Supreme Court condemns inhumane treatment of inmates, demands legislative reform within 18 months

Samuel Shinedima

NAMIBIA’s Supreme Court issued a landmark judgment on the inhumane treatment of inmates under the Correctional Service Act 9 of 2012, following a cross-appeal by American murder accused Kevin Townsend and ex-magistrate rape accused Jaco Kennedy.

Lawyer Inno Katjipuka-Sibolile of Nixon Markus public law offices, who represented Townsend, challenged, among other things, the practice of handcuffing inmates behind their backs while being transported, the practice of solitary confinement authorities under the Act, and the denial of contact visits to trial-awaiting inmates.

Katjipuka-Sibolile also contested the High Court’s decision that the definition of an offender, which includes both convicted and unconvicted convicts, does not, according to the High Court, violate the constitutionally granted presumption of innocence.

In his decision, Deputy Chief Justice Petrus Damaseb said that section 103 of the Correctional Services Act fails constitutional scrutiny and should have been overturned as unconstitutional.

“The detention of an inmate in solitary confinement potentially for as long as 90 days without independent review constitutes arbitrary detention proscribed by article 11(1) of the Constitution,” Judge Damaseb said.

Consequently, Judge Damaseb has rendered a ruling stating that the definition of an offender as outlined in the act contradicts articles 8, 10, and 12 of the constitution. As a result, this definition is deemed invalid. Additionally, the denial of contact visits to detainees awaiting trial, without considering the merits of each individual case, is found to be in conflict with articles 8 and 12 of the constitution.

Moreover, the judge has further ruled that the practice of transporting inmates in police vans with their hands handcuffed at the back, without any safety features to prevent physical harm, is unconstitutional.

However, a portion of the judgment’s directives will be temporarily suspended for 18 months, giving lawmakers adequate opportunity to rectify the identified defect. The judge has also determined that the order regarding the transportation of handcuffed inmates, and especially the denial of contact visits, cannot be suspended due to the evident and immediate threat they represent to inmates’ safety, as well as the continued denial of contact visits.

In principle, this implies that, as of the date of the decision, any denial of contact visits to trial-awaiting inmates and/or transportation of handcuffed inmates in unsafe vehicles will be a violation of inmates’ constitutional rights.