Africa’s Rights Commission Targets Aribitrary Arrest and Detention

Arbitrary arrests and the overuse of pretrial detention are global problems. But they are especially acute in Africa, where over one-third of all prisoners are awaiting trial. Arbitrarily arresting and jailing people who should be considered innocent and released pending trial contributes to corruption, exposes detainees to torture and disease, and stunts economic development. So new guidelines from the African Commission meant to improve arrest and detention practices should be greeted warmly—if also warily, since their success will depend on proper implementation by national governments.

Recently, the African Commission on Human and Peoples’ Rights officially launched Guidelines on the Conditions of Arrest, Police Custody and Pretrial Detention in Africa during its 56th ordinary session in Banjul, The Gambia. The guidelines provide specific detail on the measures state parties ought to take to respect, defend, and promote the rights of criminal suspects. Their launch is the culmination of about three years of path-breaking work led by Mr. Med Kaggwa, Commissioner and Special Rapporteur on Prisons and Conditions of Detention, and supported by several partners, including the African Policing Civilian Oversight Forum, the Open Society Justice Initiative, and the United Nations Development Programme.

The Guidelines were developed through a long process of collaboration and consultation with experts and stakeholders from across the continent. The sense of collective ownership built through this process will be critical to the guidelines’ implementation at the national level. As Commissioner Kaggwa said at their launch, the success of the Guidelines will be measured by “the extent to which they are known and implemented by States Parties to the African Charter.” Fortunately, the guidelines establish clear provisions about how implementation may be achieved and who needs to make this happen.

Broadly, there are four categories of institutions that need to work harmoniously to ensure implementation: the African Commission, national governments, national parliaments, and oversight bodies/civil society organizations. The Commission’s role includes promoting the guidelines among state parties, monitoring and reporting on their implementation, and handling cases resulting from non-implementation of the guidelines.

It is the responsibility of national governments and parliaments to transform their domestic legislation, policies, and practices to bring them in line with the guidelines. The Commission might be able to provide technical assistance to help with this process, and domestic civil society and oversight bodies could help with awareness raising, monitoring, and reporting.

The implementation process will be enhanced by national implementation plans which set out goals for individual countries, in accordance with the obligations clearly established by the guidelines. The process of developing national implementation plans should be consultative and inclusive so as to take on board the views of a cross section of stakeholders in the administration of criminal justice.

Like many countries, African nations struggle with the arbitrary use of arrest and pretrial detention and the related problems of corruption, torture, and the significant socioeconomic impact on detainees, their families, communities, and countries. To address this, the guidelines specifically aim to ensure fewer arbitrary arrests and a more rational and proportionate use of pretrial detention.

There is so much to gain from rational and proportionate use of pretrial detention. Just as improper use and abuse negatively impact detainees, families, communities and countries, so do proper use achieve the opposite effect. The launch and anticipated implementation of these guidelines is therefore a call to invest in the future of criminal justice on the continent—a future that is anchored in justice, equity, and fairness.