24 April 2016
By Dr Danny Titus, SAHRC Commissioner responsible for Human Rights and Law Enforcement & Prevention of Torture
In 2015, the African Commission on Human and Peoples’ Rights (ACHPR) adopted Guidlines on Arrest, Police Custody and Pre-Trial Detention (the Luanda Guidelines). The Luanda Guidelines outline legal measures for African Union States in order to strengthen national systems and practices focusing on arrest, police custody and pre-trial detention.
The 25 April 2016 marks the inaugural African Pre-Trial Detention Day, providing an opportunity for much needed reflection and insight into the plight of those in extended incarceration without trial.
The South African Human Rights Commission (SAHRC) has a mandate to promote, protect, and monitor human rights in the country, and is an active supporter of the ACHPR. The SAHRC welcomes the adoption of the “Luanda Guidelines” and the inaugural day of African Pre-Trial detention. The Luanda Guidelines focuses on arrests, police custody, decisions on pre-trial detention, registers, deaths and serious human rights violations in custody, conditions of detention, the rights of vulnerable groups, accountability and remedy measures, and implementation. The adoption and subsequent implementation of the Luanda Guidelines in South Africa provides a blueprint for how to deal with the issues of excessive and arbitrary pre-trial detention, and broadly strengthen the criminal justice system.
While pre-trial detention is important in particular cases, for example, the collecting of evidence, it should be used cautiously and as an exception. Pre-trial detention must follow the principle of innocent until proven guilty and the human rights standard of the rights to a fair trial. Pre-trial detention is not to be used as a punishment for suspicions or allegations of having committed a crime.
In Southern Africa, more than 97 000 people are currently awaiting their rights to a fair trial. In South Africa, great strides have been achieved by the Department of Justice and Correctional Services in reducing the number of pre-trial detainees. Unfortunately, despite the attempt at the reduction of pre-trial detainees, South Africa still has a large number of persons awaiting trial. According to the Department of Correctional Services annual report for 2014/2015, there was an average of 42 077 (1048 are females and 155 children) persons awaiting trial. A problematic area of concern is in arresting and presenting the detainees before a court initially. In some cases, detainees are arrested on a Thursday, but only presented to a court on a Monday. These detainees will spend an undue amount of time in police cells. In some police stations, the holding cells are not adequate in regarding to food, water, and sanitation. In addition, some police stations are still awaiting an infrastructure upgrade so that children, women, and men can be housed separately, as dictated by legislation.
Extensive pre-trial detention can have a lasting negative economic and psychological impact. Regrettably, there are many reports regarding the state of correctional centres and the effects on detainees thereof, including overcrowding, poor sanitary conditions, inadequate health care, and poor nutrition. Conditions of detention should be humane and follow a human rights based approach. In addition, the redundant and arbitrary use of pre-trial detention can provide for greater opportunities for corruption within the criminal justice system. Currently, in South Africa, pre-trial detainees are the responsibility of the South African Police Services (SAPS), but are housed and cared for by the Department of Justice and Correctional Services. A noticed shortfall is that no programmes run by correctional centres are available to awaiting trial detainees, which further increases the negative impact on their well-being.
In South Africa, a strong case can be made for the use of alternatives of pre-trial detention. It is not uncommon to hear about persons awaiting trail who could be out on bail, but due to economic reasons cannot afford the bail, sometimes as little as R200. Other alternatives to pre-trial detention include house arrest, police bail, regular reporting to a police station, surrendering of travel documents and orders to stay away from victims or witnesses.
The SAHRC, grounded in its constitutional mandate continues to support the rights to fair trials for all persons in South Africa. As such, the SAHRC will join the African continent and the ACHPR’s in observing the inaugural day for pre-trial detention in Africa on the 25 April 2016.
Dr Titus is a Commissioner at the SA Human Rights Commission responsible for areas of Human Rights and Law Enforcement, and Prevention of Torture
Monday 25th is an African Union’s inaugural Pre-Trial Detention Day