Envisioning a Better Future for Pretrial Detention in Africa

Nearly 42 percent of Africa’s prison population has not been convicted. According to the current edition of the World Prison Brief, Africa supplies six of the 10 countries around the world where over 70 percent of the prison population is awaiting trial. Indeed, three African countries are in the top four—Libya (89 percent), Democratic Republic of Congo (82 percent) and Liberia (78 percent). Among the 48 countries with 50 percent or more of their prison population awaiting trial, Africa accounts for 20.

These statistics point to systems that do not process criminal suspects as quickly, fairly or effectively as they ought. A recent Open Society Justice Initiative/UNDP study in Ghana, Guinea Conakry, and Sierra Leone found an average pretrial detention period of 20 months. Another audit in Zambia found an average of 18 days in the capital, Lusaka, but 246 days in the country’s second largest city Kabwe, just two hours away by road. Such disparity in the quality of justice within the same country is unacceptable.

Clearly Africa deserves some attention in terms of its approach to pretrial justice. But what could be responsible for this state of affairs?

As the criminal process begins upon arrest, it is a convenient point to pose the question as to why Africa’s criminal justice systems are so dysfunctional. In many African countries, arrest unfortunately precedes investigation. Poor investigative capacity often means that arresting institutions resort to “third-degree” policing to extract evidence with which to prosecute cases. While this practice exposes nearly everyone to potential arrest and torture, it provides policing institutions with easy path to “solving” crimes. But the question remains—at what price?

Successfully challenging “third-degree” policing before a judicial institution depends on the resources available to the challenger. Most individuals in conflict with the law cannot afford the services of lawyers. State and non-state funded legal aid institutions can bridge the gap but they are often inadequate to meet the overwhelming demand for services. Consequently, many people remain behind bars on unsubstantiated complaints or charges.

Those who overcome the challenge of access to legal aid often confront another problem—poor case management: many judicial systems are trapped in an “analogue” mode of conducting judicial business with the attendant consequences—undue delays, missing case files and other impediments to a speedy hearing or trial. Additionally, corruption within the judiciaries and registries mean that some cases are deliberately held up for no cogent reason.

The end result is that too many people are held for too long in arbitrary pretrial detention, with devastating results for them, their families and their communities.

The detention of presumed innocent persons for indeterminate periods often predisposes them to crimes of vengeance against society. Many pretrial detainees are victims of public health crises in the prisons. The possibility of torture and even extrajudicial killings increase with the length of pretrial detention. Evidence suggests that the possibility of conviction also increases as the days run into weeks then months and ultimately years.

In a 2011 report, the Open Society Justice Initiative and UNDP documented the socioeconomic impact of pretrial detention. Loss of income, education, and of future earning potential are costs that states bear when they detain suspects for prolonged periods. Beyond this, families suffer the consequences of every prolonged delay. Sometimes, these consequences are more acute than anyone can imagine. In one of the cases reported in the 2011 report, a male head of a household was arrested and detained in Malawi. This household had the only maize milling machine in the community. The family of the detainee had to sell the machine to raise money to pay bribes, hire a lawyer, and take care of itself. Inevitably, the women in that community had to revert to pounding grain by hand. The detention of one man wrought unnecessary hardship on an entire community.

At this point one might be tempted to ask: Is there a way out of this? What steps, however incremental, could be taken to change this?

The African Commission on Human and Peoples’ Rights appears willing to provide required leadership through developing guidelines on the use and conditions of police custody and pretrial detention. The process began with the approval by the Commission of Resolution 228 adopted during the 52nd Ordinary Session of the Commission in Yamoussoukro, Cote d’ Ivoire in October 2012.

Resolution 228 acknowledges that pretrial detainees in most African countries are subject to arbitrary limitation of their rights and poor health conditions, and that they face the risk of being subjected to torture, inhumane and degrading treatment, or punishment. It also recognizes the myriad problems associated with arrest, detention, and conditions of police custody and pretrial detention, including lack of accountability, poorly paid and under-resourced police, and malfunctioning justice systems. Consequently, it authorizes the Special Rapporteur on Prisons and Conditions of Detention in Africa to develop guidelines and tools to address this.

The Special Rapporteur, supported by a consortium of NGOs as well as inter-governmental institutions, has produced draft guidelines and, has launched a series of sub-regional consultations on the draft. Southern and Eastern Africa have had a chance to review the draft and offer inputs during consultations in Johannesburg, South Africa and Nairobi, Kenya in May and August 2013, respectively.

Governments and NGOs in West and Central Africa are now getting their turn, and the consultations are expected to conclude in North Africa sometime by the end of the year. The Special Rapporteur will then present a final draft to the Commission for further processing.

The consultative process is open to Africans and non-Africans alike. Interested individuals and organizations can access the draft guidelines on the Commission website www.achpr.org and follow the instructions on how to make their voices heard.

The process presents an opportunity to collectively agree guidelines by which policing and pretrial detention will be regulated on the continent. It offers a chance to change the statistics coming out of Africa, and—more significantly—save lives that may be lost to unnecessary, arbitrary, and excessive pretrial detention.