N5007

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MP NO 813 0F 2006

IN THE MATTER OF ENFORCEMENT
OF BASIC RIGHTS UNDER
THE CONSTITUTION
OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA,
SECTION 57

RE CONDITIONS OF DETENTION AT
LAKIEMATA CORRECTIONAL INSTITUTION,
WEST NEW BRITAIN PROVINCE

APPLICATION BY
JOHN BOSCO, KORAK MEKORE,
THOMAS MADI, DANIEL WALUS, JACKY VUTNAMUR,
FRANCIS SALI AND ANDREW ULO
FOR AND ON BEHALF OF ALL DETAINEES
AT LAKIEMATA CORRECTIONAL INSTITUTION

Kimbe: Cannings J
2006: 6, 9 October

HUMAN RIGHTS – conditions of detention for detainees – prisoners and remandees – jail – need for conditions of detention to comply with constitutional requirements – Constitution of the Independent State of Papua New Guinea, Section 36: freedom from inhuman treatment – Section 37: protection of the law.

CONSTITUTIONAL LAW – Basic Rights – enforcement of basic rights – Constitution of the Independent State of Papua New Guinea, Section 57: enforcement of guaranteed rights and freedoms – power of National Court to enforce human rights – National Court shall protect and enforce rights on application or on its own initiative.

A National Court Judge received a petition from a group of detainees at a jail drawing attention to serious problems with the quality of the water supplied to the jail, which had allegedly led to the deaths of some detainees. The Judge treated the petition as an application by detainees for enforcement of their human rights, appointed a lawyer to represent them, conducted a court hearing and heard evidence from: the doctor responsible for treatment of sick detainees, a detainee representative, a provincial environmental health officer, the jail commander and the manager of the local branch of the Waterboard.

Held:

(1)	The water being supplied for drinking and cooking and other domestic purposes at Lakiemata Jail is untreated and badly polluted and this has led directly to a high level of illnesses, particularly dysentery, and the deaths of two detainees in the last four months.

(2)	The poor quality of the water being supplied to the jail and its effect on the health of the detainees means that the basic rights (human rights) of the detainees are being breached.

(3)	Corrective action is urgently required, to prevent further disease and deaths.

(4)	Orders were accordingly made, directed at the Managing Director of the PNG Waterboard, the Commissioner of the Correctional Service and other public officials, to ensure that the water quality is improved, as a matter of urgency, and that other steps are taken within two months to raise the heath and hygiene levels within the jail to an acceptable level.

Abbreviations

The following abbreviations appear in the judgment:

CHPL – Central Public Health Laboratory
Dr – Doctor
eg – for example
J – Justice
MBBS – Bachelor of Medicine, Bachelor of Surgery
ml – millilitres
MP – miscellaneous proceedings
N – National Court judgment
NBPOL – New Britain Palm Oil Limited
No – number
PNG – Papua New Guinea
POM – Port Moresby
VJ – Visiting Justice
WNB – West New Britain

ENFORCEMENT OF BASIC RIGHTS AND HUMAN RIGHTS

This is an enforcement of basic rights, also known as human rights, by the National Court acting on application.

Counsel

O Oiveka, for the applicants
F Popeu, for the State

9th October, 2006 

1. CANNINGS J: Two prisoners have died at Lakiemata Correctional Institution (Jail) in West New Britain in recent months. There has been an outbreak of dysentery. The cause of it has been clearly established. The detainees are extremely concerned about their health and their survival. They have applied to the National Court for relief. They want the court to make orders to fix the problem immediately or order that the jail be closed. I have decided to make orders that the problems be fixed as a matter of urgency and this judgment records my reasons for doing so.

2. In June this year I became aware of an outbreak of disease at Lakiemata Jail during the course of a Visiting Justice Visit. A number of detainees had been admitted to Kimbe General Hospital and one detainee had died. I sought advice from Dr Peter Yama, medical officer, at the hospital, who had accompanied me to the jail on previous visits. Dr Yama visited the jail again to talk to the detainees and explain what he considered the problem to be. At that stage the detainees thought that there had been an outbreak of typhoid. Dr Yama explained that the problem was not typhoid but dysentery, an infection of the intestines with bacteria or protozoans, resulting in severe diarrhoea with blood and mucous in the faeces. Dr Yama considered that the infection was probably caused by polluted water. I then asked the Provincial Health Office to assist, which it did by dispatching environmental health officer, Mr Paul Tokavai, to the jail to take water samples and assess the general standards of health and hygiene in the jail. Mr Tokavai prepared a report, identifying the major public health issues and recommending corrective action required. I kept the acting Jail Commander, Chief Inspector Marcus Mandau, informed of the steps I was taking to assist him identify the cause of the outbreak of disease and what had to be done to control it. In the last couple of weeks the problems have got worse. Another detainee has died of dysentery and others have been admitted to hospital with similar symptoms to those who have died.

3. A group of detainees has sent me a petition. They have drawn attention to the serious problems with the quality of the water supplied to the jail, leading to the deaths of two detainees. In response to that petition, I made a VJ visit to the jail on Tuesday 3 October 2006. I was accompanied by Dr Yama and Mr Tokavai who explained to the detainees what the problem was and what had to be done to fix it. I told the detainees that I would treat their petition as an application for enforcement of human rights and consider making orders under the Constitution to ensure that the problem was fixed. On Thursday 5 October 2006 I discussed the issues with the Kimbe branch manager of the PNG Waterboard, Mr Navary T'eaku, and officially requested the Waterboard's assistance. On Friday 6 October 2006 I conducted a hearing in the National Court at Kimbe. The subject matter was an application for enforcement of basic rights under Section 57 of the Constitution. I asked Mr Oakaiva Oiveka of the Office of the Public Solicitor at Kimbe to represent the applicants and Mr Francis Popeu of the Office of the Public Prosector to represent the State. The court heard evidence from five witnesses, the counsel made submissions and I reserved a ruling to Monday morning 9 October 2006.

THE APPPLICATION

4. This is the petition, dated 26 September 2006. It was written soon after the second recent death in custody:

(1)	We petition that relevant authorities explain to us why this place was re-opened after it was condemned in 2003. We know that this place was supposed to remain closed because the original problems, which includes water supply, ablution blocks and toilets and messing facilities, were not yet addressed.

 (2)	We petition that the Health Inspector tell us what are the results of water samples collected so far and what actions have been taken to solve the problem and also why it is taking too long to take action accordingly.

(3)	Because water is our main problem here, we demand the relevant authorities to build a water treatment plant, look for a better source where we can get water from and re-piping of the whole system in the jail.

(4)	We demand that the authorities immediately build two more ablution blocks and install more toilet pits at the main compound to effectively and sufficiently cater for the big number of people there.

(5)	We also petition the authorities to also build two new messing facilities are for the main compound and one for MSU Compound.

Since the re-opening of the jail (while still in a condemned state) we so far have three deaths as a direct result of drinking and using this same water supply. The latest victim, the late Augustine Ailolo, died this morning 26 September 2006. We cannot sit back and see our fellow prisoners continue to lose their lives just because of drinking or using this water supply.

Therefore, we hereby strongly demand that this Jail be closed immediately and appropriate steps must be taken to fix up the problems as outlined above before this place can be re-opened.

THE EVIDENCE

5. The first witness was Dr Peter Yama MBBS of Kimbe General Hospital. Dr Yama said there had been an outbreak of diarrhoea at the jail in late May 2006. Twenty detainees were brought to the hospital for treatment, some with severe stomach pain and many with blood and mucous in their faeces. The worst case was Michael Tavure Vele who was in hospital for five days prior to his death on 31 May 2006. He died of massive internal bleeding. The second prisoner to die was Augustine Ailolo, on 26 September 2006. He was admitted to hospital with similar symptoms as the previous detainees: stomach pain, blood and mucous in the faeces and bleeding from the mouth. Dr Yama said that typhoid tests on the detainees had proved negative and his view was the detainees were suffering from dysentery, caused by heavy bacterial and parasitic infection brought about by consumption of polluted water. Tendered in evidence was a letter from Dr Yama to the Acting Jail Commander, Chief Inspector Mandau, dated 4 October 2006, explaining the cause of death of the two detainees. Dr Yama wrote:

Sir, they both presented to this hospital with similar symptoms and signs. Both complained of stomach pains associated with bloody diarrhoea, and generally unwell. They both were diagnosed with dysentery and admitted to the Medical Ward, Kimbe General Hospital.

Mr Tavure, first inmate died of passing bloody stool with mucous, bleeding in the urinary tract, bleeding from the mouth, he died of internal bleeding and massive bacteria in the blood that is bleeding everywhere.

The second inmate developed similar symptoms, that is internal bleeding. Pathology results showed heavy loads of parasites in stool and blood.

I therefore conclude that they both died of internal bleeding due to heavy parasitic infection possibly from the water supply they are drinking the water from.

I therefore recommend that the Institution to be closed until such time sanitation and water supplied are fixed.

6. The second witness was John Bosco, a prisoner at Lakiemata Jail and one of the seven applicants seeking orders from the court. Mr Bosco said all detainees at Lakiemata were very sorry about the deaths of their colleagues and extremely concerned about their own health and welfare. As prisoners they are supposed to serve their sentences and then go and start their lives again with their families. They are not supposed to die in jail. Everybody seems to understand now that the cause of the deaths is the water. The water problem is the main reason the jail was closed several years ago. The problem was never fixed, yet the jail was reopened. The detainees say this is wrong. The water problem must be fixed or the jail must be closed. If these things are not done the lives of the detainees will continue to be in danger. Not only should the water quality be improved, there should be new tanks installed and the toilets and ablution blocks must be fixed and proper messing facilities built.

7. The third witness was Paul Tokavai, environmental health officer with the WNB Provincial Health Office. Mr Tokavai said that he had recently conducted tests on the water at Lakiemata. All test results showed that the water was heavily polluted and contaminated. For example, the water at the main cell block showed these very high bacterial figures:

E Coli 500/100 ml;
Faecal coliform 600/100 ml;
Total coliform 1100/100 ml.

8. There is a treatment plant on the edge of the jail that is supposed to treat water coming into the jail from the Ru River. It is not working. The water problems with the jail have existed for many years. It was the reason the jail was closed for a year, several years ago. The water quality is supposed to be controlled by the Provincial Health Office, through their Rural Health Services branch, but they do not have the capacity and resources to perform this task. There are other major public health issues that need to be addressed in the jail, Mr Tokavai said. They are summarised in a report he prepared, dated 21 July 2006, for the National Court. This report was tendered into evidence. It states:

ABLUTION BLOCK

•	Male compound housing both medium risk and high risk remandees and convicts has only five floor pan toilets working from an ablution block. Shower facilities has only two taps working which is totally insufficient.

•	Ablution block No 2 is totally useless with no water taps operating and all the floor pan toilets filled up with gravel and being used for the inmates as a day resting place.

•	Open drain from ablution blocks presented with stagnant water, a good breeding area for mosquitoes.

WATER SUPPLY

The Water Supply to the compounds for both females and males is sufficient; however drinking water is a major problem because there is only one water tank at the male compound. Females do not seem to have any problems with drinking water.

•	Water samples will be collected today (21/07/06) for analysis both here in Kimbe and some will be sent to the Central Public Health Laboratory in Port Moresby. Analysis results should be ready in a week's time for further deliberation.

•	Plumbing system for the low risk inmates needs to be improved so that the other toilets at the end of the cell block could be used.

Dysentery outbreak investigations will confirm with water sample analysis results to ascertain probable cause after we get sample results from CPHL.

MOSQUITO NETS

Male compounds and female compound do not have fly screening therefore allowing free access for mosquitoes and other vector to move freely. Malaria incidence is frequent and the attendance in the Hospital can confirm such if needed. This Division will help in securing some mosquito nets from Rotary Against Malaria or some other sponsor so that inmates can be issued with nets whilst serving their terms.

RECOMMENDATIONS

1	Ablution block to be cleaned out thoroughly and be ready for use immediately. A plumbing contractor to be engaged to carry out this work.

2	Water Supply to be improved by the installation of an extra 2000 gallon water tank for inmates to use for drinking. Water samples from the reticulated water supply system will be collected today and analysed both locally using our Health Mobile Testing Laboratory and the Central Public Health Laboratory in POM. Results should be ready by the end of next week.

3	Dysentery and other communicable diseases to be classified and inmates suffering from such should be treated and kept in a separate cell block to be made available. There is a cell block currently unused and this should be used in such extreme cases or upon medical advice.

4	Open drains conveying excess sullage water to be covered and disposed of into a proper absorption pit to discourage mosquito breeding.

5	Beds to be supplied for use by inmates all of whom sleep on cardboards lined on the floor. Single deck beds could be easily constructed by any constructor fairly quickly.

6	Each inmate to be issued with a single mosquito net upon processing and returned upon discharged.

7	All cell blocks to be fly-screened as a matter of urgency to protect inmates from unnecessary infections.

8	Messing facilities to be improved by providing tables and sitting furniture for inmates to use during eating time and trolleys for conveying food from open kitchen to eating area.

9. The fourth witness was Chief Inspector Marcus Mandau, the Acting Commander of Lakiemata Jail. He said he has been a correctional officer at Lakiemata for the last 16 years. Water has been an ongoing problem. He has tried to convince his head office in Port Moresby that work needs to be done but his submissions are not always acted on. A contractor was engaged in 2002 to install a water pump and treatment plant but the equipment has broken down. He has sought assistance from NBPOL and the Waterboard but the Waterboard always tells him it is not their responsibility. The Correctional Service has a Facilities Management Unit, headed by an Assistant Commissioner, which is responsible for building and maintenance of jail infrastructure; and that unit should be able to do the work required, though funding is often a problem. He has also asked head office to provide new water tanks not only for the detainees but also for the officers' housing compound, as the officers are using the same water as the detainees. Chief Inspector Mandau confirmed the two recent deaths at the jail. Detainees also died in 2000 and this led to the jail being closed down and detainees being transferred to Kerevat, East New Britain.

10. The final witness was Navary T'eaku, the Manager of the Kimbe branch of PNG Waterboard. He said the Waterboard was well aware of the problems with the water at Lakiemata but has always taken the view that it was not their responsibility. They are only responsible for the water supply in the Kimbe urban area and Lakiemata does not fall within that area. He went to the jail yesterday to make an assessment. He confirmed that the water is heavily polluted. It comes from an open source and the river upstream is used by residents for all domestic purposes. The water must be treated and put through sedimentation and flocculation processes before it is fit for human consumption. It would be technically feasible to install a portable water filter and chemical dosing pumps and this would provide a solution in the short term. He agreed that if funding were made available and approval given by his head office, the Waterboard could fix the problem quickly. The Provincial Health Office does not have the capacity or resources to do the job, he said.

FINDINGS

11. The water coming into Lakiemata Jail is heavily polluted and not safe to drink or cook with. Bacterial levels are alarmingly high and represent heavy contamination of the water with faeces. The poor water quality has led to an outbreak of dysentery, many detainees have had to be treated in hospital and two have recently died. The ablution blocks are in a bad state of disrepair, messing facilities are inadequate and this has increased the risk of diarrhoeal/dysenteric illnesses, especially when food handlers are infected. The general level of health and hygiene in the jail is unacceptably low and this appears to provide an environment ripe for an endemic of diarrhoeal disease, including cholera.

ARE THE HUMAN RIGHTS OF DETAINEES AT LAKIEMATA JAIL BEING BREACHED?

12. In light of the findings I have made the answer to this question is yes. Three provisions of the Constitution, which confer rights on individuals, particularly those in custody, are particularly relevant.

13. Section 36(1) (freedom from inhuman treatment) states:

No person shall be submitted to torture (whether physical or mental), or to treatment or punishment that is cruel or otherwise inhuman, or is inconsistent with respect for the inherent dignity of the human person.

14. Section 37(1) (protection of the law) states:

Every person has the right to the full protection of the law, and the succeeding provisions of this section are intended to ensure that that right is fully available, especially to persons in custody or charged with offences.

15. Section 37(17) (protection of the law) states:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

16. These rights are intended to be real and enforceable. This is made clear by the preamble to the National Constitution, which includes these pertinent statements:

WE HEREBY ACKNOWLEDGE that, subject to any restrictions imposed by law on non-citizens, all persons in our country are entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever their race, tribe, places of origin, political opinion, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the legitimate public interest, to each of the following:—

(a)	life, liberty, security of the person and the protection of the law; and
(b)	the right to take part in political activities; and
(c)	freedom from inhuman treatment and forced labour … [Emphasis added.]

17. I conclude that, given the prevailing low level of health and hygiene at Lakiemata Jail, and particularly because of the untreated, contaminated water supply, the basic rights of detainees are being breached, in that they are:

•	being submitted to treatment inconsistent with respect for the inherent dignity of the human person contrary to Section 36(1) of the Constitution;

•	not being given the full protection of the law contrary to Section 37(1) of the Constitution;

•	not being treated with humanity and with respect for the inherent dignity of the human person contrary to Section 37(17) of the Constitution.

POWER TO MAKE ORDERS

18. The National Court has the power and duty under Section 57 of the Constitution to protect and enforce the basic rights; and that power and duty can be exercised either on its own initiative or on application by an interested party. I refer in particular to Sections 57(1), (3) and (5) (enforcement of guaranteed rights and freedoms) of the Constitution, which state:

(1)	A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority. …

(3)	A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force). …

(5)	Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement. …

19. In the present case, the seven applicants are either convicted prisoners, serving sentences, or remandees – those in custody awaiting trial or sentence. They are making the application for and on behalf of all Lakiemata detainees. They clearly have an interest in the protection and enforcement of their basic rights, as detainees, so they are acting perfectly within their rights by making this application to the National Court. They have succeeded in proving that their rights are being breached. Therefore I will make such orders as are necessary and appropriate to remedy the breach of those rights that has occurred and will continue to occur if corrective action is not taken.

WHAT HAS TO BE DONE, WHO HAS TO DO IT, AND WHEN MUST IT BE DONE?

20. The most important thing to do, as a matter of urgency, is to treat the water that comes into the jail and make it fit for human consumption. As an absolute minimum the water must be chlorinated. This problem should have been fixed a long time ago and it seems that the bodies that have failed to do their jobs are the Provincial Health Office and the Correctional Service. However, the time for observance of bureaucratic niceties is over. There is a crisis in the jail. Lives of detainees are at stake. I am going to order the organisation that I think has the technical capacity to do the job immediately to carry out the work required, ie the PNG Waterboard.

21. As for the other action required, as set out in the environmental health inspector's report, I am going to order that that work be carried out by the Correctional Service. It must be done to bring the health and hygiene of detainees to a satisfactory level but it is not as urgent as the water issue. The Correctional Service should no more think about operating a jail without proper water and ablution facilities than it would without a secure fence.

STATUS OF COURT ORDERS

22. I am making orders of the National Court directly under the Constitution. They are not mere recommendations, to be considered and submitted to some other authority for consideration and approval. Every person to whom these orders are addressed has a constitutional obligation to comply with them, within the time frame allowed. If anyone fails to comply I will summon them before the court to show cause why they should not be charged with the offence of contempt of court and dealt with accordingly. If there are unforeseeable difficulties in complying with the orders, the court must be informed well ahead of the deadlines for compliance. Applications can be made in appropriate circumstances for variation of the orders. If "funding" is a problem, the court must be notified immediately so that further orders to appropriate authorities, eg the Department of Finance, can be made. This can be done under Section 225 of the Constitution (provision of facilities etc) which states:

Without limiting the generality of any other provision of this Constitution, it is the duty of the National Government and of all other governmental bodies, and of all public office-holders and institutions, to ensure, as far as is within their respective legal powers, that all arrangements are made, staff and facilities provided and steps taken to enable and facilitate, as far as may reasonably be, the proper and convenient performance of the functions of all constitutional institutions and of the offices of all constitutional office-holders.

ORDERS

23. The National Court makes the following orders under Sections 57(1), 57(3) and 57(5) of the Constitution to enforce the rights of any person in future detained at Lakiemata correctional institution, those rights being the right to freedom from inhuman treatment under Section 36(1), the right to the full protection of the law under Section 37(1) and the right to be treated with humanity and with respect for the inherent dignity of the human person under Section 37(17) of the Constitution:

1	The Managing Director of the PNG Waterboard and the Branch Manager of the PNG Waterboard at Kimbe must repair and install proper water treatment equipment at Lakiemata Jail, West New Britain, and ensure that the water is made fit for human consumption, within 10 days after the making of this order.

2	The Managing Director of the PNG Waterboard and the Branch Manager of the PNG Waterboard at Kimbe must thereafter maintain and service the equipment or enter into arrangements with the Correctional Service, the Provincial Health Office or some other responsible authority to do so, to ensure that a reliable supply of good quality drinking water is available within the Jail.

3	The Branch Manager of the PNG Waterboard at Kimbe must appear before the National Court at Kimbe on Friday 13 October 2006 and Friday 20 October 2006 and notify the Court of the steps taken to comply with order Nos 1 and 2.

4	The Commissioner of the Correctional Service and the Jail Commander of Lakiemata Jail must by Friday 20 October 2006, notify the National Court, of a plan of action to lift the health and hygiene levels in the Jail to an acceptable level and without limiting the generality of the foregoing, such plan must include:

(a)	cleaning out both ablution blocks thoroughly;
(b)	making both ablution blocks fully operational, including all showers and toilets;
(c)	open drains conveying excess sullage water to be covered and disposed of into a proper absorption pit;
(d)	new 2,000 gallon water tank to be installed in the Jail;
(e)	beds and blankets to be supplied to all detainees;
(f)	each detainee to be supplied with a permanently treated mosquito net;
(g)	all cell blocks to be fly-screened;
(h)	messing facilities to be improved by providing tables and seats for use by detainees;
(i)	monthly health forums involving the Jail management, the Provincial Health Office, Kimbe General Hospital, the PNG Waterboard and detainee representatives.

5	The Commissioner of the Correctional Service and the Jail Commander of Lakiemata Jail must fully implement the plan of action under Order No 4 by 9 December 2006.

6	The Provincial Health Adviser shall from the date of this order monitor the water quality on a weekly basis until further order of the National Court and notify the applicants, the Jail Commander, the Waterboard, the Kimbe General Hospital and the National Court of the results; and in the event that the results are unsatisfactory must notify the Jail Commander and the detainees as a matter of urgency.

7	The WNB Provincial Health Adviser or his duly authorised delegate, must inspect all work carried out under order Nos 1 to 5 and file a report in the National Court at Kimbe, in affidavit form, by 16 December 2006.

8	The following persons shall attend the National Court at Kimbe on 18 December 2006 for the purposes of further hearing of this matter so that the Court may hear further evidence and declare whether it is satisfied that its orders have been complied with:

(a)	the Branch Manager of the PNG Waterboard at Kimbe;
(b)	the Jail Commander of Lakiemata Jail;
(c)	the WNB Provincial Health Adviser; and
(d)	the applicants.

9	In the meantime, the Jail Commander of Lakiemata Jail must ensure that any detainee showing dysentery symptoms is taken to Kimbe General Hospital immediately for examination and treatment.

Ordered accordingly.
__________________________________
Public Solicitor: Lawyer for the applicants
Public Prosecutor: Lawyer for the State