(SA 69-2020) [2023] NASC (18 July 2023) – Constitutional challenge of the practice of placing handcuffs on inmates behind their backs while being transported, solitary confinement, and the denial of contact visits to trial-awaiting inmates
THE first and second respondents, who were first and second applicants a quo (hereafter respectively Mr KennedyandMrTownsend) hadapproached the High Court, seeking relief relating to their status and treatment as awaiting-trial inmates at the Windhoek Correctional Facility (WCF) – a prison run in terms of the Correctional Service Act 9 of 2012 (the Act), on the grounds that such provisions and resultant practices by Correctional Service officials and the Namibian Police amounted to inhumane and degrading treatment, and are thus inconsistent with the Namibian Constitution (the Constitution) and Namibia’s international law obligations.
The duo objected to being transported from their prison cells to court and back with their hands handcuffed behind their backs in a moving vehicle without safety features such as seatbelts; being made to appear in court in handcuffs; being defined as an ‘offender’ under the Act before conviction as a result of which either they receive less favourable treatment than convicted prisoners, or are not afforded treatment befitting their status as un-convicted persons who are presumed to be innocent until proven guilty; being denied contact visits by friends and family; about their prison diet; the failure or refusal by the prison authorities to afford them adequate facilities for the preparation and presentation of their defence; and the conditions of solitary confinement.
The High Court upheld only some of the complaints, and rejected the rest. It declared to be inconsistent with the Constitution the practice of placing handcuffs on applicants while being transported. It also declared the words ‘with or without mechanical restraint’ in s 103(3) of the Act to be inconsistent with the Constitution, and accordingly severed those words from s 103(3). The court a quo further held that sub-para (t) of s 132(1) of the Act is inconsistent with the Constitution, and therefore invalid and accordingly severed it from that provision.
From the onset, the Supreme Court remarked that:
‘[5] I make reference to these declarations of constitutional inconsistency at this early stage because those orders are not supported by the parties to the appeal in the form that they have been granted by the court a quo.
[7] …As counsel quite properly pointed out, orders granted in those circumstances cannot be allowed to stand. Even if no appeal had been lodged against those orders, they would constitute a nullity, and would be subject to reversal by this court mero motu. That is important in view of the ill-fated appeal by the first, second, third and fourth appellants (the Government)…This prompted the question of what was really before the Supreme Court for determination. In the light of the refusal of the condonation application, Mr Kennedy, whose interest only related to opposing the Government’s appeal, fell by the wayside and consequently his pro amico counsel, Mr Nekwaya, no longer took part in the appeal. ‘What is before court, therefore, is the cross-appeal by Mr Townsend.’ In other words, the Supreme Court only had to determine Mr. Townsend’s cross-appeal, which challenged the following findings of the High Court:
1. Finding that the definition of offender passes constitutional muster.
2. Finding that section 103 of the Correctional Service Act passes constitutional muster, save for the aspect of mechanical restraints.
3. Finding that regulation 257 is neither unconstitutional nor ultra vires the Act.
4. Finding that the right to security of one’s person is not protected by Art 9 of the International Covenant on Civil and Political Rights (ICCPR).
5. Finding that no case was made out to support the relief sought in respect of contact visits.
Essentially, the second respondent (Mr. Townsend) cross-appealed the High Court’s finding that the definition of offender (which includes both convicted and un-convicted inmates) in the Act is not offensive to the presumption of innocence guaranteed under Art 12 of the Namibian Constitution. He also cross-appealed the High Court’s dismissal of his constitutional complaints (a) that he was being denied contact visits contrary to the Constitution and international law binding on Namibia and (b) that the solitary confinement regime under the Act and reg 257 was unconstitutional.
The Supreme Court set out the factual matrix relevant to the relief that was refused by the High Court, the governmental respondents’ answers on each of the complaints in order to analyse and dispose of the issue, thus:
In respect of the question of whether the definition of ‘offender’ offends the Constitution, the Court was satisfied that Mr. Townsend made out the case for the relief that he sought in respect of the definition of ‘offender’ under the Act, and that the High Court misdirected itself in coming to a contrary conclusion. It was stated that:
‘[47] It is therefore undeniable that, as defined, an un-convicted awaiting-trial inmate in a correctional facility is equated to a convicted person by virtue of the common denominator of their being incarcerated in a facility run by the Correctional Service which, by legislative policy, is mandated to detain under its auspices persons who have been arrested and by court order remanded as awaiting-trial inmates. It is a matter of public knowledge that in Namibia, the legislative policy referred to is borne of the reality that there are no separate facilities for the long-term detention of remanded un-convicted persons. (It has not been suggested that such a policy is per se unconstitutional).’
The complaint in respect of the right to be treated in accordance with presumption of innocence failed because there was no factual basis laid in support of the complaint:
‘[64] The courts cannot make orders in the abstract. The conduct complained of which violates the Constitution must be clearly identified. The Correctional Service officials must have certainty as to what is expected of them. They should not be left to speculate. The complaint under this heading therefore fails on a factual basis, and was properly dismissed by the High Court.
With regards to contact visits, the complaint was that the Correctional Service does not allow him contact visits because it applies a policy – inherited from the Police – which does not permit contact visits for inmates detained in police cells.
‘[72] The wholesale adoption of the Police’s policy without consideration of the merits of individual cases is a violation of s 77(1) of the Act, which states that ‘the officer-in-charge of a correctional facility may, for the purpose of promoting and maintaining a relationship between the offender, family and community. . . permit any offender to – ‘(a) receive visitors; . . .
(3) The Commissioner-General may, after having given an offender an opportunity to be heard, withdraw or amend any permission to receive visitors . . .’
The Act permits contact visits to awaiting-trial inmates in the discretion of the officer-in-charge of a correctional facility. Secondly, to apply a policy in relation to awaiting-trial inmates which denies them a right which is axiomatic to convicted inmates supports Mr Townsend’s grievance that he and others similarly circumstanced are being treated less favourably than convicted inmates in clear violation of the presumption of innocence.
‘[74]…the officer-in-charge of the WCF by way of a pre-determined policy has abdicated the power given to him or her under s 77(1) of the Act.’
With respect to solitary confinement, the complaint was that the s 103 scheme governing solitary confinement infringes an inmate’s right to protection against arbitrary detention prohibited by Art 11(1) of the Constitution:
‘[86]…Therefore, a scheme for solitary confinement which does not afford an inmate the opportunity to make representations to end it after it had been imposed to avert an emergency unduly perpetuates the deprivation of an inmate’s meaningful human contact with others.’
[87]A fortiori, there can be no legitimate governmental purpose in denying an inmate audi when a decision is being considered to extend the initial period of solitary confinement.’ [89] I come to the conclusion that s 103 fails to pass constitutional muster, and ought to have been struck as being inconsistent with the Constitution: the detention of an inmate in solitary confinement potentially for as long as 90 days without audi or independent review constitutes arbitrary detention proscribed by Art 11(1) of the Constitution. Ms Katjipuka is correct in her submission that the fact that a person is already lawfully detained ‘does not mean that any measures further restricting or limiting the right to liberty may be imposed arbitrarily.’Having analysed all material before it, the Supreme Court held that:
There is stigma attached to the word offender in its ordinary grammatical signification. It strikes at the heart of the constitutionally-guaranteed presumption of innocence to attribute to a person who is only suspected of an offence and is yet to stand trial a connotation that he or she had already been adjudged guilty. The definition of ‘offender’ is therefore inconsistent with Art 12(1)(d) of the Constitution.
Held further that, whilst s 77 of the Act allows the officer-in-charge of a correctional facility to authorise contact visits to inmates, the blanket, non-discretionary adoption by the Correctional Service of the Police’s policy of not allowing contact visits to awaiting-trial inmates is in conflict with Art 12(1)(d) and Art 10 of the Constitution.
Section 103 and reg 257 fail to pass constitutional muster: the detention of an inmate in solitary confinement potentially for as long as 90 days without audi or independent review constitutes arbitrary detention proscribed by Art 11(1) of the Constitution.
As a result, the cross-appeal succeeded, but parts of the declarations of constitutional invalidity were suspended in terms of Art 25(1)(a) of the Constitution to allow the Legislature and the Executive to remedy the defects identified in the judgement. No order as to costs was made.
The court thus ordered that:
‘1. Definition of offender
1.1 The definition of offender, as provided for in the Correctional Service Act 9 of 2012, insofar as it includes trial-awaiting persons, is inconsistent with Articles 8, 10 and 12(d) of the Namibian Constitution, and is therefore struck off.
1.2 The declaration of unconstitutionality is suspended for a period of 18 months from the date of this order in terms of Article 25(1)(a) of the Constitution, for the Legislature and the Executive to correct the defect identified in this judgement.
2. Transportation of inmates in police vans
The transportation of an inmate in police vans with their hands handcuffed at the back, while the vehicle is moving and such vehicle has no safety features to prevent physical harm to an inmate, is declared inconsistent with Article 8(2)(b) the Namibian Constitution.
3. Section 103
3.1 Section 103 of the Correctional Service Act 9 of 2012 is declared to be inconsistent with Articles 7 and 11(1) of the Namibian Constitution, and is therefore invalid.
3.2 The declaration of unconstitutionality is suspended for a period of 18 months from the date of this order in terms of Article 25(1)(a) of the Constitution, for the Legislature and the Executive to correct the defect identified in this judgement.
4. Regulation 257
4.1 Regulation 257 made in terms of the Correctional Service Act 9 of 2012 is declared to be inconsistent with Articles 7 and 11 of the Namibian Constitution, and is therefore invalid.
4.2 The declaration of unconstitutionality is suspended for a period of 18 months from the date of this order in terms of Article 25(1)(a) of the Constitution, for the Executive to correct the defect identified in this judgement.
5. Contact visits
The denial of contact visits to trial-awaiting inmates without regard to the merits of each individual case is declared to be inconsistent with Articles 8 and 12 of the Namibian Constitution.’
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