A Move Towards New Standards for Pretrial Justice in Africa

In Burkina Faso, they call them the "invisible prisoners": pretrial detainees who languish in prison for years without trial, because their case documents were lost when they were held for months in police custody. According to Prosper Thiombiano, of the Mouvement Burkinabè des Droits de l'Homme et des Peuples (MBDHP), the only hope for some of these prisoners is that some day someone will be alerted to their plight.  

Prosper highlighted the plight of Burkina Faso's forgotten prisoners on the sidelines of the recent  52^nd session of the African Commission on Human and Peoples’ Rights (ACHPR) in Yamoussoukro, capital of Ivory Coast. 

The ACHPR session marked a significant moment for the campaign to address such dysfunctional and abusive pretrial systems, as the commissioners voted to develop new guidelines on police custody and pretrial detention across Africa.

The proposed guidelines would provide detailed and practical information about rights and procedures on arrest and at the pretrial stage; elaborate on basic constitutional principles; and provide a reference point for monitoring and reporting.

Prosper's presentation was part of a drive to muster support for draft guidelines that emerged from a process led by the African Policing Civil Oversight Forum (APCOF) in collaboration with the Global Campaign for Pretrial Justice. To inform the process APCOF studied the drivers of excessive and arbitrary arrest and collaborated with organizations from across the region who documented the challenges in their own countries.

The results presented in Yamoussoukro, highlighted not only the significant legal gaps that exist in some countries, but even greater problems with ensuring that the proper treatment of detainees laid out in the law is realized in practice.

Timothy Mtambo from the Centre for Human Rights and Rehabilitation in Malawi recounted a personal experience of arrest as a student leader, recognizing that unlike the majority of Malawians he had the knowledge and means to bring attention to his case and secure his release.

Recent studies have shown that many people are arrested for vague and outdated offences. For example in Zambia it was found that offences such as idleness, loitering, or failure to obey constitute 21 percent of cases in police custody. This raises serious questions about the conditions under which arrests are justifiable, and the need for greater attention to this matter by the police.

Ali Agab from the African Center for Justice and Peace Studies spoke about provisions in the criminal procedure code in the Sudan that, in effect, allow for unlimited police and pretrial detention. Detention periods can be continuously renewed, and in the final instance, can be renewed indefinitely. In practice there is also use of a so-called ‘revolving door’ where people set free by the courts are re-arrested at the court door and the whole process of detention starts again.

The proposed guidelines aim to address these and other issues, and to provide very practical guidance on issues such as the use  of police registers, requirements for identification by law enforcement agents and compliance with regular review processes. They aim to encourage more detailed state reporting and enable the ACHPR to give greater scrutiny to this aspect of human rights protection.

A second event in Yamoussoukro looked at previous experiences of how soft law standards have been developed and implemented. Frans Viljoen, Lola Shyllon and Debra Long from the Universities of Pretoria and Bristol reflected on the past 25 years of the African Commission on Human and Peoples’ Rights and drew experiences from the Robben Island Guidelines on the Prohibition and Prevention of Torture and the recent process to develop a model law on access to information.

Building on the recommendations from the side events and advice from commissioners, the resolution adopted in Yamoussoukro appoints Commissioner Med Kaggwa, the Special Rapporteur on Prisons and Conditions of Detention, to lead the process. Some of the next steps include an open process for written submissions, publication of the draft on the ACHPR website and the sites of APCOF and Promoting Pretrial Justice in Africa and a regional consultation. The intention would then be to submit the guidelines for adoption at the 54^th session of the ACHPR in November 2013.