officials may not ignore conditions that will or is likely to
predispose or expose inmates to an unsafe or life-threatening
condition as this will constitute a violation of the cruel and
unusual punishment provision of the Eighth Amendment to the US
Constitution. Thus, mere exposure of prisoners to unsafe or
life-threatening condition or communicable diseases is enough to
violate this right.
Following from the above, the right to suitable condition of
confinement for inmates of custodial centres in Nigeria can be
located in section 34 (1) (a) and article 5 of the Constitution of
the Federal Republic of Nigeria, 1999, as amended (CFRN) and the
African Charter (Ratification and Enforcement) Act[11] (the African Charter Act) respectively. Both of
these norms guarantee the right to dignity of the human person and
outlaw torture and inhuman or degrading treatment in Nigeria. Right
to suitable condition of confinement is also bottomed upon the
proviso to section 9 (1) and section 30 (3) of the new Nigerian
Correctional Service Act, 2019 (NCSA). Section 30 (3) of NCSA
expressly referenced the Nelson Mandela Rules and provides that:
‘There shall be the provision of basic needs to meet the minimum
standards for the treatment of inmates which includes
accommodation, feeding, potable water, hygiene, sewage disposal,
clothing and toiletries.’
3.2 Right to be protected from future risk of harm and
damage to health
Right of persons in custody to be protected from harm is not
restricted to prevention of present danger but extends to
protection of inmates from the likelihood of future harm arising
from present circumstances and conditions. In Farmer v.
Brennan,[12] the US
Supreme Court held that prison officials may not with deliberate
indifference ignore obvious risks of danger to prisoner’s future
health or safety. This, the Court held will be a violation of the
Eighth Amendment’s prohibition of cruel and unusual punishment. The
right of prisoners to be protected from future risk of harm in
Nigeria can also therefore be located in section 34 (1) (a) and
article 5 of the CFRN and the Africa Charter Act prohibition of
cruel and unusual punishment or treatment.
3.3 The obligation of prison authorities to follow
authorised health protocols and prepare for COVID-19
Recent authorities from US courts suggest that prison
authorities are obliged to prepare for the outbreak of the
coronavirus pandemic in their prisons and safeguard the health and
wellbeing of inmates therein. Failure to fulfil this obligation may
lead to court ordered release of vulnerable inmates. In Basank
v. Decker,[13] defence
attorneys brought a petition for court ordered release of detainees
of a county jail on grounds of the condition of the jail considered
a breeding ground for COVID-19 and the increased risk of detainees
contracting the virus as a result of their underlying health
conditions. The court ordered the release of the detainees because
of the prison authorities’ unpreparedness for COVID-19 outbreak and
the absence of appropriate safeguards to secure the health and
well-being of vulnerable detainees. This right flows directly from
the right to adequate medical and health facilities in section 17
(3) (d) of the CFRN and the obligation of the Nigerian state to
take necessary measures to protect public health under article 16
(2) of the African Charter Act.
3.4 The right to medical attention and health care
services
The right to health care services and medical attention is a
broad right of prison inmates. According Rule 24 (1) of the Nelson
Mandela Rules ‘[t]he provision of health care for prisoners is a
State responsibility’. The wide spectrum of rights guaranteed by
health care services right and medical attention are listed in
Rules 24 to 35 of the Mandela Rules and includes the enjoyment of
the same standard of health care with the rest of the community
without discrimination;[14] the right to
receive prompt medical attention in emergency cases;[15] the right to receive pre-natal and post-natal
care in women prisons, among others. The health care services and
medical attention rights are also bottomed upon section 17 (3) (d)
of the CFRN and article 16 (2) of the African Charter. The right to
health care services and medical attention is also recognised and
preserved in the NCSA. The NCSA obliges prisons to put healthcare
services in place, see to the mental health of inmates and provide
prompt medical attention to sick inmates within or without
custodial centres as appropriate.[16] In
Odafe and Others v Attorney-General and Others,[17] the court held that failure of prison officials
to provide medical attention and treatment for HIV/AIDS positive
inmates is a violation of the constitutional prohibition of
torture, a breach of article 16 of the African Charter and section
8 of the now repealed Prisons Act.
Although the rights to food, potable water, suitable
accommodation, hygiene facilities, clothing and bedding, exercise
and sports are part and parcel of the panoply of rights making up
the right to suitable condition of confinement, these rights are
also stand-alone and independent rights with specific contents
accruing to prison inmates in the laws and Constitution of Nigeria.
Limited space will however not permit exhaustive discussion of the
latter rights here.
The above shows that the health, well-being and safety of prison
inmates whether before, during or after pandemics are
constitutionally imposed obligations and duties of the Nigerian
state. These are entitlements accruing to inmates as a matter of
right and not as a matter of charity, goodwill or discretion. The
government is therefore constitutionally obliged to do all within
its power and resources to discharge these obligations to
inmates.
- CONCLUSION
This review discusses the rights of inmates of prisons and
custodial centres under the laws and Constitution of Nigeria. It
discusses the nature of COVID-19 pandemic vis-à-vis the condition
and character of Nigerian prisons and finds that the condition and
nature of Nigerian prisons predisposes inmates to the ravaging
onslaughts of the COVID-19 pandemic. Thereafter, the provisions of
laws and the Constitution guaranteeing the safety, health and
well-being of prison inmates in Nigeria were discussed. It was
discovered that what obtains in practice is a far cry from what the
Constitution and the laws prescribe.
Going forward, the following recommendations for the effective
management of Nigerian custodial centres and its bourgeoning
population for a more robust response and management of outbreak
and spread of infectious diseases are proposed as follows: First,
governments at both the Federal and state levels needs to
operationalise the plea bargain mechanism in section 270 of the
Administration of Criminal Justice Act, 2015 (ACJA). Some states of
the Federation like Lagos, Edo, Adamawa and Kano States have
similar plea bargain provisions in their Administration of Criminal
Justice Laws (ACJLs). Plea bargain, apart from helping to decongest
case dockets, can also help in decongesting the prisons by ensuring
early resolution of criminal cases. Second, non-custodial sentences
should also be operationalised at both the Federal and States
levels. This will help ensure that only those that deserved to be
in prison are sent to prison. Provisions on non-custodial sentences
are expressly recognised in the NCSA. Alternative sentencing
measures provided in the NCSA include parole, probation, community
service, restorative justice measures, and any other non-custodial
measures assigned to the Correctional Service by the courts.[18] The NCSA also mandates the establishment of the
National Committee on Non-Custodial Measures to oversee the
effective implementation of the non-custodial measures of the
NCSA.[19] States of the Federation are
also encouraged to domesticate and operationalise non-custodial and
alternative sentencing mechanisms in their administration of
criminal justice regimes. This will go a long way in decongesting
the overcrowded prison population in Nigeria. Third, there is need
to upgrade Nigeria’s custodial centres most of which were relics of
colonialism from their dilapidated states to modern ones that can
cope with the increased number of inmates. Finally, there is need
for improved funding for the Nigeria Correctional Service so that
it will be able to perform its statutorily assigned roles and
functions as well as effectuate the laudable objectives of the
newly enacted NCSA and the rebranded prison institutions in the
country.
Dr Akinola Akintayo is a Senior
Lecturer and constitutional law and human rights expert at the
Faculty of Law, University of Lagos, Akoka-Yaba, Lagos. Email:
aakintayo@unilag.edu.ng[1]
[1] J Fuk-Woo Cha et al ‘A familial
cluster of pneumonia associated with the 2019 novel coronavirus
indicating person-to-person transmission: a study of a family
cluster’ (2020) 395 Lancet 514.
[2] Market Watch ‘Coronavirus survives longer
airborne and travels further in these public spaces’ (27 April
2020) available at
https://www.marketwatch.com/story/coronavirus-survives-longer-airborne-and-travels-further-in-these-public-spaces-heres-where-to-be-extra-careful-2020-04-27?siteid=yhoof2&yptr=yahoo
(accessed 28 April 2020).
[3] Y Liu et al ‘Aerodynamic analysis
of SARS-CoV-2 in two Wuhan hospitals’ (2020) Nature
available at
https://www.nature.com/articles/s41586-020-2271-3_reference.pdf
(accessed 28 April 2020).
[4] See for instance, Worldometer ‘SARS-CoV-2
Transmission’ (16 April 2020) available at
https://www.worldometers.info/coronavirus/transmission/ (accessed
28 April 2020).
[5] Punch ‘Saving prisoners, IDPs from
COVID-19’ (10 April 2020) available at
https://punchng.com/saving-prisoners-idps-from-covid-19/ (29 April
2020)
[6] As above.
[7] Amnesty International ‘Nigeria: Authorities
must uphold human rights in fight to curb COVID-19’ (1 April 2020)
available at
Nigeria: Authorities must uphold human rights in fight to curb COVID-19
(accessed 28 April 2020).
[8] As above.
[9] 427 US 678 (1978)
[10] 509 U.S. 25 (1993)
[11] Cap A9 LFN 2004
[12] 511 U.S. 825 (1994)
[13] Case number (1:20-cv-02518-AT). Decided by
the New York Southern District
Court[2]
[14] Rule 24 (1) of the Mandela Rules.
[15] Rule 27 of the Mandela Rules.
[16] Section 23 to 25 of the NCSA.
[17] (2004) AHRLR 205
[18] Sections 37 to 43 of the NCSA.
[19] Section 37 (2) and (3) of the NCSA.