Invisible Prisoners: The Fight for Human Rights

JURIST Guest Columnist Katherine Todrys of the Health and Human Rights Division of Human Rights Watch recounts her experiences researching disease transmission and living standards in African prisons. She calls for sweeping criminal justice reforms to address the systemic problems of overcrowding, human rights abuses and wrongful imprisonment...
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In 2008, recently out of Yale Law School, I traveled to Malawi with a development organization and met a local prosecutor over lunch. Making conversation, I asked her what type of cases she prosecuted: "Murders," she said. When I asked why a career as a homicide prosecutor in particular had appealed to her, she just stared at me. "We only prosecute murders," she repeated. "Everyone else — we arrest them, they just wait in prison."

Malawi is not alone in taking such an approach. Throughout sub-Saharan Africa, tens of thousands of people languish for days, months or years in overcrowded prisons waiting for their day in court and suffering from malnourishment, beatings and abuse, and often contracting diseases like tuberculosis (TB). If or when these prisoners finally see a judge, only rarely could the interests of "justice" be said to be served. Learning all of this — and being an idealistic, freshly minted law school graduate intent on fighting for justice — I thought I had found a population that was invisible to the world. I thought that exposing the situation would lead to outrage.

I was wrong.

Incarceration Without Conviction
What one sees in an African prison can be so far below acceptable standards, it is hard to forget. In September 2009, I arrived at the maximum security Mukobeko Prison in Kabwe, Zambia, to research health problems among prisoners for Human Rights Watch (HRW). As the overstuffed chairs of the prison administrators' office gave way to the scorching sun of the central courtyard, a few details immediately caught my attention. Many of the prisoners wore only a single, decrepit sandal. The prisoners' uniforms sometimes consisted only of a single piece of cloth that barely covered their bodies. The smell of the "toilets" — holes in the ground — was nauseating. Roaches climbed the walls and lice covered the blankets in the tightly packed cells. Prisoners crowded on top of one another at night without even the floor space to sleep. On the day that I visited, the prison's woodshop was building coffins.

Yet more than a third of Zambia's prisoners have never been convicted of a crime.

I live in New York City and I have traveled extensively throughout Africa. I have visited foster homes in the South Bronx and health clinics in Ghana, Mali and Malawi. It is hard to avoid being desensitized to suffering when it is an inevitable part of your daily commute. However, nothing could have prepared me for the moment when I walked into a prison in Lusaka, Zambia and peeked through the doorway of the TB "isolation" cell. I saw prisoners lying on the concrete floor — emaciated, lifeless — and I thought: these people could die today. Had some of them died already? Zambian lawyers told me that the prison officers carried the bodies of the dead out in the night to avoid spreading panic.

These images were seared into memory, and I realized that I was one of only a few who had seen these conditions. Prisons are closed environments of little concern or priority, even to the often-ubiquitous non-governmental organizations (NGOs) that blanket the landscape. However, the high walls of prisons are not the only reason that the treatment of prisoners receives so little attention. Prisoners are beset by indifference throughout the world. Prisoners — including those who are awaiting trial and have not had the legal counsel or resources necessary to secure bail — are politically marginal, typically impoverished, often members of racial and ethnic minorities and easy to ignore. African governments often have little interest in addressing conditions in prisons, and the communities surrounding prisons may wonder why the health of suspected or convicted criminals should take precedence over government resources that could go toward addressing the needs of "law-abiding citizens."

Prisons are a modern institution and a colonial legacy in Africa. Michel Foucault chronicled the evolution of penal styles in the US and Europe in the late eighteenth and early nineteenth centuries in Discipline and Punish: The Birth of the Prison. Foucault described the move away from torture as a public spectacle and toward punishment as an economy of suspended rights (though forced labor, strict food rationing and corporal punishment all remain prominent in African prisons). Prisons were established during the same time period when the European powers were colonizing Africa — exporting these new penitentiary theories and applying them to control and extract labor from local populations. Almost a half-century after the end of colonial rule in Africa, brutal confinement and forced labor are still the norm.

As in Zambia, the prison populations of many African countries include thousands of people who have never been convicted of a crime. Half or more of the prison populations in Angola, Benin, Burundi, Cameroon, Chad, Comoros, Congo, Liberia, Mali, Niger, Nigeria, Togo, Uganda, and Tanzania consist of prisoners who have not been convicted.

"You Have No Constituency"
When I first came to work at HRW, I found a stack of prison reports written over the past decade from countries around the world. Aside from the constant negotiation required to gain access to facilities, the process of human rights research among prisoners in Africa is fairly straightforward: international prison standards have been established, and flouted, for decades. The true challenge of human rights advocacy in prisons is not proving that African inmates suffer from malnutrition, denial of health care and even torture. Governments often readily admit that many of these problems exist. Persuading anyone to care about prisoners — not to mention convincing them to work together in a coordinated way to achieve both criminal justice and prison reform — is another matter entirely. As I tried to strategize with a colleague recently about involving more European donors in African prisons, he put it bluntly: "You have no constituency." Even with airtight research, it is difficult to convince anyone to consider the problems enough of a priority to effect real change.

Prisoners are an unsympathetic, politically marginalized population — as are former prisoners. Most former prisoners would like to stay as far removed as possible from a horrific experience that threatens to taint their employment prospects, families and reputations despite the value of their potential testimonials. Additionally, organizations working in the struggle for prisoners' rights find it difficult to secure funding, as do reform-oriented prison officials who want to improve conditions. The Open Society Foundation and a few other private donors fund small NGOs working locally across Africa on criminal justice issues, as do several European countries. Although the US has put a limited amount of funding toward prisons, it represents a tiny fraction of overall support. For example, only about 0.1 percent of the US government's HIV funding to Uganda in 2010 was specifically directed toward providing HIV treatment to prisoners.

It is not just that most international donors don't make prisoners their top priority. Many African governments don't prioritize prisoners' rights, either, and sometimes no one is pushing them to do so. Prison officers often pointed out to me the need for increased funding to address poor nutrition, filthy water and overcrowded cells. They welcomed the attention from HRW toward these issues if it might lead to more resources and improved conditions. But on more sensitive topics like forced labor, there were denials and, eventually, tacit acknowledgement and the admission: "They are prisoners." A lack of coordination between prison authorities and criminal justice authorities — along with prison authorities' fundamental inability to control prison population levels— also often stymie their ability to address conditions. Criminal justice reform is a fundamental part of prison reform, but it is also out of the hands of those who actually administer the prisons.

After hundreds of interviews with prisoners in African prisons, one of the stories I think of most often is Hellene's. Hellene wore a long checked dress, which only partially concealed her growing abdomen; she was six months pregnant, although she looked much less. Withdrawn and deeply frightened, Hellene could hardly look at me as she quietly answered my questions.

Hellene was 16 years old and living in rural Uganda when she was gang-raped, leaving her pregnant and HIV-positive. Hellene told me that her rapists also kidnapped a child in her care, but it was she who was arrested soon after for the kidnapping. She had been in prison ever since, but did not even know the exact charges against her. She had received no treatment following her rape and no antiretroviral therapy to prevent the spread of HIV to her baby. Hellene was forced to do backbreaking labor in the prison fields and beaten when she worked too slowly. It could be days, months or even years before she would have a trial. She had no lawyer, and when her trial did come there was little chance she would be prepared for it.

Hearing Hellene's story, and all of the other stories of injustice, abuse, and tragedy day after day is difficult. Prisoners were desperate for any help that I could offer. Yet, as an American lawyer, there was little that I could do to represent them individually. Many needed lawyers just to apply for bail so that they could avoid months and years awaiting trial in life-threatening conditions. Even those who admitted their guilt to me — including crimes of murder or sexual assault — asked me for assistance: not to be released, but to be able to drink clean water, to have enough food or to contact their families.

In one of my first meetings with the HRW communications team to discuss my upcoming report on HIV and TB in Zambian prisons, a veteran gave me a good warning for what the world would soon teach me: "The conditions in African prisons are terrible. People know that. Why is this report interesting?"

Finding new ways to tell old stories is a challenge. In writing about Zambian and Ugandan prisons, I've often focused on the isolation cells and the torture that occurs there. I've written about the brutal beatings and forced labor that resemble slavery. But these are not always the first things that prisoners talk about when I've asked them about how they are treated. Often, the first problem they want to talk about is persistent debilitating hunger, not torture. It is even harder to get the world to pay attention to hungry prisoners than to tortured ones.

Help Is Not Coming Soon
In my reports on prisons in Zambia and Uganda, I outlined short-term policy changes and long-term resource investments that are essential to raising the standard of living in these prisons. I encouraged the governments to achieve quick wins by making changes that require fewer new resources — end beatings, send ill prisoners for medical care — knowing that marshaling resources for broader change can take time.

But broader criminal justice reforms are also necessary to combat prison overcrowding and the negative health consequences of overcrowding. Reducing arbitrary and extended pretrial detention, for example, is a cost-effective criminal justice measure. Reforming bail guidelines, restricting overly broad police authority to detain "co-conspirators," expanding the availability of community service and parole programs, increasing the numbers of judges and improving access to legal representation could help reduce prison populations in a sustained manner. Greater funding is also needed for improved conditions in prisons but, in the absence of criminal justice system reform, funding alone may be ineffective.

There are some bright spots. Prison officers were some of my best sources of information and the strongest advocates for change in prison conditions that also affect them as workers — although sometimes getting that information meant having a drink with prison officers who openly admitted to beating prisoners, or posing for photos with them. In Zambia, for example, international donors have helped the prison authorities to begin a TB testing and treatment pilot program and have also funded HIV prevention and treatment efforts. The Zambia Prisons Service has agreed to ban punishment cells that forced prisoners to stand naked and alone in filthy water for up to a month at a time. Several nongovernmental organizations in Zambia have also begun to offer free legal services, which has led to the release of dozens of prisoners who were unjustly and needlessly incarcerated.

These developments are not game changers, but they are a beginning.

But I am haunted by other places where things have not changed and a realization that, even if I and others try to tell their stories, no one is stepping forward to help many of these prisoners. Take, for example, Muinaina Farm Prison in rural Uganda, where almost two-thirds of the inmates are awaiting trial. Even despite improvements elsewhere in Uganda's criminal justice system, at Muinaina, some prisoners have not set foot in a courtroom in five years. Prisoners plead guilty just so that they will know their release date. On the day that I visited Muinaina, ten prisoners banded together and wrote me a simple handwritten letter. It described years behind bars without trial or contact with the magistrate, endless work and brutal beatings. It concluded: "Sometimes we feel bad. We feel we are invisible prisoners. If we are invisible, tell us. We all beg you. Help us, we'll die."

Unfortunately, my assignment researching prisoner health has ended. I hope that others will pick up where I have left off and continue to fight both for the health of prisoners and for reforms to increase access to bail, community service and parole, so that no one is unjustly and unnecessarily subjected to dangerous prison conditions. But one thing is certain for the prisoners in places like Muinaina: help is not soon coming.

Katherine Todrys works with the Health and Human Rights division at Human Rights Watch, and recently completed three years researching health in African prisons. Before joining Human Rights Watch, Todrys worked at the Millennium Villages Project at Columbia University's Earth Institute, focusing on patients' rights issues in Malawi and Ghana. She holds a J.D. from Yale Law School and an A.B. from Harvard College.

Suggested citation: Katherine Todrys, Invisible Prisoners: The Fight for Human Rights, JURIST - Hotline, Sept. 4, 2012, http://jurist.org/hotline/2012/09/katherine-todrys-invisible-prisoners.php


This article was prepared for publication by the staff of JURIST's professional commentary service. Please direct any questions or comments to them at professionalcommentary@jurist.org

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