Africa Moves Ahead on Pretrial Detention Guidelines
By Sean Tait & Kersty McCourt
Africa’s prison problems are getting worse. With rapidly growing populations, prison overcrowding has become endemic, while overburdened and underfunded criminal justice systems struggle to cope with the volume of cases. Almost half the prison population consists of people held in pretrial detention, awaiting a trial that may take months or years to materialize.
The African Commission on Human and Peoples’ Rights (ACHPR) is now attempting to address part of the problem, by drawing up guidelines that will hopefully help member countries to reduce arbitrary arrests and the unnecessary and excessive use of pretrial detention for suspects who could safely await trial in their homes and communities.
Over the next months the Commission will hold a series of regional consultations on the draft guidelines on the Use and Conditions of Police Custody and Pretrial Detention in Africa, a process which began this month with an expert meeting in Banjul.
The draft guidelines fill a critical gap. They offer detailed and practical standards to be employed by law enforcement agents from the moment of arrest and throughout the pretrial period when limited scrutiny often allows abuses to go un-checked. They aim to articulate practical standards for acceptable practice across the region; provide a platform to encourage domestic law reform; and give guidance for reporting by state parties, national human rights institutions, civil society organizations, and the commissioners and special rapporteurs of the ACHPR.
The draft traces a number of steps along the criminal justice chain from decisions on arrest to the use and conditions of pretrial detention:
- On arrest they look at the grounds under which an arrest can take place and detail the particulars that should be recorded in an official numbered register, including the date and time of arrest, precise details about the place of custody and the reason for arrest. The expert meeting flagged the need to address the consistent use of vague and outdated offences in many countries across the region, where people can be arrested for loitering, vagrancy or homelessness and elaborated on the rights a person should be informed of on arrest.
- On the decision to remand someone in custody the guidelines note that detention should only be ordered on grounds that are clearly established by law and should be the exception rather than the rule. They specify that alternatives to pretrial detention should be considered and the meeting highlighted that the onus should be on the state to justify continued detention.
- On the safeguards during pretrial detention practical details on the custody register are listed including specifics about any transfer to another place of detention, details of regular reviews and information about medical and legal assistance. Procedures to be employed during interrogation and if any confession is made are also listed.
- The final sections look at conditions of detention and safeguards against torture. The expert meeting referenced standards under the UN Standard Minimum Rules for the Treatment of Prisoners, the Optional Protocol to the Convention against Torture and the Robben Island Guidelines. Throughout the guidelines specifics regarding women, children, persons with disabilities and non-citizens and stateless persons are included.
By tackling the entry point to the criminal justice system, the draft represents a key shift in thinking: recognizing the need to address the drivers of excessive and arbitrary pretrial detention that manifest themselves in overcrowded prisons that are a scourge on the continent.
During the Commission’s meeting in Banjul, Med Kaggwa, its Special Rapporteur on Prisons and Conditions of Detention, highlighted many of the systemic problems across the continent. A representative from the government of Niger spoke of the need to develop a new political dialogue around prison reform. He stated that the overcrowding in prisons is often due to excessive pretrial detention and to repressive laws that need to be reformed. His comments were echoed by the representative from Senegal, who will in June co-host a workshop with PRAWA, a Nigeria-based prision reform group, on prisons and health. The calls for reform come against reports of increasing brutality by state agents and unlawful arrest and detention, as presented for example by Open Society Initiative for Southern Africa during the session.
The draft guidelines are open for review and comment through the ACHPR website www.achpr.org and the Pretrial Justice in Africa site www.ppja.org. The first consultation will take place in Johannesburg in May 2013 hosted by the ACHPR in collaboration with APCOF, the Southern African Lawyers Association and the Global Campaign for Pretrial Justice.