National 9 (Spotlight Weekly)

Monitoring Visits to Places of Detention: Drops on Parched Soil

By Bipin Adhikari

The Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (December 2000) is a unique and innovative instrument which Nepal government must consider ratifying in order to give new dimension to the national efforts to prevent torture. The protocol recognizes that for effective protection against torture and other forms of ill treatment, sustained national as well as international efforts are required.

The Protocol deals with state obligations to se up, designate or maintain national visiting mechanisms. It responds to the questions like when do the mechanisms have to be in place; what form do the national mechanisms have to take; and what should be the mandate of the national mechanisms. It lays down clear criteria and guarantees for the effective functioning of national visiting mechanisms: functioning independence; composition of national mechanisms; guarantees and powers in respect of visits; and recommendations and follow-up to visits. Its provisions also focus on co-operation between the authorities and the visiting mechanisms, cooperation and inter-relationship with sub-committee under the protocol, and direct contact with the sub-committee.

At present, Nepal does not have a systematic approach in monitoring visits to places of detention. Article 9 (e) of the Human Rights Commission Act 1997, which established the National Human Rights Commission (NHRC) of Nepal, specifies the authority of the Commission to "visit, inspect and observe any authority, jail or any organization under His Majesty's Government and to submit necessary recommendations to His Majesty's Government on the reform to be made on the functions, procedures and physical facilities which may be necessary for such an organization for the protection of human rights."

In this regard, the Commission has in many instances conducted periodic visits to prisons and other detention centers to investigate and inquire about condition of the prisoners and the overall condition of such facilities. Such visits include inspection of various men's and women's prisons in various districts of Nepal to identify the various problems found in prisons. Monitoring teams have obtained information about the number and condition of prisoners, including women prisoners and mentally deficient prisoners, details of prison sentences, and the education, health condition, etc. of the prisoners and their dependant children. The team also have obtained information about physical facilities such as sleeping quarters, toilets, school, library, health centre, electricity-lighting, water supply, sports and entertainment facilities and about such issues as the employment industry and skill generation of the prisoners.

The prison study team of the Commission during its visit also have received complaints and suggestions from prisoners, chiefs of prisoners, guards, security personnel, staff of the Prison Management Department, Jailers and other staff of the prison. The team also compiles all these complaints and suggestions, along with its own observations about various issues during the visit, in a report. The common problems observed by the study team during its visit and the suggestions and recommendations have also been sent to the Home Ministry of His Majesty's Government for necessary action, where needed

Monitoring human rights and conducting visits to detention centers and prisons has been a major challenge especially at a time when Nepal is mired in armed conflict initiated by the Nepal Communist Party (CPN-Maoist) for a period of almost seven years. Nevertheless, it became all the more important to address the issue due to the growing number of detentions in prisons and such other facilities. A significant reason for starting monitoring activities by the Commission was the commencement of the Terrorist and Disruptive Activities (Control and Punishment) Act, which gives further powers to the state to deal with these rebels. At a time of armed internal conflict there is a greater probability of violation of the basic principles of humanitarian law stated in the Common Article 3 of the Geneva Conventions. To find out the reality about the events of such violations made by the State Party and the CPN (Maoist) continues to be another objective of the monitoring.

Although over a decade has elapsed since the restoration of democracy in Nepal, no amendment has been carried out in the Acts and Laws related to prisons in the country with the purpose of overhauling the system.

There is a provision in the existing Prisons Act, which stipulates that a Judge from the Appellate Court should conduct visits to local prisons at least once a year and submit reports for necessary reforms. Similarly, each Chief District Officer, who is the governmentís administrative representative at the local level, also has the power to visit and inspect prison facilities. Occasionally the Supreme Court judges or Judges at the District Courts also make such visits. However, such measures have not been regularly implemented and systematized. It is also important to point out that torture has yet to be considered as a criminal offense under the law. There has been very little change in the physical facilities in prisons, no increase in the rations of the prisoners and no appropriate provision of employment, skill generation and capacity building in prisons.

All the above mentioned and other problems remain prevalent in prisons, as a result of which they have yet to develop reformatories. Due to limited resources and the absence of training and motivation, those who have to work in the dreary environment of prisons have not been able to perform as expected. Reformative measures are lacking and impunity has thus been the usual norm in many cases.

This is high time that Nepal Government shows its commitment to the Optional Protocol and initiate measures to reform the existing system. Torture is a major human rights problem in Nepal and drops on parched soil can hardly help. Under the Optional Protocol, state parties have obligations not only in respect of the sub-committee, but also the national visiting mechanisms to ensure their effective functioning. For the first time, in an international instrument the mandate, scope of application, composition and methodology of national visits have been prescribed. It is envisaged that the new approach of codifying national efforts to prevent torture in cooperation with an international mechanism will assist the implementation of international standards at the local level. It is therefore essential to the effective functioning of the Optional Protocol as a preventive instrument that appropriate, competent, independent national mechanisms are established, maintained or designated by state parties.

(Adhikari is a lawyer)