HUMAN RIGHTS ARE PRISONERS’ RIGHTS
Etannibi EO ALEMIKA, PhD *
Human rights are inherent entitlements of all human beings. Prisoners are human beings and therefore entitled to human rights. This simple statement will no doubt sound repulsive to many people. To many it amounts to political and religious heresy to say that prisoners have human rights and worse still to say that the state and society are obliged to respect them. Negative attitudes towards the prisoners are widely and relatively uniformly distributed among diverse groups in the population.
Significant proportions of the diverse groups in society oppose the recognition and protection of the rights of prisoners, including the abolitions of death penalty. Why is this so? The explanation lies in the misunderstanding of the factors and processes leading to criminalization and criminality. This misunderstanding leads many people to divide the human population into criminal and non-criminal groups. However, this is a gross misrepresentation of reality.
Who really are the criminals, a segment of which are incarcerated? The reality of life is that all human beings are criminals – at one time or the other involved in actions that violate the criminal law and liable to arrest, conviction and punishment, if such transgressors had been under surveillance, observed and arrested for the violation of law. Human beings are not essentially criminals or non-criminals. They are only differentiated, in terms of the frequency of criminal conduct; the nature, type and severity of crime committed, and differences in ability or capacity or privilege to conceal criminality (due to possession of wealth, power, and status) to evade detection, arrest, trial and conviction when involved in crime. Indeed, in all modern states, certain groups of people, such as top national political actors and foreign diplomats, are granted immunity from criminal surveillance and arrest for criminality.
Who are the prisoners? Simply, some individuals who actually violated the law and some accused of violating the law but innocent, yet wrongly convicted and imprisoned? Some individuals accused but still presumed innocent pending trial and judgement but nonetheless subjected to varied deprivations. People in the prisons do not constitute a homogeneous group. It should be realized that most people involved in behaviours or actions that violate criminal laws are never arrested, tried and imprisoned. And that include most of us here today. I do not in any way trivialize the fact that many people commit very injurious violent crimes that leaves their victims with serious trauma. But many perpetrators of such crimes are not arrested and they live among the population as ‘innocent persons’. Yet individuals who are innocent are convicted to avoidable and unavoidable imperfections of the criminal justice agencies and agents.
Realizing that we all at various or some times engage in conducts which substantively violate the criminal code, we should be less judgmental towards offenders caught by nets of the criminal justice systems, which critics say trap the petty offenders while protecting the big and ruthless criminals in different sectors of society. Instead of being insensitive towards offenders, we need to reflect on the process through which crime and criminal codes are constructed and criminals are produced by both existential conditions and political and economic structures. There is need to understand how criminal laws, crimes and criminals are made in order to adopt constructive rather than destructive policies and programmes in handling offenders, especially those committed to prison custody for punishment.
The Production Criminal Laws, Crimes and Criminals
Crime and criminal laws are made through a process generally referred to as criminalisation. The terms criminality and criminals can only be understood in the light of the concept of crime. What is crime? There is a general consensus among experts that crime is the violation of criminal laws or codes. This further leads us to another question? What are criminal laws or criminal codes and how are they made? Again, the answer is simple. They are rules made by the rulers to prohibit certain behaviours they consider offensive or harmful to their well-being and sometimes to those of the generality of citizens. Criminalization is a product of the following process:
- identification of specific behaviours by the rulers (in and out of formal structures of government) as harmful and therefore should be prohibited;
- enactment of laws prohibiting and punishing the behaviours;
- establishment of law enforcement agencies to enforce the provisions of the laws,
- interpretation and application of the law by relevant prosecution and judicial agencies in respect of the conduct of an individual , and
- labelling of an individual as transgressor of law, that is the label criminal is affixed on individuals, with attendant consequences of punishment, including imprisonment and death penalty.
The criminal laws made by the rulers do not prohibit all harmful or injurious behaviours. Frequently, they exclude social, economic and political actions and behaviours by the rulers that inflict very serious injuries on the citizens and society. Therefore, the content of criminal law is very selective and discriminatory. To a large extent, criminal laws are instruments for the control of the poor and powerless by rich and powerful. The preponderance of the poor and powerless within the criminal justice system in various capacities and with diverse affixed labels like suspects, accused, offenders, convicts and prisoners clearly demonstrate the link between being poor and powerless and being criminalized – that is being labelled criminal, convict and prisoner. Criminalization therefore refers to the making or production of crime and criminals through the criminal law. In the absence of criminal laws and law enforcement agencies, there will be no criminals, though there will always be people who do things that offend or injure their fellow human beings, and are assigned different labels like deviants and sinners but not criminals.
International Norms on the Human Rights of Prisoners
The primary purpose of law enforcement and judicial agencies is to administer criminal justice. Generally, criminal justice refers to ‘doing justice’, that is giving unto criminals what they deserve. Here lies a fundamental connection among criminal justice, human rights, prisoners’ rights and prison reform. How do we determine what the offender deserves? Can the failure of society to guarantee basic necessities of life or access to vital socio-economic opportunities to some individuals constitute defence or mitigating factors? Should privilege, wealth and power constitute aggravating or mitigating factors in apportioning punishment? Should punishment be apportioned solely based on the harm caused by the behaviour of an individual? Should the behaviour of the victims constitute affect the punishment of offenders? Factoring these puzzles into decisions about what the nature and extent of “justice” that are deserved by an offender can be a very daunting decision, ultimately influenced by experience and subjective factors. In order to protect suspects, accused persons and offenders from cruel, unusual and degrading treatment and punishments, several normative guidelines on the treatment of offenders have been developed and adopted and expected to be respected and implemented.
The violation of the human rights of human prisoners through inhuman conditions in prisons and lack of political will to reform or transform prisons into corrective and rehabilitative agencies are borne out of negative perceptions of prisoners and the relative powerlessness of prisoners, professionals and staffs in the prison system. The high prison walls are not only meant to prevent the escape of prisoners. They are also meant to make the inhuman conditions of the prisoners, deprivation of prison staffs and the dehumanising prison environment invisible. The invisibility of the prison conditions shields our consciousness and conscience from the inhuman, degrading and cruel punishments that are meted to fellow citizens in the name of promoting justice and public security through the penal measures of deterrence, retribution and incapacitation. We should not cynically dismiss the observation made by Thrasymachus in Plato’s Republic on the relationship between the characters of laws and rulers in society.
“In every case the laws are made by the ruling party in its own interests; a democracy makes democratic laws; a despot autocratic ones, and so on. By making these laws they define as “just” for their subjects whatever is for their own interests, and they call anyone who breaks them a “wrongdoer” and punish him accordingly”.
Recognizing that prisons can be designed or used as chambers of torture, inhuman, unusual and degrading treatment, several international norms have been developed to protect the rights of prisoners and other persons in detention facilities of the State. The United Nations Organization has adopted or made several instruments (Charters, Conventions, Declarations, etc) for the protection of prisoners’ rights. Among them are the following crucial ones:
- United Nations Declaration of Human Rights (UNDHR): 1948
- International Covenant on Civil and Political Rights (ICCPR):
- Standard Minimum Rule (1955) outlined the minimum custodial conditions under which prisoners may be remanded or sentenced.
- Standard Minimum Rule for the Administration of Juvenile Justice (Beijing Rules): 1985
- Rules for the Protection of Children Deprived of their Liberty (1990)
- Standard Minimum Rule for Non-Custodial Measures (Tokyo Rules): 1990
- Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment.
- Convention Against Torture
On the Continent of Africa several norms have also been developed at various fora by state and non-state actors. They include:
- African Charter on Human and Peoples Rights was adopted by OAU in 1981 and came into force in 1986, October 21.
- Kampala Declaration on Prison Conditions in Africa (1996)
- Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa. (The Robben Island Guidelines)
- Kadoma Declaration on Community Service Orders in Africa 1997;
- Arusha Declaration on Good Prison Practice 1999
- Ouagadougou Declaration on Accelerating Prison and Penal Reform in Africa (2002)
The contents of the various normative instruments are either similar or complementary. Essentially, they aim at safeguarding the rights of prisoners. They also contain provisions aimed at promoting the reformation, rehabilitation and reintegration of the prisoners into society. To what extent have these norms influence contemporary penal policies and practices? Available evidence indicates that the norms have been observed more in breach, resulting in a global penal crisis.
Global Penal Crisis
There is at present a global penal crisis driven by irrational penal policies. The criminal justice systems in many countries are in crisis, which has manifested in several and different ways in many countries. Three brief examples will suffice. In the United States, the punitive agenda that was set in the early 1980s led to mass incarceration that has resulted in nearly five-fold increase in prison population over three decades. Despite the pursuit of the traditional punishment philosophies of retribution, deterrence and incapacitation, American prisons continue to overflow with inmates and high rates of recidivism. At present the American prisons are reproduction of the urban ghettos. The prison crisis in America was precipitate less by increase in crime rate and more by counterproductive penal policy of zero-crime tolerance, determinate sentencing, mandatory custodial sentencing and longer prison sentences for numerous crimes.
Similarly, though to lesser extent, the United Kingdom is also engulfed in penal crisis with increasing prison overcrowding, huge budget for the prisons and ineffective sentences. The problem in the United Kingdom has been largely precipitated by the incarceration of petty offenders for short-term. According to a recent Report released by the UK National Audit Office, “Over 60,000 adults per year receive custodial sentences of less than 12 months. On any given day they make up around 9 per cent of all prisoners but account for some 65 per cent of all sentenced admissions and releases”. It was estimated that “in 2008-09, the cost of looking after short-sentenced prisoners, not including education and health care, was £286million”. The Report further noted that:
Short-sentenced prisoners are mostly commonly convicted of theft and violence offences. On average, they have 16 previous convictions, which is more than any other group of offenders. They are also more likely to re-offend: around 60 per cent are convicted at least of one offence in the year after release. Based on the previous work by the Home Office, we estimated that, in 2007-08, re-offending by all recent ex-prisoners cost the economy between £9.5 billion and £13 billion and that as much as three quarters of the cost can be attributed to former short-sentenced prisoners: some £7billion to £10 billion a year.
The lesson from this UK Report is that harsh penal policy based on retribution; deterrence and incapacitation are very expensive, ineffective and counterproductive.
The third example is Nigeria. The country’s prisons reflect a paradox. Nigeria’s prisons are overcrowded with awaiting trials inmates. This category of inmates constitutes about two-thirds of the inmate population. This preponderance of awaiting trial inmates thwarts the efforts of the Prisons Service to establish and sustain reformative, rehabilitative and re-integrative programmes for the convicted inmates. The high population of awaiting trial inmates in urban prisons in the country is due to flawed and dysfunctional laws, repressive police arrest and detention practices, especially in respect of minor crimes; acute lack of skilled police intelligence and investigation officers; inadequate investigation resources; lack of prosecution resources and inadequate skilled prosecution officers; inadequate magistrates, and inclination towards the detention of suspects pending and during trial by the police, prosecutors, magistrates high court judges in the country. As in the case of USA and UK, the penal crisis in Nigeria is a product of flawed policies associated with harsh punishments.
Retribution to Restoration, Rehabilitation and Reintegration
There are several norms from which humane and efficacious criminal justice policies in general and especially penal policies and practices can be derived. Proposals aimed at transiting from retribution and deterrence to restoration, rehabilitation and reintegration are contained in some of the international norms earlier discussed. What is lacking is the political will to adopt humane and efficacious criminal justice policies.
In concluding this address, permit me to highlight some of the proposals that were developed in the Kampala and Ouagadougou Declarations. The Kampala Declaration noted the following prevalent conditions in Africa prisons: overcrowding; lack of hygiene, insufficient or poor food, difficult access to medical care, a lack of physical activities or education, as well as an inability to maintain family ties. In order to address these problems, it was recommended:
- that the human rights of prisoners should be safeguarded at all times and that non-governmental agencies should have a special role in this respect, that is recognised and supported by the authorities,
- that prisoners should retain all rights which are not expressly taken away by the fact of their detention,
- that prisoners should have living conditions which are compatible with human dignity,
- that conditions in which prisoners are held and the prison regulations should not aggravate the suffering already caused by the loss of liberty,
- that the detrimental effects of imprisonment should be minimised so that prisoners do not lose their self respect and sense of personal responsibility,
- that prisoners should be given the opportunity to maintain and develop links with their families and the outside world, and in particular be allowed access to lawyers and accredited para-legals, doctors and religious visitors,
- that prisoners should be given access to education and skills training in order to make it easier for them to reintegrate into society after their release,
- that special attention should be paid to vulnerable prisoners and that non-governmental organisations should be supported in their work with these prisoners,
- that urgent and concrete measures should be adopted to improve conditions for vulnerable groups in prisons and other places of detention; such as: juveniles, women, mothers and babies, the elderly, terminally ill and very sick, the mentally ill, the disabled, foreign nationals. Procedures that take into account their special needs and adequate treatment during their arrest, trial and detention, must be applied to these groups;
- that all the norms of the United Nations and the African Charter on Human and People’s Rights on the treatment of prisoners should be incorporated into national legislation in order to protect the human rights of prisoners,
- that the Organisation of African Unity and its member states should take steps to ensure that prisoners are detained in the minimum conditions of security necessary for public safety.“
As a step towards the realization of humane prisons in Africa that will reduce the rate of imprisonment and unjustifiable incarceration; the Kampala Declaration recommended:
- that petty offences should be dealt with according to customary practice, provided this meets human rights requirements and that those involved so agree,
- that whenever possible petty offences should be dealt with by mediation and should be resolved between the parties involved without recourse to the criminal justice system,
- that the principle of civil reparation or financial recompense should be applied, taking account of the financial capability of the offender or of his or her parents,
- that the work done by the offender should if possible recompense the victim,
- that community service and other non-custodial measures should if possible be preferred to imprisonment,
- that there should be a study of the feasibility of adapting successful African models of non-custodial measures and applying them in countries where they are not yet being used,
- that the public should be educated about the objectives of these alternatives and how they work,
Very few governments in Africa today are conscious of their duty under the Declaration and are taking or have taken steps to comply. African prisons remain degrading and dehumanizing chambers or human warehouses.
In 2002, The Ouagadougou Declaration and Plan of Action on Accelerating Prisons and Penal Reforms in Africa were adopted. The Declaration and Plan of Action focused on diversion of offenders; reducing prison population, providing adequate resources; reintegration of offenders, application of rule of law and respect for human rights; developing, and adoption and implementation of best prison and penal-correctional practices. The Declaration and Plan identified strategies for preventing people from coming into the prison, including:
- Use of alternatives to penal prosecution such as diversion in cases of minor offences with particular attention to young offenders and people with mental health or addiction problems.
- Recognition of restorative justice approaches to restore harmony within the community as opposed to punishment by the formal justice system – including wider use of family group conferencing, victim offender mediation and sentencing circles.
- Use of traditional justice as a way of dealing with crime in line with constitutional guarantees and human rights standards.
- Improving referral mechanisms between the formal (State) justice system and the informal (non State) justice system.
- Decriminalisation of some offences such as being a rogue and vagabond, loitering, prostitution, failure to pay debts and disobedience to parents.
With specific reference to the reduction of unsentenced prisoners in the prisons, the following strategies were recommended:
- Co-operation between the police, the prison services and the courts to ensure trials are speedily processed and reduce the delays of remand detention through: regular meetings of caseload management committees including all criminal justice agents at the district, regional and national levels; making of costs orders against lawyers for unnecessary adjournments; targeting cases of vulnerable groups.
- Detention of persons awaiting trial only as a last resort and for the shortest time possible, including: increased use of cautioning; improved access to bail through widening police powers of bail and involving community representatives in the bail process; restricting the time in police custody to 48 hours; setting time limits for people on remand in prison.
Nearly a decade after the Declaration and Plan of Action were adopted, these strategies are yet to be implemented by most African governments. As a result of the failure to implement the foregoing norms and strategies, African prisons systems, indeed the criminal justice systems remain ineffective, repressive and degrading state coercive agencies.
In December 2005, the Federal Government of Nigeria constituted a Presidential Committee on Prison Reform and Rehabilitation, which I had the privilege of anchoring. The Committee submitted its Report to the President in August 2006 and a Draft White Paper was promptly prepared by a Committee Chaired by a Minister. However, nearly five years later, the draft White Paper has not been considered for approval and implementation by the government, in spite of appeals and reminders. This shows that prison reform, protection of the rights of prisoners as well as the restoration, reformation, rehabilitation and reintegration of prisoners are rarely priorities, if at all concerns, of governments, especially in Africa, where human rights protection mechanisms are weak.
Conclusion: What next?
In concluding this address, I wish to state my view. The wheel for transforming the crisis-ridden penal systems that prioritizes imposition of harsh punishment aimed at achieving deterrence, retribution and social defence through incarceration or incapacitation into no less efficacious and but undoubtedly more humane penal correctional systems driven by the goals of restoration, reformation, rehabilitation and reintegration has been invented. However, the wheel has not been put to work by many governments across the globe. Consequently, their criminal justice systems are in crisis.
The way out of the crisis is not to reinvent the wheel. What we need is not further multiplication of norms but rather to develop strategies and capacities for mobilising the governments to establish the necessary framework for turning the wheel and to provide or yield a space for partnership between state criminal justice agencies and civil society organisations to do this effectively. Networks of civil society organisations engaging in advocacy with relevant international, continental and regional organisations and national governments seem to me a very probable way of advancing the implementation of the laudable norms of criminal justice administration and humane governance of prisons and correctional systems that have been developed. Let us join hands to turn and make the wheel of justice work for the realization of human rights as prisoners’ rights.
B.Sc. Sociology (Ibadan), Ph.D. Criminology (Penn.); Professor of Criminology and Sociology of Law, Department of Sociology, Faculty of Social Sciences, University of Jos, Jos, Nigeria [E-Mail: email@example.com]
Keynote Address Presented at The 5th International CURE (Citizens United for the Rehabilitation of Errants) World Conference on Human Rights,, Criminal Justice and Prison Reforms on the theme From Retribution to Restoration, Rehabilitation and Reintegration held at Shehu Musa Yar’adua Centre, Abuja, February 21-24, 2011.
 National Audit Office 2010 Managing offenders on short custodial sentences. London: The Stationery Office, p4