Three activists have filed a case seeking to push for prisoners to have conjugal visits as a constitutional right.

Led by Peter Agoro, the activists moved to court under a certificate of urgency, arguing that prisoners in Kenya have a constitutional right to conjugal visits.

They claim that the right has been perpetually and ceaselessly violated, infringed upon, denied, and threatened by the state. The petitioners assert that there is no valid legal or constitutional justification for denying prisoners conjugal rights.

“The unconstitutional and illegal denial of conjugal rights to prisoners by the first and second respondents has led to severe emotional and psychological consequences for both the prisoners and their family members,” they argue.

Family right

The activists want a declaration that the Ministry of Interior and Kenya Prisons Service have violated, infringed, denied, and threatened Article 45 of the Constitution on the right to family by not facilitating conjugal visitation rights to inmates.

They are also seeking for declaration that the failure by the respondents in the suit to recognise and facilitate conjugal visitation rights for prisoners is inconsistent with and violates various provisions of the Constitution.

“An order of mandamus compelling the first and second Respondents to develop and implement a comprehensive policy and regulatory framework for conjugal visitation within twelve months,” the prayers in the court papers read.

They assert that prisoners in Kenya have the constitutional right to conjugal rights in accordance with Article 45 of the Constitution, which guarantees the right to family, as well as the right to dignity and equality.

“There is no valid legal or constitutional justification for the denial of conjugal rights to prisoners by the first and second Respondents” they argue.

They claim right to family life includes the right to maintain intimate relationships, which is integral to preserving the integrity of the family unit.

Personal dignity

This outright discrimination violates Article 27 of the Constitution, they argue, which mandates equality before the law and equal protection of the law.

Under international human rights law, which Kenya is a signatory and party to, prisoners should not be deprived of the opportunity to maintain conjugal relationships, especially where this is vital for the preservation of family ties and personal dignity, they add.

The petitioners say such harm to personal wellbeing cannot be remedied after prolonged periods of deprivation, thus necessitating urgent intervention to avoid further suffering.

“The matter requires immediate attention to prevent further harm and to uphold the constitutional principles of family, dignity, and equality”, the petition argues, adding that the Kenyan judiciary has historically recognised that violations of fundamental rights, particularly where there is an ongoing or continuous infringement, necessitate urgent relief.

High Court Judge Chacha Mwita has directed the State to file its response in the case. The judge further ordered that the matter be mentioned on April 2 for further directions.