African Commission Sets out Standards on Pretrial Detention

Almost thirty years ago, the African Commission on Human and Peoples’ Rights was given the power “to formulate and lay down principles and rules aimed at solving legal problems relating to human and peoples’ rights and fundamental freedoms, upon which African governments may base their legislation.”

This month, the Commission took an important step towards addressing one of the most fundamental legal problems facing many in Africa: excessive and arbitrary pretrial detention. Approved at its 55th ordinary session in Luanda, Angola, the new “Guidelines on Conditions of Police Custody and Pretrial Detention in Africa” take aim at a scourge whose impacts reach well beyond the individuals directly affected.

Africa has a dismal record on pretrial detention, with the Commission acknowledging that the justice systems in several states are characterized by “arbitrary, excessive, and at times abusive recourse to police custody and pretrial detention.”

According to the International Centre for Prison Studies, on average 41 percent of Africa’s prison population is awaiting trial, the worst of all continents, compared with Asia (38 percent), the Americas (27.8 percent), Oceania (24.3 percent) and Europe (20.3 percent). Africa produces half of the world’s top 15 countries where this average hits at least 68 percent. According to the World Prisons Brief, this includes Libya, Liberia, Democratic Republic of Congo, Congo Brazzaville, Benin Republic, Central Africa Republic, Cameroon, and Nigeria.

The Commission also noted that pretrial detention “disproportionately impacts the vulnerable and marginalized who are unlikely to have the means to afford legal representation.” According to a study cited in a recent report by the Open Society Justice Initiative, those entering pretrial detention come from “the poorest and most marginalized echelons of society, who are least equipped to deal with the criminal justice process and the experiences of detention.”

The poor find themselves in double jeopardy; first, they are more likely to end up in pretrial detention, because they cannot afford a lawyer who might get them out. Secondly, when they do eventually appear at trial, they are more likely to end up convicted; studies have shown that being at liberty before a trial appearance increased the chances of acquittal.

Extended pretrial detention has grim results. Detainees themselves lose their jobs; they face the increased risk of disease, as well as the threat of torture and even extrajudicial execution. Their families and communities also suffer. Consider the example of the male head of a household in rural Malawi; to obtain cash for legal fees, bail and bribes, his family had to sell its maize-milling machine (a steady source of income for the family and the only one of its type in the community). As a result, the family lost its source of income; the entire community was forced to resort to pounding maize by hand.

The new guidelines are the product of several years of hard work, which developed from discussions at a forum in Dakar, Senegal in 2010, through endorsement of the project by the Commission itself in 2012, to a series of four regional consultations, involving both governments and civil society groups in Johannesburg, Nairobi, Dakar, and Tunis. This extensive process benefited enormously form the support and commitment of the African commission’s special rapporteurs on prisons and places of detention, Dupe Atoki (immediate past chairwoman of the Commission), and her successor Med Kaggwa.

With the adoption of the guidelines comes the challenge of ensuring their effective implementation by governments that have signed up the vision of a better world that the African Charter represents. By doing so they will not only fulfill the obligations they owe under the Charter, but promote real justice for their citizens.