- July 18, 2023
- |Concise Law Reports (CLR), Legislation
The first and second respondents who were first and second applicants a quo (hereafter respectively Mr. Kennedy and Mr. Townsend) had approached 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 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.
DAMASEB DCJ, writing for the court, remarked from the onset 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)…’
DAMASEB DCJ (HOFF JA and FRANK AJA concurring):
‘What is before us?
[25] 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 the court, therefore, is the cross-appeal by Mr. Townsend.
The cross-appeal
[26] Mr Townsend’s cross-appeal impugns the High Court’s –
- Finding that the definition of offender passes constitutional muster.
- Finding that s 103 of the Correctional Service Act passes constitutional muster save for the aspect of mechanical restraints.
- Finding that reg 257 is neither unconstitutional nor ultra vires the Act.
- 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).
- Finding that no case was made out to support the relief sought in respect of contact visits.
Essentially, the second respondent cross-appealed the High Court’s finding that the definition of the 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.
It was held that:
a) There is a 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 offense 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.
b) 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.
c) 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 judgment. 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, in so far as it includes trial awaiting persons, is inconsistent with Articles 8, 10, and 12(d) of the Namibian Constitution and is therefore struck.
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 judgment.
- 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) of the Namibian Constitution.
- 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 judgment.
- 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 judgment.
- 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.’