Africa / The right to food as a derivative of the right to life: The case of George Peter Mwanza and another vs. The Attorney General
By Katindo Mwale
The Supreme Court of Zambia on 9th December 2019 delivered a landmark judgment in the case of George Peter Mwanza and Another v the Attorney General with respect to the advancement of human rights and in particular the advancement of economic, social and cultural rights, which are not specifically recognised in the Zambian Bill of Rights.
The brief facts of the case are that the two Appellants were incarcerated at Lusaka Central Prison and were both HIV positive and on Anti-Retroviral Therapy (ART). The two Appellants launched a Petition in the High Court alleging that the meals that were being served at Lusaka Central Prison lacked a balanced diet in that it the meals being served lacked nutritional value both in terms of quality and quantity and as such constituted a violation of the Appellants right to life contrary to Article 12 of the Constitution of Zambia. The Appellants further contended that they were being kept in filthy, congested prison conditions which were meant to accommodate only fifteen prisoners but were now accommodating over seventy-five prisoners with the result that the Appellants could not sleep or slept in a standing position with no ventilation or flushing toilets. The Appellants argued that these conditions were fertile ground for the transmission of communicable disease such as pulmonary tuberculosis among other infectious diseases. The Appellants argued in the High Court for Zambia that these conditions constituted a violation of their right to life and a violation of their right to protection from inhuman and degrading treatment contrary to Article 13 of the Constitution of Zambia. The Appellants further argued the lack of bed space rendered it difficult for them to recover owing to the fact that the ART that the Appellants were taking was strong and made the Appellants weak thereby rendering the Appellants chances of recovering from the effects of the ART unlikely and threatening their right to life as well as constituting inhuman and degrading treatment.
The High Court delivered its judgment, declining to grant the Appellants the reliefs sought and dismissed the petition in its entirety. Desolate with the decision of the High Court, the Appellants launched an appeal in the Supreme Court raising three grounds of appeal. The first ground of appeal was predicated on the grounds that the failure by the state to provide a balanced diet infringed on the Appellants’ right to life contrary to Article 12 of the Constitution of Zambia. The second ground of appeal was predicated on grounds that the overcrowding of the prisons coupled with the failure to provide sanitary ablution facilities constituted inhuman and degrading treatment contrary to Article 15 of the Constitution of Zambia whilst the third ground of appeal advanced was that the state had a duty at common law as well as statutory law to provide for a special diet for prisoners living with HIV and Aids.
The Supreme Court in its landmark judgment interrogated the justiciability of economic, social and cultural rights within the Zambian context. The Supreme Court recognised that civil and political rights are separate and distinct from economic, social and cultural rights in that the civil and political rights had been widely construed by many jurisdictions as immediate rights which are enforceable whereas economic social and cultural rights have been interpreted as rights which are to be progressively realised. The conundrum therefore to be resolved by the Supreme Court was whether a justiciable right such as the right to life can be enforced through a non-justiciable right such as the right to adequate food.
In answering this question in the affirmative, the Supreme Court recognised that the right to food is a universal right recognised and enshrined in numerous international instruments such as Article 25 of the Universal Declaration of Human Rights and Article 11 of the International Covenant on Economic, Social and Cultural Rights. The Supreme Court took cognizance of the growing trend by other jurisdictions to recognise and enforce Economic, Social and Cultural Rights either directly or indirectly through Civil and Political Rights as well as the position endorsed by General Comment No 9 by the committee on Economic Social and Cultural Rights on justiciability of Economic Social and Cultural Rights. The Supreme Court therefore adopted a liberal interpretation of the right to life by drawing an interlinkage with the right to food and the right to health. Therefore, the Supreme Court recognised the right to food indirectly through the interconnected right to life.
Most importantly, the Supreme Court went on to recognise the right to life as that of the right to a dignified life. In this regard, the right to human dignity entails the recognition of the right to nutritious food adequate to sustain a dignified human life. The Supreme Court recognised the special category the Appellants were in as prisoner living with HIV and as such the right to life was given a broader construction to take into consideration the peculiar health needs of the Appellants. Thus the Supreme Court found in favour of the Appellants as regards the violation of the Appellants’ right to life by indirectly recognising the Appellants need for balanced diet necessary for their survival.
As regards the second ground of appeal, the Supreme Court perused through the literature on the right to protection from inhuman and degrading treatment recognised and enshrined in various international instruments. The Supreme Court recognised that inhuman and degrading treatment consist of deliberately causing severe mental or physical suffering inflicted on a person. In this regard, the Supreme Court found without hesitation that the conditions under which the Appellants were kept, namely in overcrowded cells with poor ventilation and lack of flushing toilets constituted inhuman and degrading treatment and a violation of the Appellants’ rights under Article 15 of the Constitution of Zambia.
Under ground three, the Supreme Court concluded that the state has an obligation to provide for the special dietary needs of the Appellants both under common law and statutory law.
In conclusion, the Supreme Court ordered that all prisoners with preferential dietary needs be given special diets in accordance with their needs in furtherance of their right to life. Further the Supreme Court directed that the state immediately take measures to decongest the prisons at the Lusaka Central Correctional Facility and to render a report to the sessional judge on the opening day of every criminal session on the measures being taken by the state to decongest the facility so as to make it more humane. The Supreme Court further ordered the allocation of resources to the Lusaka Correctional facility to improve the dietary needs of the prisoners with special attention being given to prisoners with HIV. It is hoped that this case will go a long way in ensuring that prisoners are kept in humane conditions.