TERM PAPER ON PRISONERS RIGHTS AND CLINICAL PROGRAM

TITTLE: CRITICAL ANALYSIS THE RIGHTS OF PRISONERS UNDER NATIONAL

AND INTERNATIONAL INSTRUMENTS GENERALLY, AND THE RIGHT TO
CONJUGAL VISIT IN ETHIOPIA: SHOULD MARRIED INMATE BE ALLOWED TO
HAVE OVERNIGHT VISIT WITH THEIR SPOUSES TO MAINTAIN A FAMILY LIFE
AND TO AVOID VIOLATION?
Submitted To: Mr. Elias T. Submission Date: Nov 28, 2024 A.Y

No Name of Students’ ID No
1 Abdisa Fikadu WU1304559
2 Gadisa Waktola WU1304836
3 Dereje Sagni WU1304698
4 Elsahi Kare WU1304802
5 Gada Nagasa WU1304703
6 Hinsermu Mohammednur WU1304760
7 Habtamu Kassahun WU1304745
8 Lencho Zewdie WU1501888
9 Firaol Girsha WU1304825

i
 TABLE CONTENTS

Table of Contents
TITTLE: CRITICAL ANALYSIS THE RIGHTS OF PRISONERS UNDER NATIONAL AND
INTERNATIONAL INSTRUMENTS GENERALLY, AND THE RIGHT TO CONJUGAL VISIT IN
ETHIOPIA: SHOULD MARRIED INMATE BE ALLOWED TO HAVE OVERNIGHT VISIT WITH
THEIR SPOUSES TO MAINTAIN A FAMILY LIFE AND TO AVOID VIOLATION? .......................... i
1. INTRODUCTION ................................................................................................................................ 1
2. RIGHTS OF PRISONERS UNDER INTERNATIONAL, REGIONAL AND NATIONAL LEGAL
INSTRUMENTS........................................................................................................................................... 2
2.1. RIGHTS OF PRISONERS OF UNDER INTERNATIONAL INSTRUMENTS ........................ 2
A. The Right to Adequate Food and Water ....................................................................................... 4
B. The right to free from torture, cruel and inhumanity treatments ................................................... 4
C. The Right to Clothing and Bedding the Prisoners ........................................................................ 5
D. The Right to Adequate Health Care Service ................................................................................. 5
E. Adequate Living Standards ........................................................................................................... 6
2.2. RIGHTS OF PRISONERS UNDER REGIONAL INSTRUMENTS............................................... 6
2.2.1. The rights of prisoner under African human rights ................................................................... 6
2.2.2. The rights of prisoner under American Human rights .............................................................. 7
2.2.3. The European human rights laws on prisoners’ rights .............................................................. 7
3. RIGHTS OF PRISONERS AT NATIONAL LEVEL .......................................................................... 8
3.1. The Rights prisoners of remand or trial in Ethiopian laws ........................................................... 9
3.2. The rights of Convicted prisoners under Ethiopian laws .............................................................. 9
4. RIGHTS OF CONJUGAL VISIT OF PRISONERS IN ETHIOPIA .................................................. 10
4.1. LEGAL DISCOURSES ON THE RIGHTS OF CONJUGAL VISIT OF PRISONERS ........... 11
4.1.1. Argument against conjugal visits of prisoner right ............................................................. 11
4.1.2. Argument for conjugal visits of prisoners right .................................................................. 11
4.2. SHOULD MARRIED INMATE BE ALLOWED TO HAVE OVERNIGHT VISIT WITH THEIR
SPOUSES TO MAINTAIN A FAMILY LIFE AND TO AVOID VIOLATION? .................................... 12
5. CONCLUSION ................................................................................................................................... 13
6. REFERENCE/BIBLIOGRAPHY ....................................................................................................... 14

ii
 1. INTRODUCTION
Any person has the inviolable and inalienable rights which are the guaranteed for human being
under international as well as in the national level. That means international, regional and
national human rights statutes have entitled the essential and critical human rights. The right to
liberty, the rights to family life, enjoyments of life without interference, are the few exemplary
rights. However, not all human rights are absolute and free from the limitation for varies
justifications. Thus, most of them are relatively deprived in case certain circumstances. Those
rights are may be suspended for various reasons. For those cases, some peoples may be subject to
the suspension these human rights guaranteed as their entitlements. Prisoners are one of the
persons who are obliged to relieved from the absolute human rights which they got from varies
international, regional and national laws.

However, Every inmate shall retain the fundamental freedoms and human rights outlined in the
Universal Declaration of Human Rights (UDHR), the International Covenant on Economic,
Social, and Cultural Rights(ICESCR), the International Covenant on Civil and Political
Rights(ICCPR), and the Optional Protocol of ICCPR thereto, where the State in question is a
party, as well as any other rights outlined in other United Nations covenants, with the exception
of those restrictions that are clearly required by the fact that they are incarcerated.1 But
suspensions of those rights because of criminal sentence and civil litigation exceptional 2, do not
give the discretionary to legal actors for restricting other rights.3

These rights are incorporated in the Regional human rights instruments dispersal or crop-dusting.
These regional human rights are; African human rights, Inter-American human rights and
European human rights. These chains of prisoner’s right protection have also extended to the
national level, Ethiopia for instance FDRE constitution and other legislatures. Therefore, partial
or more the prisoners retain the rights which have been given international, regional and national
laws with some absolute suspension of certain or some rights as the exceptional way. For
example; right to increased autonomy, the right to better family life and relationships, and so on.

1
Basic Principles for the Treatment of Prisoners; Adopted and proclaimed by General Assembly resolution 45/111
of 14 December 1990, Art. 5
2
The Ethiopian Civil Procedure Code Decree No. 52 of 1965, Arts.120-121,150,389-390,451,481.
3
Standard Minimum Rules for the Treatment of Prisoners; Adopted by the First United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, May 1977.

1
 2. RIGHTS OF PRISONERS UNDER INTERNATIONAL, REGIONAL AND
NATIONAL LEGAL INSTRUMENTS
International, regional as well as the domestic legal system are incorporated in their clauses or
provision about the minimal human rights and specifically, rights of prisoners. That mean
deprivation of certain rights do not leads to the arbitrary restriction of other rights.

2.1. RIGHTS OF PRISONERS OF UNDER INTERNATIONAL INSTRUMENTS

Commencing with the League of Nations' founding and the subsequent human rights reform has
become increased dynamically. Then after there are many international have been adopted
concerning the rights of human beings. However, most of international legal instruments failed
to specify clearly the rights of prisoners who exist in the jail. But, this does not mean the
prisoners are excluded from the protection of the international human rights legal instruments. In
broad terms, human rights stem from the intrinsic worth of every individual. With the exception
of those rights that are restricted due to their criminal status, everyone who is deprived of their
liberty must always be treated with humanity and respect for their inherent dignity. This implies
that no one shall endure brutal treatment or torture cruel or subjected to punishment that is
against these international human rights norms.4 This is due to the fact that everyone, even
convicts, is entitled to the protection of human dignity.

However, many of international human rights document which are Bill of Rights are failed to
incorporate the issue which relates to the prisoner whether their specific rights at jail time or
obligations of prison administrations in nations. For instance, (UDHR), (ICCPR), (ICESCR).
Those instruments are generalized the inherent human rights for all human being rather than
include other exceptional rights for prisoners. However, these laws emphasize that prisoners
have fundamental rights; including human treatment, adequate living conditions, religious
freedom, access to healthcare. Prisoners are therefore human beings with the intrinsic right to
human dignity, with the exception of rights that are restricted by the law. 5 There are well-
established legal concepts for this purpose, such as the fact that inmates retain their rights when

4
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment-1987 (hereinafter
called CAT) Art.2 (2)
5
ICCPR-1966, Art.4

2
incarcerated but are protected by the limitations that come with being housed in a correctional
facility.6

Therefore, prisoners have the right to keep all of their personal rights, with the exception of those
that are restricted by law. The scope and content of prisoners' rights must be decided by referring
to both the applicable laws and their inalienable human rights.7 This implies that some of the
fundamental rights of those incarcerated, awaiting trial, and condemned convicts are either lost
or have their rights restricted. These rights include the freedom of association, the freedom of
movement and residence, and the freedom of trade and occupation. According to several
international Minimum Standard Rules, Principles, and legislation pertaining to prisoners and
prison policy, they nevertheless have human rights.

Furthermore, everyone is protected by international human rights agreements from egregious

violations of their health and personal integrity, including prisoners. Because those in jail are
especially vulnerable, there are additional international norms that protect their right to health
care.8 According to this instrument prisoners’ rights are jot down as the benchmark for the
protection the other rights i.e. the states are prohibited from degrading below these rights of
prisoners. Considering the wide range of legal, social, economic, and geographic circumstances
that exist around the world, it is clear that not all regulations can be applied everywhere and at all
times. However, given that they collectively constitute the minimal requirements deemed
appropriate by the UN, they ought to encourage a continuous effort to overcome practical
obstacles in the way of their implementation.

Thereby, the purpose is to outline what is commonly regarded as excellent principles and
practices in the management of institutions and the treatment of inmates.9 Since everybody's
physical and mental well-being is regarded as a human right, all inmates and detainees are
entitled to the best possible quality of physical and mental health. Therefore, inmates ought to
have unrestricted access to the nation's healthcare system. In this regard, the prison

6
Basic Principles for the Treatment of Prisoners, Supra note1, para.1
7
Human Rights and Prisons: A Compilation of International Human Rights Instruments concerning the
Administration of Justice (Office of the United Nations High Commissioner for Human Rights (OHCHR),
Professional Training Series No. 9/Add.1).
8
Standard Minimum Rules for the Treatment of Prisoners, Supra note.3
9
Ibid. Art.1

3
administration has a duty to guarantee that the inmates receive equitable medical care. There are
also other basic prisoners’ rights principles;

A. The Right to Adequate Food and Water

The people who have been deprived of their freedom are entitled to a sufficient standard of living
under the United Nation's articles on the treatment of prisoners, which include enough food,
drinking water.10 Deficiency of sufficient clothing, food, water, and housing can frequently lead
to inmates being mistreated, which in extreme circumstances may even be torture. The right to
eat encompasses all other rights. It is more than just the right to a set amount of calories,
proteins, and other particular nutrients. A person has the right to all the dietary components they
require to lead an active and healthy life, as well as the resources to obtain them.11 Likewise,
regardless of where and how people live, the right to sufficient food is achieved when every man,
woman, and kid, whether living alone or in a society with others, always has access to sufficient
food or the means to obtain it.

Therefore, drinking water should be regarded as a prisoner's right since it is necessary for a
healthy diet. Prisoners have essential human rights due to the availability of food and water, both
in terms of quality and quantity.

B. The right to free from torture, cruel and inhumanity treatments

The right to free from torture is one of inviolable human right and its violation constitutes the
international crime. This crime is completely prohibited in the convention on free from torture,
cruel and inhumanity.12 States that are parties were required under the convention to look into
and punish instances of inhuman treatment occurring on their soil, including by government
officials whenever there is a plausible suspicion that torture has been carried out in any area that
falls under its purview. Therefore, all prisoners are exempted from the torture and any cruel
punishment and also inhuman treatments at while the jail time.

10
Standard Minimum Rules for the Treatment of Prisoners, Supra note.3, Art.20
11
The right to adequate food of prisoners; the United Nation of Human Rights of Office of the High Commissioner
for Human Rights, Fact Sheet No.34, Geneva, Switzerland, 2012.
12
CAT, Supra note.4

4
 C. The Right to Clothing and Bedding the Prisoners
The United Nation Standard Minimum Rules for the Treatment of Prisoners stipulated that all
inmates who are prohibited from wearing their own clothes must be given clothing that is
appropriate for the climate and sufficient to maintain their health. This includes the right to
proper bedding and clothing. Such attire must never be dehumanizing or degrading.

D. The Right to Adequate Health Care Service

Health is one of the pre-requisite elements for the right to life for the any person including
prisoners specifically. People who are incarcerated still have the fundamental right to decent
bodily and mental health as well as the right to get medical care that is at least on par with that
which is offered in the general public. Most of international instruments which are declared or
enacted based on the human right. UDHR-1948 has incorporated the right to health as the main
human right for a human being13 and additionally, ICCPR-1966 has also included the right to
health for any person.14

Therefore, all inmates and those who are deprived of their freedom must receive humane
treatment that respects each person's intrinsic dignity. "The enjoyment of the highest attainable
standard of health is one of the fundamental rights of every human being," states the 1946 WHO
Constitution, which established the right to health.15 The Standard Minimum Rules for the
Treatment of Prisoners of United Nation stipulated that every institution must have at least one
competent medical officer on staff, which should have some understanding of psychiatry, in
order to fulfill inmates' entitlement to sufficient health care services.16 It also directs the state
shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of
mental abnormality.17 Additionally, the organization of medical services must be closely linked
to the community's or country's overall health administration.18

13
UDHR-1948, Art.25
14
ICCPR-1966, Art.12
15
https://www.wma.net/what-we-do/human-rights/right-to-health/, Accessed on, 14 Nov 2024.
16
Standard Minimum Rules for the Treatment of Prisoners, Supra note, 3, para.22-26
17
Id.
18
Id.

5
 E. Adequate Living Standards
A sufficient quality of living, which includes enough food, drinking water, housing, clothes, and
bedding, is provided to those who are deprived of their freedom under the UN's provisions on the
treatment of prisoners. Thus providing adequate standard of living condition and accommodation
is essential step with regards to the protection of the prisoner’s right.

2.2. RIGHTS OF PRISONERS UNDER REGIONAL INSTRUMENTS

2.2.1. The rights of prisoner under African human rights

Under African Charter on Human and Peoples' Rights, inmates are entitled to both physical and
mental health. To guarantee that everyone has these right, governments must take specific
actions.19 For instance, they have to guarantee that everyone, even those with little or no money,
has access to quality medical treatment in the event that they get sick. It also obliges states for
inmates, and provides them with specialized medical care that will address their unique health
issues. The African Commission on Human and Peoples’ rights also incorporated in it resolution
to take other necessary measures in prisons and other places of detention to respect the prisoners’
rights.20 Prisoners should be granted all rights that aren't specifically taken away by their
incarceration, according to one of the declaration's intriguing statements in paragraph one No.2.21

As a result, various human rights instruments in the region, as well as several Protocols to the
African Charter on Human Rights and other important conventions pertinent to individuals
deprived of their liberty, have adopted the protection of human rights generally and prisoners'
rights to a sufficient standard of living in particular. The recommendations in the Ouagadougou
Declaration and Plan of Action on Accelerating Prison and Penal Reform in Africa include
lowering overcrowding, increasing the self-sufficiency of African prisons, fostering
rehabilitation and reintegration initiatives, holding prison administrations more accountable for
their actions, fostering best practices, advancing the African Charter on Human and Peoples'
Rights, and aiding in the creation of a UN Charter on the Basic Rights of Prisoners.

19
African Charter on Human and Peoples' Rights (Banjul Charter), 1986, Art.6
20
The African Commission on Human and Peoples’ Rights (the Commission) meeting at its 67 thOrdinary Session
held virtually, from 13 November to 03 December 2020.
21
Kampala Convention African Union Convention For The Protection And Assistance Of Internally Displaced
Persons In Africa, 2012

6
According to the Commission's 2002 adoption of the Robben Island Guidelines, states must take
the necessary actions to guarantee that the treatment of everyone who is deprived of their
freedom complies with international norms as directed by the UN Standard Minimum Rules for
the Treatment of Prisoners.22 Africa's prison conditions have significantly improved because to
the African Commission on Human and Peoples' Rights, which has been in operation since 2002
under the African Union's support.23

2.2.2. The rights of prisoner under American Human rights

Compared to African human right on prisoners, the American human rights instruments have
stated broadly the rights of prisoners. For instance, inmates have the right to reasonable medical
treatment, which includes the ability to make their own medical decisions and advance care
planning.24 There are other prisoners’ rights which are expressly given for the prisoners in
American Human rights laws. These are; right to due process, administrative appeals, and to be
notified of all charges against them, the right to practice their religion freely, prisoners retain
their right to vote, the right to keep personal property, such as cigarettes, stationery, and snacks,
the right to visitation, the right to privacy, the right to food that is adequate to sustain them, and
the right to bathe for sanitation and health reasons.

2.2.3. The European human rights laws on prisoners’ rights

Several human rights standards in Europe safeguard the rights of prisoners, including; European
Prison Rules, Transfer of prisoners, Right to private and family life, Treatment of transgender
prisoners. The protections of prisoners’ rights in particular, as well as the protection of human
rights generally, are acknowledged in many regional human rights treaties within the European
system. Therefore, the Convention for the Protection of Human Rights and Fundamental
Freedoms, also known as the European Convention on Human Rights, is the primary human
rights instrument in the European Region. Other fundamental tools for defending prisoners'

22
African Commission on Human and Peoples’ Rights, Resolution on Guidelines and Measures for the Prohibition
and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (The Robben Island
Guidelines), 2002, Guideline 33
23
Jeremy Serkin (ed.), Human rights In African Prisons, (2008)
24
Estelle v. Gamble Supreme Court decision, 1970

7
rights include the European Convention for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment.25

Furthermore, the European Committee for the Prevention of Torture has recommended that, in
order to safeguard inmates' health rights, every recently admitted prisoner should have a
thorough interview and physical examination by a physician as soon as possible after being
admitted. This should be done with the inmates' consent and solely to assess the inmates' general
health. A fully qualified nurse reporting to a doctor could potentially do this type of medical
check upon admission. The committee comes to the conclusion that inmates who are discovered
to have infectious or contagious disorders must be treated with exceptional care by the prison
administration.

3. RIGHTS OF PRISONERS AT NATIONAL LEVEL

The Federal Democratic Republic of Ethiopia-1995, (FDRE) Constitution encompassed the
various human rights for the citizens who have been living in Ethiopia. Many of rights are
categorized as the human rights basically and democratic rights. Even though these rights
incorporated in its clauses in sparsely in different places, they are guaranteed for all persons.
Human rights are innate and unbreakable under the FDRE constitution, unless expressly limited
or restricted by law. This implies that the authority that would deny a person their legitimate
human rights could not suspend these rights without a valid reason. On other hand most of the
human rights can be limited for certain time or forever based on the legal authorization.

Then, human rights are more or less not absolute and they may be deprived by the law when it
provided expressly. One of the persons who will be denied from the inherent rights is prisoner.
Prisoners may be excluded from the enjoyment of some human rights. Example, the right to
liberty,26 movement,27 the right to free from torture, cruelty and inhumanity treatment or
punishment28 and etc.

25
European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment; adopted
by the Council of Europe on 26 November 1987. The Convention entered into force on 1 February 1989
26
FDRE Constitution proclamation no.1/1995, Art.17
27
Ibid. Art.32
28
Ibid. Art.18

8
However, certain rights are retained to the prisoners. That means, except the rights to denied
based on law; the other laws are remained for the prisoners. Rather jotting down the rights of
prisoner let us categorize the prisoners into two based on the circumstance time of prisoners.
These are prisoners of remand or trial and convicted prisoners.

3.1. The Rights prisoners of remand or trial in Ethiopian laws

These types of prisoner are the prisoners who are on the trial and waiting the conviction or
acquittal of the court judgement. This may also at pre-trial and on trial. The pre-trial detained
persons are grasping someone in custody prior to their criminal trial. It should only be applied
when there is a good reason to believe that the offender committed the crime and when stopping
them from escaping, committing another crime, or obstructing the legal system is essential.
Under-trial prisoners refer to an individual who is detained in judicial custody while the
allegations against them are being tried in a court of proper jurisdiction. Generally, these
prisoners have the legal and human rights. Those are, the right to a speedy trial, the right to
bail,29 the right free from torture and inhumane treatment,30 the right to legal assistance,31 the
right to meet close relatives,32 the right to presumption of innocence,33 the right to be informed
about charge clearly,34 and etc.

3.2. The rights of Convicted prisoners under Ethiopian laws

Convicted prisoner means prisoner under correction, accused person or detainee of civil
proceedings.35 In Ethiopian law including the mother of laws of Ethiopian the convicted person
or prisoners after conviction have many human rights. Full regulations for the care of inmates
and their rights are specified in the Council of Ministers Regulations on the care of Federal
Prisoners. The rule states that the treatment of inmates must be founded on the fundamental
values of respect for their human dignity, nondiscrimination, and making sure those punishments
are carried out in a way that is both educational and restorative.

29
Id. Art.19(6)
30
FDRE, Supra note 26
31
Id. Art.20(5)
32
Id. Art.21(2)
33
Supra note 24. Art.20(3)
34
Id. Art.20(2)
35
Federal Prison Proclamation No.1174/2019, Art.2(2)

9
Most of rights are incorporated as the constitution right of accused person or convicted person
who exist in jail. For instance, a prisoner has the right to receive treatment that fully respects his
rights, dignity, and health while he is incarcerated; a prisoner has the right to be shielded from
cruel, inhuman, or humiliating treatment, as well as from treatment that puts his health in
jeopardy.36 They also entitled from the clauses of FDRE Constitution. This includes the freedom
of religion,37 the right to equality,38 the right to treatment that respects their human dignity,39 and
others.

4. RIGHTS OF CONJUGAL VISIT OF PRISONERS IN ETHIOPIA

The prisoners have the right to be visited by the relatives whether spouse or family. The sexual
rights or privileges that are implied by, implicated in, and considered legally exercisable by each
spouse in a marriage are known as conjugal rights. This is the fundamental human right of
prisoner during the stay in the jail. Thus, that right has been resembled in supreme law of the
land of Ethiopia. The right of inmates to conjugal visits is not expressly permitted nor prohibited
under the Federal Democratic Republic of Ethiopia (FDRE) Constitution.

However, under FDRE constitution, everyone has the right to speak with and receive visits from
their spouses or partners, close friends, family members, religious leaders, physicians, and legal
representatives.40 However, this conjugation of spouses during prison time is neither prohibited
nor permitted. But, the prisoners which are male and female prisoners shall be separated into
different room.41 Once more, the right to marital and family rights is acknowledged under of the
FDRE Constitution.42

But according to some, Ethiopia need to acknowledge this right and incorporate it into its own
internal legal system. Married inmates are acknowledged to have an inherent right to conjugal
visitation, which includes the right to procreate and have sex. On the revised family code,
spouses shall have with one another the sexual relations normal in marriage unless these relations

36
Ibid. Art.32
37
Estelle v. Gamble, Supra note 24. Art.27
38
Ibid. Art.25
39
Ibid. Art.18
40
FDRE, Supra note 26, Art.21(2)
41
The Criminal Code Of The Federal Democratic Republic Of Ethiopia Proclamation No.414/2004, Art.110
42
FDRE, Supra note 26, Art.34

10
involve a risk of seriously prejudicing their health.43 Private encounters between a male or female
prisoner and their spouses are known as conjugal visits, during which the couple is free to do
everything lawful they like. However, this right seems too limited in Ethiopian legal system. It
goes without saying that the right of inmates to have their spouses or partners visits them is
acknowledged by Ethiopia's Constitution and other subsidiary laws.

4.1. LEGAL DISCOURSES ON THE RIGHTS OF CONJUGAL VISIT OF

PRISONERS
There are two debates on the conjugal rights of prisoners. These are explained below.

4.1.1. Argument against conjugal visits of prisoner right

According to this argument permitting the conjugal visit in the jail may suffer the government
for the extra expenses. On this view primarily for the allowing conjugal visit of spouse might
need the additional construction of the house or extra room for the meeting of spouses for having
overnight with each other. The fact that both inmates and prison officials are likely to abuse
conjugal visitation programs is another compelling argument against their implementation.44 For
that letting inmates to enjoy conjugal visits, according to some academics, may turn the prisons
into prostitution brothels at government expense.

The other are, denying conjugal rights to a prisoner's spouse could be considered a form of
punishment for innocent victims, another way to discipline prisoners and discourage future
offenders is to isolate them from their families, both of inmates and prison employees may abuse
conjugal visits, Conjoining visits, according to some, may prolong the one-parent family
structure, and etc.

4.1.2. Argument for conjugal visits of prisoners right

The advantages of conjugal rights for prisoners, spouses, and prison infrastructure have typically
served as the foundation for arguments in support of conjugal visits in prisons. This argument is
based on the human rights perspective and its benefits for prisoners' rehabilitation. The
proponents of this argument are argue that the main benefits of conjugal visit are; it can help

43
The Revised Family Code of FDRE, Negarit Gazetta Extra Ordinary Issue No. 1/2000, Art.53
44
Shruti Goyal (n 5).

11
preserve marital ties, decrease in prison sexual offenses such as rape and sexual assault, can
encourage good behavior and rehabilitation in correctional facilities, and etc.

4.2. SHOULD MARRIED INMATE BE ALLOWED TO HAVE OVERNIGHT

VISIT WITH THEIR SPOUSES TO MAINTAIN A FAMILY LIFE AND TO
AVOID VIOLATION?
Naturally according to the FDRE Constitution any person has the right to establish and having
the enjoyment with his or her family including the spouse.45 Revised family code of Ethiopia
(2000) has also prohibited the separation of the spouses into the consummation room unless
otherwise it has the negative effect on the health of the other spouse. Even, it also prescribed the
agreement between spouses on the having separate room has no legal effect. 46 Therefore, the
main purpose of these provisions is the maintenances and securing the relationship in the
marriage or family. But, the main spirit or intention of provisions is to safeguarding the
relationship in natal or marriage life. However, obviously these rights may be limited in the case
of prisoners.

Therefore, to answer this question, my answer is the based on the circumstance of the prisoners
and gender of the prisoners. That mean, Firstly, I argue for the conjugal visit and having
overnight with each other’s. In this case the male prisoners should get the right conjugal
consummation with their wife or girlfriend. This enjoyment with spouse has great advantage for
both spouses and friends. Most of the time science believes that having sexual intercourse has
numerous benefits for the human being in limited situations.

That mean, when the man exists in the jail, the wife of that man should have sufficient time with
his wife or friend. In this way the psychological health of both spouses might be kept safely and
they may have better enjoyment. This conjugal visit may also avoid the disturbance of the family
life at certain stage. When the spouse stays away from each other for a long period of time they
may have the desire for the sexual intercourse between themselves. In this situation locking the
way or opportunity of having the overnight with each other may sway the other spouse into the
adultery. This completely diminishes the interrelation between spouses.

45
FDRE, Supra note 2, Art.34
46
The Revised Family Code of FDRE, Supra note 43. Art. 53

12
Even, sometimes the spouse may remarry to the other person or establish the second marriage
with or out of divorce made duly by law. Then, to prevent this turmoil from the family life the
spouses should have the sexual or conjugal visit during prison time. The other advantage of
conjugal visit of prisoners is it prevents the homogenous sexual intercourse. Homogenous
sexuality is in Ethiopia prohibited and it leads to criminally punishable.47 But, staying of
prisoners for a long time without having sex with his or her spouse or girlfriend may lead the
homosexuality in the prison room. This act also not violate only law, it also infringes the
morality of our peoples. Then, to avert such like dangerous activities the prisoner should have
the right to conjugal visit in the prison. Therefore, the sufficient and enough space or room
should exist or be arranged by the prison administration or the concerned government.

The second my argument is opponent to the first argument the women’s or females should meet
their spouse or boyfriend in the restricted circumstance. However, when I provide this argument
I am not thought to deny or deprive the equality and women’s rights. But their situations and
status may limit their right to conjugal visit in prison without their will. Therefore, the women
who exists in the prison somehow they should have the chance to conjugal visit in prison.
However, the drugs which prevent pregnancy should be provided for the women’s. In this case
they should get the equal chance with the men’s.

5. CONCLUSION
Generally, the prisoner has the inherent human rights even though these rights may later on
restricted based on the laws. International, regional and at national level they have the inherent
human rights. For instance; a prisoner has the right to receive treatment that fully respects his
rights, dignity, and health while he is incarcerated; a prisoner has the right to be shielded from
cruel, inhuman, or humiliating treatment and etc. From the human right the main right is
conjugal right or having overnights with their spouse during prison time. However, this right is
not clearly permitted in any laws of Ethiopia. But, this absence of the clauses in the provisions of
Ethiopian laws should not deprive the conjugal or sexual relation with their spouse or love
friend.

47
FDRE Criminal Code, Supra note 41. Art.629

13
6. REFERENCE/BIBLIOGRAPHY
 Basic Principles for the Treatment of Prisoners; Adopted and proclaimed by General
Assembly resolution 45/111 of 14 December 1990
 The Ethiopian Civil Procedure Code Decree No. 52 of 1965
 Standard Minimum Rules for the Treatment of Prisoners; Adopted by the First United
Nations Congress on the Prevention of Crime and the Treatment of Offenders, May 1977.
 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment-1987 (hereinafter called CAT)
 Human Rights and Prisons: A Compilation of International Human Rights Instruments
concerning the Administration of Justice (Office of the United Nations High
Commissioner for Human Rights (OHCHR), Professional Training Series No. 9/Add.1).
 The right to adequate food of prisoners; the United Nation of Human Rights of Office of
the High Commissioner for Human Rights, Fact Sheet No.34, Geneva, Switzerland, 2012.
 https://www.wma.net/what-we-do/human-rights/right-to-health/, Accessed on, 14 Nov
2024.
 African Charter on Human and Peoples' Rights (Banjul Charter), 1986, Art.6
 The African Commission on Human and Peoples’ Rights (the Commission) meeting at its
67thOrdinary Session held virtually, from 13 November to 03 December 2020.
 Kampala Convention African Union Convention For The Protection And Assistance Of
Internally Displaced Persons In Africa, 2012
 African Commission on Human and Peoples’ Rights, Resolution on Guidelines and
Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading
Treatment or Punishment in Africa (The Robben Island Guidelines), 2002, Guideline 33
 Jeremy Serkin (ed.), Human rights In African Prisons, (2008)
 Estelle v. Gamble Supreme Court decision, 1970
 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment; adopted by the Council of Europe on 26 November 1987. The
Convention entered into force on 1 February 1989
 FDRE Constitution proclamation no.1/1995
 Federal Prison Proclamation No.1174/2019

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 Criminal Code Of The Federal Democratic Republic Of Ethiopia Proclamation
No.414/2004
 The Revised Family Code of FDRE, Negarit Gazetta Extra Ordinary Issue No. 1/2000

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