The latest United States State Department Report, which has again flagged the decrepit, unsanitary and inhumane conditions at The Bahamas Department of Corrections, seems to have caused an unnecessary uproar. I would wish to say, we seem to be a nation that prides itself on Christian principles as a matter of convenience. Ephesians Chapter 4, verse 32 says “Be kind and compassionate to one another, forgiving each other, just as Christ God forgave you”. Let that sink in, before you dismount from your Christian principles to say that an inmate deserves to suffer in the conditions of correctional facility.
Clearly absent of compassion, it is unsurprising that rather than addressing the clear violations of constitutional rights and disregard for human dignity highlighted in the report, the citizenry has joined the chorus in encouraging the United States to stay out of The Bahamas’ affairs and continues to neglect those that are languishing in the squalid conditions of The Bahamas Department of Corrections. The accuracy of the report is frightening.
There is a very simple formula that is impossible to disagree with, an inmate is a human, humans have constitutional rights, thus it logically follows that inmates have constitutional rights. There are certain rights in the Constitution that are not forfeited on the passing of a lawful sentence by the Court, and the most important of these, in my view is expressed at Article 17 – Protection from inhuman treatment.
Article 17 is succinct, and absolute in saying that no person shall be subjected to torture or to inhuman or degrading treatment or punishment. This non-delegable and judicially enforceable duty of the Government applies indiscriminately. What this means is that a detainee does not lose, by the mere fact of his or her incarceration, the protection of his or her rights guaranteed by the Constitution. On the contrary, persons in custody are in a vulnerable position and the authorities are under a duty to protect them.
The issues highlighted in the report, and as communicated by inmates with whom I’ve spoken; overcrowding of prison cells, lack of access to drinking water, food of little to no nutritional value (sometimes simply tea and bread), a lack of ventilation and adequate lighting, and abuse by guards at the correctional facility are all compounding factors which epitomize degrading treatment or punishment.
It is time that the Government recognizes that there must be some consideration given to the relationship between the grounds of permitted deprivation of liberty relied and the place and conditions of detention. The mere existence of the present (and only) correctional facility creates a precarious situation where the Government in failing to seriously consider the construction of a new prison, or upgrades to the present facility has left the judiciary with no choice but to sentence offenders of any and all categories to suffer through the horrific conditions giving rise to actionable claims for the violation of constitutional rights.
What’s more remarkable is there is legislation in place which places a mandatory as opposed to discretionary duty on those in authority to fulfill certain obligations to any person who is lawfully confined in a correctional facility on remand or under conviction of, or sentence for an offense. The Correctional Services Act 2014, and the accompanying Correctional Services (Inmates) Rules 2014 are novel pieces of legislation that no doubt stifled the external pressure from international human rights organizations and the like. Lamentably, given the lack of infrastructure modernization so as to bring the facility in compliance with the scope of the legislation, it seems the legislation itself is being used to pacify. I don’t believe that pacifying was the intention of the Government of the material time.
It is the obligation of the State to ensure that a person is detained in conditions that are compatible with respect for his or her human dignity. We have for too long now ignored the fact that the manner and method of detention is subjecting inmates to distress and hardship of an intensity far exceeding the unavoidable level of suffering inherent in detention. Given the practical demands of imprisonment, their health and wellbeing are not adequately secured and the State is clearly perpetuating a violation of Article 17 of The Constitution, and the Correctional Services Legislation.
This is not a new cause, as advocates have been fighting for the rights of inmates, and against the conditions at the prison since the 1980’s, disappointingly not much seems to have changed. Until such time as the State decides to begin in earnest the conversation on improving conditions at The Bahamas Department of Corrections, the wheel of human rights violations will continue to turn. It is incumbent upon us as a people to find compassion in our hearts, and incumbent upon legal practitioners, and human rights advocate to be the voice of the voiceless.
I.A. Nicholas Mitchell
March 15, 2019
The author is a Barrister and Attorney at Law in The Bahamas, in the Chambers of Messrs Lockhart, Chilcott & Chancellors whose practice range includes Constitutional Law.