Tuesday June 28 2016

When patients are prisoners

By Frederic Musisi

Life in prison is not easy. You don’t have to ask anyone who has been there before. It is a place where every moment of every day is dictated for you.
Besides taking away one’s pride, the conditions are often unpleasant, but one has to adjust.

Prison serves the purpose of either punishment or reformation, and for the latter, it offers opportunities for self-reflection in the hope that their lives will be changed once they leave.

For some people however, it becomes home as well. Katojo Prison in Fort Portal was home to Sande Kamuhanda, for 25 years until his death early this month.

With no known relative to care for, check on him, or visit him on his sickbed, he died quietly at Buhinga hospital.
Kamuhanda was the longest serving, mentally ill prisoner in the prison records but details of his criminal records and eventual trial very scanty.

He was arrested on May 12, 1991 for murder, tried, but found and medically proven to be suffering some form of mental illness, and remanded to the same prison.

For such persons, the law, the Trial on Indictment Act, gives powers to court on ruling on special finding of not guilty by reason of insanity.

When court makes such a ruling, Section 48 (2) stipulates it [court] “shall report the case for the order of the minister, and shall meanwhile order the accused to be kept in custody as a criminal lunatic in such place and in such manner as the court shall direct”.

Kamuhanda’s file was first forwarded to the Justice minister, now retired Supreme Court judge Prof George Kanyeihamba who was serving then, on December 12, 1994.

But up to his death, orders for his release were still waiting to be sanctioned by Justice minister Kahinda Otafiire; who is due to start another five year term.

Previous holders of the docket after Prof Kanyeihamba and before Maj Gen Otafiire, included Mr Joash Mayanja Nkangi, Ms Janat Mukwaya and Dr Khiddu Makubuya.

Late last year, this newspaper wrote to the Commissioner General of Prisons Johnson Byabashaija requesting for access to Kamuhanda and other said to be mentally ill inmates, which was turned down.

Uganda Prisons spokesperson Frank Baine explained it is just plausible that a “sane person cannot have a meaningful conversation with a mentally unstable one”.

This reporter, however, was able to access Katojo prison about seven kilometers out of Fort-portal Town.
The prison is a nondescript complex built by the British colonial administration in 1957, and is craving renovation. The prison houses about 300 inmates, including about eight who are mentally ill.

The cells were fairly neat, warders mannerly (at least when we visited) and the inmates were in visibly good condition.
Because we were on a clandestine mission, we were allowed a glimpse of Kamuhanda, but a conversation with him was not possible. The warder explained he had just been ‘sedated’ and thus he was in a torpid (sluggish) state.

Kamuhanda, both prison officials and authorities in Kampala said, had undergone a series of psychiatry examinations and treatments by specialists from both Buhanga and Butabika hospital. One prison warder described him as a ‘lab rat.’

“He has been tested, treated, tested and treated, I think on all drugs but we wonder why he is still here,” the warder said.

Save for the drowsiness, Kamuhanda seemed to be in good conditions. The warder described his mental status as “fine”, but having been neglected behind bars for long he had developed some form of anxiety which explained why he was being kept on medication. Anxiety is another treatable health disorder.

When the beloved die or there is some heart-rending killing of the innocent, the entire community might weep.
But a much smaller number die alone, no one seemingly seeing or acknowledging their struggles. No one collects their bodies. No one mourns the conclusion of their lives. They are just a name added to the death list.

Kamuhanda, reportedly aged 53 at the time of his death was among those. Apart from prison which was his family, there are no other details of who he was before or who his relatives were.

Naturally, Mr Baine in a recent interview explained, anyone can feel sorry for such a person “but for us we are just custodians”.

“As prisons we don’t have the right to debate the prisoner’s files. The only thing we can do is to prepare their files and forward them to the minister. If they don’t take any action it is another matter beyond our control,” he says.

Prisoners or patients?
The interface of mental health in law, according to Dr Julius Muron, a consultant psychiatrist at Butabika hospital, takes several forms.
First, all human beings are at different levels of mental health and one can only be looked into when court issues such orders “because deliberately it is unthinkable for one to check themselves” for psychiatric help.

The second aspect is when one commits a crime, especially a capital offence like murder – here, a mental examination is a requirement.

The ground of unsound mind might be raised during a trial but court has the discretion to look at the component of the crime, and if actually a person was of unsound mind at the time of committing the crime.

The third aspect is of people who contract mental illness while serving their sentences.

“The law doesn’t cater for this category but what authorities usually do is to ensure psychiatric examination and medications,” he says. Butabika hospital deals with the first two aspects.

“But for the second aspect we have consensus as health experts, ministry of Justice, and ministry of Internal Affairs that the law is unfair to put someone with a problem of mental illness in prison pending minister’s orders. We think this should be purely a matter of treatment.”

The main challenge they have, Dr Muron, says is the contradictions posed by the law, “however, we also think that the element of minister’s orders has a bit of contradiction to the right to health because the minister’s orders are prioritising only custody, which must be changed”.

In the past, he adds, they have held a number of high level meetings where they resolved that Butabika should identify a place “where such people can be contained while receiving treatment and if necessary under the watch of prisons”.

Butabika has already identified a place for construction of this ward, which is as Dr Muron said: “Sometimes these people are so unwell and the environment for their treatment has to be conducive as well, definitely not the prison kind.”
To realise this, funding has to be availed through the budgetary allocation to the Ministry of Health, but from the look of things this is not anywhere in sight.

Nor has it been mentioned anywhere in the ministry’s previous two ministerial policies.

Uganda is signatory to the United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol domesticated under the Persons with Disabilities Act, 2006 - a legislation that essentially protects the rights of persons with disabilities and promotes access to services such as education and employment. The legislation is, however, silent on the treatment of persons with mental disabilities.

Both Dr Muron and Mr Derrick Mbuga, the executive director of Mental Health Uganda, an advocacy group for people suffering mental illness, however, argue a new chapter could be opened if Parliament passes the Mental Health Bill, 2014 and the President assents to it.

Currently, Uganda uses the Mental Health Treatment Act, 1964 which also regulates mental health in the country which is deemed outdated and does not serve the needs of persons with mental health disabilities, especially in circumstances of prison.

The legislation is also regretted, for example, because it refers to persons with mental health disabilities as ‘idiots’.

Mr Mbuga, however also makes a case for inmates whose numbers he said are ‘stunning’ and who are battling mental problems inside prisons but are not catered for by any law.

“Prisons will tell you they receive psychiatry examination and medication but that is not enough,” he says.

Dragging feet on interventions
The Chief Registrar of Courts, Mr Paul Gadenya, in a recent interview said the Judiciary is cognizant of the problem and conversations to address it through available means are ongoing.

The two main issues at hand, he says are committing these people to Butabika, but he asks, “What happens after that? He answers by saying they can be integrated back to society but again asks, “What if they commit the same crimes; who is responsible?”

“The issue is that lawyers for these people do not follow up while the judges don’t make notes on the same. The minister is mandated to take action on basis of the judges’ notes but if the notes are inconclusive it surely becomes hard. For example, Fort Portal indicated that certain files do not exist in their system so where do we start?”

Seemingly appalled by such processes that go around in circles, Justice David Batema of the Fort Portal High Court on July 10 last year issued what was heralded as a landmark ruling in the Eric Bushoborozi versus Uganda case, in which he stripped the minister of powers, directing the court registrar in his circuit to resurrect all files of inmates pending minister’s orders for discharge.

A number of juveniles were released but not the mentally ill inmates because some of their files were missing.

Still in October last year, the panel of judges of the Constitutional Court ruling on a petition filed by the Center for Health, Human Rights and Development challenging sections of the Trial on Indictments Act and Penal Code, which they argued contravenes the rights and treatment of people with mental disabilities, ruled that the sections of the two laws are ‘unconstitutional’ and called for their modification.

The judges, also held that the trial court should order for the detention of such persons for a specific period of time for purposes of treatment.

The period of detention, court ruled, should reviewed periodically to ascertain the mental status of the person basing on the psychiatrist’s report. When court is satisfied that such a person is mentally fit and no longer a danger then they be released back to society.

Most importantly, judges Remmy Kasule, Eldard Mwangusya, Faith Mwondha, Richard Butera and Solomy Bossa, as a matter of urgency directed responsible authorities to urgently review the status of all persons with mental disabilities so they can be removed from prisons and taken for care and treatment in appropriate places.

They also ordered a review of the Trial on Indictments Act on how such people should be handled in compliance with the constitution. That was the end of it.

Nearly eight months after the ruling, action is yet to be taken and when Mr Baine, was asked last week if there was any mentally ill inmate who had been released following the ruling, he said he “was not aware of any”.

“Such people need a cantankerous judge [like Batema] who upon being declared innocent on insanity grounds immediately recommends them to be taken to Butabika otherwise our processes are very slow,” he says.
Indeed, Former Chief Justice Benjamin Odoki while on a visit to Katojo prison in 2012 was told about the case of Kamuhanda and his quest for justice to which he expressed shock, according to media reports at the time.

He wondered why mentally ill inmates are being kept in prison instead of care centres, and promised to bring it to the attention of officials in Kampala. He retired a year later without pronouncement on the matter.

Most likely current Chief Justice Bart Katureebe is aware of the problem.

The New York based Human Rights Watch in 2009 wrote to the then Justice minister, Dr Makubuya that “Locking people up and throwing away the key is no way to treat anyone, much less a child or someone who is mentally ill.

HRW also said it had established that superintendents of custodial facilities were not submitting such reports requiring the minister’s orders, which led to individuals being detained on remand indefinitely, a situation which constitutes arbitrary detention and a violation of human rights law.

However prisons authorities maintain they do this periodically – they blamed the Judiciary; the Judiciary blamed the minister; the minister contacted earlier on said he was not aware of the matter.
It all still leaves the burning question: Who will act then?

musisif@ug.nationmedia.com

This series was produced with assistance from the African Center of Media Excellence.

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