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Statement at the 50th session of the African Commission on Human and People's Rights - Banjul 25 October 2011
African Policing Civilian Oversight Forum (APCOF)
October 25, 2011

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Madam Chair, honorable Commissioners, state delegates, ladies and gentlemen thank you for this opportunity to address the 50th Session of the African Commission on Human and Peoples' Rights. I am making this statement on behalf of several organisations active in the fields of pretrial justice and policing.

The decision to detain someone before he or she is found guilty of a crime, is one of the most draconian a State can make. The decision is made in an instant, but the results are long lasting, severe and adverse. The person detained loses their liberty and may also lose their home, job, income, family and community ties.

At the last session we addressed the Commission on the issue of pretrial detention and the devastating situation across the continent - where large numbers of detainees have never appeared before a judge and many spend months or even years in pretrial detention. They are not subject to the same levels of judicial oversight as the general prison population and experience a variety of rights violations - typically they are detained in conditions far worse than those for sentenced inmates and are most at risk of violence, torture inhuman and degrading treatment and corruption.

In addressing this 50th session we would like to take one step back in the criminal justice chain and bring to your attention issues around arrest and police detention.

According to figures compiled by the International Centre for Prison Studies the prison population in Africa totals 857,994 inmates. 36.3% are in pretrial detention, but this does not include those in secret or non-gazetted places of detention and nor does it include those in police detention. The percentages also vary enormously across the continent reaching 80-90% in some countries.

We'd like to address three stages, the actual arrest, police detention and the pretrial decision.

Firstly the arrest stage - in numerous instances arrests are either illegal or arbitrary: either because there is no legal basis in domestic legislation for the arrest - or because the domestic legislation is incompatible with regional and international standards. For example across the region many countries still have archaic, colonial era laws that enable the police to arrest people for crimes such as 'loitering' or 'vagrancy'. To look further at the problem APCOF - the African Policing Civilian Oversight Forum recently carried out a study to identify and examine the drivers that push the police to make arbitrary arrests. A number of key drivers were identified including, political interference; minimal capacity for forensic investigations; corruption; discrimination; and institutional targets that are based on the number of arrests.

All of these factors lead to large numbers, primarily of poor and marginalised people getting caught up in the criminal justice system - and once arrested they enter an abyss that is more or less impossible to exit.

Secondly looking at police detention - in most countries across the continent, the police may only detain people for up to 48 hours. Only in exceptional circumstances, set out by law, can this be extended. At the regional level the African Charter on Human and Peoples' Rights provides that:

Every individual shall have the right to liberty and to security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

However despite a relatively strong legal foundation the practice is very different. A recent study in Zambia, conducted by the Open Society Foundations found that at 9 police stations, housing at the time of the research 242 suspects, many of the suspects had been held for 1 - 2 weeks and the longest period reported was 2 years. The report details entirely inadequate and overcrowded conditions, in cells that were built prior to independence.

Thus police custody is often no longer used as a precautionary measure, aimed at preventing the escape of persons suspected of having committed a serious crime, but serves as a type of preliminary punishment for all criminal suspects who lack funds to access legal assistance or to pay bond.

Thirdly looking at the pretrial decision unfortunately in most countries prosecutors, judges and magistrates often lack understanding of the purpose of detention and the way in which it relates to the presumption of innocence and thus rely on pretrial detention as the rule, rather than the exception.

Alternatives to pretrial detention do exist, for example, through community supervision programmes, bail conditions and people standing surety. In a number of countries paralegals are providing frontline legal assistance and assisting with bail applications. Yet despite positive results judges and magistrates remain excessively cautious and continue to commit thousands of suspects to detention when more suitable alternatives could have been utilised.

Compounded with poor record keeping and intolerably slow justice systems suspects find themselves being held in pretrial detention for lengthy periods and often without any knowledge of the crimes they are accused of.

At its 33rd session the African Commission on Human and Peoples Rights adopted the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, The guidelines make reference to pre-trial detention . This includes that:

unless there is sufficient evidence that deems it necessary to prevent a person arrested on a criminal charge from fleeing, interfering with witnesses or posing a clear and serious risk to others, States must ensure that they are not kept in custody pending their trial. However, release may be subject to certain conditions or guarantees, including the payment of bail.

At its 40th session, the African Commission on Human Peoples' Rights called on State Parties of the African Charter to "take measures in terms of article 1 and 5 of the African Charter to ensure that police forces respect the dignity inherent in the individual, during the discharge of their duties in the maintenance of law and order".

In order to further help address the challenges faced by Africa's police forces in achieving a rights-based approach to policing and to minimise the drivers that promote the excessive use of police and pretrial detention we call upon the African Commission to deepen this resolution and adopt a set of measures and indicators that will: guide police agencies in their work; and serve as a template for state parties to report to the Commission and to conduct oversight visits.

Critical elements of such a set of standards should include;

Arrest must be carried out on grounds that are clearly established in law and which accord with international standards for arrest and must not be motivated by discrimination of any kind (including but not limited to, race, gender, nationality or political views).

Detention must be effected on grounds that are clearly established in law and which accord with international standards for detention, and must not be motivated by discrimination of any kind. Detention should be an exception rather than a rule and for as short a time period as possible. Police and the justice system broadly, must observe procedural safeguards,

Conditions of detention in police cells must accord with the right to life and treatment with humanity and respect for the inherent dignity of the human person. Standards of police conduct must be commensurate with the right to life and dignity Conditions of detention must accord with the right to a fair trial. Detainees must have the right to protection from ill-torture and treatment.

We further call on the Commission to

• establish a focal point responsible for policing and human rights within the Commission and ensure policing is a specific and consistent theme of state reports and country visits. Such a focal point will include representation from the police, the state and civil society.
• convene a high level continental conference on policing and human rights. We offer the expertise of our networks to the Commission to deepen human rights compliant and effective policing in Africa.

Sean Tait, Coordinator APCOF

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