Research into pre-trial detention in Zambia
On Monday 25th July, an unprecedented study was launched in Lusaka entitled – Pre-trial detention in Zambia: Understanding caseflow management and conditions of incarceration.
On Monday 25th July, an unprecedented study was launched in Lusaka entitled – Pre-trial detention in Zambia: Understanding caseflow management and conditions of incarceration. The information contained in this report provides rigorously researched, empirical evidence which can be used to underpin future efforts by both government and civil society to influence legislation, policy and practice with a view to ensuring the appropriate use of pre-trial detention, promoting the speedy resolution of trials and improving prison conditions in line with the United Nations Standard Minimum Rules for the Treatment of Prisoners.
Executive Summary Like elsewhere in Africa, the excessive and extended use of pre-trial detention in Zambia is symptomatic of failings in the criminal justice systems relating to the effective and efficient management of case flow. Excessive and extended pre-trial detention violates a number of rights, key among which are the right to liberty, dignity, a fair and speedy trial, and to be free from torture and other ill treatment. It is especially the poor and powerless who bear the brunt of excessive and extended pre-trial detention. But the impact of pre-trial detention, even for short periods, reaches well beyond the individual concerned, affecting families and communities.
In order to better understand the use of pre-trial detention in southern Africa and its impact on the rule of law, access to justice and adherence to human right standards, the Open Society Initiative for Southern Africa (OSISA) – in partnership with the Open Society Foundation for South Africa (OSF-SA) and the Open Society Foundations Global Criminal Justice Fund (GCJF) – commissioned an audit of a sample of police stations, prisons and courts in Zambia to gather information on both the legal status of awaiting trial detainees and issues pertaining to conditions of detention in prisons and police stations. Following a review of the literature, data was collected from a number of police stations, prisons, subordinate courts and High Courts. This focused on quantitative data on case flow management and qualitative data on conditions of detention.
The institutions of the criminal justice system and their functions Limited resources place constraints on all criminal justice institutions in a variety of ways. However, cost effective and sustainable solutions need to be sought to improve record keeping and monitoring of case flow. In respect of the police, it was found that a number of problem areas create bottlenecks in respect of effective and efficient case flow management, including logistical challenges (transport, printing and stationery); non-selective charging of suspects by police prosecutors; lack of forensic capacity to investigate cases; abuse of police powers to arrest and detain; and, poor communication between the prosecutors and investigators of cases.
The research found that a number of issues relating to the Directorate of Public Prosecutions (DPP) hamper effective case flow management, such as delays in sending instructions from the DPP to the police; under-staffing of the DPP; lack of autonomy of the DPP vis a vis the Ministry of Justice; lack of supervision of police prosecutors by the DPP; lack of, or limited, follow-up of cases by police prosecutors; and, lack of transport to transfer case files between police stations and DPP offices. While the Legal Aid Board (LAB) is intended to provide legal advice and representation to indigent clients, its work is constrained by limited human resource capacity within the LAB, lack of accessibility and knowledge of the LAB, and prohibitive fees charged by the LAB.
The analysis of the judiciary revealed that the following factors affected case flow management – confusion between judicial independence and accountability for undue delays in the disposition of cases; excessive delays in the committal of cases to the High Court; excessive delays in the confirmation of sentences in the High Court; lack of effective court roll management; under-staffing; lack of office equipment for necessary support functions; and, lack of child-friendly courts. The prison service experiences a range of problems that impact on the conditions of detention, including under-funding that permeates nearly all operational areas (cost per prisoner per day is estimated to be less than US$2) and high mortality rates among both staff and prisoners.
Despite these challenges, the following were identified as promising and/or good practices – the Coordinated Communication and Co-operation Initiative aimed at improving cooperation and communication between the five institutions of the criminal justice system; increase in the High Court establishment from 20 to 50 judges; increase in the capacity of the LAB through the use of private practitioners; and, legal reform efforts (i.e. National Prosecutions Authority Act and Community Crime Prevention Methods under the Police Amendment Act).
The legislative framework for pre-trial detention The Constitution of Zambia and the other legislation regulating the criminal justice system provides a sufficient framework for regulating pre-trial detention and fair-trial rights. The legislation provides for bail; due process guarantees; the right to be informed of the reasons for arrests and compensation for unlawful arrest; the right to be brought to court within in 24 hours; the right to be tried within a reasonable time by a competent tribunal or authority; the presumption of innocence; access to legal representation; and the general rights to liberty and security of the person.
Conditions of detention – police cells While some good practices were identified, the overwhelming picture is that conditions of detention are poor, violate the rights of detainees in material ways and frequently exceed the 24-hour rule. The ageing state of many Zambian police stations (many are more than 40 years old) and the insufficient capacity and nature of cell accommodation are the cause of many of the major concerns. Sufficient funds will remain a challenge for the foreseeable future, but this should not prevent an incremental process of reform and improvement.
The police service should develop a time bound and monitored plan of action to incrementally improve conditions of detention, while police management should provide assertive and demonstrable leadership in relation to the human dignity of detainees and their right to physical and moral integrity – as well in relation to transparency and accountability, which are the cornerstones of a human rights-based detention system. The police training curriculum also needs to be reviewed in relation to its focus on human rights standards and refresher training should be conducted on a regular basis.
Conditions of detention - prisons As was the case with police detention conditions, some good practices were identified but the overwhelming picture is that conditions of detention are poor and fall short of what is generally accepted as humane detention. However, the government of Zambia should be commended for its recent ratification of the International Convention for the Protection of All Persons from Enforced Disappearance and the reports it has submitted to the UN Committee against Torture. Together with its partners, the prison service needs to seek and advocate for alternatives to excessive and prolonged pre-trial detention, while also aspiring to increase its self-sufficiency and seek more environmentally-friendly, low-cost and low-tech solutions to some of the practical challenges relating to conditions of detention. A comprehensive cost analysis of improvements in the prison system should be undertaken in order to accurately inform the budget of the prison service.
Case flow management data Estimating the time periods spent in custody by accused people in the criminal justice system was the primary objective of the case flow management part of the research – and sufficient data of the requisite quality was collected in order to describe national trends. There has been a steady reduction in the average time in police detention from 39 days in 2006 to 8 days in 2011. However, time periods in police detention do remain a cause for concern since the legislative limit of 24 hours does not appear to be achievable for the majority of detained people. Deprivation of liberty by the police for a range of minor offences also raises concerns. Admission to police detention could be reduced by 20 percent simply by removing people arrested on offences such as loitering.
The impact of legislation restricting bail for some offences, particularly drug offences, is readily apparent from a comparison of the remand population offence profile with the profile of cases before the courts. Remand is also highly likely for people before the courts, with more than half of people tried in the subordinate courts being held on remand. A great source of concern is the long time periods applicable to cases transferred to other courts or committed to the High Court. In addition, the long time periods (compared to conviction) applicable to cases that are ultimately withdrawn is also an issue that needs to be addressed and suggests a failure to properly screen cases at an early stage. Finally, variations in time periods by location indicate the influence of local factors.
Further research and/or reform is recommended to: Re-train police on the right to police bond as well as initiate changes to local practice on the requirements for police bond; Review bail legislation restricting bail by offence type; Review the penal code to decriminalise certain actions resulting in unnecessary police detention; Review the committal process and design an expedited process to enrol matters in the High Court; Implement an early screening process to be adopted by prosecutors to expedite withdrawals; and, Identify and implement mechanisms to identify instances of inordinate delay in relation to people on remand and trigger a review of these cases.