The High Court has ruled that all sentenced prisoners and pre-trial detainees held in custody should be permitted to attend funerals of their close family members unless there are compelling reasons.
In a ruling on Friday, February 23, 2024, High Court judge L.N Mugambi said that denying prisoners a chance to attend such burials curtails their rights.
“A declaration be and is hereby issued that all sentenced prisoners and pretrial detainees held in custody have the right to be treated humanely which right includes permitting them to attend funerals and burials of their close family members or for any other exceptional deserving reason unless there are compelling reasons for declining granting of permission,” Justice Mugambi ruled.
“A declaration be and hereby issued that the 1st Respondent’s omission to make rules providing for mechanisms and structures for temporary releases for Persons detained or imprisoned under Section 30 (2) (h) of the Persons Deprived of Liberty Act curtails the rights of Imprisoned and Detained Persons to be treated humanely and to have their dignity respected and protected thus violates Articles 28 and 51 of the Constitution.”
The court directed the Ministry of Interior and Co-ordination of National Government to make regulations to enable implementation of the directive within six months.
“An Order of mandatory injunction be and is hereby issued directing the 1st Respondent to make the rules under Section 30 (2) (h) of the Persons Deprived of Liberty Act within six (6) months from the date of this order,” the judge added.
Mother’s funeral
The case was filed by Moses Dola Otieno, who informed the court that he was not allowed to attend his mother’s funeral by the Prisons Department in 2021.
The Petitioner contended that this was inhumane and in breach of his right to dignity not only to himself but also to other pre-trial detainees and prisoners in similar circumstances who continue to suffer similar treatment.
The Petitioner stated that the rules of the prison system in Kenya do not provide for how pre-trial detainees and prisoners may be allowed to attend the funeral or burial of their loved ones.
He contended that the absence of legal provisions to allow for such attendances amounts to discriminatory application of the law which contravenes Articles 27, 28 and 51(1) of the Constitution.
The government, in response, said that no such right is expressly guaranteed by the Constitution.
“While the Constitution enshrines certain fundamental rights and freedoms, it is essential to note that these rights are not absolute and can be subject to reasonable limitations. The absence of explicit constitutional protection for the claimed right weighs against the petitioner’s case,” the Interior Ministry said in a response.
The petitioner did not file written submissions. However, he was briefly given an opportunity by the Court to submit orally.
