Africa must limit pre-trial detention
African Commission urged to tackle arbitrary arrest
It is time for African states to take urgent action to end arbitrary arrests and minimise the number of people in pre-trial detention. This was the message that 20 civil society organisations took to Banjul and presented at the 51st session of the African Commission on Human and Peoples’ Rights (ACHPR).
Speaking on behalf of all the organisations, the Coordinator of the African Policing Civilian Oversight Forum (APCOF), Sean Tait, highlighted the damage that arbitrary arrests and unnecessary police detention and called on the Commission to develop guidelines that will guide police agencies in their work and serve as a template for state parties to report to the Commission and conduct oversight visits.
Tait stressed that 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.
He added that the Chair of the Commission had herself outlined the problems involved at a seminar on the margins of the previous session, when she noted that much more needs to be done to stem arbitrary arrests and that this would require greater internal oversight and accountability by the police, coupled with independent oversight by domestic institutions such as National Human Rights Institutions and regional and continental bodies such as the Commission and the UN bodies.
But arbitrary arrests are only part of the problem. In many countries, there is blatant misuse of the rules around the maximum length of time a person can be kept in custody before being brought to court. “This could be addressed by better oversight, improved management and better training,” said Tait. “It would require working with and dialoguing with the police on how challenges can be addressed. Citizens need to be educated and empowered to uphold their rights and police provided with basic investigation techniques which take into consideration the resource scare conditions of many African police forces.”
In a number of countries visited by the UN Working Group on Arbitrary Detention, police lacked understanding about their role in carrying out arrest and were under the impression that they could both receive and give orders to carry out arrests on any basis – including orders from administrative authorities to arrest without suspicion of criminal activities or the production of an arrest warrant.
In a recent study conducted by APCOF into the legislative and procedural safeguards for police arrest and detention it was found that while arrest may have a legal basis in domestic law, domestic legal frameworks do not always accord with international standards.
Tait added that common reasons for the disparity between international and domestic standards of criminal justice include high rates of criminality resulting in a ‘get tough on crime’ approach to policing; racial discrimination; anti-terrorism legislation, states of emergency and administrative detention; and, expansive, imprecise and discriminatory laws.
In addition, the reliance by police on arbitrary arrests, which are in contravention of domestic laws, is also prevalent and is caused by a variety of factors, including political interference; reliance on confessions as the basis for criminal convictions; discrimination; arbitrary interpretation of imprecise laws; police corruption; and, inadequate oversight of police.
To help address these challenges and promote a rights-based approach to policing, the organisations called upon the African to develop new guidelines, which would include the following critical elements:
Arrests must be carried out on grounds that are clearly established by law, in accordance with international standards. Arrests must not be motivated by discrimination of any kind (including but not limited to, race, gender, nationality or political views);
The subsequent decision to detain an individual must also be based on grounds that are clearly established in law in accordance 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 systems more broadly, must observe procedural safeguards; and,
Conditions of detention in police cells must accord with the right to life and should respect the inherent dignity of the human person. Conditions should be in line with international and regional standards and detainees must have the right to protection from ill-treatment and torture.
Tait concluded by saying that civil society organisations had already worked on the development of such guidelines and that the latest preliminary draft could be provided to the Commission for its consideration.
The organisations supporting the submission included the Southern Africa Litigation Centre (SALC), Zimbabwe Lawyers for Human Rights, the Open Society Justice Initiative, Civil Society Prison Reform Initiative, Muslims for Human Rights and many more. The full list can be found on the report that can be downloaded below.