A legal-realist assessment of human rights, right to health and standards of healthcare in the Malawian prison system during COVID-19 state disaster measures

Abstract

Purpose The first case of COVID-19 in the Malawi prison system was reported in July 2020. Human rights organisations raised concerns about the possibility of significant COVID-19 outbreaks and deaths in the prison system, because of the poor infrastructure, lack of healthcare and adequate COVID-19 mitigation measures, existing co-morbidities (tuberculosis, HIV and hepatitis C), malnutrition and poor health of many prisoners. Design/methodology/approach The authors conducted a legal-realist assessment of the Malawian prison system response to COVID-19 during state disaster measures, with a specific focus on the right to health and standards of healthcare as mandated in international, African and domestic law. Findings The Malawi prison system was relatively successful in preventing serious COVID-19 outbreaks in its prisons, despite the lack of resources and the ad hoc reactive approach adopted. Whilst the Malawi national COVID plan was aligned to international and regional protocols, the combination of infrastructural deficits (clinical staff and medical provisions) and poor conditions of detention (congestion, lack of ventilation, hygiene and sanitation) were conducive to poor health and the spread of communicable disease. The state of disaster declared by the Malawi Government and visitation restrictions at prisons worsened prison conditions for those working and living there. Originality/value In sub-Saharan Africa, there is limited capacity of prisons to adequately respond to COVID-19. This is the first legal-realist assessment of the Malawian prison system approach to tackling COVID-19, and it contributes to a growing evidence of human rights-based investigations into COVID-19 responses in African prisons (Ethiopia, South Africa and Zimbabwe).

Using COVID-19 to Address Environmental Threats to Health and Leverage for Prison Reform in South Africa, Malawi and Zimbabwe

“…The continued flow of human traffic into and out of prisons in South Africa, Malawi and Zimbabwe exacerbated all efforts to mitigate disease via disinfection, sanitation and PPE measures. Arrests and detention for breaches of COVID-19 restrictions, continued committals despite state prison release schemes, the mixing of pre-trial and sentenced prisoners, Downloaded from https://academic.oup.com/jhrp/advance-article/doi/10.1093/jhuman/huac050/6855703 by guest on 02 December 2022 lengthy pre-trial and pre-deportation detention periods was documented in all three countries (Van Hout and Wessels 2021a;Van Hout et al 2022a;Van Hout et al 2022b). Standards of environmental health in so doing were compromised despite the best efforts of prison officials and prison medical staff.…”

“…Prison insecurity was also observed in Zimbabwe, where recently released prisoners including political activists and journalists who had experienced malicious criminal prosecutions, described a range of human rights violations (arbitrary solitary confinement, denial of the right to a fair trial, access to justice and adequate standards of detention) (Chingano 2020;USSD 2020b;Van Hout et al 2022a;2022b). Deliberate exposure to COVID-19 disease by denial of segregation of those with symptoms was also reported in the case of political activists and journalists (Chinowaita 2020;USSD 2020b).…”

“…Due to the severe congestion, many prisons in South Africa, and especially in Zimbabwe and Malawi did not provide the bare minimum floor space set by the CAT at four square meters per person in a communal cell, which could be declared by courts as cruel or degrading (Steinberg 2005). Reports of prisoners sleeping 10-30cm apart in Malawi and Zimbabwe, 23-and 24-hour cell lockdowns (including with sick prisoners) and solitary confinement practices (particularly South Africa) was documented in all three countries (Van Hout and Wessels 2021a;Van Hout et al 2022a: 2022b. Little information was released around efficacy of prison release schemes.…”

“…By 26 May 2020, prisons in Algeria, Cameroon, Sierra Leone, Ghana, Guinea, Egypt, Democratic Republic of Congo, Morocco, South Africa and Kenya reported detection of COVID-19 cases among staff and/or prisoners (Prison Insider, 2020). Many African states did not make their prison system COVID-19 detection data publicly available, and there is little transparency to date on the operationalization of prisoner release schemes (actual numbers and types of prisoners released) across the continent (DLA Piper 2020;Muntingh 2020;Van Hout et al 2022a: 2022b.…”

A legal-realist assessment of the Zimbabwean correctional system response to COVID-19 during state disaster measures

“…Prison conditions are historically poor and continue to be conducive to chronic ill-health of prisoners and the spread of communicable disease via poor sanitation, insufficient space, high population density and turnover [African Commission on Human and Peoples' Rights (ACoHPR), 2012; Todrys and Amon, 2012; Telisinghe et al , 2016; Beaudry et al , 2020; Van Hout and Aaraj, 2020]. With already weak and stretched health systems in Africa (Nkengasong and Mankoula, 2020) , the COVID-19 threat has exacerbated the existing and significant risks to health for those living and working in African prisons (Muntingh, 2020; Van Hout, 2020a; Van Hout, 2020b; Van Hout, 2020c; Van Hout, 2020d; Badu et al , 2020; Nweze et al , 2020; World Prison Brief, 2020; Kras and Fitz, 2020; Chireh and Kwaku Essien, 2020; Katey et al , 2021; Van Hout and Wessels, 2021; Van Hout et al , 2021a; Van Hout et al , 2022). COVID-19 responses in African prisons are compromised by lack of general government resourcing of the prison system, and inclusion of prisons in the national COVID-19 health budget, and the existing environmental determinants of health (severe congestion, poor standards of detention, basic provisions and dated infrastructure) (Amon, 2020; Bulled and Singer, 2020; Kras and Fitz, 2020; Rapisarda and Byrne, 2020; Muntingh, 2020; Badu et al , 2020; Nweze et al , 2020; Chireh and Kwaku Essien, 2020; Amnesty International, 2020; Katey et al , 2021; Van Hout and Wessels, 2021).…”