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WORLD PERSPECTIVES ON WHAT IS WRONG WITH THE SYSTEM: THE AFRICAN CRIMINAL JUSTICE SYSTEM By Uju Agomach (Presented at the Ninth International Conference on Penal Abolition held May 10-13, Toronto Canada) INTRODUCTION It is with great joy that I share with you my thoughts on what is wrong with the system as it relates to Africa. My happiness is for three main reasons: Firstly, as an African, I feel very delighted that the voice from the continent that has interchangeably been referred to as under-developed, developing and the third world is not ignored in an important international forum as this. Secondly, I feel delighted to have the opportunity to reflect on the African penal system - its past, its present problems and its future prospects of a better system on transformative justice. The third is that today, I have reached a destination I commenced in 1995. How? I heard about ICOPA through Hal Pepinsky who I met at the 1995 Bishop of Lincoln’s Conference in the United Kingdom. I was impressed by Hal’s passionate talk about penal abolition, his desire to spread ‘this gospel’ to Africa and to encourage the participation of Africans at ICOPA just as I was impressed of his guitar playing by the borne fire. Five years after, I am given the privilege of not only participating at ICOPA but to share the thoughts of an African living and working in Africa for the sake of those the society cast away - into prisons and unto their deaths. I am sure that both Hal and Ruth Morris whose commitment to have African voices added to the ICOPA music will today be as happy as myself in seeing the realization of this dream - the ‘true globalization’ of ICOPA. In my work which daily brings me in contact with prisoners, ex-prisoners, torture victims, their families, criminal justice agents and other government administrators involved with the penal system, I have come to see in all raw terms the problems of our penal systems. In simple terms, I will say that what exist shown man’s inhumanity to man. This presentation will examine the state of the criminal justice system in Africa. It will concentrate on the problems and crisis inherent in the system. At another forum, we will examine the African perspective on penal abolition and transformative justice. Perhaps a good way to start is to ask ourselves this question: Is any thing wrong with the criminal justice system being practiced by African countries? The simple answer is YES. Yes, everything is wrong with the system - it lacks justice. It is ineffective and inhumane. It does not take into consideration the social and economic realities of most African countries - it is not cost effective and it fails to promote the much needed development and security desperately required by many within this continent. It only but an expensive way of making bad people worse and ‘hero-worshipping’ the worst culprits. What more, it negates the African principle of reconciliation, restoration, transformation, mediation and equilibrium. CHARACTERISTICS OF THE SYSTEM: The system is characterized by overuse of imprisonment, overcrowding, high remand population, ineffectiveness, poor conditions of treatment, deaths in prison, inadequate facilities, high cost to mention a few. The criminal justice system has become so punitive that it has little or no impact on reformation of the offender. We will briefly highlight some of the above problems. * Overuse of Imprisonment: Many African countries find themselves burdened with a huge prison population. For instance, in Southern Africa: South Afric has 142,410 prisoners with an estimated country population of 44.3 million - (320 per 100,000 of national population) using the 1997 figure. Namibia has 4,397 with a population of 1.7 million in 1998 (260), and Swaziland with an estimated population of 931,000 in 1998 had a prison 931,000 (235). For Eastern Africa: Burundi has 9,411 prisoners with a population of 6.4 million in 1997 (145), Kenya 41,064 prisoners with 28.9 million in 1996 (140), and Mauritius 3,239 prisoners with a population of 1.1 million in 1997 (295). Western Africa: Cape Verde c.600 prisoners with an estimated population of 406,000 in 1997 (150). The same year, Guinea had c.4,000 prisoners with a population of 7.6 million (55), and Cote d’Ivoire using 12,215 prisoners with an estimated population of 13.55 million (using the 1990 figure) (90). For Central Africa: Cameroon has 15,903 prisoners with a population of 13.9 million in 1997 (115), Chad 2,521 prisoners with a population of 6.4 million in 1996 (40). For Northern Africa the story is not different. Algeria has 35,737 prisoners with an estimated population of 28.6 million using the 1996 figure (125), the same year Tunisia had 23,165 prisoners with a population of 27.9 million in 1997 (115). A very special case is Rwanda. The country has a prison population of 130,000 and 95% of this population are those charged with genocide - 121,418 on remand and only 1,544 sentenced (using June 1999 figure). The rate of increase is also very alarming. For instance, the prison population of Nigeria at May 31, 1999 was 40,899. By October 31st same year (duration of just five months) this population increased to 44,797. This was irrespective of the release of over 8,000 prisoners through the National Committee on Prison Decongestion and Reforms during this period. This goes a long way in justifying the argument that prisons are like insatiable stomach. The solution certainly will not be to build more prisons for as has been argued Prisons possess an irreversible character, such that if they exist, they will be used (Mathiesen 1986:88-93). * High remand population: A disproportional number of those in prison are remand prisoners. For Nigeria, the statistics indicates that of the 40,899 (May 1999 figure), 21,579 (21,187 males and 392 females) were on remand. Thus, over 50% of the prison population are remand prisoners. Some times, this figure is as high as 67.4% (see Agomoh, 1996). Some states have even higher figures. For instance, Lagos State with a total of 5,586 prisons 4,509 were on remand. For Imo State, of the 130,000 prisoners in Rwanda, 121,418 were yet to be convicted/sentenced. Thus over 95% on remand. * Delay in Administration of Justice: Delay in the administration of justice is another contributory factor and one of the features of the confusion that characterize our criminal justice system. The police wastes a lot of time on investigation. Court congestion, inadequate manpower and infrastructure to cope with the situation worsen this. Consequently, cases are adjourned at every turn, with the result that certain cases takes as much as 10-18 years to be disposed of. For instance, out of the 216,119 cases reported to the Nigeria Police in 1997, 199,284 were prosecuted, 104,831 were pending investigation and 11,004 were closed. With respect of adjournment came at the instance of the court. For instance, out of the total of 51,808 cases adjourned, 32,933 were adjourned at the instance of the court, 11,084 at the instance of the Defence and 7,791 were adjourned at the instance of the police (PRAWA: January 2000:4-6). As you can all agree, justice delayed is justice denied! * Inhumane conditions and deaths in custody: Hear what a prisoner said: It is terrible inside the prison yard. There is no food, no water, and there are lots of mosquitoes. In fact, one of the inmates beside me died and for two days we did not know. We thought he was sleeping. It was when flies started perching on his eyes and ears that we knew he was dead. (Emanuel Obi/Male - 26 years) - Nigeria The Special Rapporteur on Detention Centers and Prisons in Africa, Prof. Emmanuel Dankwa in all his report on prisons in several African countries - Mali, the Gambia, Malawi etc... has highlighted the poor facilities and conditions in these prisons. These include inadequate bedding, food, drugs and medical facilities, clothing etc. In June 1999, I was asked by the Penal Reform International (PRI) at the request of the Special Rapporteur on Prisons and conditions of Detentions in Africa to accompany him to an assessment mission in the Gamba. During this period we visited all the prisons (including the security wing of the Central Prison Mile II which held top political prisoners) and several police detention centers/stations. The general complaints received from both convicted and remand prisoners and the prisoners at the security wing mirrors the complaints that are echoed in all African prisons. These are some of them: - Hot Cells - Rats (which sometimes climb on top of them while sleeping) - Too much mosquitoes - Leaking roofs - In adequate soap or/and no soap given for washing clothes (also the quantity of soap given is usually very small and does not last for the duration for which it is provided for). - Lack of space for movement and recreation. Overcrowding. Some times up to 25 persons will be locked up in the small remand cell. - Very minimal open out time. Case II: Sikunda Jarra West and 10 others (The Gamba) These 11 persons were seen sitting down at the corridor around the convict area. Sikurunda Jarra West who spoke on behalf of his casemates explained that they came from Lower River Division. They complained that they have not committed any crime but were brought to the prison by their Chief. The Chief wanted them to pay the tax for their minority head of the village after they have paid about 4,000 (out of about 5,000) persons have paid tax for the majority head of village. They were brought into the prison on Sunday June 20, 1999. The argued that they were unjustly treated and that they did not have any proper trial. Case III: Uzoma Okorie/a typist/female in her early twenties (Nigeria) Two male police officers after stripping her naked, suspended her by both wrist from the roof of a torture cell and flogged her back, buttocks and thighs until she bled. The neck of a beer bottle were inserted into her private part and retained there while the torture lasted. Case IV: Justine Eshiet/a driver/male - 36 years married with four children (Nigeria) He was tied hands and legs and hung by a rope from the roof of the ‘statement room’. In that position, three policemen on different parts of the body, especially the shins of both legs, flogged him with metal wires simultaneously. Two policemen used pliers to pull at his fingernails. This treatment was interrupted only to ask whether he was ready to confess in writing. The torture continued until he became unconscious by then bleeding profusely. Case V: B.S.Darboe (The Gambia) Mr.Darboe was charged for Murder in 1984 and sentenced to death on December 3, 1986. He put in an appeal and his case was reviewed in 1991 and commuted to Life sentence in October 1991. However, the prisoner explained that following the prison riot of 1995 where he acted as a spokesperson for the prisoners, his life sentence was revoked and a death sentence was again given to him. B.S. Darboe said that he had an ulcer operation in 1995 and was moved from his hospital to the Security Wing and since then he has never been allowed to visit the hospital and all his applications for this have refused. Until the time of visit (June 1999), his last visit to the hospital was in 1995 and the recommended special diet by the doctor was never adhered to. However, sometimes, the prison officers do give him some drugs to take without any medical examination or doctor’s prescription. Also, Mr Darboe said that a strain bullet hit him during the 1995 riot but up to date this bullet has not been removed. He also complained that two months ago he was informed that his wife died and he has been refused assess to his family. He is worried about his 5 children. Case VI: Usman Njie (Aged 22) The Gambia: Usman Njie is charged for Drug Trafficking and sentenced to two years. He is an asthmatic patient but he has never been allowed to go to the hospital. Also, he complained that he is usually asked to pound ‘Kous kous’ and this affects his asthmatic condition. The resultant effect of these is high deaths in custody. In 1988, out of a total of 1875 officially reported deaths in Nigerian prisons, 1615 were classified as ‘natural deaths’, 207 were executions by ‘firing squad’ and 51 were executions by ‘hanging’. Hunter and Odinkalu, 1997 stated in many countries in Africa, many die due to epidemic diseases. In Ikoyi prison Lagos between January - June, 54 inmates died and all these deaths were officially reported as ‘death by natural causes’. A closer examination of the trend of deaths indicate that many of the deaths happen during rainy season - a period characterized by higher incidence of damp cells, leaking roofs, high cost of food etc. (See Agomoh, 1998). The lack of inquest and adequate investigations into the causes of the deaths and the description of all these deaths as ‘natural deaths’ should be of great concern to all. It also shows the depth of man’s inhumanity to man and the linkage between inhumane conditions, violations of human rights, corruption and lack of accountability and transparency within the criminal justice system * Ineffective Criminal Justice System: The system is ineffective as it is seen not to help in reducing re-offending rates. It has little or no impact on reformation. Prisons do not work. They do not reduce crime. They hardly deter and they fail to safeguard the public. It seems today that the courts have developed a tremendous amount of faith in imprisonment. So far, they do not seem to have realized that imprisonment has not exhibited any greater degree as efficacy or as reformative machinery... (Adeyemi, 1990: 118) The recidivism (re-offending) rats expose the ineffectiveness of the system. Taking once again Nigeria for example, the re-offending rate was 61.9% in 1970. In 1980, this dropped to 31.1% but increased again in 1990 to 51.8%. - The time spent on remand is not usually added on to the sentence. - Torture by police and prison officers - Quantity and quality of food is bad and no special diet is adhered to. - Lack of appropriate legal representation in their trial. - Mixture of prisoners with infectious and serious aliments such as mental illness, Tuberculosis and leprous diseases. - Inadequate visit from their families/Lack of contact with their families. - Lack of access to radio and newspapers. -Limited lock out time allowed for some of the prisoners. Comments/explanations from the authority: * Scabies is difficult to treat. * The officers do not want the medical officers at the health clinic to think that the prison officers are implying that they do not know their work, so they do not want to be seen as pestering them with sick prisoners. * On lack of adequate space for movement and very limited open out time- they said that there are plans to effect some structural changes in the prison which will give room for movement And recreation without compromising security. As you will agree with me, these explanations are so ridiculous. Let me report to you testimonies/cases of some prisoners: Case I: Danda Jallow (The Gambia) Danda Jallow had chronic scabies and he complained that the drugs being given to him at the health clinic was not having any positive effect. He explained that he has been in Janjangbureh prison for 2 months and some days but that he stayed for 5 months at the Faraphinye police cell. At the Faraphinye police cell, Mr.Jallow said that he was never given bathing soap and he did not have his bath for the 5 months he stayed at the police cell. As a result of this, he developed chronic scabies at the police cell. The only thing can be said of it is very punitive and it is based on a revenge philosophy. Even with the punishment of imprisonment, additional punishment and deprivation abound. In June 1999, I accompanied the Special Rapporteur on Conditions of Prisons and Detentions Centers in Africa to assess prisons and detentions centers in The Gambia. I will recount here some of the complaints given by prisoners and staff to highlight this point. When there is a violation of any of the rules and regulations by any prisoner, the prisoner usually face some punishment. The punishment may include any of the following: - Sending to solitary cell with low diet. - Sending to police if a capital offense was committed. - Taking away the prisoner’s remission. - Taking away the prisoner’s earning. What more, visits and communication are highly restricted: Duration allowed for monthly visits for families and friends is 30 minutes maximum while emergency visits are allowed 15 minutes maximum. Letters are allowed once per month. Also, the prisoners work and the produce contribute to the prison food ration and cut down government’s expense on prisoners’ food. According to the officer in charge, prior to the 1994 coup, prisoners were paid 3 Dalasis per month for prison labor. However, this was suspended after the coup because some prisoners destroyed the Central Prison during the riot. The government stated that the money paid for prison labor will be diverted to reconstruct the destroyed prison. What more punitive measure do we need to harden an offender and turn him against the society? * Lacks cost effectiveness: The consequence of the continued heavy reliance on imprisonment also has economic implications. Many African countries spend well in excess of their income per capita on prisoners per capita. In addition, many people who are given fines as a penalty are unable to pay automatically result in situations where the country will even spend more to keep this category of people I prison. In 1999, an examination of the number of prisoners in 24 states out of 36 states and the federal capital territory in Nigeria who had fines imposed on them show that a total of 4,368 prisoners were incarcerated in prison due to lack of payment of the fines imposed on them by the court. The total amount of money for the fine is 18,946.01 naira (equivalent of 189,460 USD). To keep these persons in prison, the government spends 438,000 (equivalent of 4,380 USD) daily on meals alone. As you can see this does not make any economic sense. * Socio-cultural incompatibility: ... In addition to the apparent inefficacy of imprisonment as a deterrent and the increasing financial burden it is imposing on the African countries, there is also a growing resurgence in the African region of its recognition as a culturally aberrant and abhorrent disposition. Hence, the compelling need to look for viable alternative ... (Adeyemi 1993:53) As the author argued elsewhere: Imprisonment is bad news... (it) an ill wind which blows nobody any good (Adeyemi 2000:2). It is bad news for the offender, the victim and the society. Even the United Nations had tacitly accepted this fact where it states that: Imprisonment severs community ties and hinders reintegration into society. Imprisonment reduces offenders’ sense of responsibility and their ability to make their own decisions. Avoiding custodial measures whenever possible, however, is likely to enhance the prospect of better reintegration into society and better internalization of social values. Non-custodial measures have the unique characteristic of making it possible to exercise control over an offender’s behaviour while allowing it to evolve under natural circumstances. This offers opportunities for the development of the offender’s sense of responsibility. Reducing the likelihood of further crime and helping offenders to become responsible citizens would benefit society as a whole. (Commentary on the UN Standard Minimum Rules for Non-Custodial Measures: 6). Emphasis mine. For the African criminal justice system, justice implies reco gnition of the interest of the victim, community and the offender - there must be a balance, equilibrium and social harmony. Therefore, imprisonment and other similar penalties which lacks these ingredients are in fact, socio-culturally incompatible with the Africans and their world view. It is surprising that in the face of these realizations, we still rely on imprisonment and all other punitive disposition measures. Who is benefiting from the system? What is the role of the state? In addressing this issue, I will quote from Ms Wilson citied from the book - “We who would take no prisoners - selections from the fifth International Conference on Penal Abolition’ How can a community hurt a criminal it has created, which it has borne as truly as a mother bears a child? Considering the history of our cruelty, it seems that what we need more than anything else is to cleanse our minds from the idea of judicially exacting suffering for wrongdoing, to realize that our habit of punishment is as great an evil as any crime”. (P.120). There is so much truth in the above statement, we need to understand the relationship between crime and ‘urbanization’ or ‘development’ (for lack of better term to use). The processes of development have so influenced the criminological model of the society in terms bringing about crime. For instance, decrease rates of crime are usually noticeable in societies. Also slightly increasing rates of crime are usually noticeable in societies undergoing paid changes in residential patterns and socio-economic structure (Zvekic and Saito, 1985). What more, the majority of convicted inmates are young adults, illiterates, and unskilled laborers? Many came from unstable homes, battered and sexually abused as children, with little or no social or family ties (see Agomoh 1991a, 1994). Zvekic and Saito (1985) argued that: Crime is par excellence a relational phenomena that can be understood only in relation to social conditions and institutions which generate it, maintain, decrease or increase in rate, change its form and determine its nature. The relational nature of crime and deviance refers to dynamic interactions between various types of social, institutional, group and individual activities and processes. Ugljesa Zvekic and Fumo Saito made this statement in 1985, two years after the first International Conference on Penal Abolition. At this time both of them were researchers at the Untied Nations Social Defence Institute. Their statement confirms that the society makes and brews its own criminals and therefore it is the society that will work to transform, heal and restore these ‘lost souls’. This I believe is the import of the philosophy of penal abolition. Beyond all this, is the realization that our penal system is faulty? Our criminal justice system is neither just, humane nor effective. It lacks the ability to transform the ‘offender’. CONCLUSION: We have seen that everything is wrong with the system. We have seen that Africa just like many other continents of the world is faced with inappropriate criminal justice and penal system. Worse still is the additional burden and pressure brought on the system by the lack of infrastructure, poverty and low development status of most countries within the region. The safer, realistic and effective route will be for us to seek for the true meaning of justice, care and love. It is for us to seek the path of transformation. Let us focus on how we can heal the wounds of the victims, make the society accountable and work to transform the offenders. It was William Omaria (Ugandan Minister of State for Internal Affairs) who wrote in his Afterward in the book “Prison Conditions in Africa” that: One day in the distant future, people will probably look back on what happens in most countries today and wonder how we could do that to our fellow human beings in the name of justice. Unfortunately, the current desire in large civil jurisdiction seem s to be to lock up more people, for longer periods of time and not necessarily under more humane conditions ... In this situation the promotion of alternatives to imprisonment ... is of vital importance (Omaria, 1996). The day has come... It came since 1983 when the first International Conference on Penal Abolition was held in Toronto. The fight has also continued since then from Indiana to Amsterdam, Montreal, Kazimierz Dlony, Costa Rica, Barcelona, and New Zealand to date as we converge in Toronto. The vital issue is not just alternatives to imprisonment as Omaria submitted but in my view, of alternatives to punishment. Of alternatives to assist in reducing/eliminating social conflict (‘crime’). Alternative that will facilitate rehabilitation of people and truly deter offenders. Alternatives which will seek to protect the public in a sustainable and enduring way. Alternatives that will stop the revenge circle. Alternative that is inexpensive in both fiscal and human costs. Alternatives that will stop the punishing of the poor, the minorities, the powerless, the young, and the women. The real alternative that will heal both the individual and the community. Alternatives that will give a balance to the justice system for the victims, offender and the community. Alternatives that will be just, humane and effective. Alternatives that will be responsive to the social, economic and cultural realities of the African countries and the peoples of the world. Let this be our goal. Thank you. REFERENCES Adeyemi A (1975) ‘Criminology in Contemporary Africa’, Nigeria Journal of Criminology, Vol.2 (NOS. 1); 1-30 Adeyemi AA (1990), ‘Administration of Sentencing in Niger: Sentencing’ Chapter 5 in Osinbanjo Y and Kalu A 9eds.) Law Development and Administration in Nigeria, Federal Ministry of Justice: Lagos. Adeyemi A (1993) “Personal Re(parathions in Africa: Nigeria and Gambia), In: Zvekic U (ed.) Alternatives to Imprisonment in Comparative Perspective, UNICRI / Nelson-Hall: Chicago Adeyemi A (2000), ‘Alternative to Imprisonment in Nigeria: Problems and Prospects’ Being a paper delivered at the National Conference on Alternatives to Imprisonment held In February, 2000 organized by the Prisoners Rehabilitation and Welfare Action (PRAWA), National Human Rights Commission and Penal Reform International Agomoh (Chiemeka) U.R (1991b), Detention and the Criminal Justice System in Nigeria, (Unpublished M.Sc thesis, Department of Sociology, University of Ibadan: Nigeria) Agomoh (Chiemeka) U.R (1994), Imprisonment Before Trial: A Critical Appraisal of the Problems of Remand Prisoners in Nigeria and England/Wales (unpublished M.Phil thesis, Institute of Criminology, Faculty of Law, University of Cambridge, England Agomoh U.R (1996), Decongesting the Nigeria Prisons and Police Cell: A Handbook of Practical Strategies for the Remand Population, Prisoners Rehabilitation and Welfare Action (PRAWA): Lagos Agomoh U.R (1997), ‘Deaths in Custody: An Overview of the Nigerian Situation’ in: Liebling A (eds), Deaths in Custody: The Darker Side Of Justice, Institute for the Study and Treatment of Delinquency (ISTD) and Sage: London Agomoh U.R (1998), ‘Torture and Rehabilitation of Tortured Prisoners in Nigeria: A Need for Intervention’. Being a paper presented at the National Conference on Prison Health, Torture and Rehabilitation of Torture Survivors in Nigeria held in November 1998, Organized by PRAWA, Nigerian Medical Association, National Human Rights Commission and the International Rehabilitation Council for Torture Victims Elias T (1969) ‘Traditional Forms of Public Participation In Social Defence’, International Review of Criminal Policy, Number 27, United Nations: 18-24 Hunter F and Odinkalu C (1997), Prison Conditions in Africa, Penal Reform International: London Mathiesen T (1974), The Politics of Abolition, Oslo University Press: Oslo Milner A (1971) ‘The Future of Sentencing in Nigeria’, International Annals of Criminology, Anne 1971: Vol. 10 (Nos.1) (proceedings of the XXTH international Course in Criminology on Non-institutional Treatment of Offenders), Pages247-282 Omaria W (1996) citied in Agomoh U (2000) ‘Background to the Alternatives to Imprisonment - About the Project’, Being a paper delivered at the National Conference on Alternatives to Imprisonment held in February, 2000 organized by the Prisoners Rehabilitation and Welfare Action (PRAWA), National Human Rights Commission and penal Reform International Prisoners Rehabilitation and Welfare Action (PRAWA) 2000, ‘Criminal Justice Administrations’, Prisons and Penal Reform Fact-sheet (Nos.4) January 2000, PRAWA: Lagos. United Nations (1993), Commentary on the United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules), United Nations: New York Walmsey R (1999), World Prison Population, HMSO: London Wilson M (1931), he Crime of Punishment, J Cape: London Kvekic U and Saito F (198Q5), Prisons in Africa, United Nations Social Defence Research Institute STYLPTz .$.H.l. .$.H.l. .´.Ø.ü.Ġ.ń.Ũ.ƌ.ư.ǔ. .$.H.l. .$.H.l. .´.Ø.ü.Ġ.ń.Ũ.ƌ.ư.ǔ. !"#$%&'()*+,-./0123456789:;<=>?@AB !"#$%&'()*+,-./0123456789:;<=>?@ABĀ Default Default SS Header Footer Footnote Footnote Index Helvetica Geneva Times New Roman MOBJWMBT