MP NO 813 0F 2006; In the matter of enforcement of basic rights under the Constitution of the Independent State of Papua New Guinea, s57 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 (2006) N5007

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 09 October 2006
• Citation: (2006) N5007
• Court: National Court
• Year: 2006
• Judgement Number: N5007

Full Title: MP NO 813 0F 2006; In the matter of enforcement of basic rights under the Constitution of the Independent State of Papua New Guinea, s57 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 (2006) N5007

National Court: Cannings J

Judgment Delivered: 9 October 2006

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...