International Human Rights Law and Prisons in Africa
Term Paper
4500 words
Introduction
The International Centre for Prison Studies’ World Prison Brief, in its report suggested that over 10 million individuals are formally incarcerated in prison and correctional facilities around the world. According to the same Brief, even more are held in either military facilities where they are detained or in security or police facilities without any specific legal process underway. There are three categories that the United States’ (U.S). Government has for humanitarian and human rights concerns as they relate to these individuals who are housed in a detention facility that is; 1. unsafe in terms of the conditions in the facilities where there might be concerns of poor sanitation, overcrowding, inadequate access to either potable water for drinking or to food, lack of access to adequate healthcare, which also includes lack of adequate services for those inmates with disabilities; 2. Mistreatment of prisoners either is the hands of staff members or other authorities, and 3. Legal protections that are not adequate, resulting in prisoners' incarceration, without proper channels made available to them allowing them to exercise their legal right to redress. The focus on these three main categories in the United States is mirrored in human rights and international law worldwide, where the rights of prisoners, the conditions in which they live while incarcerated, and services they receive or not in prison are major areas of human rights concern. The continent of Africa is not different, where correctional facilities lack sanitary conditions deem appropriate for prisoners to live, depravation of healthcare, and the violation of rights of prisoners, especially women prisoners in facilities throughout the continent.
Background
South Africa is one of the most progressive countries in Africa; however, its facilities too are fraught with problems that are considered violations of human rights laws and standards. As mentioned before at any given point in time there are at least 10 million inmates in correctional facilities worldwide. In Sub-Saharan Africa alone, there are about 668,000 inmates, and close to 1 million throughout the entire continent. Five percent of the entire inmate population in Africa is made up of females, who because of their historical unequal positons, gender-biased criminal justice system and socioeconomic vulnerabilities are extremely vulnerable to human rights violations. Human rights for prisoners in Africa are clearly laid out in the African Charter on Human and People’s Rights, which lays out the provisions detainees, are afforded. The vulnerabilities of female inmates have become a priority in a society where women are larely treated unequally, which also transfers into the correctional facilities, where there is human laws that have been strengthened to promote equality in the face of the law and prevent these inmates from becoming victims of discriminatory practices in prisons. As a result of this chronic human rights issue in Africa, numerous resolutions, declarations and international instruments through the African Commission on Human and People’s Rights (ACHPR) have been developed, created and employed regarding the rights of these inmates. The aim of developing these instruments is to prohibit torture and cruel and inhuman treatment from being inflicted on inmates, creating an equal and fair criminal justice process, leading to equal treatment before the law and in the judicial system. This expectation is that these instruments will influence the creation of reasonable prison conditions as a rebuilt of an accelerated penal reform through the Special Rapporteur on Prisons (SRP), while monitoring both the protection and promotion of the rights of inmates.
What are human rights? These are rights and duties that are necessary in order for human dignity to be protected, dignity that is all human beings have, in spite of the differences in sex, national or ethnic origin, language, color, religion or other statuses. Protection of such rights prevents individuals from being treated unfairly and prevents them from becoming victims of discrimination. Human rights are universal, indivisible, interdependent and interrelated basic rights, which is at the core of development, peace and security. These rights according to Kaguongo (2003) are both invaluable and equitable rights that can be found in the preamble of the United Nations Charter to reaffirm these rights for women and men world-wide. Governmental and non-governmental action is bridged by National Human Rights Institutions (National Institutions, NHRIs). This is relevant to the African context where prisons often suffer from insufficient infrastructure, inadequate resources that have resulted directly from an ever-growing prison population that has resulted in overcrowding in African prisons. As a result inmates find themselves living in environments that clearly violate their human rights. Since the establishment of the Human Rights Commission (HRC), it has received numerous complaints about the violation of inmates’ human rights that have been laid out in the Bill of Rights (“Report of The National Prisons Project of the South African Human Rights Commission, n.d.”). Human Rights in Africa: Bösl & Diescho (2009) assert that the legal concept called human rights in Africa is a rather late concept, and it has gained much attention due to the emphasis placed on it by the African Union, international law and the United Nations (UN) System; all responsible for establishing and developing African human rights system. This was greatly impacted on the advancement of human rights, and demanded respect for human rights in Africa.
According to Andrew Sobanet (2002), prison is a concept that presents itself as a unique cultural modality that is connected to what is termed ‘prison novel’, a type of literary modality. As prisons are studied the connection between crime and punishment is detected, and often is analyze in accordance with these relationships. Even though most of the literature available focuses primarily on American and English prison, there is more literature today that authors write exclusively on prisons in Africa. Prisons have been used as a form of social control, according to Petersilla and Tonry, however, with imprisonment comes a focus on incapacitation, deterrence, and effects imprisonment has on the children of offenders, prisoners as well as the communities in which they live. With the constant concern about prison conditions, alternatives to incarceration where according to Jones and Cornes, there needs to be ‘prisons without bars’ that highlights rehabilitative functions inherent to prisons and containment. Alternatives in corrections are part of what Balfour (2005) calls the ‘integrated justice system’.
There is a life-long controversy surrounding the way prisoners are treated in Africa whether it is when they are sentenced in court, or awaiting trial or some form of adjudication; mistreatment of inmates is a familiar and unsettling topic for correctional staff worldwide in and around central and southern Africa. One of the major concerns that follow prison conditions is prisoners’ rights, and whether inmates have any rights at all. Some inmates knows they have rights and are adamant have their rights being safeguarded and respected. Prison authorities have been summoned to court at times to explain the way inmates under their care were being taken care of. In more recent times most governments globally, and especially in Africa have shown lack of regard for the rights of prisoners, and when called upon to testify about the conditions of inmates typically side with prison officials and not the inmates even if there is physical evidence that their human rights have been violated. Prisons Their Origins and Functions: Prisons historically have always been a place where criminals are securely contained; and this containment has remained a predominant deterrence philosophy in spite of alarming data that refutes its effectiveness in deterring crime, and the surge of other forms of punishment and or imprisonment that have arisen in lieu of rehabilitation and deterrence. Containment does not only refer to prisoners housed in facilities that keep them out of sight, but that where their deviant behaviors even within correctional facilities, must be so reduced that they do not interrupt peace and tranquility that citizens have the right to enjoy. Prisoners and free citizens should be dissuaded from engaging in criminal acts; if not one of the primary objectives of punishment would be ineffective. In the same breath, the pervasive question posed if whether imprisonment deters crime or it only serves the purpose of incapacitation. Africa is also concerned about the functions and purposes of its prions and whether or not human rights are preserved for the inmates, and if sentencing is employed appropriately and what controls for the problem of overcrowding evident in its correctional facilities and how those issues can be resolved while improving the sanitary and living conditions for the inmates housed in facilities throughout the continent. The overarching concern is the failure of the African penal systems that have prisoners one hand crowded /inadequate spaces with gross/ meager food options, inadequate healthcare, poor sanitary conditions seen as the worse kind of human rights violations, where on the other hand prisoners are found in isolation in individual cells preventing them from socially interacting with others, not even other prisoners in some countries, which leads to a spike in mental health issues. Many of the prison systems globally are not at the standard set forth by the United Nations’ Standard Minimum Rules for the Treatment of Prisoners. Some countries like Africa, necessary international standards and obligations are completely ignored.
Over the last 500 years, Africa has historically been plagued and traumatized by human rights violations. Under the direction of the post-colonial state prisoners have endured long-histories of abuse, but people in Africa as anywhere else in the world have not stopped striving for better living conditions for prisoners as its political societies have grown more accountable and enlightened. The constant repudiation of undemocratic societies that espouse one-party systems has given hope that the predatory legacy of post-colonialism has been sequestered. Non-governmental organizations (NGOs) have increased during the states since post-colonialism with the intention of revising laws and policies that are offensive to human rights worldwide, and especially in Sub-Saharan Africa. Human rights advocates as well as these NGOs have for long demanded the involvement of the African Commission to become part of this progressive movement focused on addressing human rights violations. The African perspective has now been forced policymakers to view Africans and the African human rights system through new lens. Many Africans think that even though the African Commission is moving in the right direction, there are still uncertainties about its ability to make effectual change in the lives of Africans, especially those in correctional facilities. There has been additional call for regional reinforcement in Africa where institutions can be strengthened by reinforcing the norms associated with preservation of human rights. The development of the African Human Rights Court (AHRC) is a move towards reinforcement of the need to preserve Africans’ basic rights. As with other institutions, the success of the AHRC is dependent upon states willingness to revisit the African Charter in order to strengthen and reinforce many of its legal provisions.
According to Fyodor Dostoevsky, a society’s civilization can be judged by entrance to its prisons. If Dostoevsky point of view is accurate then African, especially South African countries is far from being civil. Its weak economy and high crime rates have resulted in the Department of Correctional Services dealing with massive overcrowding issues, lack of resources, which have exposed thousands of inmates to human rights violations. In general South Africa struggles with affording basic human rights to its citizens inherent in the African Constitution, consequently prisoners’ human rights are the last to be focused on. African prison systems are similar to many others in the world. If there are differences they are primarily based on social, historical, economic and political factors. South Africa is not unique, its long list of social problems that overlap with each other. This overlap and entanglement have made it difficult to know the necessary steps to take in order to solve a single problem. High crime rates are correlated to high rates of poverty, which in turn lead to high rates of incarceration causing offenders to be subjected to environments that readily cause them to likely reoffend; re-offending costs the government a lot more money preventing money to be allocated to addressing the social problem of poverty. An international NGO such as Penal Reform International is proactive in sharing good practice and information in regards to penal reform in conjunction with the African Commission on Human and Peoples’ Rights has conducted an investigation to learn exactly what prison conditions are like in Africa, to find out what steps are being taken in lieu of reform, and measured failures and successes to date of such reforms.
Today the institutional, legislative and infrastructural framework of penal and correctional services in Africa is inherited from the colonial masters that lived on the continent of Africa many centuries before. This framework has not changed much since colonialism in spite of the insurmountable increase in prison populations since then, illustrating untold and miserable stories still for many African inmates. In spite of the reformatory moves in many African countries to change and improve upon prison conditions within this inherited framework, detention and prison conditions are still inadequate and deplorable in manty countries in Africa. It is now news that many African prisons are still plagued by numerous issues in their prisons as experienced by other orisons worldwide that have largely affected these institutions from being transformed from institutions solely focused on punishment and not rehabilitation and reformation. Psychological and physical abuse by prison staff, officials and prisoners, malnutrition, disease, overcrowding, violence, harsh disciplinary practices, dilapidated and structurally unsound facilities, poor hygienic and sanitary conditions, inadequate healthcare for prisoners resulting in high mortality rates among this population are prevalent problems in prison facilities in the continent of Africa today. These conditions have led to numerous human violations that the continent is facing currently, where inmates are denied their humanity and liberty. The problem is further compounded by the fact that high level orison officials and administrators are sworn to secrecy about the reality of what occurs in detention and orison facilities, shielding their centers from being scrutinized by the public. Law enforcement and prison authorities still lack knowledge and appear not to have the wherewithal to protect and enforce human rights instruments for prisoners so they can be treated with dignity and neither deprived of material or financial resources available to them (inadequate foe the most part) nor their basic liberties.
Regionally, the African Charter on the Rights and Welfare of the Child is the only instrument in place that explicitly refers to the rights of child inmates in detention and prison facilities, and their rights to be protected from cruel, inhuman and ill-treatment as well as torture. African States are mandated to ensure that no African child either imprisoned or detained be deprived of his liberty or subjected to degrading conditions, punishment or treatment while separated from their adult protectors, while in detention. They too like their adult counterparts have the right to a speedy and fair trial regardless of the nature of their status. The African Charter states that every person us equal and have the same right to be treated with human dignity, and protected from any and all forms of degradation and exploitation especially in reference to slave trade, slavery, and any inhuman treatment. These child detainees have a right to be secure in their persons, and laws must be enacted and followed to ensure these children enjoy the best mental and physical health attainable as an inherent right. These children have the right to appear as competent individuals against fundamental human rights violations as recognized by customs, laws regulations and conventions that are guaranteed. These provisions are relevant and apt for detainees in pretrial stages that have spent lengthy time in prisons or detentions without going to trial.
The South African jurisprudence related to the rights of prisoners, unlike other African countries is well developed. Its origin dates back as far as when the residuum principle was establishment as a result of a decision made by the Appellate Division back then. This principle is entrenched today in the South African prisoners’ rights jurisprudence, and it states that imprisonment is not a justification to further limit and infringe upon rights of the accused, except for those rights that must be curtailed due to an imposition of sentence as handed down by the court. Public responses are in favor of retaining prisoners’ rights, and ban any predatory and harmful practice that might steal these basic rights of inmates. Attempts have been made to dissolve the provisions under the residuum principle in recent times to prevent prisoners from exercising their rights to vote in Africa, but the Constitutional Court and other Superior Courts of Africa have ensured that these provisions are not challenged. According to Fox (1998), women human rights and human rights of women specifically in Africa can be understood in both the polemic of the relativist as well as the Universalist domain. Their positions raise questions about the individual's position in the African society in terms of philosophical and sociocultural considerations. In 1986 when the African Charter on Human and Peoples' Rights was adopted there was tension between human rights advocates and other groups. The relativist believes that the sanctity of the family unit undermines individual rights, and other human rights instruments such as the Elimination of all Forms of Discrimination Against Women (CEDAW), that in 1993 was adopted by the General Assembly in 1993 affords women liberty and see them as both free and independent. The rights of women transcends public and private sphere, but also is mandated to be acknowledged in African prison systems. Often women are victims of domestic violence, loss of property rights, and so Makau Wa Matua African legal scholar suggests that individual rights must should always be applied to the social construct, and so understanding the human rights of women in Africa must be understood within the complicated systems and processes in which they find themselves; systems and processes that offer to protect and realize the rights of these women; rights according to individual, people and human rights. Matua further added that individual human rights in Africa cannot be understood within the same construct as for those in Western countries; so encouraging women to embrace their human rights position them to be opposed to social networks and family where their primary rights and roles have been defined. So when women in Africa do not seek to exercise their human rights it is solely because of their reverence for the sanctity of family, and not necessarily because such rights are deliberately withheld. So within the cultural domain women are denied numerous basic rights, and consequently when they are imprisoned that are largely placed in severe disadvantageous situations than their male counterparts.
Globally inmates’ socioeconomic rights have not been taken seriously. This was due to the fact that societally the perception is that inmates need to be punished for the wrongs they have committed. Punishment was seen as the appropriate deterrent in place to prevent further criminal engagement, however, it did not coincide with human rights culture in these correctional facilities in Africa, and the fact that African courts have not been willing to pay a role in the reformatory process aimed at address human rights violation of inmates. Similarly the courts in the U.S.A have not been willing to address violations in the form of the inhuman treatment of its prisoners, and their treatment of such inmates in accordance with the so called Hands-Off Doctrine. The Doctrine was used as justification for orison officials who chose to ignore complaints submitted by inmates. Socioeconomic rights include rights to accommodation, education, nutrition and adequate medical treatment. South African courts seem to struggle with interpreting and enforcing the socioeconomic rights of inmates as mandated by the Constitution and international standards and norms.
Every person has a human right called education, and this is also for persons that ae incarcerated. The right to education is now a right that is guaranteed for inmates, especially in countries where DVV International is in operation. Theoretically this is a move in the right direction; however, the reality is misaligned with this theory. Today, and back in history inmates typically have no access to education and if they do it is either limited or of poor quality. In spite of the fact that education is proven to be a necessary form of to social reintegration and rehabilitation, and the fact that it offers inmates a future of life without crime once they are educated, yet they are deprived of this basic human right. It is central for prison administrators in African countries where DVV International operates so these inmates, and especially disadvantageous inmate populations such as females and children have equal opportunities to educated. Africa’s inmates generally belong to this group of disadvantageous persons because of the very reasons they ended up in prisons; situations that either enhance or provide social isolation, exclusion and marginalization, which in turn prevents them from embracing opportunities such as securing an education, which enhances their personal and professional development. Securing an education is self-directed and primarily controls for how inmates reintegrate and reconcile with others and their communities. Lack of educational opportunities, prevent their successful reintegration and increases the likelihood that they will recidivate. The penal system in Africa is not said to be learning or teacher friendly, and prison officials do not willing engage in behavior to facilitate inmates’ access to educational opportunities. The double edged-sword is education; as many inmates already have low education levels, and if they are in incarcerated for long periods of time and do not have access to education then the cycle of differential association continues. Most of these children, men and women in African prison either do not know how to read or write or have literacy levels much lower than that of the general population. The universal consensus is that as with any other human right, inmates must receive educational opportunities; any less would be considered torturous, cruel and inhuman
Many in the human rights circles know the story of Steven Bantu Biko who was a black medical student who formed and led the South African Black Consciousness movement; a movement that contributed to the eradication and downfall of apartheid. Steven was constantly subjected to repeated detentions and interrogations, unlawful surveillances, and was even banned from making speeches publically in South Africa. He died in Pretoria Central Prison , succumbing to severe head injuries that he incurred after he was severely beaten during one of the many interrogations to which he was subjected, then he was left to die in his own urine while being chained to a window. More than seventy detainees including Biko died in similar ways while detained in South African orisons. South Africa’s Truth and Reconciliation Commission was told that two doctors who were on staff at Pretoria Prison when Biko got injured refused to provide adequate healthcare and medical assistance to Steven. Such dereliction of duties has raised numerous human rights questions. The Medical Association of South Africa sided with the doctors in the orison showing complicity and apathy those individuals of this profession who systematically abused and in turn caused the death of inmates’ nu withholding or administering adequate treatment. This is a violation of Biko’s and other detainees at the time human rights as they lived in deplorable conditions where they did not have access to adequate healthcare, deprived of freedom by the South African.
In a review of prison populations’ statistics, it is clear that chronic overcrowding is a problem that plagues African prisons as well as a continuous breakdown of standards, law, and order within this prison system. In Africa, numerous makeshift prisons have been created to accommodate for the growing and expanding prison population; to address the crowded nature of prison cells where numerous prisoners share a common space. Lack of basic necessities such as sheets, toiletries, towels and blankets often accompany the problem of overcrowding; if provision is made often it is largely insufficient. Lack of overcrowding is evidenced at Rustenburg and Thohoyandou prisons in South Africa, where prisoners sleep on cement floors; and at Durban Westville orison where prisoners complain that their blankets are lice-ridden, wet and duty. Prisons such as Newcastle and Eshowe reported lacks of privacy for prisoners in either showers or toilets, and there were neither heaters nor hot water. There were complaints of dirty, smelly and unclean cells where some toilets worked and others did not or leaked profusely. In the male-section of numerous prisons there was insufficient lighting. Overcrowding is such an issue in most African prisons that there is no expectation of improvement, but further deterioration. Since toilets are part of cells, when they malfunction there is a pungent smell that consumes the entire prison cell. This leads to unhygienic conditions, which pose a threat to the health of inmates, who often do not have privacy to perform intimate duties, prison overcrowding has presented cross-sectional challenges to the complexity associated with human rights violations, and violates of the basic rights of inmates.
Recommendations
In the 18th century the Quakers introduced the concept of rehabilitation; a concept born out of the idea that imprisonment is only temporary and at some point the offender will be released back into his community, with the likelihood of recidivating (Kaguongo, 2003). The thought is that reformation of the offender would allow him to reevaluate his choices, and the negative impact of his actions, and choose to make better choices and in turn redeem himself as he gravitate towards societal norms. Reintegration is at the core of rehabilitation as this affords the offender the opportunity to not just cope with the stigma attached to him due to imprisonment, but be prepared to return to the community in which he inflicted harm. The change in societal perspective of the offender as not just a wrongdoer, but a citizen of the community who would resume his rightful place in society once he has fulfilled the terms of his punishment. Coupled with this fact is that the offender also have responsibilities and rights, which through rehabilitation they would be afforded the opportunity live a prosperous and productive life upon release from prison. Therefore prisons function on two theories, that of the retributive and utilitarian theories. Utilitarianism purports the notion that punishment of an offender is for the greater good of the society, so incapacitation ensures safety in society, and deterrence serves to minimize rehabilitation and crimes rates for the greater good of the offender. Retributivism purports the notion on the other hand that the offender deserves to be punished for his wrongdoing, and the punishment should fit the crime and be proportionate to the harm it has caused. Sentencing as a form of punishment incorporates both theories in its considerations; as they help to determine when imprisonment is an appropriate form of punishment and if deemed necessary, it dictates the length of that punishment.
In 1996, the Kampala Declaration on Prison Conditions in Africa was developed; a resultant of an international seminar held in Kampala about prison conditions in Africa. Attendees at the seminar included Ministers of State, prison commissioners, national, regional and international NGOs and Inter-Governmental Organizations (IGOs) as well as members of the African Commission on Human and Peoples’ Rights. From this seminar there was an annexation of the Declaration that became a resolution as developed and supported by the United Nations Economic and Social Council; a Council that requested the cooperation among states, the U.N. as well as IGOs in Africa to improve prison conditions in the continent. Four suggestions were born out of the Kampala Declaration geared towards NGOs and states; prison staff and alternative sentencing; remand of prisoners and prison conditions. The human rights of prisoners as suggested by the Declaration must be safeguarded at all time, and imprisonment should not take way any of these rights either due to the prison conditions in which they are held, or administration of prison regulations that cause inmates to lose their liberty and to suffer aggravation as laid out by the Charter on Human and Peoples’ Rights (The Charter), in so doing prison sentences would be minimized to ensure inmates retain their sense of responsibility and self-respect. Remand of prisoners is category that is widely recognized in African prison systems that refer to a lot of inmates. The judiciary, prosecution, and the produce are all encouraged to acknowledge their contributing to conditions such as overcrowding and should be proactive and interested in working together with prison officials to alleviate this human rights issue. Prison staff is extremely important to this process and to the steps needed to alleviate this issue in African orisons. The conditions in which they work need to be highly considered. Imprisonment is acknowledged as the least effective way to rehabilitate inmates especially those who have short sentences. Sentencing policies especially in regards to community services and non-custodial sentences are adapted. In 2002 in Burkina Faso, the second Pan African Conference on Prison and Penal Reform was held, and from that the Ouagadougou Declaration was produced. This Declaration highlighted the progress made since the Kampala Declaration, but continued to reiterate the need for reduction in prison populations across Africa. The conference in Burkina Faso also encouraged the self-sufficiency of African prisons, without absolving state responsibility in ensuring that minimum standards in prisons are maintained. The rule of law is required and should be prevalent among prison administrators, and efforts to implement the best practices for penal reform should be made and implemented. The 2002 Conference recommended the drafting of prisoners’ rights African charter in addition to a United Nations charter focused on the basic human rights of all African inmates, and the implementation of steps in order to safeguard the rights, and respect for prisoners’ human rights.
Conclusion
Situations in prisons seem to have changed drastically within the past 20 years as constitutions in most countries along with detailed provisions to protect the fundamental rights of all individuals including prisoners have been enacted, and put in place. Other mechanisms have also been employed based on the volition of governments to further report and investigate prisons and the treatment or mistreatment of their inmates. In addition, there have been the passages of legislations to also complement the declarations and resolutions in place to protect the rights of inmates. Different non-governmental organizations (NGOs) as well as government initiatives have also become interested in how prisoners spend life behind bars. Courts have appeared to be more sympathetic towards the accused, and have declared their willingness to become more ‘hands on’ in protecting the rights of prisoners. Campaigns and international monitors are run by Amnesty International in all countries in the continent of Africa that has identified numerous cases of human rights abuses within correctional facilities. This organization has continued to work feverishly to defend the human rights of inmates who often are at risk for harm and depravation in African prisons and where female African inmates are vulnerable to sexual and gender-based violence as human rights violations. These developments should be seen as victories for inmates in African prisons where national mechanisms, international instruments, employment of an ombudsman, and enacting favorable correctional legislations have all illustrated the move in the right direction of penal reform; where courts are now more active in intervening in situations where inmates’ human rights have been violated, in and around Africa.
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