Background on Pre-trial Detention in Africa and the African Commission
Degrading treatment and the poor conditions faced by individuals in police custody and pre-trial detention are a widespread and overlooked area of the criminal justice reform in Africa. Conditions of pre-trail detainees in Africa frequently fail to meet minimal international and regional standard due to lack of respect of national legislation and appropriate monitoring mechanisms. Further, arbitrary arrest due to discrimination, lack of accountability and transparency of the police, compromised judiciary independence and poor case flow management all contribute to the weak criminal justice system currently prevalent in many African countries. As a result, many pre-trial detainees lack access to healthcare and nutrition and are subjected to torture, exploitation through bribes, lengthy holding periods and overcrowded and unsanitary living spaces.
A resolution was passed at the African Commission to engage actively on the subject and develop standards for promoting a rights-based approach to pre-trial justice in Africa. The “Guidelines on the Use and Conditions of Police Custody and Pre-Trial Detention” were formed on February 21st 2013 and are currently under review and open to recommendations. In response to these guidelines, the Campaign for Safe Communities held a side event of the Commonwealth Law Conference in Cape Town on this topic at the Central Methodist Church, in Cape Town last month. The seminar included three guest lectures and then an audience constituted of members of Cape Town NGOs (such as Restore, Social Justice Coalition, The Trauma Center) as well as members from the South African Human Rights Commission and the Open Society Foundation for South Africa. All attended this meeting with the goal of learning more about policing in Africa from three guest speakers and voicing their concerns about criminal justice reform and by facilitating discussion on whether and how these guidelines could address issues related to police custody and pre-trial detention in Africa. The outcome of the meeting was a formal submission to the African Commission on the draft guidelines.
Campaign for Safe Communities Side Event, April 16th, Central Methodist Church Cape Town (Seminar Summary)
Serving as the chairman of this side event. Sean Tait is the founder and director of African Policing Civilian Oversight Forum and former Director of the Criminal Justice Initiative at the Open Society Foundation for South Africa. Opening the discussion, Sean provided background about pre-trial detention, mentioning a range of infringements on their rights pre-trial detainees face in Africa. He drew attention to the fact that 30% of inmates in custodian facilities are still awaiting trial and that the time spent in detention is too long: 1 in 20 detainees are held over 2 years and 33% are held for more than 6 months. He declared a need for complete and revised Guidelines for Africa that would specifically protect the human rights of arrestees and pre-trial detainees.
The first speaker to present at the side event was James Madiga, from the Judiciary Inspectorate for Correctional Services (JICS), Complaints Unit. He began by talking about infringements of prisoners’ rights while awaiting trial. He explained that force is normally used when inmates are unruly or fighting, but that the amount of force used is not proportionate and often this use of force amounts to assault on inmates. Further, he explained that inmates usually do not have access to medical help, officials do not pay attention when inmates complain of sickness or pain. He it is mandatory to report to the JI each time mechanical restraints are used (i.e. leg shackles or handcuffs); however, this rarely happens. Also he revealed that sexual assault and rape of inmates by correctional officials is beginning to become more common in prisons.
Next, Mr. Madega explains that in response to these infringements, the JICS set up the Correctional Services Act of 2011. This Act requires mandatory reports from the police be written to the JICS concerning use of force, death and sexual assault in prisons and correctional facilities. More specifically this Act mandates that the Department of Correctional Services (DCS) to report any death to the JI and must medically assess inmates upon admission, but JICS often find this isn’t done, or there are no records. Moreover, Mr. Madega reveals that between October – December 2012, there were 5 reported “unnatural” deaths (related to suicide, murder) within 2-7 days of arrival to prison and there were 34 deaths reported in relation to preventable illnesses (e.g. TB). But, in majority of natural deaths, the doctor certifies the death but the doctor does not sign the confirmation form for cause of death, moreover, many of the deaths are probably not reported.
Finally, Mr. Madega addresses the issue of complaints received at the JICS under the Correctional Services Act. Between April 2012 to March 2013, the complaints unit received 59 complaints (excluding complaints being dealt with at centre level and in regions) the Western Cape and Eastern Cape possessing the highest number. Most complaints pertain to assault where inmates claim that they are unaware of the reasons for their assault. The Correctional Services Act requires medical assistance after use of force, however, most detainees are only being taken to a doctor after the wounds have healed. Mr. Madega closes by saying that information concerning detainee abuse is out there, but we need civil society to publicize and discuss these issues: “impunity is caused by a lack of interest and empathy for persons deprived of their liberty who are in conflict with the law.”
Clare Ballard from the University of the Western Cape’s Community Law Centre’s speaks next. Working for the Civil Society Prison Reform Initiative (CSPRI) at the Law Centre, she discusses her research concerning the inhumane conditions faced by arrestees and detainees. She begins by providing the audience with policing statistics. More than half the arrests made in SA are for non-priority crimes, and the detention rate for serious crimes (rape, murder) is incredibly low, below 50%. She explains that poor detection rate suggests that a number of arrests may be unnecessary, unfounded or based on spurious charges. She continues by announcing that more than half of the remand detainee population will ultimately be released due to acquittal or their charges being withdrawn or struck off the roll. Thus, many are being detained unnessarily, leading to overcrowding.
Ms. Ballard moves on to elaborate on issues surrounding overcrowding. She explains that nationally the prison capacity is currently at 133% and that 20 of the most overcrowded prisons are between 200%-260% full. This means that each inmate on average only has between 1.3m to 1.7. of floor space. In addition, the awaiting trial population in South Africa is just under 50 000, approximately 30% of the total inmate population and almost double the Department of Correctional Services’ proposed benchmark figure of 25 000. Prison overcrowding does not only lead to obvious safety and health risks, but also overburdens the legal authorities departments: without access to a lawyer, detainees cannot make bail applications or appeal to finding a judge.
Next, Ms. Ballard discusses the lengthy time period that detainees face in prison or in cells once arrested. In March 2010, she informs the audience taht more than one third of remand detainees have spent three to six months in custody, approximately 5000 had spent six to nine months in custody, almost 3000 have spent 12 – 15 months in custody. Just less than 2000 had been in remand detention for more than two years. Thus, thousands of people in South Africa spend long stretches of their lives in conditions frequently described as ‘inhumane’, and without access to educational or rehabilitative programs. In Lee v. Minister of Correctional Services the medical expert testifying found that overcrowding in cells directly led to the large spread of TB and bacterial infections among detainees.
Finally, Ms. Ballard examines the impact of recent laws implemented in SA to decrease abuses in prison cells. First, she reviews the pros and cons of the Correctional Matters Amendment Act of 2011. This Act places management of pre-trial detainees in the hands of the DCS, provides assistance to special groups (i.e. children, elderly, disabled, etc) and provides a provision stipulating that after two years detainees can have remand or awaiting trial reviewed by the court. However, this Act includes fallicies: it does not provide educational services for child detainees nor does it stipulate max time that a detainee can spend in pre-trial detention. Furthermore, even though SA has signed the UN’s Combating and Prevention of Torture Act, it has not ratified the optional protical, would would make prisons subject to an international monitoring committee. Ms. Ballard closes by insisting that oversight mechanisms must better set up to make the facilities more open and transporent for any real change to occur.
The third and final speaker of the day was Zackie Achmat from the Campaign for Safe Communities. Mr. Achmat is a long standing anti-apartheid, HIV/.AIDS, social justice and LGBTI activist who has founded or helped in founding the National Coalition for Gay and Lesbian Equality (NCGLE), Treatment Action Campaign, Social Justice Coalition, and Equal Education. He opens by claiming that in SA the people who are being punished are mostly from the working class. He begins by discussing the Whitaker Case of 1911, where tram workers organized a strike in Johannesburg. The strikers were sent to prison, not being able to afford bail at 1000 pounds, were segregated from the other prisoners and put into “punishment cells” with no lights, sunlight only one hour a day and lived in complete isolation. Mr. Achmat states that this case set the ground rule for how detainees would be treated in the future.
Mr. Achmat then moves on to discuss other court cases in SA. In the Zoliswa case, two minors spent 3.5 years in jail until their defence lawyer brought up that the confessions were made without a lawyer or parent being present. He iterated that these boys were locked up unneccesarily, missing pivotal years of their lives due to incompetence of the criminal justice system. Mr. Achmat also emphasizes that anyone, even a good person can be arrested, detained and abused by the police. Angy Peter, a campaigner for safety and security since 2008, was framed for a murder where there is no evidence other than the police saying that the dying man mentioned her name to them. She spent 6 weeks in jail before bail hearing, she is HIV positive, pregnant and suffers from depression and five of her children were left with no one to care for them. She was only released on bail due to social pressure from NGOs and money raised on her behalf. Her house has also been raided several times by policemen without warrants, some without uniform and during the middle of the night without warning.
Mr. Achmat closes by discussing one more court case. He tells the audience about the case against Lorna Mlofana who spent more than two years awaiting trial. Even though he was probably guilty of the crime he arrested for, Mr. Achmat reminded the audience must also think about the perpetrator’s family (regardless of guilt), who ultimately suffer from lack of support of their detained family member and expenses from traveling to and from court. He concludes that people who in jail are “not angels, some are evil and horrible, some are just human beings who have made terrible mistakes…however, detainees who are regarded as bad people are also most vulnerable and need the most protection.” Thus, pre-trial detainees “becomes detention without trial” tainted by cruel and degrading treatment and on occasion even torture.
Sean Tait, closed with a quick summary of the Guidelines. He then asked the audience to comment and solicit their views on the utility and substance of the guidelines. He also urged the crowd to feedback on what can be done about implementation, particularly in South Africa, if and when the Guidelines are adopted by the African Commission.
After the speakers had given their presentation, Sean Tait asked the audience to take the discussion forward including suggestions attendees had for improving the Guidelines. He also welcomed questions from the audience as well feedback on what they had just heard, the change they would like to see and reservations they had about the Guidelines. Poignant questions were asked concerning the culture of prisons, restorative justice, treatment of gay and lesbian detainees, prevention of torture and psychological abuse faced by detainees.
Following questions and feedback from the audience, the speakers in turn gave a closing word and answered questions posed. Speaking first, James Madiga addressed the following question: “why are positions not being filled in the correctional services; is it because of lack of skills or shortage of money”? Madiga explained that the problem was not due to lack of money and that positions were being advertised but not being taken up. In closing, he expressed that the major problem with pre-trial detention in South Africa starts at arrests. People are unnecessarily arrested and the police are not properly trained and just resort to arresting people instead of taking the time to see whether or not it is actually necessary.
Clare Ballard spoke next and focused on addressing a question asked about sexuality in prison. She states that sexuality is an “enormous” issue in prisons and a sexual offenses draft policy has been sitting on the Commissioners desk for over a year and nothing has been done. She further explains that young gay males are separated from other inmates, but that only depends on the warder, and gay men and often boys are more vulnerable to sexual attacks in prison. Children are also often not separated from adults, which is also supposed to happen. Clare also addresses the question Madiga answered previously. She also agreed that money is not the issue, but that there is an increasing reliance on using consultants rather than police so there is no build up of skills within the department itself. In addition, private detectives services is badly resourced and poorly staffed and social workers monthly budget in miniscule only adding to the overall problem.
Zackie spoke last and left a lasting message to the attendees of the event. He stated “this is the beginning of the discussion: we must all work together on things like the guidelines…we do not need to wait for the Commission of inquiry, we can write and request information” concerning crimes and detainees. In this way, Mr. Achmat asserts that fixing these issues will be a process, and one that the entire community must be pro-active in if we expect real change to happen.