The Rights of Inmates to Conjugal Rights: Uganda in Perspective

ABSTRACT

Conjugal rights for inmates exist when conjugal visits are made by their spouses or family to their places of confinement. They are considered a privilege for prisoners who have exhibited good behaviour during their term of incarceration. Consequently, it has been given legal backing in constitutions and enactments like Corrections Management (Private Family Visits) Policy 2009. Similarly, the Uganda Law Reform Commission (ULRC) is set to amend the Prison’s Act to, among other things, reflect the current situation and public demands, including availing conjugal rights for inmates. This article is intended to discuss whether conjugal rights are privileges or rights, examine the arguments for and against conjugal rights for inmates and explain the different aspects of conjugal rights.

1.0 INTRODUCTION
1.1 What Are Conjugal Rights?
These are rights and privileges arising from a marriage relationship
including the mutual rights of companionship, support, and sexual
Ssentongo Yakubu, Law Student at Kampala International University, Student
Research Assistant to the HoD Public and Comparative law at the School of
Law
1 The sexual rights or privileges implied by and involved in the marriage
relationship or the right of sexual intercourse between husband and wife.
Merriam Webster dictionary definition of conjugal rights
2The ACT(Australian Capital Territory) authorizes conjugal visits through the
Corrections Management (Private Family Visits) Policy 2009,Notifiable
instrument NI2009-155 made under the Corrections Management Act 2007,
section 14(1)(corrections policies and operating procedures)
3 H. Sekanjako, “Inmates will soon enjoy conjugal rights” available at
https://www.newvision.co.ug/new-vision/news/1318217/inmates-soon-enjoy
conjugal-rights (accessed 16 December2016)
169
(2018) Unilag Law Review Vol 2 No. 1
relations4. In Kiggundu v Kiggundu5 the allegations were that “the
defendant had refused for seven years to afford the plaintiff conjugal
rights”. The court found that the denial of conjugal rights for so many
years is a serious matter particularly where the defendant is unable to
give a credible and reasonable explanation for such. The court held
that, having found that the plaintiff as a credible witness particularly on
the issue of denial of conjugal rights and the utterances he attributes
to the defendant, he had proved his case on a balance of probabilities.
On such basis, the court granted a rule nisi for divorce as the marriage
had broken down irretrievably. Conjugal rights are offered to inmates
during conjugal visits. A conjugal visit is a scheduled period in which
an inmate of a prison or jail is permitted to spend several hours or
days in private with a visitor, usually their legal spouse. The parties
may engage in sexual activity.
In 1960, Mildred Carter arrived at Parchman Penitentiary in Mississippi
to visit her husband, George Carter, a forty-two-year-old convict
serving ten years for assault and battery. After driving up the long road
to the prison and being searched by guards, she greeted her husband,
and the couple walked to a small, rundown cabin in the prison yard.
The guards gave the couple privacy, so what happened in the cabin is
not known. The couple may have held hands, George may have asked
Mildred about their two daughters, they likely had sex6. It was, after
all, a conjugal visit. Parchman Penitentiary was the sole prison in the
United States that allowed conjugal rights in the 1960’s. Its history with
conjugal visits began just after its founding in 1904. In 1904, Parchman
Penitentiary was a 19th century plantation recreated with its black
convict labour force working in the prison’s cotton fields like slaves.
Conjugal visits were a paternalistic, ad-hoc reward system. If black
convicts worked hard, they got to have sexual relations on Sunday
with their wives or prostitutes organized by guards and had sex in the
rows of Parchman’s cotton fields. The guards’ actions were not prison
4Black’s Law Dictionary(8th ed. 2004) Page 912
52008 3 BLR 442 HC
6
A. Mayyasi “The Dark Origins of Conjugal Visits” available at
https://priceonomics.com/the-dark-origins-of-conjugal-visits/ (accessed 16
December 2016)
170
(2018) Unilag Law Review Vol 2 No. 1
policy, but administrators tolerated the practice for decades. This is
the first documented case of conjugal visits in America and around the
world which the guards organized, to increase productivity and
exercise control over Parchman’s black convict workforce7. This
article critically analyzes conjugal rights, whether they are rights or
privileges, the need for them, the arguments for and against them, as
well as their performance over the years.
2.0 THE LAW CONCERNING CONJUGAL VISITS FOR
INMATES
Around the world, different countries have different rules and
perspectives concerning conjugal visits8. The generally recognized
7
A. Mayyasi “The Dark Origins of Conjugal Visits” available at
https://priceonomics.com/the-dark-origins-of-conjugal-visits/ (accessed 16
December 2016)
8 In Australia, conjugal visits are permitted in the Australian Capital Territory
and Victoria “Conjugal visits support inmates’ relationships: Hargreaves” (8
June 2009) available at http://www.abc.net.au/news/2009-06-08/conjugal-visits
support-inmates-relationships/1707438 (accessed 24 December 2016); ACT
prisons
allow
conjugal
visits.
NZ Herald, available at
www.nzherald.co.nz/world/news/article.cfm?c_id=2&objectid=10577199
(accessed 24 December 2016); Other jurisdictions, including Western
Australia and Queensland do not permit conjugal visits. In Brazil, while visits
are generally freely granted to male prisoners, many states go against the idea
for female inmates. Those that do allow them for women, often insist on
extremely tight regulations. Also, in Spain, prisoners are allowed conjugal visits
every four to eight weeks. ‘Sex on sentence’, BBC News, 29 June, 2000
available at news.bbc.co.uk/2/hi/uk_news/812165.stm (accessed 16 December
2016); In Denmark, conjugal visits are permissible. The State Prison of East
Jutland has apartments for couples, where inmates who have been sentenced
to more than 8 years in prison can have visitation for 47 hours per visit.
Germany allows prisoners and their spouses or partners to apply for conjugal
visits. Those who are approved are allowed unsupervised visits so that
prisoners can preserve intimate bonds with loved ones on the outside. The
Israel Prison Service (IPS) allows standard conjugal visits to inmates who are
married or are in a common-law relationship in which their partner has been
visiting them for at least two years, and have been on good behaviour. Haaretz
“Gay Israeli Prisoners Win Right to Conjugal visits” available at
https://forward.com/news/breaking-news/179765/gay-israeli-prisoners-win
right-to-conjugal-visits/ (accessed 20 December 2016); R. Ben-Zur, “Israel
Conjugal visits for gay prisoner? Not in Israel” available at
https://www.ynetnews.com/articles/0,7340,L-4291171,00.html (accessed 18
December 2016); In Mexico, according to Olivero, conjugal visits are a
171
(2018) Unilag Law Review Vol 2 No. 1
universal practice in Mexico, independent of a prisoner’s marital status; in
some correctional facilities entire families are allowed to live in prisons with
their imprisoned relative for extended periods. J. M. Olivero (1998), “The
crisis in Mexican prisons: The impact of the United States”; N. South, P. R.
Weiss,
“Comparing
Prison
Systems”
available
gay
at
https://www.amazon.com/Comparing-Prison-Systems-International
Studies/dp/9057005115 (accessed 18 December 2016); BBC News, “Mexico
allows
conjugal
visits”
(30
July
2007)
available
at
news.bbc.co.uk/2/hi/Americas/6922140.stm (accessed 18 December 2016); In
Canada, all inmates, with the exception of those on disciplinary restrictions or
at risk for family violence, are permitted “private family visits” of up to 72
hours’ duration once every two months. “Private Family Visiting”. Correctional
Service of Canada www.csc-scc.gc.ca/family/003004-1000-eng.shtml; In the
Russian penal system, since a campaign of prison reform that began in 2001,
well-behaved prisoners are granted an eighteen-day holiday furlough from
incarceration to see loved ones. Prisoners also get extended on-site family
visits, approximately once per month. W. Giles (2 June 2006). “After the Gulag
conjugal visits computers and a hint of violence”; As for Turkey Since April
2013, the Turkish General Directorate of Prisons and Detention Houses offers
conjugal visits as a “reward” to the well-behaved prisoners. “Example ‘conjugal
visit’
rooms
introduced
in
eastern
province”
available
at
www.hurriyetdailynews.com/example-conjugal-visit-rooms-introduced-in
eastern-province-44059 (accessed 18 December 2016); In India 2015, the
Punjab and Haryana High Court held that the right of married convicts and jail
inmates to have conjugal visits or artificial insemination for pregnancy was a
fundamental right. “High court allows jail inmates to have sex with their
partners”, Times of India available at https://m.timesofindia.com/india/High
court-allows-jail-inmates-to-have-sex-with
their/partners/articleshow/45785525.cms (accessed 24 February 2018);
Zimbabwean 1998 officials considered introducing conjugal visits in an effort
to curb the spread of HIV/Aids in prisons; Sex on sentence’, BBC News, 29
June, 2000 available at news.bbc.co.uk/2/hi/uk_news/812165.stm (accessed 16
December 2016); In Belgium, inmates in open prisons are allowed a three night
home stay every three months. Conjugal visits are only permitted to high
security prisoners if their spouse is an inmate as well. In Republic of Ireland,
Marie and Noel Murray, an anarchist married couple imprisoned for a 1976
murder, lost a 1991 appeal for conjugal rights. The Supreme Court ruled that
the Constitutional right to beget children within marriage was suspended while
a spouse was lawfully imprisoned. “Constitutional right to beget children
within marriage is suspended while one spouse is lawfully imprisoned”. New
Zealand does not permit conjugal visits.
In United States, in the case of Lyons v. Gilligan (1974), the United States District
Court for the Northern District of Ohio held that the prisoners have no
constitutional right to conjugal visits with their spouses during sentences. The
United States Federal Bureau of Prisons does not allow conjugal visits for
prisoners in federal custody. For prisoners in state custody, the availability of
conjugal visits is governed by the law of the particular state. Where conjugal
visits are allowed, inmates must meet certain requirements to qualify for this
172
(2018) Unilag Law Review Vol 2 No. 1
basis for permitting such visits in modern times is giving them a legal
backing (constitutionally and using statutory instruments), with
legislators claiming that the move is intended to preserve family bonds
and increase the chances of success for a prisoner’s eventual return
to life after release from prison. Additionally, they serve as an incentive
to motivate inmates to comply with the various day-to-day rules and
regulations of the prison and to avoid any infringement which might
disqualify them from having a conjugal visit.
The laws have stipulated that the visit will usually take place in
designated rooms or a structure provided for that purpose such as a
trailer or a small cabin. Supplies such as soap, condoms, lubricant, bed
linens, and towels may be provided.
Members of Parliament of the Republic of Uganda on the Committee
of Human Rights disagreed over a proposal to grant conjugal rights to
convicts where some legislators argued that giving inmates such a
privilege would be an “exaggeration of fundamental freedoms”. The
debate on conjugal rights was reignited by Mr. Simeo Nsubuga (NRM
Kasanda South) who said it is part of convicts’ freedom9. Condemned
prisoners did not lose all their constitutional rights and freedoms
except those rights and freedoms that have inevitably been removed
privilege. In the United Kingdom neither the English, Welsh, Scottish, nor
Northern Irish prison systems allow conjugal visits. However, home visits, with
a greater emphasis on building other links with the outside world to which the
prisoner will be returned, are allowed. These home visits are usually only
granted to prisoners who have a few weeks to a few months remaining of a
long sentence. Furthermore, home visits are more likely to be granted if the
prisoner is deemed to have a low risk of absconding i.e. prisoners being held
in open prisons have a better chance of being granted home visits than
prisoners being held in closed conditions.
The Ghana Prison Service said it couldn’t guarantee conjugal visit for married
inmates citing the lack of facilities and resources. Acting Director General of
Prisons, Emmanuel Adjator said that granting conjugal visit was not going to be
possible anytime soon, he said the service needed a constitutional backing to
be able to facilitate it.
9M. Kyeyune, “MPs disagree over conjugal rights for convicts” available at
www.monitor.co.ug/News/National/MPs
disagreeconjugalrightsinmates/688334-3486242-u74nd0z/index,html (accessed
20 December 2016)
173
(2018) Unilag Law Review Vol 2 No. 1
from them, by law, either expressly or by necessary implication10.The
Commissioner General of Prisons, Dr. Johnson Byabashaija opined
that the prisons department is not yet prepared to grant inmates
conjugal rights, he said:
I
do not have a problem with conjugal visits, but prisons
department is not yet able to provide these services because we
neither have facilities nor the mechanism to offer them. We have
far pressing issues to deal with like improving the welfare of the
prisoners.11
There is no law catering for conjugal visit, as seen when the officials
from Uganda Law Society asked the Parliament to amend the Prisons
Act, 2006 to ensure that prisoners are granted conjugal rights. Patrick
Nyakana, a commissioner with Uganda Law Society argued that the
clause is not reflected in the Prisons Act, 2006 yet it is a human right12.
Bulamogi County MP, Kenneth Lubogo also disagreed with fellow law
makers accusing them of exaggerating the pursuit for human rights.
“Not all rights are absolute, if we grant conjugal rights to inmates it
may not serve the purpose of the sentence,” he said13.
3.0 CONJUGAL VISITS AS A RIGHT
A right is something that is due to a person by just claim, legal
guarantee, or moral principle (the right of liberty), a power, privilege
or immunity secured to a person by law (right to dispose of one’s
10 Susan Kigula & 416 Others v Attorney General (Constitutional Petition No. 6 of
2003) [2005] UGCC 8 (10 June 2005)
11 P. Mudoola, “No conjugal rights for inmates-Byabashaija” available at
https://www.newvision.co.ug/new_vision/news/1318755/conjugal-rights
inmates-byabashaija (accessed 27 March 2017)
12 P. Mudoola, “No conjugal rights for inmates-Byabashaija” available at
https://www.newvision.co.ug/new_vision/news/1318755/conjugal-rights
inmates-byabashaija (accessed 27 March 2017)
13 M. Kyeyune, “MPs disagree over conjugal rights for convicts” available at
www.monitor.co.ug/News/National/MPs-disagree-conjugal-rights
inmates/688334-3486242-u74nd0z/index,html (accessed
20th December
174
2016)
(2018) Unilag Law Review Vol 2 No. 1
estate)14 As seen, for anything to be regarded as a right, it must have
legal or constitutional backing for everyone. The debate of conjugal
rights in Uganda has not taken serious shape, but looking at similar
common law jurisdictions, the Punjab and Haryana High Court, in the
case of Jasvir Singh and another v State of Punjab and Others15 gave a very
novel judgment recognizing conjugal rights of the prisoners within the
jail premises, considering it as part and parcel of right to life under
article 2116. Here, the petitioners were husband and wife being tried
for an offence under section 302/364-A/201/120-B IPC for kidnapping
and brutally murdering a sixteen year old minor for ransom. The trial
court awarded them death sentence which was confirmed by the High
Court of Punjab and Haryana. The Honourable Supreme Court
commuted the death sentence awarded to wife into life imprisonment.
The petitioners thereafter sought enforcement of their perceived right
to have conjugal life and procreate within jail premises. They sought a
command to the jail authorities to allow them to stay together and
resume their conjugal life for the sake of progeny and make all
arrangements needed in this regard. Amicus curiae were appointed by
the court keeping in view the vital issues of public importance17.
Various observations made by them include, but not limited to the
petitioners’ fundamental focus, was on Article 21 of the constitution18.
They insisted that the right to life has two essential ingredients,
14 Black’s Law Dictionary 8th edition Pg. 4120
15 CWP No.5429 of 2010(O & M): Decided on, 29 May 2014
16 The Constitution of India [India], 266 January 1950, art. 21
17
I.
Sehgal “Friend of the court – Amicus Curiae” available at
www.legalserviceindia.com/article/1282-Amicus-Curiae.html (accessed 24
February 2018) “The role of an Amicus is as stated Salmon LJ (as Lord Salmon
then was) in Allen v Sir. Alfred Mc Alpine & sons Ltd (1968)2 QB 229 at p.266
F-G ‘I had always understood that the role of an amicus curiae was to help the
court by expounding the law impartially or if one of the parties were
unrepresented, by advancing the legal argument on his behalf’. In India, the
courts have time and again welcomed the idea of permitting amicus curiae to
associate themselves with proceedings generally involving public interest. By
doing so the court is guided not only by the academic perspective required for
the particular case, but also enables the court to have an understanding which
would allow them to do justice in its entirety”.
175
18 Supra
(2018) Unilag Law Review Vol 2 No. 1
namely, (i) preservation of cell; and (ii) propagation of species, of which
sex life is a vital part19. The decision in State of Andhra Pradesh v
Chalaram Krishna Reddy20 was relied upon to urge that a prisoner,
whether convict, under trial or a detinue, continues to enjoy the
Fundamental Rights including right to life which is one of the basic
Human rights. The petitioners also referred to well-regulated concept
of conjugal visitations successfully implemented in the advanced
countries like the USA, Canada, Australia, UK, Brazil, Denmark and
Russia etc. The State of Punjab opposed the petitioners’ prayer
essentially on the plea that the Prisons Act, 1894 contains no provision
to permit conjugal visitation; its Section 27 rather mandates proper
segregation of male and female prisoners. Paragraph 498 of the Punjab
Jail Manual lays down the method for separation of male and female
prisoners. Even artificial insemination as a viable and alternative
solution suggested by the petitioners, was not acceptable to the State
of Punjab as according to its affidavit.
There is no such provision in the Prisons Act, 1894 and Punjab
jail Manual to allow the husband and wife convicts to be in the
same cell in the jail or to allow for artificial insemination of the
convicts…
The father of the minor victim, who was murdered for ransom by the
petitioners, also joined these proceedings to oppose the petitioners’
prayer.
The following, amongst other issues emerged for determination
I.
Whether the right to procreation survives incarceration, and
if
so, whether such a right is traceable within our
constitutional framework?
II.
Whether pen logical interest of the State permits or ought to
permit creation of facilities for the exercise of right to
procreation during incarceration?
19 Sunaina, “Judicial Introspection of Conjugal Rights vis-à-vis Human Rights of
the Prisoner” International Journal of International Law: ISSN: 2394-2622
(Volume 1 issue 2)
176
20 (2000) 5 SCC 712
III.
(2018) Unilag Law Review Vol 2 No. 1
Whether ‘right to life’ and ‘personal liberty’ guaranteed under
article 21of the constitution include the right of convicts or
jail inmates to have conjugal visits or artificial insemination (in
alternate)?
IV.
If question number (iii) is answered in the affirmative, whether
all categories of convicts are entitled to such right(s)?(either
the convicts or the under-trials)
3.1.1 Judgment
The writ petition was disposed of with the following directions:
The Jail Reforms Committee shall formulate a scheme for creation of
an environment for conjugal and family visits for jail inmates and shall
identify the categories of inmates entitled to such visits, keeping in
mind the beneficial nature and reformatory goals of such facilities;
The Jail Reforms Committee shall also recommend the desired
amendments in the rules/policies to ensure the grant of parole,
furlough for conjugal visits and the eligibility conditions for the grant
of such relief;
The Jail Reforms Committee shall also classify the convicts who shall
not be entitled to conjugal visits and determine whether the husband
and wife who both stand convicted should, as a matter of policy be
included in such a list, keeping in view the risk and danger of law and
security, adverse social impact and multiple disadvantages to their
child;
3.1.2 The impact of the judgment was;
The court observed that the learned amicus curiae canvassed that the
right to life includes right to ‘create life’ and ‘procreate’ and this
fundamental right does not get suspended when a person is sentenced
and awarded punishment, thereby limiting him to stay in jail. In
Lawrence v. Texas21, the court noted that “after Griswold, it was
established that the right to make certain decisions regarding sexual
conduct extends beyond the marital relationship.” Also Planned
177
21 539 U.S. 558, 565 (2003)
(2018) Unilag Law Review Vol 2 No. 1
Parenthood v Casey22 recognized the right to “bear or beget a child” as
fundamental. In Skinner v. Oklahoma23 the court held that the right to
procreate is a fundamental right guaranteed by the Constitution. A
person does not lose his human rights merely because he has
committed an offence as he also has some dignity which must be
protected24
4.0 CONJUGAL VISITS AS A PRIVILEGE
This is a special legal right, exemption, or immunity granted to a
person or class of persons; an exemption to a duty. A privilege grants
someone the legal freedom to do or not to do a given act. It immunizes
conduct that, under ordinary circumstances would subject the actor
to liability25. For various reasons, conjugal visits were granted as a
privilege as earlier stated for prisoners who have exhibited good
behaviour during their term of incarceration. Recently, it was a point
of contention between members of Parliament on the Committee of
Human Rights with some legislators, that giving inmates such a
privilege would be an exaggeration of fundamental freedoms26. Some
have the money to bribe prison wardens to have the conjugal visits,
such as in South Africa where a former Pollsomoor inmate told the
jail commission that “as an awaiting-trial prisoner, rules allowed him
only non-contact visits” however, warder Xolile Madikane a section
head at Pollsmoor, had told him he could arrange contact visit(conjugal
visit) and the next time his fiancée, Shahieda Alexander, came to visit,
with one of his children, Madikane put them in an isolation cell,
22 505 U.S. 833, 851 (1992).
23 316 U.S. 535, 542-543 (1942).
24 Supra note 17.
25 Black’s Law Dictionary 8th edition Pg.3790
26 M. Kyeyune, “MPs disagree over conjugal rights for convicts” available at
www.monitor.co.ug/News/National/MPs-disagree-conjugal-rights
inmates/688334-3486242-u74nd0z/index,html (accessed 20 December 2016)
178
(2018) Unilag Law Review Vol 2 No. 1
although Madikane raised the amount from R100 to R250 in the
second period27.