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Archive for the ‘Justice Operations’ Category

Mass Incarceration, Harsh Punishment and Confronting Injustice:
The Demand for Global Reform.

By Bryan Stevenson


I believe that each person is more than the worst thing he or she has ever done. Our lives, our purpose and our value as human beings cannot be reduced to a single act, even an act that is tragic with profound and devastating consequences. No one is only the crime they commit. For me this conviction has evolved over 25 years providing legal assistance to condemned prisoners on death row and challenging extreme sentences imposed on marginalized people, especially the poor, children and people who are disadvantaged.

 Mass incarceration and the politics of fear and anger have made America’s criminal justice system increasingly unreliable, less responsive to error and frequently corrupted by the abuse of power. Aiding people who are wrongly convicted or sentenced and pursuing reform of policies that unnecessarily contribute to despair, inequality and injustice has always felt necessary and essential.

 I believe that America’s history of racial discrimination and the legacy of slavery, racial terrorism and segregation continues to cloud our ability to treat all people fairly. We have not truthfully confronted the costs, the trauma and the burden that our ugly and brutal history has created and we have not fully committed ourselves to eradicating the bigotry and bias that has been bred and tolerated in our country. So, my work has also focused heavily on eliminating and challenging racial discrimination and thinking about remedies and recovery for disempowered communities of color that are demoralized and discouraged.

Finally, I am persuaded that extreme poverty cannot be reconciled with justice. Poverty in America is frequently a consequence of failing to protect basic human dignity and an abdication of our responsibility to meet the basic needs of everyone. There are economic and social structures and political conditions that frequently create, sustain and perpetuate extreme poverty that must be re-examined and reformed to create a just society. This has thus become a focus of my work.

 In 1989, we began a non-profit law project in Alabama which has grown into the Equal Justice Initiative (EJI). My life and work at EJI has at times been extremely challenging and overwhelming. There is a profound absence of hope in many of the jails, prisons, courtrooms and communities where I have worked. I’ve seen many despised and broken people condemned, discarded and destroyed by fear, anger and ignorance. I’ve seen bigotry and discrimination undermine justice and fracture the lives and aspirations of too many people. I’ve also seen violence and despair create tragedy and needless victimization.

However, I’ve also been extremely fortunate. My life and work has been enriched by people whose humility and perseverance knows no measure. I have been the beneficiary of untold acts of kindness and mercy. I have been granted more grace than I deserve.

Dostoyevsky wrote that “truth crushed to Earth shall rise again,” and I have witnessed that phenomenon in some of our cases. Martin Luther King proclaimed that “the moral arc of the universe is long but it bends toward justice” and I have experienced that in our struggle to help the poor and the condemned. Jesus said that one day “the first shall be last and the last shall be first,” and I have seen this transformation in communities where hope has been resurrected and the powerless have found their voice.

 It is a privilege to advocate for human rights and to fight for the dignity of every human being. I am blessed to stand with incarcerated people, the poor, the disabled, even the despised and rejected on death row. I am persuaded that you judge the character and civility of a country not by how it treats the rich, the privileged and the powerful. Rather, you judge a nation by how it treats the poor, the imprisoned and the condemned. And so, the work goes on.

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ETHIOPIAN JUSTICE

The Ethiopian Justice System, Current Reform  Efforts, Assessment, and Recommendations.

By: Demelash Kassaye
Addis Ababa University
School of Social Work and Social Development

Executive Summery

This presentation focuses on the comprehensive justice reform program that Ethiopia has conveyed to bring an overall change on the entire service of the justice system delivered since decades.  In 1991, following many years of fighting led by various rebel movements, the Derg, as the Marxist regime which came into power in 1974 was replaced by coalition intent on establishing a democratic state.

A new constitution, enacted in 1995, provided a federal system of government in which sovereignty was to reside in “the Nations and Nationalities and Peoples of Ethiopia”. The new government soon embarked on a series of reforms designed to encourage the economic and social development of the country and reduce poverty. It was assumed that progress in these fields required to a complete overhaul of the justice system, allowing citizens to seek and obtain an affirmation of their rights as embodied in and guaranteed by the democratic new constitution. As is learned from state executive reports, it is found urgent to adapt its judicial system to the demands of the changing world economy, and political system.

 The main findings of the study described that the current legislative and regulatory procedures are streamlined in one system for fastening the trial process. To this effect, respecting the right that the Ethiopian constitution bestowed to the regional states to form their own justice system, the proclamation that legally constituted different justice organs clearly stipulated the existence of the national committee constituted in comprising the regional states and the federal government to work on matters related with restoring  justice in the country. The analysis of the present situations show that the current legislative and regulatory procedure is improved in resolving the fragmentation of the legal system, a lack of coherence between existing codes and laws and, as a result, an uncertainty as to the legal norm.

  To keep the continuum of the change, the house of representatives decreed to convey the Business Process Reengineering, whereby, currently, the Ethiopian Police, Prosecution, and Court are streamlined in one pattern, from which  the people are receiving justice from one office, which is equivalent to purchasing goods in one shop. This has brought the trial fasten and public satisfaction as well. However, though the penal code defines criminal liability, sanctions and parole, it is unclear whether there is a flow of information between the prison service and the police and Public Prosecution Service.

 Possibly the most important shortcoming of the prison system and police generally is the insufficiency of training. The lack of clear provisions regarding the relations between prison employees and the inmates, as well as the poor conditions of police stations and prisons are also grave shortcomings. The budget of the prison that the government expend to run the programs in prison homes should improve to a certain level to better serve errant in prison.     

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Key Words: Ethiopia, justice, penal code, prison

Historical and constitutional background

After the down fall of the Marxist regime, of Ethiopia in 1991, the highly centralized system of the government was changed into a democratic and decentralized federal system. The constitution of the Federal Democratic Republic of Ethiopia has been endorsed and adopted by the Nations, Nationalities and Peoples of Ethiopia, on 21 August, 1995. The constitution being confirmed by the participation of the people ensured to constitute a federal system of self determination of nine regions or states to which judicial and wide legislative and administrative powers are devolved.  The elected House of Peoples’ Representatives is predetermined by the constitution as law-making organ in all matters to the federal jurisdiction.

 The independence of the judiciary is protected by the Constitution of the Federal Democratic Republic of Ethiopia. All the judicial functions of the two levels, the federal and state are left to the courts.  Three hierarchies have been in place in composing the Federal Supreme Courts, The Federal High Court, and the Federal first Instance. 

The same three-tier system obtains in each State under the names of State Supreme Court, Zonal or high court and Woreda Courts, (Comprehensive Justice System Reform Program Base Line Study Report, 2005). The Ethiopian Constitution has pronounced the legal provision to the federal and state legislatures to legally recognise the jurisdiction of Religious and Customary Courts. Besides, courts functioning in the form of Social Courts are serving the society even though they are not mentioned in the Constitution.

 The Ethiopian Justice System

In Ethiopian justice system, as is in any other country, the justice system is not restricted to the provisions of the constitution, defining the structure and power of the court. It extends to other organs lined in restoring justice in the country, which have the role of facilitating the functioning of the courts, are charged with law enforcement or reach law. All these facilitating the trial process are interlinked one to another. As a result, any assessment focusing on the reform entail these to evaluate the whole system how it operates to satisfy needs of the people regarding justice. Therefore, the Justice system of Ethiopia has been formed in embedding the law making institutions, Institutions Facilitating the Functioning of the courts, Institutions Charged with Law Enforcement and Law.

 Teaching and Research Institutions

The Law Making Institutions

Ethiopia is a democratic country.  Two Law making institutions are constituted by the constitution:  the House of Peoples’ Representatives and the House of the federation.  Its law making procedure refers to parts of the justice system.  The latter has indirect legislative function as it can determine civil matters, which requires the enactment of laws by the House of Peoples’ Representatives, (The FDRE, Constitution, 1995).

 Institutions Facilitating the Functioning of the Courts

As is known, the Ministry of Justice has the task to advise the Federal Government in matters related with law. It works on identifying causes for the appearance of crime, modus operand of crime and design intervening strategies to narrow the possible opportunities of crime to happen. In the national regional states, the justice bureau is in charge of these roles.

Institutions Charged with Law Enforcement

In law enforcement practices, three bodies are recognised under the Ethiopian Justice system, having different functions. They are the Public Prosecution Service, The Federal Police, and the Federal Prison Commission. The Public Prosecution Office is formed under the Ministry of Justice. It is legitimized by law to prosecute federal crimes before Federal and State Courts. The Federal Police is constituted under the Ministry of Federal Affairs, are responsible to investigate federal crimes at federal and state levels. The state police have the power to investigate crimes limited under their jurisdiction and co-operate with the Federal Police, if necessary. The Federal Prison commission is responsible to the management and administration of prisons and rehabilitation of convicts.  In the national regional states, the state prison commission is responsible to implement the roles expressed in above.

 Law Teaching and Research Institutions

The educational policy and strategy of the country emphasised to fill the scarcity of skilled manpower by training professionals in the stream of law. Therefore a number of public and private universities and colleges launched the program a years back. These provide legal education with the levels of Diploma, LLB, Masters of Law, and PhD in law. Besides of this, the Justice and Legal System Institute, established in 1997, undertake research activities to identify the major problems and recommend the way forward to satisfy needs and expectations of justice seekers.

 Current Reform Efforts

The current reform program carried out in the country has come with the most blatant deficiencies of the justice systems in the country. These were insufficient number of skilled and educated judges and public prosecutors, the inappropriate and inefficient administration of the courts, and the lack of clarity and coherence in respect of existing laws and codes (Comprehensive Justice System Reform Program Base Line Study Report, 2005). In these three major sectors, reforms were initiated and implemented.

 Training of Judges, other Justice Personnel, Police Officers and Prison Administrators

The reform program has proposed phases to gradually fill the gaps identified in the first preliminary surveys. Phases included in the implementation program were classified in three successive programs: providing training to judges, public prosecutors and administrators. The educational institutions selected in the program were the Faculty of Law of Addis Ababa University, and the Civil Service College, and the Ethiopian Police University College and Regional Police Training Centres. The programs of all the higher education institutions were aimed at upgrading knowledge, skills and attitude of low level judges and prosecutors during court recess time and enhance the competence of police personnel and prison administration officials. Newly established universities, sponsored by the central government are expected to offer similar upgrading courses, seminars and workshops in matters of law, criminal justice and criminology. The program has used the country to lessen the gap of qualified judges, police and prison administrators with certain degree.

Court Administration Reform

Various ways used by different countries were used to experience `the benefit of the reform in the court administration. Pilot projects were developed under the control of the Federal Supreme Court in collaboration with some donor agencies funding multifarious reforming processes. The program was extended to Federal and some State courts and it is eventually assumed to over widen the coverage of the program throughout the country.

Law Reform and Harmonization

The harmonization process and amending of the law were held in valuing the constitutional pillars of the country, in which Ministry of Justice and Legal system research Institutes managed to control the plan developed to its effect. The process has considered two crucial points which are codification and updating existing law and codes as part of this important process.

Assessment on Law Enforcement Institutions

Assessments of Each Justice Institutions problems are identified as the composing factors contributing to the failure of reaching improved service to justice seekers. Currently, many changes are achieved as though the outcome of Business Process Re-engineering is introduced in the public service program throughout the country, (Comprehensive Justice System Reform Program Base Line Study Report, 2005).

  The Public Prosecution Service and its structure

The public prosecution service is structured as the executive branch of the government. Proclamation 4/1995 known as the Proclamation on definition of powers and duties of the Executive Organs of the Federal Democratic Republic of Ethiopia set its structure where it is to be and therefore the Ethiopian Public Prosecutor Service has the Federal and state structure at the regions level.  

 The Police

The Ethiopian Police system is organized in two known as the Federal Police Service and nine national regional states and two councils of city administration.

The Federal Police

The federal police are legally founded with the proclamation number of, 313/2003. Article 6 of this proclamation defined the objectives of the commission as maintaining the peace and security of the public due considering the constitution and other laws emanated out of the constitution.

 The regional police

The Regional states are allowed to owe their own police force. Their structure is more or less similar with the structure used in the Federal Police. The respective state authorities have the power to assign the regional police commissioner. The regional services are also independent when it comes to administering and implementing the actual police work. 

 Relation between the federal and state polices

Both have relation in matters of developing operational strategies of the country in policing.  Therefore, the regional state polices frequently ask support of the federal police when is necessary. They have good relation in setting the recruitment criteria and training to produce skilled and trained police professionals.

 Police training method has shifted into active learning than the traditional lecture type of teaching method. The aim is to produce the police officers well aligned with the actual police work where it is on the ground. The federal police have got a training centre for Federal Police, a police university college where higher police officials of the whole country are trained and regional colleges and training centres where police staffs are trained for primary police work.

 Penitentiary System

The system is relatively young, compared to the Continental-European and Anglo-American systems. In 1994, a prison administration was established under the rule of emperor Haileselassie. During the Derg regime prisons were neglected and served as the place of imprisoning citizens those who are against the Marxist political ideology. After the fall of that regime, the current government has determined to reform the whole prison system.

 Structure and organization of the Federal and State Prison services

Federal Level

The Ministry of Federal Affairs is responsible to coordinate the work of prison administration. From Articles 51 and 52 of the Constitution it seems to follow that every single state has the autonomous power to organize and administrate the prison system in its own way, provided this is compatible with provisions in the constitution.

Federal prisons are located at Addis Ababa and Dire Dawa. The Federal Prisons have branches in Zeway, Robbit and Kaliti (Addis Ababa). Women prisoners are detained in separate units

 Observation and major shortcomings related to the Law Enforcement Institutions

The public prosecution

The shortage of prosecutors in the Ethiopian Public Prosecution Service, the failure of those that do exist to meet minimum qualifications, the lack of training, the appalling conditions in which they work, the backlogs which they face and other circumstances create a worrisome and alarming situation. A democratic federation requires a well-functioning criminal justice system without a weak link. In Ethiopia, even though, there are achievements scored from the reform program, it needs the office strive for the betterment of justice in the country. The Public Prosecution Service, however, showed encouraging results to improve the bad situation experience in the past.

The Police

It is common knowledge in Ethiopia that the police wrestle with a poor image caused from the police being an instrument to suppress the interest of the previous Monarchical and Marxist regimes. Despite of doing much to change this image is gradually improving. As history of the country tells, until 1991, the police was a means for the former regime to realize its objectives, which were often not in the interests of individuals’ citizens. Although the police have on the concept of community policing, and already operate to some extent on the basis of policing by consent, it will simply take a long time before this is actually acknowledged and recognized by the public. Nonetheless, the reasons for the public image should be viewed from two perspectives in which the public works as partner of police in areas of identifying police priorities and allotting resources to advance proactive policing.

To this end, the police have been demilitarized and military ranking has been abandoned. This maintains the positive image of the police not as a service of power and oppression rather than a public service-oriented.

     Penitentiary

The federal and state prisons systems have many shortcomings. I would just like to highlight the following ones

Training

The most important shortcomings encountered the prison system are in the field of training i.e.

a)      Training offered to improve skill of civil prison staff is inadequate
b)      There is no special training on handling of custodians in police
           stations
c)      Trainings offered in police schools are not task oriented
d)      Scarcity of professional trainers in the field of law, psychology and
          sociology.

 Provisions to govern the relations between prison employees and the inmates

After the step down of the Derg regime, the police was demilitarized by law. The challenge encountered was to bring attitudinal change of police officers served the past two regimes for long. This has also been the case for prisons’ administration and prison police. Based on the observation made on the visited police stations and prisons, it is easy to understand that prison police are predominantly represented, and civilian staff is insignificantly present. Therefore, in the previous days, the administration of prisons and police stations is more of a military rather than a civilian character. This is clearly reflected in an attitude and mentality of prison police towards prisoners that is based on obedience and oppression, leading in some cases to human rights abuses. Despite of this, against from the aforementioned background, declaring clear provisions regulating the relations between inmates and the prisons administration not only avoid the earlier military mentality, it also gives wide room to avoid unfit practices to operate. This used to make the service of the parole well aligned with the international standards.

 Conditions of detention

The physical conditions of the visited police stations and prisons are intolerable in terms of hygiene, sanitation, health service, food and education facilities. Contrary to international standards and to Ethiopian laws, there is almost no separation of detainees based on the seriousness of crimes they have been convicted.

 A complicating aspect of the bad conditions of detention is the overcrowding of police stations and prisons. As a matter of fact, overcrowding in police stations and in prisons makes the justice system suffer for awaiting of trial, or pre-trial detention.

  Lack of Budget

There is no need for research or studies in order to conclude that police stations and prisons have been neglected for a long time. By the same token, it is obvious that the administration of prisons has lacked and currently lacks budget. 

  Way forward to prosecution, police and prison administration

  • The present reform program has scored change on the service of Ethiopian Justice, but needs to think of the progress how it can continue, so as to better serve the people.
  • The service that the police deliver should be in line with the philosophy of community policing and extend the service up to maintaining quality life of the people
  • The training manuals and methods of teaching should embrace some of the international standards, and interlink the cross-cutting issues of the institutions in phases of the training stages
  • The training given must focus on problem based and interactive learning in order to bring behavioural change among police and prison administration
  • Adequate resource relevant to education, health, and others should be in place to improve the management of inmates in prison   

 References

Comprehensive Justice Reform Program. (2005). Base Line Study Report. Published

The Federal Democratic Republic of Ethiopia, 1995.

The Proclamation of the Ethiopian Federal Police, 2003.

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Prison conditions:

CONAKRY GUINEA

By  James  Emile GBALLET
Executive Director of  Guinea CURE

 The first and second world war will have effects on the decision to reexamine the question of human dignity.

The aim to reach is the respect, the protect and security of human being at any level in the life such as the family area , the administration area, or in prisons.

What do we notice in Guinea prisons ?

OVER POPULATION IN PRISONS

In Guinea as wherever on the continent problems of prisons areas are generally the same: over population due to over aged prisons.

The Conakry Central prison built in 1958 was destined to receive 400 prisoners but today, more of 1200 several prisoners  live there.

The prison of Conakry, the biggest one, is not the same faced with such same difficulties.

DISEASES IN PRISONS

The full number of prisoners create all conditions for many diseases.

In September 2002, at Conakry central prison , cholera is increased with three hundred (300) cases, Tuberculosis continues creating many damages.

At the central prison as the other ones inside Guinea for instance N’Zerekoré , Labé … ,malaria and breathing infections are a lot.

The same thing for A.I.D.S (Acquired Immune Defiance Syndrome) goes on and cause many victims.

UNDERFOOD  IN PRISONS

In the central prison as the other  ones of Guinea, prisoners are  underfed ; a meal by day and that meal about three rice spoons bad quality and a few oil on the rice .That brings a lack of vitamin for their health ; 350 cases in 2003.

CLEANLINESS AND HEALTH IN PRISONS

In all prisons in Guinea ,the prisoners are faced with problems of cleanliness. The prisons stink, disturbing the prisoners then cause problem of health. The Prisoners ²are not tended in prisons so they are not healthy at all.

EDUCATION IN PRISONS

In Guinea prisons ,there is no school program at primary level ,secondary level and highest level. There is no professional education or some lectures that could develop the ability of prisoners. That  could make them responsible towards the social community.

THE JURIDICAL  ASSISTANCE

The prisoners in prisons are  forgotten to be judged so that they waste many times .They don’t  their rights or their duty and they hope one day to be  judged in vain. The last solution is escape from the prison.

THE RELAPSING

The Guinea’s prisons are not the areas to re socialize  plenty of prisoners . Many are  released and put again in prison for having committed an offence. They are not able to be well bred and become use full for the society. Because the problem of education has failed during the imprisonment.

Seven(7) out ten(10) prisoners relapse.

Conditions of imprisonment in Conakry Guinea  are very difficult. It is one of Africa countries having many problems to satisfy people’s elementary needs.

PROPOSITION OF SOLUTION

In order to secure the respect of prisoners we  are going to establish a cooperation with the penitentiary administration so as to improve the conditions of imprisonment.

Knowing that the situation will be step by step improved , we shall struggle reach the aim; putting prisoners in the best conditions.

We shall make prisoners carry on a trade so that to be responsible, useful in the society after releasing.

To build some new in order to reduce the great number of prisoners in old prisons  in Guinea and to rehabilitate some of them in a bad state.

International  CURE  must sometime be present near by African CURE chapter. So that to prevent African governmental authorities from disturbing international rules of imprisonment.

The penitentiary administration will have educate penitentiary agents about how to respect the human rights of prisoners.

Man must respect the time of judgment of persons who come under the law. Don’t waste the time to judge somebody under the law in prison. Judging all prisoners beyond 10 years.

                                                                      I THANK YOU

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Conference Kick-off

48 Ways Forward and 4 Goals

Charles Sullivan, Founder and Director of International CURE

 Each of you have been given a copy of the recent CURE Booklet, “Ways-Forward to Transform Justice and Prison Systems, from primarily retribution to primarily restoration, rehabilitation, and reintegration.”  This booklet provides the basis for a CURE platform in coming years.

To guide this transformation, the booklet presents multi-country analyses of 5 key problem-areas, (drawn from CURE assessments of justice and prison systems in 14 African countries and 35 countries in the western hemisphere),

and each problem-area in 3 parts:

 – 1.) a reported example of Retribution in each of these 5 problem-areas (examples drawn largely from CURE assessments of 14 African countries),
 – 2.) a statement on transformation in each area, and.
 – 3.) recommended Ways-Forward in each problem-area (drawn from years of work by CURE and others, and conferences on justice and prisons). These ways-forward are selected to gradually transform justice and prison systems, by strengthening human rights and strengthening processes that restore, rehabilitate, and reintegrate. 48 Ways-Forward are in these five problem areas:

   Area 1. Judicial Systems. (6 Ways Forward)

   Area 2. Over-incarceration vs. Alternatives. (7 Ways Forward)

   Area 3. Abuse. (11 Ways Forward)

   Area 4. Health Care. (8 Ways Forward)

   Area 5. Rehabilitation & Reentry. (16 Ways Forward)

 Typical reported retribution examples are:

  • “Defendants may spend years in detention waiting for trial. The judicial system is hampered by inefficiency, corruption, and lack of resources. Legal advice is rarely provided to the poor.”
  •  “Many places of detention hold 2-5 times their design capacity, sometimes forcing occupants to sleep sitting up or turn over on the floor in unison.”
  • “Security forces beat and abused detainees and persons in detention to punish them, extract confessions, or extort payments with near-total impunity.”
  •  AIDS, tuberculosis and other diseases are much more frequent in many prisons. “Poor sanitation, inadequate medical facilities, meager food supplies, and lack of potable water resulted in serious outbreaks of dysentery, cholera, and tuberculosis, which were exacerbated by overcrowding.”
  •  There is neglect and denial of remedial education and job training that are needed to create a possibility for inmates to live productive lives.

All the above is also online in the CURE website at www.internationalcure.org Within this broad platform, CURE has further proposed a small set of target goals, to be achieved within the next  five years.:

By 2015 :

1.      Reduce the annual admissions to prisons by 30% – 50%

1a. Increase the use of alternatives to incarceration. Each State should foster and coordinate
                        local practice of alternatives.

 1b. Improve the availability of defendant’s  legal counsel.

2.      Improve prison-judicial practice.

2a. Reduce pre-trial waits; and set a maximum allowable wait time of one month.

 2b. Reduce overcrowding in all prisons; and enforce a limit of 120% of design capacity.

2c. Reduce false convictions.

    
3. Reduce AIDS and other communicable diseases in prisons by 30-50%

3a Provide programs for inmates on coping with AIDS and other diseases, including disease transmission-education, testing, treatment, and counseling.

  3b The Ministry of Health should take the responsibility of health in prison; and prisons should be included in all public health programs.

4. Reduce recidivism rates by 30% – 50%.

4a. Make job training for decent work and rehabilitation-reentry a prime purpose of all correctional facilities.

4b. Reduce prisoner abuse; build citizenship by humane and constructive treatment.

These policies pay for themselves many times over. This improved legal access, wider use of restorative justice, protection against abuse, combating disease, and holistic education, within justice and prison systems, will ultimately promote social inclusion and social integration. These policies then result in increased productivity, less crime, and more personal security for all.

It is ultimately more economical to thus restore, rehabilitate, and  reintegrate than to eradicate by retribution. Many societal costs, including costs for police,  judicial,  jails,  prisons, welfare, medical, and other costs of after-effects, are thereby reduced.

All  CURE chapters and friends are encouraged to focus on supporting the 48 Ways-Forward and achieving these goals, which serve to favorably transform our justice and prison systems.

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HUMAN RIGHTS ARE PRISONERS’ RIGHTS[1]

 Etannibi EO ALEMIKA, PhD *

 Introduction

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:

  1. identification of specific behaviours by the rulers (in and out of formal structures of government) as harmful and therefore should be prohibited;
  2. enactment of laws prohibiting and punishing the behaviours;
  3. establishment of law enforcement agencies to enforce the provisions of the laws,
  4. interpretation and application of the law by relevant prosecution and judicial agencies in respect of the conduct of an individual , and
  5. 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:

  1. United Nations Declaration of Human Rights (UNDHR): 1948
  2. International Covenant on Civil and Political Rights (ICCPR):
  3. Standard Minimum Rule (1955) outlined the minimum custodial conditions under which prisoners may be remanded or sentenced.
  4. Standard Minimum Rule for the Administration of Juvenile Justice (Beijing Rules): 1985
  5. Rules for the Protection of Children Deprived of their Liberty (1990)
  6. Standard Minimum Rule for Non-Custodial Measures (Tokyo Rules): 1990
  7. Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment.
  8. 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:

  1. African Charter on Human and Peoples Rights was adopted by OAU in 1981 and came into force in 1986, October 21.
  2. Kampala Declaration on Prison Conditions in Africa (1996)
  3. Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa. (The Robben Island Guidelines)
  4. Kadoma Declaration on Community Service Orders in Africa 1997; 
  5. Arusha Declaration on Good Prison Practice 1999
  6. 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”[2].  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[3].

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:

  1. 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,
  2. that prisoners should retain all rights which are not expressly taken away by the fact of their detention,
  3. that prisoners should have living conditions which are compatible with human dignity,
  4. that conditions in which prisoners are held and the prison regulations should not aggravate the suffering already caused by the loss of liberty,
  5. that the detrimental effects of imprisonment should be minimised so that prisoners do not lose their self respect and sense of personal responsibility,
  6. 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,
  7. 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,
  8. that special attention should be paid to vulnerable prisoners and that non-governmental organisations should be supported in their work with these prisoners,
  9. 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;
  10. 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,
  11. 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: 

  1. that petty offences should be dealt with according to customary practice, provided this meets human rights requirements and that those involved so agree,
  2. 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,
  3. 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,
  4. that the work done by the offender should if possible recompense the victim,
  5. that community service and other non-custodial measures should if possible be preferred to imprisonment,
  6. 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,
  7. 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:

  1. 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.
  1. 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.
  2. Use of traditional justice as a way of dealing with crime in line with constitutional guarantees and human rights standards.
  3. Improving referral mechanisms between the formal (State) justice system and the informal (non State) justice system.
  4. 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:

  1. 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.
  2. 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: alemikae@yahoo.com]

[1]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.

[2] National Audit Office 2010 Managing offenders on short custodial sentences. London: The Stationery Office, p4

[3]Ibid.

 

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 THE KSM PRISON MINISTRY: OUR EXPERIENCE & PROPOSALS FOR REFORM

by Bro. John A. Jideonwo of the LEKKI Sub-Council of the Order of the Knights of St. Mulumba, Nigeria

Good morning Mr. Chairman, Fellow Panelists and Distinguished Ladies and Gentlemen. It is indeed a privilege for me to be present at this international conference to present to you what we at the Lekki Sub-council of the Knights of St. Mulumba have been able to do differently and the difference we have thereby been able to make in a very short time of prison activism.

Let me start by introducing the Order of the Knights of St. Mulumba (KSM) more properly. The Order of the Knights of St. Mulumba (KSM) is a 57-year old national order of catholic knights founded upon the principles of Catholic Action and modeled after the Sacred Order of Catholic Knighthood. It is a member of the International Alliance of Catholic Knights (IACK) as well as the International Council of Catholic Men (UNUM OMNES). The Lagos Metropolitan Council of KSM has, over the years, focused its Charity efforts on the prison system and is currently engaged in the construction of a Chapel at St. Augustine’s Catholic Church at the Kirikiri Medium Security Prison in Lagos. On its own part, the Lekki Sub-ordinate Council of KSM fashioned itself a Prison Ministry which is primarily focused on the release of prisoners and expediting pre-trial justice. This presentation chronicles our experience in this Prison Ministry and our recommendations for reform.

PART I: From Whence Comes KSM?

The KSM involvement in Prison Ministry is founded on the following Christian principles and injunctions which themselves constitute the basis for Catholic action:

  • Christ’s own Declaration as contained in Luke 4 v. 18: “The spirit of the Lord is upon me, because he has anointed me to preach the good news to the poor, He has sent me to proclaim release to the captives and recovering of sight to the blind and to set at liberty those who are oppressed..”
  • Also, speaking of the Last Judgment in Matthew 25 v 31-40, Christ listed visit to prison as one of the examples of the precept by which we shall be judged (v. 36)
  • In following with the foregoing, the Catholic Church lists Visiting Prisoners as one of the seven Corporal Works of Mercy to which we are called as true followers of Christ
  • As Knights, we see the duty imposed on us by an active Prison Ministry as the logical extension of the principles of “The Culture of Life’ as enunciated by Pope John Paul II, enjoining all Catholics not only to fight for Pro-Life (Anti-Abortion) causes but to ensure the defence of that life from its creation at the moment of conception till its natural termination at the point of death.

PART II: THE KSM LEKKI SUB-COUNCIL PRISON MINISTRY AS A MODEL:

The KSM Lekki Sub-council Prison Ministry started like many other prison ministry activities and consisted mainly of Quarterly Visits to the Ikoyi Prison in Lagos during which food, clothing, medicaments, books and other essential items are given to the prisoners and the Knights and Ladies of St. Mulumba attend Mass with the inmates. These visits however led to the discovery of various horrors and injustices that were embedded in the prison system that needed to be addressed more meaningfully. These included:

  •  Many innocent people (about 75% of Awaiting Trial Detainees) are languishing in prison for years, awaiting a trial that may not come.
  • A large number of the suspects are held for minor offences arising from state laws for which they could not afford to pay the instant assessment of fines by mobile courts
  • The plight of women and children in the prison system and the various reports of abuse, especially of pregnant women

These observations led KSM Lekki Sub-council to decide to scale up its prison charity project into a full Prison Ministry.

The KSM Lekki Sub-council Prison Ministry Model: This model is based on the following components which can be achieved by any NGO or faith-based organization that seeks to make a difference:

–          Recognition of the need to accelerate the processing of cases and to facilitate the release of pre-trial detainees and people held for minor offences

–          Recruitment of lawyers and volunteers who, with the co-operation of the Prison authorities, can review the files of detainees and recommend ways to achieve release in deserving cases. In this regard, we wish to make special mention of the work of A.G. Giwa-Amu Chambers and also Awa Awa & Co and Panuka Chambers who were the initial teams of lawyers that KSM Lekki Sub-council contacted to do the legal review of the cases. We are proud and happy to report that each of these teams has begun to pursue many of the cases on pro-bono basis. The lesson is that, once the lawyers have been sensitized, it is difficult to walk away from this noble assignment.

–          Another important component of this model is the readiness to develop strategies for approaching the courts, payment of small fines, effecting release and efforts to facilitate re-entry

–          Special mention must be made of the issue of high-profile cases (murder and armed robbery) for which people are detained for long periods and either there is no complainant or victim or dead body as evidence; the fact is that 80% of these cases are classified in this category because the offences are not bail-able. 

–          Report on actual achievements: 10 months of the Prison Ministry and only SIX MONTHS of activism, 351 detainees and prisoners released.

–          This is a model whose methodology can be copied whenever a group of lawyers and concerned citizens can be sensitized as to the situation of horror and injustice that is prevailing in prisons all over the world. You just need a few good men who are willing to spend their time and treasure to bring succor to their less fortunate brothers and neighbours.

PART III: SUGGESTED SOLUTIONS AND REFORMS

These recommendations are being offered in the firm belief that, notwithstanding the horrendous situation which the foregoing account presents, the entire situation can be salvaged and is totally reversible if there is sufficient will to reform the laws in order to reform the prison system. The primary focus of efforts should be to ensure that only those deserving of incarceration actually get to the gates of a prison; the real work has to be done at the level of the police station. Efforts to reform the justice administration and policing philosophy can offer some “low hanging fruits” in seeking to reform the prison system

   There is need for a comprehensive review of the code of laws to repeal all laws that have vestiges of the colonial system of governance that was aimed at conquering, dominating, intimidating and exploiting the indigenous citizens of the host colony as a way of containment. Such elements of the criminal law as “wandering with intent to commit felony’ and the power to “Stop and Search” often invoked by the police have no place in a civilized Nigeria. It is the existence of such laws that encourages all sorts of abuses by the Police in arresting and detaining people.

The Constitution of the Federal Republic of Nigeria specifies a maximum police detention of 48 hours and this should be strictly enforced. It should not be possible for any person, no matter his office or position, to “keep” another human being in detention for more than this period without the approval of a court of competent jurisdiction.

  • Similarly, all laws that tend to punish offenders of those usually administrative guidelines such as street trading, jay-walking, illegal parking, sanitation offences etc. by imprisonment should be repealed and other non-judicial ways should be found to deal with the problem. These laws unnecessarily criminalize the offenders (especially first-timers) for activities that should not reasonably be regarded as “criminal” in a poverty-stricken country. The sad issue about this observation is that many states now make significant revenue from these “stupid” laws and are quite happy to them since they do not bear the burden of the cost of imprisonment
  • There is need for a comprehensive review of the role of the Police in the dispensation of justice. What we have is a carry-over from the colonial philosophy of custody and containment and under which the police was at once the arrestor. investigator, prosecutor and jailor! There is need for a review of the policing philosophy that proceeds from arrest to detention and then uncertain remand without indictment. There is need to amend judges practice codes to ensure that indictment must come before remand.
  • Efforts must be made to resolve the following Constitutional lacunae in order to ensure more equitable and transparent administration of the law and justice in Nigeria:
    • The legal system of the country consists of State and Federal laws whereas the Prison system is on the Exclusive Federal Legislative list. We therefore have a federal prison system without a corresponding state prison system. States can therefore make laws without thinking about the cost-effectiveness of imprisonment as a form of punishment. Since most of these “stupid laws” are state laws, the resolution of this problem is to force the States to build and manage their own prisons. This will reduce overcrowding in the prison system and free up funds for rehabilitative work among detainees and even prison officials. Alternatively, the states should be directly debited for state-law offenders sent to the federal prisons> This should discourage them from making “stupid” laws that unduly criminalize their own citizens.
    • The Attorney-General is supposed to be the Chief Law Officer at the State level but has no control over or any relationship with the Commissioner of Police (the Chief Law Enforcement Officer) who reports directly to the Inspector-General of Police at the centre. Nor is the pattern of Police-Prison relations under his purview. There is need for better harmonization of the activities of law enforcement agencies to ensure that those responsible for the administration of justice can ensure that only deserving people are incarcerated.

 5. The average pre-trial waiting time in Nigeria is reported to be 3 years and 7 months whereas most of the offences in the statute books carry prison terms of less than 2 years.  The need for a comprehensive reform of the Pre-Trial Justice System in Nigeria thus cries to high heavens and must be pursued on a war-footing at both the national and state levels. Some of the suggestions that need to be implemented include the following:

  • Establishment of time-limits and “return dates” within which any suspect on remand must either be indicted or released. Lagos state has taken the lead in specifying the time limits at 60 days but does not insist on indictment or immediate release. Efforts should be made on a national basis to reduce the maximum initial remand period to 30 DAYS. The time-limit must be enforced and should not be arbitrarily renewed.
  • There is need to hold the Magistrates responsible for enforcing the return dates specified in the REMAND ORDER as specified above and any request for extension should be subjected to judicial review by a higher court.
  • Prison authorities should be empowered to refuse to hold, keep or otherwise detain any person without prior court order. This would stop a lot of malpractices and abuse of authority by personnel of the Military and State Security Services.
  • In an effort to ensure that only those deserving to go to jail actually get there, there is need to step up efforts to eliminate unlawful arrests and arbitrary detention at the level of the Police Station.
  • The present system by which the Police can remand before investigating is problematic particularly when the police lack the capacity to investigate. This is what leads to incidents of extortion, torture and extra-judicial killings. There is need for the Nigerian Bar Association (NBA) to take closer interest in these matters and encourage lawyers to regularly visit the Police Stations and prisons to offer legal advice and representation on a pro-bono basis. The Rights Enforcement and Public Law Centre (REPLACE) and the Legal Aid Council of Nigeria (LACON) have both jointly instituted the Police Duty Solicitors Scheme (PDSS) which has yielded some results in Imo, Ondo Kaduna and Sokoto states and is being implemented in Delta, Edo and Kebbi states. The NBA needs to take this project over and see it implemented at the national level.
  • The Administration of Justice Act, 1991 provides for the establishment of Administration of Justice Commission(s) at the Federal and State level with principal responsibility specified as “to ensure that criminal matters are speedily dealt with” and the “effective performance of the functions of all organs charged with the administration of justice” in Nigeria. There is no reason why this aspect of the law has not been implemented and it is important that the National Judicial Council, the Chief Justice of Nigeria, the State Chief Judges, the Attorneys-General at Federal and State levels should all be sensitized to this gaping gap in the implementation of the law that has become a veritable source of the injustices that we witness every day.

 6.   The worst part of the problem is that people are benefiting from the entire malady that is     the Nigerian justice administration, law enforcement and prison system. To the extent that the system fails to prosecute embezzlers of public funds on time because of the possibility of interminable delays, it degenerates into a system of economic sabotage and promotes a subterfuge of the nation’s economic future. It also sends the wrong signals down the line that only the poor and powerless people go to jail which lends credence to the culture of impunity that is now commonplace in Nigeria. Many of the solutions proposed here will not yield fruits unless and until all Nigerians are held to be equal before the law and nobody can violate the rights of the other without consequence. Fundamental human rights are so fundamental that they are so clearly spelled out in the UN Charter, The African Charter on Human and People’s Rights and all other similar declarations. There is no room for Nigeria to exempt itself from these hallmarks of civilization.

CONCLUSION: I would like to conclude this presentation by reminding you that what we have tried to chronicle here is the effort of “a few good men” who felt sufficiently sensitized to the plight of their fellow men and decided to take action. Every society has a critical mass of such few good men and so, what we have done at Lekki Sub-council of KSM can be easily duplicated elsewhere especially in Africa. We therefore recommend this model to all good men wherever they exist and assure them that the effort is most rewarding both emotionally and spiritually.

I thank you all for listening.

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PRISON OVERSIGHT

The Dilemma of Prison Oversight

by Elizabeth Alexander

As we all know, running decent and humane prisons is horribly hard to do. In many respects, it is one of the most difficult tasks that government can perform because there is something inherently contradictory about designing a system that is supposed to punish people by depriving them of their freedom while nonetheless recognizing their human rights.

Further, at least when the staff in charge do not actively reinforce norms of humane treatment, it is disturbingly easy for a pervasive climate of abuse to flourish within a prison.

In the academic literature, the standard illustration of this is the Stanford experiment, in which in 1971 a prominent American psychologist set up a mock prison. The experimenters randomly assigned perfectly ordinary American college students, screened for psychological health, to play prisoners or guards. They then took a number of steps with the intent to reproduce the degrading effects of prison, such as having the guards strip search the prisoners and put them in gowns rather than standard male clothing. The guards were given no rules for how to run the prison, but the attempts to recreate the degrading effects of prison life had the effect of removing moral inhibitions to psychological abuse of the prisoners. In this atmosphere, the newly minted guards engaged in such unbounded psychological abuse of the prisoners, with the tacit support of the experimenters, that several prisoners experienced mental breakdowns and the experiment had to be stopped on the sixth day.

 As has often been pointed out, Abu Ghraib is a real life version of the Stanford experiment, in which authorities’ signals that abuse of targeted detainees would be tolerated with the aim of producing military intelligence generated rampant and  shocking abuse, with the additional difference that the Abu Ghraib abuses did not, like the Stanford experiment, end after six days. The lesson is inescapable that avoiding abuse in prison requires active vigilance, careful training, and meaningful oversight.

 Another factor that makes avoiding abuse so difficult is that those who are sent to prison are likely to have characteristics that can make it easier for staff not to see their humanity. Criminals are not generally popular and the evidence from all around the globe is that the people who tend to get labeled as criminals and thrown into prison are those who belong to whatever the locally disfavored ethnic or religious group is.

Nor is prison reform the most obvious cause for the media,  concerned citizens, or NGOs to take on, because prisons are after all closed institutions and it is almost always difficult for outsiders to get reliable information about conditions inside. Thus, prisoners as a group are not viewed as very valuable or believable when they do complain by the outside community.

 The fact that meaningful prison oversight is so intrinsically difficult has led to a great deal of discussion about what sort of structures work to accomplish such oversight effectively. I first began to think about this structural issue in 1999 when I attended a Council of Europe Directorate on Human Rights Conference in Strasbourg, France that was held in connection with the 15th Anniversary of the UN Adoption of the Convention Against Torture. At the Conference speakers representing various European countries described their roles in attempting to implement their country’s commitment to ensure decent and humane conditions in their country’s prisons. These speakers described a number of quite different monitoring mechanisms, from ombudsmen completely independent of the government of the country to the heads of governmental programs located within the country’s correctional agency. The Conference encouraged free dialogue among these various representatives, and the comments of the various overseers during the dialogue were often much more revealing than their official presentations.

What became apparent at the Conference was that there were problems with attempting to locate prison oversight either inside or outside of the formal governmental structure, but that the problems were mirror images. For the prison overseers who were inside the formal prison structure of their country, the weakness was the degree of their commitment to prison reform. While many of those overseers were no doubt good people who sincerely believed in decent prison conditions, there seemed to be clear limits to their vision of prison conditions imposed by their commitment to their role within the government.

Indeed, one or two of these national representatives seemed to view their own primary function, at least in the context of the Conference, to be to defend the reputation of their country’s prison system.

 Those overseers who were outsiders – who functioned as ombudsmen or in some similar role – generally had a markedly different outlook. They did not see their role at the Conference as defending the reputation of their country’s prison system but rather believably described their role as attempting to ensure that the guarantees of the Covenant against Torture were a living reality in their nation’s prisons. For most of these participants, I did not doubt their full-hearted commitment to decent and humane prison conditions, but I was struck by their repetitive tales of their adventures in confronting the prison bureaucracy in unsuccessful attempts to get reforms implemented.

 I concluded, as I listened to the participants at the conference, that the problem of locating mechanisms of oversight within the governmental structure is that the person appointed by the bureaucracy is likely to lack a meaningful commitment to meaningful change. In contrast, when the mechanism for oversight is located outside the formal governmental structure, it will predictably turn out that, even if the person appointed is fully committed to the goals of the Covenant Against Torture, that person also lacks the authority to force changes in prison conditions when it matters.

In short, overseers within the government typically lack the will to drive meaningful prison reform, while entities like ombudsmen who function outside the government structure lack the power to do so. This is a structural problem in designing effective oversight measures for prisons, because governments are unlikely to cede power to entities that might actually interfere with their own authority in managing prisons.

My next thought was that this is a pretty trite insight. But then I realized that there were reasons for my slowness in gaining this understanding of the problem, because the United States for a very brief period managed to escape in part from the dilemma of oversight mechanisms. For the period between the late 1960’s and the mid-1990’s, the United States, to a greater extent than any other country, attempted to accomplish serious prison reform through the judicial system, and that attempt resulted in both enormous victories and ultimately in enormous failures.

Let me sketch out the barest history of judicial reform of prison conditions in the United States. Prison reform through the courts was one of many spin-offs from the civil rights revolution of the 1960’s. Nor only did the civil rights revolution lead to a recognition that prison conditions had to be subject to constitutional guarantees, but large numbers of people active in the civil rights revolution had direct experience with our nation’s prisons and jails courtesy of arrests for non-violent resistance to segregation and discrimination. Indeed, the trio of important Supreme Court victories for prisoners in the 1960’s involved the intersection of race and the courts.

 One of these cases widened prisoner access to the courts, another condemned racial segregation in prisons and jails, and a third protected the religious rights of Muslim prisoners – which in the American context at the time meant Black  prisoners who were suspected of radical political ideologies.

 In the 1970’s, the prison reform movement achieved systemic victories in the American South that in state after state abolished plantation prisons that had functioned as a partial replacement for slavery after the Civil War. While the prison reform movement was somewhat less successful in achieving systemic change in the northern and western states, throughout the nation federal judges took on the work of ensuring minimally decent conditions of confinement in prisons and jails. This period in the American prison reform movement remains one of the outstanding examples of serious prison reform throughout the world.

 For approximately 1968 to 1981 particularly the lower courts in large measure did have both the will and the power to make extraordinarily far-reaching prison reform work, in spite of all the obstacles to that undertaking.

And what made it possible? The judicial system, at least in the United States, to a large extent potentially combines the power of the government itself with a will that is independent of the particular administration in power, so that the judiciary can pursue a policy for prison reform that is institutionally independent of the particular regime in power and indeed markedly independent of the expressed preferences of the electorate itself while the judiciary still enjoys the enforcement power of the state itself to effect change.

 But this example does not mean that judicial reform unsupported by the executive and legislative branches of the government is a stable solution to the problem of prison reform, as is illustrated by the fate of the judicial prison reform movement in the United States. The judicial reform movement had broad objectives regarding political and social equality, particularly racial equality, and the very success of judicial reform led to a serious backlash.

One of the forms that this backlash took was conservative calls for a war on crime that in some forms was just under the surface a call to lock up black men. Between 1970 and 2005 the number of persons confined in American prisons went up by 700% and the percentage of African-Americans among those prisoners went up even as the total number of prisoners sky rocketed, with the result that the United States now incarcerates almost a total of the world’s prisoners – over 2.3 million prisoners.

The forces of reform through the courts confronted the forces of backlash as changes in the justices making up the U.S. Supreme Court changed with new appointments. In 1981, just as the population explosions was getting into high gear, the Court decided Rhodes v. Chapman, and in that case the Supreme Court made it very difficult to get the federal courts to intervene to control prison overcrowding. If the Court had approved the lower court’s order limiting prison overcrowding, that ruling would have eventually made the huge prison population expansion of the 1980’s and 1990’s impossible. The United States, even before the financial crisis that started in 2008, simply could not have afforded to keep over two million men, women and children locked up. By the mid 1990’s, even though the will of the judiciary to require decent conditions was already waning, the U.S. Congress pushed the process along by enacting a law, the Prison Litigation Reform Act, that made it much more difficult for federal courts to continue to oversee prison conditions.

Whether the judicial system will continue to exercise any meaningful oversight over American prison conditions is at issue in a case that the United States Supreme Court will decide in June of this year. For years, California has embarked on imprisoning vast numbers of people for long periods. At one point, the number of prisoners held by the state exceeded 200,000, and California simply cannot afford to imprison that many people. As a result, overcrowding within the prisons reached desperate levels and many prisoners died from a lack of medical care. Lower court judges found that the only solution to the problem would be to reduce the population to a level that California could safely feed, house, and care for, and now the United States Supreme Court must decide whether to limit judicial oversight of prisons even more by reversing the lower court or whether to announce that there are still teeth in the requirement that prison conditions comply with the constitutional guarantee against cruel and unusual punishment.

 If the Supreme Court does require a reduction of the California prison population, it would be a departure from the current Supreme Court’s typical approach to prison conditions. Ordinarily, the Supreme Court Justices do not challenge the legal principle that prison conditions are subject to constitutional limits, but instead the Court imposes arbitrary procedural requirements, such as proof that a particular governmental official acted with ill will, that result in the prisoners losing regardless of how bad the prison conditions are, so prison law in the United States is again at a crossroads this year.

 So what is the message from all this? Whether there are other types of oversight that can do even better and more reliable job than judicial oversight is an open question, but we should not give up on judicial oversight as a method of prison reform. In the United States, in recent years prisoner rights advocates have often despaired that the federal courts could continue to be a source of serious oversight of prison conditions and most of the energy in the discussion about oversight methods has focused on the possibility of using other methods, such as ombudsmen and internal mechanisms such as inspector generals. While the history of prison reform in the United States shows that independent judiciary is absolutely no guarantee of meaningful oversight of prison conditions, an independent judiciary has intrinsic structural advantages that are not shared by most other mechanisms for prison oversight.

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