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The Socio-economic Impact of Pre-trial detention in Kenya, Mozambique and Zambia
Author: Jean
Published: Feb 08, 2017

In many countries people accused of crimes are held in detention before trial. The law permits this detention usually in order to guarantee the appearance of the accused at trial. This project seeks to confirm and quantify the socio-economic impact of such pre-trial detention on detainees, their families, and associated households, in the main urban centres of Kenya, Mozambique and Zambia.

An Audit of the Criminal Justice System in Kenya
Author: Jean
Published: Jan 23, 2017

The 2010 Constitution ushered in a new era for governance in Kenya, with notable emphasis on rights codified in the Bill of Rights under Chapter Four of the Constitution. It is against this background that, under the auspices of the National Council on Administration of Justice (NCAJ), the Legal Resources Foundation Trust (LRF) and Resources Oriented Development Initiatives (RODI-Kenya) - with technical support from University of Western Cape South Africa - CSPRI and financial support from Open Society Foundations - partnered to conduct an audit study on Kenya’s Criminal Justice System. The focus was on pretrial detention with specific emphasis on conditions of detention and case-flow management. The audit was commissioned by the NCAJ Council on the 15th May, 2015 and thereafter conducted under the supervision of an NCAJ National Steering Committee, comprising of members drawn from the various agencies of the Criminal Justice System.

A Comparative Study of Bail Legislation in Malawi, Mozambique and Burundi
Author: Jean
Published: Oct 12, 2016

The deprivation of liberty is a serious intervention in any person’s life, and therefore the possibility of releasing an accused person from custody pending trial is a fundamental part of criminal justice systems across the world. Criminal justice systems have developed various ways to ensure, at least in law, that accused persons appear for trial without depriving them of their liberty. Such release may be conditional or unconditional. Unconditional release usually takes the form of a warning to appear in court at a later date, while conditional release can be secured through bail, bond, surety, and supervision. This paper reviews the laws on conditional release in Burundi, Malawi and Mozambique. These three countries were selected on the basis that they represent not only different types of legal systems but Francophone, Anglophone and Lusophone legal traditions, respectively. --

Constitutionnalité des lois relatives à la procédure pénale et à la détention en Afrique: Côte d’Ivoire
Author: Jean
Published: Oct 02, 2016

A la suite de l'adoption de conventions internationales des droits de l'homme dans la deuxième moitié du dernier siècle et de nouvelles constitutions à la fin du 20e siècle, la question se pose de savoir si les droits reconnus dans ces conventions et constitutions sont reconnus dans la législation applicable. Dès lors, ce rapport examine la question de la constitutionnalité du droit pénal et du droit de la procédure pénale en Côte d'Ivoire. Une étude comparative des cadres normatifs au Burundi, Côte d’Ivoire, Kenya, Mozambique et Zambie est également disponible en anglais.

Constitutionality of Criminal Procedure and Prison Laws in Africa: Zambia
Author: Jean
Published: Oct 01, 2016

Zambia’s Constitution contains an enforceable Bill of Rights, one which mainly lists civil and political rights that constrain state power. Having human rights enshrined in an enforceable manner in the Constitution is important, because the validity of other laws is measured by their conformity to the Constitution.

Constitutionality of Criminal Procedure and Prison Laws in Africa Kenya 2
Author: Jean
Published: Oct 01, 2016

Kenya’s 2010 Constitution is liberal with regard to the rights of persons in the country’s criminal justice system. Its notable novel provisions include the entrenchment of the rights to fair trial and habeas corpus and the separation of criminal investigations and prosecutions under two independent systems. The country’s penal and criminal procedure laws predate the Constitution.

Constitutionality of Criminal Procedure and Prison Laws in Africa: Kenya
Author: Jean
Published: Oct 01, 2016

Kenya’s 2010 Constitution is liberal with regard to the rights of persons in the country’s criminal justice system.This study identifies conformity gaps between, on the one hand, constitutional protections of the rights of arrested, accused and detained persons and, on the other, statutory criminal procedure requirements. The starting-point is the Constitution and, accordingly, the study is concerned with provisions in criminal procedure law that are directly or indirectly within the scope of application of an explicit right in the Constitution.

Constitutionality of Criminal Procedure and Prison Laws in Africa: Côte d’Ivoire
Author: Jean
Published: Oct 01, 2016

The adoption by referendum of Law No. 2000.515 of 1 August 2000 establishing the Constitution of the Republic of Côte d’Ivoire must be understood against the political backdrop of that time. It resulted from the need to restore state’s institutions after the coup of 24 December 1999 and to prepare for the presidential election of October 2000. Many national and international observers agree that the Ivorian Constitution of 2000 is an essential text establishing minimum standards. Observers also consider that the Constitution broadly incorporates the main principles established by the conventions and treaties that Côte d’Ivoire has signed since 1960. In criminal matters, none of the major pieces of legislation (the CCP, the CC and the PA Decree) has been modified and updated in the light of the new Constitution.

Constitutionality of Criminal Procedure and Prison Laws in Africa: Burundi
Author: Jean
Published: Oct 01, 2016

The purpose of this study is to briefly examine major developments in Burundi’s criminal procedure legislation and prison laws since the adoption of its 2005 Constitution and to assess how these developments may have impacted on human rights. In effect, this study seeks to understand whether subordinate legislation in Burundi is in line with constitutional provisions and international standards relating to procedural safeguards for arrested and detained persons.

Constitutionality of Criminal Procedure and Prison Laws in Africa A comparative study of Burundi, Côte d’Ivoire, Kenya, Mozambique and Zambia
Author: Jean
Published: Oct 01, 2016

This study reviews 41 rights of arrested, accused and detained persons under Burundian, Ivorian, Kenyan, Mozambican and Zambian law. These countries were chosen because they represent Anglophone, Francophone and Lusophone Africa as well as countries that have a civil law and common law tradition. The study begins by reviewing 17 rights of those arrested and detained in police custody; it goes on to examine 18 rights of accused persons; and ends by considering six rights of those detained in prison on remand or as sentenced prisoners. Each right is examined from three angles: first, whether it is recognised under international human rights law; secondly, to what extent the right is enshrined in the domestic constitution of the jurisdiction under review; and thirdly, to what extent the right is upheld and developed in subordinate legislation.

Formalising the role of paralegals in Africa: A review of legislative and policy developments
Author: Jean
Published: Aug 31, 2016

Paralegals have an important role to play in criminal justice systems throughout Africa. In many countries the effective use of paralegals is inhibited by a lack of formal recognition. Changes to domestic legislative frameworks are necessary to empower paralegals in their work with persons in conflict with the law at police stations, court rooms and prisons.It is hoped that this report will serve as an impetus for debate and advocacy on this important issue. This report reviews the work and legal framework of paralegals in 11 countries, being Burundi, Kenya, Liberia, Mali, Nigeria, Sierra Leone, South Africa, South Sudan, Tanzania, Uganda and Zambia.

African Innovations in Pre-trial Justice
Author: Jean
Published: Aug 01, 2016

This review seeks to showcase innovative interventions to reduce pre-trial detention in African countries, so that they may be adapted for use in other low and lower-middle income countries.

Arrested in Africa: An exploration of the issues
Author: Jean
Published: Nov 01, 2015

Recent research and advocacy efforts have drawn attention to the excessive use of and prolonged pre-trial detention in Africa. At any given moment there are roughly 1 million people in Africa’s prisons. Far more move through prisons each year. Their stay in prison, regardless of duration, starts with being arrested. Substantially more people are arrested than those who end up in prison for pre-trial detention. Pre-trial detention figures are thus a poor indicator of contact with the criminal justice system. The purpose of arrest and subsequent detention of a suspect is essentially to ensure the attendance of the person in court or for another just cause. The police’s powers of arrest are, in theory, curtailed to the extent that the arresting officer must be able to provide reasons for the arrest and continued police detention. Police officials have considerable discretion in executing arrests, especially when arresting without a warrant. This exploratory report focuses on arresting without a warrant and starts off with setting out the legal requirements in this regard by way of a case study. In order to understand current arrest practices, the report provides a brief description of the history of policing in Africa and concludes that much of what was established by the colonial powers has remained intact, emphasising high arrest rates, a social disciplinarian mode of policing, supported by myriad petty offences that justify arrest without a warrant. This combination enables widespread corruption and results in negative perceptions of the police. The report further argues that given the wide discretionary powers of the police to arrest without a warrant, it follows that not all people are at an equal risk of arrest, but rather that it is the poor, powerless and out-groups that are at a higher risk of arrest based on non-judicial factors. The report concludes with a number of recommendations calling for further research, decriminalisation of certain offences and restructuring of the police in African countries.

Challenging disadvantage in Zambia: People with psychosocial and intellectual disabilities in the criminal justice system
Author: Jean
Published: Jul 23, 2015

This project investigated how individuals with psychosocial and intellectual disabilities are dealt with by the criminal justice system in Zambia, and developed recommendations for improving policy and practice. The project was undertaken by a consortium of non-governmental organisations (NGOs) comprising the Paralegal Alliance Network (PAN), Mental Health Users Network Zambia (MHUNZA), the Prisons Care and Counselling Association (PRISCCA), the Zambia Federation of Disability Organisations (ZAFOD), the Legal Resources Foundation (LRF) and the UK-based Prison Reform Trust. The work was funded by the Open Society Initiative for Southern Africa (OSISA) and the Human Rights Initiative at the Open Society Foundations, and was overseen by a steering committee chaired by the Ministry of Home Affairs.

Muitos problemas que comprometem os direitos dos reclusos em prisão preventiva
Author: Jean
Published: May 01, 2015

Este artigo apresenta os resultados de uma pesquisa realizada em Maputo, em 2012, sobre a prisão preventiva. As condições de reclusão e de acesso à representação legal de um grupo de reclusos que aguardam julgamento são analisados dentro do contexto do sistema penitenciário então em vigor em Moçambique. Enquanto a autora está ciente de que o quadro jurídico-legal do sistema penitenciário avançou nos últimos três anos, a pesquisa mostra que as condições de reclusão e acesso à representação legal de um grupo de pessoas em prisão preventiva em 2012 não respondiam aos princípios internacionais e nacionais que regulavam o sistema penitenciário no país.

Lawyer at the Police Station Door: How REPLACE Provides Legal Aid in Nigeria
Author: Jean
Published: Mar 16, 2015

The central element of the project, the Police Duty Solicitors Scheme (PDSS), sought to reduce the excessive use of pretrial detention by providing free legal advice to suspects at police stations—the point at which the decision to detain or to release pending trial is made. This 12-page illustrated briefing summarizes the successes achieved.

Innovative Efforts, Proven Results: How Timap for Justice Provides Legal Aid in Sierra Leone
Author: Jean
Published: Mar 16, 2015

In 2009, Timap for Justice began an innovative project to provide frontlinel legal assistance to pretrial detainees, using local community members who have received basic legal training as paralegals. The results have been impressive: Timap’s paralegals have succeeded in getting inappropriate charges dropped in 28 percent of cases, and have secured bail for an additional 55 percent of suspects

A Survey Report on the Application of Bond and Bail Legislation in Zambia 2014
Author: Jean
Published: Jan 07, 2015

This report by the Zambian Human Rights Commission was based on a survey conducted to collect information on factors affecting access and conditions regarding bail among people found to be in conflict with the law in Zambia. The findings are meant to provide a basis for the review of current bail legislation relating to bail conditions in Zambia by promoting easy access for suspects or inmates to bail regardless of their social and economic conditions.

Evidence obtained through violating the right to freedom from torture and other cruel, inhuman or degrading treatment in South Africa
Author: Jean
Published: Jan 01, 2015

This article was published in AHRLJ Volume 15 No 1 2015. Although South African courts have expressly held that any evidence obtained through torture is always inadmissible, the author is unaware of a decision from a South African court to the effect that evidence obtained through cruel, inhuman and degrading treatment is, like evidence obtained through torture, inadmissible in all circumstances. In this article, the author first deals with the issue of evidence obtained through torture and thereafter relies on the practice of international and regional human rights bodies, such as the Committee against Torture, the Human Rights Committee, the UN Special Rapporteur on Torture, the UN Special Rapporteur on the Independence of Judges and Lawyers, the European Court of Human Rights and the African Commission on Human and Peoples’ Rights, and some of the sections of the South African Constitution, to argue that South Africa has an international obligation to exclude any evidence obtained through cruel, inhuman and degrading treatment. In support of this argument, the author relies on the jurisprudence of the South African Supreme Court of Appeal on the nature of the right to freedom from torture and argues that the same approach could be applied to the right to freedom from cruel, inhuman and degrading treatment

Women in Pre-trial Detention in Africa
Author: Marilize Ackermann
Published: Nov 07, 2014

This is a publication of of the project 'Promoting Pre-trial Detention in Africa' (PPJA). The objective of this review is to explore existing literature in respect of the reasons for female remand detention in Africa and the challenges women experience in prison. The biggest challenge to compiling this review was the lack of centralised and comprehensive statistics. The subject is under-researched and statistics referred to represent snapshot data obtained either from the database of the International Centre for Prison Studies or from various ad hoc reports. Literature pertaining to South Africa was available, but authoritative studies from less developed countries do not exist, or were last undertaken as long ago as the 1980s. The failure of states to allocate resources to female detainees and the absence of consistent and clear policies and legislation around the issues they commonly encounter suggest a lack of awareness or a lack of political will to improve the situation.

Handbook on Juvenile Law In Zambia
Author: Jean
Published: Aug 31, 2014

This publication by Zambia's Centre for Law and Justice, Cornell Law School’s Avon Global Center for Women and Justice, and Cornell Law School's International Human Rights Clinic offers a compendium of Zambian juvenile law, including the processing of juveniles in the criminal justice system. It synthesizes relevant constitutional and statutory law, case law, and international human rights law and highlights best practices that practitioners may consider when working on matters involving juveniles.

The African Commission’s Guidelines on Pre-trial Detention: Implications for Angola and Mozambique
Author: Jean
Published: Aug 01, 2014

On 8 May 2014, in Luanda (Angola), the African Commission on Human and Peoples’ Rights (ACHPR) adopted the Guidelines on the Use and Conditions of Arrest, Police Custody and Pre-trial Detention in Africa. Shortly after the adoption of the Guidelines, the Civil Society Prison Reform Initiative (CSPRI) of the Community Law Centre at the University of Western Cape (South Africa) co-hosted on 21-22 May 2014 a workshop in partnership with the Mozambican Institute of Legal Aid (Instituto de Patrocínio e Assistência Jurídica, IPAJ), in Maputo, to begin a debate on the implementation of the Guidelines in Mozambique and Angola.

Unsustainable and unjust: Criminal justice policy and remand detention since 1994
Author: Jean
Published: Jun 01, 2014

The ‘tough on crime’ approach embodied in bail and sentencing law has had a profound impact on the trends around remand detention, including prison overcrowding of such an extent that it is estimated to have contributed to an additional 8 500 natural deaths in custody. Ultimately the policies have led, in practice, to an ‘Alice in Wonderland’ effect: fewer people are being tried and sentenced, while more than ever are denied their freedom without ever being tried in a court of law.

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