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Unlawful Detainment of Three Prisoners by Prison Authorities [2000] VUOM 3; 2000.03 (13 March 2000)

REPUBLIC OF VANUATU

OFFICE OF THE OMBUDSMAN

PUBLIC REPORT

ON THE

UNLAWFUL DETAINMENT OF THREE
PRISONERS BY PRISON AUTHORITIES

13 March 2000

9078/9/15

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THE UNLAWFUL DETAINMENT OF THREE PRISONERS BY PRISON AUTHORITIES

TABLE OF CONTENTS

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1. SUMMARY

1.1 On 11 October 1998, prisoners Mr. August William Iakai, Mr. Mark Wine Kasimir and Mr. Henry John pressured Mr. Abner Makitu, a police officer on duty at that time, to open the gate and let them out of the prison house. Officer, Makitu refused and reported the incident to the Officer-in-Charge, Mr. Obed Nalau[1] who then took disciplinary actions against the three prisoners.

1.2 On another occasion, Mr. Henry John pressured Police Constable Mr. Runa, a prison gates and let him out.

1.3 On 28 October 1998 the three prisoners were brought before OIC Nalau for a disciplinary hearing. The hearing was for disobeying the order given by the Officer Makitu. They were all found guilty. OIC Nalau ordered their confinement from 11 to 28 October 1998, a period of 17 days.

1.4 OIC then sought approval from Superintendent Nathaniel Vira[2] to confine the prisoners. Supt Vira gave the approval on 02.11.98.

1.5 The prisoners lodged a complaint with the Ombudsman’s Office, alleging that the punishment they received did not follow the proper procedure for punishment as required under Prison (Administration) Act (CAP 20).

1.6 The Ombudsman has found that the actions of OIC Nalau and Supt Vira were in breach of the Prison (Administration) Act Cap (20) and constituted a violation of human rights as guaranteed by S.5 (1) and (d) of the Constitution.

2. JURISDICTION

2.1 The Constitution and the Ombudsman Act allow me to look into the conduct of government, related bodies, and leaders. This includes the police and the prison authorities.

3. PURPOSE, SCOPE OF INVESTIGATION AND METHODS USED

3.1 The purpose of this paper is to provide an opportunity for you to respond to its contents and, if possible, to resolve outstanding issues before this office issues a public report.

4. RELEVANT LAWS, REGULATIONS AND RULES

4.1 Prison (Administration) Act CAP [20]

4.1.1 Article 11 Punishment of Prisoners

No prison shall be punished by any prison officer except on the authority of the Superintendent, and no punishment shall be inflicted except for a prison offence as defined by this Act.

4.1.2 Section 32 Prison Offense

The following acts and omissions are declared to prison offences, namely-

(h) disobedience to the commands of any prison officer;

(i) disrespectful conduct to any prison or inspecting officers.

4.1.3 Section 33 Prison offences to be dealt with summarily

The superintendent shall verify the evidence and examine any prisoner charged with the commission of a prison offence and if satisfied that such prisoner is guilty, may, without prejudice to the institution or judicial proceedings, impose any or all of the following punishment-

a) Solitary confinement with reduced date not exceeding 14 days or not more than 4 days in any one week:

Provided that a sentence of solitary confinement shall be subject to the approval of a medical officer as to the health of the offender where such a sentence exceeds 4 days;

2. Extra labour not exceeding 1 hour per day for a period not exceeding 14 workings day;
   

c) Cancellation for a period not exceeding 14 days of any privileges to which the prisoner may be entitled by virtue of sections 28 and 29.

[emphasis added]

4.2 CONSTITUTION OF THE REPUBLIC OF VANUATU

Fundamental right and duties

5. (1) The Republic of Vanuatu recognizes, that, subject to any restriction imposed by law on non-citizens, all persons are entitled to the following fundamental rights and freedoms of the individual without discrimination on the ground of race, place of origin, religious or traditional beliefs, political opinions, language or sex, but subject to respect for the rights and freedoms of others and to the legitimate public interest in defence, safety, public order, welfare and health-

(d) protection of the law;

(e) freedom from inhuman treatment and forced labour;

6. OUTLINE OF EVENTS

23 September 1998 Acting Commissioner of Police, Mr. Holi Simon, released a memorandum as quoted in below, regarding the mistreatment of persons detained in custody.

'The Commissioner’s Office has received various complaints from the general public against Police treatment to detainees when in the Police custody. It’s a practice by some officers when detaining their accusers or suspects in police custody without taking proper care or attention as a result which may detainees were not fed and treated with respect...' Be aware that when-ever any person commits any cognisable offence Police is empowered by Law to arrest him/her and detained in custody. This only gives us power to remove his/her freedom of movement but Police should maintain his/her daily life with food, water, shower and medication when required.

This has reflected how the Police is not taking proper care of members of the community we are serving. I wish to emphasis that this matter has been brought to the attention of all formation commanders but no actions been taken to improve his type of improper treatment.

This memo serves that all detainees in Police custody must be fed and treated with respect. As from now onwards my office will not tolerate such behaviour to continue practiced in the Police Force. Any further similar matter arising in the future, the Officer responsible and his/her Officer-In-Charge will be held, accountable to explain their actions.

The Commissioner’s Office will verify that their actions are valid and reasonable but if not, then further actions will be taken against them.

Do ensure that officers under your command are aware on the content of this memo'.

11 October 1998 Prisoners Mr. August William Iakai, Mr. Mark Wine Kasimir and Mr. Henry John and other pressured Mr. Abner Makitu, a police officer on duty at that time, to open the gate and let them out of the prison house.

13 October 1998 Officer Abner reported the incident to Mr. Obed Nalau, the Officer-in-charge of the Prison at that time.

28 October 1998 OIC Nalau summoned these three prisoners into his office and informed them that they would be ordered to be put under confinement for 14 days for their actions. The confinement imposed was later approved by the Superintendent of the Prison Mr. Nathaniel Vira on 2 November 1998.

11 – 28 October 1998 Mr. August William Iakai, Mr. Mark Wine Kasimir and
Mr. Henry John, were confined from 11 October 1998 to 28 October 1998 for disobeying the instructions of Prison officer, Makitu. They were kept in solitary confinement for 17 days continuously.

6. PRELIMINARY FINDINGS

6.1 Finding 1: Mr. Obed Nalau, former Officer-in-Charge of Prison failed to follow the procedure required by law when he imposed punishment on the prisoners, August W. Iakai, Mark Wine Kasimir and Henry John.

The former Officer-in-Charge of Prison, Mr. Obed Nalau punished the prisoners without the authority of the Superintendent Nathaniel Vira. O.I.C Nalau confined the prisoners before obtaining express authority from Supt Nathaniel Vira. The confinement was imposed from 11 to 28 October 1998 but Supt Vira did not grant authority until 2 November 1998.

This action was contrary to section 11 of the Prison (Administration) Act Cap [20].

6.2 Finding 2: The Superintendent of Prison, Mr. Nathaniel Vira and the O.I.C, Mr Obed Nalau failed in their duties to conduct a proper disciplinary proceeding before finding these prisoners guilty of an offence.

O.I.C Nalau acted independently and Supt Vira did not have an opportunity to examine every prisoner charged. He did not look at the allegations and the so-called 'pressure' exerted by the prisoners. O.I.C Nalau’s actions did not follow proper disciplinary procedures as provided under S.33 of the Prison (Administration) Act.

6.3 Finding 3: The Prison Authorities violated the fundamental rights of the three prisoners.

O.I.C Nalau breached Article 5(1)(d) and (e) of the Constitution when he ordered the confinement of the prisoners, Iakai, Kasimir and John for a period of 17 days. The prisoners were not provided with the protection of the law under Article 5(1)(d) of the Constitution. Furthermore, section 33(a) of the Prison (Administration) Act [Cap 20] limits confinements to a period of 14 days.

The actions of former OIC Nalau violated Fundamental Rights and Freedoms of an Individual as provided by the Article 5(1)(a) and (e) of the Constitution of the Republic of Vanuatu.

Comments

The law sets out limited punishments that can be given to prisoners for any prison offence. The punishment given in this case is a serious human rights violation because the legal requirements were ignored and or breached by the National Prison Services.

7. RECOMMENDATIONS

7.1 THE PROCEDURE OF PRISONER’S PUNISHMENT SHOULD BE REVIEWED.

1.1- That Prison Authority should revise forms that reflect to the law in punishing Prisoners.

1.2- That Prison officers should be given training of improvement into the warden’s duty.

1.3- That The Prison Authority should amend the law if inadequate for the punishment of prisoners.

Dated the 8th day of September 1999

Hannington Godfrey ALATOA

OMBUDSMAN OF THE REPUBLIC OF VANUATU

8. INDEX OF APPENDICES

1. Record of Prison offence disciplinary proceeding
   
2. Report of Mr. Abner Makitu to OIC
   

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^[1] They were made redundant under the Comprehensive Reform Program on December 1998
^[2]