A legal-realist assessment of human rights, right to health and standards of healthcare in the Malawian prison system during COVID-19 state disaster measures

Purpose The first case of COVID-19 in the Malawi prison system was reported in July 2020. Human rights organisations raised concerns about the possibility of significant COVID-19 outbreaks and deaths in the prison system, because of the poor infrastructure, lack of healthcare and adequate COVID-19 mitigation measures, existing co-morbidities (tuberculosis, HIV and hepatitis C), malnutrition and poor health of many prisoners. Design/methodology/approach The authors conducted a legal-realist assessment of the Malawian prison system response to COVID-19 during state disaster measures, with a specific focus on the right to health and standards of healthcare as mandated in international, African and domestic law. Findings The Malawi prison system was relatively successful in preventing serious COVID-19 outbreaks in its prisons, despite the lack of resources and the ad hoc reactive approach adopted. Whilst the Malawi national COVID plan was aligned to international and regional protocols, the combination of infrastructural deficits (clinical staff and medical provisions) and poor conditions of detention (congestion, lack of ventilation, hygiene and sanitation) were conducive to poor health and the spread of communicable disease. The state of disaster declared by the Malawi Government and visitation restrictions at prisons worsened prison conditions for those working and living there. Originality/value In sub-Saharan Africa, there is limited capacity of prisons to adequately respond to COVID-19. This is the first legal-realist assessment of the Malawian prison system approach to tackling COVID-19, and it contributes to a growing evidence of human rights-based investigations into COVID-19 responses in African prisons (Ethiopia, South Africa and Zimbabwe).