At the 52nd session of African Commission on Human and Peoples Right, held on 12th October 2012 at the Felix Houphouet Boigny Foundation, Yamoussoukro, COTE D’IVOIRE, PRAWA with other stakeholders identified the over-use and poor conditions of police custody and pretrial detention as a prevalent but overlooked area of criminal justice reform in Africa.

In order to address the challenges faced by Africa’s police forces in achieving a rights-based approach to the use and conditions of police custody and pretrial detention the African Policing Civilian Oversight Forum and the Global Campaign for Pretrial Justice are advocating a set of guidelines on policing and pretrial detention for possible adoption by the African Commission on Human and Peoples’ Rights (ACHPR).

This side event followed a series of events at previous ACHPR sessions and looked specifically at possible implementation strategies at the national level and the broader work of the Global Campaign for Pretrial Justice.

The side event builds on a series of initiatives over the last two years including:

• a scoping study looking specifically at the drivers of arbitrary arrest and detention
• three country studies in Burkina Faso, Niger and Uganda;
• side events at prior ACHPR sessions to comment on a draft set of guidelines; and
• a side event held the previous day which examined past experience on the use and application of soft law.

This side event discussed police custody and pretrial detention at the national level with a view to exploring what strategies can be put in place to address pretrial detention at domestic level.

The presentations discussed case studies from different countries as follows:

Pretrial Detention in Burkina Faso
This was presented by Thombiano Prosper from the Burkina Faso Movement for Human Rights [MBDHP]

The discussion revealed that at a legislative and policy level Burkina Faso has safeguards in place to mitigate against the excessive use of pretrial detention and the penal code provides for certain procedural safeguards and minimum conditions of detention. However, severe challenges exist regarding implementation and in recent years new laws have been introduced, such as those to tackle banditry, that have resulted in further abuses within the system. Provisions have also been introduced that allow for ‘garde à vue’ (police custody) to be prolonged for up to 5 days.

MBDHP has documented cases where suspects spend months in police custody, and when eventually transferred to prison they lack the appropriate records and become ‘invisible prisoners’, languishing for years in the hope that someone will be alerted to their situation. Mass arrests, the use of firearms by the judicial police and the lack of legal assistance were highlighted as other areas of concern.

Among the strategies being looked at to draw attention to the issue and to address concerns is a campaign to domesticate the Convention against Torture and the Optional Protocol (OPCAT), to criminalize torture and provide for systematic review of places of detention. An ACHPR guideline on policing and pretrial detention would assist domestic initiatives by providing additional spaces for advocacy and by focusing promotion and prevention efforts.

Pretrial Detention in Malawi
This was presented by Timothy Mtambo of the Center for Human Rights and Rehabilitation [CHRR]

Timothy 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. Continued challenges in Malawi include the limited geographic location of the high courts, shortages of personnel, excessive use of detention for petty offences, the prevalence of torture, case backlogs, limited oversight mechanisms and the lack of availability of legal aid.

Importantly Malawi has recently demonstrated the importance of political will in addressing systemic problems. For example the appointment of a new Inspector General of Police, who has supported the introduction, and roll out, of a system of lay assessors who visit and report on conditions of police custody.

Pretrial detention in Sudan
This presentation was done by Ali Agab of the African Centre for Justice and Peace Studies [ACJPS]

Ali explained how provisions in the Sudanese criminal procedure code 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 the use of a so-called ‘revolving door’ where people set free by the courts are re-arrested at the court door.

A number of reforms are required in order to ensure basic standards and a minimal use of pretrial detention including: the creation of an independent custody monitoring system; a mechanism to monitor, prevent and combat torture; legislative revisions to render ineffective confessions extracted under torture; systematic investigation of allegations of torture; and rigorous training for police and local judicial personnel.

Discussion

The discussion drew attention to some key similarities across countries which re-emphasized the utility both, of a Global Campaign, as well as the importance of continental bodies such as the ACHPR in encouraging states to address, what are known to be consistent drivers of abuse at the arrest and pretrial phase of the criminal justice process.
Innovations were also highlighted, such as the significant reduction in Malawi of the percentage of the prison population held in pretrial detention, and ways in which positive trends can be harnessed. Building on the previous side event on the use and application of soft law standards a number of further suggestions were made:

• To carry out a power / constituency mapping. Who are the key actors that need to be further engaged? How can we enlist the support of these actors and of the NHRIs?
• To identify key elements in the proposed guidelines that intersect with various human rights issues and the work of other ACHPR Commissioners e.g. HIV/AIDS, torture, women etc.
• To look at how the guidelines address victims’ rights? And how we can better influence public perceptions.
• To continue to build coalitions amongst academics and civil society and maximize on the use of ACHPR sessions and other forums to promote the guidelines and build further support.

The session continued with an update on the Global Campaign for Pretrial Justice – recent legislative developments, networking and innovations in different countries and moved into a planning session building on the side events and a recent meeting in Uganda.

Update

Following the advocacy efforts of the participants in the Global Campaign, the ACHPR adopted a resolution at its 52nd session empowering the Special Rapportuer on Prisons and Conditions of Detention to develop guidelines on conditions of police custody and pretrial detention in Africa and report to the 54th session.

See the final communiqué of the 52nd session and a report of the meeting and developments on the Open Society Voices.

The participants and organizations they represent are:
[table]
1,Thiombiano Lafama Prosper[attr colspan=”2″],MBDHP Burkina Faso
2,Mary Miller Flowers[attr colspan=”2″], Open Society Foundations
3,Louise Ehlers[attr colspan=”2″],Open Society Initiative for Southern Africa
4,Timothy Mtambo[attr colspan=”2″],Centre for Human Rights and Rehabilitation Malawi
5,Leopoldo De Amaral[attr colspan=”2″],Open Society Initiative for Southern Africa
6,Saka Azimazi[attr colspan=”2″],Network of West African National Human Rights Institutions
7,Mina Mensa[attr colspan=”2″],Commonwealth Human Rights Initiative Ghana
8,Sylvanus Ibechodo[attr colspan=”2″], REPLACE Nigeria
9,Debra Long[attr colspan=”2″], Human Rights Implementation Centre University of Bristol
10,Jedidah Waruhiu[attr colspan=”2″],Legal Resources Foundation Kenya
11,Kersty Mc[attr colspan=”2″], Court Open Society Justice Initiative
12,Nathaniel Borley Comehn[attr colspan=”2″],Catholic Justice and Peace Commission Liberia
13,Afia Asantewaa Asare-Kyei[attr colspan=”2″], Open Society Initiative for West Africa
14,Sean Tait[attr colspan=”2″],African Policing Civilian Oversight Forum
15,Ali Agab[attr colspan=”2″],African Centre for Justice and Peace Studies
16,Majid Maali[attr colspan=”2″],African Centre for Justice and Peace Studies
17,Christian Mukosa[attr colspan=”2″],Amnesty International
18,Lucy Freeman[attr colspan=”2″],Amnesty International
19,Tobi Somiyi[attr colspan=”2″],This Day
20,Edith Muluhya[attr colspan=”2″],Kenya National Commission for Human Rights
21,Hafiz Mohamed[attr colspan=”2″],Hafiz Mohamed
22,Essy Adjouba[attr colspan=”2″], APDH
23,Semeien Eric Aime[attr colspan=”2″],APDH
24,Mohamed Ascis[attr colspan=”2″],State Delegate Sudan
25,Huida Suliman[attr colspan=”2″],State Delegate Sudan
26,Sabelo Masuku[attr colspan=”2″],Swaziland Human Rights Commission
[/table]