Motivating Prisoners’ Access to Condoms in Southern Africa A Right to Preventative Care In Prisons: Motivating Prisoners’ Access to Condoms in Southern Africa Annabel Raw (Health Rights Lawyer, SALC) AnnabelR@salc.org.za July 2016 Southern Africa Litigation Centre T: +27 (0) 10 596 8538 www.southernafricalitigationcentre.org

Objectives To determine whether it is legally possible for to advocate for the provision of condoms in prisons in a criminalised context: Are criminal sanctions against same-sex sexual acts a legal impediment to medical officers providing condoms and lubricants in prisons in southern Africa? Is there a legal basis to establish prisoners’ right to access preventative healthcare as inclusive of access to condoms and lubricants?

Problem statement In-country partner organisations are advocating for the distribution of condoms and lubricants in prisons to prevent the transmission of HIV. South Africa and Lesotho are the only two countries in southern Africa in which condoms are, in policy at least, made accessible to prisoners. Criminal sanctions against consensual same-sex sexual acts and administrative prohibitions on sexual contact amongst prisoners are often cited as legal impediments to policy change.

A right to preventative healthcare Prison legislation mandating prison health authorities to take necessary measures to both administer healthcare to prisons and to prevent the spread of disease amongst prisoners. Under a common law duty of care, prison authorities are further obligated to provide adequate healthcare to detained persons, which includes preventative healthcare measures. These obligations are affirmed by international and regional human rights law and soft law standards.

A right to preventative healthcare E.g. Botswana: S 57(1) of the Prisons Act (Ch 21:03) empowers prison medical officer to “take such action … as he considers necessary to safeguard or restore the health of the prisoner or to prevent the spread of disease.” Courts have interpreted this to create a legal obligation on medical officers to take measures to prevent the spread of disease (Tapela and Others v Attorney General and Others, 2015 Court of Appeal)

A right to preventative healthcare Regional jurisprudence has - amongst others – Acknowledged the effect of systemic deficiencies in prisons on health and human rights of prisons including conditions of severe overcrowding (Masangano, 2009, Malawi), and inadequate nutrition and poor sanitation (Mwanza, 2016, Zambia); Direct liability for the contraction of communicable diseases due to failures to take adequate preventative measures (Dudley Lee, 2012, South Africa); Recognised that HIV transmission occurs in prisons (Tapela, 2014, Botswana High Court). And repeatedly affirmed prisoners’ health rights.

Could this include the distribution of condoms? … irrespective of domestic criminal or administrative sanctions prohibiting same sex sexual activity, both in prisons and outside of prisons? Some thoughts: Explicit statutory provisions deeming lawful “all actions” of medical officer in fulfillment of statutory duties. Analogous exemptions in other areas of medical law e.g. the doctrine of “double effect”: To what extent are ordinary principles of criminal complicity already in practice exempted in application to healthcare providers? Analogous exemptions from complicity liability in harm reduction initiatives?

Conclusions It is possible within existing legal frameworks to argue that: Prisoners have a right to preventative healthcare: government is obliged to implement adequate measure to prevent the spread of HIV. Prison health officials are empowered to distribute condoms and lubricants even if laws prohibit same-sex sexual acts. Criminal sanctions against consensual same-sex sexual acts ought to be challenged as infringing human rights protections and harming public health imperatives in their own right. But advocacy to advance prison health services in southern Africa, through ensuring access to measures to prevent the sexual transmission of HIV between prisoners, can be strengthened by legal arguments within existing legal frameworks.

More work is needed: What do prisoners want and need to reduce HIV transmission in prisons? How does this advocacy agenda deal with high rates of sexual violence and coercive sex in prisons? Is a focus on condoms and lubricants the best use of our energies? Who should drive policy reform and how? (Prison officials, the medical community, ministries of health, civil society, parliament? – Lesotho example is important)