Detention of persons with mental disabilities in prisons indefinitely violates their human rights.
By Nsereko Ibrahim
Some circles in our communities shun people with mental disability not knowing that mental illness is a condition that can be treated in our health care setting. We as a people ought to take cognizance of our loved ones with mental disabilities detained in numerous prisons all over the country.
The continued stigma against people with mental disability stemming from our families and communities has resulted into abandonment of mentally disabled persons in police cells and prisons without follow up and care. This state of affairs has left many people with mental disability being incarcerated for years without receiving due medical attention.
Reflecting on a recent case handled by the High Court at Masaka (Uganda vs. Tesimana HC Criminal Revision Case No. MSK -CR-CV-0013 of 1999), sixteen years ago, Ms. Tesimana who required mental treatment was detained in prison for eight years without being tried and without receiving proper treatment. The Judge in this case stopped the hearing of the case and directed that the accused to be taken to hospital for a mental health examination.
The Uganda Human Rights Commission (UHRC), in its 2014 report, echoed the same concerns. The report indicated that Uganda Prisons Services had forty four (44) prisoners awaiting a Minister’s order, and that during the inspection by UHRC in Jinja Remand Prison; sixteen (16) prisoners were also detained awaiting a Minister’s order. These are some of the few cases that come out in the lime light, but how many of our brothers, sisters, parents and children with mental disability have been damped in rural and urban prisons?
It is critical to note that not all health facilities in Uganda provide mental health care services and yet a question remains, who should be held accountable for the deteriorating mental health of prisoners detained for years in prisons that cannot provide psychiatry treatment?
We must acknowledge that our government has made commitments on mental health at different levels. Article 35 (1) of our 1995 Constitution guarantees persons with disabilities a right to respect and human dignity and calls on our government to take appropriate measures to ensure that they realize their full mental and physical potential. Other laws in Uganda as well as regional and international human rights instrument such as; Persons with Disabilities Act, African Charter on Human and People’s rights, Convention on Rights of Persons with Disabilities among others, provide for rights of persons with mental disability.
Indefinite detention of mentally disabled persons denies them the right to respect and gravely undermines their dignity. The continued restriction of their liberty outside the confines set out in our Constitution is untenable in this era of promotion and respect of human rights.
Article 23(1) (f) of our Constitution only permits the detention of a person with a mental disability for purposes of care or treatment of that person or protection of the community. It’s unfortunate that people suspected to have a mental disability are remanded in prisons instead of being referred to health facilities for treatment.
Irrespective of existing situation however, we must applaud the Center for Health, Human Rights and Development that petitioned the Constitutional Court (Constitutional Petition No. 64 of 2011) challenging the constitutionality of laws, practices and usage of abusive language towards persons with mental disabilities in the criminal justice system. The Honourable Justices of the Constitutional Court while delivering their decision recently, concluded that;
“Before subjecting any person to a criminal trial, the trial court must ascertain and establish that he/she (a person with a mental disability) will follow and understand the proceedings. The existing provisions in our Trial on Indictments Act (Article 45(5): the entire procedure to declare a person unfit for trial, the duration and place of his/her detention and the time when he should be released should be determined by Court after full inquiry based on medical evidence in full compliance with due process. The Minister is procedurally and substantively not a competent person to certify the deprivation of liberty of the alleged mentally ill accused person without first seeking medical advice and without according the affected person a hearing.
The process of determining whether or not an accused person should be detained should be left to trial Court and such detention should be strictly for medical treatment. Court should also determine when the accused is ready to stand trial or be released to the community based on concrete medical evidence, provided by a psychiatrist.
The consequence of the current procedure is that it contains great potential for injustice as it may deprive an accused person of personal liberty for an indefinite period of time. There is a very real risk of mentally disabled persons disappearing in the criminal justice system without proper standards being set for involuntary confinement and procedures for review”.
As we celebrate this victory, we should be conscious that the government and relevant departments are often reluctant to take steps in implementing the decisions of Court. For this particular court decision, we expect the Ministry of Justice and Constitutional Affairs to urgently review the impugned provisions of the law and undertake comprehensive investigation to remove all people with a mental disability detained in prisons, and refer them to health facilities to receive treatment. We also note that the Ministry of Health should also take steps to strengthen the existing health facilities to accommodate the mentally disabled detainees that are referred by Courts for treatment.
With combined efforts of government, families of detained persons, and the private sector, dignity of persons with mental disabilities in our country will be upheld, promoted and respected.