By Dr Akinola Akintayo

INTRODUCTION
The pledge to leave no one behind in the 2030 Agenda for Sustainable Development will seem to exclude the most vulnerable in this time of COVID-19 pandemic in Nigeria.

While it is acknowledged that prisoners are one of the groups most susceptible to COVID-19 infection and transmission as a result of the closed and often over-crowded nature of prisons vis-a-vis the known characteristics of the virus, enough is yet to be done in terms of the steps required to obviate the risks of the pandemic to prison inmates and others in custodial centres across the country. Outside of the calls by the President of Nigeria to urgently decongest the prisons by expediting trials of awaiting trial inmates who accounted for 70 per cent of prison inmates and the directive of the Inspector General of Police (IGP) to zonal Assistant-Inspector-Generals and Commissioners of Police in various commands not to detain anybody arrested for bailable offences in a bid to decongest police cells and custodial centres, no other plans to protect inmates of custodial centres appear to be in the pipeline. While directives to decongest custodial centres in the country are noteworthy and commendable, much more needs to be done if inmates of custodial centres are to be protected from the onslaught of COVID-19. This brief review highlights and discusses the rights of Nigerian prison inmates under the laws and Constitution of Nigeria as well as going forward. While many rights of prisoners are likely to be implicated by the pandemic and government responses thereto, this review focuses on health related rights and protection of prison inmates from contracting COVID-19 and not the wide spectrum of rights likely to be implicated by the outbreak of the pandemic and the government responses thereto.

The review is divided into four sections. The first section is this introduction. The second section briefly discusses the nature of COVID-19 vis-à-vis the state and condition of Nigerian prisons to underline the vulnerability of Nigerian prison inmates to the disease. The third part discusses some health related rights of prisoners under the constitution and the laws of Nigeria to give an indication of the obligations and duties of the government to the inmates of custodial centres. The fourth section concludes the review and offers some recommendations on the way forward.

THE NATURE OF COVID-19 AND THE CONDITION OF NIGERIAN PRISONS
2.1 Nature of COVID-19 coronavirus

COVID-19 belongs to a class of zoonotic coronaviruses which can be transmitted from animals to humans. The disease, first discovered in a Wuhan wet market in China where wild games and other animals were slaughtered and sold, was alleged to have been transmitted to humans through wild games in the wet market.[1] Person to person transmission of the virus is currently believed to occur through five main ways: (i) through coughing and sneezing of infected person(s) by which virus droplets are deposited in the air or surfaces; (ii) through close contact with infected person(s) effected by touching or shaking of hands; (iii) through the touching of contaminated surfaces and using the contaminated hand(s) to touch one’s eyes, nose or mouth; or through faecal contamination.[2] Lastly, it was initially thought that the virus is not airborne, recent studies however suggest that the virus survives longer and travel farther in the air of closed and poorly ventilated spaces like patients’ bathrooms and doctors changing rooms etc. while the aerosol level and concentration of the virus well ventilated and rigorously sanitised spaces is often low.[3]

In summary, five main modes for COVID-19 transmission have been identified: (i) direct contact with infected person(s); (ii) contact with infected surfaces; (iii) respiratory droplets when an infected person coughs, sneezes or talks; (iv) airborne transmission in poorly ventilated and sanitised spaces; and, (v) through faecal contamination.[4]

2.2 Condition of Nigeria prisons

Nigeria has 244 prisons (most of which were built during the colonial period) with 74, 000 inmates.[5] 52,000 of the inmates i.e about 70 per cent of the prisons’ population are awaiting trial inmates.[6] Nigerian prisons (now renamed correctional centres) are notoriously dilapidated and overcrowded. According to reports:

Kaduna Prison which has capacity for only 473 inmates, now has 1,480 prisoners; while Enugu Maximum Security Prison with capacity for 638, now has 2,077 prisoners. The Port Harcourt Maximum Security Prison has capacity for only 804 but currently has 4,576 locked up. Kirikiri Prison in Lagos has capacity for only 500 prisoners but now accommodates 1,601 prisoners.[7]

The overcrowding and congestion in the correctional centres highlighted above is a notorious feature of the rest of the correctional centres in the country. Consequently, social distancing, a core mechanism for preventing the transmission of the virus is impracticable in Nigerian prisons environment. In addition to the congestion, prisoners excrete and urinate in their overcrowded cells. These exposes them to the risk of transmission of the the virus through contact with the faecal waste of infected prisoners. Nigerian prison inmates also lack adequate food and healthcare which may result in compromised immune systems and predisposed them to COVID-19 fatalities. The prisons also lack basic hygiene facilities like plastic buckets, water and soap.[8] Prisoners who desire to have basic wash facilities must purchase the items for themselves or go without these basic facilities. Thus, the ability of inmates to frequently wash their hands with soap and running water is seriously compromised. As a result of the foregoing, Nigerian prison inmates are vulnerable and endangered at this time of COVID-19.

RIGHTS OF PRISON INMATES UNDER THE CONSTITUTION AND LAWS OF NIGERA
This section identifies and discusses some of the rights accruing to prisons and custodial centres inmates under the laws and Constitution of Nigeria vis-à-vis the current COVID-19 pandemic. This is an emerging area of discourse in Nigeria; recourse is therefore had to the laws and jurisprudence of the United States of America (USA) which shares similar constitutional rights regime with Nigeria. The courts there have also recently been active in applying existing rights regime in the protection of prisoners during this COVID-19 pandemic. Thus, insights from the laws and jurisprudence of the US will be useful in developing relevant norms in this area of Nigerian law. The rights identified and discussed here are as follows:

3.1 Right to a suitable condition of confinement

Suitable condition of confinement for persons deprived of liberty by the state is an essential component of the treatment of offenders under international law. Rules 12 to 18 of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) adopted on 17 December 2015 set out the different requirements and standards relating to the condition of accommodation, sanitation, hygiene, clothing and bedding, food, exercise and sports that will ensure suitable condition of confinement for persons deprived of liberty by the state. In Hutto v Finney[9] the US Supreme Court affirmed the decision of the District Court that unsuitable condition of Arkansas prison is a violation of the right against cruel and unusual punishment and the equal protection right of the Eighth and Fourteenth Amendments to the United States Constitution respectively. In Helling v. McKinney,[10] the US Supreme Court also held that prison officials may not ignore conditions that will or is likely to predispose or expose inmates to an unsafe or life-threatening condition as this will constitute a violation of the cruel and unusual punishment provision of the Eighth Amendment to the US Constitution. Thus, mere exposure of prisoners to unsafe or life-threatening condition or communicable diseases is enough to violate this right.

Following from the above, the right to suitable condition of confinement for inmates of custodial centres in Nigeria can be located in section 34 (1) (a) and article 5 of the Constitution of the Federal Republic of Nigeria, 1999, as amended (CFRN) and the African Charter (Ratification and Enforcement) Act[11] (the African Charter Act) respectively. Both of these norms guarantee the right to dignity of the human person and outlaw torture and inhuman or degrading treatment in Nigeria. Right to suitable condition of confinement is also bottomed upon the proviso to section 9 (1) and section 30 (3) of the new Nigerian Correctional Service Act, 2019 (NCSA). Section 30 (3) of NCSA expressly referenced the Nelson Mandela Rules and provides that: ‘There shall be the provision of basic needs to meet the minimum standards for the treatment of inmates which includes accommodation, feeding, potable water, hygiene, sewage disposal, clothing and toiletries.’

3.2 Right to be protected from future risk of harm and damage to health

Right of persons in custody to be protected from harm is not restricted to prevention of present danger but extends to protection of inmates from the likelihood of future harm arising from present circumstances and conditions. In Farmer v. Brennan,[12] the US Supreme Court held that prison officials may not with deliberate indifference ignore obvious risks of danger to prisoner’s future health or safety. This, the Court held will be a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment. The right of prisoners to be protected from future risk of harm in Nigeria can also therefore be located in section 34 (1) (a) and article 5 of the CFRN and the Africa Charter Act prohibition of cruel and unusual punishment or treatment.

3.3 The obligation of prison authorities to follow authorised health protocols and prepare for COVID-19

Recent authorities from US courts suggest that prison authorities are obliged to prepare for the outbreak of the coronavirus pandemic in their prisons and safeguard the health and wellbeing of inmates therein. Failure to fulfil this obligation may lead to court ordered release of vulnerable inmates. In Basank v. Decker,[13] defence attorneys brought a petition for court ordered release of detainees of a county jail on grounds of the condition of the jail considered a breeding ground for COVID-19 and the increased risk of detainees contracting the virus as a result of their underlying health conditions. The court ordered the release of the detainees because of the prison authorities’ unpreparedness for COVID-19 outbreak and the absence of appropriate safeguards to secure the health and well-being of vulnerable detainees. This right flows directly from the right to adequate medical and health facilities in section 17 (3) (d) of the CFRN and the obligation of the Nigerian state to take necessary measures to protect public health under article 16 (2) of the African Charter Act.

3.4 The right to medical attention and health care services

The right to health care services and medical attention is a broad right of prison inmates. According Rule 24 (1) of the Nelson Mandela Rules ‘[t]he provision of health care for prisoners is a State responsibility’. The wide spectrum of rights guaranteed by health care services right and medical attention are listed in Rules 24 to 35 of the Mandela Rules and includes the enjoyment of the same standard of health care with the rest of the community without discrimination;[14] the right to receive prompt medical attention in emergency cases;[15] the right to receive pre-natal and post-natal care in women prisons, among others. The health care services and medical attention rights are also bottomed upon section 17 (3) (d) of the CFRN and article 16 (2) of the African Charter. The right to health care services and medical attention is also recognised and preserved in the NCSA. The NCSA obliges prisons to put healthcare services in place, see to the mental health of inmates and provide prompt medical attention to sick inmates within or without custodial centres as appropriate.[16] In Odafe and Others v Attorney-General and Others,[17] the court held that failure of prison officials to provide medical attention and treatment for HIV/AIDS positive inmates is a violation of the constitutional prohibition of torture, a breach of article 16 of the African Charter and section 8 of the now repealed Prisons Act.

Although the rights to food, potable water, suitable accommodation, hygiene facilities, clothing and bedding, exercise and sports are part and parcel of the panoply of rights making up the right to suitable condition of confinement, these rights are also stand-alone and independent rights with specific contents accruing to prison inmates in the laws and Constitution of Nigeria. Limited space will however not permit exhaustive discussion of the latter rights here.

The above shows that the health, well-being and safety of prison inmates whether before, during or after pandemics are constitutionally imposed obligations and duties of the Nigerian state. These are entitlements accruing to inmates as a matter of right and not as a matter of charity, goodwill or discretion. The government is therefore constitutionally obliged to do all within its power and resources to discharge these obligations to inmates.

CONCLUSION
This review discusses the rights of inmates of prisons and custodial centres under the laws and Constitution of Nigeria. It discusses the nature of COVID-19 pandemic vis-à-vis the condition and character of Nigerian prisons and finds that the condition and nature of Nigerian prisons predisposes inmates to the ravaging onslaughts of the COVID-19 pandemic. Thereafter, the provisions of laws and the Constitution guaranteeing the safety, health and well-being of prison inmates in Nigeria were discussed. It was discovered that what obtains in practice is a far cry from what the Constitution and the laws prescribe.

Going forward, the following recommendations for the effective management of Nigerian custodial centres and its bourgeoning population for a more robust response and management of outbreak and spread of infectious diseases are proposed as follows: First, governments at both the Federal and state levels needs to operationalise the plea bargain mechanism in section 270 of the Administration of Criminal Justice Act, 2015 (ACJA). Some states of the Federation like Lagos, Edo, Adamawa and Kano States have similar plea bargain provisions in their Administration of Criminal Justice Laws (ACJLs). Plea bargain, apart from helping to decongest case dockets, can also help in decongesting the prisons by ensuring early resolution of criminal cases. Second, non-custodial sentences should also be operationalised at both the Federal and States levels. This will help ensure that only those that deserved to be in prison are sent to prison. Provisions on non-custodial sentences are expressly recognised in the NCSA. Alternative sentencing measures provided in the NCSA include parole, probation, community service, restorative justice measures, and any other non-custodial measures assigned to the Correctional Service by the courts.[18] The NCSA also mandates the establishment of the National Committee on Non-Custodial Measures to oversee the effective implementation of the non-custodial measures of the NCSA.[19] States of the Federation are also encouraged to domesticate and operationalise non-custodial and alternative sentencing mechanisms in their administration of criminal justice regimes. This will go a long way in decongesting the overcrowded prison population in Nigeria. Third, there is need to upgrade Nigeria’s custodial centres most of which were relics of colonialism from their dilapidated states to modern ones that can cope with the increased number of inmates. Finally, there is need for improved funding for the Nigeria Correctional Service so that it will be able to perform its statutorily assigned roles and functions as well as effectuate the laudable objectives of the newly enacted NCSA and the rebranded prison institutions in the country.

Dr Akinola Akintayo is a Senior Lecturer and constitutional law and human rights expert at the Faculty of Law, University of Lagos, Akoka-Yaba, Lagos. Email: [email protected]

[1] J Fuk-Woo Cha et al ‘A familial cluster of pneumonia associated with the 2019 novel coronavirus indicating person-to-person transmission: a study of a family cluster’ (2020) 395 Lancet 514.

[2] Market Watch ‘Coronavirus survives longer airborne and travels further in these public spaces’ (27 April 2020) available at https://www.marketwatch.com/story/coronavirus-survives-longer-airborne-and-travels-further-in-these-public-spaces-heres-where-to-be-extra-careful-2020-04-27?siteid=yhoof2&yptr=yahoo (accessed 28 April 2020).

[3] Y Liu et al ‘Aerodynamic analysis of SARS-CoV-2 in two Wuhan hospitals’ (2020) Nature available at https://www.nature.com/articles/s41586-020-2271-3_reference.pdf (accessed 28 April 2020).

[4] See for instance, Worldometer ‘SARS-CoV-2 Transmission’ (16 April 2020) available at https://www.worldometers.info/coronavirus/transmission/ (accessed 28 April 2020).

[5] Punch ‘Saving prisoners, IDPs from COVID-19’ (10 April 2020) available at https://punchng.com/saving-prisoners-idps-from-covid-19/ (29 April 2020)

[6] As above.

[7] Amnesty International ‘Nigeria: Authorities must uphold human rights in fight to curb COVID-19’ (1 April 2020) available at https://www.amnesty.org/en/latest/news/2020/04/nigeria-covid-19/ (accessed 28 April 2020).

[8] As above.

[9] 427 US 678 (1978)

[10] 509 U.S. 25 (1993)

[11] Cap A9 LFN 2004

[12] 511 U.S. 825 (1994)

[13] Case number (1:20-cv-02518-AT). Decided by the New York Southern District Court

[14] Rule 24 (1) of the Mandela Rules.

[15] Rule 27 of the Mandela Rules.

[16] Section 23 to 25 of the NCSA.

[17] (2004) AHRLR 205

[18] Sections 37 to 43 of the NCSA.

[19] Section 37 (2) and (3) of the NCSA.