By Gwendoline Mugauri
JUST a month after tying the knot in the late 1980s, Israel Mthupha got embroiled in a fraud case at his work place, which saw him end up with a 15-year jail term.
After two years of serving the sentence, Mthupha grew physically and emotionally apart with his wife Helen.He was, however, lucky to be considered for the Presidential Amnesty in 2003, resulting in his release.
On coming out of jail, Mthupha discovered that he had lost “everything”. He no longer had a job, a home and, above all, a wife.
Helen had decided that she could not wait for the release of her husband and be “sexually deprived” for the 15 years he was supposed to serve the sentence.
She married another man from a nearby village.
The case of Mthupha and many other ex-prisoners has ignited debate on whether or not married prisoners should be allowed to enjoy conjugal rights with their partners.
Is the denial of conjugal rights for incarcerated persons the major cause of their families’ disintegration?
Does a person lose the right to sexuality once convicted? How do the prisoners manage after being suddenly removed from their sexual partners?
These questions have seen some quarters now advocating for prisoners, who can prove that they were married before being sentenced, to be allowed to enjoy conjugal rights.
But some say that a person loses all rights once convicted and allowing them to enjoy conjugal rights means that the punishment would not be deterrent enough.
The national director of Prison Fellowship Zimbabwe Centre (PFZC), Mr Peter Mandiyanike, said there was a need for prisons to offer a “conjugal visit policy”.
He said being incarcerated did not mean a person became a lesser human.
“Prisoners are human beings just like anyone else and if the Government could possibly consider the conjugal rights policy for them, it would be a good move,” said Mr Mandiyanike.
“The denial of the right to have sex when a person is legally married and had gotten used to the act is quite unfair.”
Mr Mandiyanike said it would be easy for a prisoner who used to enjoy conjugal rights to be easily rehabilitated.
“It is very difficult to rehabilitate a person after spending more than five years in prison,” he said.
“People have to know that rehabilitation after imprisonment is directly dependent on the period one spends in prison.”
He said denying sexual rights to prisoners encouraged same sexual relationships in prisons.
“Imagine being away from your husband or wife for 20 years,” he said. “Inevitably, the person you see everyday becomes your sexual partner.
“I back the implementation of the conjugal rights policy heavily to uphold family ties.”
But Mr Mandiyanike said such a policy could have a disadvantage in the event that female prisoners became pregnant.
“It would be very weird and would strain prison facilities,” he said. “There will have to be clear-cut conditions if the policy is implemented.”
Do the advantages of introducing such a policy outweigh the disadvantages?
The public relations officer for Zimbabwe Prison Service (ZPS), Ms Priscilla Mthembo, said they would not introduce such a policy.
She said convicted persons lose conjugal rights, among many other rights, upon incarceration.
“Inmates do not have conjugal rights,” said Ms Mthembo.
“As you are aware, ZPS operates under the laws and statutes of this land and the Prison Act that guides the operations of the service is prescribed by the Legislature.
“Conjugal rights are some of the rights that an incarcerated person loses upon admission.”
Ms Mthembo said that they had never received any complaints from the inmates themselves regarding the issue.
Hence “ZPS is not mandated to implement such a policy” and does not have resources for facilities in the event of a consideration of the idea.
With the new Constitution being crafted, is Zimbabwe going to see the right of prisoners to enjoy conjugal rights being considered?
The Constitution Select Committee (COPAC) says the issue is unlikely to be included.
COPAC co-chairperson Mr Paul Mangwana said they had not received any contributions concerning the specific issue on conjugal rights for prisoners.
“The Thematic Committee on Human Rights on the state of prisons and prisoners only has information against the inhuman treatment and degrading of prisoners,” he said.
“Considerations pertaining the inclusion of the conjugal rights policy in the Constitution can be done only if we receive a justified proposal on the matter. Only after that can it be dealt with under the subsidiary legislation.
“But I am not sure if it is really practical to have that policy in Zimbabwe.”
Whether practical or not, there is no denying that sex is one of the important needs of an adult human being.
In fact, Maslow’s Hierarchy of Needs places sex squarely among water, shelter, air and clothing as a basic need.
Maslow was a United States psychologist who postulated a theory on the basic needs for humans in 1943.
Medical analysts say that if the right to sex is denied, a person’s reasoning capacity loses grip and they lose concentration, becoming aggressive.
In Uganda, a request for conjugal visits was rejected by the government in 2008 when female inmates from Luzira Main Prison demanded to have sex with their husbands within prison walls.
The Commissioner-General of Prisons in Uganda, Mr Johnson Byabasaijja, rejected the plea, saying the privileges could not be granted as there were far more pressing issues to deal with.
But a local legal practitioner, Mr Clemence Asani, said every married person had the right to have sex with their spouse, no matter the circumstances.
“The people have not yet pushed for it,” he said. “But a married prisoner has the right to enjoy conjugal rights.
“Prisoners do not shed their basic human rights upon incarceration, although the extent of the exercise is circumscribed because of imprisonment.
“Judicial decisions have accorded prisoners the right to read books and newspapers, to have interviews with their lawyers, to correspond with and meet family members. But the conjugal rights issue for prisoners is quite a burning one and is soiled in controversy.”
Those who argue for the conjugal visits say the policy would help fight the HIV and Aids scourge, preserve family bonds and improve the chances of success upon the prisoner’s eventual release.
An ex-convict, who spoke on condition of anonymity, said it is the family that suffers when conjugal rights are denied.
“I think punishing the individual is good, but when a family suffers, it would not be fair,” said the ex-convict.
“I was convicted for only two years, but I can tell you that my family and I went through hell. My wife was like a stranger to me when I was released.
“The grace of God helped me to recover and shake off the ‘frostiness’, but it was tough.”
An anthropologist and head of the Department of Sociology at the University of Zimbabwe, Dr Watch Ruparanganda, said prisoners should access the basic human right to sex as alienation from one’s family was punishment enough.
He said long back, criminals were made to pay for deviation through other means that did not deny them conjugal rights.
“From a socio-historic approach, there were no jails in our justice system,” said Dr Ruparanganda.
“Those who deviated from the laws were made to pay depending on the gravity of the crime.
“The justice system was so user-friendly that it neither alienated people nor did it deny them conjugal rights.
“It rehabilitated offenders by making them remorseful of their wrong-doings. But the modern justice system has serious psycho-social effects on a person.”
Dr Ruparanganda said depriving a person conjugal rights to a person who had been enjoying them further psychologically hardens the individual.
“They become violent, kinky and crude social outcasts whose exposal to homosexuality and lesbianism would have damaged them. When released back into mainstream society, they may fail to adjust,” he said.
But Dr Ruparanganda said implementing the conjugal rights policy was logistically impossible as the country may fail to establish the infrastructural and logistical expansion attracted by the legislation.
Experts on prison issues say allowing conjugal visits could produce mixed results.
Some believe that the costs for such a policy outweigh the benefits while others say the practice could help maintain family ties and reduce cases of habitual relapse into crime.
While it may take long for Zimbabwe to embrace the policy, fellow African countries like Kenya, Ghana and Rwanda already have the policy.
Israel is also practising such a policy.
Other countries like Mexico, the United States, Canada and Brazil implemented the policy long back.
While the parties may engage in sexual intercourse, the generally recognised basis for permitting such a visit in modern times is to preserve family bonds and increase the chances of success for a prisoner’s eventual return to life outside prison. -The Sunday Mail