By Francis Enobore Osagiede, Mni Controller Of Corrections (Rtd)

Being a Paper Presented at the 3-Day Regional Conference of Sub-Saharan African Criminal Justice Stakeholders at the National Judicial Institute, Mohammed Bello Centre, Airport Road, Jabi, Abuja (1- 4 NOVEMBER, 2022)

EFFECTIVE MECHANISMS FOR THE MANAGEMENT OF PRE-TRIAL DETENTION IN SUB-SAHARAN AFRICA

1.0 Introduction

The detention of suspects to await trial or pending the final determination of their case is a system widely used in many jurisdictions across the world.  During the course of an average year, an estimated 15 million persons are remanded to pretrial detention[1]. In South Asia, Central and West Africa, and parts of Latin America the majority of prisoners are pretrial detainees [2].

Pre-trial detention is not expected to vitiate the right of presumption of innocence of an accused. Hence, its application is considered legitimate when there is reasonable ground to suspect that a person, having committed an offence, may interfere with the course of justice during pending procedures or commit another crime.

However, judicial systems in Africa resort to arbitrary and excessive use of pre-trial detention to address law breaking, sometimes on flimsy infractions. Given that a third of prisoners globally are awaiting trial, Africa however, has about 40 percent with Central and West Africa sub-regions accounting for 50 percent of pre-trial detainees. Also, of the world’s ten prison systems with the highest proportion of pre-trial detainees, half are in Africa[3]. The African Commission on Human and Peoples’ Rights observed that the justice systems in several African states are characterized by arbitrary, excessive and at times abusive recourse to police custody and pre-trial detention. Similarly, the UNDP[4] noted that almost half Africa’s prison population consist of people held in pre-trial detention to await trial that may take months or years to materialize. More disturbing is the fact that mechanisms to regulate the use of pre-trial detention and expeditious trial have not effectively address the problem. Consequently, accused persons sometimes, spend time in custody more than they would have, if found guilty of the offence for which they are charged. legal

UNICEF, 1998; Rodley, 2000; Jones, 2003; Nowak, 2007 all noted that many pre-trial detainees are treated more harshly than convicted prisoners and many are regularly held in police cells, sometimes for extended periods of time, where conditions can be particularly crowded[5].

The practice, especially in Africa, leads to overcrowding which precipitates security issues, health challenges, human rights abuse, pressure on infrastructure and a host of others.

Recognizing that the character of pre-trial detention differs among states, this paper thus, draws inferences from 4 African countries, Nigeria, Kenya, the Democratic Republic of Congo and South Africa, for comparative analysis.

  • Pre-trial detention in Nigeria

In Nigeria, there is a judicial practice known as ‘holden charge.’ This is a situation where a case is first presented at a lower court that has no jurisdiction over the matter. The Magistrate simply remands the suspect, especially when charged for a capital offence. The accused remains in prison custody to await ‘advise’ from the Director of Public Prosecution (DPP) whether there is sufficient evidence to press charges which will be heard in a higher court or the inmate is to be set free. This may take years to come or completely abandoned because most of the accused are indigent and cannot afford credible legal representation to demand expeditious trial. Since such crimes are regarded as ‘ordinarily non-bailable offences’, bail is either not granted or in rare cases, made so stringent that most accused are not able to meet the conditions. Partners Global[6] noted that the situation of pre-trial detainees is often dire with the most marginalized rarely able to pay for the 3 Bs, Bribe, Bail and the Barrister thus, people are left to languish in prison for extended periods.

Inadequate logistics to take awaiting trial persons to court as and when due, also contributes to the ugly scenario. The Nigerian Prisons Service in 2017 had a total inmate population of 70,212 out of which 47,044 representing 67% were Awaiting Trial Persons (ATPs) who must be taken to court as scheduled, for trial. Unfortunately, not more than 25% of court duty vehicles then, were serviceable[7]. Therefore, many inmates continued to miss court appointments resulting to avoidable elongation of their stay in pre-trial detention. The Open Society Justice Initiative in 2013, stated that the Nigerian Prisons was overcrowded and pre-trial detention remains a severe problem[8]. According to the report, 70 percent of detainees are in pre-trial custody and one fifth of them have been held for over a year and that it was not uncommon for those accused of capital offences to spend over 10 years in pre-trial detention. In 2017 Nigeria had 47,044 pre-trial detainees. Out of this number, 212 had been awaiting trial for over 11 years; 2,881 for between 6 to 10 years; 32, 034 for between 1 – 5 years; and 11, 917 for less than one year[9].

Unfortunately, no authority has superintending powers on all the actors in the justice dispensation chain. Thus, the arresting authorities, including the Police; the Judiciary and the Prison can each afford to advance excuses for failure since they exist under different supervising ministries.

  • Challenges of pre-trial detention in Nigeria

Pre-trial detention and its arbitrary use constitute a huge challenge to justice dispensation in Nigeria and notable among them are;

  1. Overcrowding

The combined capacity of the 244 custodial centres in Nigeria is about 58,270 inmates but as at September, 2022, holds about 75,635 inmates. Out of this number, only 30 per cent have been tried and convicted, while a total of 52,745 constituting 70 per cent are awaiting trial on remand in prison custody[10]. The situation has health implications as several evidences have revealed that there have been reported cases of outbreak of dangerous diseases in some Nigerian prisons which has led to poor health and untimely death of many inmates[11]. Unfortunately, this challenge has been longstanding. Ajayi[12] reported that between 1997 and 2005 the number of people in pre-trial detention had been more than half of the total number of people imprisoned in Nigeria. Overcrowding also results in proselytization of crimes by hardened criminals who cannot be effectively separated from minor offenders or suspects due to inadequate space. This, according to Ugwuoke[13], exposes inmates to negative influences and socialization such as drug abuse, molestation and other vices thereby creating an impossible environment for their effective rehabilitation, reformation and reintegration. Similarly, Lowenkamp, VanNostrand, and Holsinger[14] observed that in jurisdictions where pre-trial detainees are not confined separately from convicts, such mixing heightens the risk of abuse and can have a criminogenic effect. There is also evidence to suggest that pre-trial detention – especially of longer duration – is positively associated with the likelihood that pre-trial detainees will subsequently (re)offend. Furthermore, overcrowding mounts severe pressure on available prison facilities and services such as potable water, hygiene, sewage management among others. It is pertinent to note that over 100 out of the 244 custodial centres in the country were inherited from the colonial administrators therefore, the structural integrity of the facilities can hardly cope with the present influx and sophistication of crime.

  1. Human Rights Abuse

The long detention of suspects to await trial amounts to Human Rights violation because their right to fair and expeditious hearing is abused. Also, overcrowding creates difficulties in carrying out effective supervision in terms of ensuring that inmates are not bullied either by their fellow inmates or staff. Pre-trial detainees are most likely to lose touch with their relations, contract diseases, risk being abandoned, suffer violence and abuse from fellow inmates and staff, and may die in incarceration without consequences[15]. Similarly, Agomoh[16] observed that pre-trial detention has resulted in suspects being incarcerated almost interminably, sometimes for minor infractions and in unbefitting conditions that compromise their dignity, respect and self-worth.

  • Security

Keeping suspects in prison to await trial for excessively long periods has continued to be linked to restiveness and riots among the inmates, including armed attacks on prison/correctional facilities. Many pre-trial detainees in Nigeria have spent over 5 years with no hope for fair and expeditious trial hence, they often spearhead most jailbreaks. The mastermind of the August 8, 2016 riot in Abakaliki Custodial Centre in Ebonyi State was an inmate who had spent over 9 years awaiting trial[17].

The country has had about 15 jailbreaks between September 2014 to July 2022 where not fewer than 7,000 inmates have been illegally released, most of them hardened criminals, including boko haram[18] elements and other violent extremists. Findings revealed that the attackers after gaining access to the prison, usually break awaiting trial cells to free inmates while leaving convict cells intact hence over 85 percent of the escapees are awaiting trial inmates[19].

  • Addressing pre-trial detention in Nigeria

Several concerns have been raised in different quarters on the dire need to address the unacceptable conditions of pre-trial detainees in Nigeria. Consequently, a number of responses have been triggered from both state and non-state actors.

  1. Infrastructural intervention

As a response to the unabating influx of persons, mostly suspects, into custodial facilities the authorities in 2017, conceptualized a 3,000-capacity custodial centre in each of the six (6) geopolitical zones in the country[20]. The complex is designed to accommodate court-rooms to eliminate the challenges of logistics that sometimes impedes speedy trial of cases.

  1. Case Tracking system

The Nigerian Judicial Institute in 2020, launched the Case Management Information System, a piece of computer software that allows the effective and efficient management of all court activities, cases, case files and proceedings, the judge responsible, the lawyers, the plaintiff and defendant, nature of case or crime etc[21]. This has resulted in improved justice delivery in courts through the development of online courts and digital processes thereby ensuring that justice is delivered expeditiously and under the most comfortable conditions[22]. Hitherto, the phenomenon of ‘missing’ and ‘untraceable’ case files with vital documents such as statements of witnesses/accused persons, police investigation reports etc. has slowed down trial of criminal cases. According to Ladapo[23], in 2006 about 3.7% of the 25,000 pre-trial detainees in Nigeria had their prosecutions stalled because of missing and untraceable case files.

However, only few courts have adopted the Case management Information System therefore, more advocacy is needed to enhance widespread application.

  • Virtual Court hearing system

The digital court room is one of the nine pilot projects initiated by the National Judicial Council (NJC) in 2020 to move from paper-based to electronic-based system, which will further standardize court proceedings and speed up the processes and procedure of prosecution. The idea was propelled by the lockdown during the COVID-19 pandemic which led to difficulty in accessing justice as well as delay in the administration of justice and non-compliance with case timelines. The federal government of Nigeria has since 2020 been encouraging digital courts rooms for effective justice delivery[24]. This system captures all activities in the courtroom with the capacity for playback and direct reference to being recorded by court officials, while it is protected by secured security system to avoid unwarranted access.

 

  1. Jail delivery

One of the mechanisms for effective management of pre-trial detention in Nigeria is jail delivery. It is cost effective, enhances agency collaboration, and engenders public trust in the criminal justice system[25]. Statutorily, all Chief Judges are to pay regular visits to prison to review cases of those awaiting trial. In such exercises, most prisoners whose cases are reviewed could be discharged, acquitted or released on bail. The essence of jail delivery exercise is not actually to set offenders free, but to decongest the prisons by ensuring that those who do not deserve to be in custody are set free. Jail delivery serves an oversight function and help to monitor the activities of the courts, the police and the prosecution department in respect of specific cases. It also serves more financial, administrative, moral and judicial purpose to decongest the prison and ensure innocent people do not suffer[26].

In most states, the exercise has been structured with particular attention being paid to what needs to be done prior to, during, and after the jail delivery exercise, including the need for post-release training and support by state governments and non-governmental organisations to ensure better reintegration[27].

  1. Presidential intervention

As a strategy to address pre-trial detention phenomenon, the federal government of Nigeria in October 2017 set up a Presidential Committee on Prisons Reforms and Decongestion (PCPRD)[28]. It is headed by a respected retired jurist with membership drawn from the Judiciary, Corrections, Police and Civil Society Organizations. The Committee periodically visits custodial centres to review cases and where sufficient grounds exist to summarily discharge suspects or relax bail conditions or pay fines for minor offenders, actions are taken immediately. As at 2019, the committee had facilitated the release of more than 5,000 inmates out of which over 70 percent are pre-trial detainees[29].

  1. Pro bono Services

Pro bono legal services are encouraged in Nigeria. The Legal Aid Council of Nigeria (LACoN) has the responsibility to spearhead this service for indigent inmates, where private legal practitioners are encouraged to offer their services free of charge but its effect in addressing the plight of pre-trial detainees is still marginal. While LACoN complains of underfunding, less than 15% of private lawyers provide quality pro bono legal services[30]. Unini[31] attributes this to lack of statutory institutional framework that makes it mandatory for all lawyers to set aside a number of hours each year for pro bono cases.

Perhaps as a response, the professional body of all lawyers in Nigeria, the Nigerian Bar Association (NBA) currently provides broad based support for access to justice. According to UNODC (2019), this support has been extremely effective, and the decision of the NBA to make the offering of pro-bono services a requirement for attaining the rank of Senior Advocate of Nigeria (SAN) has generally enhanced the quality of the free legal services provided.

  • Legislative intervention

There have been some legislative interventions through the enactment of the Administration of Criminal Justice Act (ACJA, 2015). The Act provides some practical solutions to the problem of pre-trial detention through promotion of efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interest of the suspects and victims in Nigeria[32].

For instance, under Section 28 of the ACJA, an Officer in-charge of a police station or any other detention facility is mandated to report to the nearest Magistrate, every last working day of the month, the cases of all suspects arrested without warrant, whether or not the suspects have been admitted to bail. The Magistrate shall then forward the report to the Criminal Justice Monitoring Committee for analysis, report and advice to the Attorney General of the Federation with respect to the trend of arrests, bail and other related concerns[33].

Section 111 mandates the Controller General of Prisons to make returns every 90 days to the Chief Justice of Nigeria as well as the Attorney General of the Federation, of all pre-trial detainees held in prisons for a period beyond 180 days from the date of arraignment. Upon receipt of such returns, the recipient shall take such steps as are necessary to address the issues[34].

Section 16 also provides for women to stand sureties for suspects. This has helped to expand the space for bail to be secured by suspects thereby decongesting the prisons. Section 306 abolishes stay of proceedings and automatically checks the misuse of interlocutory application to scuttle criminal proceedings. Similarly, Sec. 296 (1) – (3) stipulate a period of 14 days detention for a suspect on remand to be heard. The prosecuting agency enjoys another 14 days to keep the suspect in custody if a reasonable course is presented to the magistrate. At the expiration of the second tranche of 14 days, the magistrate may then release the accused on bail. Also, the Nigerian Correctional Service Act 2019 now has provisions for appropriate responses to pre-trial detainees and expeditious trial of cases. Sec. 12 (4) – (8) provide for rejection of additional inmate into a facility that has reached its capacity[35].

  • Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) is another mechanism employed in Nigeria to minimize pre-trial detention. It involves using different ways such as mediation, arbitration, and neutral evaluation to resolve disputes without going through formal litigation processes. Law schools in Nigeria are now being encouraged to run training in ADR before graduating students.

Furthermore, many states are putting in place the multi-door court house which is a court-annexed programme that offers a variety of alternative dispute resolution processes. According to the UNODC[36], the multi-door is a platform for the various options of resolving conflicts such as case evaluation, mediation, arbitration, conciliation and complex case management.

3.1 Pretrial detention in Kenya

Kenya is regarded as the economic and transport hub of East Africa with pre-trial detainees constituting 42.7% of the total number of inmates in its prisons[37]. In an online article, Strohm[38] (2018) reports that ‘the average length of stay in pre-trial detention is one year while some detainees have waited up to eight years without a hearing. Also, it is estimated that about 90% of people in pre-trial detention are there because they were granted bail but could not afford to meet the conditions. United Nations[39] reported that prison overcrowding in Kenya was at 195 per cent overall, while it is worse in some facilities with over 400 per cent, which adversely threatens the health of inmates. Pre-trial detainees are kept in worse conditions than convicts; and are not allowed to participate in reformatory programmes that facilitate recovery and reentry into the community[40].

In Kenya, pre-trial detention is seen as a temporary circumstance with the ultimate goal being the dismissal of charges, acquittal or conviction after trial. The law prohibits arrest or detention without a court order unless there are reasonable grounds for believing a suspect has committed or is about to commit a criminal offense. However, it is reported that police arrest and detain persons arbitrarily or accuse them of a more severe than they had committed to mask underlying interest[41]. The majority of pre-trial detainees in Kenya are young, come from poor families, and have little or no education. A good number of them are persons who have been charged with petty offences such as creating a disturbance, loitering, brewing illicit liquor, touting, minor traffic offences, simple thefts such as shoplifting, being drunk and disorderly and trespass[42].

Another report by Ocharo criticized the arbitrary application of pre-trial detention and stated that it undermines the principle of a fair trial and the presumption of innocence until proven guilty[43]. It further stated that pre-trial detention has become a chronic problem, noting that suspects spend an average of four years in custody before their cases are scheduled for hearing. He attributed the problem to trial delay which is considered a bane of the Kenyan justice system.

The 2020 Country Reports on Human Rights Practices in Kenya stated that conditions in prisons and other detention centres were harsh due to overcrowding with acute food and water shortages, as well as inadequate sanitary conditions and medical care. It is reported that approximately 48,000 persons are held in prisons with a designated capacity of 26,837[44].

3.2 Challenges of Pre-trail Detention in Kenya

One of the challenges of pre-trial detention in Kenya is that state agencies including the judiciary and the prosecution agencies are underfunded because of political and national agenda thereby creating a serious clog in the criminal justice system[45]. In the 2020 Human Rights Report on Kenya, it was observed that poor casework, incompetence, and corruption undermined successful prosecutions thereby compounding the conditions of pre-trial detainees. It stated further that the police frequently failed to enter detainees into custody records, making it difficult to locate them.

Another challenge observed is the lack of coordination in providing detainees in court. As far as the escort of detainees to and from prison to court is concerned, it is the responsibility of the National Police Service (NPS), while the Kenya Prisons Service (KPS) is responsible for transporting convicted persons. In practice, however, the KPS transports pre-trial detainees in some cases, while in other cases the NPS collects pre-trial detainees from prison precincts and transports them to court. This arrangement is fraught with considerable bulk passing. It has been reported that the prison service sometimes delays or fails to transport pr-etrial detainees due to lack of suitable vehicles or petrol. As a result, pre-trial detainees miss their court dates thus, prolonging the duration of their detention[46].

Furthermore, Kenyan Law Reform Commission[47] reported that there is little understanding of bail and bond amongst the public. Many Kenyans have no knowledge of bail or bond, while those who claim to know think it is money paid to the police or the court for a pre-trial detainee to be released from custody. They therefore see granting of bail or bond to persons accused of serious crimes as a great injustice. This requires deliberate public awareness to enhance acceptability by the public and reduce pre-trial detention.

3.3 Efforts at addressing pre-trial detention in Kenya

The government of Kenya has made several conscious efforts towards addressing pre-trial detention. One of such is the noticeable decongestion programme which entails releasing petty offenders and encouraging the judiciary to increase the use of a community service programme in its sentencing. COVID-19 pandemic brought in some innovations to fast-track trial of cases through virtual court sessions. In many courts, computers were provided with internet connectivity to enable pre-trial detainees connect with court proceedings virtually. Legal Aid services are presently encouraged to facilitate access to justice, with the goal of providing pro bono services for indigent defendants who cannot afford legal representation. Also, several new prisons are being constructed since 2012, while six new female prisons were constructed in 2018 to ease congestion in female facilities[48]. This effort is geared towards increasing the capacity of the prison facilities to manage inmates more humanely.

The government is also exploring the alternative dispute resolution mechanism to tackle the phenomenon of pre-trial detention. It is reported that alternative dispute resolution at police stations resolved a significant number of crimes, but authorities did not report or record them. Hence, there is need for more efforts in this regard by government and other stakeholders.

4.1 Pre-trial Detention in the Democratic Republic of Congo (DRC)

The Democratic Republic of the Congo operates a form of centralized constitutional republic. Due to pockets of violent conflicts between Government and non-state armed actors. As a result, several arrests are made, sometimes indiscriminately and the prisoners kept on awaiting trial[49].

According to Karugonjo-Segawa, most pre-trial detainees are victims of arbitrary arrests and do not enjoy the rights that accrue to them during their arrest and detention[50]. Sometimes this is based on inadequate police training and capacity for criminal investigations, discrimination, political interference and corruption, among others. Detainees who are poor and cannot afford legal services often remain in custody for a longer time.

Reports have it that the phenomenon of excessive and prolonged pre-trial detention, ranging from months to years, constitute a major challenge in the justice sector and it is estimated that approximately 75 percent of the population in detention centres are pre-trial detainees.

The Immigration and Refugee Board of Canada noted that pre-trial detainees are also found in temporary detention centres known as cachots’ serving as lock-ups for suspects taken in by police and for preventive detention of individuals awaiting trial by the public prosecutor’s offices[51].

According to the World Prison Brief, about three quarters to four-fifths of the prison population in the DRC are in pre-trial detention and this is attributed to factors such as the inefficiency of the judicial system, administrative bottlenecks, high rate of graft, poor funding and shortage of personnel[52]. These statistics are unlikely to include detainees in police cells and other quasi detention facilities in the country and may therefore, be significantly higher.

  • Challenges of Pre-trial detention in the DRC
  1. Human Rights violation

According to the Human Rights Watch, inmates in the DRC are treated in a manner that negates the presumption of innocence and respect of the inherent dignity of the person[53]. Apart from being overworked in prison farms, they suffer torture and other forms of degrading treatments. Although torture and ill treatments are prohibited, they are rampant in places of detention, especially those housing pre-trial detainees as some of them have been reported killed as a result of being subjected to torture, cruel, inhuman and degrading treatment[54]. Inter Press Service reported that in the DRC, the temporary detention centres serve as public torture institutions[55]. Human Rights Commission report[56] noted that pre-trial detainees are not protected from torture and ill treatment by their fellow inmates. This seems to be the case in almost all parts of the country with several reports of pre-trial detainees who were tortured in the temporary detention centres[57]. The situation is often compounded by stringent bail conditions.

The situation has hardly abated. The Human Rights report[58] states ‘the prison conditions in most prisons throughout the country worsened in 2021, aggravating the already harsh and life-threatening conditions due to food shortages, gross overcrowding, and inadequate sanitary conditions and medical care. Even harsher conditions prevailed in small detention centers where detainees spend lengthy pre-trial periods without access to family or legal counsel.’ The report further noted that ‘while the law provides for a bail system, it generally did not function. Pre-trial detainees who were unable to pay were rarely able to access legal counsel and services, which led to the authorities holding them incommunicado, including in unofficial detention centers, who often refused to acknowledge these detentions.’

  1. Institutional capacity

Pre-trial detention in the DRC is basically faced with weak criminal justice system characterized by inadequate capacity, poor funding and lack of independence to function optimally[59]. Trial processes especially arraigning suspects in court and ensuring the enforcement of court orders is difficult as legal protection framework is practically non-existent. Most courts are overwhelmed with cases of about 400 magistrates including judges and prosecutors assigned to several military courts. For civil courts, out of 660 scheduled to be disseminated throughout the country, one third has yet to be set up. Moreover, this anticipated number remains insufficient to cover the needs of a country with an estimated population of 75 million in 2014, and a territory of 2.3 million square meters, including conflict affected areas which have very limited budgetary resources[60]. This challenge is further compounded by shortage of logistics and security threats.

Consequently, millions of Congolese have no access to justice. Most times, defendants are transferred to urban centres with prosecution offices and courts which leaves victims and witnesses choosing between finding resources to travel to the location where the accused is or abandoning their quest for justice[61].

  • Pressure on infrastructure

Another major challenge is the stress on the physical structure of prisons in the country. Pre-trial detention is known to increase prison population, which ultimately exerts pressure on the infrastructure. Karugonjo-Segawa[62] noted that prison structures in DRC are weak, poorly ventilated, overcrowded and lack basic amenities such as potable water, beddings among others for minimal comfort. The harsh conditions trigger frequent agitations and escapes, which constitute a serious security threat for the victims, witnesses and human rights defenders involved in investigations, including judges and judicial personnel. The UNJHRO60 has documented the escape of 2,604 people from detention centres in 2014 and 2015 in DRC.

  • Addressing Pre-trial Detention in the DRC
  1. International collaboration

Initiatives and public advocacy conducted by government authorities in the DRC, with the support of international communities, have resulted in speeding up conviction rates and reducing pre-trial detention in the country. This include setting up institutions to fast-track the dispensation of justice. In 2015 for instance, the Ministry of Justice and Human Rights of the Democratic Republic of Congo with the High Judicial Council launched a national discourse known as Etats généraux de la justice[63]. The aim was to identify weaknesses of the judicial system and establish a roadmap to strengthen justice and develop a national reform programme. This initiative, which brought together participants of the civil and military justice sector in the country, was able to draw a precise inventory of situations and identify challenges and obstacles in pre-trial detention in the country.

  1. Legislative/policy intervention

Some inherent obstacles observed in the judicial and legislative frameworks are being addressed by the Ministry of Justice and Human Rights through drafting legislative instrument to strengthen the institution for better accountability and dispensation of justice.

Furthermore, the desire to implement the Organic Law of 2013 which provides a context for the creation, organization and functioning of the National Commission on Human Rights (NCDH) constitutes another strong signal of the government to intervene in pre-trial detention in the country. The commission is an independent, pluralist and apolitical tool responsible for ensuring compliance with human rights and the different mechanisms that promote and protect pre-trial detainees. The Commission is vested with a controlling power on the actions and omissions of the State and other actors that could constitute human rights violations of pre-trial detainees. The government is ensuring that the Commission gets sufficient resources necessary to exercise its powers independently and impartially in the interest of pre-trial detainees.

5.1 Pre-trial Detention in South Africa

With a prison population of 144,938 as at 1st June, 2022, the pre-trial detainee population in South Africa is approximately 32.9% of the total inmate population. This has almost double the Department of Correctional Services’ proposed benchmark figure of 25,000[64]. It has been reported that some prison facilities were overcrowding and has degenerated to a worrisome situation[65].

The UN Human Rights Committee Report[66] identified a range of contributory factors to include lengthy duration of detention, indiscriminate and avoidable arrests, restrictive and delay-creating bail regime, lack of mandatory review mechanism and a slow-moving court system.

The 2009/2010 Annual Report of the Department of Correctional Services of South Africa shows that 48% of pre-trial detainees had been in custody for longer than three months, 14% of them had been detained for over 12 months on awaiting trial status, while about 3-4% had been detained for over two years[67]. The 2005 UN Working Group on Arbitrary Detention Report noted that thousands of pre-trial detainees in South Africa spend long stretches of their lives in conditions frequently described as inhumane and without access to educational or rehabilitative or reformatory programmes[68].

Ballard[69] reported that overcrowding and prolonged detention are two crucial and important issues associated with the use of pre-trial detention in South Africa, which also significantly contribute to the problem of overcrowding in prisons. According to Section 12 of the South African Constitution, ‘every citizen has the right to freedom and security of the person. This includes the right not to be deprived of freedom arbitrarily or without just cause ‘(or) to be detained without trial’. This supports the fundamental right to be presumed innocent until proven guilty. Many pre-trial detainees however have this right violated as they lose jobs and their families suffer while they languish behind bars for crimes, which they may have not committed. The Legal Aid Board of South Africa has highlighted that 65% of cases are withdrawn due to insufficient evidence.

  • Challenges of Pretrial detention in South Africa
  1. Institutional challenge

There are numerous challenges of pretrial detention in South Africa. It is noted that the Constitution of South Africa as well as local laws make provisions for the establishment of a number of oversight institutions with a mandate of administering the criminal justice system and ensure speedy dispensation of justice. However, there are deep concerns as to their ability to provide efficient and effective remedy to the swelling number of pre-trial detainees. These concerns are borne out of the institutions’ lack of independence, political interference and general underfunding[70].

  1. Overcrowding

The prison system is also plagued by overcrowding and dilapidated conditions. The Judicial Inspectorate of Correctional Services (JICS) noted in its 2009/10 Annual Report that the overcrowding of correctional facilities leads to unhygienic conditions. Furthermore, access to adequate health care is limited resulting in the possible spread of contagious diseases and a lack of treatment for more serious illnesses such as HIV/AIDS and diabetes.

  • Security

The increasing prison population and other recent developments suggest pre-trial detention is increasingly becoming a national security issue in South Africa. Explanations for the rising prison population center around arbitrary arrests that have increased the number of persons arrested and put into prison. While awaiting trial, the time taken by the criminal justice system to process cases, the enforcement of longer sentences, and the backlog of persons awaiting trial all have impacted the conditions of the detainees.

 

5.3 Addressing Pre-trial Detention in South Africa

The Department of Correctional Services in South Africa has recently embarked on a legislative process to improve the conditions of awaiting trial detainees. Fortunately, it appears that the long-held concerns around the conditions of pre-trial detainees have finally started to get the attention of the government. Most notable is the approval of the ‘White Paper on Remand Detention’ by the government of South Africa in 2010. The White Paper was developed in consultation with all other government departments who accommodate persons awaiting trial and proposes the establishment of a specific ‘Remand Detention Branch’. This structure will be used for ‘coordinating the provision of services in relation to remand detainees in South Africa’. The purpose is to improve access to needed services[71].

6.0 Comparative analysis

Country Percentage PTD Some key management strategies
Nigeria 70% ·         Virtual courts, case tracking, jail delivery, legislative intervention, legal aid and pro bono services, infrastructural intervention, encouraging Alternative Dispute Resolution mechanisms, Presidential Committee on Prison Reforms and decongestion
Kenya 42.7% ·         Decongestion programme by the Government, virtual court, Legal aid services, infrastructural intervention, encouraging Alternative Dispute Resolution Mechanisms
DRC 75% ·         Collaboration between the Ministry of Justice and Human Rights groups, inauguration of a neural and independent committee with adequate funding to supervise human rights compliance, carrying out public advocacy
South Africa 32.9% ·         Collaboration between all stakeholders to develop a white paper to create a remand detention branch that will promote the interest of pre-trial detainees.

 

Comparatively, Nigeria and Kenya appear to have common strategies but the responses as shown in the percentage of awaiting trial markedly differ. The reason for this obviously requires further interrogation. The DRC may need to incorporate a good dose of legal aid and introduce virtual court system.

The four countries are however observed to have some common features, which are as follows:

  1. Overcrowding is associated with PTD and human rights violation reported in all cases.
  2. There is knowledge gap in investigation and prosecution leading delay in trial process.
  • They all suffer poor funding’
  1. There allegation of corruption and indiscriminate arrest
  2. Logistics challenge is also reported in all

7.0 Conclusion

In conclusion, while pre-trial detention remains a lawful means of temporarily restraining a suspect where there are reasonable grounds to do so, its application in  Sub Saharan African Region is observed to be arbitrary, excessive and sometimes, abusive. Investigation and prosecution procedures are slow and sometimes suffer interference by the Government. Thus, the contemporary presumption that an accused is innocent until proven guilty is often blatantly ignored. This has precipitated rights violations, degrading treatments, security risks, prison overcrowding, stress on prison infrastructure, and so on. The problem is further made worse by weak institutional capacity of the criminal justice system, often characterized by lack of due process, respect for the rule of law and in some cases, lack of independence of the judiciary among others. Hence, no definite institutional framework exists to pragmatically address the menace, thereby allowing continuous waste of state resources and human potential.

It is of serious concern that these countries are signatories to international conventions such as the Standard Minimum Rules (now Mandela Rules); African Convention on Human and Peoples Rights; Convention against torture and other cruel, inhuman and degrading punishments, among others. This is also including local laws that comply with global standards in pre-trial detention. However, the challenges remain intractable.

It therefore requires a coordinated and integrated strategies, identifying and cross-matching peculiar challenges and solutions from different climes to develop a workable template for better management of pre-trial detention in Africa.

8.0 Recommendations

Flowing from the above and the need to evolve enduring solutions to the menace, the following recommendations are preferred:

  1. The media and civil society groups should promote public awareness of the problem of pre-trial detention in Africa, including collecting and publishing statistics as well as the consequences of the practice when abusively used.
  2. There should be a centralized administrative structure to whom all agencies in the criminal justice system report. This will improve coordination among actors and speedy resolution of limiting factors.
  • There is a dire need to advocate for the use of pre-trial detention only in exceptional cases and as a last resort in Sub-Saharan Africa.
  1. There should be increased use of alternatives to detention in a greater range of cases in Africa, taking into account vulnerabilities and profiles at risk. More importantly, alternative dispute resolution mechanism in Sub-Saharan Africa should be encouraged and explored.
  2. There is need for legislative intervention to make bail conditions less stringent so as to minimize prolonged detention.
  3. Capacity building in investigation and prosecution procedures should be expanded to more relevant officers in the criminal justice chain, including equipping them for efficient service delivery. This will encourage the police and the prosecution to make sure that relevant evidences and witnesses are presented before court when they are required, to avoid delays. Also, there is need to change law enforcement cultures that view pre-trial detention as a legitimate punishment. This will promote pre-trial detention systems that are fair, based on core principles of human rights, and which do not place an overwhelming burden on court and detention systems.
  • Some practices in the judicial systems such as ‘holden charge’ in Nigeria should be abolished as they are subject to abuse and further aggravate the problem of pre-trial detention in Africa.
  • There is need to strengthen prison systems in Africa through the allocation of more resources, provision of logistics to facilitate access to courts as and when due, including establishing more habitable prisons. The personnel also require capacity building in risk and needs assessment of pre-trial detainees to enhance standard management.
  1. Advocacy for pro bono services and legal aid by private legal counsels for indigent inmates should be incentivized in Africa through the award of Africa Regional honours and privileges. This will go a long way to decongest prisons and address problems associated with the menace.
  2. There should be regular visits and jail delivery exercises. Unannounced monitoring of detention centres with the aim of identifying problems and making constructive recommendations for change is also necessary. It is also important that the media and civil society groups regularly monitor trial procedures to improve the monitoring and accountability of actors in the justice system.
  3. Access to justice should be encouraged through the establishment of virtual courts. It is important that resources are galvanized to assist countries that have far-flung detention centres from courts, which may create acute problem of logistics. Also, a platform for tracking cases should be made available.

[1] M. Scontriech, Global Pretrial detention used: A cross-national analysis. A dissertation submitted to the City University of New York (2014). Available at: https://academicworks.cuny.edu/ [Accessed on 20 October, 2022].

[2] Walmsley, Roy, World Pre-trial/Remand Imprisonment List (3rd ed., 2018). London, UK: Institute for Criminal Policy Research, University of London.

[3] Ilminska, M., and Schoenteich, M., Raising the Profile of Pretrial Detention in Africa (2016). Available at: https://www.justiceinitiative.org/voices/raising-profile-pretrial-detention-africa. [Accessed on 20 October 2022].

[4] UNDP, Human Development Report: Human Development for Everyone (2015). New York, NY: United Nations Development Programme.

[5] UNICEF, Arrest and Pre-trial Disposition (1998). Florence, Italy: United Nations Children’s Fund; Rodley, Nigel S., Report of the Special Rapporteur on Torture, mission to Kenya (addendum), 2000. UN doc. E/CN.4/2000/9/Add.4; Jones, Stephen, Guilty until Proven Innocent? The Diminished Status of Suspects at the Point of Remand and as Unconvicted Prisoners, Common Law World Review, 32(4): 2003, 399-417; Nowak, Manfred, Mission to Nigeria. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (4 to 10 March 2007), 22 November 2007, UN doc. A/HRC/7/3/Add.4.

[6] Partner global, Reforming Pre-trial Detention in Nigeria (RPDN)(2018-2022). Available at: www.partnersglobal.org/reforming-pre-trial-detention-in-nigeria-rpdn-2018-2022/  [Accessed on 17 October, 2022].

[7] Nigerian Prisons Service, annual report (2018), Abuja: PRS

[8] Open Society Justice Initiative, Pre-trial detention, 2018

[9] Ahmed Ja’afaru, Controller General of Corrections press statement during the aborted Abakiliki prison jailbreak, 2017.

[10] Nigerian Correctional Service inmates’ statistics, available at www.corrections.gov.ng [Accessed on 20 October, 2022].

[11] UNODC, Access to Legal Aid in Criminal Justice Systems in Africa: Survey Report (2015). Vienna, Austria: United Nations Office on Drugs and Crime; Qureshi, A., Ima, K., Similolu, A.,Larissa U.,  Sadhana D., and Kenneth S., COVID and the Nigerian Correctional Service: need for structured data, Pan African Medical Journal, 2020;37(1):17.

[12] Ajayi, J.O., Nigeria Prisons and the Dispensation of Justice, International Journal of Arts and Humanities; Vol. 1 (3) 2012:208-233.

[13] Kelvin Abuchi Ugwuoke, Essential of Corrections, (2021); Jos: Gemjan press.

[14] Lowenkamp, Christopher T., Marie VanNostrand and Alexander Holsinger, The Hidden Costs of Pretrial Detention (2013a). No place of publication: Laura and John Arnold Foundation.

[15] Taiwo, Oloyode, Pre-trial detention in Africa, (2020). A paper presented at the ICMC conference

[16] Uju Agomoh, paper presented at the NBA conference at Lagos, Nigeria, Executive Director PRAWA (2020).

[17] Nigerian Prisons Service, Annual Report, 2018

[18] A terrorist group operating in northeast Nigeria

[19] Nigerian Correctional Service press release 2022

[20] Vanguard newspaper, FG approves construction of 3000 capacity correctional centre, 16 September, 2021.

[21] Thisday newspaper, Supreme court begins implementation of the Nigerian case management system, 19 April, 2016.

[22] Justice Ishaq Bello, former Chief Judge of FCT and chairman of the Presidential committee on prisons reforms, 2022

[23] Ladapo T., Problems of pre-trial detention, Academia.com, 2015

[24] Ameh, D., Nigerian to release pretrial detainees, 2022, Daily independent newspaper

[25]UNODC, Global Study on Homicide. Trends, Contexts, Data (2019). Vienna, Austria: United Nations Office on Drugs and Crime.

[26] Sobode, H. Issues of awaiting trial in Nigeria, 2013

[27] UNODC, Global Study on Homicide. Trends, Contexts, Data (2019). Vienna, Austria: United Nations Office on Drugs and Crime.

[28] The Cable Newspaper, FG sets up committee to monitor compliance with laws against torture, 11 September, 2022

[29] Premium Times Newspaper, Presidential committee on prison reform frees 5000 inmates, 4 April 2019.

[30] Legal Aid Council, Functions of the Legal Aid Council (2021). Available at: https://legalaidcouncil.gov.ng [Accessed on 14 October, 2022].

[31] Unini, Raymond, The role of pro bono legal services in Nigeria, 2020

[32] Administration of Criminal Justice Act (ACJA) 2015

[33] Ibid, section 28

[34] Administration of Criminal Justice Act 2015, section 111

[35] Ibid, section 16

[36] UNODC 2021

[37] World Prison Brief, Database on global prison system (2022). Available at: https://www.prisonstudies.org [Accessed on 15 October, 2022].

[38] Rachel Strohm, Statistics on pretrial detention in Kenya, (2018)

[39] United Nations Human Rights Office of the High Commissioner (UNHROHC), Experts of the committee against torture commend Kenya’s effort to implement the law on prevention of torture.

[40] Kenyan Law Reform Commission, interagency coordination, oversight of places of detention, and public awareness (2022).

[41] ibid

[42] ibid

[43] Brian Ocharo, Pre-trial detention is a chronic problem, judge says, Nation, June 15, 2022

[44] United States Department of State, Country Reports on Human Rights Practices for Kenya, (2016). Bureau of Democracy, Human Rights and Labour.

[45] World Prison Brief, Database on global prison system. Available at: https://www.prisonstudies.org [Accessed on 15 October, 2022].

[46] Mary Nereah, realizing article 53 (1) (f) of the constitution: Pretrial detention as a measure of last resort (2017).

[47] Kenyan Law Reform Commission, interagency coordination, oversight of places of detention, and public awareness (2022)

[48] Mary Nereah, realizing article 53 (1) (f) of the constitution: Pretrial detention as a measure of last resort (2017).

[49] United States Department of State, Country Reports on Human Rights Practices for DR Congo (2018). Bureau of Democracy, Human Rights and Labour.

[50] Karugonjo-Segawa, R., Pre-trial Detention in Uganda. In Perspective on Pre-trail Detention in Africa (eds.). Mowbray: African Policing and Civilian Oversight Forum (APCOF, 2015).

[51] Immigration and Refugee Board of Canada (31 March, 2010). Democratic Republic of the Congo: The treatment of prisoners and prison conditions in Kinshasa (2010). Available at: file:///I|/country_ip/ [Accessed on 21 October, 2022].

[52] World Prison Brief (2022). Database on global prison system. Available at: https://www.prisonstudies.org [Accessed on 15 October, 2022].

[53] Human Rights Watch, Violence instead of Vigilance: Torture and Illegal Detention by Uganda’s Rapid Response Unit (2011), New York: Human Rights Watch. http://www.hrw.org/reports [Accessed on 19 October, 2022).

[54] Human Rights Watch, Democratic Republic of Congo (DRC), World Report 2009: Events of 2008. http://www.hrw.org/en/node/79181 [Accessed on 14 October, 2022].

[55]Inter Press Service (IPS, 11 January 2010). Emmanuel Chaco. RD Congo: les lieux de détention provisoire sont-ils devenus des structures torture? http://www.ipsinternational.org/ [Accessed 17 October, 2022]

[56] Human Rights Commission report 2022

[57] OMCT (2009). Four years on, Muharrem Erbey still in pre-trial detention. Available at: https://www.omct.org/en/resources/ [Accessed on 15 October, 2022]; La Libre Belgique (11 March 2009). Marie-France Cros. “Trois Belges détenus à Kinshasa ont-ils été torturés?” http://www.lalibre.be/actu/international/article/ [Accessed 17 October 2022]; PANA (22 November 2008). “L’ASADHO demande la fermeture à Kinshasa des cachots.” (Afrique en ligne) http://www.afriquejet.com/afrique-centrale/rd-congo/ [Accessed 20 October 2010]

[58] United States Department of State (2021). Democratic Republic of the Congo 2021 Human Rights Report. Bureau of Democracy, Human Rights, and Labour.

[59] United Nations Joint Human Rights Office (UNJHRO, 2016). Report on Human Rights Violations In The Democratic Republic Of The Congo In The Context Of The Events Of 19 December 2016. Available at: https://www.ohchr.org/sites/default/files/ [Accessed on 17 October, 2022].

[60] World Bank, 2016

[61]United Nations Joint Human Rights Office (UNJHRO, 2016). Report on Human Rights Violations In The Democratic Republic Of The Congo In The Context Of The Events Of 19 December 2016. Available at: https://www.ohchr.org/sites/default/files [Accessed on 17 October, 2022].

[62] Karugonjo-Segawa, R., Pre-trial Detention in Uganda. In Perspective on Pre-trail Detention in Africa (eds.). Mowbray: African Policing and Civilian Oversight Forum (APCOF, 2015).

[63] Human Rights Watch, Etats generaux of the justice system in the DRC: Recommendation on the fight against impunity for grave international crimes, April 2015, available at: https://www.hrw.org/files [Accessed on 22 October, 2022].

[64] World Prison Brief (2022). Database on global prison system. Available at: https://www.prisonstudies.org [Accessed on 15 October, 2022].

[65] Department of Correctional Services (DCS 2021). The 2009/2010 Annual Report for the South African Department of Corrections.

[66] UN Human Rights Commission report sets principles for the promotion and protection of human rights, E/CN.4/200/102/add1.

[67] Annual Report of the Department of Correctional Services of South Africa 2009/2010.

[68] The UN working group has a mandate to investigate cases of deprivation of liberty imposed arbitrarily or inconsistently with international standards set forth in the universal declaration of human rights, or other international instruments.

[69] Ballard, Clare (2011). Research report on remand detention in South Africa: An overview of the current law and proposals for reform. Available at: https://acjr.org.za/resource-centre/South%20Africa%20Ballard.pdf [Accessed on 12 October, 2022].

[70] United Nations human rights report, 2018

[71] Ramagaga, T., The Conditions of Awaiting Trial ‘Prisoners’ Look Set to Improve in South Africa, 2011. Available at: https://issafrica.org/iss-today/ [Accessed on 16 October, 2022].

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