Dar es Salaam — The High Court has ruled that prison officers may observe consultations between a prisoner and a legal adviser for security purposes, but must remain beyond hearing distance, in a decision that requires immediate changes at Ukonga Central Prison and written guidance to prison heads across the country.
In its October 16 judgment, a three-judge bench of Judges Amir Mruma, Angelo Rumisha and Evaristo Longopa found that officers at Ukonga had unlawfully listened to consultations between detained CHADEMA national chairperson Tundu Lissu and two of his legal advisers.
The ruling also found unjustified the refusal to admit a third adviser, Kulwa William Maduhu, on October 28, 2025, solely because his name was absent from a prison visitors’ list.
The case was brought by Maduhu, Nashon Nkungu and Paul Kisabo against the Attorney General, the Commissioner General of Prisons and the Officer-in-Charge of Ukonga Prison. Lissu, whose access to legal advice was at issue, was joined as the fourth respondent, while the Tanganyika Law Society participated as an interested party.
Regulation 13
At the centre of the dispute is Regulation 13 of the Prisons (Prison Management) Regulations, 1968, which requires that every prisoner receive reasonable opportunities to communicate with a legal adviser. It says such a visit must take place “within the sight but out of hearing” of a prison officer.
The court held that the phrase draws a clear legal boundary between security and confidentiality. “Visual supervision is lawful; supervision of the substance of consultations by listening is not,” the judges said in their formal orders.
That does not mean a lawyer must be given unrestricted access to a prison, the court said.
Authorities may verify an advocate’s identity, confirm the prisoner’s choice of adviser, set reasonable visiting arrangements and search for prohibited articles, but the court held that a search cannot, without specific legal authority, become a means to read, copy, retain or disclose privileged legal communications.
The judgment records that Nkungu and Kisabo told the court at least four uniformed officers stayed in the consultation room about one metre from them and Lissu.
The prison authorities accepted that consultations were supervised but maintained that the officers were out of hearing; the court found they had provided no measurements, room plan, acoustic barrier or operational record to show how officers at that proximity could not hear an ordinary conversation.
The bench therefore found, on the balance of probabilities, that officers had been within hearing of the two advisers’ consultations. It ruled that this breached Regulation 13, the constitutional protection of private communications under Article 16(1), Lissu’s ability to prepare for a fair hearing under Article 13(6)(a), and the advocates’ right to carry out their professional work under Article 22(1).
The judgment defined “out of hearing” as a functional, rather than a fixed-distance, standard. The question, it said, is whether an officer can hear the substance of a conversation conducted at an ordinary volume, taking account of the size and acoustics of the room, partitions, the positions and number of officers, and how the parties speak.
The court also accepted that Maduhu had been instructed to provide advice and legal research for Lissu, notwithstanding Lissu’s decision to conduct his own defence in the treason trial.
It held that a written fee agreement was not a prerequisite for an advocate to consult a client, and that a visitors’ list could assist verification but was not an exclusive legal condition where the professional relationship had otherwise been established.
National directive deadline
The judges ordered Ukonga to make arrangements immediately for legal consultations with Lissu to take place under visual supervision without officers hearing their substance.
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Within 60 days of service of the judgment, the Commissioner General of Prisons must issue or circulate written directions to every officer-in-charge restating Regulation 13 and requiring practical arrangements for confidential legal consultations, subject to lawful and proportionate security controls.
The order is national in administrative reach, but its factual findings were carefully limited. The court did not find, for instance, that every disputed visit had occurred, that CCTV had recorded conversations, or that the courts hearing Lissu’s criminal cases had themselves denied him a fair hearing.
It also declined to make separate declarations on alleged discrimination based on albinism, the treatment of all private advocates compared with State advocates, degrading treatment, political visits or a directly enforceable breach of the United Nations Nelson Mandela Rules.
The court refused the applicants’ request for indefinite supervision and six-monthly compliance reports, while leaving the parties free to seek further relief on evidence of non-compliance; each side was ordered to bear its own costs.
The case had brought into court competing accounts of conditions at Ukonga. During the July hearing, the lawyers said officers listened to their consultations and that documents were scrutinised, while the prison officer-in-charge disputed key allegations and said legal consultations were conducted under lawful supervision.
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The ruling aligns the domestic regulation with Rule 61 of the Nelson Mandela Rules, which says prisoners should be able to consult legal advisers without delay, interception or censorship and in full confidentiality, while permitting meetings to remain within the sight but not the hearing of prison staff.
The judges treated the United Nations standard as support for their interpretation, rather than as a free-standing rule directly enforceable in domestic law.
Compliance test vowed
In a post-judgment press conference, Maduhu said he intended to visit Ukonga to see Lissu and test the order in practice. “I will go to Ukonga to see my client and to see whether this country follows the rule of law,” he said.
Maduhu said a fresh refusal of access would lead him to seek judicial review and consider a case against officers in their individual capacities.
The decision does not decide Lissu’s separate treason prosecution or order his release. He remains on remand at Ukonga, and the High Court is scheduled to deliver judgment in that case on November 6, 2026.
Its immediate consequence is narrower but practical: the prison service must apply the existing rule distinguishing security observation from access to a lawyer’s confidential advice.
The longer test, however, will be whether the written directions required by the court translate that distinction into day-to-day practice at Ukonga and other prisons.
