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Transcript
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
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