PATEL JA: This is an application under s 24(1) of the former Constitution for declaratory and consequential relief pursuant to the Declaration of Rights enshrined in that Constitution. The applicant in this matter is HIV positive. He started his anti-retroviral treatment in 2003. On 19 of February 2011, he was arrested at a meeting held to commemorate an AIDS activist. On the day of his arrest he was detained at Harare Central Police Station and then taken to Harare Remand Prison on 23 February 2011.
The applicant avers that he was subjected to various forms of ill-treatment during his detention at both prisons and that his fundamental rights were consequently violated by the respondents. In particular, he complains that at Harare Central Police Station he was not allowed to use his cell-phone and was thereby denied access to his anti-retroviral medication. Furthermore, he was required to remain barefoot and with only one layer of clothing. In addition, the toilet facilities in the holding cells were unhygienic and deplorable. At Harare Remand Prison, he was denied access to his prescribed medication regime. Moreover, together with other inmates, he was stripped and made to jump up and down, and placed in solitary confinement for four days when he complained.
Having regard to this ill-treatment, the applicant seeks a declaratur to the effect that the respondents contravened ss 15(1) and 20(1) of the Constitution relative to the protection against inhuman or degrading treatment and his freedom of expression, and that the conditions in the holding cells at Harare Central Police Station and the practice at Harare Remand Prison of requiring inmates to strip naked be declared inhuman and degrading. He also seeks an order requiring the respondents to ensure that inmates be allowed full access to their respective anti-retroviral regimes, that no inmate be required to walk barefoot or be left with inadequate clothing, and that the toilet facilities in the holding cells at Harare Central Police Station be rehabilitated.
The respondents deny most of the applicant’s assertions. As regards Harare Central Police Station, they aver that the governing Police Manual prescribes that every inmate be required to surrender all his possessions, other than clothing for personal use, so as to avoid his harming himself. Again, cell-phones and other valuable articles are ordinarily taken for safe custody. The applicant did not request his cell-phone and did not tell the police officers concerned about his HIV status and anti-retroviral regime. All inmates in holding cells are given three blankets each and the toilets are cleaned and inspected every day. However, the toilet flushing mechanisms are placed outside the cells and therefore cannot be used by the inmates themselves. The respondents also concede that the conditions in the holding cells are not entirely acceptable. However, their rehabilitation is not immediately practicable.
With respect to Harare Remand Prison, the respondents aver that they employ qualified doctors to administer appropriate medication and that inmates may only bring their own medication if it is unavailable in the prisons stock. Moreover, the applicant did not lodge any complaint about his medication either upon admission or on discharge. As regards strip searches, these are procedurally done and strict decency is observed. Finally, the respondents aver that the practice of solitary confinement has been abolished and that the applicant was never subjected to this practice.
At the hearing of the matter, Adv. Chadambuka submitted that the respondent’s assertions and denials are based on what should be in place as a matter of practice. In effect, they have failed to ascertain and rebut what actually happened to the applicant in relation to his medication and conditions of incarceration. He further submits that these bare denials do not raise any material disputes of fact that are not resoluble on the papers. The court should therefore take a robust view of the facts in order to do justice as between the parties. Mr. Dodo concedes that there are certain facts, for instance, the conditions in the cells at Harare Central Police Station, which are common cause. However, apart from this, there are substantial disputes of fact that were foreseeable before this application was instituted. Consequently, he submits that the matter should be dismissed or struck off to be instituted afresh.