The treatment of prisoners in Africa

Crime, which may be defined as a grave offence against the law, and punishable as such, has always been associated with imprisonment. There is, however, a growing global trend of changing beliefs about crime control and about the value of punishment by imprisonment. The change is directly linked to the increasing concern with abuses of human rights in general, and with the treatment of alleged offenders and convicted prisoners in particular. The evidence of this concern may be seen in the evolution of United Nations instruments, such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, the Standard Minimum Rules for the Treatment of Prisoners, the Basic Principles for the Treatment of Prisoners, the Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules); the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, the Riyadh Guidelines and the Beijing Rules.

It is significant that instruments specifically relevant to the treatment of prisoners do exist. Apart from those developed under the auspices of the United Nations, there are regional instruments, such as the European Convention on Human Rights, the American Convention on Human Rights and the African Charter on Human and People's Rights. Each of them has a specific Article on punishment or on those deprived of their liberty.

Vulnerability of prisoners

Prisoners are uniquely vulnerable members of society, in that they are completely under the control of other people, i.e., at the mercy of their jailers. It is the prison officials who, on a daily basis, control the most basic human activities and concerns of prisoners. They decide when and how prisoners may eat and sleep, or even when they may perform their bodily functions. They control prisoners' access to medical facilities, to work and to education. They also control the right of prisoners to observe the requirements of their religion and their contact with the outside world, i.e. family members and friends. In addition, prisons are often situated in the most remote or isolated areas. Thus, the potential for prisoners to suffer from human rights abuses and maltreatment is very great. In this connection, it has been said that one can judge the state of civilization of any country by the way it treats its criminals. Or, as B. G. Ramcharan put it, "the way a society treats its vulnerable members is a reflection of its social health and conscience." [1]

The punishment of imprisonment in philosophical perspective

It is a common tendency practically everywhere to impose imprisonment as a principal penal sanction in preference to other forms of punishments. This inclination appears to reflect society's view that unless an offender is incarcerated, justice has not been served. Also, if offenders are not imprisoned, the public feels insecure.

The way a penal system functions with regard to the treatment of offenders depends primarily on the society's philosophy of punishment. Usually, the administration of the penalty for a crime involves the intention to produce some kind of pain, which is justified in terms of its assumed value. The question then arises: what is the value of imprisonment in crime control?

There are fundamentally divergent answers to this question. Some agents of criminal justice look at the purpose of imprisonment in terms of retribution, others in terms of deterrence, and still others in terms of reformation.

Retribution

Imprisonment in the context of retributive justice implies dealing with offenders according to their deserts, i.e., a criminal deserves to be punished, to pay in pain the debt he owes to the victim and to society for having broken the law. The argument here is that because of the crime one has committed, and the harm one has done to society, one has forfeited one's rights and does not deserve to be accorded the same protection as other members of the society. Thus the retribution which the criminal is made to suffer is assumed to support the moral code and to express society's hostility against crime and criminals.

However, critics argue that retributive justice springs from a human passion for revenge. Revenge should not be permitted to rise above rationality; it should not influence court actions against the criminal or the policy of the state with respect to criminals. To encourage retaliation is to promote destructive motives, to array man against man, to put a premium upon violence, to align the criminal against society in a mutually detrimental process. Moreover, the retributive approach encourages stigmatisation and discrimination against people who have paid for their for their crimes by the punishment of imprisonment. This undermines the strength of the community and leads to further crime.

If jailers are given the message that retribution is the main reason for imprisonment, they have little cause to restrain themselves from inflicting excessive pain upon offenders and to maintain discipline and order through negative means. As a cynic might put it: if the law is serves to satisfy the out-raged feelings of society, one may well ask why we should not make punishment as severe as possible, and if it is pain that is wanted, why not get as much of it as possible? As long as the principle of retribution dominates the administration of justice, humanisation of prisons through application of the international principles for the treatment of offenders will be difficult to achieve.

Deterrence

When deterrence is considered to be the main justification for imprisonment, the offenders are punished in order to discourage them from committing further crimes after release. At the same time, they are held up as examples of what happens to those who violate the law. The assumption is that punishing offenders helps to curb the criminal activities of others, or to deter those who might be tempted to commit crimes.

Many of those who insist on deterrence base their belief on the doctrine of free will, which ascribes the power of choice and capability for genuine initiative to every normal individual human being. Thus, when one violates the law, it is assumed that one might have acted otherwise if one had so desired. Therefore, offenders deserve to be punished for having not disciplined themselves sufficiently and ought to be taught a lesson so that others, impressed by the offender's experience, will choose to obey the law.

Some commentators maintain that apart from instilling a fear of penalty in those who might be inclined to commit crimes, deterrence also involves the law in the process of education and training for moral character. Through stigmatizing certain acts in terms of prescribed penalties, attitudes of dislike, contempt, disgust, and even horror for those acts, are engendered. The overall end result is supposed to be the development of attitudes hostile to crime.

In ordinary practice, however, the treatment of prisoners from the point of view of deterrence may not differ markedly from that at the hands retributists. A jailer who is bent on ensuring that prisoners are punished as a deterrence to further criminal involvement and on assuring that criminal activities of others are prevented on the basis of the treatment of offenders, may impose undue restrictions and conditions of pain to the offenders under the pretext of effecting deterrence.

Reformation

With regard to reformation as the major purpose of imprisonment, the underlying assumption is that punishment is a strong means of influencing human behaviour which has a corrective value when used properly. Accordingly, offenders are imprisoned to be reformed or rehabilitated. During the time they are in prison, they are supposed to be helped to realise that committing crime is wrong. More broadly, a prison culture which recognises social adjustment as a primary object of penal policy will particularly favour educative measures in order to encourage the acquirement of desirable forms of knowledge and understanding, skills and attitudes.

In this connection, measures employed to treat convicted offenders essentially serve therapeutic functions designed to bring about changes in behaviour in the interest of their own happiness, and also in the interest of social welfare. The challenge in this regard is that the reformative procedure should not be so pleasurable as to encourage further criminal activities, while at the same time it must be so designed as to produce positive changes in the personalities of offenders, more especially the right sense of values.

Indeed, the reformative ideal of imprisonment is humane and in line with the spirit of the current human rights movement in two very important respects. Firstly, people should be sent to prison as punishment not for punishment. This means that the loss of liberty engendered by the fact of imprisonment - of being taken away from family and community, of being locked away subject to routines and rules and discipline imposed by others - is the punishment. It is inhuman and contrary to the essence of democracy to aggravate this punishment or to impose any additional suffering. Secondly, rehabilitation as a penal policy is surely a most desirable ideal for society, in that it is supposed to commence at the very time offenders are convicted and to continue until they are resettled harmoniously within society after serving their prison sentence. Thus, the process of rehabilitation is a learning experience for the agents of criminal justice, for the offender and for society as a whole.

To emphasize the rehabilitative needs of the prisoners is to suggest that the crime, instead of being narrowly looked upon as a wrong committed against society, is a symptom of a bigger depravity of the offender with causal factors entrenched not only in the individual, but also in the entire social system. As modern criminologists hold, in defending the importance of preserving the self-respect of the prisoner, the emphasis is put on the fact that the quantity and character of deviation in any society is indicative of social ills which need both diagnosis and treatment.

Conceptions about prisoners

It must be understood that views on the purpose of imprisonment and the bearing this has on the treatment of prisoners is intimately related to the views held about the legal status of prisoners. Broadly speaking, prisoners may be viewed either pessimistically or philanthropically, according to the historical view of criminality and the philosophical orientation of a given social system.

By way of illustration, in 1871 in the State of Virginia in the United States of America, Judge Christian described prisoners as being "civilly dead" and as "slaves of the state" [2] . That was a typically pessimistic representation of the prisoner. Such a view has negatively influenced and shaped penal policies in many countries over the years. Obviously, prison officials holding this kind of view would hardly pay attention to the need for treating prisoners decently and for respecting their human rights while in prison.

In contrast, the philanthropical view is humanistic, characterized by a sympathetic understanding of the prisoner's situation. In 1982, in a case in the United Kingdom, Lord Wilberforce articulated this view when he asserted that "under English Law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication." [3 ] Prison officials holding such a view of imprisoned offenders will more easily appreciate the principle that pain produced in the administration of penalty should not exceed suffering inherent in the very nature of imprisonment, i.e., the loss of liberty.

Prisons are an abnormal human environment due to their inherent coercive aspects of the deprivation of liberty. Thus, although the experience of imprisonment may be put to positive use, the fact of imprisonment is in itself negative. It is in acknowledgement of this fact that modern civilized thinking and good practice put a premium on the development of penal systems and prison cultures on the basis of the internationally accepted view of the main requirements for the proper treatment of prisoners in the context of human rights and fundamental freedoms.

The legal status of prisoners

International requirements and guiding principles for the treatment of prisoners cover the following: appropriate accommodation for prisoners; reasonable standards of personal hygiene and sanitary conditions; suitable and adequate clothing and bedding; good and adequate food; suitable provisions for exercise and recreation; proper medical care; opportunity to practise one's religion; safe retention of prisoners' personal property; proper safeguards to protect prisoners against public ridicule and unnecessary physical hardships during removal and transfer; imposition of reasonable conditions of security; maintenance of a level of discipline only necessary for good order in prison; absolute prohibition of torture; lawful and fair punishments; access to education and information; fair provisions for contact with the outside world; categorization and segregation of selected prisoners for appropriate treatment; ensuring that all the rules and regulations apply to prisoners equally; and effective maintenance of ethical standards among law enforcement officials.

The integrity of the person is the axis of the international norms and principles concerning the treatment of prisoners. Of particular significance is the principle that, "All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person." [4] To crown all, "No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No circumstances whatever may be involved as a justification for torture or other cruel, inhuman or degrading treatment or punishment." [5] That is, people who are accused or convicted of breaking the law do attract sanctions but should never forfeit basic human rights to fair and human treatment. The concern is essentially about making imprisonment a less destructive experience in the light of the requirement that "The purpose and justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society, the offender is not only willing but also able to lead a law-abiding and self-supporting life." [6]

If prisons are a yardstick for civilization, all legislators, courts of law and law enforcement agencies need to have the greatest awareness and sensitivity towards human rights and fundamental freedoms. In particular, those who are responsible for prisons and for prisoners need to understand how the spirit, norms, and standards of international human rights are reflected in the rules and procedures that govern their work and why they are expected to abide by such rules and procedures.

Prisoners in African prisons

What is the situation in Africa in regard to the treatment of prisoners? One positive development is that most African countries have agreed to comply with the various international conventions on the treatment of offenders, including the UN Standard Minimum Rules for the Treatment of Prisoners. Some of them have even embarked on reforming their laws and practices, taking into account those instruments.

Nevertheless, in common with countries in a number of other parts of the world, prison conditions in many African countries fall far short of the internationally agreed standards. Worse still, prisons in Africa "have been, and in some cases still are, very secret, closed institutions." [7] At the core of the Pan African Seminar on the issue of prison conditions in Africa, held in Kampala, Uganda, in September 1996, was the concern about "overcrowding, poor infrastructure, under-budgeting, high death rates, incidents of torture and ill-treatment of inmates and other bad practices that at times characterize the African penal institutions." [8] Similarly, a survey of Sub-Sahara Africa has indicated an appreciable extent of unfair and inhuman conditions and practices associated with the penal systems of the majority of the countries in the region. [9] Some brief illustrations from Uganda and Kenya will suffice.

Literature abounds in relation to aspects of prison life in Uganda which tend to dehumanise prisoners. One source of information under the Foundation for Human Rights Initiative (FHRI) recently described serious deviations from the internationally acceptable standards, such as overcrowding "where men are packed in dormitories like sardines in cans;" militarized discipline devoid of any "sense of justice and fairness in its application;" a combination of "poor feeding, hard labour and beatings by both warders and privileged prisoners;" virtual absence of provision for education and leisure activities; poor conditions under which prison staff work, which make them a second category of prisoners as well as worsen their handling of offenders. [10]

In a subsequent FHRI publication, the situation was characterized thus: "In this country (Uganda), we are failing to respect the dignity of prisoners. They go about almost naked, do not have enough to eat, they sleep on the floor without beddings and the overcrowding is such that inmates must sometimes sleep on their sides." [11]

In his reply to the question about imprisonment, an ex-prisoner had the following picture of the penal system of Uganda: "It is very bad to be a prisoner. Prison staff hardly recognize you as a person. You lose your dignity and nobody can listen to you, even if you are completely worn out. A prisoner cannot suggest Most people refer to prisoners as things but not as people." [12]

An equally grim, but more comprehensive picture has been presented by the Kenyan Human Rights Commission. They cited overcrowded conditions and attendant physical and psychological ills as being "probably the most pervasive problem in Kenya's prisons." [13]

The Commission went on to evince the following: the fact that prisoners "often have no clothing or bedding at all;" the fact that "food in prison is of poor quality, uncooked, spoiled, worm-infested, inadequate, and monotonous;" the failure "even to meet the most basic minimum standards of care" and "an appalling lack of medical ethics in prison;" the truth that "the acts purported to be disciplinary are actually forms of thinly disguised torture;" horrifying and "very prevalent use of brutal force on inmates;" arbitrary transfers and cruel methods of transporting prisoners; needlessly prohibitive conditions and policies governing contact between prisoners and the outside world; totally inadequate recreational and educational opportunities; labour conditions in custodial facilities resembling "slave labour;" the failure "to keep hardened criminals separated from less experienced offenders;" rampancy of "discrimination by race and ethnicity;" the fact that "citizens in custodial facilities are exposed to all manner of diseases and mistreatment" such that "death is a daily reality"; and the misfortune "that prison warders may be as badly off as prisoners - if not worse off." The Commission was shocked to discover that "religion is the only area in which prison policies and conditions are not utterly inadequate". [14]

Conclusion

The depressing picture presented above strongly suggests that•due to unwillingness or inability to ensure that the treatment of prisoners reaches established international standards•governments are guilty of disrespecting the rule of law and the observance of basic human rights. Unfortunately, these abuses appear to be continuing rather unabated and thus counteract the rehabilitative ideal of imprisonment. The irony of it, as often stressed by journalists, is that when politicians are still in power, they ignore or dismiss complaints concerning prison life; however, if they should ever find themselves in prison, they then complain bitterly about what they describe as appalling and inhuman conditions.

While the uphill struggle towards realization of the reformative ideal of imprisonment continues in the context of human rights, greater emphasis should be placed on law reform leading to the introduction and promotion of more economical and more humanistic sentences of a non-custodial nature as alternatives to imprisonment in line with the UN Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules). Such alternatives mainly include restitution, reconciliation, increased use of monetary penalties and community based sanctions like community service.

A change toward non-custodial penal policies will have vast implications for education, both formal and informal. The need for socio-cultural change in order to arrive at a more humane treatment of offenders cannot be overemphasized.

NOTES

2. Ibid., ch. 3, p. 8.

3. Loc. cit., p. 8.

4. See Principle 1 of the UN Body for the Protection of All Persons Under Any Form of Detention or Imprisonment.

5. Ibid., see Principle 6.

6. The UN Minimum Rules for the Treatment of Prisoners, para. 58.

7. Prison conditions in Africa: report of a Seminar, 2-4 April 1993. Banjul, The Gambia: African Centre for Democracy and Human Rights Studies; Penal Reform International, p. 3.

8. See The Prisons update: a newsletter on the Penal Reform Project of the Foundation for Human Rights Initiative. Vol. 2, Issue No. 1 (September 1996) p.1.

9. See Penal Reform International: Regional Conference for Sub-Sahara Africa: Non-Governmental Organisations and Penal Reform, 15-17 August 1994, Kampala, Uganda, p. 3.

10. The Prisons update, op. cit., p. 8-15.

11. The Prisons update, Vol. 2, Issue No. 2 (December 1996), p. 2.

12. Quoted in UNAFRI Uganda Prisons Service: "From prison back home: the social rehabilitation as a process: the Uganda experience." September 1996, p. 10.

13. A death sentence: prison conditions in Kenya by Kenyan Human Rights Commission, 1996 Prisons Project, p. 27.

14. Ibid., pp. 36-80.

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