Constitution Watch 9/2019
Death in Custody – Rights of Prisoners
27 October 2019
rudimentary or non-existent at worst ‒ then the prison authorities must take
prisoners to hospitals outside their prisons or allow them to receive care and
treatment from their own medical practitioners.
2. Prisoners may be in poor health and need medication or treatment which
their own medical practitioners can provide more readily than prison doctors.
3. Prisoners who claim they have been assaulted by the police or prison
authorities may need to be examined by their own doctors in order to
establish their claims.
Above all, prison authorities must remember that prisoners have rights.
Prisoners are deprived of much of their freedom of movement ‒ they cannot
leave their prison whenever they want to ‒ and they may be deprived of other
rights and freedoms so far as it is necessary to prevent them escaping and to
maintain discipline in prisons. But apart from that they have all the fundamental
human rights and freedoms guaranteed them by the Constitution, including the
right to be seen by their chosen medical practitioner which, as we have pointed
out, is specifically given to them by section 50(5)(c) of the Constitution. This is
particularly so in the case of awaiting trial prisoners who have not been
convicted of any criminal offence.
Even prisoners who have been found guilty of the most heinous crimes remain
human beings entitled to their basic human rights. And it must be remembered
that Mr Tamangani was an awaiting trial prisoner who had not been tried for,
let alone found guilty of, any crime at all.
Prison authorities, in brief, have a duty to care for their prisoners and respect
their rights. In the case of Mr Tamangani, it seems, they failed in this duty ‒
and they compounded their failure terribly by refusing to allow him to be seen
by his own doctor even after being requested to do so by his lawyers.
Post Mortem
In the event Mr Tamangani has died. All the authorities can do now is to ensure
that his death is properly investigated at a public inquest and that those
responsible for his death are brought to justice. The underlying purpose of an
inquest, as explained by a court in 1990, is to promote public confidence, to
reassure the public that all deaths from unnatural causes will receive proper
attention and investigation so that, where necessary, appropriate measures
can be taken to prevent similar occurrences and to bring persons responsible
for the deaths to justice. For an inquest to achieve this purpose a post-mortem
examination should be conducted on the body of the deceased to establish the
cause of death, and the post-mortem examination should be such as to
promote public confidence in its thoroughness and impartiality. In this case,
regrettably, public confidence may be lacking since a magistrate turned down
a lawyers’ request to have an independent medical practitioner present when
the post-mortem was conducted.