Times Of Swaziland: VISUALLY IMPAIRED RAPE CONVICT WALKS FREE

VISUALLY IMPAIRED RAPE CONVICT WALKS FREE
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Mbongiseni Ndzimandze on 29/01/2024 08:44:00


MBABANE - The lack of infrastructure to accommodate people with disabilities in
the country’s prisons has seen a visually impaired rapist walking free.
Daniel Masimula (60), who has reportedly developed other sickness which has
rendered him bedridden, has been in custody since 2022. He was convicted of
raping a teenage girl, by the Pigg’s Peak Magistrates Court and was awaiting
sentence. However, due to his condition, His Majesty’s Correctional Services
(HMCS) Chief Medical Officer, Doctor Mulume Ngoie, wrote to the director of
public prosecutions (DPP), outlining why it would no longer be prudent for the
institution to continue keeping the convict.  In turn, the prosecution moved an
application at the High Court to have Masimula released, on what it termed as
‘free bail’. Judge Bonginkhosi Magagula who heard the application then
endorsed that Masimula be released on free bail as prayed for by the
prosecution. When moving the application, prosecutor Mxolisi Dlamini, informed
the court that this was an extraordinary application. He told the court that the
Correctional facility had no option but to apply that the convict should be
released on ‘free bail’ as the institution was unable to continue keeping
him due to his fading health condition.
Attention
The prosecutor brought it to the attention of the court that they feared that
the convict might die, hence the need to have him released to his family. In his
report to the DPP, Dr Ngoie stated that during his last visit at Pigg’s Peak
Correctional Centre, on January 16, 2024, together with a nurse, they noted that
Masimula was bedridden, semi-conscious, communicated poorly and lost his vision.
He highlighted that they also observed that the glycaemia readings were high and
they referred him to Pigg’s Peak Government Hospital. Glycemia refers to the
concentration of sugar or glucose in the blood. The chief medical officer
mentioned that Masimula’s current health condition, was not improving and he
needed to be physically assisted continuously, by a third person to enable him
to meet his day-to-day personal/natural needs.
“Considering that our Correctional clinics are not yet equipped with the
palliative care unit to provide these services, I therefore recommend that the
patient (Masimula) be discharged home, where he will benefit from the
tender-loving care from his family members, which he needed the most at this
particular stage of his sickness,” reads part of the letter by the doctor that
was presented in court. Also annexed to the application for the release of
Masimula is a psychosocial enquiry that was prepared by the institution. In the
inquiry report, it is stated that the Correctional facilities had a legal
obligation to accommodate the needs of blind and visually impaired offenders. 
As per the report, the blind and visually impaired inmates should be entitled to
certain accommodation and support to ensure their safety and well-being. This
according to the institution should include, providing material in accessible
formats such as braille or audio, ensuring that facilities are navigable for
those with visual impairments and offering support services such as mobility
training.
Infrastructure
“However, Correctional Services facilities do not have such infrastructure to
accommodate visually impaired inmates.  They do not have equal access to prison
services and privileges available to other inmates. They have to rely on other
inmates to help them navigate prison facilities as they lack the basic
housekeeping skills to do things on their own,” reads part of the psychosocial
inquiry report. According to the report, visually impaired inmates relied on
other prisoners to move around, to take a bath or even going to the toilet. The
court was informed through the report that, the above depicted the situation
Pigg’s Peak Correctional Centre and Masimula were currently faced with. It was
brought to the court’s attention that when Masimula was arrested and brought
to the Pigg’s Peak Correctional Centre, on December 23, 2022, it was observed
that he was visually impaired.
In the report, it was further stated that since the institution did not have
accommodation for people with physical disabilities, Masimula was kept at
Dormitory 5, where there were few inmates. The court was further told that ever
since Masimula was incarcerated, he had been struggling with day-to-day
activities such as bathing, washing, going to the toilet and feeding due to his
condition. The institution mentioned that Masimula relied on other inmates for
his basic housekeeping skills. “Exacerbating the situation, Masimula has
developed other sicknesses which have resulted in him being in and out of
hospital,” stated the institution. Meanwhile, there is a pending court case at
the High Court where the lack of infrastructure to accommodate inmates with
physical disabilities is being used as a ground to motivate a bail application
filed by Gawuzela’s son Zweli who is an amputee. Zweli and his co-accused
brother, Jabulani Simelane, who is a member of the Swaziland Liberation Movement
(SWALIMO) are facing charges under the Suppression of Terrorism Act.
Facilities
As an amputee, Zweli informed the court that he used crutches to move around and
he was unable to carry out the most basic personal chores without being assisted
or using specialised facilities such as toilets and bathrooms specifically
designed to accommodate him in his amputee condition. “It is my submission
that I have spent over nine months in the second respondent's (Correctional)
facility but I have not been shown or taken to a specialised toilet or bathroom.
 “It is, therefore, my submission that the Kingdom of Eswatini is yet to
construct facilities to accommodate persons with disabilities. The second
respondent's Correctional facilities in the country were not built to
accommodate persons with disabilities,” said Zweli.
According to Zweli, he believed that his detention in the Correctional facility,
which had a lot of physical barriers, violated the Convention on the Rights of 
Persons with Disabilities (CRPD) and the Optional Protocol to the Convention, to
which the Kingdom of Eswatini is a signatory. He averred that the conditions
under which he was detained did not meet the standards for the detention of
persons with physical disabilities such as him.  He informed the court that, on
daily basis, he was at the mercy of a fellow inmate to assist with the basic
personal chores such dishing up food, which he could not do since his  hands
were invariably fixed on the crutches to support his balance and movements.
Zweli further pointed out that he could not wash his clothes, bath properly and
use the toilets because such places were only designed for able-bodied inmates. 
Zweli’s bail application, which is being opposed by the prosecution, is still
pending in court.