THE RIGHTS OF INMATES TO CONJUGAL RIGHTS:UGANDA IN

PERSPECTIVE

BY

SSENTONGO YAKUBU1

ABSTRACT

Conjugal rights for inmates exist when conjugal visits are made by their spouses or
family to their places of confinement. Conjugal rights are considered a privilege
for prisoners who have exhibited good behavior during their term of incarceration.
As a result, it has been given legal backing in constitutions and enactments like
statutes and acts of parliamenti.e. the U.S Supreme court and several federal courts
have held that prisoners do not have a constitutional right to conjugal visits 2.
Similarly, the Uganda Law Reform Commission (ULRC) is set to amend the
Prison’s Act, to among other things, reflect the current situation and public
demands, including availing conjugal rights for inmates3. This article is intended to
discuss whether conjugal rights are a privilege or a right, examine the arguments
for and against conjugal rights for inmates and explain the different aspects of
conjugal rights.

INTRODUCTION

In 1960, Mildred Carter arrived at Parchman Penitentiary in Mississippi to visit her

husband George Carter, a forty-two-year-old convict serving ten years for assault
and battery, after driving up the long road to the prison and being searched by
guards, she greeted her husband, and the couple walked to a small, rundown cabin
in the prison yard,the guards gave the couple privacy, so what happened in the
cabin is not known. The couple mayhave held hands. George may have asked
Mildredabout their two daughters. They likely had sex. Itwas, after all, a conjugal
visit.Parchman Penitentiary was the sole prison in the United States that allowed
conjugal rights in the 1960’s. Its history with conjugal visits began just after its

1
Law Student at Kampala International University and student research assistant to HoD Commercial department
2
By Deborah c. England available at www.criminaldefencelawyer.com/resources/criminal-defence/state-felony-
laws/states-that-allow-conjugal-visit accessed 16th-12- 2106
3
By Henry Sekanjako available at www.newvision.co.ug/new_vision/news/1318217/inmates-soon-enjoy-conjugal-
rights accessed 16th-12-2016

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founding in 1904. In 1904 Parchman Penitentiary was a 19th century plantation
recreated, with its black, convict labor force working in the prison’s cotton
fieldslike slaves. Conjugal visits were a paternalistic, ad-hoc reward system. If
black convicts worked hard, they got to have sex on Sunday with their wives or
prostitutes organized by guards and had sex in the rows of Parchman’s cotton
fields. The guards’ actions were not prison policy, but administrators tolerated the
practice for decades. This is the first documented case of conjugal visits in
America and around the world, which the guards organized to increase
productivity and exercise control over Parchman’s black, convict workforce4. This
article is going to critically analyze conjugal rights, whether they are a right or a
privilege, the need for them and as well look at the arguments for and against them
plus look at its performance over the years.

WHAT ARE CONJUGAL RIGHTS?

These are rights and privileges arising from the marriage relationship, including
themutual rights of companionship, support, and sexual relations5. In Kiggundu v
Kiggundu6 the allegations were that ‘the defendant had refused for seven years to
afford the plaintiff conjugal rights ‘. Court found that the denial of conjugal rights
for so many years is a serious matter particularly where the defendant is unable to
give a credible and reasonable explanation for such. Court held that, having found
that the plaintiff is a credible witness particularly on the issue of denial of conjugal
rights and the utterances he attributes to the defendant and held that he had proved
his case on a balance of probabilities. On such basis, court granted a rule nisi for
divorce as the marriage has broken down irretrievably. The sexual rights or
privileges implied by and involved in the marriage relationship or the right of
sexual intercourse between husband and wife7Conjugal rights are given to inmates
during a process referred to as conjugal visits. A conjugal visit is a scheduled
period in which an inmate of a prison or jail is permitted to spend several hours or
days in private with a visitor, usually their legal spouse. The parties may engage in
sexual activity8.
THE LAW CONCERNING CONJUGAL VISITS FOR INMATES

4
Available at https://priceonomics.com/the-dark-origins-of-conjugal-visits/accessed 16th-12-2016
5
Black’s Law Dictionary
6
2008 3 BLR 442 HC
7
Merriam Webster dictionary definition of conjugal rights
8
Wikipedia on conjugal visits

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Around the world, different countries have different rules and perspectives
concerning conjugal visits9. The generally recognized basis for permitting such
9
In Australia, conjugal visits are permitted in the Australian Capital Territory and Victoria “Conjugal visits support
inmates’ relationships: Hargreaves”. Web.archive.org/web/20140618133250/http://www.abc.net.au/news/2009-
06-08/conjugal-visits-support-inmates-relationships/1707438 .8 June 2009 retrieved 24th-december 2016.ACT
prisons allow conjugal visits”.
The New Zealand Herald.Mobile.nzherald.co.nz/world/news/article.php?c_id=2&objected=10577199retrieved
24th-december 2016, Other jurisdictions, including Western Australia and Queensland do not permit conjugal visits.
In Brazil while visits are generally freely granted to male prisoners, many states go against the idea for female
inmates. Those that do allow them for women, often insist on extremely tight regulations. “Sex on sentence”. BBC
News. news.bbc.co.uk/2/hi/uk_news/812165.stmaccessed 16th-12-2016 .
In Spain, prisoners are allowed conjugal visits every four to eight weeks.“Sex on sentence”. BBC News.
news.bbc.co.uk/2/hi/uk_news/812165.stm accessed 16th-12-2016.In Denmark, conjugal visits are permissible. The
State Prison of East Jutland has apartments for couples, where inmates who have been sentenced to more than 8
years in prison can have visitation for 47 hours per visit.
https://en.m.wikipedia.org/wiki/The_State_Prison_of_East_Jutland retrieved 24 th-december 2016,
Germany allows prisoners and their spouses or partners to apply for conjugal visits. Those who are approved are
allowed unsupervised visits so that prisoners can preserve intimate bonds with loved ones on the outside.
The Israel Prison Service (IPS) allows standard conjugal visits to inmates who are married or are in a common-law
relationship in which their partner has been visiting them for at least two years, and have been on good behavior.
Gay Israeli prisoners Win Right to Conjugal visits”. forward.comretrieved 20 th-december 2016
”Conjugal visits for gay prisoner? Not in Israel”. By Raanan Ben-Zur .ynetnews.com/articles/0,7340,L-
4291171,00.html retrieved 18th-december 2016. InMexicoaccording to Olivero, conjugal visits are a universal
practice in Mexico, independent of a prisoner's marital status; in some correctional facilities entire families are
allowed to live in prisons with their imprisoned relative for extended periods. Olivero, J.Michael (1998). “The crisis
in Mexican prisons: The impact of the United States“. In Nigel South; Robert p. Weiss.Comparing Prison Systems.
Taylor and Francisretrieved 18th-december 2016, “Mexico allows gay conjugal visits”. BBC News. 30 July 2007.
Retrieved 18th December 2016 .In Canada, all inmates, with the exception of those on disciplinary restrictions or at
risk for family violence, are permitted "private family visits" of up to 72 hours' duration once every two
months.“Private Family Visiting“.Correctional Service of Canada.www.csc-scc.gc.ca/family/003004-1000-eng.shtml.
In the Russian penal system, since a campaign of prison reform that began in 2001, well-behaved prisoners are
granted an eighteen-day holiday furlough from incarceration to see loved ones. Prisoners also get extended on-site
family visits, approximately once per month. Whittell, Giles (2 June 2006). “After the Gulag conjugal visits
computers and a hint of violence”Retrieved 18 th December 2016.As for Turkey Since April 2013, the Turkish
General Directorate of Prisons and Detention Houses offers conjugal visits as a "reward" to the well-behaved
prisoners. “RIGHTS – Example ‘conjugal visit’ rooms introduced in eastern
province”.www.hurriyetdailynews.com/example-conjugal-visit-rooms-introduced-eastern-province.aspx?pageID-
238&nID-44059&NewsCatID-339. Retrieved 18th December 2016.In India 2015, the Punjab and Haryana High
Court held that the right of married convicts and jail inmates to have conjugal visits or artificial insemination for
pregnancy was a fundamental right. High court allows jail inmates to have sex with their partners”. Times of India.
m.timesofindia.com/india/High-court-allows-jail-inmates-to-have-sex-with-their-
partner/articleshow/45785525.cms. In Zimbabwein 1998 officials considered introducing conjugal visits in an effort
to curb the spread of HIV/Aids in prisons.“Sex on sentence”. BBC News.
news.bbc.co.uk/2/hi/uk_news/812165.stmRetrieved 18th December 2016 In Belgiuminmates in open prisons are
allowed a three night home stay every three months. Conjugal visits are only permitted to high security prisoners if
their spouse is an inmate as well. “Sex on sentence”. BBC News.
news.bbc.co.uk/2/hi/uk_news/812165.stmRetrieved 18th December 2016
In Republic of Ireland, Marie and Noel Murray, an anarchist married couple imprisoned for a 1976 murder, lost a
1991 appeal for conjugal rights. The Supreme Court ruled that the Constitutional right to beget children within
marriage was suspended while a spouse was lawfully imprisoned. “Constitutional right to beget children within
marriage is suspended while one spouse is lawfully imprisoned”. The Irish Times. 27 May 1991.p. 21. Retrieved 18

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visits in modern times is giving them a legal backing (constitutionally and using
statutory instruments) with legislators claiming that the move is intended to
preserve family bonds and increase the chances of success for a prisoner's eventual
return to life after release from prison. Additionally, they serve as an incentive to
motivate inmates to comply with the various day-to-day rules and regulations of
the prison, and to avoid any infringement which might disqualify them from
having a conjugal visit.

The laws have stipulated that the visit will usually take place in designated rooms
or a structure provided for that purpose, such as a trailer or a small cabin. Supplies
such as soap, condoms, lubricant, bed linens, and towels may be provided.

Members of parliament of the Republic of Uganda on the committee of Human

Rights disagreed over a proposal to grant conjugal rights to convicts where some
legislators argued that giving inmates such a privilege would be an “exaggeration
of fundamental freedoms”. The debate on conjugal rights was reignited by Mr.
SimeoNsubuga (NRM-Kasanda South) who said it is part of convicts’ freedom10.
Condemned prisoners did not lose all their constitutional rights and freedoms
except those rights and freedoms that have inevitably been removed from them, by
law, either expressly or by necessary implication11. The prisons department is not
yet prepared to grant inmates the right to conjugal rights, the Commissioner
General of Prisons, Dr. Johnson Byabashaija said. “I do not have a problem with
conjugal visits, but Prisons is not yet able to provide these services because we
neither have facilities nor the mechanism to offer them. We have far pressing
issues to deal with like improving the welfare of the prisoners,” he said 12. There is

December 2016. . New Zealand does not permit conjugal visits. 9In United States in the case of Lyons v. Gilligan
(1974), the United States District Court for the Northern District of Ohio held that the prisoners have no
constitutional right to conjugal visits with their spouses during sentences 9. The United States Federal Bureau of
Prisons does not allow conjugal visits for prisoners in federal custody. For prisoners in state custody 9, the
availability of conjugal visits is governed by the law of the particular state. Where conjugal visits are allowed,
inmates must meet certain requirements to qualify for this privilege. In the United Kingdom neither the English,
Welsh, Scottish, nor Northern Irish prison systems allow conjugal visits. However, home visits, with a greater
emphasis on building other links with the outside world to which the prisoner will be returned, are allowed. These
home visits are usually only granted to prisoners who have a few weeks to a few months remaining of a long
sentence. Furthermore, home visits are more likely to be granted if the prisoner is deemed to have a low risk of
absconding i.e. prisoners being held in open prisons have a better chance of being granted home visits than
prisoners being held in closed conditions. The Ghana Prison Service said it couldn’t guarantee conjugal visit for
married inmates citing the lack of facilities and resources. Acting Director General of Prisons, Emmanuel Adjator
said that granting conjugal visit was not going to be possible anytime soon, he said the sevice needed a
constitutional backing to be able to facilitate it.
10
www.monitor.co.ug/News/National/MPs-disagree-conjugal--rights--inmates/688334-3486242-
u74nd0z/index,htmlretrieved 20th December 2016
11
Susan kigula& 14 others v A.G cons. Court cons. Petition No. 6/2003
12
https://24tanzania.com/no-conjugal-rights-for-inmates-byabashaija/ retrieved 27th-march-2017

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no law catering for conjugal visit as seen when the officials from Uganda Law
Society asked parliament to amend the Prisons Act to ensure that prisoners are
granted conjugal rights. Patrick Nyakana, a commissioner with Uganda Law
Society, argued that the clause is not reflected in the Prisons Act, yet it is a human
right13.Bulamogi County MP Kenneth Lubogo also disagreed with fellow law
makers accusing them of exaggerating the pursuit for human rights. “Not all rights
are absolute, if we grant conjugal rights to inmate it may not serve the purpose of
the sentence,” he said14

CONJUGAL VISITS AS A RIGHT

A right is something that is due to a person by just claim, legal guarantee, or moral
principle (the right of liberty), a power, privilege or immunity secured to a person
by law (right to dispose of one’s estate)15 As seen for anything to be regarded a
right it must have legal or constitutional backing for everyone ,the debate of
conjugal rights in Uganda has not taken serious shape but looking at similar
common jurisdictions in an Indian case recently, the Punjab and Haryana Hugh
court in the case of Jasvir Singh and another Vs State of Punjab and Others16
gave a very novel judgment recognizing conjugal rights of the prisoners within the
jail premises considering it as part and parcel of right to life under article 2117 .In
this case, the petitioners were husband and wife and they were tried for an offence
under section 302/364-A/201/120-B IPC for kidnapping and brutally murdering a
sixteen year old minor for ransom. The trial court awarded them death sentence
which was confirmed by the High Court of Punjab and Haryana. The Honorable
Supreme court commuted the death sentence awarded to wife into life
imprisonment. The petitioners thereafter sought enforcement of their perceived
right to have conjugal life and procreate within jail premises. They sought a
command to the jail authorities to allow them to stay together and resume their
conjugal life for the sake of progeny and make all arrangements needed in this
regard. Amicus curiae were appointed by the court keeping in view the vital issues
of public importance. Various observations made by them include but not limited
to the petitioners’ fundamental focus was on article 21 supra of the constitution.
They insisted that the right to life has two essential ingredients, namely, (i)
preservation of cell; and (ii) propagation of species of which sex life is a vital

13
By PetrideMudoolawww.newvision.co.ug/new_vision/news/1318755/conjugal-rights-inmates-byabashaija
retrieved 20th December 2016
14
By Moses Kyeyunewww.monitor.co.ug/News/National/MP3-dieagree-conjugal--rights--inmates/688334-
3486242-u74ndoz/index,html retrieved 20th December 2016
15
Black’s law dictionary 8th edition Pg.4120
16
CWP No.5429 of 2010 Date of Decision: 29 May 2014
17
Consititution of india

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part18.The decision in State of Andhra PradeshVsChalaramKrishna
Reddy19was relied upon to urge that a prisoner whether convict, under trial or a
detenue, continues to enjoy the Fundamental Rights including right to life which is
one of the basic Human rights. The petitioners also referred to well regulated
concept of conjugal visitations successfully implemented in the advanced countries
like the USA, Canada, Australia, UK, Brazil, Denmark and Russia etc. The State of
Punjab opposed the petitioners’ prayer essentially on the plea that the Prisons Act,
1894 contains no provision to permit conjugal visitation; its section 27 rather
mandates proper segregation of male and female prisoners. Para 498 of the Punjab
Jail Manual, lays down the method for separation of male and female prisoners.
Even artificial insemination as a viable and alternative solution suggested by the
petitioners, was not acceptable to the State of Punjab as according to its affidavit
“there is no such provision in the Prisons Act, 1894 and Punjab jail Manual to
allow the husband and wife convicts to be in the same cell in the jail or to allow for
artificial insemination of the convicts…”. The father of the minor victim, who was
murdered for ransom by the petitioners, also joined these proceedings to oppose
the petitioners’ prayer.
The following, amongst other issues emerged for determination
I. Whether the right to procreation survives incarceration, and if so, whether
such a right is traceable within our constitutional framework?
II. Whether pen logical interest of the State permits or ought to permit creation
of facilities for the exercise of right to procreation during incarceration?
III. Whether ‘right to life’ and ‘personal liberty’ guaranteed under article 21of
the constitution include the right of convicts or jail inmates to have conjugal
visits or artificial insemination (in alternate)?
IV. If question number (iii) is answered in the affirmative, whether all
categories of convicts are entitled to such right(s)?(either the convicts or the
under-trials)
Judgment
The writ petition was disposed of with the following directions:
The Jail Reforms Committee shall formulate a scheme for creation of an
environment for conjugal and family visits for jail inmates and shall identify the
categories of inmates entitled to such visits, keeping in mind the beneficial nature
and reformatory goals of such facilities;
The Jail Reforms Committee shall also recommend the desired amendments
in therules/policies to ensure the grant of parole, furlough for conjugal visits and
the eligibility conditions for the grant of such relief;

18
Judicial introspection of conjugal rights vis-à-vis human rights of the prisoner by Dr.Sunaina
19
(2000) 5 SCC 712

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 The Jail Reforms Committee shall also classify the convicts who shall not be
entitled to conjugal visits and determine whether the husband and wife who both
stand convicted should, as a matter of policy be included in such a list, keeping in
view the risk and danger of law and security, adverse social impact and multiple
disadvantages to their child;
The impact of the judgment was;
The court observed that the learned amicus curiae canvassed that the right to
life includesright to ‘create life’ and ‘procreate’ and this fundamental right does
not get suspended when a person is sentenced and awarded punishment thereby
limiting him to stay in the jail In Lawrence v. Texas, 20 the court noted that “after
Griswold, it was established that the right to make certain decisions regarding
sexualconduct extends beyond the marital relationship.” Also Planned
Parenthood v.Casey21 recognized the right to “bear or beget achild” as
fundamental. InSkinner v. Oklahoma22 held that the right toprocreate is a
fundamental right guaranteed by the Constitution
A person does not lose his human rights merely because he has committed
some offence as he also has some dignity which must be protected23

CONJUGAL VISITS AS A PRIVILEGE

This is a special legal right, exemption, or immunity granted to a person or class of
persons; an exemption to a duty. A privilege grants someone the legal freedom to
do or not to do a given act. It immunizes conduct that, under ordinary
circumstances would subject the actor to liability24. For various reasons, conjugal
visits were granted as a privilege as earlier stated for prisoners who have exhibited
good behavior during their term of incarceration.Recently, it was a point of
contention between members of parliament on the committee of Human Rights
with some legislators arguing that giving inmates such a privilege would be an
exaggeration of fundamental freedoms25. And those that have the money to bribe
prisons wardens to have the conjugal visits such as in south Africa where a former
Pollsomoor inmate told the jail commission that "as an awaiting-trial prisoner,
rules allowed him only non-contact visits" however, warder XolileMadikane a
section head at Pollsmoor, had told him he could arrange contact visit(conjugal
visit) and the next time his fiancée, Shahieda Alexander, came to visit, with one of

20
539 U.S. 558, 565 (2003),
21
505 U.S. 833, 851 (1992)
22
316 U.S. 535, 542-543 (1942)
23
JUDICIAL INTROSPECTION OF CONJUGAL RIGHTS VIS-A-VIS HUMAN RIGHTS OF THE PRISONERS by Dr.Sunaina
24
Black’s law dictionary 8th edition Pg.3790
25
By Moses Kyeyune available at www.monitor.co.ug/News/National/Mps-disagree-conjugal--rights--
inmates/688334-3486242-u74ndoz/index.html accessed 16th-12-2016

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his children, Madikane put them in an isolation cell althoughMadikaneraised the
amount from R100 to R250 in the second period 26
THE ARGUMENTS FOR CONJUGAL RIGHTS.

In the year 2015, during celebrations to mark the world Aids Day, inmates of
LuziraPrison asked to be granted the right to have sex with their spouses within the
prison walls, saying this would help in their rehabilitation27 The prisoners further
argued that granting those rights to have sex within the detention facility will help
to reduce the HIV/AIDS prevalence rate among inmates28. American prison
reformers embraced conjugal visits for a simple reason: former criminals will be
much more likely to stay out of prison if they have close friends and family. As
ParchmanSuperintendent Bill Harpole explained in 1960, “In Mississippi, where a
prison conviction is automatic grounds for divorce, families of convicts would fall
apart if wives were not permitted the Sunday visit. Allowing prisoners to receive
visitors is not just a nice privilege; it reduces crime rates.29 Sex is a physiological
need that strengthens the bond between couples thus the plea from some prisoners
to be allowed to satisfy their sexual needs in a move to cut down on sodomy in
prisons30 is reasonably justified.

THE ARGUMENTS AGAINST CONJUGAL RIGHTS

An inmate at Luzira prison by the names of Simon Ssegawa while in an interview

by NTV was against the idea of conjugal right saying, “Thewomen they leave in
public cannot be trusted and that they could contract sexually transmitted
diseases from those unfaithful women they leave home”.31Mr. Kenneth Lubogo
MP Bulamogi County said the Members of Parliament who were proposing
conjugal visits needed to address themselves more on the congestion in prison
cells as well as other basic needs that are lacking in detention centers across the
country, “All prisons are heavily congested with many children being detained
with adults in several instances”Lubogo said. Bulamoji County MP Kenneth
Lubogo disagreed with fellow lawmakers accusing them of exaggerating the
pursuit for human rights. “Not all rights are absolute, if we grant conjugal rights to
26
(www.iol.co.ya/news/south-africa/i-just-bribed-warden-for-conjugal-visits-70141)22-november-2002 retrieved
1st february, 2017
27
https://24tanzania.com/tag/patrick-nyakana/ retrieved 27th-march-2017
28
By PetrideMudoolawww.newvision.co.ug/new_vision/news/1318755/conjugal-rights-inmates-byabashaija
retrieved 20th December 2016
29
http://priceonomics.com/the-dark-origins-of-conjugal-visitsretrieved 20th December 2016
30
www.myjoyonline.com/news/2016/September-8th/prisons-service-married-inmates-cannot-have-conjugal-
visits.php Retrieved 18th December 2016
31
On 24th December 2016 at Ntvkussaawa emu

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inmates it may not serve the purpose of the sentence, “he said.32According to the
commissioner of prisons in charge of inspectorate Wycliffe Kururagire, the
Uganda Prison Service can not consider establishing facilities for inmates to enjoy
conjugal rights now when the institution is inundated by overcrowding33

CONCLUSION

The debate on conjugal visits has been around from 1904in ParchmanPenitentiar to
date with arguments in support and against but what can be picked from all this is
that conjugal rights are very important both physically and mentally and it is on
this basis that some countries have granted these visits by legislating on them to
give a legal backing and putting up the necessary facilities in the correction
centers. The problem in Africa and other countries that arenott in support of visits
perceive conjugal rights as an exaggeration of human rights because these
countries still consider corrections as prison and conviction as punishment not a
means to correct mistakes that led to crime, this is evident in the way convictions
are executed in prison with an example of Uganda where inmates are subjected to
cruel, harsh and inhuman treatment and the little funding to these facilities from
the central governments of these countries against conjugal visits34. But for the
sake of controlling the increasing HIV infection in prisons due to Sodomy as an
alternative to conjugal rights, this provides a good enough reason for the need of
conjugal visits in prisons or correction centers around the world.

32
By Moses Kyeyunewww.monitor.co.ug/News/National/MPs-disagree-conjugal--rights--inmates/688334-
3486242-u74nd0z/index,htmlretrieved 28th December 2016
33
By Pascal Kwesiga available at www.newvision.co.ug/new_vision/news/1306620/prisons-space-inmates-enjoy-
conjugal-rightaccessed 16th-12-2016
34
By Moses Kyeyunewww.monitor.co.ug/News/National/MPs-disagree-conjugal--rights--inmates/688334-
3486242-u74nd0z/index,htmlretrieved 28th December 2016

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