Marie Claire Van Hout
In May 2020, the World Health Organization joined with other UN agencies in a call for governments to recognise the heightened vulnerability of prisoners to COVID-19 and to act urgently to reduce the risks. Human rights organisations submitted letters to the Southern Africa Development Community and its Member States highlighting the severe deficits in the prison system during COVID-19, and they drew special attention to pregnant women or women detained with infants.
Despite these calls, the situation remains dire in many countries, including Malawi. Notwithstanding the Nelson Mandela Rules, the Bangkok Rules, and the presence of various African charters confirming the rights of the child, the right to health, and equivalence of care and humane treatment of women and children in detention, breaches in minimum standards of health continue for women (and their infants) in Malawian prisons.
Although there are reports of recent improvements in prison healthcare services, the conditions in the prisons continue to be very poor with severe overcrowding, inadequate ventilation, poor nutrition, and substandard water, sanitation, and hygiene facilities. These dire conditions and low resourcing of women’s health needs has a severe impact on the minority prison population of women and children. In December 2019 – the latest data available – there were 14,060 people in prisons that were designed for a capacity of 5000, with women making up 1.1% (154 female prisoners). The overcrowding prevents social distancing, promotes the spread of infectious diseases, including COVID-19, impacting on the health of prisoners and staff, and especially those already vulnerable with chronic ill health (HIV/AIDS, and TB).
By early September 2020 Malawi had reported 5,655 COVID-19 cases and 176 deaths. The first cases of COVID-19 in prison were reported in July and by September 26 staff and 408 prisoners had tested positive (with two deaths). Only 124 staff and 2,656 prisoners had been tested because there is insufficient capacity to test all people in prisons. There is also insufficient personal protective equipment (PPE), and a lack of soap, disinfectant, and water. The prison service is reliant on external donor support from non-governmental and faith-based organisations for these supplies.
Lockdown measures with prisoners confined to cells has been implemented at most prisons and to further limit transmission between people inside the prison and the community, all family visits have been stopped. But this is severely impacting prisoners who depend on food donations from their families.
The government has not upheld the WHO requirement that prisons must be part of national COVID-19 plans, and they were not included in the K157 billion (USD 210 million) COVID-19 fund. Prison staff took strike action to force government allocation from this fund for hazard pay and PPE, which was partially successful, but PPE is still inadequate.
There has been no transparency relating to action taken to reduce overcrowding. At the start of the pandemic, five civil society organisations asked the government to reduce prison intake. They recommended decreasing reliance on cash bail, detention for minor offences, upholding custodial limits, considering non-custodial sentences wherever possible, and instigating release schemes for those over the age 55, children, women with children, and prisoners with pre-existing medical conditions. In April the President announced the release of imprisoned minors, those convicted for minor offences, those nearing the end of their sentence, and pledged to reduce all sentences by six months. The criteria did not cover the elderly, vulnerable and chronically ill prisoners, nor did it consider women and their infants. Sentencing adjustments via the ‘Justice and Accountability Chilungamo Programme’ resulted in the release of 1,397 prisoners, with 499 receiving a Presidential pardon. By September only five women had been released.
There is no data available on the number of people sentenced to prison throughout the same time, and nor is it clear what criteria were imposed in sentence adjustments or pardons. Media reports in May 2020 described prisoner shock in Zomba prison on learning that none had been considered for release, despite the facility holding 2000 prisoners – 1200 over its capacity. Since then 141 prisoners have been released.
The Malawi government instigated measures that undermine fundamental rights of women (and their infants) detained in their prison system. Maula prison in Lilongwe closed the female section in order to free space for a COVID isolation centre. As a result, 71 women, many with infants (including those in pre-trial detention) were transferred to rural prisons, distant from their families. Women prisoners depend on family and donors to provide their basic needs, including food, clothing, and menstruation needs. This forced relocation is restrictive and arbitrary, denies women access to legal and other support, and constitutes a breach of human rights.
Immediate action is warranted to release women in prisons, particularly those in pre-trial detention, and those with infants, and to use alternatives to custodial sentences. Encouragingly, in a recent case in Malawi, Judge Ntaba stated, ‘incarcerating a woman with her child should always be the last resort for any court.’
Malawian state commitment to respond to the pandemic and ultimately improve its judicial and penal systems will be measured against the 2030 Agenda for Sustainable Development’s commitment: ‘No one left behind’. Ensuring health, safety, and human dignity for those deprived of liberty and those working in closed settings is paramount, regardless of any state of emergency. Resources must be allocated to enable COVID-19 testing for all inmates and staff, and for adequate PPE and WASH facilities to be made available. Human rights investigations into the conditions of all prisoners, including women and their infants, are needed urgently.
Marie Claire Van Hout, is Professor of Public Health Policy and Practice at the Public Health Institute, Liverpool John Moore’s University, Liverpool L32ET, United Kingdom. Email: firstname.lastname@example.org
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16. See note 1.