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

• Date: 21 April 2022
• Pages: 290-305
• DOI: https://doi.org/10.1108/IJPH-10-2021-0104
• Published date: 21 April 2022
• Subject Matter: Health & social care,Criminology & forensic psychology,Prisoner health,Sociology,Sociology of crime & law,Public policy & environmental management,Policing,Criminal justice
• Author: Marie Claire Van Hout,Charlotte Bigland,Triestino Mariniello

A legal-realist assessment of the

Zimbabwean correctional system

response to COVID-19 during state

disaster measures

Marie Claire Van Hout, Charlotte Bigland and Triestino Mariniello

Abstract

Purpose –The first prison system case in Zimbabwe was notified in July 2020 shortly after State declaration of

disaster. A legal-realist assessment was conducted of the Zimbabwean correctional system response to

COVID-19 during state disaster measures, with a focus on assessing right to health, infectious disease

mitigation and the extent to which minimum stateobligations complied with human and health rights standards.

Design/methodology/approach –The Zimbabwean correctionalsystem operations during COVID-19

disaster measures are scrutinized using a range of international, African and domestic human rights

instruments in relation to theright to health of prisoners. This study focused particularly on standards of

care, environmentalconditions of detention and rightof access to health care.

Findings –Systemic poor standards of detention are observed, where prisoners experience power

outages, watershortages and a lack of access to cleandrinking water and water for ablutionpurposes, a

severe lack of safe space and adequate ventilation, poor quality food and malnutrition and a lack of

sufficient supply of food,medicines, clothing and bedding. Whilst access tohealth care of prisoners in

Zimbabwe has greatly improved in recent times, the standard of care was severely stretched during

COVID-19 due to lack of government resourcing and reliance on non-governmental organisation and

faith-based organisations to support demand for personal protective equipment, disinfection products

and medicines.

Originality/value –Prison conditionsin Zimbabwe are conducive to chronic ill health andthe spread of

many transmissible diseases, not limited to COVID-19. The developed legal-realist account considers

whether Zimbabwe had a culture of respect for the rule of law pertinent to human and health rights of

those detained during COVID-19 disaster measures, and whether minimum standards of care were

upheld.

Keywords Zimbabwe, COVID-19, Infectious disease, Human rights, Minimum standards of detention

Paper type Research paper

Background

The COVID-19 global pandemic outbreak has highlighted the enormous challenges faced

by criminal justice and penal systems worldwide[United Nations Office on Drugs and Crime

(UNODC), 2020b; United Nations Office on Drugs and Crime (UNODC), World Health

Organization (WHO), UNAIDS, and Office of the High Commissioner for Human Rights

(OHCHR), 2020a; Office of the High Commissioner for Human Rights (OHCHR), 2020;

World Health Organization (WHO),2020a, 2020b;Kinner et al., 2020;Barnert et al.,2020].

The situation is especially grave, where in Africa, approximately one million people are

incarcerated, with on average 42% of the prison population are held in pre-trial detention,

and consequent severe congestion and over capacity (highest in Uganda at 318%) (World

Prison Brief, 2020). The firstCOVID-19 case was reported in Egypt, then Algeria and spread

Marie Claire Van Hout and

Charlotte Bigland are both

based at Public Health

Institute, Liverpool John

Moores University,

Liverpool, UK.

Triestino Mariniello is based

at the School of Law,

Liverpool John Moores

University, Liverpool, UK.

Received 8 October 2021

Revised 25 March 2022

Accepted 27 March 2022

The Global Challenges

Research Fund (GCRF) Small

Grants Scheme 2021, Liverpool

John Liverpool John Moore’s

University, 2021. Grant holder

Professor Marie Claire Van

Hout.

PAGE 290 jINTERNATIONAL JOURNAL OF PRISONER HEALTH jVOL. 19 NO. 3 2023, pp. 290-305, ©Emerald Publishing Limited, ISSN 1744-9200 DOI 10.1108/IJPH-10-2021-0104

across the continent to 23 Southern and East Africancountries, with exception of Lesotho in

the period from 5 March 2020 until 15 April 2020 (Muntingh, 2020). There was variance

across African states in relation to the declaration of the state disaster or emergency in the

face of the COVID-19 public health crisis (Muntingh, 2020). By 26 May 2020, prisons in

South Africa, Algeria, Cameroon, Guinea, Ghana, Sierra Leone, Egypt, Democratic

Republic of Congo, Morocco and Kenya confirmed cases of COVID-19 (Prison Insider,

2020).

On 25 March 2020, the United Nations (UNs) High Commissioner for Human Rights called

on States to decongest their prisons through a range of means (early prison release

schemes, presidential pardons, alternative sentencing, amnesties) as critical component of

the domestic COVID-19 response [Office of the High Commissioner for Human Rights

(OHCHR), 2020;United Nations Office on Drugsand Crime (UNODC), 2020b;Amon, 2020;

Simpson and Butler, 2020;Lines et al.,2020;Van Hout and Wessels, 2021]. Several

technical guidance documents were released from UN agencies and leading international

organisations [World Health Organization (WHO), 2020b,2020c;United Nations Office on

Drugs and Crime (UNODC), 2020b;Penal Reform International (PRI), 2020]. Collectively

these protocols specify that states should take all measures to address the risks posed by

COVID-19, by limiting contamination,detecting ill prisoners and staff and providing medical

treatment to those infected. They further outline that disease control measures must never

result in inhumane or degrading treatment of prisoners and detention conditions should not

contribute to the development, worsening or transmission of disease; restrictions may only

be applied on the grounds of medical necessity and must comply with the human rights

principles of legality, proportionality, oversight, time-limitation and non-discrimination; and

lastly that monitoring bodies’ must be guaranteed access to prisons. The African

Commission on Human and People’s Rights (ACoHPR) promulgated a range of effective

human rights-based responses to COVID-19 in prisons (including decongestion and

stringent disease control measures) [African Commission on Human and Peoples’Rights

(ACoHPR),2020a, 2020b]. This was echoed in regional documents published by the

Southern African Development Community (SADC) [Southern African Development

Community (SADC), 2020]. Despite the promulgation of guidelines for the selection of

prisoners qualifying for release, there is little published data provided by African states

regarding actual numbers and types of prisoners released (Muntingh, 2020;Van Hout and

Wessels, 2021).

The health of prisoners is by default a neglected political issue in Africa (O’Grady et al.,

2011). This is due in part to the state prioritisation of prison security rather than to basic

health rights and minimum standards of space, ventilation, access to clean water, nutrition

and medical care (Habeenzu et al.,2007;Telisinghe et al., 2016). 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 Commissionon 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 existingand 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 infrastructur e) (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;

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